IN THE MATTER OF:
Nos. 05 J 79
05 J 80
Charlotte W. Nallan, for Buncombe County Department of Social
Michael N. Tousey, for Guardian ad Litem.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for respondent-appellant.
DeAnn B. (respondent) appeals the termination of her parental rights to C.B. and N.B. For the reasons stated below, we affirm the trial court's termination orders.
On 29 October 2004, Buncombe County Department of Social Services (DSS) received a report alleging that respondent left her three minor children _ B.B., C.B., and N.B. _ alone and without adult supervision. At the time, B.B. was fifteen years old, C.B. was three years old, and N.B. was two months old. DSS investigated the report and discovered that respondent's whereabouts wereunknown to the children. Having substantiated the allegation that respondent left the children alone from 27 October 2004 to 30 October 2004, DSS took the minor children into custody.
This incident was consistent with respondent's past behavior and DSS' prior dealings with respondent. In 1992, a case of neglect was substantiated against respondent. On 10 September 1997, DSS learned that respondent regularly left the children alone without knowledge of her whereabouts for indefinite periods of time. Also in 1997, respondent dropped off B.B. and W.B. (See footnote 1) with relatives one evening while ostensibly running errands. Respondent mother, however, did not return that evening to pick up B.B. and W.B., and it was learned that respondent had been admitted to the emergency room at St. Joseph's Hospital for treatment of a drug overdose. The following morning, respondent threatened to kill herself and her daughters if she lost custody of her daughters. Thereafter, respondent was referred to a twelve-week intensive care substance abuse program. On 17 October 1997, DSS learned that respondent was not attending the program. On 29 December 1997, respondent stole a vehicle and a checkbook, and respondent was arrested and charged with auto theft and twenty-one counts of forgery. Both daughters were placed outside the home as a result of this situation, with B.B. going to her maternal grandparents and W.B. going to another relative. On 30 October 2004, after DSS took custody of C.B. and N.B., respondent met with a social worker from DSS and admitted that she had left the children alone for three days because she met a man, decided to party with him, and was too intoxicated to drive home to her children. On 1 November 2004, respondent again explained that she had been caught up in the moment with the new man she had met. Respondent failed to appear for a meeting with DSS on 2 November 2004, and DSS was unable to locate respondent until 5 November 2004, when she admitted during a phone conversation that she was currently using crack cocaine and had been doing so throughout 2004.
During an interview with the guardian ad litem, fifteen-year- old B.B. explained that respondent frequently left B.B. alone overnight to care for C.B. and N.B. She also described how her mother would wake her up in the middle of the night to care for the younger children. B.B. stated that she had been caring for N.B. since N.B. was but one week old, and that she had toilet trained C.B. by observing a neighbor who cared for other children. B.B. informed the guardian ad litem that respondent had offered her marijuana and cigarettes so that B.B. could relax after looking after N.B. and C.B. B.B. missed significant time at school due to fatigue resulting from these added responsibilities at home, and consequently, B.B. failed ninth grade. DSS' subsequent investigation confirmed these facts.
C.B. and N.B. were taken into the temporary nonsecure custody of DSS on 30 October 2004. On 19 November 2004, medicalexaminations were performed on both children. The infant, N.B., was determined to suffer from nutritional deprivation, and the medical examiner expressed concerns about possible developmental delays, including speech delays, for C.B.
On 12 January 2005, the trial court held an adjudication and dispositional hearing, and the court adjudicated C.B. and N.B. neglected and dependent. On 4 March 2005, DSS filed petitions to terminate respondent's parental rights to C.B. and N.B. pursuant to North Carolina General Statutes, section 7B-1111(a)(1), and on 29 December 2005, the trial court entered orders terminating respondent's parental rights to the minor children.
On appeal, respondent raises seven assignments of error. Respondent, however, has not presented any argument in her brief with respect to her second, sixth, and seventh assignments of error. Accordingly, these assignments of error are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2006) (Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.).
In her brief, respondent first contends that the trial court lacked jurisdiction as a result of failing to enter the adjudication and disposition orders within ninety days of the filing of the petitions. See N.C. Gen. Stat. . 7B-1109(a) (2005). We disagree.
By statute, the hearing on the termination of parental rights shall be held no later than ninety days from the filing of thepetition to terminate the parental rights. See N.C. Gen. Stat. . 7B-1109(a) (2005). Contrary to respondent's contention, section 7B-1109(a) does not require that the orders be entered within ninety days of the filing of the petitions, only that the hearing be held within ninety days. Instead, section 7B-1109(e) provides that [t]he adjudicatory order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the termination of parental rights hearing. N.C. Gen. Stat. . 7B- 1109(e) (2005).
