An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 August 2006
K.S.B. Cabarrus County
Z.N.B. Nos. 03 J 182, 183, 184
Appeal by respondent mother from order entered 20 January 2005
by Judge Donna H. Johnson in Cabarrus County District Court. Heard
in the Court of Appeals 19 April 2006.
David A. Perez for Respondent-Appellant.
Kathleen Arundell Widelski and Victoria Bost for Petitioner-
Respondent mother (Respondent) appeals from trial court's
order terminating her parental rights to the minor children,
D.M.B., K.S.B., and Z.N.B. For the reasons which follow, we
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent is the mother of three juveniles, D.M.B., born 26
March 1997, K.S.B., born 3 June 1998, and Z.N.B., born 3 June 2002.
On 6 August 2003, D.M.B., K.S.B., and Z.N.B. were placed in the
custody of the Cabarrus County Department of Social Services
(CCDSS) pursuant to a petition alleging neglect. The juvenilepetition stated that on 30 July 1999, CCDSS received a report
concerning the welfare of D.M.B. The report alleged that the home
did not have any food for D.M.B and that his feet were black with
dirt. The next day, CCDSS visited the home and discovered that
D.M.B. was still without food and had not eaten since the previous
day. Moreover, the cereal in the home was infested with roaches
and the child's only bottle was covered with ants. Additionally,
it was apparent that D.M.B.'s diaper had not been changed in at
least a day. Throughout the home visit, the child appeared ill and
had green mucus on his face and nose.
The petition also alleged that on 3 June 2002, Z.N.B. was born
premature and was given C.P.R. upon delivery. The next day,
Respondent and Z.N.B tested positive for marijuana and Respondent
admitted to smoking marijuana while pregnant. Additionally, the
hospital staff was concerned that Respondent had not bonded with
Z.N.B. because Respondent had only visited the baby three times,
for two to four minutes. During the course of the investigation,
Respondent missed appointments for the baby on 10 June 2002, 11
June 2002, 19 June 2002, and 28 June 2002.
The petition continued that on 16 July 2003, D.M.B, who at the
time functioned at the level of an eighteen-month-old, was found
walking in the street alone. When D.M.B was returned home by a
county worker, the worker discovered Z.N.B sitting alone at the top
of a set of brick steps. On 18 July 2003, a report was received
alleging that the children were out at night, without supervision,
as late as 11:00 p.m. On 18 July 2003, Respondent signed a planagreeing not to allow the children outside unsupervised. Ten days
later, K.S.B. was observed in the street without supervision.
On 15 September 2003, a consent order adjudicating the
juveniles neglected was entered. As part of the family services
case plan, Respondent was ordered to complete the following to be
reunited with her children: (1) submit to a psychological
evaluation through Northeast Psychiatric and Psychological
Institute and follow any and all recommendations resulting from the
evaluation (with the evaluation to be conducted on 1 October 2003);
(2) submit to random drug screens upon the request of CCDSS
(failure to submit to a drug screen to be considered a positive
screen); (3) attend parenting classes with a special focus on
children with special needs, and demonstrate skills learned during
visits; (4) attend anger management sessions and cooperate with an
ongoing therapist; (5) visit with the children according to the
visitation agreement; (6) maintain suitable housing; and (7) seek
and maintain employment in order to demonstrate financial stability
for her and her children.
On 11 December 2003, 18 March 2004, and 11 June 2004, review
hearings were held regarding Respondent's progress. After each
hearing, review orders were entered in which the court determined
that Respondent had made minimal progress in addressing the issues
which led to placement. On 5 August 2004, a permanency planning
hearing was held in which the court determined that Respondent
made no progress in addressing the issues which led to placement. In the order that was then filed on 10 August 2004, the court
determined that the permanent plan for the children was adoption.
