An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 5 September 2006
IN THE MATTER OF:
A.A.H. and Yadkin County
S.L.H., No. 02 J 58, 59
Appeal by Respondent father from order entered 17 May 2005 by
Judge Mitchell L. McLean in Yadkin County District Court. Heard in
the Court of Appeals 6 June 2006.
Robert W. Ewing for Petitioner-Appellee Yadkin County
Department of Social Services.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall for
Womble Carlyle Sandridge & Rice, P.L.L.C., by Katherine T.
Lange for Appellee Guardian ad Litem.
Respondent father (Respondent) appeals from the trial
court's order terminating his parental rights to the minor
children, A.A.H. and S.L.H. For the reasons which follow, we
I.FACTUAL AND PROCEDURAL BACKGROUND
Respondent is the father of two juveniles, A.A.H, born 14
August 1994, and S.L.H., born 12 June 1995. On 29 October 2002,
the Yadkin County Department of Social Services (DSS) filed a
juvenile petition alleging that A.A.H. and S.L.H. were neglected in
that they did not receive proper care, supervision, or discipline,and were dependent in that they needed assistance or placement
because they had no parent, guardian, or custodian responsible for
their care. On 5 November 2002, the juveniles were placed in the
temporary custody of DSS. In an adjudication order filed 27
January 2003, Judge David V. Byrd concluded that [r]easonable
efforts toward reunification with [Respondent] are not required and
shall cease. In juvenile orders filed 11 April and 3 September
2003, the presiding judges determined that [a]s to [Respondent],
reasonable efforts to prevent or eliminate the need for placement
would clearly be futile or would be inconsistent with the
children's health, safety and need for a safe permanent home within
a reasonable time. After a permanency planning review hearing,
Judge Mitchell L. McLean filed an order on 23 February 2004 in
which he determined that the best plan for the juveniles was to
terminate the parental rights of Respondent.
On 24 May 2004, DSS filed a petition to terminate Respondent's
(See footnote 1)
The petition alleged, inter alia
, that (1) prior
to his incarceration, Respondent had little contact with his
children, and the children were passed from one relative to
another; (2) since his incarceration, Respondent has had little
contact with his children; (3) Respondent has a long history of
criminal activity and convictions, including breaking and entering,
larceny, obtaining property by worthless check, and conspiracy to
commit second degree murder; and (4) Respondent was transferredfrom a medium security to a close security correctional facility
due to infractions that he committed while incarcerated.
The petition further alleged that grounds existed to terminate
Respondent's parental rights in that (1) Respondent had neglected
his children as that term is defined in N.C. Gen. Stat. § 7B-
101(15); (2) Respondent had willfully abandoned his children during
the six consecutive months immediately preceding the filing of the
petition; (3) Respondent is incapable of providing for the proper
care and supervision of his children, such that they are dependent,
and such incapability will continue for the foreseeable future; and
(4) Respondent had willfully left his children in foster care for
more than twelve months without showing that reasonable progress
under the circumstances had been made in correcting the conditions
which led to their placement in the custody of DSS.
Hearings on the petition were held on 30 November 2004, 25
February 2005, and 19 April 2005. Present and testifying at the
hearings were Respondent; the mother of the juveniles (Mary);
Ronald Avery, a program supervisor at the Alexander Correctional
Institution; Teresa Pardue, a child support supervisor; Cathy
Troutner, a social worker with DSS; Respondent's mother; Lynn
Moree, a child and family therapist; Heather Cain, a child and
juvenile counselor; and the minor children. At those hearings,
evidence pertinent to the termination of Respondent's parental
rights tended to show the following:
Respondent and Mary attended school together and started
dating in school. Mary gave birth to A.A.H. on 14 August 1994, andin late 1994, Respondent and Mary were married. Respondent and
Mary were both fifteen years old at the time. After the marriage,
Respondent and Mary lived with Mary's mother, stepfather, and
brother. S.L.H. was born on 12 June 1995. Approximately six
months later, Respondent, Mary, and the two children moved in with
Respondent's mother. At that time, Respondent was not employed,
and the couple supported their children with help from Mary's
mother and Respondent's parents. After living with Respondent's
mother for a few months, the couple and their children moved into
their own home. During this time Mary was not working and
Respondent was sporadically employed. Less than one year later,
Mary moved with her two children back to her mother's house. She
[b]etween getting the crap beat out of you and
somebody coming in there being drunk and
laying on the couch, and your
daughter . . . getting slapped in the mouth
for waking him up. And my dad came in . . .
because I had a black eye. And his family
come over raising Cain . . . it wasn't working
out so we left.
