An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-920


Filed: 21 March 2006

W.F.P. and R.V.P.                Caswell County
                            Nos. 01 J 53-54    


    Appeal by respondent from amended judgments entered 30 December 2004 by Judge Mark Galloway in Caswell County District Court. Heard in the Court of Appeals 8 February 2006.

    Stuart N. Watlington for petitioner-appellee Caswell County Department of Social Services

    Winifred H. Dillon for respondent-appellant.

    BRYANT, Judge.

    Respondent mother appeals from amended judgments filed 30 December 2004 terminating parental rights of her minor children, W.F.P.   (See footnote 1)  and R.V.P. and placing them in the custody of Caswell County Department of Social Services (petitioner-DSS).
    On 5 February 2001, the court adjudicated W.F.P. and R.V.P. to be neglected and placed them in DSS custody. When the family moved to Caswell County in April 2000, DSS was asked to provide supportive services based on concerns over respondent's inability to provide proper care and supervision of the children. The trial court found the juveniles did not receive proper care from respondent because of “consistent” complaints of inappropriate hygiene; suspicious marks and bruises; and because the juvenileshad been allowed to play on a frozen pond over the Christmas holidays. W.F.P. and R.V.P. were placed in foster care on 5 February 2001. Respondent was allowed bi-weekly visitation.
    After a review hearing on 23 April 2001, the trial court continued custody of W.F.P. and R.V.P. with petitioner pending a review within sixty days and biweekly visitation was also continued, on the condition respondent provided her own transportation on alternate weeks. Respondent was ordered to follow the case plan, to arrange adequate transportation, maintain stability in her home and attend parenting classes regularly.
    On 25 June 2001, the trial court reviewed the custody of W.F.P. and R.V.P. and entered an order continuing their custody with DSS. The trial court allowed some of respondent's weekly visits with W.F.P. and R.V.P. to occur in her home in order to observe her ability to parent when not prompted by DSS.
    On 23 July 2001, the trial court ordered reunification efforts between respondent and W.F.P. and R.V.P. to cease. The trial court found respondent “failed to remedy the deficiencies in the home environment, and the home continues to be chaotic.” Despite ceasing reunification efforts, the trial court allowed monthly visitation between respondent and the juveniles to continue.
    On 20 August 2001, the case was reviewed at a permanency planning hearing. At that time, respondent's mother requested W.F.P. and R.V.P. be placed with her, despite DSS' recommendation for adoption. Monthly visits between respondent and the children were allowed to continue. At the permanency planning reviewhearing on 22 October 2001, the trial court changed the permanent plan from reunification to adoption for W.F.P. and R.V.P. and ordered that visitation with respondent cease. On 21 December 2001, termination of parental rights (TPR) petitions were filed, alleging neglect.
    On 3 June 2002, an initial hearing was held to adjudicate the petitions. On 18 July 2002, the trial court terminated respondent's parental rights as to W.F.P. and R.V.P. and directed DSS to draft an order. The case came before the trial court again on 3 February, 17 March, 7 April and 5 May 2003. Prior to the 7 April 2003 hearing, the parties were working on an order agreeable to all. On 7 April, respondent was granted a continuance. On 6 May 2003, petitioner presented evidence that Rockingham County DSS had substantiated two reports of neglect concerning respondent and her children and that respondent had written checks on a closed account. At the conclusion of the hearing, the trial court ratified its previous decision to terminate respondent's parental rights in the best interests of W.F.P. and R.V.P.
    On 14 October 2004, respondent requested the case be reopened and presented additional testimony. Social workers from Caswell and Rockingham County DSS testified regarding a 13 July 2004 incident in which respondent was accused of shoplifting photos from a grocery store. Respondent stated she had forgotten the photographs were in her pocket book and that there was a misunderstanding as to a discussion she had with a food stamp worker regarding her eligibility to receive benefits. As a resultof that discussion, her benefits were suspended. At the conclusion of this hearing, the trial court rendered a judgment in open court to terminate respondent's parental rights. Written orders were filed on 30 December 2004. From these orders, respondent appeals.


    On appeal respondent argues: (I) the petitions terminating respondent's parental rights were legally insufficient because they failed to allege sufficient facts pursuant to N.C. Gen. Stat. § 7B- 1104(6) and failed to attach a custody order pursuant to N.C. Gen. Stat. § 7B-1104(5); and (II) petitioner did not have the authority to file petitions terminating respondent's parental rights because at the time the petitions were filed no court order granting custody of the juveniles had been entered.

    Respondent first argues the termination of parental rights petitions were legally insufficient because they failed to allege sufficient facts pursuant to N.C.G.S. § 7B-1104(6) and failed to attached a custody order pursuant to N.C.G.S. § 7B-1104(5). We disagree.
    N.C.G.S. § 7B-1104(6) provides that any petition for termination of parental rights shall state “[f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.” N.C.G.S. § 7B- 1104(6) (2005). “While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party onnotice as to what acts, omissions or conditions are at issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002).
        [W]e find no authority that compelled dismissal of the action solely because petitioner failed to include this statement of fact in the petition. While it is a better practice to include the factual statement as stated in the statute, under the facts in this case we find that respondent has failed to demonstrate that she was prejudiced as a result of the omission.

