An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 October 2006
IN THE MATTER OF: Buncombe County
K.L.S. III, C.A.S.,
Appeal by respondent-father from judgments entered 1 July 2005
by Judge Marvin P. Pope, Jr., in Buncombe County District Court.
Heard in the Court of Appeals 21 August 2006.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
Michael N. Tousey for Guardian ad Litem appellee.
Matthew J. Middleton for Buncombe County Department of Social
Services, petitioner appellee.
Respondent-father (respondent) appeals from three district
court judgments terminating his parental rights to his minor
children K.L.S. III, C.A.S., and G.M.J.S. We affirm.
Respondent is the biological father of K.L.S. III, C.A.S., and
G.M.J.S. Respondent and his wife moved to North Carolina in July
2003. The Buncombe County Department of Social Services (DSS)
became involved with the family shortly after their move to North
Carolina due to allegations of continuing drug abuse and domestic
violence by respondent and his wife. DSS required respondent to 2obtain substance abuse assessments, drug screenings, parenting
classes, psychological evaluations, and safety assessments.
In July of 2004, DSS was granted nonsecure custody of the two
older children, K.L.S. III and C.A.S., G.M.J.S. not having been
born yet. The custody was based on repeated, continued contact
between the children's parents, allegations that the mother was
allowing unsupervised contact between the children and respondent,
and concerns that the family would flee the state. Subsequently,
G.M.J.S. was born addicted to methadone and was placed in the
custody of DSS on 27 August 2004. All three children remained in
the custody of DSS from these respective dates through the time of
the trial court's rulings.
Three separate petitions for termination of parental rights,
one for each, K.L.S. III, C.A.S. and G.M.J.S., were filed on 29
December 2004. The trial court ruled that the parental rights of
respondent regarding all of the children should be terminated.
Based on clear, cogent, and convincing evidence, the court
concluded (1) that under N.C. Gen. Stat. § 7B-1111(a)(1) (2005),
respondent neglected the three children before and after the
children came into the custody of DSS, through long-standing,
serious untreated substance abuse and mental health problems, and
that respondent has failed to correct any of the conditions that
led to the removal of the children; (2) that under N.C. Gen. Stat.
§ 7B-1111(a)(6), respondent is incapable of providing for the
proper care and supervision of the children, such that the children
are dependent juveniles within the meaning of N.C. Gen. Stat. § 7B-101 (2005), in that respondent's substance abuse makes him
incapable of providing proper care and supervision for the children
and there is reasonable probability that such incapability will
continue for the foreseeable future; and (3) that under N.C. Gen.
Stat. § 7B-1111(a)(9), the parental rights of respondent, with
respect to another child of respondent, has been terminated
involuntarily by a court of competent jurisdiction and the
respondent parents lack the ability and willingness to establish a
safe home for K.L.S. III, C.A.S., and G.M.J.S.
Respondent now appeals.
Prior to discussing respondent's contentions on appeal, we are
compelled to discuss the statement of facts included in
respondent's brief on appeal. The North Carolina Rules of
Appellate Procedure state that an appellant's brief should contain
a full and complete statement of the facts. This should be a
summary of all material facts underlying the
matter in controversy which are necessary to understand all
questions presented for review[.] N.C.R. App. P. 28(b)(5)
(emphasis added). In the instant case, we note that the statement
of facts included in respondent's brief is argumentative and not in
compliance with the Rule. Counsel is admonished to be attentive to
the Rules of Appellate Procedure.
On appeal, respondent makes nine contentions of trial court
error. We conclude that the trial court should be affirmed.
Respondent contends that the final judgments terminating his
parental rights of K.L.S. III, C.A.S., and G.M.J.S. are a nullity
and void ab initio
, as they were entered one month prior to the
final hearing date, and contain findings of fact derived from the
evidence received on that final date. We disagree.
Three judgments were filed by the trial court, one for each
child involved in these matters, that terminated respondent's
parental rights. A few of the date stamps on the judgments state
that they were filed on 1 June 2005, but June on these stamps is
crossed through and July has been handwritten instead. Also, the
change has been initialed by the clerk. Respondent contends that
the judgments were actually entered on 1 June 2005, a full month
before the hearing was concluded, and that, therefore, the
judgments are void. We disagree.
After a review of the record, it appears that the date stamp
machine malfunctioned. The clerk obviously attempted to change the
date from 1 June 2005 to 1 July 2005. The date on the judgment
involving G.M.J.S. was not switched to 1 July 2005, but that seems
to be an oversight considering all of the other 1 June 2005 dates
had been changed. Moreover, the date stamp next to the trial
judge's signature is 1 July 2005, and according to N.C.R. Civ. P.
