IN THE MATTER OF:
C.B., N.B.
Buncombe County
Nos. 05 J 79
05 J 80
Charlotte W. Nallan, for Buncombe County Department of Social
Services, petitioner-appellee.
Michael N. Tousey, for Guardian ad Litem.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
respondent-appellant.
JACKSON, Judge.
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.
Affirmed.
Judge GEER concurs.
Judge Levinson concurs in this opinion prior to 7 July 2007.
Report per Rule 30(e).
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