Converted WP file 061128-1

Appeal by Respondents from order entered 20 April 2006 by Judge Louis A. Trosch, Jr., in Mecklenburg County District Court. Heard in the Court of Appeals 8 March 2007.

    Thomas B. Kakassy, P.A., by Thomas B. Kakassy, for Respondent- Appellant Mother.

    Robert W. Ewing for Respondent-Appellant Father.

    Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for Petitioner-Appellee Mecklenburg County Department of Social Services.

    Alexandra S. Gruber for Guardian ad Litem-Appellee.

    STEPHENS, Judge.

    Respondents appeal from an order terminating their parental rights to the minor child D.M., Jr. For the reasons discussed herein, we affirm the order of the trial court.
    A few months before her sixteenth birthday, Respondent-Mother gave birth to D.M., Jr. At that time, Respondent-Father was the mother's boyfriend. On 18 August 2004, primarily as a result of multiple instances of domestic violence between Respondents (including one incident which resulted in D.M., Jr. being dropped on the ground and one incident in which the mother “threatened tokill [D.M., Jr.] after becoming angry with [the father]”), Petitioner-Appellee Mecklenburg County Department of Social Services (“DSS”) filed a petition alleging that D.M., Jr. was neglected and dependent. A nonsecure custody order was entered that same day, placing D.M., Jr. in the custody of DSS.
    Pursuant to N.C. Gen. Stat. § 7B-506, a seven-day hearing was held 24 August 2004. Both parents were present, represented by counsel, and consented to the nonsecure custody order. After the hearing, the trial court entered an order retaining legal and physical custody of D.M., Jr. with DSS. After participating in a mediation conference on 6 October 2004, the father and his attorney signed a mediation case plan whereby the father specifically agreed “to complete a domestic violence assessment at NOVA [New Options for Violent Actions] and follow through on all recommendations.” The case plan clearly stated that the father had “one year from the date of the petition to show the court that he is complying with his case plan and working towards getting [D.M., Jr.] back.” Additionally, the case plan stated that “a potential consequence of non-compliance with his case plan is that [D.M., Jr.] will not be returned to his custody.” The case plan was submitted to the trial court at an adjudicatory hearing held 19 October 2004, at which the father was again present and represented by counsel. By order entered 27 October 2004, D.M., Jr. was adjudicated neglected and dependent as to the father.
    The mother and her attorney participated in a mediation conference on 8 December 2004. The resulting case plan stated,inter alia, that the mother was “to complete a domestic violence assessment and follow through on all recommendations[.]” The mother's case plan contained provisions identical to the father's case plan in that the mother had “one year from the date of the petition to show the court that she is complying with her case plan and working towards getting [D.M., Jr.] back[,]” and that “a potential consequence of non-compliance with her case plan is that [D.M., Jr.] will not be returned to her.” The mother's case plan was submitted to the trial court at an adjudicatory hearing held 26 January 2005. Both parents and their attorneys were present at this hearing. During the hearing, D.M., Jr. was adjudicated neglected and dependent as to the mother. A dispositional hearing was held later that day.
    In its dispositional order filed 27 January 2005, the trial court adopted both parents' case plans. After noting that the father “needs to become involved in therapy and NOVA[,]” the court “again encouraged the father to begin attending NOVA as soon as possible.” The court further “informed both parents that they need to make progress to have [D.M., Jr.] placed with them.” Although the permanent plan as to both parents regarding D.M., Jr. was reunification, the court retained legal and physical custody with DSS. Thereafter, in each of three review hearing orders, all of which were entered after hearings attended by both parents and their attorneys, the court maintained legal custody of D.M., Jr. with DSS.    In the first review hearing order, the trial court stated that it had “again instructed [the father] of the importance of engaging in case plan activities.” Though the court found that the father was employed and earning $714.00 per month, the court ordered that the “father is allowed to have child support suspended at this time for the specific purpose of attending [the] NOVA program.” In the second review hearing order, the court found that the father was “enrolled in the NOVA program[,]” but noted that the parents “need to complete the treatment plan,” and that the father “needs to complete NOVA[.]” In the third review hearing order, filed 3 January 2006, the permanent plan was changed to adoption because the court found that “[n]either parent has made progress on the court adopted case plan[s].” DSS filed a petition to terminate parental rights on 30 December 2005. The 18 August 2004 nonsecure custody order was attached to the petition as “a copy of the most recent order placing said child in the custody of” DSS.
    The hearing on the petition to terminate parental rights began on 27 February 2006. Due to time constraints, the hearing was continued to and concluded on 15 March 2006. From the order terminating Respondents' parental rights entered 20 April 2006, Respondents appeal. For the following reasons, we affirm.

