Opinion
No. COA09-1169.
Filed February 16, 2010.
Chatham County No. 07JT1.
Appeal by respondent from order entered 23 June 2009 by Judge Page Vernon in Chatham County District Court. Heard in the Court of Appeals 1 February 2010.
Northern Blue, L.L.P., by Carol L. Holcomb and Samantha H. Cabe, for petitioner-appellee Chatham County Department of Social Services. Pamela Newell Williams for guardian ad litem. Robert W. Ewing for respondent-appellant mother.
Respondent mother appeals from the trial court's order terminating her parental rights to the minor child, A.M., born in 1999, on the grounds of neglect, dependency, and wilfully leaving the juvenile in foster care for more than twelve months without making reasonable progress to correct the conditions which led to the child's removal from the home. Respondent's sole argument on appeal is that the trial court lacked jurisdiction to enter the termination order. After careful consideration, we affirm the order of the trial court.
The facts may be summarized from the record as follows: On 3 January 2007, Chatham County Department of Social Services (DSS) filed a juvenile petition alleging neglect and dependency of the minor child. A juvenile summons was issued on 4 January 2007, and respondent was personally served with the juvenile summons on 6 January 2007.
The allegations in the juvenile petition stated that DSS has been providing case management services for this family since December 2005. In February 2006, the minor child was placed in a kinship care arrangement with her maternal grandmother, Deborah Stewart. In March 2006, respondent graduated from a rehabilitation program and returned to live with Ms. Stewart, her mother. After November 2006, respondent repeatedly relapsed into alcohol use and would arrive home drunk. A.M. stated that she was afraid of respondent when she was drinking. DSS paid for respondent to move to a halfway house; respondent stayed only one week before leaving. Respondent also continued a relationship with her boyfriend, Leroy Gilmore, despite domestic violence incidents. The petition further alleged that A.M. witnessed her mother and father having sexual intercourse both in her room and outside the house. A.M. also witnessed her mother drinking in front of "crack houses," causing A.M. much anxiety and concern that her mother will never stop drinking. Respondent refused to stop drinking or to move out of the home. She told a DSS social worker that she "will drink if she wants to."
At a Child Planning Conference held on 9 January 2007, respondent agreed to the following case plan objectives: (1) attend family therapy sessions twice a month; (2) look for independent housing; (3) continue working with her vocational rehabilitation counselor; (4) attend NA meetings; and (5) continue with medical treatment and medication as prescribed by her physician.
DSS sought and was granted non-secure custody on 15 March 2007 by order of the trial court, but A.M. remained in placement with Ms. Stewart. The order directed that if respondent returned to the home, A.M. would be placed in foster care. Respondent admitted to using crack cocaine and to going on a drinking binge on 7 April 2007, which resulted in her being arrested for trespassing, intoxication, and disruptive behavior.
A.M. was adjudicated dependent on 10 May 2007; the allegation of neglect was left "pending." The trial court approved of the continued placement of the juvenile with Ms. Stewart, but ordered that respondent was not to reside with Ms. Stewart.
After a review hearing held on 28 June 2007, the trial court found that respondent "has been clean and sober for 60 days" and that she had no other housing options besides her mother's home. The trial court determined that respondent should be permitted to live with Ms. Stewart and the minor child, "so long as she complies with her case plan tasks."
The trial court reviewed the matter again on 9 August 2007. Respondent was making progress on her case plan and was residing in the home with Ms. Stewart and the minor child. However, on 23 August 2007, respondent was arrested due to a physical altercation that occurred in the home with A.M.'s brother. Respondent continued to visit the home, and, at some point, DSS discovered bruises on A.M. Respondent admitted to using a belt to discipline A.M. and did not acknowledge that such discipline was inappropriate. On 19 September 2007, A.M. was removed from the home and placed in foster care.
After a review hearing held on 8 November 2007, the trial court ordered continued supervised visits between the minor child and respondent and Ms. Stewart. The court authorized DSS to consider placing the minor child with her maternal aunt.
On 12 November 2007, A.M. was placed with her maternal aunt and uncle. In January 2008, A.M. was moved to another foster home due to alleged drug use in the maternal aunt's home, which may have precipitated a serious asthma attack by A.M.