On 16 September 2004, CCDSS filed a motion in the cause to
terminate Respondent's parental rights. The motion alleged that
Respondent (1) neglected her minor children; (2) failed, for a
continuous period of six months preceding the petition, to pay a
reasonable portion of the cost of care for the children, although
physically and financially capable of doing so; (3) was incapable
of providing for the proper care and supervision of the minor
children such that the children were dependent and there was a
reasonable probability that Respondent's incapability would
continue for the foreseeable future; and (4) had willfully left her
children in foster care or placement outside the home for more than
twelve months without showing to the satisfaction of the court that
reasonable progress under the circumstances had been made in
correcting the conditions which led to the removal of the children.
A hearing on the motion to terminate Respondent's rights was
held on 3 and 16 December 2004. Present and testifying at the
hearing were Respondent; Tasha Pyle, a CCDSS foster care social
worker; and B.Y., Respondent's aunt who was then caring for K.S.B.
Regarding visitation and support, Respondent testified that
she sees Z.N.B. once a month and K.S.B. two to three times a week,
but that she had not seen D.M.B. for three to four months. B.Y.,
however, testified that whereas Respondent initially visited K.S.B.
once a month, she no longer visited her regularly or made regularphone calls to her. Moreover, Pyle testified that of the fifty-two
scheduled visits with Z.N.B. during the past year, Respondent
Respondent testified that she has provided approximately
$300.00 to B.Y. to help care for K.S.B. and that she purchased
Christmas presents for her children. However, B.Y. testified that
since K.S.B. has been staying with her, Respondent has provided
little in the way of support. She testified that Respondent bought
K.S.B. one outfit and one pair of shoes, but has never provided
groceries or money.
Regarding parenting skills and supervision, Pyle testified
that during the children's Christmas visit with their mother,
Respondent was not ready upon their arrival and did not properly
direct or supervise the children during the visit. More generally,
Pyle testified that D.M.B.'s behavior changes between his foster
home and visits with his mother. At his foster home, D.M.B. is
calm and well mannered. However, when visiting with his mother,
D.M.B., who has been diagnosed as severely autistic, was not well
behaved. He would run from his mother, hit his siblings, and cause
himself to vomit.
With regard to employment and suitable housing, Respondent
testified that she was employed as a shift leader at Jack in the
Box, earning an hourly wage of $7.50 while working 40 hours per
week. Prior to her employment at Jack in the Box, she worked part-
time at Waffle House for about two weeks, and also receivedunemployment benefits in the amount of $90.00 per week. Respondent
was able to demonstrate suitable and stable housing. Although
Respondent did not have a driver's license, she was working on
getting her license and a car. In the interim, she relied on her
parents to transport her.
As for substance abuse issues, Respondent testified that she
does not have a problem with cocaine or alcohol. Pyle, however,
testified that on 17 February 2004, she discussed Respondent's
positive drug screen with her and Respondent could not provide a
reason why the test came back positive. Moreover, Respondent did
not complete a substance abuse treatment program as required by the
court. When asked about her failure to complete a program,
Respondent stated that she just didn't. Additionally, Respondent
was on probation for driving while license revoked and DWI and had
a probation violation hearing pending. Moreover, she was on house
arrest for federal trafficking in cocaine charges, stating that she
expected her case to be heard within two years.
With respect to the quality and quantity of her efforts since
her children were placed in foster care, Respondent testified that
she believes she has done all she can do for her children.
Following the hearing, the trial court entered an order
terminating Respondent's parental rights to the minor children
D.M.B, K.S.B., and Z.N.B. In entering this order, the trial court
found that statutory grounds exist by clear, cogent and convincing
evidence that Respondent neglected her minor children and there isa likelihood that such neglect will continue in the future;
Respondent failed, for a continuous period of six months preceding
the petition, to pay a reasonable portion of the cost of care for
the juveniles, although physically and financially capable of doing
so; and Respondent willfully left her children in foster care for
more than twelve months without showing to the satisfaction of the
court that reasonable progress under the circumstances had been
made in correcting those conditions which led to the removal of the
children. Respondent appeals.