Mary testified further that while they were separated,
Respondent provided little support and did not make much of an
effort to see his two girls. In the fall of 1996, Mary and her
mother got into an argument and her mother kicked her out of the
house. As a result, Mary and Respondent signed a written custody
agreement giving custody of both girls to Respondent's mother.
After the girls had stayed with Respondent's mother for
approximately one year, Mary again tried to care for her children.
They moved in with Respondent's brother, Gabriel, and his wife,Esmerelda. Respondent did not move in with his wife and children,
and did not visit them during the time that the three lived there.
After living with Gabriel and Esmerelda for approximately four
months, Mary and Respondent signed a written custody agreement
giving custody of both girls to Gabriel and Esmerelda.
Once custody of the children was relinquished to Gabriel and
Esmerelda, Mary moved to High Point, where she worked as an exotic
dancer. Overall, the children were cared for by their aunt and
uncle for approximately four and one-half years.
Ronald Avery, a program supervisor at the Alexander
Correctional Institution and Respondent's case manager, described
Respondent's history of incarceration. He testified that on 14
December 1999, Respondent was sentenced to sixteen to twenty months
for obtaining property by false pretenses and larceny. Respondent
was later sentenced, on 18 July 2000, to seventy to ninety-three
months on two counts of conspiracy to commit second degree murder.
Avery testified that Respondent works as a janitor in prison and
earns forty cents per day. Respondent has also consistently
received money from friends and family while incarcerated.
According to Avery, Respondent has committed fourteen
infractions for violating prison rules, including (1) disobeying
orders, (2) provoking assault, (3) having unauthorized funds, (4)
using profane language, (5) damaging state property, and (6)
possessing illegal substances. As a result of these infractions,
Respondent was transferred from a medium custody facility to a
close custody facility. Additionally, Avery testified that inmates can purchase pens,
paper, and stamps from the canteen, and that there are no prison
rules which would prevent an inmate from sending home a birthday or
Christmas card. There is likewise no prohibition against sending
money home for child support.
Teresa Pardue, a DSS child support supervisor, testified
regarding child support agreements and the general welfare of the
children. She said that on 16 September 1996, Respondent signed a
Voluntary Support Agreement for A.A.H. and S.L.H. to pay support of
$68.00 per week. This amount was later reduced to $40.00 per week.
Respondent last made a support payment on 10 March 1997, and there
remains a total support arrearage of $2,443.00.
Cathy Troutner, a social worker with DSS, testified that DSS
first received a report concerning A.A.H. and S.L.H. on 18 October
1995, when Mary was offered case management services. Since that
time, DSS has been involved with the children, except for times
when the children have lived outside of Yadkin County. In
September 1996, Respondent and Mary signed a custody agreement
giving Respondent's mother full and complete custody of the girls
until such time as the parties would mutually agree otherwise.
Later, on 16 April 1997, Respondent and Mary signed a custody
agreement giving custody of the children to Gabriel and Esmerelda.
This agreement was in place for around four years.
With regard to Respondent's communication with his children,
Troutner testified that during the history of court proceedings,
she gave Respondent her work phone number and asked him to call hercollect so that they could discuss the status of his children.
Troutner never received a call from Respondent. On 27 October
2003, she received a card and picture, and on 3 September 2004, she
received two letters, all of which Respondent wanted delivered to
his children. Those were the only communications from Respondent
to his children of which Troutner was aware.
Lynn Moree, a child and family therapist, testified that she
began working with A.A.H. in January 2003 to help the child
overcome a low grade depression and other symptoms resulting from
situations encountered in her childhood. Moree testified that
A.A.H. has made considerable improvement over the last two
years and that [s]he's made some improvements in her ability to
trust . . .[and] in her ability to sleep. During their therapy
work, her relationship with her father only came up one or two
times. Moree further testified that A.A.H.'s current placement is
potentially permanent and that if the adoptive parents allow it,
A.A.H. could continue her therapy with Moree.
Heather Cain, a child counselor, testified that she began
working with S.L.H. in March 2003 to help the child overcome an
adjustment disorder and oppositional defiant disorder. Cain
further testified that S.L.H.'s biggest needs are for stability
and structure, just to have loving and consistent parenting so that
she can continue to work on feeling secure . . . having a stable
home where she gets the nurturing and the love that she desperately
needs is going to be integral to her success. During their work
together, S.L.H. has mentioned her father on only one occasion. Like Moree, Cain testified that she could continue to work with
S.L.H. if the child's placement were to become permanent.
