IN THE MATTER OF:
S.E.F.
Harnett County
No. 04 J 156
E. Marshall Woodall and Duncan B. McCormick, for Harnett
County Department of Social Services.
Elizabeth Myrick Boone, Guardian ad Litem Attorney Advocate.
Janet K. Ledbetter, for respondent-appellantmother.
STEELMAN, Judge.
Proper notice of the motion to terminate respondent's parental
rights was served in accordance with the provisions of N.C. Gen.
Stat. § 7B-1106.1 and N.C. Gen. Stat. § 1A-1, Rule 5(b).
Respondent has failed to show how any ineffective assistance of
counsel would have changed the outcome of the hearing. The trial
court's findings of fact were supported by clear, cogent, and
convincing evidence, and in turn support the conclusions of law
that grounds for termination exist.
S.E.F. was born to respondent on 7 November 2003. The Harnett
County Department of Social Services (“HCDSS”) became involved with
the family on 30 June 2004, after receiving a report ofinsufficient child care supplies. HCDSS made weekly visits to the
home and found satisfactory conditions. Respondent called HCDSS on
8 August 2004, and advised them that she was kicking S.E.F's father
out of the home and that she and the child would move in with an
unknown male whom she had recently met. As a result of
respondent's phone call, HCDSS conducted further investigation. On
10 August 2004, HCDSS filed a petition alleging the neglect and
dependency of S.E.F. The child was removed from respondent's care
the same day pursuant to a non-secure custody order. Denyse Lee,
a foster care social worker for HCDSS, met respondent on 16 August
2004. Ms. Lee, together with respondent, developed a family
service case plan with the goal of reuniting the family. By
consent of respondent, S.E.F. was adjudicated neglected and
dependent on 12 November 2004. Respondent failed to fulfill the
family services case plan requirements. She was hospitalized with
psychiatric problems on 1 September 2004, 1 December 2004, and 26
January 2005. Reunification efforts ceased on 22 April 2005, after
the custody review hearing had been continued on three occasions
and respondent did not appear at any of the hearings. A motion to
Terminate Parental Rights (“TPR”) of respondent was filed on 11
July 2005. A hearing was held on 23 September 2005. At that time,
respondent continued to be a patient in a psychiatric hospital in
New Jersey and had not visited S.E.F. since November of 2004. Ms.
Lee testified at the hearing regarding the status of the family at
that time and during the time prior to the hearing. An orderterminating parental rights was filed 21 October 2005, and
respondent gave notice of appeal on 26 October 2005.
In her first argument, respondent contends that the trial
court was without jurisdiction to hear the TPR motion because of
defects in the notice of the filing of the motion to terminate
parental rights, and the notice of hearing. We disagree.
This action was commenced by the filing of a Juvenile Petition
on 10 August 2004. This was personally served upon respondent 11
August 2004. Counsel was appointed to represent respondent shortly
thereafter. On 7 January 2005, Jesse Jones, an attorney, was
appointed as guardian ad litem for respondent, due to respondent's
psychiatric problems. On 11 July 2005, HCDSS filed a motion to
terminate parental rights as to both parents. This motion was
served by mail upon respondent, her counsel, and her guardian ad
litem, as evidenced by a certificate of service. A notice
complying with the requirements of N.C. Gen. Stat. § 7B-1106.1 was
served upon the same persons at that time. The address shown on
the certificate of service for respondent was: “Sherry Farney, 258
East Broadway, Salem, NC 08079.” At the time of mailing,
respondent was in a psychiatric hospital in New Jersey and the
address should have read “NJ” rather than “NC.” On 13 September
2005, a revised notice of hearing in juvenile proceedings was
mailed by the Harnett County Clerk of Court to respondent at “258
East Broadway, Salem [sic] NJ 08079,” advising respondent of the
hearing on 23 September 2005. N.C. Gen. Stat. § 7B-1102(b) provides that when a termination
of parental rights proceeding is filed by means of a motion in a
pending juvenile proceeding, that service of the motion and notice
pursuant to N.C. Gen. Stat. § 7B-1106.1 “shall be served in
accordance with [N.C. Gen. Stat. §] 1A-1, Rule 5(b),” subject to
several exceptions which are not applicable to this case. Rule
5(b) provides that service may be made on the party or the party's
attorney of record by regular mail. In this case, there is no
dispute that service of the motion for termination of parental
rights and notice was mailed to both respondent's attorney and her
guardian ad litem. Under Rule 5(b) of the N.C. R. Civ. P., this
was sufficient service regardless of the defect in the address of
respondent. We further note that respondent does not expressly
argue in her brief that she did not receive the motion and notice.
