Appeal by respondent-mother from an order entered 11 August
2005 by Judge Louis A. Trosch, Jr. in Mecklenburg County District
Court. Heard in the Court of Appeals 1 November 2006.
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., for petitioner-appellee Mecklenburg County Department of
Social Services.
McDaniel & Anderson, L.L.P., by John M. Kirby, for the
Guardian ad Litem.
Katharine Chester for respondent-appellant.
BRYANT, Judge.
N.T.
(See footnote 1)
(respondent-mother) appeals from an order entered 11
August 2005 terminating her parental rights to her minor children
V.T. and A.T. For the reasons below, we affirm the order of the
trial court.
Facts and Procedural History
In June of 2002 the Iredell County Department of Social
Services (DSS) received referrals concerning respondent and her
minor child, A.T. On 20 June 2002, A.T. was placed in the custody
of respondent's mother and step-father. Iredell County DSSlearned on 23 August 2002 that respondent's step-father was a
registered sex offender and immediately removed A.T. from the step-
father's custody and placed him in foster care. A.T. was
subsequently adjudicated a neglected and dependent juvenile by the
Iredell County District Court on 8 October 2002.
The case was transferred to Mecklenburg County Youth and
Family Services (YFS) on 26 November 2002. The Mecklenburg County
District Court conducted a Dispositional Hearing on 4 March 2003,
where the trial court adopted the Iredell County DSS case plan and
YFS's recommendations. Respondent generally met the requirements
of her case plan and a subsequent Permanency Planning Hearing was
conducted on 19 April 2004 resulting in a trial home placement of
A.T. with respondent on 27 April 2004.
On 6 May 2004, YFS filed a Juvenile Petition regarding V.T.
after learning that the mother gave birth to V.T. on 29 April 2004
without having informed her social worker, the Guardian ad Litem's
office or the court of her pregnancy, and because respondent had
placed V.T. in the custody of her mother when she was admitted to
the hospital for complications arising from the birth. YFS
subsequently assumed custody of both V.T. and A.T. A Permanency
Planning Review Hearing in A.T.'s case on 19 July 2004 resulted in
the trial court changing the goal to adoption. V.T.'s case came
before the trial court on 21 July 2004, where V.T. was adjudicated
a neglected and dependent juvenile, and the trial court ordered YFS
to cease reunification efforts and set the goal as adoption. On 4 November 2004 YFS filed petitions to terminate
respondent's parental rights to V.T. and A.T. Respondent was not
served with the petitions until 5 May 2005. The case came on for
hearing on the Termination Petitions at the 27 June and 7 July 2005
sessions of Juvenile Court, Mecklenburg County, before the Hon.
Louis A. Trosch, Jr., District Court Judge presiding. On 11 August
2005, the trial court entered an Order terminating respondent's
parental rights to V.T. and A.T. Respondent appeals.
_________________________
Respondent raises the issues of whether the trial court: (I)
lacked subject matter jurisdiction over the instant action; (II)
erred in failing to hold a timely hearing on the petitions to
terminate respondent's parental rights; (III) erred in denying
respondent's motion to recuse the presiding judge; (IV) erred in
terminating respondent's parental rights because there was
insufficient clear, cogent, and convincing evidence to support the
trial court's findings of fact which also do not support its
conclusions of law; and (V) erred in finding it was in the best
interests of the children to terminate respondent's parental
rights.
I
Respondent first argues the trial court lacked subject matter
jurisdiction over the action to terminate respondent's parental
rights because petitioner failed to secure its endorsement of the
summons in this matter before it expired, and thus the action was
discontinued. “Subject matter jurisdiction refers to the power ofthe 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) (internal citation omitted). The
district court division of the General Court of Justice has
exclusive original jurisdiction of proceedings to terminate
parental rights. N.C. Gen. Stat. § 7B-200(a)(4) (2005). The trial
court's jurisdiction is further dependent on the existence of a
valid petition filed with the trial court as a “court cannot
undertake to adjudicate a controversy on its own motion[.]”
In re
Transportation of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d
557, 558 (1991);
see also In re McKinney, 158 N.C. App. 441, 443,
581 S.E.2d 793, 795 (2003) (“jurisdiction is dependent upon the
existence of a valid motion, complaint, petition, or other valid
pleading”).