A permanency planning review hearing was held on 14 February 2008. The trial court determined that it would not be possible for the minor child to be returned to respondent's care within six months due to respondent's insufficient progress on her case plan, her continued struggle with anger management issues, and her insufficient improvement in parenting skills. The court also found that respondent was cited for driving while intoxicated in January 2008 and that she continued to abuse alcohol. Further, the court found that respondent had not secured stable employment or independent housing. The trial court approved a permanent plan of adoption with a concurrent plan of guardianship and concluded that termination of parental rights would be necessary to achieve the permanent plan. DSS was relieved of reunification efforts and ordered to file a petition to terminate parental rights within sixty days.
On 11 April 2008, DSS filed a motion in the cause to terminate respondent's parental rights. The motion alleged as grounds for termination: (1) neglect, per N.C. Gen. Stat. § 7B-1111(a)(1); (2) wilfully leaving the juvenile in foster care or placement outside the home for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made to correct the conditions which led to the removal of the child from the home, per N.C. Gen. Stat. § 7B-1111(a)(2); (3) wilful failure to pay a reasonable portion of the cost of care for the juvenile for a period of six months prior to the filing of the petition, per N.C. Gen. Stat. § 7B-1111(a)(3); and (4) incapability of providing for the proper care and supervision of the juvenile such that the juvenile is a dependent juvenile, per N.C. Gen. Stat. § 7B-1111(a)(6). The motion was accompanied by a certificate of service showing that the motion was served on respondent's attorney through the United States mail.
On 12 May 2008, DSS filed a motion for visitation and requested that the motion to terminate be held in abeyance. DSS stated that respondent was making progress in a drug treatment program and that holding the motion in abeyance would allow her more time to work on her recovery. DSS requested that visitation between respondent and the juvenile be modified. Thereafter, DSS YXFiled a report on 29 May 2008 and asked that visitation be unsupervised at the discretion of DSS.
In advance of the next permanency planning review hearing, both DSS and the guardian ad litem filed reports requesting that the permanent plan be changed. DSS asked that the plan be changed back to reunification based on respondent's progress in the previous six months and that the termination matter "be placed on hold." With regard to visitation, DSS sought continued unsupervised visits, transitioning to overnight visits, and the discretion to determine whether respondent's home could become a trial placement for the minor child. The guardian ad litem requested that the plan be changed to reunification with a concurrent plan of permanent relative guardianship with "M.W.," but that reunification should be contingent upon respondent's continued sobriety and compliance with other aspects of her case plan. The guardian ad litem also asked that the petition for termination of parental rights be set aside.
A permanency planning review hearing was held on 14 August 2008. The trial court found that respondent was progressing in recovery as well as participating in Family Treatment Court. It also determined that "[i]t is possible for the juvenile to be returned home in the immediate future or within the next six (6) months." Based on respondent's progress, the trial court ordered that the permanent plan be changed back to reunification and ordered that proceedings to terminate respondent's parental rights "shall be held in abeyance." The court also adopted the guardian ad litem's recommendation for a concurrent plan of "permanent relative guardianship." Continued reunification efforts were ordered, contingent upon respondent's sobriety, progress with treatment and therapy, and stable employment. The trial court allowed visitation to continue unsupervised, including overnight visits with respondent and Ms. Stewart.
Sometime in August 2008, respondent relapsed into using alcohol and drugs. She was expelled from the family treatment program in August for relapsing, for being non-compliant, and for forging her AA sign-in sheets. In September 2008, she totaled her car in an accident and was charged with driving while impaired. Further, respondent was not forthcoming with DSS about who was living in the home. Based on these incidents and concerns, DSS decided to proceed with the termination proceedings.
On 4 December 2008, DSS noticed for hearing the termination of parental rights matter, to be heard on 22 January 2009. The certificate of service indicates that the notice was served by mail on respondent's attorney. In addition, a notice of hearing signed by a deputy clerk of superior court, shows that the notice was personally served on respondent on 15 January 2009.
It appears that the matter was continued, and, on 12 March 2009, DSS filed a new notice of hearing for a termination of parental rights hearing to be held on 26 March 2009. The notice was served on respondent's attorney by mail. A notice of hearing signed by a deputy clerk of superior court was served on respondent by delivering a copy at respondent's dwelling house or usual place of abode to respondent's brother on 24 March 2009.
Thereafter, the matter came on for hearing on 26 March and 14 April 2009. On the first day of the hearing, 26 March 2009, respondent filed a motion to dismiss the motion to terminate parental rights on the basis that a permanent plan of reunification and/or placement with a relative remained in place. DSS objected to the motion being heard when there was insufficient notice. The trial court heard arguments from the attorneys but declined to rule on the motion at that point.