Rather, she makes the equivocal assertion that: “It is also not
clear whether the motion to terminate parental rights was ever
received by the mother, Sherry F., because the address was
defective.” This stands in sharp contrast to her assertion that
she did not receive the revised notice dated 13 September 2005.
This assignment of error is without merit.
In her second argument, respondent contends that her counsel
was ineffective. We disagree.
In cases involving petitions of abuse, neglect, or dependency
of a minor child, the parent has a right to counsel, if indigent.
N.C. Gen. Stat. § 7B-602(a) (2005). A claim of ineffective
assistance of counsel requires a demonstration by the claimant thatfirst, counsel's assistance was deficient; and second, without
counsel's deficient performance, the result at trial would have
been different. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d
241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693 (1984)).
In the instant case, respondent has failed to satisfy the
required two-part test for ineffective assistance of counsel.
Respondent argues that her attorney did not file an answer to the
TPR motion, did not make any objections at the TPR hearing, and did
not meet with her prior to the hearing. She has not, however,
specified what objections should have been made at the hearing and
how a filed answer to the TPR motion would have afforded her a more
fair hearing. See In re B.P., 169 N.C. App. 728, 733, 612 S.E.2d
328, 332 (2005). Further, respondent was afforded assistance
greater than required by statute, as both an attorney and guardian
ad litem were appointed to represent her interests. See N.C. Gen.
Stat. § 1A-1, Rule 17(c) (2005); In re Shepard, 162 N.C. App. 215,
226-28, 591 S.E.2d 1, 8-10 (2004); 2004 Formal Ethics Opinion 11,
N.C. State Bar (21 January 2005). Both the guardian ad litem and
respondent's attorney were present at the hearing terminating her
parental rights. Respondent has not demonstrated that absent the
alleged errors of counsel, there is a reasonable possibility that
the outcome of the trial would have been different. See Braswell,
at 563, 324 S.E.2d at 248. It is not the role of this Court to
fashion arguments for an appellant. This assignment of error is
without merit. In her third argument, respondent contends that certain
findings of fact are unsupported by the evidence and the
conclusions of law are unsupported by the findings of fact. We
disagree.
In termination of parental rights cases, the trial court is
required to conduct a two-step inquiry. An adjudicatory hearing on
termination is the first step. At this hearing, the petitioner is
required to prove the existence of grounds for termination by
clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B-1109
(2005). The second step, disposition, requires the trial court to,
in its discretion, determine whether terminating the parental
rights of the respondent based upon one or more grounds for
termination is in the best interests of the child. N.C. Gen. Stat.
§ 7B-1110 (2005). The grounds that would support termination of
parental rights are enumerated in N.C. Gen. Stat. § 7B-1111.