II. QUESTIONS PRESENTED
In her first assignment of error, Respondent contends that the
trial court lacked subject matter jurisdiction because no copy of
any order by which Petitioner-Appellee was granted custody of the
minor children was attached to the motion to terminate parental
rights as required by law. North Carolina General Statute 7B-
1104(5) provides that a petition or motion to terminate parental
rights shall contain [t]he name and address of any person or
agency to whom custody of the juvenile has been given by a court of
this or any other state; and a copy of the custody order shall be
attached to the petition or motion. N.C. Gen. Stat. § 7B-1104(5)
Respondent cites In re Z.T.B.
, 170 N.C. App. 564, 570, 613
S.E.2d 298, 301 (2005), to support her contention that when a
petition fails to comply with a statutory mandate, it is facially
defective and fail[s] to confer subject matter jurisdiction uponthe trial court. Respondent's reliance on Z.T.B.
In a subsequent case, this Court, relying on precedential
(See footnote 1)
determined that, absent a showing of prejudice,
failure to comply with N.C. Gen. Stat. § 7B-1104(5) does not
deprive the trial court of subject matter jurisdiction. In re
, ___ N.C. App. ___, ___ 620 S.E.2d 913, 918 (2005) (citation
omitted), disc. review denied
, ___ N.C. ___, 628 S.E.2d 245 (2006).
We agree with the determination in B.D.
, and for the following
reasons, overrule Respondent's assignment of error. In the present
case, as in B.D.
, Respondent was not able to show that she was
unaware of the placement of her children at any point during the
case. Moreover, from the Record on Appeal, it is apparent that
Respondent was represented by counsel throughout the process andthat Respondent was present at the initial and review hearings
impacting her parental rights. From her testimony at the hearing
to terminate her parental rights, it is clear that she knew that
CCDSS had legal custody of her children pursuant to the 15
September 2003 consent order which she and her attorney signed.
After evaluating these facts, we believe that Respondent has been
unable to demonstrate any prejudice from the failure to attach a
copy of the custody order to the petition to terminate Respondent's
parental rights. Accordingly, this assignment of error is
By her second and third assignments of error, Respondent
contends that the trial court erred in entering findings of fact
numbers 10, 10(e) and its subparts, 10(g) and its subparts, 10(j)
and its subparts, and 10(l) and its subparts. These findings of
fact center around review hearings held on 11 December 2003, 18
March 2004, and 11 June 2004, and the permanency planning hearing
of 5 August 2004, and contain the grounds which the court found
justified termination of Respondent's parental rights. Respondent
argues that these findings of fact are not supported by evidence
offered at the termination hearing, and that the trial court
impermissibly relied on prior court orders and court reports in
making the decision to terminate Respondent's parental rights.
In termination of parental rights cases, the burden shall be
upon the petitioner or movant and all findings of fact shall bebased on clear, cogent, and convincing evidence. N.C. Gen. Stat.
§ 7B-1109(f) (2005). A trial court, however, may take judicial
notice of earlier proceedings in the same cause. In re Isenhour,
101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991) (citing In re
Byrd, 72 N.C. App. 277, 324 S.E.2d 273 (1985)). When a trial court
takes judicial notice of such earlier proceedings, neither party is
required to offer the file of such proceedings in evidence. Id.
In the present case, neither party offered the file of earlier
proceedings in evidence, and the trial court did not expressly take
judicial notice of the file. However, in In re M.N.C., ___ N.C.
App. ___, 625 S.E.2d 627 (2006), this Court determined that
expressly taking judicial notice of a case file is not required.
The M.N.C. Court held that it was apparent from a careful review
that the trial court took judicial notice of the prior orders. Id.
at ___, 625 S.E.2d at 632.
