Appeal by respondents from order entered 19 March 2007 by
Judge Robert M. Brady in Burke County District Court. Heard in the
Court of Appeals 4 September 2007.
Stephen M. Schoeberle, for petitioner-appellee, Burke County
Department of Social Services,
Mary R. McKay, attorney-advocate, for guardian ad litem
appellee.
Michael E. Casterline, for respondent-appellant mother.
Janna D. Allison, for respondent-appellant father.
CALABRIA, Judge.
S.H. (“respondent-mother”) and C.H. (“respondent-father”)
(collectively, the “respondents”) are the legal parents of R.C.H.
and B.R.H. (hereinafter, “the minor children” or “Reba” and
“Betty”),
(See footnote 1)
ages eleven and eight at the time the petitions were
filed on 1 December 2004. The minor children were placed in
nonsecure custody with the Burke County Department of SocialServices (“DSS”). On 15 March 2005, the court adjudicated the
minor children as neglected and continued custody with DSS. On 4
May 2006, DSS filed a motion to terminate the respondents' parental
rights. After a hearing on 12 March 2007, the trial court found
grounds to terminate respondents' parental rights. The trial court
found that respondents (1) neglected the children and there was a
substantial likelihood that the neglect would be repeated if the
children were returned to respondents' custody, and (2) willfully
left the children in foster care for more than twelve months
without showing to the satisfaction of the court that reasonable
progress under the circumstances had been made in correcting the
conditions which led to the removal of the children. Respondents
filed timely notices of appeal from this order.
Mother's Appeal
Respondent-mother contends that the court lacked subject
matter jurisdiction because the motion to terminate parental rights
did not allege specific facts sufficient to support termination of
her parental rights as required by N.C. Gen. Stat. § 7B-1104(6)
(2005). We disagree.
Subject matter jurisdiction “refers to the power of the court
to deal with the kind of action in question,” and “is conferred
upon the courts by either the North Carolina Constitution or by
statute.”
Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d
673, 675 (1987). By statute, the district court is vested with
exclusive original jurisdiction over proceedings to terminate
parental rights. N.C. Gen. Stat. § 7B-200(a)(4) (2005). Morespecifically, N.C. Gen. Stat. § 7B-1101 (2005) provides that the
district court “shall have exclusive original jurisdiction to hear
and determine any petition or motion relating to termination of
parental rights to any juvenile who resides in, is found in, or is
in the legal or actual custody of a county department of social
services or licensed child-placing agency in the district at the
time of filing of the petition or motion.” The issue of whether
the court has subject matter jurisdiction may be raised for the
first time on appeal.
In re T.B., 177 N.C. App. 790, 791, 629
S.E.2d 895, 896-97 (2006). This Court requires
a petition to state
facts sufficient to warrant a determination that one or more
grounds exist for terminating parental rights as required by N.C.
Gen. Stat. § 7B-1104(6). A challenge to a petition must be made by
a Rule 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted.
See
In re H.L.A.D.,
N.C. App.
___,
, 646 S.E.2d 425, 434
(2007)
. A Rule 12(b)(6) motion may
not be raised for the first time on appeal.
Id.
Respondent does not contend the court lacked the power “to
deal with the kind of action in question” or that the court lacked
jurisdiction over the juveniles. Her argument focuses solely upon
the failure of the petition to allege particularized facts to
support the allegations (1) respondents have neglected the children
by failing to protect them from repeated sexual abuse, and (2)
respondents have willfully left the minor children in foster care
for more than 12 months without showing satisfactory progress in
correcting the conditions which led to the removal of the minorchildren in that respondents have failed to demonstrate an
understanding of, or ability to protect the children from, sexual
abuse. Respondent-mother could have challenged the petition by
making a Rule 12(b)(6) motion prior to the termination hearing.
Respondent-mother failed to do so. Since the motion to dismiss for
failure to state a claim upon which relief can be granted was not
made in the court below, it is not properly before us and this
assignment of error is overruled.
Father's Appeal
Respondent-father assigns error to the court's conclusion of
law that grounds exist to terminate parental rights pursuant to
N.C. Gen. Stat. § 7B-1111(a)(1) and N.C. Gen. Stat. § 7B-1111(a)(2)
in that (1) they have neglected the minor children and there is a
substantial likelihood that such neglect would be repeated if the
children were to be returned to them and, (2) they have willfully
left the children in foster care for more than 12 months without
showing to the satisfaction of the court that reasonable progress
has been made in correcting the conditions which led to the removal
of the children.
There are two phases in hearings to terminate parental rights:
(1) the adjudication phase, governed by N.C. Gen. Stat. § 7B-1109
(2005); and (2) the disposition phase, governed by N.C. Gen. Stat.
§ 7B-1110 (2005).
In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d
144, 146 (2003).
Findings made by the trial court in the
adjudicatory phase must be supported by clear, cogent and
convincing evidence, and the findings must support a conclusionthat at least one statutory ground for termination of parental
rights exists.