Turning to respondent's argument, this Court has held that
“[w]here service does not occur within the required period and an
endorsement, extension, or alias/pluries summons is not acquired
within ninety days of the summons' issuance, the action is
discontinued, the trial court lacks jurisdiction, and any judgment
rendered is void.”
In re A.B.D., 173 N.C. App. 77, 78, 617 S.E.2d
707, 709 (2005) (citation omitted). However, where an endorsement
is not obtained within ninety days after issuance or prior
endorsement of a summons and the action has been discontinued, a
further extension of the summons may be endorsed by the clerk, but
“the action shall be deemed to have commenced on the date of suchissuance or endorsement.” N.C. Gen. Stat. § 1A-1, Rule 4(e)
(2005).
Here, the initial summonses for respondent in this matter were
issued on 4 November 2004. These summonses were returned unserved
and petitioner did not obtain an endorsement on the summonses
within ninety days of their issuance. Therefore, the action
against respondent was discontinued on 5 February 2005. However,
petitioner obtained an endorsement on the summonses on 27 April
2005 and the action to terminate respondent's parental rights is
deemed to have been instituted against respondent as of this date.
Respondent was served with the endorsed summonses on 9 May 2005,
within the thirty-day extension granted by the 27 April 2005
endorsement. Because the summonses were properly endorsed before
they were served on respondent, the action to terminate
respondent's parental rights was not discontinued at the time
respondent was served with the summonses and the trial court had
the requisite jurisdiction to hear the petition. This assignment
of error is overruled.
II
Respondent next argues the trial court erred in failing to
hold a timely hearing on the petition to terminate respondent's
parental rights. The trial court must hold an adjudicatory hearing
on a petition to terminate parental rights “no later than 90 days
from the filing of the petition or motion unless the judge pursuant
to subsection (d) of [§ 7B-1109] orders that it be held at a later
time.” N.C. Gen. Stat. § 7B-1109(a) (2005). As discussed in
IssueI,
supra, the petition to terminate respondent's parental rights
was effectively filed on 27 April 2005. The trial court convened
its hearing on the petition to terminate respondent's parental
rights on 27 June 2005, and concluded the hearing on 7 July 2005.
The hearing was convened sixty-one days, and concluded seventy-one
days, after the petition was filed. Thus, the trial court held a
timely hearing on the petition to terminate respondent's parental
rights. This assignment of error is overruled.
We note that respondent attempts to include an argument that
the petition to terminate respondent's parental rights was not
filed within sixty days of the trial court's order from the
permanency planning hearing ceasing reunification efforts and
ordering petitioner to file a petition to terminate respondent's
parental rights.
See N.C. Gen. Stat. § 7B-907(e) (2005) (“If a
proceeding to terminate the parental rights of the juvenile's
parents is necessary in order to perfect the permanent plan for the
juvenile, [a petition shall be filed] to terminate parental rights
within 60 calendar days from the date of the permanency planning
hearing.”). However, respondent has not assigned this issue as
error. It is well settled that
“[t]he scope of appellate review
is limited to those issues presented by assignment of error set out
in the record on appeal[; and where] no assignment of error
corresponds to the issue presented, this matter is not properly
presented for our consideration.”
State v. Williamson, 333 N.C.
128, 138, 423 S.E.2d 766, 771 (1992) (citing N.C. R. App. P.10(a)). Therefore we will not consider this aspect of respondent's
argument.
III
Respondent also argues the trial court erred in denying
respondent's motion to recuse Judge Trosch from hearing the action
to terminate respondent's parental rights because the record
reveals that he had a personal bias concerning respondent and had
predetermined the outcome of the hearing. We disagree.
“[A] party has a right to be tried before a judge whose
impartiality cannot reasonably be questioned.”
State v. Fie, 320
N.C. 626, 627, 359 S.E.2d 774, 775 (1987). “[A] judge should
disqualify himself/herself in a proceeding in which the judge's
impartiality may reasonably be questioned[.]” N.C. Code of
Judicial Conduct, Canon (3)(C)(1) (2007). “When a party requests
such a recusal by the trial court, the party must demonstrate
objectively that grounds for disqualification actually exist.”
In
re Faircloth, 153 N.C. App. 565, 570, 571 S.E.2d 65, 69 (2002)
(citation and internal quotation marks omitted). “The requesting
party has the burden of showing through substantial evidence that
the judge has such a personal bias, prejudice or interest that he
would be unable to rule impartially.”