The petitions in the instant case were filed on 4 March 2005, and a summons was issued to respondent that day. Service by publication on putative and unknown fathers was completed on 28 April 2005. On 8 July 2005, respondent's appointed counsel withdrew from the case for health reasons. Replacement counsel, who was unfamiliar with the case and thus unprepared for immediate trial, was appointed on 13 July 2005. On 27 July 2005, DSS gave notice of special hearing to delineate the issues to be tried, and that hearing, along with the termination hearing, was scheduled for the week of 8 August 2005. On 23 August 2005, the case was continued to 19 September 2005 for issuance of subpoenas. The case was further continued, however, due to the unavailability of an essential witness, and the case was heard on 28 and 29 November 2005, with the orders from the hearing signed by the judge and filed on 29 December 2005.
First, we note that at no point during the history of the case did respondent object to the delay in hearing the case or the lapsein time from the filing of the petitions to the filing of the termination order. Additionally _ and contrary to respondent's contention _ violation of the statutory time-line is not a jurisdictional issue. Rather, a violation of the ninety-day deadline in section 1109(a) does not require reversal in the absence of a showing of prejudice resulting from the delay. See In re As.L.G. & Au.R.G., 173 N.C. App. 551, 555, 619 S.E.2d 561, 564 (2005), disc. rev. improvidently allowed, 360 N.C. 476, 628 S.E.2d 760 (2006) (per curiam). Similarly, this Court has held that a violation of the thirty-day deadline in 1109(e) warrants a reversal only upon a showing of prejudice. See In re J.L.K., 165 N.C. App. 311, 315.16, 598 S.E.2d 387, 390.91, disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2004).
Respondent has failed to argue a violation of section 1109(e), and [i]t is not the role of the appellate courts . . . to create an appeal for an appellant. Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh'g denied, 359 N.C. 425, 617 S.E.2d 662 (2005). Regardless, respondent has failed to show prejudicial error warranting reversal for the violation of either statutory deadline.
In the instant case, respondent has failed to demonstrate what impact, if any, was created by the delay between the filing of the petitions and the termination hearing. Indeed, part of the delay resulted from the withdrawal of respondent's counsel, the appointment of new counsel, and the granting of time to respondent's replacement counsel to become acquainted with the caseand to prepare accordingly. Furthermore, respondent failed to improve her situation during the delay, and by continuing to abuse drugs, failing to obtain employment, and giving up her home to go on the road with her current boyfriend, the trial court found that the respondent mother chose her boyfriend over the chance to be reunified with the minor child[ren]. Respondent also made no effort to improve her relationship with C.B. and N.B., as respondent sent no cards or gifts to the children after 22 June 2005, made no attempt to communicate with them on the phone, and failed to send a birthday card to N.B. in August 2005. Respondent has failed to demonstrate prejudice resulting from the delay, and accordingly, respondent's assignment of error is overruled.
In her second argument and third assignment of error, respondent contends that the trial court erred in allowing Beth Osbahr (Osbahr) to testify as to counseling recommendations or diagnoses for the minor children on the grounds that portions of her testimony were outside of the area of expertise for which she was qualified as an expert witness. Osbahr, a nurse practitioner, was tendered and received by the trial court as an expert. Respondent contends that Osbahr was not qualified as an expert to: (1) diagnose N.B. with failure to thrive; (2) define failure to thrive and outline the causes thereof; (3) identify signs of nutrition deprivation in a child; (4) rule out biological causes of N.B.'s alleged failure to thrive; (5) determine that N.B.'s failure to thrive was due to environmental causes; (6) testify that C.B. exhibited signs of medical neglect and developmental delays; and(7) opine that children from neglectful environments generally have developmental delays.
Respondent acknowledges that she did not object at trial to the introduction of Osbahr's testimony, but nonetheless urges that this Court evaluate her assignment of error under plain error review. This Court, however, consistently has rejected the use of plain error review in termination of parental rights cases. See, e.g., In re B.D., 174 N.C. App. 234, 245, 620 S.E.2d 913, 920 (2005) ([T]he plain error rule has not been expanded to civil cases in general or to child custody cases in particular.), disc. rev. denied, 360 N.C. 289, 628 S.E.2d 245 (2006); (See footnote 2) In re L.M.C., 170 N.C. App. 676, 678, 613 S.E.2d 256, 257 (2005) (Although the mother argues this issue under a plain error analysis on appeal, we note that plain error review is limited to criminal cases and is not applicable to civil cases.); accord N.C. R. App. P. 10(c)(4) (2006) (limiting plain error review to criminal cases). As respondent did not object to the testimony at trial, respondent failed to preserve this issue for appeal. See N.C. R. App. P. 10(b) (2006). Accordingly, this assignment of error is dismissed.
