Appeal by respondents from an order entered 11 July 2006,
nunc
pro tunc 8 June 2006, by Judge P. Gwynett Hilburn in Pitt County
District Court. Heard in the Court of Appeals 16 March 2007.
Anthony Hal Morris for petitioner-appellee Pitt County
Department of Social Services.
Wanda Naylor for appellee Guardian ad Litem.
Richard E. Jester for respondent-appellant mother.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
respondent-appellant father.
HUNTER, Judge.
T.M. was born on 12 June 2002. At the time of his birth, the
Pitt County Department of Social Services (“DSS”) had legal custody
of respondent-mother's two other children, T.S. and S.M. DSS had
initially received a report on 26 March 2001 that T.S. and S.M.
were living in an environment where domestic violence and the use
and sale of drugs was occurring. T.S. and S.M. were adjudicated
neglected juveniles on 13 December 2001. In re T.S., 163 N.C. App.783, 595 S.E.2d 239 (2004) (unpublished), disc. review denied, 360
N.C. 647, 637 S.E.2d 218 (2006).
On 13 June 2002, and as amended on 18 June 2002, DSS filed a
petition alleging that T.M. was a neglected and dependent juvenile.
DSS noted that it had custody of T.S. and S.M. and incorporated
their court files by reference (01 J 116-17). DSS cited the
siblings' court files and claimed that respondent-mother “continues
to have anger management problems[,]” and “continued to maintain a
relationship with T. Seymore, Jr. with whom she ha[d] been involved
in at least two incidences of domestic violence within the last
year.” DSS asserted that respondent-mother's home was found not to
be “safe and appropriate” for the return of T.S. and S.M.
Additionally, DSS alleged that the respondent-father was “a known
drug dealer and has a criminal history.” DSS also reported that
respondent-father “has had altercations, involving guns” with a man
who resided with respondent-mother and was a caretaker for the
child. Accordingly, DSS sought custody of T.M. until respondent-
mother could provide a safe and permanent home. An order for
nonsecure custody was entered and DSS assumed immediate custody of
T.M.
On 6 March 2003, the court held an adjudication and
disposition hearing. At the hearing, the court took judicial
notice of the court files in 01 J 116-17, adopted findings from
court orders from permanency planning review hearings held in 01 J
116-17, and adjudged T.M. to be neglected and dependent. Both
respondent-mother and respondent-father appealed. On 4 January 2005, this Court remanded the adjudication and
disposition order. The Court noted that it had rendered an opinion
in the siblings' case, In re T.S., 163 N.C. App. 783, 595 S.E.2d
239, in which it determined that the trial court's adjudication and
disposition order was “deficient because it did not contain
ultimate findings of fact and specific conclusions of law[.]” In
re T.M.M., 167 N.C. App. 801, 803, 606 S.E.2d 416, 418 (2005). The
Court remanded In re T.S. “'“with instructions to make ultimate
findings of fact based on the evidence and to enter clear and
specific conclusions of law based on the findings of fact.”'” Id.
at 802, 606 S.E.2d at 417 (citations omitted). This Court then
concluded that, because of its holding in In re T.S., the trial
court's determination that T.M.M. was neglected and dependent was
likewise deficient. Accordingly, the matter was remanded to the
trial court for further proceedings. Id. at 803-04, 606 S.E.2d at
418.
On 28 December 2005, DSS filed a petition to terminate
respondents' parental rights as to T.M. DSS alleged four grounds
for termination: (1) that respondents had neglected T.M. within
the meaning of N.C. Gen. Stat. § 7B-101(15) (2005), and pursuant to
N.C. Gen. Stat. § 7B-1111(a)(1) (2005); (2) that respondents had
willfully left T.M. 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 that led to the child's removal, pursuant to N.C. Gen.