A.A.H. testified that she does not remember seeing her father
and does not remember living with her paternal grandmother. She
did remember living with Esmerelda, her paternal aunt, but did not
remember seeing her father while she lived there. Overall, she
testified that she does not remember anything about her father and
did not know how long it has been since she last saw him. S.L.H.
testified that she remembers seeing her father when her Aunt Tina
took her to see him, but that it was a fuzzy memory[.] However,
she did not remember her paternal grandmother and did not remember
when her father and mother lived together.
After the evidentiary hearings were concluded, in an order
filed 17 May 2005, Judge Mitchell L. McLean made the following
findings of fact based on clear, cogent and convincing evidence:
(1) Respondent entered a voluntary support agreement on 16
September 1996, and upon incarceration, there was an arrearage in
his support payments of at least $2,443.00; (2) Respondent's
arguments with Mary resulted in his assaulting her, and one time
assaulting one of the children; (3) on 24 September 1996,
Respondent and Mary entered into a written custody agreement
granting exclusive care and custody of both children to
Respondent's mother; (4) this agreement lasted until January 1997,
when the parents reconciled and the children lived with them; (5)
the parents separated on 16 April 1997, and entered into another
written custody agreement giving full and exclusive custody of bothchildren to Esmerelda and Gabriel, a paternal aunt and uncle, and
both parents agreed to pay $40.00 per week for child support; (6)
the aunt and uncle maintained custody of the children for four
years, and the children were never again in the custody of their
parents; (7) Respondent has a criminal record, including a
conviction on two counts of conspiracy to commit second-degree
murder, for which he is serving a prison sentence of seventy to
ninety-three months; (8) since he has been incarcerated, Respondent
has committed fourteen infractions, including disobeying orders,
provoking assault, damaging state property, and possessing
controlled substances; (9) in prison, he works as a janitor earning
$0.40 per day; as of 22 November 2004, he had received more than
$3,500.00 in gifts from friends and family; and he had $199.25 in
his prison account; (10) Respondent has sent no money to his
children while he has been incarcerated, and has had no contact,
telephone calls, or correspondence with them other than one visit,
one card, and two letters; (11) Respondent has maintained regular
contact with his mother; and (12) Respondent acknowledges that his
father is a convicted child molester, but testified that he would
not hesitate to take his children around his father.
Based on the foregoing findings of fact, the trial court
concluded that grounds existed to terminate Respondent's parental
rights, in that (1) having the ability and means to provide some
financial support for his children, Respondent failed to do so; (2)
prior to incarceration, he neglected his children by failing to
provide any consistent care or stability resulting in relativesrearing them for more than four years; (3) having the means and
ability to regularly communicate with his children or to inquire
about their welfare, he failed to do so; (4) he has abandoned his
children pursuant to N.C. Gen. Stat. § 7B-1111(a)(7)
(See footnote 2)
; and (5) he
has neglected his children pursuant to N.C. Gen. Stat. § 7B-
(See footnote 3)
and such neglect is likely to continue in the future.
The trial court further determined that there is no
reasonable hope that within a reasonable time [Respondent] can
create the conditions to provide for the emotional and physical
needs of these children[,] and that it is in the best interest of
the children to terminate Respondent's parental rights. Respondent
By his first assignment of error, Respondent argues that the
trial court did not have subject matter jurisdiction because it did
not comply with the timing mandates set forth in N.C. Gen. Stat. §.
7B-1109. That statute provides in relevant part that
(a) [t]he hearing on the termination of
parental rights . . . shall be held . . .
no later than 90 days from the filing of
the petition or motion unless the judge
pursuant to subsection (d) of thissection orders that it be held at a later
N.C. Gen. Stat. § 7B-1109(a) (2005). In this case, the petition to
terminate Respondent's parental rights was filed on 24 May 2004,
and the initial hearing was held on 30 November 2004, one hundred
ninety days later. Additional hearings were held on 25 February
2005 and 19 April 2005. The order terminating Respondent's
parental rights was filed on 17 May 2005, almost one year after the
initial petition was filed. Respondent contends that these delays
constitute prejudice per se and that as a result, he is entitled to
a new hearing. We disagree.