    Respondents first argue that the trial court lacked subject matter jurisdiction because the petition to terminate parental rights did not comply with “statutory mandates.” Specifically, Respondents argue that the petition was facially defective in that it did not identify Petitioner as one authorized by N.C. Gen. Stat. § 7B-1103 to file a petition, the petition failed to set forth the name and address of any person or agency to whom custody of D.M., Jr. had been given, and because no order conferring custody of D.M., Jr. upon Petitioner was attached to the petition. We disagree.
     “The issue of subject matter jurisdiction may be raised at any time, and may be raised for the first time on appeal.” In re S.D.A., 170 N.C. App. 354, 357-58, 612 S.E.2d 362, 364 (2005) (citations omitted).
    A petition to terminate parental rights may be filed by “[a]ny county department of social services[.]” N.C. Gen. Stat. § 7B- 1103(3) (2005). A petition to terminate parental rights “shall” state “[t]he name and address of the petitioner . . . and facts sufficient to identify the petitioner . . . as one authorized by G.S. 7B-1103 to file a petition[.]” N.C. Gen. Stat. § 7B-1104(2) (2005). Additionally, a petition to terminate parental rights “shall” state “[t]he name and address of any person or agency towhom custody of the juvenile has been given by a court of this or any other state; and a copy of the custody order shall be attached to the petition or motion.” N.C. Gen. Stat. § 7B-1104(5) (2005). However, the failure to comply with N.C. Gen. Stat. § 7B-1104(5) does not deprive the trial court of subject matter jurisdiction absent a showing of prejudice. In re B.D., 174 N.C. App. 234, 620 S.E.2d 913 (2005), cert. denied, 360 N.C. 289, 628 S.E.2d 245 (2006).
    Respondents argue that the petition did not comply with N.C. Gen. Stat. § 7B-1104(2) in that it did not identify Petitioner as a party authorized by N.C. Gen. Stat. § 7B-1103 to file a petition. The petition to terminate states that the “petitioner is the Mecklenburg County Department of Social Services, Youth and Family Services Division, whose address is 720 East Fourth Street, 5th Floor, Charlotte, NC 28202.” This statement clearly identifies Petitioner as “one authorized by G.S. 7B-1103 to file a petition” and the petition fully complies with N.C. Gen. Stat. § 7B-1104(2).
    Respondents next argue that the petition did not comply with N.C. Gen. Stat. § 7B-1104(5) because (1) it did not state the name and address of any person or agency to whom custody of the juvenile has been given by a court of this state, and (2) no copy of an order granting custody of the juvenile to DSS was attached to the petition. In fact, after listing Petitioner's address, the petition thrice states that D.M., Jr. has been placed in the custody of Petitioner. Although an order granting custody of D.M., Jr. to Petitioner was attached to the petition, Respondents arguethat the attached order did not satisfy statutory mandates because it was not in effect at the time the petition was filed and because the order did not grant legal custody of D.M., Jr. to DSS.
    Assuming arguendo that the order attached to the petition had expired and did not, in fact, transfer legal custody of D.M., Jr. to Petitioner, Respondents do not argue, and the record does not support the contention, that Respondents suffered resulting prejudice. Notably, Respondents were present at all hearings impacting their parental rights and were represented by counsel as well as guardians ad litem throughout the process. At every stage, it was readily apparent that legal custody of D.M., Jr. was placed with DSS. Because Respondents were in no way prejudiced by any alleged deficiency in the order attached to the petition to terminate their parental rights, Respondents' assignments of error on this issue are overruled.

    In her second and final argument, Respondent-Mother contends that the trial court erred in terminating her parental rights based on its seventh conclusion of law that she “willfully left the juvenile in foster care or placement outside the home for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile.”
     Pursuant to N.C. Gen. Stat. § 7B-1111,         (a)    The court may terminate the parental rights upon a finding of one or more of the following:

        (1)    The parent has . . . neglected the juvenile. The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be a . . . neglected juvenile within the meaning of G.S. 7B- 101.

        (2)    The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile . . . .

N.C. Gen. Stat. § 7B-1111(a) (2005). “A single ground under North Carolina General Statutes § 7B-1111 is sufficient to support an order terminating parental rights.” In re J.M.W., __ N.C. App. __, __, 635 S.E.2d 916, 917 (2006). Where a mother does “not challenge [one] of the grounds for terminating her parental rights, we uphold the termination order.” Id.
    In this case, the court made two conclusions of law, either of which would support an order terminating the mother's parental rights. In addition to the conclusion here challenged by the mother, the court concluded that the mother has “neglected this juvenile as that term is defined in NCGS §7B-101(15)[.]” Since the conclusion of neglect supports an order terminating her parental rights and the mother did not challenge this conclusion, we reject Respondent-Mother's second argument .

    In his second argument, Respondent-Father contends that the trial court's findings of fact do not support its conclusion of law that the father willfully failed to pay a reasonable portion of the cost of foster care although physically and financially able to do so. We disagree.
     “The trial court's 'conclusions of law are reviewable de novo on appeal.'” In re J.S.L., __ N.C. App. __, __, 628 S.E.2d 387, 389 (2006) (citation omitted). In reviewing a conclusion of law, the test is whether the conclusion is supported by the findings of fact. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997). “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” In re L.A.B., __ N.C. App. __, __, 631 S.E.2d 61, 64 (2006) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)) .
    A trial court may terminate parental rights upon a finding that a 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.” N.C. Gen. Stat. § 7B-1111(a)(3) (2005). A parent willfully fails to pay a reasonable portion of the cost of a juvenile's care where the parent contributes nothing to the juvenile's care, but had the ability to pay some amount greater than zero. In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (2004), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005). A support order is not necessary torequire a parent to pay a portion of the cost of a juvenile's care. Id.
    The father argues that since the trial court “waived” child support payments, the father did not “willfully” fail to pay a reasonable portion of D.M., Jr.'s care. The court made the following findings of fact:
        10.    The terms of the father's mediated case plan required him to complete educational goals to obtain a high school diploma or a G.E.D. The respondent father quit the G.E.D. program because he wished to obtain employment. The father did not obtain his G.E.D. or a high school diploma.

        11.    [The father] was also required to obtain and maintain employment so that he could provide the juvenile with basic necessities such as food, clothing, medical care, and shelter. During the time the juvenile was in [DSS] custody, the respondent father obtained employment at several places.

        . . . .

64. It has cost $28,810.23 to maintain the juvenile in foster care.

65. That the father has not contributed any money to defray the cost of out of home placement. The father is physically and financially able to do so . . . . Child support was waived to assist the father with paying N.O.V.A. fees but he did not complete N.O.V.A. Except for buying name brand items, he did not [use] the money to assist in the care of the juvenile. He did not do anything with the money.

Because findings ten and eleven are unchallenged on appeal, those findings are presumed supported by competent evidence and are binding on appeal. Although the father assigned error to findingssixty-four and sixty-five in the record on appeal, he did not argue these findings in his brief. Thus, the assignments of error are deemed abandoned. N.C. R. App. P. 28(a)(6). Findings sixty-four and sixty-five, then, are similarly presumed supported by competent evidence and are binding on appeal. We disagree with Respondent- Father's contention that these findings do not support the trial court's conclusion of law that the father “willfully failed . . . to pay a reasonable portion of the cost of care . . . although physically and financially able to do so.” The father's assignment of error is overruled.

    Respondent-Father next argues that the court's conclusion that he willfully left the juvenile in foster care for twelve months without showing reasonable progress in correcting those conditionswhich led to the removal of D.M., Jr. was not supported by the findings of fact. We disagree.
     In the context of N.C. Gen. Stat. § 7B-1111(4), willfullness may be found where the parent has made some attempt to regain custody of the child, but has failed to make “reasonable progress” or exhibit “a positive response toward the diligent efforts of DSS.” In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996). “Extremely limited progress is not reasonable progress.” In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995) (citation omitted). A positive response means “that not only must positive efforts be made towards improving the situation, but that these efforts are obtaining or have obtained positive results.” Nolen, 117 N.C. App. at 700, 453 S.E.2d at 225 (citation omitted).
    In its order terminating the father's parental rights, the trial court made the following findings of fact:
        3.    The juvenile was placed in the custody of the petitioner because of a history of domestic violence occurring between [Respondents]. The juvenile would be present during these domestic violence episodes.

        . . . .

        17.    Domestic violence is a major issue in this case.

        18.    N.O.V.A. was a major part of the father's case plan . . . . [The father] was approved for the N.O.V.A. program on November 17, 2004. He completed orientation in November 2004 but never returned to the program.
        19.    The father was allowed to renter [sic] the N.O.V.A. program on June 28, 2005 . . . . The father was terminated from the N.O.V.A. program in October 2005 for excessive absences . . . .