In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d
403, 406 (2003).
The standard of review on appeal is 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 of fact.
In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d
838, 840 (2000),
disc. review denied and appeal dismissed, 353 N.C.
374, 547 S.E.2d 9 (2001). Findings of fact supported by competent
evidence are binding on appeal even though there may be evidence to
the contrary.
In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d
317, 320 (1988). A trial court only needs to find one statutory
ground for termination before proceeding to the dispositional phase
of the hearing. N.C. Gen. Stat. § 7B-1111(a) (2005);
Shermer, 156
N.C. App. at 285, 576 S.E.2d at 406 (2003). In the dispositional
phase, the trial court determines whether termination of parental
rights is in the best interests of the child.
In re Blackburn, 142
N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
Parental rights may be terminated if the parent has neglected
the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1) (2005). A neglected
juvenile is defined as one “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).
“In determining whether a juvenile is a neglected juvenile, it is
relevant whether that juvenile lives in a home . . . where another
juvenile has been subjected to abuse or neglect by an adult whoregularly lives in the home.”
Id. Termination of parental rights
on the ground of neglect must be based on evidence showing neglect
at the time of the termination proceeding.
In re Ballard, 311 N.C.
708, 716, 319 S.E.2d 227, 232 (1984). When a child has not been
in the custody of the parent for a significant period of time prior
to the termination hearing, the requisite finding of neglect at the
time of the hearing may be based upon a showing of a “history of
neglect by the parent and the probability of a repetition of
neglect.”
Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407.
Respondent-father argues that the conditions have changed.
Specifically, he asserts that the perpetrators of sexual abuse upon
the juveniles have relocated and there is not a substantial
likelihood that neglect would be repeated if the minor children
were returned to the home. This argument is not persuasive.
Respondent-father acknowledges that the godfather of the
children continues to reside in respondents' home. The court's
findings of fact show that respondents allowed the girls to sleep
in a bedroom with the godfather with no supervision by respondents.
The godfather took the minor children, with respondents'
acquiescence, to visit another family member, the perpetrator of
sexual abuse upon the minor children who was adjudicated
delinquent, and committed to the Alexander Children's Home. On
another occasion, the godfather took a third female child to visit
the perpetrator and failed to disclose to the third female why the
perpetrator was adjudicated delinquent and committed to the home.
The findings of fact also show that although respondents wereaware that both girls had been sexually assaulted in 2003 by a
cousin who was residing in the respondents' home, respondents
continued to allow various related and unrelated males to reside in
their home. After Reba notified respondent-mother that an adult
male cousin was sexually abusing her, respondent-mother observed
the adult male cousin lying on a couch with Reba but respondent-
mother failed to ask the cousin to leave. Both parents believe
that Reba is a “pathological liar” and they are not inclined to
believe anything she says; thus, if she is returned to their home,
it is unlikely they will believe Reba if she reported any sexual
abuse.
The court further found that the respondent-father is also an
alleged sex offender, having allegedly sexually abused a child
multiple times when she was eight to fourteen years old. The
victim told respondent-mother about the abuse, and she testified in
court on 9 March 2006 about the abuse. Respondent-father has not
sought specific evaluation or treatment for sex offenders and
respondent-mother has not encouraged him to undergo such
evaluation.
Finally, the court found, in pertinent part, that respondents
allowed the minor children to reside in a culture of abuse.
Although the parents attended non-offending sexual abuse classes
and parenting classes, they have no insight regarding the nature of
the abuse that the minor children have suffered and the dynamics of
the delayed disclosure of sexual abuse. More importantly, they are
not in a position to protect the minor children from further sexualabuse.
Although respondent-father listed assignments of error in the
record on appeal challenging findings of fact, he did not argue the
assignments of error listed in his brief. Therefore, he is deemed
to have abandoned any challenge to these findings of fact.
In re
B.D., 174 N.C. App. 234, 239, 620 S.E.2d 913, 916 (2005),
disc.
review denied, 360 N.C. 289, 628 S.E.2d 245 (2006). “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., 178 N.C. App. 295, 298, 631
S.E.2d 61, 64 (2006) (quoting
Koufman v. Koufman, 330 N.C. 93, 97,
408 S.E.2d 729, 731 (1991)).
We hold the trial court's findings of fact support the court's
conclusion of law that the children are neglected and that there
is a substantial likelihood the neglect will be repeated if the
children are returned to respondents' home.
Although respondent-father challenged another ground found by
the trial court to support the conclusion to terminate, we need not
review the other ground since we affirm the trial court's conclusion
as to the existence of one ground for the termination of his
parental rights.
See In re Davis, 116 N.C. App. 409, 413, 448
S.E.2d 303, 305,
disc. review denied, 338 N.C. 516, 452 S.E.2d 808
(1994).
Conclusion
The order terminating respondents' parental rights is affirmed.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
Footnote: 1