This court has recently held that in order to reverse a trial
court's order because of a violation of N.C. Gen. Stat. § 7B-
1109(a), Respondent must demonstrate prejudice resulting from the
delay. In re S.W., ___ N.C. App. ___, 625 S.E.2d 594, disc. review
denied, ___ N.C. ___, ___ S.E.2d ___ (June 29, 2006)(No. 101P06).
The holding in S.W. extended the interpretation of N.C. Gen. Stat.
§ 7B-1109(a) to conform with a long line of cases interpreting N.C.
Gen. Stat. § 7B-1109(e). This line of case law requires a showing
of prejudice resulting from delay to warrant reversal. See, e.g.,
In re L.E.B., 169 N.C. App. 375, 610 S.E.2d 424, disc. review
denied, 359 N.C. 632, 616 S.E.2d 538 (2005). In this case,
Respondent did not demonstrate that the delay in holding the
termination hearing caused prejudice to himself, his children, or
to the children's potential adoptive family. Absent a showing of
prejudice, the order of a trial court will not be reversed.
Accordingly, this assignment of error is overruled.
Respondent next argues that the trial court erred in allowing
witnesses to testify regarding statements made by the juveniles, in
violation of his Sixth Amendment right to confrontation. For the
reasons which follow, this assignment of error is dismissed.
The North Carolina Rules of Appellate Procedure provide in
relevant part that [a]n assignment of error is sufficient if it
directs the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references. N.C. R. App. P. 10(c)(1). In
support of this argument, Respondent cites to p. 281 et seq.
Contained on these pages is the testimony of the two juveniles who
are the subject of the termination proceeding and the closing
statements made by counsel. Respondent makes no effort to direct
our attention to the testimony of other witnesses to which he now
objects. Consequently, Respondent has left this Court to sift
through 280 pages of testimony to try to determine if improper
testimony was given and if the trial court improperly overruled any
objection Respondent may have made to this testimony. It is not
the role of the appellate courts, however, to create an appeal for
an appellant. Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360,
361, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005). Therefore,
this assignment of error is dismissed.
Moreover, even if Respondent had directed our attention to the
pages on which the allegedly improper testimony can be found, his
Sixth Amendment argument clearly fails. A termination of parentalrights hearing is a civil rather than criminal action, with the
right to be present, to testify, and to confront witnesses subject
to 'due limitations.' In re Faircloth, 153 N.C. App. 565, 573, 571
S.E.2d 65, 71 (2002)(citations omitted). Since a termination of
parental rights hearing is a civil action, the Sixth Amendment is
not applicable. In re D.R., 172 N.C. App. 300, 616 S.E.2d 300
(2005) (citing Faircloth, 153 N.C. App. at 573, 571 S.E.2d at 71).
Accordingly, this assignment of error has no merit.
Respondent next contends that the trial court lacked subject
matter jurisdiction because the petition to terminate Respondent's
parental rights was not timely filed under N.C. Gen. Stat. § 7B-
907. That statute provides in pertinent part that
[i]f a proceeding to terminate the parental
rights of the juvenile's parents is necessary
in order to perfect the permanent plan for the
juvenile, the director of the department of
social services shall file a petition to
terminate parental rights within 60 calendar
days from the date of the permanency planning
hearing unless the court makes written
findings why the petition cannot be filed
within 60 days.
N.C. Gen. Stat. § 7B-907(e) (2005). [T]he time limitation
specified in N.C. Gen. Stat. § 7B-907(e) is directory rather than
mandatory and thus, not jurisdictional. In re C.L.C., 171 N.C.
App. 438, 445, 615 S.E.2d 704, 708 (2005), aff'd and disc. review
improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006)(quoting
In re B.M., 168 N.C. App. 350, 354, 607 S.E.2d 698, 701 (2005)).
As such, absent a showing of prejudice, the trial court will not be
reversed. C.L.C., 171 N.C. App. at 445, 615 S.E.2d at 708. In this case, the Permanency Planning Review hearing was held
on 16 February 2004, and the trial court ordered Petitioner to file
a Petition for Termination of Parental Rights within sixty days of
that hearing. The petition to terminate Respondent's parental
rights was then filed on 24 May 2004, ninety-eight days after the
Permanency Planning Review hearing, in violation of N.C. Gen. Stat.
Although this violation occurred, Respondent has not
demonstrated, nor has he attempted to demonstrate, any prejudice
suffered by any party. Since Respondent has not demonstrated
prejudice, we hold that he is not entitled to a reversal of the
trial court's order based on Petitioner's failure to comply with
this statutory deadline. Accordingly, this assignment of error is
By his next assignment of error, Respondent argues that the
petition to terminate parental rights does not allege sufficiently
specific facts to support termination of his parental rights. For
the following reasons, we hold that this assignment of error was
not properly preserved, and is therefore dismissed.