58, a judgment is not entered until 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).
Therefore, we see no merit in respondent's contention.
Next, respondent contends that the trial court committed
prejudicial error by terminating his parental rights by failing to
adjudicate the motion within 90 days of filing as required by the
North Carolina General Statutes. We disagree.
The North Carolina General Statutes state that the hearing on
the termination of parental rights shall be held no later than 90
days from the filing of the petition. N.C. Gen. Stat. § 7B-1109(a)
(2005). At the hearing, the court is supposed to determine whether
the juvenile's parents are present and represented by counsel.
N.C. Gen. Stat. § 7B-1109(b). If the parents are not represented
by counsel, the court is supposed to determine if the parents are
indigent, and if so, whether they desire to have counsel appointed
for them. N.C. Gen. Stat. § 7B-1109(b). Then, if the parents
desire the appointed counsel, [t]he court shall grant the parents
such an extension of time as is reasonable to permit their
appointed counsel to prepare their defense to the termination
petition or motion. N.C. Gen. Stat. § 7B-1109(b). We have stated
that the appellant must show prejudicial error by the trial court
in not holding the termination hearing within 90 days of the
petition in order for us to reverse. In re D.J.D., D.M.D., S.J.D.,
, 171 N.C. App. 230, 243, 615 S.E.2d 26, 35 (2005).
In the instant case, we do not believe respondent has shown
the necessary prejudicial error for reversal. The petitions were
filed on 29 December 2004. The hearing on the termination of
parental rights was calendared for 28 March 2005 (90 days followingfiling), or as soon thereafter as it could be heard. The case came
before the trial court on 30 March 2005 when counsel and guardians
ad litem were appointed. Then, at the request of respondent's
counsel, the trial court continued the case to the 25 April 2005
term of court in order to give respondent's counsel time to file an
answer. Because of respondent's counsel's request for a
continuance, the trial court conducted the hearing on 3 May 2005
and 4 May 2005. On 4 May 2005, the trial court continued the
hearing again for the purpose of receiving court records from other
states. There were no objections by respondent's counsel found in
the transcript or in the record regarding the continuance. On 1
July 2005, the trial court, after having received court records
from another state, reconvened for approximately fifteen minutes.
Again, respondent's counsel had no objection regarding the 1 July
2005 trial court session. Finally, on 1 July 2005, the trial court
filed three judgments terminating the parental rights of
We believe that respondent has not been prejudiced to warrant
reversal. It was respondent's counsel that first requested a
continuance to file his answer which delayed the hearing for more
than 30 days. Also, respondent's counsel had no objections to the
continuance to 1 July 2005. Finally, respondent's brief argues that
the delay put on hold any sense of closure for the children, but
based on the record, all three children had been in the custody of
DSS since at least August 2004. Thus, after reviewing all of thefacts, we do not believe respondent has shown the necessary
prejudicial error for a reversal.
Therefore, we see no merit in respondent's contention.
Respondent contends that the trial court was without subject
matter jurisdiction to hear the three petitions. We disagree.
'Subject matter jurisdiction refers to the power of the court
to deal with the kind of action in question[, and] . . . is
conferred upon the courts by either the North Carolina Constitution
or by statute.' In re T.B., ___ N.C. App. ___, ___, 629 S.E.2d
895, 896 (2006) (citation omitted). N.C. Gen. Stat. § 7B-1101
(2005) confers upon the court general jurisdiction over
termination of parental rights proceedings. In re T.B., ___ N.C.
App. at ___, 629 S.E.2d at 897. However, 'a trial court's general
jurisdiction over a type of proceeding does not confer jurisdiction
over the specific action.' Id. (citation omitted). We have held
that in termination of parental rights cases, the trial court has
subject matter jurisdiction only if the record includes a copy of
an order, in effect when the petition is filed, that awards DSS
custody of the child. Id. The reasoning of our holding was that
in order for DSS to have standing to file for termination of
parental rights, DSS must prove that it has legal custody of the
child at the time the petition is filed. Id.
In the instant case, three petitions for termination of
parental rights were filed, one for each child. Unlike in In re
T.B., where the petition was not accompanied by a copy of a custodyorder, id. at ___, 629 S.E.2d at 898, here there was a copy of a
nonsecure custody order attached to each petition. With regard to
K.L.S. III and C.A.S., a nonsecure custody order was attached to
each petition with no maximum duration of custody specified in the
order clearly indicating that the children were placed in the
custody of DSS. With regard to G.M.J.S., a nonsecure custody order
was attached to the petition which included a five-day maximum
duration of custody, but the petition stated that the child was
currently in the custody of DSS. Moreover, the trial court found
that G.M.J.S. remained in the custody of DSS from 27 August 2004
until the time of the trial court proceedings. There is no
specific assignment of error contesting this fact.