After testimony and evidence was presented by DSS on adjudication, respondent orally argued her motion to dismiss once again by arguing that the court had no authority to proceed where the permanent plan was still reunification. The trial court heard arguments from both sides and concluded that the motion for termination was properly served and filed and that the parties were properly notified. Therefore, the trial court determined, it had both subject matter and personal jurisdiction to hear the matter and denied respondent's motion to dismiss.
After hearing all of the evidence on adjudication, the trial court found that DSS presented clear, cogent, and convincing evidence to support grounds for termination of respondent's parental rights on the bases of neglect, failure to make reasonable progress, and dependency. Upon hearing evidence on disposition, the trial court determined that termination was in the best interests of the child and ordered that respondent's parental rights be terminated. From the order entered, respondent appeals.
Termination of parental rights cases involves two separate stages. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001) (citation omitted). In the adjudicatory stage, the burden is on the petitioner to prove that at least one ground for termination exists by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B-1109 (2009); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. Findings of fact not challenged on appeal are deemed supported by competent evidence and are therefore binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991); see also In re S.N.H. L.J.H., 177 N.C. App. 82, 83, 627 S.E.2d 510, 512 (2006). Once the trial court has determined that a ground for termination exists, the court moves on to the disposition stage, where it must determine whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2009). The decision of the trial court regarding best interests is within its discretion and will not be overturned absent an abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). Abuse of discretion occurs when the trial court's challenged actions are "manifestly unsupported by reason." In re R.B.B., 187 N.C. App. 639, 648, 654 S.E.2d 514, 521 (2007) (quotations and citation omitted).
Respondent challenges the trial court's authority and jurisdiction to hear the termination matter where the permanent plan had been changed back to reunification and where the trial court had held the termination proceedings "in abeyance." We address each major point of respondent's arguments in turn.
We note that respondent does not challenge any of the trial court's findings of fact, and they are therefore binding on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Respondent does not challenge any of the conclusions of law with regard to grounds for termination, nor does she challenge the best interest determination. Respondent assigned error to and argues only one conclusion of law, specifically: "This Court has jurisdiction, both personal and subject matter, and all parties have been properly served and are properly before the Court."
We start with respondent's general assertion that the trial court lacked jurisdiction to hear the termination action. Since DSS initiated termination of respondent's parental rights by filing a motion in the cause in the underlying juvenile dependency case, we begin by looking at the trial court's jurisdiction over the juvenile matter. Jurisdiction over an abuse, neglect, or dependency case is governed by section 7B-200 of the Juvenile Code. N.C. Gen. Stat. § 7B-200 (2009). An action is commenced by the filing in the trial court of a juvenile petition alleging abuse, neglect, or dependency. N.C. Gen. Stat. § 7B-405 (2009). Jurisdiction is retained by the trial court "until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first." N.C. Gen. Stat. § 7B-201 (2009).
Here, DSS filed a juvenile petition on 3 January 2007. The record reflects, and respondent does not indicate otherwise, that the juvenile petition was properly filed and served on respondent. We find that the trial court had jurisdiction over the underlying abuse and neglect juvenile matter.
With regard to proceedings to terminate parental rights, "[t]he 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." N.C. Gen. Stat. § 7B-1101 (2009). In this case, DSS opted to file a motion in the existing juvenile case to terminate parental rights, as authorized by section 7B-1102. The record reflects, and respondent does not dispute, that the motion was properly filed and that she was properly served with the motion.
As part of her argument that the trial court did not have authority to preside over the termination hearing, respondent contends that DSS did not have standing to proceed after the permanent plan was changed to reunification and the termination matter was held in "abeyance." She concedes that DSS had standing to file a motion to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1103 at the time it was filed on 11 April 2008. She argues, however, that once the permanent plan was changed to reunification, and after the trial court ordered that the termination matter be held in abeyance, DSS had no authority to proceed to termination. We are not persuaded by these arguments.
It is true that "standing is a threshold issue that must be addressed, and found to exist, before the merits of [the] case are judicially resolved." In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004) (quotations and citation omitted). "Standing is a necessary prerequisite to the court's proper exercise of subject matter jurisdiction." Creek Pointe Homeowner's Ass'n v. Happ, 146 N.C. App. 159, 164, 552 S.E.2d 220, 225 (2001) (citation omitted). Further, "[s]tanding is that aspect of justiciability focusing on the party seeking a forum rather than on the issue he wants adjudicated." Id. at 165, 552 S.E.2d at 225 (quotations and citation omitted). The Juvenile Code prescribes who has standing to file a motion or petition to terminate parental rights. Section 7B-1103 provides in pertinent part:
(a) A petition or motion to terminate parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following:
. . .