Stat. § 7B-1111(a)(2) (2005); (3) that the child had been placed inthe custody of the petitioner and that respondents, for a
continuous period of six months immediately preceding the filing of
the petition, had failed to pay a reasonable portion of the cost of
care for T.M., pursuant to N.C. Gen. Stat. § 7B-1111(a)(3); and (4)
that respondents had abandoned T.M. for at least six consecutive
months immediately preceding the filing of the petition, pursuant
to N.C. Gen. Stat. § 7B-1111(a)(7).
Hearings were held on the petition to terminate respondents'
parental rights on 10 May, 18 May, and 8 June 2006. The trial
court concluded that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(1), (2), (3) and (7) to terminate respondents' parental
rights. The court further concluded that it was in the child's
best interest that respondents' parental rights be terminated.
Respondents appeal. We affirm the trial court's holdings.
I.
[1] Respondents first argue that DSS lacked standing to file
the petition to terminate their parental rights. Pursuant to N.C.
Gen. Stat. § 7B-1103(a)(3) (2005), petitioner could only file the
petition if it had custody of T.M. Respondents cite the
dispositional order entered on 6 March 2003 as purportedly granting
custody of T.M. to DSS, but note that this Court found the
dispositional order to be deficient and remanded the matter to the
district court for further findings and conclusions.
In re T.M.M.,
167 N.C. App. at 803-04, 606 S.E.2d at 418. However, upon remand,
no new adjudicatory hearings occurred. Instead, nonsecure custody
orders were entered granting custody to DSS. Respondents contendthat nonsecure custody orders are temporary in nature and do not
confer standing.
See N.C. Gen. Stat. § 7B-506(a) (2005) (“[n]o
juvenile shall be held under a nonsecure custody order for more
than seven calendar days without a hearing on the merits or a
hearing to determine the need for continued custody”). Therefore,
respondents claim that petitioner lacked standing to file the
petition and the trial court did not have subject matter
jurisdiction. We are not persuaded.
“Standing is jurisdictional in nature and '[c]onsequently,
standing is a threshold issue that must be addressed, and found to
exist, before the merits of [the] case are judicially resolved.'”
In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004)
(quoting
In re Will of Barnes, 157 N.C. App. 144, 155, 579 S.E.2d
585, 592 (2003)). In North Carolina, standing to file a petition
to terminate parental rights is prescribed by N.C. Gen. Stat. § 7B-
1103(a)(3). N.C. Gen. Stat. § 7B-1103(a)(3) (2005) provides that
a petition to terminate parental rights may be filed by “[a]ny
county department of social services, consolidated county human
services agency, or licensed child-placing agency
to whom custody
of the juvenile has been given by a court of competent
jurisdiction.”
Id. (emphasis added).
Here, DSS was initially granted custody of T.M. by nonsecure
custody order entered on 13 June 2002. Although legal custody was
granted to DSS in the adjudication and disposition orders later
remanded by this Court, custody was also continued with DSS by
entry of successive nonsecure custody orders pursuant to N.C. Gen.Stat. § 7B-506(e). On 19 December 2005, just prior to the filing
of the petition to terminate respondents' parental rights, another
order granting continued nonsecure custody to DSS was entered.
This order granted custody of T.M. to DSS indefinitely pending
further hearings. Respondents contend that nonsecure custody
orders are temporary and do not grant legal custody sufficient to
confer standing. However, N.C. Gen. Stat. § 7B-1103(a)(3) does not
limit standing to parties granted custody by an order entered
pursuant to N.C. Gen. Stat. § 7B-905 (2005). The plain language of
the statute only requires that DSS be granted “custody . . . by a
court of competent jurisdiction.” N.C. Gen. Stat. § 7B-1103(a)(3).
Accordingly, we conclude that the nonsecure custody order entered
on 19 December 2005 was sufficient to confer standing to DSS.
II.
[2] Respondents next argue that the trial court erred in
exercising jurisdiction because the petition was defective in that
an order granting custody of T.M. to DSS was not attached.
