IN THE MATTER OF: Caldwell County
M.D.B. No. 04 J 130
Lauren Vaughan for Petitioner-Appellee, Caldwell County
Department of Social Services.
Attorney Advocate Christopher G. Daniel for Guardian ad Litem-
Appellee.
Carol Ann Bauer for Respondent-Appellant.
McGEE, Judge.
Joyce Angela Reece (Respondent) appeals from the trial court's
order which terminated her parental rights to her minor child
M.D.B. We affirm.
The Caldwell County Department of Social Services (Petitioner)
filed a juvenile petition on 16 August 2004 alleging that M.D.B.
was dependent and neglected. Following a hearing on 27 October
2004, the trial court adjudicated M.D.B. to be a dependent
juvenile. Pursuant to a disposition order entered on 24 November
2004, the trial court placed custody of M.D.B. with Petitioner.
Petitioner filed a motion on 1 July 2005 to terminate the parental
rights of both Respondent and the child's father. After several continuances, the trial court conducted a
hearing on the petition to terminate parental rights on 23 January
2006. In its order entered on 8 February 2006, the trial court
found in its adjudication that:
2. The direct circumstances which brought
[M.D.B.] into the care of the Department of
Social Services were that . . . Respondent
. . . had an extensive history of child
protective services in several counties; she
was unemployed and living in her car; she had
left [M.D.B.] with the paternal grandparents
and did not return to care for [M.D.B.].
. . . .
12. That for a period in excess of six months
prior to the filing of the Motion herein,
. . . Respondent . . . had failed to have any
contact with [M.D.B.]. She did not visit with
[M.D.B.] from on or about December 29, 2004
until after the filing of the Motion [on 1
July 2005]. She had no contact with
[Petitioner] during that same period of time.
. . . Respondent . . . called the social
worker in July to ask why [M.D.B.] had been
removed from the paternal grandparents['] home
but she did not request a visit at that
time. . . .
13. That for that same period of time, to-wit:
from December 29, 2004 until September, 2005
. . . Respondent . . . did not appear in
Court; she did not work with [Petitioner] to
develop a case plan and she did not send any
items as gifts or acknowledgments to [M.D.B.].
At the conclusion of the adjudication, the trial court concluded:
8. That . . . Respondent . . . has abandoned
[M.D.B.] in that she had no contact with
[M.D.B.] for a period in excess of six months
prior to the filing of the Motion herein.
. . . .
Further, the Court finds that grounds exist
pursuant to N.C.G.S. § 7B-1111(a)(7) to
terminate the parental rights of. . . Respondent . . . in and to . . . M.D.B.
During the disposition, the trial court additionally found:
1. That the Court afforded . . . Respondent
. . . a chance to remedy the situation
regarding care of [M.D.B.] but . . . did not
do so. . . . Respondent . . . had a
significant history of substance abuse. Her
history of drug tests which were positive for
cocaine date back to at least 2001 and
continued through the early portions of this
case. During much of the time [M.D.B.] has
been in the custody of [Petitioner],
. . . Respondent . . . has been unavailable
for drug testing. She has been transient and
[Petitioner] was unable to locate her to
request drug tests. At the beginning of this
case, . . . Respondent left [M.D.B.] with the
paternal grandparents and disappeared for some
few days. She then returned and attempted to
remove [M.D.B.] from their care. She was
incoherent in her conversation and had slurred
speech. In the opinion of a police officer
who responded to the scene she was under the
influence of an impairing substance. At the
time of this hearing, she is not involved in
any treatment for her substance abuse issues.
She does not attend NA or AA.
. . . .
3. That . . . Respondent . . . by choosing to
not visit with [M.D.B.] for six months or more
prior to the filing of the Motion, has made
herself a stranger to [M.D.B.]. [M.D.B] is in
counseling at Bright Beginnings where they are
addressing her anger and behavior issues. She
has had a DEC evaluation. When
. . . Respondent . . . did return to request
visitation with [M.D.B.], the therapist for
[M.D.B.] recommended against renewing that
contact. The therapist expressed the opinion
that such contact would be detrimental to
[M.D.B] and possibly lead to an escalation of
the problematic behaviors of [M.D.B.].
. . . .