(3) Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction.
N.C. Gen. Stat. § 7B-1103(a)(3) (2009). Here, there is no dispute that DSS had standing to file its motion to terminate respondent's parental rights as the county department of social services which had been given custody of the juvenile by a court of competent jurisdiction in a non-secure custody order entered 15 March 2007. Since standing is dependent upon the status of the party seeking review of a justiciable controversy, and not on the particular issue sought to be resolved, DSS was not somehow deprived of its standing due to an order of the trial court changing the permanent plan. Respondent's arguments regarding standing have no merit.
Since DSS had standing to file its motion to terminate parental rights, and the motion was properly served on respondent, we conclude that the trial court had jurisdiction over the termination of parental rights matter.
In her next argument, respondent contends that the trial court violated section 7B-907 when it allowed DSS to proceed to the termination hearing while the permanent plan remained reunification and after holding the termination action in "abeyance." Essentially, respondent argues that the trial court was required to first change the permanent plan to sanction termination of parental rights before proceeding with the termination hearing. Respondent's argument is not persuasive.
The purpose of a permanency planning review hearing is "to develop a plan to achieve a safe, permanent home for the juvenile within a reasonable period of time." N.C. Gen. Stat. § 7B-907(a) (2009). The Juvenile Code provides that the first permanency planning hearing must take place "within 12 months of after the date of the initial order removing custody." Here, DSS was granted custody in a non-secure custody order on 22 March 2007. The record indicates that the first permanency planning hearing was held on 14 February 2008, within the time frame specified by the statutes. Once the first permanency planning hearing is held, subsequent hearings must be held at least every six months "to review the progress made in finalizing the permanent plan for the juvenile, or if necessary, to make a new permanent plan for the juvenile." N.C. Gen. Stat. § 7B-907(a). The statutes thus authorize trial courts to change the permanent plan as necessary in the course of reviewing the case, as the trial court did in the instant case.
With regard to the interplay between the permanency planning statute and the termination statutes, subsections 7B-907(d) and (e) address when a director of a county department of social services must initiate proceedings to terminate parental rights. However, the statute does not specify that a particular permanent plan must be in place before a department of social services moves to termination proceedings. Nor do the termination of parental rights statutes, contained in Article 11 of the Juvenile Code, require a particular permanent plan to be in place before a petition or motion to terminate parental rights may be filed. N.C. Gen. Stat. §§ 7B-1100-1112 (2009). Section 7B-1104 requires a motion to terminate parental rights to contain "[f]acts 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(6) (2009). No further substantive facts about the case are required beyond information such as the name and address of various parties and a statement that the motion has not been filed to circumvent the Uniform Child-Custody Jurisdiction and Enforcement Act. N.C. Gen. Stat. § 7B-1104.
We note that, although a motion in the cause was filed here, the Juvenile Code provides that termination of parental rights may be initiated by a petition, which essentially starts a new legal action. See N.C. Gen. Stat. § 7B-1102 (2009). Thus, an action to terminate a person's parental rights may commence even without an existing underlying abuse, neglect, or dependency case. This means that termination of parental rights may proceed without any permanent plan in place, whether it is reunification, adoption, or something else. To require a particular permanent plan to be in place before a trial court may hear a properly filed, alleged, and served petition to terminate parental rights would flout the legislature's intent to provide two different avenues to pursue termination, by both a motion in an ongoing juvenile case and by a petition in a new action. We decline to read a requirement into the Juvenile Code that is not expressly stated there. Based on the requirements and language of the Juvenile Code, we do not find that the trial court was required to approve a permanent plan authorizing termination of respondent's parental rights before proceeding to the termination hearing.
Respondent relies on this Court's ruling in In re P.P. M.P., 183 N.C. App. 423, 645 S.E.2d 398 (2007), to bolster her argument that the trial court was first required to adopt a permanent plan of termination before proceeding with the actual termination matter. In that case, this Court reviewed an order terminating parental rights that was entered on remand after this Court previously vacated a permanency planning order. Id. at 423, 645 S.E.2d at 398. The trial court had entered a permanency planning review order that allowed DSS to cease reunification efforts and changed the permanent plan from reunification to adoption. In re R.P., P.P., and M.P., 167 N.C. App. 654, 605 S.E.2d 743 (2004) (unpublished). In that holding, this Court vacated the permanency planning order on the basis that the findings of fact did not support a conclusion that DSS had made reasonable efforts to prevent the need for placement of the minor children and remanded to the trial court for entry of findings of fact and conclusions of law on that very issue. Id. On remand, the permanent plan thus reverted to reunification, which was the plan just prior to the permanency planning order vacated by this Court. In re P.P., 183 N.C. App. at 427, 645 S.E.2d at 401. Instead of holding a new permanency planning review hearing, however, the department of social services filed new petitions for termination of parental rights, and the trial court proceeded directly to a termination of parental rights hearing. Id. at 424-25, 645 S.E.2d at 399. The respondent in that case appealed from the trial court's order terminating her parental rights and argued that the trial court erred by failing to enter a new permanency planning order in accordance with the mandate of this Court. Id.