The Rules of Civil Procedure apply to proceedings for
termination of parental rights[.] In re McKinney, 158 N.C. App.
441, 444, 581 S.E.2d 793, 795 (2003). In essence, Respondent urges
this Court to review a motion to dismiss under Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure. Rule 12 provides in
pertinent part that [a] defense of failure to state a claim uponwhich relief can be granted . . . may be made in any pleading
permitted or ordered under Rule 7(a), or by motion for judgment on
the pleadings, or at the trial on the merits. N.C. Gen. Stat. §
1A-1, Rule 12(h)(2) (2005).
However, a 12(b)(6) motion cannot be
raised for the first time on appeal. Collyer v. Bell, 12 N.C. App.
653, 184 S.E.2d 414 (1971). Moreover, the Rules of Appellate
Procedure provide in pertinent part that
[i]n order to preserve a question for
appellate review, a party must have presented
to the trial court a timely request, objection
or motion, stating the specific grounds for
the ruling the party desired the court to make
if the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion. Any
such question which was properly preserved for
review by action of counsel taken during the
course of proceedings in the trial tribunal by
objection noted or which by rule or law was
deemed preserved or taken without any such
action, may be made the basis of an assignment
of error in the record on appeal.
N.C. R. App. P. 10(b)(1). In this case, Respondent, in his
response to the petition to terminate parental rights, raised a
defense under Rule 12(b)(6). However, Respondent failed to obtain
a ruling by the trial court on the motion. Therefore, error was
not properly preserved under Rule 10(b)(1) of the Appellate Rules
and is not properly before this Court. See In re Estate of
Montgomery, 137 N.C. App. 564, 567, 528 S.E.2d 618, 620
(2000)(Respondent's motion to dismiss, . . . was not treated as a
motion for summary judgment and, because the record contains no
ruling on the motion, we do not address the issue[.]).
Accordingly, this assignment of error is dismissed.
Respondent next argues that the trial court erred in
terminating his parental rights on grounds not alleged in the
In the termination petition, DSS alleged that (1) Respondent
neglected the juveniles as that term is defined in N.C. Gen. Stat.
§ 7B-101(15); (2) Respondent willfully abandoned his children
during the six consecutive months immediately preceding the filing
of the termination petition; (3) Respondent is incapable of
providing for the proper care and supervision of the juveniles,
such that they are dependent and such incapability will continue
for the foreseeable future; and (4) Respondent left the juveniles
in foster care for more than twelve months without showing
reasonable progress under the circumstances to correct those
conditions which led to their placement in foster care.
In the termination order, the trial court concluded that
grounds existed to terminate Respondent's parental rights in that
(1) having the ability and means to provide some financial support
for his children, he failed to do so; (2) during the time before he
was incarcerated, he and the children's mother neglected their
children by failing to provide any consistent care or stability
resulting in relatives rearing them for more than four years; (3)
having the means and ability to regularly communicate with his
children or to inquire about their welfare, he failed to do so; (4)
he abandoned his children pursuant to N.C. Gen. Stat. § 7B-
1111(a)(7); (5) he neglected his children pursuant to N.C. Gen.Stat. § 7B-1111(a)(1); and (6) it is likely that Respondent would
continue to neglect the children in the future.
Respondent is correct that the termination petition did not
include an allegation based on Respondent's failure to support his
children. However, we are not persuaded by Respondent's argument
that the failure of the trial court to state in its order the
weight given to each termination factor precludes our review.
Respondent cites no legal authority, and our research discloses
none, to support his argument. On the contrary, this Court has
held that [a] finding of any one of the enumerated grounds for
termination of parental rights under N.C.G.S. 7B-1111 is sufficient
to support a termination. In re Humphrey, 156 N.C. App. 533, 540,
577 S.E.2d 421, 426-27 (2003) (citing In re Pierce, 67 N.C. App.
257, 261, 312 S.E.2d 900, 903 (1984)).
In this case, even without the trial court's conclusion that
Respondent failed to support his children, there remain sufficient
grounds enumerated in the court's additional conclusions to support
the termination of Respondent's parental rights. Accordingly, this
assignment of error is overruled.
