NO. COA07-31
Appeal by respondent mother from judgment entered 6 November
2006 by Judge Regan Miller in District Court, Mecklenburg County.
Heard in the Court of Appeals 14 May 2007.
Kathleen Widelski, Edward Yeager, and Tyrone C. Wade, for
petitioner-appellee Mecklenburg County Department of
Social Services.
McDaniel & Anderson, LLP by John M. Kirby for Guardian Ad
Litem.
Jeffrey L. Miller for respondent-appellant.
STROUD, Judge.
Respondent Marie L. appeals the trial court order terminating
her parental rights to three children, Dj.L., D.L., and S.L. This
order was entered in District Court, Mecklenburg County by Judge
Regan Miller on 6 November 2006, following a termination hearing at
which respondent was represented by appointed counsel. The trial
court terminated respondent's parental rights on three grounds: (1) respondent neglected the children, (2) respondent willfully
left the children in foster care for more than twelve months
without making reasonable progress under the circumstances toward
correcting the conditions that led to the children's removal from
the home, and (3) respondent willfully failed to pay a reasonable
portion of the cost of the children's care for a continuous period
of more than six months next preceding filing of the petition for
termination by the Mecklenburg County Department of Social Services
[DSS]. The trial court's termination of respondent's parental
rights was supported, in part, by findings that respondent failed
to attend to the medical needs of her children, including the needs
of Dj.L. who has juvenile diabetes; respondent failed to attend
medical appointments for the children; respondent failed to educate
herself on the proper care of Dj.L.'s condition, which is treated
with an insulin pump; respondent failed to obtain and maintain
stable housing; respondent's failures were, at times, attributable
to marijuana use; respondent failed to complete substance abuse
treatment and follow after-care recommendations; and respondent
paid zero dollars toward the cost of care for her children in
foster care.
Respondent raises three questions on appeal: (1) whether DSS
lacked standing to file a termination petition because it was never
awarded custody of the children by a court of competent
jurisdiction, (2) whether the trial court erred by holding atermination hearing approximately six months after DSS filed its
petition for termination, and (3) whether the trial court erred by
terminating respondent's parental rights because respondent did not
receive effective assistance of counsel during the termination
hearing. We affirm the trial court order.
I. Standing
[1] Respondent argues that DSS lacked standing to file a
petition for termination of her parental rights to Dj.L., D.L., and
S.L. In support of her argument, respondent emphasizes that N.C.
Gen. Stat. § 7B-1103(3) (2005) provides that a county department of
social services may file a petition to terminate parental rights
only when it has been given custody of a juvenile by a court of
competent jurisdiction. Respondent argues that the trial court in
this case did not have jurisdiction to grant custody of Dj.L.,
D.L., and S.L. to DSS because DSS's juvenile petition alleging that
the children are dependent and neglected was not properly verified.
Respondent cites
In re T.R.P., 360 N.C. 588, 636 S.E.2d 787
(2006), for the proposition that a juvenile petition that is not
properly verified does not confer subject matter jurisdiction on
the trial court. The defect in verification identified by
respondent is that the underlying petition fails to state that the
affiant, Betty Hooper, is either the director of DSS or an
authorized agent of the director. Based on this alleged defect,
respondent concludes that the adjudication order resolving DSS'sjuvenile petition is void and that DSS was never granted custody of
Dj.L, D.L., and S.L. by a court of competent jurisdiction;
therefore, respondent reasons that DSS did not have standing to
file a petition for termination of her parental rights under
section 7B-1103(3). This argument is without merit.
N.C. Gen. Stat. § 7B-403(a) (2005) provides that a juvenile
petition alleging dependency, abuse, or neglect “shall be drawn by
the director, verified before an official authorized to administer
oaths, and filed by the clerk, recording the date of filing.” We
read the phrases beginning with “drawn,” “verified,” and “filed” to
be separate requirements.
[2] First, N.C. Gen. Stat. § 7B-403(a) requires a juvenile
petition alleging abuse, neglect, or dependency to be “drawn by the
director.” N.C. Gen. Stat. § 7B-101(10) (2005) defines “director”
as “[t]he director of the county department of social services in
the county in which the juvenile resides or is found, or the
director's representative as authorized in G.S. § 108A-14.” N.C.
