Appeal by respondents from order filed 6 March 2006 by Judge
C. Thomas Edwards in Catawba County District Court. Heard in the
Court of Appeals 13 December 2006.
J. David Abernethy for petitioner-appellee Catawba County
Department of Social Services.
Hartsell & Williams, P.A., by Christy E. Wilhelm, for
Don Willey for respondent-father.
Respondent mother (E.N.
(See footnote 1)
) and respondent father (D.N.) appeal
from a 6 March 2006 order terminating their parental rights to
M.J.N. (born in 1997) and R.J.N. (born in 1999). Respondents were
married after the birth of their second child.
In 1998 after respondents were involved in an incident of
domestic violence on New Year's Eve, Alexander County Department of
Social Services (DSS) took legal custody of the children. The
children were adjudicated neglected in Alexander County in January2001. DSS retained legal custody and respondents were allowed to
retain physical custody.
In October 2003, respondent mother obtained a mental health
assessment in Catawba County, North Carolina. She was diagnosed
with polysubstance abuse and depressive disorder and indicated that
she used alcohol, crack cocaine, methadone and oxycontin. The case
plan called for the children to receive extensive counseling;
however, they were taken to counseling only six times from October
2003 through May 2004.
In October 2004, the children lived with their maternal
grandmother in Catawba County, North Carolina and respondents moved
to Virginia. That same month, Catawba County DSS filed a juvenile
petition. The children were placed in a foster home on 11 March
2005 where they have since remained. On 4 April 2005 the children
were adjudicated neglected.
On 31 May 2005, the Catawba County District Court found both
respondents had quit their jobs. Respondent mother had drug
screens on 27 April 2005 and 18 May 2005 that were positive for
marijuana. The trial court ordered Catawba County DSS to continue
to retain legal custody of the children. The trial court further
ordered DSS was to continue to make reasonable efforts to prevent
or eliminate the need for placement of the children in foster
On 20 September 2005, the Catawba County District Court heard
this matter. Respondent father did not attend court. At the time
of the hearing, the children were still living in foster care inCatawba County. Respondents had moved to Virginia and had visited
their children two times: on 4 June and 27 August 2005.
Respondent mother failed to appear at her scheduled visitation with
the children on 7 September 2005. The trial court ordered that
reunification efforts cease with each of the parents. On 3
November 2005, Catawba County DSS filed its motion in the cause to
terminate respondents' parental rights.
On 13 December 2005, the Catawba County District Court
reviewed the case. Respondents had not contacted DSS since the 20
September 2005 hearing. The trial court ordered DSS to remain the
custodial guardians of the children, continue their foster care
placement and have respondents schedule one therapeutically
supervised goodbye visit. At the 7 February 2006 termination
hearing, neither respondent appeared. The trial court entered an
order terminating respondents' parental rights. Respondents
Respondent mother contends the trial court erred in: (I)
failing to establish subject matter jurisdiction (N.C. Gen. Stat.
§ 7B-1106); (II) failing to conduct a termination hearing within
ninety days from the filing of the termination motion in the cause
(N.C. Gen. Stat. § 7B-1109); (III) concluding that the termination
of parental rights was in the children's best interests; and (IV)
violating respondent mother's Due Process Rights under the North
Carolina Constitution by relying on certain testimony. Respondent
mother and respondent father both contend the trial court erred in: (V) finding clear and convincing evidence to terminate their
Respondent mother argues the trial court erred in failing to
establish subject matter jurisdiction pursuant to N.C. Gen. Stat.
§ 7B-1106. Specifically, respondent mother contends because no
summons issued in the cause, the trial court did not have subject
matter jurisdiction to terminate her parental rights.
Pursuant to the juvenile code, proceedings to terminate
parental rights may be initiated by petition or by motion in the
N.C. Gen. Stat. § 7B-1104 (2005). In this case, the
pleading to terminate parental rights was by motion in the cause,
rather than by petition. North Carolina General Statutes, Section
7B-1106.1 provides for notice in pending cases and requires that
notice in pending child abuse, neglect, or dependency cases include
all of the following:
(1) The name of the minor juvenile.
(2) Notice that a written response to the
motion must be filed with the clerk within 30
days after service of the motion and notice,
or the parent's rights may be terminated.
(3) Notice that any attorney appointed
previously to represent the parent in the
abuse, neglect, or dependency proceeding will
continue to represent the parents unless
otherwise ordered by the court.