In his next 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 parentalrights 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, 613 S.E.2d
298 (2005), to support his contention that failure to comply with
this statutory mandate divests the trial court of subject matter
jurisdiction. Respondent's reliance on Z.T.B.
is misplaced. In a
subsequent case, this Court, relying on precedential
(See footnote 4)
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), disc.review denied
, ___ N.C. ___, 628 S.E.2d 245 (2006)(citation
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 he was
unaware of the placement of his 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 and
that Respondent was present at the initial and review hearings
impacting his parental rights. 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 overruled.
Respondent next contends that the trial court lacked subject
matter jurisdiction to terminate his parental rights because no
summons was ever issued to the juveniles or to DSS, as required by
North Carolina law.
North Carolina General Statute 7B-1106 provides in pertinent
upon the filing of the petition . . . [a]
summons shall be directed to the following
persons or agency, not otherwise a party
petitioner, who shall be named as respondents:
(1) The parents of the juvenile;
. . . .
(4) Any county department of social services
or licenced child-placing agency to whom ajuvenile has been released by one parent . . .
or any county department of social services to
whom placement responsibility for the child
has been given by a court of competent
(5) The juvenile.
Provided, no summons need be directed to or
served upon any parent who,. . . has
irrevocably relinquished the juvenile to a
county department of social services or
licensed child-placing agency[.] . . . .
Except that the summons and other pleadings or
papers directed to the juvenile shall be
served upon the juvenile's guardian ad litem
if one has been appointed, service of the
summons shall be completed as provided under
the procedures established by G.S. 1A-1, Rule
N.C. Gen. Stat. § 7B-1106(a)(1), (a)(4), (a)(5) (2005).
Respondent's argument fails for two reasons. First,
Respondent's argument, and our research, fails to provide any
authority to support his contention that the statute in question in
any way impacts subject matter jurisdiction. Rather, this statute
was intended to confer personal jurisdiction upon the trial court.
In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005).
Additionally, a party appealing from a judgment of a trial
court must be a party aggrieved[.] Id. at 8, 616 S.E.2d at 269
(Citations omitted). An aggrieved party is one whose rights have
been directly and injuriously affected by the action of the court.
Culton v. Culton, 327 N.C. 624, 625-26, 398 S.E.2d 323, 324-25
(1990)(citations omitted). Even if Respondent intended to
challenge the personal jurisdiction of the trial court, he has been
unable to demonstrate that he was directly and injuriously
impacted by the fact that a summons was not issued to the agency orthe minor children. Accordingly, this assignment of error is also
By his next assignment of error, Respondent argues that the
trial court erred by terminating his parental rights for not paying
sufficient financial support while he was incarcerated. Since we
have held that there were sufficient other grounds to support the
trial court's termination of Respondent's parental rights, it is
not necessary to reach the merits of this argument.
Respondent next argues that the trial court erred in finding
that there [was] no reasonable hope that within a reasonable time
[Respondent] can create the conditions to provide for the emotional
and physical needs of the children. We disagree.
In termination of parental rights cases, the burden shall be
upon the petitioner or movant and all findings of fact shall be
based on clear, cogent, and convincing evidence. N.C. Gen. Stat.
§ 7B-1109(f) (2005). Clear, cogent, and convincing describes an
evidentiary standard stricter than a preponderance of the evidence,
but less stringent than proof beyond a reasonable doubt. In re
C.C., ___ N.C. App. ___, ___, 618 S.E.2d 813, 817 (2005) (quoting
N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320,
323, cert. denied, 314 N.C. 117, 332 S.E.2d 482, cert. denied, 474
U.S. 981, 88 L. Ed. 2d 338 (1985)(citation omitted)). Findings of
a trial court are conclusive on appeal if they are supported by
competent evidence, even when conflicting evidence would supportdifferent findings. In re Hughes, 74 N.C. App. 751, 330 S.E.2d 213
Respondent's lone argument on this issue is that he is likely
to soon be released from prison, and upon release he will be
available to devote time to the care of his children. Respondent
incorrectly equates availability with the ability to care for the
emotional and physical needs of a child, and thus his argument is
not persuasive. Although Respondent is correct that he will likely
soon be available, the trial court's findings of fact and the
evidence upon which those findings are based demonstrate that
Respondent is not prepared to provide for the needs of his
daughters. For example, the findings and evidence establish that
(1) Respondent failed to support his children prior to his
incarceration; (2) Respondent, on two separate occasions, signed
custody of his children over to other members of his family; (3)
Respondent has an extensive criminal history, and his continued
behavior of committing infractions while incarcerated demonstrates
reasons to question his ability to abide by societal norms; (4)
Respondent failed to regularly communicate with his children while
he was incarcerated and visited with them only once in a four-year
period; and (5) although Respondent's father is a convicted child
molester, Respondent testified that he would not hesitate to take
his children around his father.
