Opinion
No. COA11-106
Filed 21 June 2011 This case not for publication
Appeal by respondent-father from order entered 29 October 2010 by Judge Charles Bullock in Harnett County District Court. Heard in the Court of Appeals 8 June 2011.
Elizabeth Myrick Boone for petitioner-appellee mother. Robin E. Strickland for respondent-appellant father. Charlene Edwards for guardian ad litem.
Harnett County No. 09 JT 70.
This appeal arises from a private termination of parental rights action. Respondent-father appeals from an order terminating his parental rights to his daughter, S.P. After careful review, we affirm.
Petitioner-mother (petitioner) and respondent-father (respondent) were married on 5 February 1983, and had four children together. S.P. is the couple's youngest child, as well as their only child under the age of eighteen. The couple divorced on 16 April 2003 in Connecticut. Under the terms of a separation agreement, petitioner was given primary physical custody of S.P. and respondent was given certain visitation rights. Petitioner and S.P. moved to North Carolina in 2004, and respondent stayed in Connecticut.
On 23 April 2009, petitioner filed a petition to terminate respondent's parental rights to S.P. The petition purported to allege the following grounds for termination: (1) willful failure to pay for the care, support, and education of the juvenile, as required by a custody order; (2) willful abandonment; and (3) neglect. The petition also alleged the following: "There is a reasonable belief that the Respondent sexually abused the minor child and caused significant emotional distress."
On 28 May 2009, respondent filed a letter with the Harnett County Clerk of Court in which he contested the termination of parental rights petition and requested appointment of counsel. Thereafter, the trial court appointed counsel for respondent.
On 14 September 2009, petitioner amended the termination of parental rights petition, based on respondent's consent. The purpose of the amendment was to incorporate by reference the parties' divorce judgment and separation agreement.
The trial court conducted a termination hearing on 18 December 2009 and on 2 and 17 September 2010. Petitioner, petitioner's husband, respondent, S.P., and a social worker testified at the hearing. By order entered 29 October 2010, the trial court found the existence of three grounds for termination: neglect, willful abandonment, and willful failure to pay for the care, support, and education of the juvenile as required by judicial decree or a custody agreement. See N.C. Gen. Stat. § 7B-1111(a)(1), (4), (7) (2009). The court also made a specific finding that petitioner had not proven sexual abuse. In the dispositional portion of the order, the trial court found that termination of respondent's parental rights was in the best interest of the juvenile. Respondent gave timely notice of appeal from the order.
I.
Respondent first contends that the trial court lacked subject matter jurisdiction because the termination of parental rights petition allegedly fails to comply with N.C. Gen. Stat. § 7B-1104(6). This statute requires a petition to include "[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). Respondent argues that the petition purports to allege four grounds for termination, but that each purported ground is insufficient to provide notice as to the acts, omissions, or conditions at issue. See In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002) ("While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions, or conditions are at issue."). Thus, respondent argues, the petition failed to comply with N.C. Gen. Stat. § 7B-1104(6) and deprived the trial court of subject matter jurisdiction.
As an initial matter, we reject respondent's argument that compliance with N.C. Gen. Stat. § 7B-1104(6) is a jurisdictional requirement. This Court has held that the question of whether a petition states facts sufficient to warrant a determination of the existence of grounds for termination is akin to the question of whether the allegations in the petition state a claim upon which relief may be granted. In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159 (construing an identically worded provision in the former juvenile code). Thus, a challenge to a petition's compliance with N.C. Gen. Stat. § 7B-1104(6) tests the legal sufficiency of the petition and should be brought through a motion to dismiss pursuant to N.C.R. Civ. P. 12(b)(6). Id. Accordingly, a petition's failure to state facts sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist is not a jurisdictional defect. See In re T.M.H., 186 N.C. App. 451, 454, 652 S.E.2d 1, 2 (2007) (stating that "[o]nly a violation of the verification requirement of N.C.G.S. § 7B-1104 has been held to be a jurisdictional defect per se").
Given the nature of this challenge, respondent has failed to preserve this issue for appeal. We have held that "[t]he Rules of Civil Procedure apply to proceedings for termination of parental rights, and a Rule 12(b)(6) motion may not be made for the first time on appeal." In re H.L.A.D., 184 N.C. App. 381, 392, 646 S.E.2d 425, 434 (2007) (internal quotation marks and citation omitted), aff'd per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). Therefore, where a parent fails to file a motion to dismiss pursuant to Rule 12(b)(6) in the trial court, the issue of the sufficiency of the petition's allegations has not been properly preserved for appellate review. Id. In the instant case, respondent failed to file a motion to dismiss pursuant to Rule 12(b)(6) or otherwise challenge the sufficiency of the allegations contained in the petition prior to his present argument on appeal. Accordingly, respondent has not properly preserved this issue for appeal, and we decline to review it.
II.
