Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-777

NORTH CAROLINA COURT OF APPEALS

Filed: 6 February 2007

IN THE MATTER OF:

K.S. and J.S.

                        Beaufort County
                        No. J 03 68 & 69

    Appeal by Respondent from order entered 3 February 2006 by Judge Michael A. Paul in District Court, Beaufort County. Heard in the Court of Appeals 10 January 2007.

    Annick Lenoir-Peek for Respondent-Appellant.

    Deanna F. Swain for Petitioner-Appellee.

    McGEE, Judge.

    Respondent appeals from an order terminating her parental rights. We affirm.
    K.S. and J.S. (the children) were removed from the custody of their mother (Respondent) by the Beaufort County Department of Social Services (DSS). Although the parties state that the children were removed as a result of neglect due to substance abuse by Respondent, Respondent did not include in the record the order adjudicating the children neglected and authorizing DSS to cease reunification efforts; nor did she include the order appointing the children's maternal great aunt, Amy Willard (Petitioner), guardian and permanent caregiver of the children. Accordingly, we are unable to discern the precise facts surrounding removal of thechildren from Respondent's custody.
    Petitioner filed a petition on 1 July 2005 to terminate the parental rights of Respondent and J.S., the children's father. Neither Respondent nor J.S. filed a written response to the petition. At the time the petition was filed, the children had resided with Petitioner for more than two years. Petitioner alleged that, except for one gift to K.S. in 2003, Respondent had not observed the birthdays of K.S. or J.S. while the children were living with Petitioner. Additionally, Petitioner alleged that Respondent had celebrated only Christmas 2004 with the children. Petitioner further alleged that Respondent had telephoned the children approximately ten times over two years, had provided no financial support to Petitioner, and had failed to attend supervised visits prior to Petitioner being named guardian of the children. Petitioner also stated her intention to adopt K.S. and J.S.
    After a hearing, the trial court found three grounds existed to terminate the parental rights of Respondent and J.S.: (1) willfully leaving the children in a placement outside the home for more than twelve months without showing reasonable progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); (2) willfully failing to pay a reasonable portion of the cost of care for the children pursuant to N.C. Gen. Stat. § 7B-1111(a)(3); and (3) willful abandonment of the children pursuant to N.C. Gen. Stat. § 7B- 1111(a)(7). The trial court concluded that termination of the parental rights of Respondent and J.S. was in the best interests ofthe children. The trial court entered an order on 3 February 2006 terminating the parental rights of Respondent and J.S. J.S. is not a party to this appeal.
    We first note that Respondent failed to file a written notice of appeal in violation of N.C. Gen. Stat. § 7B-1001 (2005) (stating that "notice of appeal shall be given in writing"). Accordingly, Respondent filed a petition for writ of certiorari with this Court. The Rules of Appellate Procedure state that "[t]he writ of certiorari may be issued in appropriate circumstances . . . to permit review . . . when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C.R. App. P. 21(a)(1). We note that Petitioner has not moved to dismiss the appeal as a result of this error, and the record suggests that Respondent's trial counsel believed that the Appellate Entries form was the only written document that trial counsel was required to file. Our Supreme Court has concluded that "Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner." Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997). Further, in granting a petition for writ of certiorari in the context of an appeal of an order terminating parental rights, this Court has considered the seriousness of such an order, as well as the lack of an objection by the appellees. In re I.S., 170 N.C. App. 78, 84-85, 611 S.E.2d 467, 471 (2005). Therefore, we grant Respondent's petition and proceed to the merits of Respondent's appeal.    Respondent first argues that the trial court lacked jurisdiction to enter the termination order because the petition violated N.C. Gen. Stat. § 7B-1104 and N.C. Gen. Stat. § 50A-509. We disagree.
    N.C. Gen. Stat. § 7B-1104(1) (2005) requires that a petition to terminate parental rights include, inter alia, "the county where the juvenile is presently residing." N.C.G.S. § 7B-1104(5) mandates that "a copy of the custody order shall be attached to the petition or motion." In In re T.B., __ N.C. App. __, 629 S.E.2d 895, 897 (2006), this Court concluded that "where [the petitioner] 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 [the petitioner] custody of the child." Importantly, the Court also stated the "omission need not have been fatal if [the] petitioner had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court." Id. at ___, 629 S.E.2d at 898 (second emphasis added).
    In the present case, a review of the transcript reveals that the trial court took judicial notice of the dispositional order granting guardianship of the children to Petitioner. In fact, the trial court specifically noted that the children were "in the custody of [DSS] and had been placed in their current placement through the efforts of [DSS] and the order was entered by this Court granting [Petitioner] legal status of guardian[] andpermanent caretaker[], or legal custodian[]." Pursuant to this Court's language in T.B., this satisfied the requirement of attaching the custody order to the petition.
    We further find that Respondent has failed to demonstrate any prejudice by this omission. During Respondent's testimony at the termination hearing, she acknowledged that Petitioner had custody of the children, and referred to telephone calls she had made to the children at Petitioner's home. Respondent's assertion that she was prejudiced "by the [trial] Court entering an order without addressing the basic question of whether it had jurisdiction to do so" is insufficient. To be entitled to a new termination hearing for violations of N.C. Gen. Stat. § 7B-1104(7) and N.C. Gen. Stat. § 7B-1104(5), this Court has required a respondent to demonstrate prejudice. See In re B.D., 174 N.C. App. 234, 241, 620 S.E.2d 913, 918 (2005), disc. review denied, 360 N.C. 289, 628 S.E.2d 245 (2006); In re Humphrey, 156 N.C. App. 533, 539, 577 S.E.2d 421, 426 (2003).
    We find the failure to include the county where the children resided at the time the petition was filed to be subject to the same analysis. The petition in the present case alleged that each child "presently reside[d] with the [P]etitioner" and that Petitioner resided in Washington, North Carolina. Respondent has failed to demonstrate any prejudice.
    Respondent also argues that Petitioner failed to comply with N.C. Gen. Stat. § 50A-209 by not attaching an affidavit of the status of the child to the petition for each of the children,thereby divesting the trial court of subject matter jurisdiction. We disagree.
    Respondent relies on In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003), to support her position. In Clark, this Court stated that "[a]lthough it remains the better practice to require compliance with [N.C.G.S. §] 50A-209, failure to file this affidavit does not, by itself, divest the trial court of jurisdiction." Id. at 79, 582 S.E.2d at 660. In In re J.D.S., 170 N.C. App. 244, 249, 612 S.E.2d 350, 354, cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005), this Court overruled the respondent's assignment of error where no affidavit of the status of the child was filed with the petition to terminate, but "the trial court's findings and conclusions regarding jurisdiction [were] supported by the record."
    Additionally, Petitioner posits that this termination proceeding did not trigger the requirements of N.C. Gen. Stat. § 50A-209. N.C. Gen. Stat. § 50A-209 (2005) applies to "a child- custody proceeding." The act defines a child custody proceeding as one where "legal custody, physical custody, or visitation with respect to a child is an issue. [This] term includes a proceeding for . . . termination of parental rights . . . in which the issue may appear." N.C. Gen. Stat. § 50A-102(4) (2005). Assuming, arguendo, that the requirements of N.C.G.S. § 50A-209 apply to this case, we find the rationale of J.D.S. applies and the failure to attach an affidavit of the status of the child for each of the children to the petition did not divest the trial court of subjectmatter jurisdiction. This assignment of error is overruled.
    Respondent next argues that the trial court erred by failing to appoint a guardian ad litem for the children pursuant to N.C. Gen. Stat. § 7B-1108(b). We disagree.
    N.C. Gen. Stat. § 7B-1108(b) (2005) provides
        [i]f an answer or response denies any material allegation of the petition or motion, the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile, unless the petition or motion was filed by the guardian ad litem pursuant to G.S. 7B-1103, or a guardian ad litem has already been appointed pursuant to G.S. 7B- 601.