Based on this evidence, we hold that the trial court did not
err in concluding that Respondent will not, within a reasonable
time, be able to create necessary conditions to provide for theemotional and physical needs of his children. Accordingly, this
assignment of error is overruled.
By his next assignment of error, Respondent contends that the
trial court erred in finding that he had abandoned his children
when he was incarcerated and Petitioner did not make reasonable
efforts to reunite him with his children. He argues the court did
not find that the abandonment was willful, and that the findings of
fact which support abandonment are based on conditions that existed
before he was incarcerated, five years before the filing of the
termination petition. This assignment of error is also overruled.
North Carolina law provides that a court may terminate
parental rights if a parent has willfully abandoned the juvenile
for at least six consecutive months immediately preceding the
filing of the petition or motion[.] N.C. Gen. Stat. § 7B-
1111(a)(7) (2005). This Court has determined that incarceration,
standing alone, neither requires nor precludes a finding of willful
abandonment. In re McLemore, 139 N.C. App. 426, 533 S.E.2d 508
(2000). The word 'willful' encompasses more than an intention to
do a thing; there must also be purpose and deliberation. In re
Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514
(1986) (citation omitted). The intent to willfully abandon a child
is a question of fact to be determined by the evidence presented at
the termination hearing. Id. (Citation omitted). [I]f a parent
withholds his presence, his love, his care, the opportunity to
display filial affection, and [willfully] neglects to lend supportand maintenance, such parent relinquishes all parental claims and
abandons the child. McLemore, 139 N.C. App. at 429, 533 S.E.2d at
509 (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597,
608 (1962)(citation omitted)).
First, it is important to note that the trial court's findings
of abandonment relate to Respondent's behavior while he was
incarcerated, not his behavior prior to his incarceration.
Moreover, the trial court's findings, supported by clear, cogent
and convincing evidence presented at the hearing, establish that
other than a visit in September 2002, a card he sent to both
children on 27 October 2003, and letters sent to both children in
September 2004, Respondent has had no contact with his children.
Compounding the concerns over Respondent's lack of communication
with his children is that, while incarcerated, Respondent
maintained monthly contact with his mother, but in the last two
years, communicated with his mother about the children on only two
Based on the evidence presented and the findings made by the
trial court, we hold that the lower court did not err in concluding
that Respondent abandoned his children under N.C. Gen. Stat. § 7B-
Next, Respondent argues that the trial court erred by not
making specific findings of fact on the record and by improperly
deferring the fact-finding duty to Petitioner's counsel. For the
reasons which follow, this assignment of error is overruled. North Carolina law provides:
After 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. . . . . Any order shall be reduced
to writing, signed, and entered no later than
30 days following the completion of the
termination of parental rights hearing.
N.C. Gen. Stat. § 7B-1110(a)(2005). However, [t]he statute does
not require that the trial court issue oral findings with regard to
its determination. J.B., 172 N.C. App. at 24, 616 S.E.2d at 278
(citation omitted). Moreover, [i]n all actions tried upon the
facts without a jury . . . the court shall find the facts specially
and state separately its conclusions of law thereon and direct the
entry of the appropriate judgment. N.C. Gen. Stat. § 1A-1, Rule
52(a)(1) (2005). Under North Carolina law, a judgment is entered
when it is reduced to writing, signed by the judge, and filed with
the clerk of court. N.C. Gen. Stat. § 1A-1, Rule 58 (2005).
Nothing in the statute or common practice precludes the trial
court from directing the prevailing party to draft an order on its
behalf. J.B., 172 N.C. App. at 25, 616 S.E.2d at 279.
In the case currently before this Court, the trial judge did
not make findings on the record. However, under the controlling
statute and prior determinations by this Court, findings on the
record are not required. Accordingly, this part of Respondent's
argument is without merit. Additionally, directing the prevailing
party to draft the order is not prohibited by the North Carolina
Rules of Civil Procedure, or their interpretation by our Courts. Therefore, it was not error for the trial court to allow
Petitioner's attorney to draft the order.