Gen. Stat. § 108A-14(b) (2005) permits the director of a county
department of social services to “delegate to one or more members
of his staff the authority to act as his representative.” Such
delegation may extend to the director's duty “[t]o assess reports
of child abuse and neglect and to take appropriate action to
protect such children” pursuant to Chapter 7B. N.C. Gen. Stat. §
108A-14(a)(11), (b). Here, the petition alleging Dj.L., D.L., and S.L. to be
dependent and neglected juveniles states, in part, that “Betty
Hooper, Petitioner, ha[s] sufficient knowledge or information to
believe that a case has arisen which invokes the juvenile
jurisdiction of the Court.” Betty Hooper signed the document as
the “petitioner” and listed her address as “Youth and Family
Services,” which is a division of the Mecklenburg County Department
of Social Services. From the language above, the trial court knew
that Betty Hooper was an employee of Youth and Family Services, who
had actual knowledge of the factual basis for the allegations in
the juvenile petition.
Although the best practice is to include a distinct statement
that the petitioner is the director of the county department of
social services or is an authorized representative of the director,
we hold that the juvenile petition in the case
sub judice contained
sufficient information from which the trial court could determine
that Betty Hooper had standing to initiate an action under section
7B-403(a). In so holding, we construe the juvenile petition “as to
do substantial justice.” N.C. Gen. Stat. § 1A-1, Rule 8 (2005)
(“All pleadings shall be so construed as to do substantial
justice.”). We emphasize that respondent has never argued, and
does not now argue, that Betty Hooper is not an authorized
representative of the Director of the Mecklenburg County
Department of Social Services or that she exceeded the scope of herauthority by filing the juvenile petition.
[3] Second, N.C. Gen. Stat. § 7B-403(a) requires a petition
alleging abuse, neglect, or dependency to be “verified before an
official authorized to administer oaths.” N.C. Gen. Stat. § 1A-1,
Rule 11(b) sets forth the substance of such verification, stating,
[i]n any case in which verification of a
pleading shall be required by these rules or
by statute, it shall state in substance that
the contents of the pleading verified are true
to the knowledge of the person making the
verification, except as to those matters
stated on information and belief, and as to
those matters he believes them to be true.
Correspondingly, N.C. Gen. Stat. § 10B-40(d) (2005)
(See footnote 1)
sets
forth a form of verification sufficient for acceptance by North
Carolina courts, stating,
(d) A notarial certificate for an oath or
affirmation taken by a notary is sufficient
and shall be accepted in this State . . . if
it includes all of the following:
(1) Identifies the state and county
in which the oath or
affirmation occurred;
(2) Names the principal who
appeared in person before the
notary unless the name of the
principal otherwise is clear
from the record itself.
(3) States that the notary has
either (i) personal knowledge
of the identity of the
principal or (ii) satisfactoryevidence of the principal's
identity, indicating the nature
of that satisfactory evidence;
(4) Indicates that the principal
who appeared in person before
the notary signed the record in
question and certified to the
notary under oath or by
affirmation as to the truth of
the matters stated in the
record.
(5) States the date of the oath or
affirmation.
(6) Contains the signature and seal
or stamp of the notary who took
the oath or affirmation.
(7) States the notary's commission
expiration date.
Here, the verification page of the petition filed by DSS shows
the following:
VERIFICATION
The undersigned Petitioner, being duly sworn,
says that the Petition hereon is true to his
own knowledge, except as to those matters
alleged on information and belief, and as to
those matters, he believes it to be true.
Betty Hooper
Petitioner-Affiant
Sworn to and subscribed before me
this the 4th day of June, 2004.
Roma J. Hester
Notary Public
My Commission expires: 05-09-2005
The notary also stamped the document with her seal, which read
“Roma J. Hester, Notary Public, Mecklenburg County, N.C.” This
verification complies with N.C. Gen. Stat. § 1A-1, Rule 11 and N.C.Gen. Stat. § 10B-40(d) in both form and substance.
Cf. In re
A.J.H.R. & K.M.H.R., 184 N.C. App. ___, ___ S.E.2d ___ (2007)
(concluding that a purported verification did not satisfy N.C. Gen.
Stat. § 7B-403 when the principal did not appear before the notary,
sign the record in question, or certify the truth of the matters
stated therein by oath or affirmation).
We emphasize that the facts
sub judice are distinct from the
facts of
In re T.R.P., a case in which the North Carolina Supreme
Court recently vacated a custody review order after concluding that
the trial court lacked subject matter jurisdiction to resolve the
underlying juvenile petition. 360 N.C. 588, 636 S.E.2d 787. In
In
re T.R.P., the North Carolina Supreme Court stated “the General
Assembly's requirement of a verified petition is a reasonable
method of assuring that our courts exercise their power only when
an identifiable government actor 'vouches' for the validity of the
allegations in such a freighted action.”