Next, respondent argues that the trial court erred by allowing petitioner to amend the petition. "Our Court has recognized that where the juvenile code sets forth specific procedures governing termination actions, those procedures apply to the exclusion of the Rules of Civil Procedure." In re S.D.W., 187 N.C. App. 416, 419, 653 S.E.2d 429, 431 (2007). Our juvenile code does not contain any provision which specifically allows or prohibits a petitioner from amending a termination of parental rights petition. However, "[o]ur Court has also recognized that where the juvenile code does not identify a specific procedure to be used in termination cases, the Rules of Civil Procedure will fill the procedural gaps that Article 11 leaves open." S.D.W., 187 N.C. App. at 421, 653 S.E.2d at 432.
Pursuant to Rule 15 of the North Carolina Rules of Civil Procedure, "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted . . ., he may so amend it at any time within 30 days after it is served." N.C. Gen. Stat. § 1A-1, Rule 15(a) (2009). If a party does not have an amendment of right under Rule 15(a), a party may nevertheless amend her pleading "by leave of court or by written consent of the adverse party." Id. Rule 15(a) further provides that "leave shall be freely given when justice so requires." Id. In the instant case, petitioner did not have an amendment of right, based on the restrictions contained in Rule 15(a).
"A motion to amend is addressed to the discretion of the trial court. Its decision will not be disturbed on appeal absent a showing of abuse of discretion." Henry v. Deen, 310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984) (internal citation omitted). "An abuse of discretion occurs when the trial court's ruling `is so arbitrary that it could not have been the result of a reasoned decision.'" Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
In the instant case, petitioner made the following amendment to her termination petition:
1. The Petition filed by [petitioner] is hereby amended to add an additional allegation, the following:
a. The exhibits attached hereto as "A", represent Court proceedings and Orders entered by Judge Jack L. Grogins of the Superior Court in the State of Connecticut and the same are incorporated by reference as if fully set forth.
Respondent expressly consented to the amendment. Therefore, we discern no abuse of discretion on the part of the trial court in allowing petitioner's amendment. Furthermore, by consenting to the amendment, respondent has waived his right to challenge the amendment on appeal. In re Foreclosure of Williams, 88 N.C. App. 395, 396, 363 S.E.2d 380, 381 (1988) ("A duly agreed to and entered consent order in a judicial proceeding is a final determination of the rights adjudicated therein and generally is a waiver of a consenting party's right to challenge the adjudication by appealing therefrom."). Accordingly, we find no error with respect to the amendment.
III.
Finally, respondent argues that the trial court failed to use the appropriate standard of review in making its findings of fact. Our juvenile code provides that in a termination of parental rights order, "all findings of fact shall be based on clear, cogent, and convincing evidence." N.C. Gen. Stat. § 7B-1109(f) (2009). We have interpreted this subsection as requiring the trial court to "affirmatively state in its order that its findings of fact at the adjudicatory stage of the termination proceedings are based upon clear, cogent, and convincing evidence." In re D.R.B., 182 N.C. App. 733, 739, 643 S.E.2d 77, 81 (2007). We have explained:
Although the termination statute does not specifically require the trial court to affirmatively state in its order terminating parental rights that the allegations of the petition were proved by clear and convincing evidence, without such an affirmative statement the appellate court is unable to determine if the proper standard of proof was utilized.
In re Church, 136 N.C. App. 654, 657, 525 S.E.2d 478, 480 (2000).
Here, the trial court recited the standard used to make its findings of fact in finding number 58:
Petitioner has proven by clear, cogent and convincing evidence that the following grounds exist to terminate the Respondent's parental rights:
a. Respondent has neglected the juvenile within the meaning of North Carolina General Statute § 7B-1111(a)(1);
b. Petitioner was awarded custody of the juvenile by judicial decree and the Respondent has for a period of one year or more next preceding the filing of the petition to terminate parental rights willfully failed without justification to pay for the care, support, and education of the juvenile and continues to willfully fail to pay for the care, support and education of the juvenile and continues to willfully fail to pay for the care, support and education of the juvenile to this day within the meaning of North Carolina General Statute § 7B-1111(a)(4);
c. The Respondent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition within the meaning of North Carolina General Statute § 7B-1111(a)(7).
Respondent argues that because the standard of proof finding does not appear until the end of the trial court's adjudicatory findings of fact, one is unable to ascertain whether the preceding substantive findings of fact were based on clear, cogent, and convincing evidence. Therefore, respondent argues, the order should be vacated. We disagree.
This Court has held that "`there is no requirement as to where or how such a recital of the standard should be included.'" In re J.T.W., 178 N.C. App. 678, 683, 632 S.E.2d 237, 240 (2006) (quoting In re O.W., 164 N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004)), reversed per curiam on other grounds, 361 N.C. 341 (2007); see also In re M.D., 200 N.C. App. 35, 39, 682 S.E.2d 780, 783 (2009) (finding no error where trial court orally indicated that it employed the appropriate standard).
Furthermore, when read in context, it is clear that the trial court based its findings on the correct standard of proof. The trial court specifically found that "[p]etitioner has proven by clear, cogent and convincing evidence that the following grounds exist to terminate the Respondent's parental rights." The grounds for termination were based on fifty-seven substantive findings of fact. From this, one can infer that the findings, which support grounds for termination, were based on clear, cogent, and convincing evidence. Therefore, we reject respondent's argument, and we conclude that the trial court used the correct standard of proof in terminating his parental rights.
Affirmed.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).