See
N.C. Gen. Stat. § 7B-1104(5) (2005). Respondents cite
In re
Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (2005), to support their
contention that when a petition fails to comply with a statutory
mandate, it is “facially defective and fail[s] to confer subject
matter jurisdiction upon the trial court.”
Id. at 570, 613 S.E.2d
at 301. Respondents' reliance on
In re Z.T.B. is misplaced. In a
subsequent case, this Court, relying on “precedential authority[,]”
determined that, absent a showing of prejudice, failure to comply
with N.C. Gen. Stat. § 7B-1104(5) does not deprive the trial courtof subject matter jurisdiction.
In re B.D., 174 N.C. App. 234,
241-42, 620 S.E.2d 913, 918 (2005) (citing
In re Joseph Children,
122 N.C. App. 468, 470 S.E.2d 539 (1996);
In re Humphrey, 156 N.C.
App. 533, 577 S.E.2d 421 (2003)),
disc. review denied, 360 N.C.
289, 628 S.E.2d 245 (2006).
In the instant case, the petition alleged that “[a] copy of
the first order giving full legal custody of the children to the
Pitt County Department of Social Services in file numbers 01 J 116-
117 is attached hereto as exhibit 'A'.” However, the file numbers
cited to by petitioner referred to cases involving T.M.'s siblings.
Furthermore, there is no indication in the record that any custody
orders were actually attached to the petition to terminate
respondents' parental rights. Nevertheless, despite DSS's failure
to attach a copy of a custody order in accordance with N.C. Gen.
Stat. § 7B-1104(5), respondent-mother fails to cite any prejudice
due to DSS's technical error, and none is apparent on the record.
There is no indication that respondent-mother was unaware of T.M.'s
placement at any point during the case. The petition alleged that
T.M. had been in DSS custody since 13 June 2002. In her answer,
respondent-mother admitted that DSS had custody of T.M. Moreover,
from the record on appeal, it is apparent that respondent-mother
has been represented by counsel throughout much of the process, and
that respondent-mother was present at many of the hearings at which
custody of T.M. was granted to and then continued with DSS. In
light of the foregoing, we conclude that respondent-mother has notdemonstrated any prejudice arising from petitioner's failure to
attach the custody order to the petition.
We further conclude that respondent-father has not established
prejudice from the failure to attach the custody order. Because
his whereabouts were unknown, respondent-father was not served with
the initial petition alleging neglect and dependency. Although
respondent-father himself did not appear in the case until 16 April
2003, when a continuance was entered and he consented to paternity
testing, he was represented at various hearings by appointed
counsel acting on his behalf. For example, Emma Holscher, who was
respondent-father's attorney until June 2004, was present at
hearings on 11-12 December 2002 and 28 February 2003. At both
hearings, she was present during the testimony of DSS
representative Vivian Cheek, who testified at length about
respondent-mother's interaction with the children since their
placement with foster families. Further, at the earlier hearing,
Holscher cross-examined Cheek and Barbara Mullins, Guardian ad
Litem, and also heard copious testimony from a number of different
sources as to respondent-mother's efforts and desire to get her
children back from DSS custody. This Court has previously ruled
that the knowledge of an attorney is imputed to her client.
Long
v. Joyner, 155 N.C. App. 129, 134, 574 S.E.2d 171, 175 (2002).
Thus, even though respondent-father himself did not appear at the
hearings, we can impute to him the knowledge that his child was in
DSS custody, like the father in
B.D. In re B.D., 174 N.C. App. at
242, 620 S.E.2d at 918. While the dissent is correct that respondent-father was not
represented by counsel at the time the petition for termination of
his rights was filed on 28 December 2005, this fact does not
resolve the issue before us. The issue here is whether respondent-
father was prejudiced because the failure to attach the custody
order made him unaware of his children's placement with DSS, not
whether or not he was adequately represented on the date the
petition for termination was filed.