        20.    There were other concerns regarding the father's participation in the N.O.V.A. program. [At a session on] September 8, 2005, the father was high and was asked to leave the program . . . . Additionally, the father's attitude during his participation in the program was that he did not need domestic violence counseling. He was inappropriate with the domestic violence counselors. He only minimally participated in the sessions when he did attend the sessions.

        . . . .

        22.    . . . Throughout the juvenile case, the father stated in court proceedings, staffings and the parenting capacity evaluation the belief that he did not need domestic violence counseling. During repeated court proceedings and staffings, the father indicated that he was not going to attend domestic violence counseling.

        . . . .

        30.    The father has not completely participated in all of the services offered to address the issues that led to the juvenile being placed in [DSS] custody.

        . . . .

71. . . . [The father] made limited progress on the case plan[.]

Although the father assigned error to findings twenty and seventy- one in the record on appeal, he did not argue these findings in his brief. Thus, the assignments of error are deemed abandoned, findings twenty and seventy-one are presumed supported by competentevidence, and the findings are binding on appeal. The remaining findings are unchallenged by Respondent-Father and are likewise binding on appeal. L.A.B., __ N.C. App. __, 631 S.E.2d 61. The findings above support the court's conclusion that “reasonable progress under the circumstances has [not] been made in correcting those conditions which led to the removal of the juvenile.” Respondent-Father's assignment of error on this issue is without merit.

    By his final argument, Respondent-Father contends that the trial court's findings of fact do not support the conclusion of law that D.M., Jr. was neglected at the time of the termination hearing and, thus, that the trial court erred in concluding that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(1) to terminate his parental rights. Again, we disagree.
    A trial court may terminate parental rights upon a finding that a parent has “neglected the juvenile.” N.C. Gen. Stat. § 7B- 1111(a)(1) (2005). A juvenile shall be deemed to be neglected if a court finds the juvenile to be “a neglected juvenile within the meaning of G.S. 7B-101.” Id. Section 7B-101, in part, defines a neglected juvenile as “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker[.]” N.C. Gen. Stat. § 7B-101(15) (2005). “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485S.E.2d 612, 615 (1997) (emphasis added) (citation omitted). Where a juvenile is removed from the parent before the termination proceeding, however, “parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his] parents.” In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citing In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984)); see also In re L.O.K., 174 N.C. App. 426, 621 S.E.2d 236 (2005) (upholding neglect conclusion where trial court found that children had been previously adjudicated neglected and that there was a probability of repetition of neglect if the children were returned to respondent).
    The trial court made two conclusions of law, each of which could support its order terminating the father's rights on the ground of neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). First, in conclusion of law number five, the trial court found that “[the father has] neglected this juvenile as that term is defined in NCGS §7B-101(15) in that [he has] failed to provide proper care, supervision and discipline for the juvenile[.]” Second, in conclusion of law number six and after noting that D.M., Jr. was “adjudicated neglected . . . on 19 October 2004[,]” the trial court found “that the likelihood of ongoing or continued neglect is significant in that [the father has] not availed [himself] of any of the services necessary to enable [him] to properly parent the juvenile either now or in the foreseeable future.”    Assuming arguendo that the court's findings of fact do not support its conclusion of law number five, the father has not presented the trial court's sixth conclusion of law for our review. The father's argument is addressed to his first assignment of error. Assignment of error number one states, in relevant part, that the trial court “failed to make sufficient findings of fact to support its conclusion of law that the minor child was in a state of neglect at the time of the termination proceeding[.]” This assignment only directs our attention to conclusion of law number five.   (See footnote 1) To the extent that the father addresses conclusion of law number six in his brief, the father devotes only one half of one sentence to argue that “the petitioner could not prove by clear, cogent and convincing evidence . . . that there would be a repetition of neglect” if D.M., Jr. were returned to the father. Furthermore, all of the authority cited by the father in this argument pertains to the issue of the existence of neglect at the time of the termination hearing.   (See footnote 2) He argues no authority toadvance his rather off-hand comment that Petitioner failed to properly prove the likelihood of a repetition of neglect. Since the father has not presented conclusion of law number six for our review, and since conclusion of law number six adequately supports the court's order terminating the father's parental rights, see Reyes, supra, the father's argument on this issue is without merit.
    For the foregoing reasons, the order of the trial court is affirmed.
    AFFIRMED.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1