IN THE MATTER OF Johnston County
A.B. No. 05 J 99
Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for
Johnston County Department of Social Services petitioner
appellee.
Susan J. Hall for respondent-mother appellant.
McCULLOUGH, Judge.
Tamika Bulluck (“respondent”) appeals an order terminating
her parental rights as the mother of A.B. In May 2005, the Johnston
County Department of Social Services (“DSS”) filed a juvenile
petition alleging that A.B. was neglected and that the minor child
had been in the custody of DSS for a continuous period of six
months in which respondent failed to pay a reasonable portion of
child care costs.
On 28 September and 28 October 2005, hearings were held on the
petition to terminate respondent's parental rights. On 28 October
2005, the trial court entered an order terminating respondent's
parental rights. Respondent appeals.
Respondent contends that the trial court was without
jurisdiction to proceed with the termination hearing becausepetitioner failed to attach a copy of the custody order to the
petition regarding A.B. 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.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353
S.E.2d 673, 675 (1987) (citation omitted). “The issue of subject
matter jurisdiction may be considered by the court at any time, and
may be raised for the first time on appeal.” In re T.B., ____ N.C.
App. ____, ____, 629 S.E.2d 895, 896-97 (2006). In order for a
trial court to have jurisdiction over a petition to terminate
parental rights, a copy of an order for custody must be attached.
See id.
Where a trial court places custody of the juvenile in some
agency or person other than the parent, N.C. Gen. Stat. § 7B-1104
requires that a copy of the custody order be attached to a
subsequent petition to terminate parental rights. N.C. Gen. Stat.
§ 7B-1104(5) (2005). However, this Court has stated that failing to
attach a custody order to a petition to terminate parental rights
can be remedied at the hearing, thereby retaining subject matter
jurisdiction. T.B.,____ N.C. App. at ____, 629 S.E.2d at 898
(stating that the “omission [of the custody order] need not have
been fatal if petitioner had simply amended the petition by
attaching the proper custody order or otherwise ensured the custody
order was made a part of the record before the trial court.”)
(emphasis omitted). In the instant case, A.B. was originally removed from the home
and placed in the care of her maternal grandmother based on
allegations of neglect. The maternal grandmother was given custody
at the adjudication hearing on 1 September 2004. However, the
grandmother subsequently contacted DSS near the end of September
and demanded that the juvenile, A.B., be removed from her home
immediately stating that she no longer wanted to be responsible for
the child. At this time, A.B. was placed in the custody of DSS.
At the hearing to terminate respondent's parental rights,
petitioner introduced into evidence a permanency planning order
which ordered A.B. to remain in the custody of DSS.
While there was no custody order attached to the petition to
terminate respondent's parental rights, the defect was remedied at
trial when petitioner introduced into evidence the permanency
planning order, thereby making the custody order part of the record
before the trial court. We conclude that this remedial action
ultimately conferred the requisite subject matter jurisdiction in
the trial court, and therefore, this assignment of error is
overruled.
Respondent further argues that the trial court erred in
concluding that termination of respondent's parental rights was in
the best interest of A.B. We disagree.
Once the trial court concludes that one or more grounds for
termination exists, it “must proceed to the dispositional stage
where the best interests of the child are considered.” In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).There, 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 Court reviews the trial court's decision
whether to terminate parental rights for abuse of discretion. In re
Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
Respondent does not except to the findings and conclusions of
the trial court that she neglected A.B. and left her in the custody
of DSS for a continuous six-month period without paying any of the
reasonable costs of child care. The trial court further found and
concluded, in its discretion, that it was in the best interest of
A.B. to terminate respondent's parental rights.
The court based its conclusions on findings that respondent
neglected the child, there was a probability of repetition of
neglect, that A.B. was developing at a regular rate in foster care
and developing skills that she did not possess upon entering foster
care, and that A.B. was thriving during her time in foster care. We
hold that based on these findings, the trial court could reasonably
conclude that termination of respondent's parental rights was in
the best interest of the child. Therefore, this assignment of error
is overruled.
Accordingly, the order terminating respondent's parental
rights is affirmed.
Affirmed.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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