As mentioned above, T.M. was placed in DSS custody in June
2002 and remained in DSS custody through December 2005 when the
petition was filed. The record shows that respondent-father's
participation in the case began in April 2003, at which point T.M.
had been in DSS custody for ten months, when a test proved his
paternity of T.M. Emma Holscher appeared on his behalf for the
first time on 16 August 2003. The record also shows that Holscher
represented him, as detailed above, at several hearings where it
was made clear that the child was in DSS custody. Holscher
represented him through 8 July 2004, when she withdrew not due to
lack of contact with her client but because she had agreed to
perform contract work for DSS, making her representation of him a
conflict of interest. Jay Saunders was appointed on that same date
and represented respondent-father for more than a year,
representing him at hearings to continue DSS custody on 12 May and
4 August 2005, and withdrawing on 8 August 2005 for lack of contact
with his client. Thus, from the time respondent-father became a party to the
case in April 2003 through his second counsel's withdrawal in
August 2005, he was consistently represented by counsel at hearings
at which it was made abundantly clear that his child was in DSS
custody. Therefore, because the record indicates that respondent-
father's attorneys were clearly aware of T.M.'s placement with DSS,
we impute that knowledge to him and conclude that respondent-father
was not prejudiced by the failure to attach the custody order.
III.
[3] We next consider respondent-father's argument that the
trial court erred on two procedural points: First, that DSS was
required per statute to file the termination of parental rights
action within sixty days of the permanency planning hearing, which
it did not do; and second, that the hearing was held outside the
statutorily mandated limit of ninety days from filing of the
petition.
At the permanency planning hearing in this case on 10 July
2003, the court ordered that DSS file a petition for termination of
parental rights against both respondent-appellants. According to
N.C. Gen. Stat. . 7B-907(e) (2005), DSS was required to file the
petition within sixty calendar days of this order, but such
petition was not filed until 28 December 2005. Respondent-father
argues that this deprived the trial court of subject matter
jurisdiction in the matter. We do not agree.
This Court has held that the time limitation specified by this
statute “is directory rather than mandatory and thus, notjurisdictional.”
In re B.M., M.M., An.M., Al.M., 168 N.C. App.
350, 354, 607 S.E.2d 698, 701 (2005);
In re C.L.C. K.T.R., A.M.R.,
E.A.R., 171 N.C. App. 438, 445, 615 S.E.2d 704, 708 (2005).
Further, respondent-father has not shown any prejudice resulting
from the delay; as in
In re B.M. and
In re C.L.C., respondent-
father could have filed an appeal under N.C. Gen. Stat. . 7B-1001
(2005) but did not, nor did he take advantage of the time delay to
contact DSS regarding the child or attempt to visit T.M. He argues
to this Court only that the delay “grossly prejudiced” himself and
the child. Because respondent-father has failed to show prejudice
arising from the delay, we overrule this assignment of error.
Once the petition was filed on 28 December 2005, hearings were
held beginning on 10 May 2006, 133 days later. Per N.C. Gen. Stat.
. 7B-1109(a) (2005), hearings were required to commence within
ninety days of the petition's filing. Again, however, respondent-
father has failed to establish any prejudice resulting from this
delay.
(See footnote 1)
See In re R.R., 180 N.C. App. 628, 636, 638 S.E.2d 502,
508 (2006).
Respondent-father does not otherwise contest the trial court's
holdings. Finding no merit in the arguments presented, we affirm
the trial court in all its holdings regarding respondent-father. We have in the past cautioned courts and parties that their
failure to comply with legislative mandates in these cases
disregards the best interests of the children. The recent
streamlining of process for these cases by both the state
legislature's 2006 amendments and this Court's rules updates are
evidence of the importance this state places on resolving these
cases as quickly as possible to ensure our legal system is serving
the best interests of the children. As such, we encourage trial
courts to consider sanctions of parties where appropriate when the
parties fail to comply with the legislature's mandates.
IV.