Notably, the provision continues
        [i]n proceedings under this Article, the appointment of a guardian ad litem shall not be required except, as provided [in subsection (b)], in cases in which an answer or response is filed denying material allegations, or as required under G.S. 7B-1101; but the court may, in its discretion, appoint a guardian ad litem for a juvenile, either before or after determining the existence of grounds for termination of parental rights, in order to assist the court in determining the best interests of the juvenile.

N.C. Gen. Stat. § 7B-1108(c) (2005).
    Respondent does not dispute the fact that no answer or response was filed in the present case. Instead, Respondent argues that Petitioner knew Respondent would dispute the allegations in the petition at the termination hearing. Even if this statement were true, the requirement to appoint a guardian was not triggered because no "answer or response [denying] any material allegation of the petition or motion" was filed by Respondent. N.C.G.S. § 7B- 1108(b). Therefore, the trial court acted within its discretionwhen it declined to appoint a guardian ad litem. This assignment of error is overruled.
    Finally, Respondent asserts that the trial court erred by finding and concluding that grounds to terminate Respondent's parental rights existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (willfully leaving the children in a placement outside the home for more than twelve months without reasonable progress under the circumstances), N.C. Gen. Stat. § 7B-1111(a)(3) (willful failure to pay a reasonable portion of the cost of care), and N.C. Gen. Stat. § 7B-1111(a)(7) (willful abandonment). Because we find that the evidence supported the trial court's findings and conclusions regarding willful failure to pay a reasonable portion of the cost of care pursuant to N.C.G.S. § 7B-1111(a)(3), we need not reach Respondent's remaining arguments. Clark, 159 N.C. App. at 84, 582 S.E.2d at 663 ("[W]here we determine the trial court properly concluded that one ground exists to support the termination of parental rights, we need not address the remaining grounds.").
    N.C. Gen. Stat. § 7B-1111(a)(3) (2005) provides that a parent's rights may be terminated upon a finding that
        [t]he juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.

In order to terminate a parent's rights under N.C.G.S. § 7B- 1111(a)(3), the trial court must find that the parent had theability to pay child support. In re T.D.P., 164 N.C. App. 287, 289, 595 S.E.2d 735, 737 (2004), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005). A parent fails to pay a reasonable portion only if the parent had the ability pay some amount greater than zero. Id. at 290, 595 S.E.2d at 738. On appeal of an order terminating parental rights, our Court reviews whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the conclusions of law are supported by the findings. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
    In the present case, the trial court found that Respondent was in arrears in excess of $1,400.00 on court-ordered support. The trial court also found that during the six months prior to the filing of the petition, Respondent had made one partial payment of $26.42, even though her monthly obligation was $76.00. Finally, the trial court found that "[a]lthough young, able-bodied, and physically able to work, [Respondent] has failed to find steady employment to allow her to meet her obligations." These findings are supported by clear, cogent, and convincing evidence, including Respondent's testimony, Petitioner's testimony, and Respondent's exhibit detailing the child support payments made and how each payment was credited. R.10. These findings support the trial court's conclusion that grounds existed to terminate Respondent's parental rights under N.C.G.S. § 7B-1111(a)(3).
    Respondent abandons her remaining assignments of errorpursuant to N.C.R. App. P. 28(b)(6).
    Affirmed.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***