(4) Notice that if the parent is indigent, the
parent is entitled to appointed counsel and if
the parent is not already represented by
appointed counsel the parent may contact the
clerk immediately to request counsel.
(5) Notice that the date, time, and place of
hearing will be mailed by the moving party
upon filing of the response or 30 days from
the date of service if no response is filed.
(6) Notice of the purpose of the hearing and
notice that the parents may attend the
N.C. Gen. Stat. § 7B-1106.1(b) (2005). The notice in this case
contains all of the information required by N.C. Gen. Stat. §
7B-1106.1(b), tracking the actual language used in the statute,
including a reference to factual allegations in support of the
termination. The certificate of service attached to each notice of
proceeding includes the names of all parties, including respondent
mother and her counsel. Because notice was given pursuant to N.C.
Gen. Stat. § 7B-1106.1, no summons was required. This assignment
of error is overruled.
Respondent mother argues the trial court erred in failing to
conduct a termination hearing within ninety days from the filing of
the termination motion in the cause pursuant to N.C. Gen. Stat. §
7B-1109. We disagree.
The hearing on the termination of parental rights is to be
held no later than ninety days from the filing of the petition or
motion. N.C. Gen. Stat. § 7B-1109(a) (2005). However, time
limitations in the Juvenile Code are not jurisdictional in cases
such as this one and do not require reversal of orders in the
absence of a showing by the appellant of prejudice resulting from
the time delay. In re C.L.C.
, 171 N.C. App. 438, 443, 615 S.E.2d
704, 707, aff'd
, 360 N.C. 475, 628 S.E.2d 760 (2005). The motion to terminate parental rights was filed on 3
November 2005. Each of respondents moved for an extension of time
to file an answer. The trial court granted the motions and
extended the time for filing a response to 6 January 2006. The
hearing on the motion was conducted on 7 February 2006, which was
ninety-six days after the motion was filed, and thirty-two days
after the extended time for filing answer expired. Furthermore,
respondent mother has not demonstrated prejudice where the trial
court conducted the hearing only thirty-two days after the extended
time for filing answers had expired and where respondents had moved
out of state and away from their children. See In re D.J.D.
N.C. App. 230, 243, 615 S.E.2d 26, 35 (2005) (Since respondent
moved for the continuance, adding sixty-eight days to the trial
court's original [delay], he has failed to demonstrate
prejudice.). This assignment of error is overruled.
Respondent mother argues the trial court erred in concluding
that the termination of parental rights was in the children's best
interests. Termination of parental rights proceeding is a
two-stage process: the trial court first determines whether
sufficient grounds exist under N.C. Gen. Stat. § 7B-1111 to warrant
termination; if the trial court determines that any one of the
grounds for termination listed in N.C. Gen. Stat. § 7B-1111 exists,
the trial court may then terminate parental rights consistent with
the best interests of the child. In re T.D.P.
, 164 N.C. App. 287,288, 595 S.E.2d 735, 736-37 (2004), aff'd
, 359 N.C. 405, 610 S.E.2d
At disposition, the trial court found that the children had
been successfully placed in the home of a foster family who
provided them with a permanent home since 6 June 2005. The trial
court found that the children were happy in their placement and
adjusting well. Although there was a significant bond between the
children and respondents, one of the children had begun to talk
openly about being adopted. The trial court concluded that
adoption was in the children's best interest. The substantial
record evidence supports the trial court's findings and
conclusions. This assignment of error is overruled.
Respondent mother argues the trial court erred in violating
her Due Process Rights under the North Carolina Constitution by
relying on certain testimony. We disagree.
Neither party objected to the admission of any evidence at the
hearing. In a civil case, an issue cannot be reviewed on appeal
unless an objection is made in the trial court. Munn v. N.C. State
, 360 N.C. 353, 626 S.E.2d 270 (2006); see In re A.E.
N.C. App. 675, 615 S.E.2d 53 (2005) (argument not properly
preserved for appellate review when party fails to object to the
admission of testimony at trial court) and 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 custodycases in particular.), disc. rev. denied
, 360 N.C. 289, 628 S.E.2d
245 (2006). These assignments of error are dismissed.
Both respondents contend the trial court erred in finding
clear and convincing evidence to terminate their parental rights.