[4] We next consider respondent-mother's argument that the
trial court erred by finding that there were grounds to support the
termination of her parental rights. Respondent-mother further
argues that the trial court's findings of fact are not supported by
competent evidence in the record. We disagree.
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds for
terminating parental rights. A finding of any one of the
separately enumerated grounds is sufficient to support a
termination.
In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). “[T]he party petitioning for the termination must
show by clear, cogent, and convincing evidence that grounds
authorizing the termination of parental rights exist.”
In re
Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997).
In the case
sub judice, the trial court concluded that
respondent-mother had willfully left T.M. in foster care for morethan twelve months without showing reasonable progress under the
circumstances in correcting those conditions which led to the
removal of the child. N.C. Gen. Stat. § 7B-1111(a)(2). This Court
has stated that:
[T]o find grounds to terminate a parent's
rights under G.S. § 7B-1111(a)(2), the trial
court must perform a two part analysis. The
trial court must determine by clear, cogent
and convincing evidence that a child has been
willfully left by the parent in foster care or
placement outside the home for over twelve
months, and, further, that as of the time of
the hearing, as demonstrated by clear, cogent
and convincing evidence, the parent has not
made reasonable progress under the
circumstances to correct the conditions which
led to the removal of the child.
In re O.C. & O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396
(citation omitted),
disc. review denied, 360 N.C. 64, 623 S.E.2d
587 (2005).
Here, T.M. has been in petitioner's custody with placement
outside respondent-mother's home since June 2002. One of the
primary reasons T.M. was removed from respondent-mother's care was
due to respondent-mother's anger management problems. Prior to
T.M.'s birth, on 13 June 2001, respondent-mother had been arrested
after a traffic stop. Police had received information that T.
Seymore, Jr. was “delivering [drugs] to the Greenville City
Limits.” T.S. and S.M. were also in the car with respondent-mother
and were not in child restraints. Police received consent to
search the vehicle from Seymore. At that time, respondent-mother
jumped out of the vehicle, started yelling, cursing, and telling
police to leave Seymore alone. Police asked respondent-mother tostay out of the investigation, but she continued yelling and
cursing. Police tried to handcuff respondent-mother, but she
resisted. When she was placed in the backseat of a patrol car, she
kicked the door of the vehicle and kicked an ashtray off the door
inside the vehicle. After being transported to the police station,
she tried to spit on the arresting officer. On 13 July 2001, DSS
filed a petition alleging that T.S. and S.M. were neglected and
dependent juveniles. “DSS's request was based upon 'the domestic
violence and substance abuse issues, illegal drug activity,
respondent mother's anger and the risks associated with the
children's care and environment[.]'”
In re T.S., 163 N.C. App. at
783 (slip op. 2), 595 S.E.2d at 239 (slip op. 2).
In the petition alleging neglect, DSS claimed that respondent-
mother continued to have anger management problems. In an attempt
to address this issue, the trial court in its March 2003
adjudication order required that respondent-mother “participate in
individual therapy one time per month at Pitt County Mental Health
for her anger management.” However, respondent-mother did not
comply. Although respondent-mother did complete group anger
management therapy in early 2003, she wholly failed to attend
individual therapy as required by the court's order. On 9 May
2003, Lee Mattson, a counselor with Pitt County Mental Health,
wrote to the Guardian ad Litem: “Today I closed her chart. I have
not seen her since February. She has made appointments, skipped
them and not notified me so I could make another appointment in
that time slot. Considering her lack of interest in continuedtreatment I see no reason to continue maintaining her chart.”
There is no evidence in the record that respondent-mother ever
resumed attending individual therapy as ordered by the court.
Additionally, respondent-mother continued to have anger management
issues while T.M. was in DSS custody. In 2003, she was convicted
of communicating threats. Respondent-mother was charged with
calling the victim on the telephone and leaving a message saying:
“You bitch. Your ass is mine. You and your F-ing daughter are
going to get F-ed up.” Based on this evidence and accordant
findings, the trial court could reasonably conclude that respondent
had willfully failed to correct those conditions that led to T.M.'s
removal from respondent-mother's care.