Id. at 592, 636 S.E.2d at
791. Because the juvenile petition alleging neglect in
In re
T.R.P. was “neither signed nor verified,” the Court held that the
trial court did not have subject matter jurisdiction to enter an
adjudication and disposition order resolving that petition, or to
enter a subsequent custody review order pursuant to N.C. Gen. Stat.
§ 7B-906.
Id. at 589, 636 S.E.2d at 789. In
In re T.R.P., the
Court used the phrase “neither signed nor verified” to explain that
no one signed as “petitioner-affiant” on the verification page ofthe juvenile petition: there was no indication “that the principal
who appeared in person before the notary signed the record in
question and certified to the notary under oath or by affirmation
as to the truth of the matters stated in the record.” N.C. Gen.
Stat. § 10B-40(d)(4);
see In re T.R.P., 173 N.C. App. 541, 546-47,
619 S.E.2d 525, 529 (2005),
aff'd, 360 N.C. 588, 636 S.E.2d 787
(2006). We determine that
In re T.R.P. does not control the case
sub judice because, here, an identifiable government actor, and
specifically an identifiable employee of the Youth and Family
Services Division of the Mecklenburg County Department of Social
Services, actually signed and verified the petition.
Applying N.C. Gen. Stat. §§ 108A-14(a)(11), (b), 7B-101(9),
7B-403(a), 1A-1, Rule 11(b), and 10B-40(d), we hold that the
juvenile petition drawn and verified by Betty Hooper was sufficient
to invoke the subject matter jurisdiction of the trial court.
Accordingly, the adjudication order entered 30 August 2004,
awarding custody of Dj.L., D.L., and S.L. to DSS, is not void. In
that document, the trial court expressly ordered
3. The children shall remain in the legal
custody of YFS [Youth and Family
Services] . . . in foster care.
4. The child[ren]'s placement and care are
the responsibility of YFS and YFS is to
provide or arrange for the foster care or
other placement of the child. DSS/YSF is
granted the authority to obtain medical,
educational, psychological, or
psychiatric treatment and provide otherservices as deemed appropriate by the
agency.
Because DSS is a “county department of social services . . . to
whom custody of the juvenile has been given by a court of competent
jurisdiction,” DSS had standing to file a petition for termination
of respondent's parental rights under section 7B-1103(3).
This assignment of error is overruled.
II. N.C. Gen. Stat. § 7B-1109 Time Limit
[4] Respondent argues that the trial court erred by failing to
hold a termination hearing within ninety days of the date on which
DSS filed its petition for termination. Because respondent has not
shown that she was prejudiced by the identified delay, we overrule
this assignment of error.
N.C. Gen. Stat. § 7B-1109(a) (2005) provides
[t]he 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.
Section 7B-1109(d) permits the trial court to continue a
termination hearing for up to ninety days for “good cause shown,”
or beyond ninety days “in extraordinary circumstances when
necessary for the proper administration of justice.” When the
trial court continues a termination hearing beyond ninety days, it“shall issue a written order stating the grounds for granting the
continuance”; however, there is no requirement in N.C. Gen. Stat.
§ 7B-1109 that the trial court make written findings to support an
initial ninety day continuance for “good cause.”
Here, DSS filed its petition for termination of respondent's
parental rights on 28 March 2006 and the trial court held the
termination hearing on 26 September 2006. Although approximately
six months passed between the date of filing and the date of
hearing, there is no continuance order in the record and no
indication that any party requested a continuance in this matter;
therefore, for purposes of this appeal, we conclude that the trial
court erred by calendaring the termination hearing outside the
ninety day time limit set in N.C. Gen. Stat. § 7B-1109(a).
However, “time limitations in the Juvenile Code are not
jurisdictional.”
In re C.L.C., 171 N.C. App. 438, 443, 615 S.E.2d
704, 707 (2005),
aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760
(2006). Failure to comply with a time limitation in the Juvenile
Code is not
reversible error unless the appellant shows “prejudice
resulting from the time delay.”
Id. Thus, to prevail on this
assignment of error, an appellant “must appropriately articulate
the prejudice arising from the delay.”
Cf. In re S.N.H., 177 N.C.