To this end, we conclude that the trial court had subject
matter jurisdiction over the proceedings.
Next, respondent contends that his constitutional, statutory,
and due process rights were violated by the trial court appointing
the same person to serve as his attorney and his guardian ad litem.
First, respondent contends that the North Carolina General
Statutes require separate persons to be appointed counsel and
guardian ad litem. We disagree. The applicable statutes in effect
at the time the petition was filed state the parent has a right to
appointed counsel in cases of indigency. N.C. Gen. Stat. § 7B-1101
(2003). In addition to the right of appointed counsel, the statute
states that a guardian ad litem shall be appointed where it isalleged that a parent's rights should be terminated pursuant to
G.S. 7B-1111(6), and the incapability to provide proper care and
supervision pursuant to that provision is the result of substance
abuse, mental retardation, mental illness, organic brain syndrome,
or another similar cause or condition. N.C. Gen. Stat. § 7B-
1101(1) (2003). Nothing in the above-referenced statutes require
that separate persons are required to serve as appointed counsel
and guardian ad litem. Moreover, on 1 October 2005, House Bill
1150 went into effect and by its own terms applies to actions filed
on or after that date, thus not applying to the instant case. N.C.
Sess. Laws, ch. 398, § 19. The new provision states that the
trial court may not appoint the same person to serve as both the
parent's attorney, as well as the parent's guardian ad litem. N.C.
Gen. Stat. § 7B-1101.1(c) (2005). Since the legislature did not
make the new provision effective until 1 October 2005, we do not
believe that we should rewrite the statute controlling in this case
to require different persons to serve as appointed counsel and
guardian ad litem. Therefore, we see no merit in respondent's
contention that the statute in effect for the instant case required
different persons to serve as his appointed counsel and guardian ad
Respondent also contends that 2004 Formal Ethics Opinion 11
(FEO 11") from the N.C. State Bar states that a trial attorney and
guardian ad litem for a parent normally should not be and usually
are not the same person. We disagree. FEO 11 discusses the role of a lawyer who is appointed as the
guardian ad litem for a respondent-parent with diminished capacity.
2004 Formal Ethics Opinion 11 (21 January 2005). It also discusses
the case of In re Shepard
, 162 N.C. App. 215, 591 S.E.2d 1 (2004).
2004 Formal Ethics Opinion 11. FEO 11 states:
If the court appoints the same lawyer as
counsel for the parent and as the parent's
GAL, does the lawyer have a conflict of
The Shepard court acknowledged that there
exists little guidance on the role or specific
duties of a GAL, but suggested that the role
of the GAL is guardian of the parent's
procedural due process. Shepard, at 7. If
the role of the GAL is limited to ensuring
procedural due process for the parent by
helping to explain and execute his or her
rights, then this role is consistent with the
role of a lawyer representing a client.
Therefore, there is no conflict of interest in
undertaking representation as both GAL and
lawyer. The Ethics Committee takes no
position at this time as to whether the GAL
has additional responsibilities or whether an
expanded role could result in a conflict of
Id. Therefore, we do not think that FEO 11 suggests that a trial
attorney and guardian ad litem for a parent normally should not be
and usually are not the same person. Although we note that under
other facts a trial court may determine that the same role cannot
be filled adequately by one individual, here we think that
respondent was not prejudiced by his counsel serving in both roles.
Therefore, we perceive no abuse of the trial court's
discretion in failing to appoint separate counsel.
Next, respondent contends that the trial court erred by
failing to make findings of fact on the record, instead improperly
delegating its finding duty to the attorney for DSS. We disagree.
The North Carolina Rules of Appellate Procedure state a
listing of the assignments of error . . . shall be separately
numbered. Each assignment of error shall, so far as practicable,
be confined to a single issue of law ... . N.C.R. App. P. 10. We
read respondent's assignment of error as contesting whether it was
proper to allow the attorney for the DSS to draft the order in the
termination of parental rights proceeding.
We rejected the issue asserted by respondent in In re J.B.,
172 N.C. App. 1, 616 S.E.2d 264 (2005). In In re J.B., we held
that it is not error for a trial court to direct petitioner's
counsel to draft an order containing written findings of fact and
conclusions of law on its behalf. Id. at 25, 616 S.E.2d at 279.
Therefore, we conclude the trial court did not err.