See In re McMillon, 143
N.C. App. 402, 410, 546 S.E.2d 169, 175 (“[w]illfulness is
established when the respondent had the ability to show reasonable
progress, but was unwilling to make the effort”),
disc. review
denied, 354 N.C. 218, 554 S.E.2d 341 (2001). Accordingly, we
conclude there was clear, cogent, and convincing evidence in the
record to support the trial court's conclusion that grounds exist
to terminate respondent-mother's parental rights pursuant to N.C.
Gen. Stat. § 7B-1111(a)(2).
Since grounds exist pursuant to
N.C. Gen. Stat. § 7B-
1111(a)(2) to support the trial court's order, the remaining
grounds found by the trial court to support termination need not be
reviewed by the Court.
Taylor, 97 N.C. App. at 64, 387 S.E.2d at
233-34. [5] Respondent-mother finally argues that the trial court
erred by concluding that termination was in T.M.'s best interest.
Once the trial court has found that grounds exist to terminate
parental rights, “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). The trial court's decision to terminate
parental rights at the disposition stage is discretionary. See
In
re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984).
Here, T.M. has been in stable foster care since 2002, and his
foster parents hope to adopt him. The court noted that “[t]he
foster parents have previously adopted children and are of good
health and good character” and their adoption of T.M. would likely
be approved. Furthermore, the court found that T.M. was a “healthy
child with no significant behavioral or physical problems that
would hamper his adoption.” Accordingly, we conclude that the
trial court did not abuse its discretion in determining that
termination of respondent-mother's parental rights was in T.M.'s
best interest.
For the foregoing reasons, we affirm the trial court's
termination of parental rights as to both respondents.
Affirmed.
Judge McCULLOUGH concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge, dissenting.
The majority's opinion erroneously affirms the trial court's
termination of respondent-father's parental rights to T.M. The
trial court was without power to exercise subject matter
jurisdiction over respondent-father pursuant to N.C. Gen. Stat. §
7B-1104(5).
Alternatively, I vote to reverse the trial court's order
because: (1) DSS failed to file the petition to terminate
respondent-father's parental rights until six months after being
ordered to do so, and more than four months after the maximum sixty
days time after the permanency planning hearing as mandated by N.C.
Gen. Stat. § 7B-907(e) (2005) and (2) a termination hearing was not
held until more than two years after the maximum ninety days
elapsed from the filing of the petition as mandated by N.C. Gen.
Stat. § 7B-1109(a) (2005), both to the extreme prejudice of
respondent-father, his child, and all other parties involved. I
vote to reverse and respectfully dissent.
I. N.C. Gen. Stat. § 7B-1104(5)
Respondent-father asserts the trial court never acquired
subject matter jurisdiction and argues the petition to terminate
his parental rights was defective pursuant to N.C. Gen. Stat. § 7B-
1104(5). I agree. The statutory required order granting custody
of T.M. to DSS was not attached to the petition.
N.C. Gen. Stat. § 7B-1104(5) states:
The petition, or motion pursuant to G.S.
7B-1102, . . . shall set forth such of the
following facts as are known; and with respect
to the facts which are unknown the petitioner
or movant shall so state:
(5) The 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.
(Emphasis supplied).
Here, the petition alleged that “[a] copy of the first order
giving full legal custody of the children to the Pitt County
Department of Social Services in file numbers 01 J 116-17 is
attached hereto as exhibit 'A'.” This allegation is false. The
file numbers cited by petitioner solely referred to earlier cases
that involved T.M.'s siblings. No evidence in the record shows any
custody orders regarding T.M. were attached to the petition to
terminate respondent-father's parental rights to T.M.
