IN THE MATTER OF:
C.K.C.B. Rutherford County
No. 01 JT 177
King Law Offices, PLLC, by Brian W. King, for Petitioner-
Appellee Rutherford County Department of Social Services.
Kennedy Covington Lobdell & Hickman, L.L.P., by Seton B.
Hunt, for Guardian ad Litem.
Don Willey for Respondent-Appellant.
STEPHENS, Judge.
Respondent-Mother appeals from order terminating her parental
rights to her minor child, C.K.C.B. For the following reasons, we
affirm.
The Rutherford County Department of Social Services (“DSS”)
took nonsecure custody of C.K.C.B. on or about 21 November 2001 as
the result of Respondent's history of substance abuse and resulting
improper care of the minor child. Custody of C.K.C.B. was ordered
returned to Respondent on 24 September 2002. DSS again took
nonsecure custody of C.K.C.B. on or about 27 May 2003 as a result
of Respondent's leaving the child with an individual substantiallyimpaired by alcohol. DSS later dismissed this matter, and C.K.C.B.
was returned to Respondent.
DSS again took nonsecure custody of C.K.C.B. on or about 12
May 2005 based upon Respondent's inability to care for the minor
child because of her substance abuse. By order filed 7 December
2005, the trial court adjudicated C.K.C.B. a neglected juvenile.
The trial court found that Respondent admitted the allegations
regarding neglect set forth in the petition filed by DSS and
stipulated that C.K.C.B. was a neglected juvenile.
In June and July of 2005, DSS and Respondent entered into a
case plan, which included random drug screens, completion of
parenting classes, and completion of recommended treatment. On 26
June 2006, DSS filed a motion in the cause to terminate the
parental rights of Respondent under N.C. Gen. Stat. § 7B-1111(a)(2)
on the ground that she willfully left C.K.C.B. in foster care for
more than twelve months without showing reasonable progress toward
correcting the conditions that led to the removal of the child. On
9 November 2006, DSS filed an amended motion in the cause to change
the name of the Social Services Director. Respondent answered on
15 November 2006.
The trial court held a hearing on the motion to terminate on
23 January 2007 and 7 March 2007. The trial court found that
C.K.C.B. first came under the jurisdiction of the court in 2001;
that DSS dismissed a matter involving Respondent's care and
supervision of C.K.C.B. in 2003; and that C.K.C.B. has been in
foster care since DSS took nonsecure custody of the child in 2005.The trial court also found that Respondent tested positive for
cocaine and oxazepam in October of 2005; refused to undergo drug
tests in January, March, and May of 2006; and did not make an
appointment with her therapist until January of 2006. By order
entered 20 March 2007, the trial court terminated Respondent's
parental rights to C.K.C.B. pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2).
On appeal, Respondent contends the trial court lacked subject
matter jurisdiction to terminate her parental rights because DSS
failed to follow the service requirements of N.C. Gen. Stat. §§
7B-1106.1 and 7B-1102. Section 7B-1106.1 states:
(a) Upon the filing of a motion pursuant to
G.S. 7B-1102, the movant shall prepare a
notice directed to . . .
(1) The parents of the juvenile.
N.C. Gen. Stat. § 7B-1106.1 (2005). In turn, Section 7B-1102
provides:
(b) A motion pursuant to subsection (a) of
this section [to terminate parental rights]
and the notice required by G.S. 7B-1106.1
shall be served in accordance with G.S. 1A-1,
Rule 5(b), except:
(1) Service must be in accordance with
G.S. 1A-1, Rule 4, if . . .
. . . .
c. Two years has elapsed since the
date of the original action.
N.C. Gen. Stat. § 7B-1102 (2005).
Respondent asserts that the 2006 motion to terminate was filed
more than two years after the original action, thus requiring
service pursuant to the procedures set out in Rule 4. Respondentcontends the November 2001 action, when DSS filed its first neglect
petition and took nonsecure custody of C.K.C.B., is the “original
action” for purposes of N.C. Gen. Stat. § 7B-1102. We disagree.
In In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), the
mother argued that a 2003 motion to terminate her parental rights
was filed more than two years after the 1999 “original action” when
P.L.P. first came under the jurisdiction of the juvenile court and,
therefore, service under Rule 4 was required. This Court noted
that the trial court ordered P.L.P. returned to the mother's
custody in December 2000, and that DSS commenced another action
under N.C. Gen. Stat. § 7B-405 in May of 2002 when DSS filed
another neglect petition. This Court concluded that May 2002 was
the date of the “original action” and thus service of the 2003
motion to terminate was adequate under Rule 5. Id.
Similarly, here DSS commenced an action in November 2001, but
the trial court ordered custody of C.K.C.B. to be returned to
Respondent in 2002. Another action was commenced and dismissed in
2003. DSS commenced this third action in May of 2005. Thus, the
“original action” in this termination proceeding was commenced in
May of 2005 when DSS filed a neglect petition and took nonsecure
custody of C.K.C.B. Although the 2006 motion to terminate was
filed more than two years after the first action in November 2001,
it was filed only thirteen months after the “original action” in
this case. As such, the service required by N.C. Gen. Stat. §
7B-1102 pursuant to Rule 4 was not triggered and service under Rule
5 was proper. Respondent's assignment of error is overruled. We note that the order entered 20 March 2007 from which
Respondent appeals bears an incorrect file number. We remand to
the trial court with instructions to change the incorrect file
number “05 J 177 (T)” to the correct file number “01 JT 177.”
AFFIRMED and REMANDED with instructions.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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