Id. “The 'bias, prejudice
or interest' which requires a trial judge to be recused from a
trial has reference to the personal disposition or mental attitude
of the trial judge, either favorable or unfavorable, toward a party
to the action before him.”
State v. Kennedy, 110 N.C. App. 302,
305, 429 S.E.2d 449, 451 (1993) (citations omitted). Respondent argues Judge Trosch had, in previous hearings on
this matter, expressed great disregard for respondent's family, was
imputing their dishonesty to respondent, and this would bias his
decisions concerning respondent. However, respondent's arguments
speak directly to the trial court's stated reasons behind its
prior holdings in this matter. “[T]his Court has held that
knowledge of evidentiary facts gained by a trial judge from an
earlier proceeding does not require disqualification.”
Faircloth,
153 N.C. App. at 570, 571 S.E.2d at 69;
see also In re LaRue, 113
N.C. App. 807, 810, 440 S.E.2d 301, 303 (1994) (holding that a
trial judge who had conducted an earlier review hearing, concluded
that three children should remain with DSS, and recommended that
DSS pursue termination of parental rights, was not subject to
disqualification based on personal bias or prejudice in the
subsequent termination proceeding). Respondent has failed to show
substantial evidence that Judge Trosch had such a personal bias,
prejudice or interest that he would be unable to rule impartially.
This assignment of error is overruled.
IV
Respondent next argues the trial court erred in terminating
respondent's parental rights because there was insufficient clear,
cogent, and convincing evidence to support the trial court's
findings of fact which also do not support its conclusions of law.
We disagree.
Respondent first contends the trial court erred by not
specifically indicating the statutory grounds upon which it wasterminating respondent's parental rights. However, this Court has
held that a “trial court's failure to correctly state in its order
the specific statutory ground for termination is harmless error
when the findings of fact support a legal conclusion that grounds
for termination exist.”
In re Pope, 144 N.C. App. 32, 38 n.4, 547
S.E.2d 153, 157 n.4 (citation omitted),
aff'd per curiam, 354 N.C.
359, 554 S.E.2d 644 (2001). In its order terminating respondent's
parental rights, the trial court concluded, “[t]he respondent
parents have neglected these juveniles as that term is defined in
NCGS § 7B-101(15) in that they have failed to provide proper care,
supervision and discipline for the juveniles as more specifically
alleged in paragraphs above.” The order further stated that
respondent's parental rights were terminated pursuant to N.C. Gen.
Stat. § 7B-1111(a), which provides in part:
The court may terminate the parental rights
upon a finding of one or more of the
following:
(1) The parent has abused or
neglected the juvenile. The juvenile
shall be deemed to be abused or
neglected if the court finds the
juvenile to be an abused juvenile
within the meaning of G.S. 7B-101 or
a neglected juvenile within the
meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1) (2005). Therefore, if the trial
court's findings of fact support its legal conclusion that
respondent has neglected V.T. and A.T., the trial court's failure
to cite N.C. Gen. Stat. § 7B-1111(a)(1) as its grounds to terminate
is harmless error. When reviewing an appeal from an order terminating parental
rights, our standard of review is whether: (1) there is clear,
cogent, and convincing evidence to support the district court's
findings of fact; and (2) the findings of fact support the
conclusions of law.
In re Greene, 152 N.C. App. 410, 415, 568
S.E.2d 634, 637 (2002). “The burden is on the petitioner . . . to
prove the facts justifying the termination of parental rights, and
the trial court's findings with regard to such facts must be based
on clear, cogent and convincing evidence.”
In re Pierce, 356 N.C.
68, 70, 565 S.E.2d 81, 83 (2002) (internal citations omitted).
Clear, cogent, and convincing evidence “is greater than the
preponderance of the evidence standard required in most civil
cases, but not as stringent as the requirement of proof beyond a
reasonable doubt required in criminal cases.”
In re Montgomery,
311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984) (citation
omitted). “If the decision is supported by such evidence, the
district court's findings are binding on appeal even if there is
evidence to the contrary.”
In re A.D.L., 169 N.C. App. 701, 710,
612 S.E.2d 639, 645,
disc. rev. denied, 359 N.C. 852, 619 S.E.2d
402 (2005). “In a nonjury trial, it is the duty of the trial judge
to consider and weigh all of the competent evidence, and to
determine the credibility of the witnesses and the weight to be
given their testimony.”