App. 82, 86, 627 S.E.2d 510, 513 (2006) (applying N.C. Gen. Stat.
§ 7B-1109(e) and explaining that the passage of more than thirty
days between a termination hearing and the trial court's entry ofa written termination order is not prejudicial
per se). “The
passage of time alone is not enough to show prejudice.”
Id.
Respondent argues that the delay in this case was an
“extraordinary delay” that resulted in prejudice
per se. We are
not persuaded. The time between DSS's filing of the petition for
termination and the termination hearing was less than six months,
which is a delay that would have been authorized by N.C. Gen. Stat.
§ 1109(a) and (d) if the trial court had entered a continuance for
“good cause shown.” N.C. Gen. Stat. § 1109(a), (d) (setting a
three month time limit for calendaring and permitting an additional
three month continuance for “good cause shown”). In light of the
statutory scheme, which affords a degree of flexibility to the
trial court in calendaring, we conclude that a delay of less than
six months between the filing of a termination petition and a
termination hearing is not so “extraordinary” that it results in
prejudice
per se. Because respondent has not shown actual
prejudice arising from the identified delay, this assignment of
error is overruled.
III. Ineffective Assistance of Counsel
Respondent argues that the trial court erred by entering an
order terminating her parental rights because she was denied
effective assistance of counsel at the termination hearing. We
disagree.
Parents have a statutory “'right to counsel in all proceedingsdedicated to the termination of parental rights.'”
In re L.C.,
I.C., L.C., 181 N.C. App. 278, 282, 638 S.E.2d 638, 641 (2007)
(quoting
In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d
393, 396 (1996)),
disc. rev. denied, 361 N.C. 354, ___ S.E.2d ___
(2007).
See also N.C. Gen. Stat. §§ 7B-1101.1(a), 1109(b) (2005).
This statutory right includes the right to effective assistance of
counsel.
In re L.C., I.C., L.C., 181 N.C. App. at 282, 638 S.E.2d
at 641;
In re Oghenekevebe, 123 N.C. App. at 436, 473 S.E.2d at
396. Counsel's assistance, as guaranteed by N.C. Gen. Stat. §§ 7B-
1101.1(a) and 1109(b), is ineffective when (1) counsel's
performance was deficient and (2) the “deficiency was so serious as
to deprive the represented party of a fair hearing.”
In re
Oghenekevebe, 123 N.C. App. at 436, 473 S.E.2d at 396.
(considering an appellant's ineffective assistance of counsel claim
pursuant to former N.C. Gen. Stat. § 7A-289.23 (1995), which has
been repealed and recodified);
In re J.A.A., 175 N.C. App. 66, 74,
623 S.E.2d 45, 50 (2005).
[5] First, respondent argues that counsel's performance was
deficient because counsel waived her right to a pre-trial hearing
under N.C. Gen. Stat. § 7B-1108(b) (2005) by failing to file an
answer to DSS's petition for termination. The purpose of a pre-
trial hearing as defined by N.C. Gen. Stat. § 7B-1108(b) is “to
determine the issues raised by the petition.” This Court has
previously determined that a respondent was not prejudiced bycounsel's failure to request a pre-trial hearing in an action for
termination of parental rights when the respondent was “on notice
as to the issues” to be resolved.
Id. Respondent does not argue
that she was unaware of the issues raised in DSS's petition for
termination; rather, respondent states generally that at a pre-
trial hearing “witnesses and evidence would have been disclosed,
motions made, and trial preparation enhanced.” Such general
averments are insufficient to establish prejudice resulting in an
unfair hearing.
See In re B.P., 169 N.C. App. 728, 733, 612 S.E.2d
328, 332 (2005) (denying an ineffective assistance claim when the
respondent “failed to specify what motions should have been made
and what evidence could have been, but was not, presented before
the trial court”). Therefore, assuming
arguendo that counsel's
performance was deficient in this respect, respondent has not shown
that the alleged deficiency resulted in an unfair hearing.
[6] Second, respondent argues that counsel's performance was
deficient because counsel waived the defense of lack of personal
jurisdiction. In particular, respondent argues that the address at
which process was hand-delivered was not her “usual place of abode”
as required by N.C. Gen. Stat. § 1A-1, Rule 4(j)(a) (2005). The
record reflects that process was delivered to respondent's
grandmother's home.