In this case, after conducting a careful review of the
transcript and record, we believe that the trial court took
judicial notice of the case file, including the court summaries and
orders from the above-mentioned hearings, which are described in
detail in the challenged findings of fact. Moreover, these
findings of fact are also supported by the testimony at the
termination hearing. At the hearing, Respondent testified about
her ability to maintain suitable housing; Pyle testified regarding
Respondent's failed drug test, her inability to appropriately
direct and control her children's behavior, and her difficulty
securing employment; and Pyle and B.Y. testified regardingRespondent's failed visitation with her children and failure to
provide support for her children. From the foregoing, we conclude
that there was clear, cogent, and convincing evidence to support
the contested findings of fact. Accordingly, this assignment of
error is likewise overruled.
Respondent next contends that the trial court erred in
concluding that statutory grounds existed to terminate Respondent's
parental rights. In Conclusion of Law three, the trial court
That statutory grounds exist by clear,
cogent and convincing evidence to terminate
the Respondent['s] . . . parental rights in
that the Respondent . . . has neglected D[,]
S[,] and Z within the meaning of N.C.G.S. §
7B-101(15) and there is a likelihood that such
neglect would continue in the future, the
Respondent . . . has willfully failed to pay
for the cost of the juveniles' care for a
continuous period of six months next preceding
the filing of this petition although
financially and physically able to do so and
the Respondent . . . has left the children in
foster care for more than 12 months without
showing to the satisfaction of the Court that
reasonable progress under the circumstances
has been made in correcting those conditions
which led to the removal of the children.
A court may terminate parental rights if it finds:
(1) The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
(2) The parent has willfully left the juvenile
in foster care or placement outside the home
for more than 12 months without showing to the
satisfaction of the court that reasonableprogress under the circumstances has been made
in correcting those conditions which led to
the removal of the juvenile. Provided,
however, that no parental rights shall be
terminated for the sole reason that the
parents are unable to care for the juvenile on
account of their poverty.
(3) The juvenile has been placed in the
custody of a county department of social
services, a licensed child-placing agency, a
child-caring institution, or a foster home,
and the parent, for a continuous period of six
months next preceding the filing of the
petition or motion, has willfully failed for
such period to pay a reasonable portion of the
cost of care for the juvenile although
physically and financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2005). Respondent contends
that since the trial court erred in making findings of fact 10(e),
10(g), 10(j) and 10(l), the court's findings of fact are
insufficient to support its conclusion of law that statutory
grounds existed to terminate Respondent's parental rights. We
As determined above, findings of fact 10(e), 10(g), 10(j) and
10(l) are supported by the case file of which the court properly
took judicial notice. These findings establish that (1) Respondent
missed her first two psychological evaluation appointments on 1 and
6 October 2003 and was not evaluated until 23 January 2004; (2)
Respondent cancelled scheduled visitation appointments with her
children, and although she completed a parenting course and was
cooperating with Family Preservation to improve her parenting
skills, she failed to show progress in this area; (3) Respondent
had a history of failed drug tests, including failure to submit aspecimen and providing a cold specimen, and although Respondent
completed three intake appointments and her substance abuse
treatment was scheduled to begin, she missed half of her substance
abuse classes and there was no verification of her attendance at
NA/AA; (4) Respondent was inconsistent in her efforts to complete
anger management classes, missing appointments and being discharged
from class; and (5) Respondent was inconsistent in her efforts to
gain employment, gained employment, and then quit the day after her
employment was verified by the social worker assigned to this case.
Moreover, absent these findings, there remain unchallenged
findings supported by the evidence presented at the termination
hearing that are sufficient to support the trial court's
determination. These findings establish that (1) Respondent failed
to appear for visits with all three of her children, only attending
visitation with them approximately fifty percent of the time; (2)
Respondent continues to struggle to appropriately supervise her
children; (3) Respondent failed to complete any drug abuse
treatment program; (4) Respondent failed to pay a reasonable amount
of child support for her children, although physically and
financially capable of doing so; and (5) Respondent continues to
have criminal legal problems, in that on 15 October 2003, she pled
guilty to driving while impaired and driving while license revoked,
and is currently facing federal trafficking in cocaine charges.
