IN THE MATTER OF:
N.D.M. No. 05 J 48
Sharp, Michael, Outten & Graham, L.L.P., by Steven D. Michael
for Dare County Department of Social Services appellee.
Hall & Hall, by Susan P. Hall, for respondent-father appellant.
Annick Lenoir-Peek for respondent-mother appellant.
Elizabeth Boone for Guardian ad Litem.
N.D.M. is a special needs child with cerebral palsy, seizures, developmental disabilities and possible mental retardation. In May 2001, the Dare County Department of Social Services (DSS) received a report that N.D.M. and his two siblings had been left unattended by respondent-mother during the early morning hours. On 18 May 2001, a juvenile petition was filed alleging that N.D.M. and his two siblings were abused, neglected and dependent. In June 2001, respondent-mother was placed on supervised probation for criminal charges and required to enter the Summit House Program. On 10 June 2001, respondent-mother entered a consent adjudication orderagreeing that the juveniles were neglected. N.D.M. was originally placed with his maternal grandmother while respondent-mother served her probation time at Summit House, but when she opted to serve her jail sentence instead, N.D.M. was placed into foster care due to his special needs and the grandmother's inability to provide care for such special needs and take care of three other children.
In 2003, respondent-father was identified as the biological father of N.D.M. It was ascertained that respondent-father was disabled due to a mental health disorder and is unable to provide a home for N.D.M. Respondent-father entered into a consent adjudication order agreeing that N.D.M. was a neglected and dependent juvenile. N.D.M. was placed in foster care in Raleigh where he was given access to specialized physical and educational services that could not be provided to him through foster care services in Dare County. The lower court entered an order to terminate respondents' parental rights on 23 February 2006, finding and concluding that N.D.M. was a neglected juvenile and that there was a probability of repetition of such neglect; N.D.M. was willfully left in foster care or placement outside of the home for more than 12 months without a showing of reasonable progress; respondent-mother failed to pay for a reasonable portion of the cost of child care though she was able to do so; and respondent-father failed to establish paternity or legitimate the child prior to the filing of the petition to terminate parental rights. Respondents appeal. Respondents contend on appeal that the trial court erred in failing to hold a hearing on the petition to terminate parental rights within 90 days from the filing of the petition in violation of N.C. Gen. Stat. § 7B-1109.
The North Carolina General Statutes set forth that a hearing on the termination of parental rights shall be held no later than 90 days from the filing of the petition to terminate such rights. N.C. Gen. Stat. § 7B-1109(a) (2005). This Court has held that the failure of the trial courts to enter a termination order within the time standards in N.C. Gen. Stat. § 7B-1109(e) constitutes reversible error where the appellant demonstrates prejudice as a result of the delay. See In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006).
The issue in the instant case deals with the prejudicial effect of delay prior to the hearing rather than failure to enter an order after the hearing within the time limits set forth under N.C. Gen. Stat. § 7B-1109(e). The petition to terminate parental rights was filed 21 June 2005 and the hearing was not held until 27 January 2006. This Court has extended the reasoning regarding failure to enter a timely order to the failure to hold the termination hearing within the time period set forth in N.C. Gen. Stat. § 7B-1109(a). In re S.W., 175 N.C. App. 719, 722, 625 S.E.2d 594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006).
Respondent-mother generally contends that she was prejudiced by the failure to hold a hearing on the petition within 90 days where she was denied a timely right to appeal and denied visitationrights as to N.D.M. during the pendency of the hearing. Respondent- father contends that he too was prejudiced and that such prejudice is shown through his inability to timely file an appeal and the lack of a sense of permanence of which he was deprived by the temporal delay. These general statements by both respondents are bare assertions made in the briefs on appeal without further arguments to support them. Such general averments fail to show actual prejudice incurred by respondents.
Further, the trial court included a finding of fact in its order to terminate parental rights which stated that the matter was continued several times to allow respondent-father to meet with his guardian ad litem and due to the length of the court's calendar. The hearing was also continued once due to the failure of respondent- father's attorney to notify respondent-father of the hearing causing respondent-father to fail to be present. N.C. Gen. Stat. § 7B- 1109(d) states that hearings may be continued beyond 90 days from the filing of the initial petition in extraordinary circumstances when necessary for the proper administration of justice[.] N.C. Gen. Stat. § 7B-1109(d). Therefore the corresponding assignments of error are overruled.
Respondents further contend the trial court lacked subject matter jurisdiction where the petition failed to meet the requirements set forth in N.C. Gen. Stat. §§ 7B-1104 and 50A-209.
N.C. Gen. Stat. § 7B-1104 sets forth the following items as those which must be set forth in a petition to terminate parental rights: (1) The name of the juvenile as it appears on the juvenile's birth certificate, the date and place of birth, and the county where the juvenile is presently residing.
. . . .
(6) Facts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.
N.C. Gen. Stat. § 7B-1104 (2005).