In re Gleisner, 141 N.C. App. 475, 480,
539 S.E.2d 362, 365 (2000) (citation omitted).
Here, the trial court found as a basis for terminating
respondent's parental rights, that she had neglected V.T. and A.T. by failing to provide them proper care, supervision and discipline.
Both V.T. and A.T. had previously been adjudicated neglected
juveniles and had been placed in the custody of DSS. Further, the
trial court had ordered that reasonable efforts to reunify V.T. and
A.T. with respondent were to cease and the goal of the case was
changed to Termination of Parental Rights/Adoption.
N.C. Gen. Stat. § 7B-101(15) defines a neglected juvenile as
one who,
inter alia, “does not receive proper care, supervision, or
discipline from the juvenile's parent[.]” N.C. Gen. Stat. §
7B-101(15) (2005). “The key to a valid termination of parental
rights on neglect grounds where a prior adjudication of neglect is
considered is that the court must make an
independent determination
of whether neglect authorizing the termination of parental rights
existed at the time of the hearing.”
In re McDonald, 72 N.C. App.
234, 241, 324 S.E.2d 847, 851 (1985) (citation omitted). Further,
where
a child has not been in the custody of the
parent for a significant period of time prior
to the termination hearing, the trial court
must employ a different kind of analysis to
determine whether the evidence supports a
finding of neglect[,] . . . because requiring
the petitioner in such circumstances to show
that the child is currently neglected by the
parent would make termination of parental
rights impossible.
In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001)
(citation omitted),
aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002).
“[E]vidence of neglect by a parent prior to losing custody of a
child -- including an adjudication of such neglect -- is admissible
in subsequent proceedings to terminate parental rights. The trialcourt must also consider any evidence of changed circumstances . .
. and the probability of a repetition of neglect.”
In re Ballard,
311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).
In support of its conclusion that V.T. and A.T. are neglected
juveniles the trial court made the following findings of fact:
4. A.T. was originally placed in the custody
of Iredell County's Department of Social
Services on August 23, 2002 and
adjudicated as a neglected juvenile on
October 8, 2002. Following that
adjudicatory hearing legal custody of the
minor child was transferred to
Mecklenburg County's Youth and Family
Services.
. . .
6. YFS filed a juvenile petition with
respect to V.T. after she was born [in
April] 2004. That juvenile petition was
filed on May 6, 2004 and V.T. was
adjudicated as a neglected juvenile on
July 20, 2004.
7. YFS entered into a case plan with the
respondent mother designed to allow
placement of the children back into her
custody. As part of her court approved
case plan the respondent mother agreed:
to obtain and maintain housing and
employment; to obtain her GED; to
participate in individual and family
therapy; and to maintain regular contact
with YFS. The respondent mother also
agreed to complete a parenting capacity
evaluation, and to provide a letter from
her doctor with respect to participation
in therapy.
8. Max Nunez of the Behavioral Health Center
completed the parenting capacity
evaluation on [respondent] on August 29,
2003. He found, in part, that
[respondent] “would need considerable
support and guidance in order to maintain
an appropriate lifestyle that is centered
on the needs of the children rather thanon her needs.” He found that her
prognosis was guarded.
9. The intervening years have demonstrated
why her prognosis was guarded and, in
fact, she has not demonstrated the
ability to focus on the needs of her
children. Since YFS has been involved
with [respondent] she has made numerous
inappropriate decisions regarding her
relationships with men.
. . .
14. The respondent mother has had several
residences. The longest residence was a
trailer on I-85 Service Road in which she
lived until November 2004. She only
maintained that residence with financial
assistance from YFS or the maternal
grandmother. Other rent was paid with the
proceeds from a personal injury
settlement. She has never paid rent on
her own from her own earnings.
[Respondent] has not demonstrated
self-sufficiency with respect to housing.
She has, instead opted for quick fixes.
15. [Respondent] has not maintained regular
contact with Youth and Family Services.
She had only sporadic contact with the
YFS social worker in this case prior to
the goal being changed and has had no
contacts with YFS since July, 2004.