Respondent's remaining assignments of error are dismissed for
violations of Rule 10 of the North Carolina Rules of Appellate
Procedure, which provides in part as follows:
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
N.C. R. App. P. 10(b)(1). When a party fails to object during
trial, the trial court is not given a chance to rule on the
objection, and thus, this Court has nothing to evaluate.
Accordingly, the error may not be raised for the first time on
Although the following assignments of error are being
dismissed for the same appellate rule violation, we find it
instructive to comment on each.
By his second assignment of error, Respondent argues that his
due process rights were violated when the court ordered his absence
from the courtroom during the testimony of his daughters. In this
case, not only did Respondent fail to object, his trial counsel
stipulated to Respondent's removal and indicated to the court that
he had talked with [Respondent] about that. Since Respondent didnot object during the hearing, this question was not properly
preserved, and therefore, this assignment of error is dismissed.
Respondent next contends that the trial court erred by taking
judicial notice of the contents of the juvenile file, including
prior orders, because those orders were not based on the same
evidentiary standard as the standard required to terminate parental
rights. When the trial court admitted the juvenile file and prior
orders in evidence, Respondent's counsel did not object.
Consequently, error was not preserved at the trial court and this
assignment of error is also dismissed. Moreover, even if potential
error at the lower court had been preserved, Respondent's argument
has no merit because an identical argument has recently been
rejected by this Court. J.B.
, 172 N.C. App. at 16, 616 S.E.2d at
In assignments of error four and five, Respondent argues that
the trial court erred in allowing Heather Cain and Lynn Moree to
testify regarding their diagnoses of A.A.H. and S.L.H. without any
evidentiary foundation having been established for their expert
testimony. Again, Respondent did not object at trial to the
witnesses' testimony regarding their diagnoses. In fact, the only
objection that Respondent made during the testimony of either
witness was related to Moree's knowledge of the possibility of
adoptive placement for A.A.H. Since no objection was made at
trial, error was not properly preserved and both assignments of
error are dismissed. Recognizing that he has failed to preserve assignments of
error four and five for our review, Respondent urges this Court to
employ plain error review to reach these issues. We decline to do
so. It is well established that plain error review is limited to
criminal cases and is not applicable to civil cases. In re
, 170 N.C. App. 676, 678, 613 S.E.2d 256, 257-58 (2005)
(citing Durham v. Quincy Mutual Fire Ins. Co.
, 311 N.C. 361, 367,
317 S.E.2d 372, 377 (1984)).
Finally, by his fifteenth assignment of error, Respondent
argues that the trial court erred in failing to conduct a
bifurcated adjudication and dispositional hearing. Respondent did
not object to the court's procedures at trial. On the contrary,
the following exchange occurred between the trial court, Mr.
Randleman (counsel for Petitioner), and Mr. Zachary (counsel for
THE COURT: And is this, what you're getting
ready to do, the witnesses you're getting
ready to put up, for my edification, is this
more for adjudication or disposition?
MR. RANDLEMAN: This is for the purpose of
. . . .
THE COURT: Okay, all right. And I believe the
case law is such that we can co-mingle, so to
speak, the two hearings.
MR. RANDLEMAN: Yes, sir.
THE COURT: All right. Do you have any
objection to that, Mr. Zachary?
MR. ZACHARY: Your Honor, I don't have any
objection to that.
. . . .
THE COURT: All right. Just show by the
record, for the record then, that wasstipulated by counsel that we be allowed to
call witnesses out of order at this stage for
both the purposes of adjudication and/or
Since Respondent did not object, this assignment of error is also
dismissed pursuant to Rule 10(b)(1) of the North Carolina Rules of
For all the foregoing reasons, the district court's order
terminating Respondent's parental rights is affirmed.
Judges WYNN and GEER concur.
Report per Rule 30(e).
Prior to the termination hearing, the mother of the children
voluntarily relinquished her parental rights.
The trial court's order concludes that Respondent has
abandoned his children pursuant to G.S. 7B-111(a)7[.] Since
there is no such statute, and N.C. Gen. Stat. § 7B-1111(a)(7)
addresses abandonment, it is clear that the trial court's order
simply contains a typographical error.
The trial court's order concludes that Respondent has
neglected his children pursuant to G.S. 7B-111(a)1[.] Since
there is no such statute, and N.C. Gen. Stat. § 7B-1111(a)(1)
addresses neglect, it is clear that, in this instance as well, the
trial court's order simply contains a typographical error.
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 Humphrey
, 156 N.C. App. at 539, 577 S.E.2d at 426,
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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