We hold that counsel's waiver of the defense of defective
service of process did not constitute deficient performance in thiscase. In so doing, we recognize that litigants often choose to
waive the defense of defective service when they had actual notice
of the action and when the inevitable and immediate response of the
opposing party will be to re-serve the process. Again, respondent
does not argue that she lacked notice of the action or the issues
to be resolved thereby. In fact, it is undisputed that at the time
of the hearing respondent was living with her grandmother and that
she had been living there for approximately one month. Moreover,
respondent attended a permanency planning review hearing in this
same matter on 9 August 2006, after DSS filed its petition for
termination but before the termination hearing.
[7] Third, respondent argues that counsel's performance was
deficient because counsel failed to make proper objections to
testimony on the ground that it was hearsay, irrelevant, non-
responsive, unfairly prejudicial or other evidentiary grounds;
counsel failed to develop defenses to the grounds alleged for
termination; and counsel did not subpoena witnesses, including
witnesses to authenticate the results of respondent's drug
screening and respondent's treatment workers. Assuming
arguendo
that counsel's performance was deficient in these respects, these
deficiencies did not deprive respondent of a fair hearing.
This Court has previously determined that alleged deficiencies
did not deprive the respondent of a fair hearing when the
respondent's counsel “vigorously and zealously represented” her,was familiar “with her ability to aid in her own defense, as well
as the idiosyncrasies of her personality,” and “the record
contain[ed] overwhelming evidence supporting termination,”
In re
J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005). After
reviewing the record in its entirety, we are convinced that these
criteria are met in the case
sub judice.
Counsel's representation, while not perfect, was vigorous and
zealous. Counsel represented respondent at every stage of this
consolidated case, beginning with mediation proceedings held on 21
July 2004. As such, counsel was familiar with the substantive
issues involved in the case as well as respondent's personality,
which appears to have been uncooperative at times.
Most importantly, DSS presented overwhelming evidence to
support at least one ground for termination of respondent's
parental rights: respondent's failure to pay a reasonable portion
of the cost of care for Dj.L, D.L., and S.L. for a continuous
period of six months preceding DSS's filing of the petition,
although respondent was physically and financially able to do so.
N.C. Gen. Stat. § 7B-1111(3) (2005);
In re Shermer, 156 N.C. App.
281, 285, 576 S.E.2d 403, 406 (2003) (explaining that the existence
of a single statutory ground for termination is sufficient to
support a termination order). The trial court entered a child
support order requiring respondent to pay $50.00 per month
beginning on 29 August 2005; however, as of the termination hearingon 26 September 2006, respondent had not paid
any amount toward the
cost of care for her children. Respondent testified at the
termination hearing that during the six to seven months preceding
DSS's filing of its petition for termination, she worked full-time
at Hardee's and she also worked at Wrennett's Helping Hands second-
hand shop.
(See footnote 2)
Based on this and other testimony, the trial court
concluded that respondent “could have paid some amount greater than
zero towards the cost of her children's care.”
In light of the child support order, respondent's failure to
pay any amount toward the cost of her children's care, and
respondent's admission that she had been employed full-time, we
conclude that counsel's alleged deficiencies did not result in an
unfair termination hearing. It is difficult to see a defense on
which respondent could have prevailed, and respondent cites no such
theory on appeal.
For the reasons stated above, we conclude that trial counsel's
waiver of the defense of lack of personal jurisdiction based on
defective service of process did not constitute deficient
performance. We further conclude that the remaining deficiencies
alleged by respondent did not deprive her of a fair hearing. This
assignment of error is overruled.
IV. Conclusion
For the reasons stated above, we hold that DSS had standing to
file a petition for termination of respondent's parental rights
under section 7B-1103(3), respondent has failed to show actual
prejudice resulting from an approximately six month delay between
the date on which DSS filed its petition for termination and the
termination hearing, and respondent did not receive ineffective
assistance of counsel during the termination hearing. Accordingly,
the order terminating respondent's parental rights to Dj.L, D.L.,
and S.L. entered in District Court, Mecklenburg County on 6
November 2006 by Judge Regan Miller is affirmed.
AFFIRMED.
Judges JACKSON and STEPHENS concur.
Footnote: 1 N.C. Gen. Stat. §§ 10B-40(d)(1) and (3) were repealed by North
Carolina Session Laws 2006-59, s. 18, which became effective 1
October 2006, approximately six months after DSS filed its
petition for termination in this case.
Footnote: 2 Respondent also testified that she held other full time jobs
at Ross, Subway, Tally's, IHOP, and several temporary placement
agencies during the period in which the children were removed
from her home.
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