This Court agreed with the respondent in In re P.P. and concluded that
the trial court erred in proceeding with the termination of parental rights hearing before complying with this Court's mandate regarding the permanency planning order. Indeed, we also note that the trial court's failure to comply with the mandate in this case has resulted in a procedural anomaly. This Court's prior opinion vacated the trial court's permanency planning order — the order that had changed the permanent plan from reunification to termination of parental rights. At that point, the permanency planning order was "void and of no effect." As a result, the trial court erred when it proceeded to a TPR hearing while the permanent plan for the children was still reunification.
Id. at 427, 645 S.E.2d at 400-01 (internal citations omitted). Respondent contends that the language cited above, particularly the last sentence, supports her argument that termination of parental rights may not proceed while the permanent plan remains reunification. We disagree with respondent's analysis as it applies to this case.
A different procedural posture was involved in In re P.P. than exists in the case at bar. The matter had been remanded with specific instructions for the trial court to make findings of fact and conclusions of law pursuant to N.C. Gen. Stat. § 7B-507(b). In re R.P., P.P., and M.P., 167 N.C. App. 654, 605 S.E.2d 743 (2004) (unpublished). This it failed to do. Further, this Court expressly declined to address whether the trial court's decision to change the permanent plan from reunification to adoption was error. Id. New petitions for termination were filed after the matter was remanded, but no new permanency planning hearing was held. The trial court proceeded to termination in spite of this Court's mandate to hold a new permanency planning hearing, thereby rendering the trial court's actions in the termination matter invalid.
The instant case may be easily distinguished. We do not have a prior opinion of this Court vacating an order of the trial court, nor a remand to the trial court, nor a trial court's failure to correct an error as ordered by this Court. Here, the trial court proceeded on a properly filed motion to terminate parental rights, it had jurisdiction over the matter, and there was no intervening order of this Court that required the trial court to take any additional action with regard to the permanent plan.
We now address the trial court's decision to order the termination proceedings to be held "in abeyance." We find that the court's action is akin to a continuance. The Juvenile Code specifically addresses when termination proceedings may be continued as follows:
(d) The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including any reports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
N.C. Gen. Stat. § 7B-1109(d) (2009). The trial court is thus authorized to continue the termination hearing in certain circumstances. Even where a trial court fails to timely hold a termination hearing, "time limitations in the Juvenile Code are not jurisdictional [in nature] and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." In re C.L.C., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005) (citation omitted). Here, where the trial court specifically stated that the termination proceedings would be delayed in order to allow respondent to continue to progress in recovery and other aspects of her case plan, there can be no serious consideration that respondent suffered any prejudice from the postponement.
In conclusion, we have determined that the trial court had subject matter jurisdiction over the termination matter and that DSS had standing to file the motion to terminate respondent's parental rights. There is no statutory requirement in the Juvenile Code that the trial court must enter a permanent plan of termination of parental rights before proceeding with an action to terminate a parent's rights, and we decline to read such a requirement into the statutes. Nor is there a prohibition contained in the Juvenile Code against proceeding with a termination of a parent's rights when the permanent plan has been established as reunification. We do not find anything in the Juvenile Code that would prohibit the trial court's actions under the circumstances of this case. We therefore affirm the order of the trial court terminating respondent's parental rights with respect to the minor child A.M.
While the better practice may have been for the trial court to keep the permanent plan as adoption and continue the proceedings on termination pursuant to N.C. Gen. Stat. § 7B-1109, we hold that the trial court did not err in taking the course of action it did and in holding the termination hearing.
Since the trial court had jurisdiction to hear the matter for termination of respondent's parental rights, and all procedural requirements were duly met by DSS and the trial court, we conclude that the trial court did not err in hearing the termination matter, or in entering an order terminating respondent's parental rights. The trial court's order is hereby
Affirmed.
Chief Judge MARTIN and STEELMAN concur.
Report per Rule 30(e).