Respondent further contends that the trial court erred in
accepting into evidence orders from another state, Connecticut,
absent any evidence of the standard of proof in said proceedings,
and absent a sufficient foundation for their admission. Respondent
asserts that we should vacate the trial court's ruling and remand
due to egregious error. We disagree.
First, we think there is some question as to whether the trial
court actually admitted the Connecticut records into evidence, buteven if the trial court did accept the records into evidence, we
still find no error. As discussed below under part VII of this
opinion, we determine there is valid evidence in the record
supporting the trial court's findings of fact and that at least one
statutory ground for terminating the parental rights of respondent
is supported by those findings. Therefore, respondent's contention
has no merit.
The remaining contentions of respondent all relate to the
trial court's findings of fact. Specifically, respondent makes
three contentions: (1) that the trial court erroneously based
findings of fact on the testimony of respondent's wife when
respondent did not get to cross-examine her after she failed to
reappear at trial for cross-examination; (2) that the trial court
erroneously based findings of fact upon dispositional and
permanency planning orders, when only the underlying adjudication
order was accepted into evidence; and (3) the trial court's
findings of fact and conclusions of law as to the prior termination
of respondent's parental rights as to another child in the State of
Maine is not supported by any competent evidence and cannot form a
ground for termination as to these children. Respondent asserts
that we should vacate the findings and remand to the trial court.
This Court reviews an order terminating parental rights for
whether findings of fact are supported by clear, cogent, and
convincing evidence, and whether those findings of fact support aconclusion that parental rights should be terminated for one of the
grounds set forth in the North Carolina General Statutes. In re
, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397-98
(1996). Where a trial court concludes that parental rights should
be terminated pursuant to several of the statutory grounds, the
order of termination will be affirmed if the court's conclusion
with respect to any one of the statutory grounds is supported by
valid findings of fact. In re Swisher
, 74 N.C. App. 239, 240-41,
328 S.E.2d 33, 34-35 (1985).
In the instant case, the trial court determined that
respondent's parental rights should be terminated pursuant to N.C.
Gen. Stat. § 7B-1111(a)(1), (6) and (9). We determine that
respondent's argument is immaterial because there are ample
findings of fact that support at least one of the statutory
N.C. Gen. Stat. § 7B-1111(a)(1) provides that the trial court
may terminate a parent's parental rights based upon neglect if
[t]he parent has . . . neglected the juvenile. The juvenile shall
be deemed to be . . . neglected if the court finds the juvenile to
be . . . a neglected juvenile within the meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1). N.C. Gen. Stat. § 7B-101(15)
defines a neglected juvenile as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile'swelfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15). This Court has upheld a termination
of parental rights on the ground of neglect where a parent refused
to correct her substance abuse problems and failed to make
improvements in her lifestyle which might help her care for and
supervise her children. In re Leftwich
, 135 N.C. App. 67, 72-73,
518 S.E.2d 799, 803 (1999). In the instant case, we determine
that the trial court made findings of fact supported by clear,
cogent, and convincing evidence that were properly allowed in
evidence which support the conclusion that respondent neglected the
minor children pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). The
trial court concluded that the children lived in an environment
injurious to their welfare and did not receive proper care and
supervision from respondent, that respondent has failed to comply
with any of the services offered by DSS and ordered by the trial
court to alleviate the problems, and that it is reasonably probable
that there would be a repetition of neglect in that respondent has
failed to correct any of the conditions that led to the removal of
the children from his care and custody. Sufficient findings of
fact derived from valid evidence support this conclusion. For
example, the trial court found that respondent had long-standing,
serious substance abuse problems and that there was a long history
of domestic violence between respondent and his wife. Further, the
trial court determined that it is reasonably probable that there
would be a repetition of neglect because respondent has failed tocorrect many of the conditions that led to the removal of the
children from his custody. A review of the record reveals that
evidence of the substance abuse and domestic violence came from
multiple sources, including witness testimony. For example, at
least one witness testified that respondent told him that
respondent used crack. The same witness testified that he has seen
respondent and respondent's wife get into fights. Further, an
employee of DSS testified that respondent has failed to attend any
of the child and family team meetings arranged by DSS following the
adjudication in the underlying juvenile case. The same DSS
employee testified that respondent has failed to provide a clean
drug screen to DSS. Further, the trial court found that respondent
has refused to submit to drug testing to prove to the satisfaction
of the court that he is not using controlled substances. To this
end, we conclude that respondent's contentions are not material
because there is ample evidence in the record that supports the
termination of his parental rights based on at least one statutory
Accordingly, the trial court did not err in terminating the
parental rights of respondent.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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