We disagree. Specifically, respondents challenge the trial court's
findings and conclusions as to each of the three grounds for
terminating their parental rights pursuant to N.C. Gen. Stat. §
7B-1111(a): neglect; incapacity to provide for the proper care and
supervision of the children; and willful abandonment. We review
and uphold the trial court's findings and conclusion only as to
On appeal, our standard of review for the termination of
parental rights is whether the court's findings of fact are based
upon clear, cogent and convincing evidence and whether the findings
support the conclusions of law. In re Baker
, 158 N.C. App. 491,
493, 581 S.E.2d 144, 146 (2003) (citations, alteration, and
internal quotation marks omitted). This Court has noted that 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
, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000).
Accordingly, the presumption is in favor of the correctness of the
proceedings in the trial court, and the burden is on the appellant
to show error. In re Moore
, 306 N.C. 394, 403, 293 S.E.2d 127,
132 (1982) (citations omitted). The trial court's conclusions oflaw are reviewable de novo
. See Starco, Inc. v. AMG Bonding & Ins.
, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
A neglected juvenile is one who does not receive proper care,
supervision, or discipline from the juvenile's parent . . . or who
has been abandoned. N.C. Gen. Stat. § 7B-101(15) (2005).
Abandonment has been defined as wilful neglect and refusal to
perform the natural and legal obligations of parental care and
support. In re Humphrey
, 156 N.C. App. 533, 540, 577 S.E.2d 421,
427 (2003). A conclusion of neglect may also be supported in less
tangible ways including: evidence of sporadic contact between
parents and children and their complete failure to provide
personal contact, love, and affection to their children. In re
, 67 N.C. App. 257, 263, 312 S.E.2d 900, 904 (1984) (citation
Respondents' children were adjudicated neglected based on
respondents' repeated acts of domestic violence, substance abuse
and lack of parental involvement. A thorough examination of the
record indicates respondents engaged in ongoing substance abuse and
at least thirteen documented incidents of domestic violence for a
period of seven years. These occurrences have taken place in North
Carolina (Alexander and Catawba counties), in Virginia, and are
summarized as follows: The trial court found respondents
chronically abused alcohol and drugs from 1998 to 2005. The trial
court found respondent father lost his job in 2004 due to testing
positive for marijuana. The trial court specifically found that
respondent mother tested positive for marijuana in March, April andMay 2005 and that she did not comply with requested drug screens in
June and July 2005.
With respect to domestic violence, the trial court found that
respondents were involved in at least three separate incidents
while living in Alexander County _ one for which respondent father
was jailed and one which involved an attempted stabbing by
respondent mother. While respondents lived in Virginia, respondent
mother alleged respondent father raped her. Also, respondent
mother was arrested multiple times for domestic violence and
respondent father was reported dragging M.J.N. by the neck. From
2003 to 2005, while respondents lived in Catawba County, the couple
was involved in multiple incidents of domestic violence; one which
rose to the level of respondent father threatening to kill
At the TPR hearing, the Catawba County DSS social worker
testified that respondent father failed to contact DSS after he and
respondent mother last visited the children on 27 August 2005;
respondent father failed to obtain a domestic violence assessment
despite a long history and ongoing occurrences of domestic violence
with respondent mother; and respondent father did not attend any
parenting classes. Further, the DSS social worker testified that
respondent mother allowed respondent father to live with her even
though he had not received any domestic violence treatment and that
thereafter an incident of domestic violence ensued between them.
The trial court heard testimony regarding respondent mother's
abandonment of the children as evidenced by her relocation toVirginia and testimony regarding how respondent mother upset the
children by failing to appear at her scheduled visitation in
September 2005. Respondent mother failed to attend the hearing on
the motion to terminate parental rights. Failure to attend the
termination hearing may be considered by the court. In re As.L.G.
173 N.C. App. 551, 619 S.E.2d 561 (2005). The evidence before the
trial court as to the neglect of both respondents was
uncontradicted, clear, and convincing, and supported the trial
court's findings of fact in the TPR order.
Because the record before us supports the trial court's
determination of neglect as to both respondents, we decline to
address respondent's remaining arguments regarding the statutory
grounds for termination of parental rights. N.C. Gen. Stat. §
7B-1111(a) (2005); In re Shermer
, 156 N.C. App. 281, 284, 576
S.E.2d 403, 406 (2003); see also In re Clark
, 159 N.C. App. 75, 78
n.3, 582 S.E.2d 657, 659 n.3 (2003) (citation omitted) (where the
trial court finds multiple grounds on which to base a termination
of parental rights, and an appellate court determines there is at
least one ground to support a conclusion that parental rights
should be terminated, it is unnecessary to address the remaining
grounds.). These assignments of error are overruled.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).