In re Humphrey, 156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003).     Both petitions dated 21 December 2001 contained the following provision setting forth the grounds to terminate the respondent's parental rights:
        That the Petitioner desires that the [c]ourt enter an order terminating the parental rights of [respondent]; and that the grounds for the termination of her parental rights are as follows:
        (a)    That the minor child had been neglected
        pursuant to N.C.G.S. § 7B-101(15) and that said minor child has previously been adjudicated neglected in Caswell County District Juvenile Court, pursuant to N.C. Gen. Stat. § 7B-101(15); and

        (b) Such other and further grounds as may justify the termination of the parental rights of the respondent herein.        
The above language put respondent on notice that the termination of her parental rights was based on the prior adjudication of neglect. A court may terminate parental rights if a child is “deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of [N.C.]G.S. 7B-101 or a neglected juvenile with the meaning of [N.C.]G.S. 7B-101.” N.C. Gen. Stat. § 7B-1111(a)(1) (2005). The petitions in this case allegedsufficient facts pursuant to N.C.G.S. § 7B-1104(6) (2005). See In re Nolen, 117 N.C. App. 693, 696, 453 S.E.2d 220, 222 (1995) (respondent must show any alleged error was prejudicial).
    Where a trial court places custody of the juvenile in some agency or person other than the parent, N.C. Gen. Stat. § 7B-1104(5) requires that a copy of the custody order be attached to a subsequent petition to terminate parental rights. N.C.G.S. § 7B-1104(5) (2005). In the instant case, there is no indication petitioner attached a copy of the custody order to the TPR petition. However, there is also no indication that respondent was unaware of the children's placement at any point during the case. The petition noted that “custody of [W.F.P. and R.V.P.] was given by prior orders” of the trial court, and it referenced the court file wherein those orders were entered. In her answer, respondent admitted that W.F.P. and R.V.P. were “in the legal custody of the Caswell County Department of Social Services.” As detailed above, counsel for respondent indicated at the termination hearing that counsel had been involved in the case for some time and had reviewed the trial court's orders prior to the hearing. Various trial court orders in the record note respondent was present at pre-termination hearings in which custody was granted to and continued with petitioner as well as those hearings in which visitation options were discussed and determined. Therefore, we conclude respondent is unable to demonstrate any prejudice arising from petitioner's failure to attach the pertinent custody order to the petition. Accordingly, we overrule this argument.

    Respondent next argues petitioner did not have authority to file petitions terminating respondent's parental rights because the trial court's order   (See footnote 2)  signed 5 February 2001 did not become final until 3 June 2002 when it was filed with the clerk and therefore petitioner lacked standing to petition to terminate respondent's parental rights. We disagree.
        (a) A petition or motion to terminate the parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following:
. . .
            (3)    Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction.
N.C. Gen. Stat. § 7B-1103(a) (2005) (emphasis added). The plain language of the statute does not require that a court order be filed before one has standing to petition to terminate parental rights. See In re Peirce, 53 N.C. App. 373, 281 S.E.2d 198 (1981) and In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982) (noting that basic rules of civil procedure while not ignored are not superimposed upon TPR proceedings). Therefore, if a court has given a petitioner custody of the juvenile, that petitioner may file a termination of parental rights petition. See In re Manus, 82 N.C. App. 340, 342-43, 346 S.E.2d 289, 291 (1986) (“A countydepartment of social services, to whom custody of a child has been given by court order, has standing to maintain such an action.”); but compare In re Miller, 162 N.C. App. 355, 590 S.E.2d 864 (2004) (trial court lacked jurisdiction to enter an order terminating a mother's parental rights, because an agency no longer had custody of the child when it brought the termination action, and therefore lacked standing to bring the action pursuant to N.C.G.S. § 7B-1103(a)(3)).
    In the case sub judice, the petitioner had been given custody of W.F.P. and R.V.P. pursuant to the trial court's order of 5 February 2001. After the initial 5 February 2001 hearing, the trial court conducted five additional review hearings (23 April 2001; 25 June 2001; 23 June 2001; 20 August 2001; and 22 October 2001), and entered orders acknowledging the children had previously been adjudicated neglected on 5 February 2001 and the children were placed in petitioner's custody. Notwithstanding respondent's contention as to the effect of the 5 February 2001 order, the language contained in each of the orders from the five subsequent review hearings indicated petitioner, under N.C.G.S. § 7B-1103(a)(3), had been given custody. Therefore petitioner had the requisite standing to petition for termination of respondent's parental rights. This assignment of error is overruled.
    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1
    Initials used throughout to protect the identity of the juveniles.
Footnote: 2
    The 5 February 2001 trial court order adjudicated the children neglected and placed them in DSS custody.

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