6. That the family with whom [M.D.B.] is
placed have become very bonded to her and are
committed to meeting her needs for counseling,speech therapy and any other issues. They
would like to adopt her if she becomes legally
available for adoption. They have done very
well in dealing with her negative behaviors
and temper tantrums. They have demonstrated
an ability and willingness to meet the needs
of [M.D.B.].
The trial court then concluded that "[t]he best interests of
[M.D.B.] will be served by termination of the parental rights of
. . . Respondent . . . with respect to [M.D.B.][]" and ordered
termination of the parental rights. From the trial court's order,
Respondent appeals.
In her first argument, Respondent contends the motion to
terminate her parental rights was legally insufficient. She argues
the motion failed to comply with N.C. Gen. Stat. § 7B-1104(5)
because a copy of the custody order was not attached to the
termination petition. We are not persuaded by Respondent's
argument.
When "a trial court places custody of the juvenile in some
agency or person other than the parent, N.C. Gen. Stat. § 7B-
1104(5) (2003) requires that a copy of the custody order be
attached to a subsequent petition to terminate parental rights."
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). However,
failure to comply with the requirement does not deprive the trial
court of subject matter jurisdiction in the absence of a showing of
prejudice. Id. at 241-42, 620 S.E.2d at 918.
While the motion for termination states that a copy of the
custody order was attached to it, there is no indication that thecustody order was actually attached. The motion does state that
Petitioner was given legal custody of M.D.B. in a disposition order
following a hearing on 27 October 2004. Both Respondent and her
attorney were present at that hearing, and Respondent was
represented by the same attorney at the hearing on the motion for
termination. Respondent indicated her awareness of M.D.B.'s
placement with Petitioner in both her written response to the
motion and her testimony in open court. The hearing on the motion
for termination was continued on a number of occasions from the
original date of 24 August 2005 until 23 January 2006. In light of
the foregoing, we conclude Respondent is unable to demonstrate any
prejudice arising from Petitioner's failure to attach the custody
order to the petition. Accordingly, we overrule this argument.
Respondent next contends the evidence did not support the
trial court's conclusion that she had willfully abandoned M.D.B.
for at least six consecutive months immediately preceding the
filing of the motion to terminate. She argues the trial court
erred in concluding that grounds existed to terminate her parental
rights under N.C. Gen. Stat. § 7B-1111(A)(7) (2005). We disagree.
While Respondent assigned error to the trial court's
conclusion of law that she had willfully abandoned M.D.B., she did
not assign error to any of the supporting findings of fact. If
unchallenged on appeal, findings of fact "are deemed supported by
competent evidence" and are binding upon this Court. In re
Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). "So
long as the findings of fact support a conclusion based on § 7A-289.32 [now N.C. Gen. Stat. § 7B-1111], the order terminating
parental rights must be affirmed." In re Oghenekevebe, 123 N.C.
App. 434, 436, 473 S.E.2d 393, 395-96 (1996). In its uncontested
findings of fact, the trial court found Respondent failed to have
any contact with either M.D.B. or Petitioner during the relevant
time period. As a result of those findings, the trial court
properly concluded that grounds for termination existed under N.C.
Gen. Stat. § 7B-1111(a)(7).
In her final argument, Respondent contends the trial court
abused its discretion by concluding that the best interests of
M.D.B. would be served by terminating Respondent's parental rights.
She characterizes the circumstances involving the removal of M.D.B.
as a family feud and points to evidence that she is currently in a
stable environment.
"After the trial court has determined grounds exist for
termination of parental rights at adjudication, the court is
required to issue an order of termination in the dispositional
stage, unless it finds the best interests of the child would be to
preserve the parent's rights." In re Blackburn, 142 N.C. App. 607,
613, 543 S.E.2d 906, 910 (2001). In its order, the trial court
found Respondent had a significant history of substance abuse and
had tested positive for cocaine during the early portions of this
case. Respondent later was transient and could not be located for
drug tests. She did not visit M.D.B. or have any contact with
Petitioner for at least six months prior to the filing of the
motion to terminate her parental rights. At the time of thehearing, Respondent was not involved in any treatment for her
substance abuse issues. There was nothing upon which the trial
court could reasonably base a decision to find it would not be in
M.D.B.'s best interests to terminate Respondent's parental rights.
Respondent has shown no abuse of discretion by the trial court in
terminating her parental rights. Accordingly, the trial court's
order is affirmed.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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