A. In re Z.T.B.
B. In re B.D.
Here, no evidence in the record shows DSS attached the
statutory required custody order to the petition to terminate
respondent-father's parental rights. “[T]he defect in the petition
. . . [can] be overcome by information contained on the face of the
petition itself.” In re Z.T.B., 170 N.C. App. at 569-70, 613
S.E.2d at 301.
DSS's error may be excused by information on the face of the
petition informing the parent that DSS had taken custody of the
child. The petition unequivocally states T.M. “has been in the
custody of the Pitt County Department of Social Services . . .since June 13, 2002.” Respondent-father must show he was
prejudiced by DSS's failure to attach the custody order to the
petition to terminate his parental rights. In re Humphrey, 156
N.C. App. at 539, 577 S.E.2d at 426; In re B.D., 174 N.C. App. at
241, 620 S.E.2d at 918.
The majority's opinion concludes respondent-father was not
prejudiced because the record indicates he was aware through his
attorneys of T.M.'s placement with DSS. I disagree.
DSS filed the petition to terminate respondent-father's
parental rights on 28 December 2005. Respondent-father's
whereabouts were unknown when the petition was filed. The trial
court appointed two different attorneys over the course of the
proceedings to represent respondent-father. Respondent-father was
not served with the initial petition alleging neglect and
dependency. Respondent-father neither received notice to appear at
the initial non-secure custody hearing, nor did he actually appear
at the adjudicatory hearing. Respondent-father did not appear in
the case until 16 April 2003 when he was represented by Emma
Holscher, Esq., consented to paternity testing, and a continuance
was entered. Emma Holscher withdrew as respondent-father's
attorney on 14 July 2004 to perform “contract work” for DSS and the
trial court appointed Jay Saunders, Esq. to represent respondent-
father.
On 28 September 2005, the court entered a non-secure custody
order and also allowed Jay Saunders to withdraw from representationdue to counsel's lack of contact with respondent-father. At the
non-secure custody hearing immediately preceding the filing of the
petition to terminate his parental rights, respondent-father was
incarcerated in Virginia, was not represented by counsel, and was
not served with notice.
Contrary to the majority opinion's conclusion, respondent-
father was never initially served and could not be aware, through
an appointed attorney who never had contacted him, of his child's
whereabouts at the time the petition was filed on 28 December 2005.
For the majority's opinion to conclude respondent-father was not
prejudiced because he received “imputed notice” of the custody
order through an appointed counsel who never spoke with him is
disturbing and fallacious given the constitutional rights at stake
and the decision the court entered.
Respondent-father's attorney, Jay Saunders, Esq., also
withdrew from representation due to lack of contact with
respondent-father before the petition to terminate his parental
rights was filed. No subsequent counsel was appointed.
Respondent-father asserted he was prejudiced by DSS's failure to
attach the custody order because the record does not indicate he
was made aware of T.M.'s placement with DSS when the petition to
terminate his parental rights was filed or for five months
thereafter. Respondent-father was neither present at the majority
of the pre-termination hearings, nor was he represented by counsel
at critical times throughout the process.
Respondent-father has demonstrated extreme prejudice that
strikes at the core of Due Process. Neither the fundamental right
to be apprised of the pendency of an action nor respondent-father's
right to be present and heard are present here. See Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865,
873 (1950) (“An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is
notice reasonably calculated, under the circumstances, to apprise
interested parties of the pendency of the action and afford them
the opportunity to present their objections.”).
Without his fundamental statutory and constitutional rights
being protected, respondent-father's constitutional right to the
care, custody, and control of his child were violated. See Adams
v. Tessener, 354 N.C. 57, 60, 550 S.E.2d 499, 501 (2001)(“[A]
parent enjoys a fundamental right to make decisions concerning the
care, custody, and control of his or her children under the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution.” (internal quotation omitted)).
I vote to dismiss the trial court's order due to the failure
of the petition to confer subject matter jurisdiction on the trial
court to terminate respondent-father's parental rights. The lack
of jurisdiction can be raised at any time and cannot be waived.
See Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350
S.E.2d 83, 85-86 (1986) (“The question of subject matter
jurisdiction may be raised at any time, even in the Supreme Court.
When the record clearly shows that subject matter jurisdiction islacking, the Court will take notice and dismiss the action ex mero
motu.” (internal citations omitted)).
Respondent-father also argues the trial court erred in
terminating his parental rights due to DSS's failure to file the
petition to terminate his parental rights within sixty days of the
permanency planning hearing as mandated by N.C. Gen. Stat. § 7B-
907(e). Respondent-father additionally argues the trial court
erred by terminating his parental rights to T.M. because it failed
to hold a hearing for more than two years after the maximum ninety
days allowed after the filing of the petition to terminate his
parental rights as mandated by N.C. Gen. Stat. § 7B-1109(a). The
majority's opinion holds respondent-father failed to show any
prejudice from the extreme delays on either or both issues. I
disagree.
N.C. Gen. Stat. § 7B-907(e) states, “[DSS] 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.”
(Emphasis supplied). Here, the permanency planning hearing was
conducted on 10 July 2003. The trial court ordered DSS to file a
petition to terminate respondent-father's parental rights.
The trial court failed to make any written findings to show
why the petition could not be filed within the sixty days or to
extend the time in which DSS could file the petition. The petition
to terminate respondent-father's parental rights was not fileduntil 28 December 2005, more than two years after the sixty day
maximum required by N.C. Gen. Stat. § 7B-907(e).
Respondent-father argues he and T.M. were prejudiced by DSS's
unexplained and excessive delay. Respondent-father argues he and
T.M. were both prejudiced because:
Any hope of closure or permanence brought on
by the allowance or denial of a Petition to
Terminate Parental Rights has been hopelessly
set adrift by the delay in filing. While some
modest delay would be excusable, this delay
was fifteen times the 60 days allowed by our
Legislature for filing, or 842 days.
(Emphasis supplied).
N.C. Gen. Stat. § 7B-1109(a) mandates:
The hearing on the termination of parental
rights shall be conducted by the court sitting
without a jury and shall be held in the
district at such time and place as the chief
district court judge shall designate, but no
later than 90 days from the filing of the
petition or motion unless the judge pursuant
to subsection (d) of this section orders that
it be held at a later time.
(Emphasis supplied). Here, the petition to terminate respondent-
father's parental rights was filed on 28 December 2005. The first
hearing on the petition was held on 10 May 2006, 134 days after the
petition was filed and seventy-four days after the maximum time
allowed by N.C. Gen. Stat. § 7B-1109(a).
Respondent-father argues he was prejudiced by this delay
because his right to appeal was delayed and “any hope of finality
or permanence for the [respondent-father] or [T.M.] was dashed by
the failure to timely hear this matter.” I agree. Respondent-father, T.M., and all other parties are prejudiced
by DSS's repeated and extraordinary delays in the initiation,
resolution, and disposition of this matter. DSS's unexplained and
repeated failures to comply with statutory time limits “defeated
the purpose of the time requirements specified in the statute,
which is to provide [all] parties with a speedy resolution of cases
where juvenile custody is at issue” and prejudiced respondent-
father and T.M. In re B.M., M.M., An.M., and Al.M., 168 N.C. App.
350, 355, 607 S.E.2d 698, 702 (2005).
Prejudice is also shown because the “appellate process was put
on hold[] [and] any sense of closure for the children, respondent,
or the children's current care givers was out of reach . . . .” In
re C.J.B., M.J.B., 171 N.C. App. 132, 135, 614 S.E.2d 368, 370
(2005). Respondent-father, T.M., and the child's care-givers
suffered severe prejudice resulting from DSS's repeated and
cumulative failures to comply with the statutory mandated maximum
time limits from the beginning and throughout the child custody and
termination of parental rights proceedings. I vote to reverse the
order of the trial court.
III. Conclusion