On appeal, this Court must determine whether contested
findings of fact are supported by clear, cogent, and convincing
evidence. In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609
(1982). Even if there is evidence to support a contrary finding,
if there is sufficient evidence in the record supporting the trial
court's findings of fact, we are bound by the trial court's
findings. Id. If the trial court's conclusions of law are
supported by the findings of fact, then they also are binding on
appeal. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d
393, 397-98 (1996). Respondent challenges multiple findings of fact, the following
of which are pertinent to this appeal:
21. On or about August 10, 2004, and at times
prior thereto the juvenile has been
allowed by her parents to live in an
environment injurious to her welfare in
that a history of domestic violence had
occurred between the parents both in New
Jersey and North Carolina with threats of
violence being reported to DSS thereby
placing the juvenile at risk of harm. The
mother and the juvenile had been evicted
from their residence in Dunn, NC and the
mother was planning to move into a home
with two males she had known for only a
month and whose last name and place of
residence she did not know. At the time,
the parents do not have relatives in
North Carolina and the relatives in New
Jersey were not willing or were not able
to take the juvenile into their home(s).
The juvenile did not at the time of the
filing of the petition and does not now
have anyone responsible for her care and
she is in need of placement.
25. The mother did obtain a job with
McDonalds [sic] but failed to maintain
the same. She reported to the child
support agency. The mother has paid a
total of $146.38 in child support
payments. The last payment made was
November 9,2004, in the amount of $30.46.
She did not enroll in PRIDE and did not
obtain a home.
28. It is noted from the psychological
evaluation report that the mother does
not admit she has any mental health
problems; she feels she is a victim; she
has little insight into her own
condition.
39. Neither parent has given any gifts,
birthday cards, Christmas cards or any
correspondence to the juvenile since her
placement in DSS care.
40. Notwithstanding that proper notice was
given, neither parent attended thepermanency planning hearing on May 13,
2005 or this hearing for termination of
their parental rights to the juvenile.
46. The mother is unable and incapable of
providing for the juvenile as more
specifically shown in the foregoing
findings. The mother's mental health
conditions appear to be long lasting and
cannot within a reasonable time be
expected to improve so as for her to be
able to adequately parent the child.
48. From all the evidence before the court, a
placement of the child with either the
mother or the father would likely result
in a continuation of neglectful acts in
the care and supervision of this child.
49. As indicated by the evidence and the
foregoing findings, the neglect of the
juvenile continues to the time of the
hearing and there is a likelihood that if
she is returned to the parents, the
neglect would continue.
We hold that each of these findings are supported by clear,
cogent, and convincing evidence. A case plan was developed by
HCDSS and respondent. The case plan included steps respondent
should take to improve the quality of life of the child. Ms. Lee
testified at the hearing regarding HCDSS' repeated attempts to
reunite respondent with the child, respondent's lack of financial
support for the child and inability to secure employment, and her
infrequent communication with the child. Ms. Lee further stated
that respondent did not attend rehabilitative services agreed upon
in her case plan. Evidence was submitted at the hearing including
an evaluation of respondent's psychological health which diagnosed
her with post traumatic stress disorder, alcohol abuse or
dependence, and borderline personality disorder. Respondent wasdirected to seek long-term mental health counseling, psychiatric
care, alcohol abuse treatment, vocational rehabilitation, and
parenting classes. There was no evidence before the trial court
that respondent took active steps toward these recommendations
during the time period that the child was removed from her care.
See, e.g, In re McMillon, 143 N.C. App. 402, 409-10, 546 S.E.2d
169, 174-75, disc. review denied, 354 N.C. 218, 554 S.E.2d 341
(2001).
These findings support the trial court's conclusions of law
that the child was neglected as defined in N.C. Gen. Stat. § 7B-
1111(a)(1), that neglect would likely continue if the child were
returned to respondent, and that the termination of respondent's
parental rights was in the best interests of the child.
Because we conclude that statutory grounds for the termination
of respondent's parental rights exist under N.C. Gen. Stat. § 7B-
1111(a)(1), we do not discuss her further arguments regarding
termination. See In re O.C. and O.B., 171 N.C. App. 457, 467, 615
S.E.2d 391, 397 (2005).
The termination of respondent's parental rights is affirmed.
AFFIRMED.
Judges McGEE and BRYANT concur .
Report per Rule 30(e).
*** Converted from WordPerfect ***