These findings are plainly sufficient to support the court's
Conclusion of Law as to the existence of statutory grounds toterminate Respondent's parental rights detailed therein. This
assignment of error has no merit and is overruled.
By her final assignment of error, Respondent argues that the
trial court erred in determining that the best interest of the
juveniles would be served by terminating Respondent's parental
North Carolina law provides that [a]fter an adjudication that
one or more grounds for terminating a parent's rights exist, the
court shall determine whether terminating the parent's rights is in
the juvenile's best interest. N.C. Gen. Stat. § 7B-1110(a)
(2005). This statute grants the trial court discretion in making
its decision to terminate parental rights. In re Blackburn
N.C. App. 607, 543 S.E.2d 906 (2001). The trial court does not
automatically terminate parental rights in every case that presents
statutory grounds to do so[,] In re Nesbitt
, 147 N.C. App. 349,
352, 555 S.E.2d 659, 662 (2001) (citations omitted); rather, [t]he
best interest of the children is the polar star by which the
discretion of the court is guided. Bost v. Van Nortwick
, 117 N.C.
App. 1, 8, 449 S.E.2d 911, 915 (1994) (internal quotation marks and
citations omitted), appeal dismissed
, 340 N.C. 109, 458 S.E.2d 183
(1995). A trial court's decision to terminate parental rights is
thus reviewed under an abuse of discretion standard. In re
, ___ N.C. App. ___, 625 S.E.2d 139 (2006). A careful and close review of the testimony and the record
herein reveals no basis for holding that the trial court abused its
discretion in choosing to terminate Respondent's parental rights.
The testimony and record reflect that whereas Respondent made
minimal progress in obtaining employment, maintaining suitable
housing, and submitting to a psychological evaluation, her problems
with substance abuse persisted. Those problems are compounded by
her denial that such problems exist, evidenced in part by her
failure to complete substance abuse treatment for no reason other
than she just quit going. Moreover, her inability to apply any
skills she may have learned in parenting classes to appropriately
supervise her children is of great concern. Given her failure to
make progress in these critical areas, it is most troubling that
Respondent believes she has done all that she reasonably could do
to be reunited with her children and that she fails to appreciate
the import of her lack of progress on the welfare of her children.
In view of Respondent's failure to make adequate progress, and her
apparent acceptance of this failure, we agree with the trial court
that the juveniles are best served by terminating the parental
rights of their mother. We hold that the trial court did not abuse
its discretion in its termination of Respondent's parental rights.
Accordingly, this assignment of error is overruled.
For the reasons stated, the district court's order is
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
See In re Joseph Children
, 122 N.C. App. 468, 471, 470 S.E.2d
539, 541 (1996)(citation omitted), in which respondent claimed that
she was denied assistance of counsel because her summons did not
contain the statement parents may contact the clerk immediately to
request counsel, as required by statute. This Court determined
that, although the notice requirement was not specifically complied
with, the Court did not, however, believe the discrepancy is
material in this case so as to result in any prejudice to the
(Citation omitted). In making this
determination, the Court held that although the statutory language
was missing, the notice supplied information that if seen by
respondent would inform her of the petition filed against her, her
need to answer the service of process, the availability of counsel
if she was indigent, as well as the phone number of the Deputy
Clerk of Juvenile Court[.] Id.
at 472, 470 S.E.2d at 541.
Additionally, in In re Humphrey
, 156 N.C. App. 533, 539, 577 S.E.2d
421, 426 (2003), this Court found that a violation of N.C. Gen.
Stat. § 7B-1104(7), where the petition or motion for the
termination of parental rights did not include a statement that it
had not been filed to circumvent the Uniform Child-Custody
Jurisdiction and Enforcement Act, did not automatically warrant
reversal because under the facts in this case we find that
respondent has failed to demonstrate that she was prejudiced[.]
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