16. [Respondent] has also not successfully
completed individual therapy. She engaged
in ongoing therapy with Christine
Delaney, of Behavioral Health Center[,]
for a period of time. Ms. Delaney
initially reported to the Court that
[respondent] was successfully
participating in therapy.
17. On July 17, 2004, however, Ms. Delaney
reported that it had become “glaringly
obvious these goals were not
accomplished.” Ms. Delaney reported that
[respondent] had blatantly manipulated
and deceived her and then she stated
[respondent] had no desire to participatein therapy and found no need for further
therapy.
18. Since that time the respondent mother has
not provided any evidence that she is
engaged in any other form of individual
therapy. She testified to going to a few
therapy sessions in November 2004 but
admitted that she hasn't gone back.
Contrary to respondent's arguments to this Court, these
findings of fact are supported by clear, cogent and convincing
evidence. Further, the record before this Court shows the trial
court considered the changed circumstances and the probability of
a repetition of neglect before finding grounds for termination of
petitioner's parental rights.
See In re L.O.K., 174 N.C. App. 426,
435, 621 S.E.2d 236, 242 (2005) (finding evidence of probability of
future neglect where “respondent had a history of failing to show
a positive response to counseling and educational programs[,] . .
. [and] respondent had offered uncertain evidence of stability in
her working and living arrangements”);
In re Leftwich, 135 N.C.
App. 67, 72, 518 S.E.2d 799, 803 (1999) (trial court could properly
find a probability of future neglect when respondent mother had not
made meaningful progress in improving her lifestyle);
In re Davis,
116 N.C. App. 409, 414, 448 S.E.2d 303, 306 (the parents' failure
to “obtain[] continued counseling, a stable home, stable
employment, and [attend] parenting classes” was sufficient to show
a probability that neglect would be repeated if the child were
returned to the care of the parents),
disc. review denied, 338 N.C.
516, 452 S.E.2d 808 (1994);
In re Johnson, 70 N.C. App. 383, 389,
320 S.E.2d 301, 305-06 (1984) (improper care during a trialplacement, a failure to make lifestyle changes, and sporadic
attendance at counseling sessions constituted evidence of neglect).
These assignments of error are overruled.
V
Respondent lastly argues the trial court erred in finding it
was in the best interests of the children to terminate respondent's
parental rights. Respondent argues the trial court abused its
discretion in ignoring the advice of Mr. Nunez, after stating that
it had “found him to be extremely insightful and help [sic] for the
court,” by stopping respondent's visitation with V.T. and A.T. and
not terminating her parental rights until a year later, and by
terminating respondent's parental rights based on findings of fact
that are not supported by clear, cogent, and convincing evidence.
We disagree.
“After the trial court has determined grounds exist for
termination of parental rights at adjudication, the court is
required to issue an order of termination in the dispositional
stage, unless it finds the best interests of the child would be to
preserve the parent's rights.”
In re Blackburn, 142 N.C. App. 607,
613, 543 S.E.2d 906, 910 (2001) (citation omitted). The trial
court's determination that termination of parental rights would be
in the best interest of the child is reviewed applying an abuse of
discretion standard.
In re V.L.B., 168 N.C. App. 679, 684, 608
S.E.2d 787, 791,
disc. review denied, 359 N.C. 633, 614 S.E.2d 924
(2005). “Abuse of discretion exists when 'the challenged actions
are manifestly unsupported by reason.'”
Barnes v. Wells, 165 N.C.App. 575, 580, 599 S.E.2d 585, 589 (2004) (quoting
Blankenship v.
Town & Country Ford, Inc., 155 N.C. App. 161, 165, 574 S.E.2d 132,
134 (2002)).
Respondent has not shown an abuse of discretion by the trial
court in concluding it was in the best interests of the minor
children to terminate respondent's parental rights. As discussed
in
Issue IV,
supra, the trial court's findings of fact supporting
its conclusion that respondent has neglected her minor children are
based upon clear, cogent and convincing evidence. Further, the
trial court's conclusions are supported by the findings of Mr.
Nunez, and the long delay in the hearing to terminate respondent's
parental rights was not a result of discretionary actions by the
trial court and did not prejudice respondent. After reviewing the
evidence presented in the record, briefs, and transcripts before
this Court, we hold that the trial court did not abuse its
discretion in terminating respondent's parental rights to her minor
children, V.T. and A.T. These assignments of error are overruled.
Affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1