In her third argument and fourth assignment of error, respondent argues that the petitions to terminate her parental rights were void ab initio and conferred no subject matterjurisdiction upon the court on the grounds that no order conferring custody of the children upon DSS was attached to either petition. As this Court has noted, [s]ubject 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). Subject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal. See In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006).
[B]efore a court may act there must be some appropriate application invoking the judicial power of the court with respect to the matter in question. In re McKinney, 158 N.C. App. 441, 444, 581 S.E.2d 793, 795 (2003) (In re Transp. of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 558 (1991)). North Carolina General Statutes, section 7B-1103 identifies the parties with standing to petition the court for termination of parental rights, see N.C. Gen. Stat. . 7B-1103 (2005), and 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. In re T.B., 177 N.C. App. 790, 792, 629 S.E.2d 895, 897 (2006).
This Court has held that where DSS files a motion for termination of parental rights, 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 thechild. Id. (citing N.C. Gen. Stat. . 7B-1104(5), which requires that a copy of the custody order be attached to the petition to terminate parental rights). Unlike in In re T.B., where the petition to terminate parental rights did not include a copy of any custody order, each of the two petitions in the case sub judice were accompanied by a copy of the nonsecure custody order that granted initial custody of the children to DSS. However, the nonsecure custody orders to C.B. and N.B. attached to the respective petitions provided for a maximum of five days in DSS' custody, and as such, no custody order in effect at the time of filing was attached to the petitions to terminate. Nevertheless, all of the custody orders, including those in effect at the time the petitions were filed, were before the trial court at the time the petitions were filed. DSS filed its petitions to terminate respondent's parental rights to C.B. and N.B. on 4 March 2005. An Order on Nonsecure Custody, filed on 21 January 2005, expressly provided DSS would retain custody of N.B. and C.B. indefinitely pending further hearings. As such, the record include[d] a copy of an order, in effect when the petition[s] [were] filed, that award[ed] DSS custody of the child[ren], id., and thus, DSS had standing to file for termination of respondent's parental rights.
In her final argument, respondent contends that the trial court erred in failing to make specific findings of fact on the record and improperly deferred its fact-finding duty to DSS' attorney. We disagree. Respondent is correct in noting that [t]he requirement for appropriately detailed findings is . . . not a mere formality or a rule of empty ritual; it is designed instead 'to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system.' Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980) (quoting Montgomery v. Montgomery, 32 N.C. App. 154, 158, 231 S.E.2d 26, 29 (1977)). However, contrary to respondent's contentions, the trial court did not merely re-state the allegations in the petitions and incorporate those allegations as findings of fact. Rather, the court carefully examined the evidence and concluded that [w]ith regard to the allegations in the petition[s] that are set out, I'll find the facts alleged in the petition[s] with a few exceptions. The court then proceeded to specify which portions of the petitions had been proven, which portions had not been proven, which portions needed to be revised, and what additional findings needed to be included. For example, the petitions state that respondent was in an emergency room being treated for illegal drug overdose. The court added that [t]he mother testified at this hearing that she had overdosed on diet pills. Additionally, the petitions state that respondent's explanation for leaving the children alone from 27 October to 30 October 2004 was because she was staying with a man that she met in Lake Junaluska, North Carolina, and that she was too drunk to attempt the drive home. The court, again noting respondent's inconsistent testimony, explained that it wished to add the following finding: At this hearing, therespondent mother testified that she was actually in a home in Asheville, North Carolina, doing crack cocaine. The Court finds that the respondent mother lied to the Department in October 2004 in order to cover up the fact that she was using crack cocaine. The court added numerous findings of fact to those alleged in the petitions, and the court's thorough and reasoned explanation for its findings covers five pages of the transcript. Additionally, the court provided specific instructions to DSS' attorney on how to draft the judgment, and it is well-established that delegation of this responsibility to the prevailing party is not in error. See In re J.B., 172 N.C. App. 1, 25.26, 616 S.E.2d 264, 279 (2005). Accordingly, we hold that the trial court satisfied its responsibility to make specific findings of fact and did not improperly delegate its fact-finding duty to DSS. This assignment of error, therefore, is overruled.
As respondent has not assigned error to any of the trial court's forty-one findings of fact, those findings are presumed to be supported by competent evidence and therefore binding on appeal. See N.C. R. App. P. 28(b)(6) (2006); see also In re Clark, 159 N.C. App. 75, 83 n.5, 582 S.E.2d 657, 662 (2003) (citing In re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985)). Accordingly, the court's termination of respondent's parental rights is affirmed.
Judge GEER concurs.
Judge Levinson concurs in this opinion prior to 7 July 2007.
Report per Rule 30(e).
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