Further, N.C. Gen. Stat. § 50A-209 requires each party in its first pleading or in an attached affidavit to give information as to the child's present address or whereabouts and where the child has resided within the previous five years. N.C. Gen. Stat. § 50A- 209(a) (2005). This information allows the court to determine whether or not it has jurisdiction.
Respondents claim that the petition was insufficient in that it failed to state specific facts as to where the juvenile was presently residing; that it failed to state facts sufficient to warrant a determination that grounds for terminating parental rights existed; and that there was no affidavit of the status of the child attached to the petition.
This Court has determined that while it is the better practice to comply with the statute and include all listed items in the petition, the requirements of the statute may be met as long as the information set forth in the statute is made part of the record before the trial court. See In re T.B., 177 N.C. App. 790, 793, 629 S.E.2d 895, 898 (2006). Respondents contend the trial court was without jurisdiction as the petition failed to state the county where N.D.M. was residing at the time of the filing of the petition. While the petition did not state specifically that N.D.M. was located in Raleigh, North Carolina, the petition did state that N.D.M. was in the physical and legal custody of Dare County DSS and attached to the petition and incorporated therein were prior orders which stated that N.D.M. was currently residing in Wake County foster care due to the availability of more resources for his special needs.
Respondents also contend the trial court lacked subject matter jurisdiction due to the failure to sufficiently state facts in the petition warranting a termination of parental rights. While N.C. Gen. Stat. § 7B-1104(6) does require a recitation of facts sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist[,] the factual allegations of a petition to terminate parental rights need not be exhaustive or extensive, but they must put a party on notice as to what acts, omissions, or conditions are at issue. N.C. Gen. Stat. § 7B-1104(6); In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002).
In the instant case, the petition stated the grounds on which termination was sought and included all prior orders entered in the case with specific findings of fact regarding the parents' actions and the location of N.D.M. Prior case law has set forth that the statutory requirements to allege facts sufficient to warrant a determination that one or more of the grounds for terminatingparental rights exist may be met by attached and incorporated orders. N.C. Gen. Stat. § 7B-1104(6); In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160 (attachment and incorporation of custody award stated sufficient facts to comply with the former N.C. Gen. Stat. § 7A-289.25(6)), appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992). The corresponding assignments of error are overruled.
Respondent-mother avers that the trial court erred in finding and concluding that N.D.M. was a neglected juvenile; that N.D.M. was willfully left in foster care for more than 12 months without a showing of reasonable progress in correcting the conditions which led to the removal of the child; and that she willfully failed to pay a reasonable portion of the cost of care where such findings and conclusions were not supported by competent evidence.
Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists. In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child. Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. Id. The standard for appellate review is whether thetrial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings of fact support its conclusions of law. In re C.C., J.C., 173 N.C. App. 375, 380, 618 S.E.2d 813, 817 (2005).
Parental rights may be terminated under section 7B-1111(a)(3) of the North Carolina General Statutes when [t]he juvenile has been placed in the custody of a county department of social services . . . for a continuous period of six months next preceding the filing of the petition or motion, and the parent 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).
The court made the following findings of fact to which respondent-mother excepts:
55. The Dare County Department of Social Services has paid the following amounts for the foster care of [N.D.M.]: 2003 - January $950.00; February $415.00; March $750.00; April $500.00; May $650.00; June $950.00; July $315.00; August $1,265.00; September $650.00; October $950.00; November $950.00; December $950.00. 2004 - January $650.00; February $850.00; March $850.00; April $850.00; May $850.00; June $850.00; July $950.00; August $950.00; September $465.00; October $650.00; November $650.00; December $650.00[;] 2005 - January $790.00; February $790.00; March $850.00; April $850.00; May $1,040.00; June $1,040.00; July $850.00; August $850.00; September $650.00; October $650.00; November $650.00; December $650.00.
56. Etoyi [M.], though continuously employed and under Court Order to pay $50.00 per month for the support of [N.D.M.] has paid no support whatsoever. Ms. [M.] was employed by the Ramada Inn, earned $8.00 per hour andworked 40 hours per week for approximately seven years until June of 2005 when she went to work for Applebees.
The trial court took judicial notice of all prior orders and found that the findings of fact contained therein were supported by clear, cogent, and convincing evidence. A previous order of the court found as fact that respondent-mother was ordered by the court to pay child support in the amount of $50.00 and that respondent- mother had failed to make any payments of child support. Respondent-mother further acknowledged that she had never paid any child support at the hearing to terminate her parental rights. The evidence clearly supports the findings which in turn support the conclusion that respondent-mother failed to pay a reasonable portion of the cost of child care. This assignment of error is therefore overruled.
Because grounds for termination have been established under N.C. Gen. Stat. § 7B-1111(a)(3), respondent-mother's remaining arguments under sections 7B-1111(a)(1) and 7B-1111(a)(2) need not be addressed. See In re Bradshaw, 160 N.C. App. 677, 682-83, 587 S.E.2d 83, 87 (2003).
Respondent-father has not appealed the findings and conclusions set forth in the order on appeal; therefore those findings and conclusions are binding on appeal with respect to respondent-father.
Accordingly, the order of the trial court is affirmed.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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