IN THE MATTER OF:
K.S. and J.S.
Beaufort County
No. J 03 68 & 69
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).
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