Opinion
No. COA05-559
Filed 21 March 2006 This case not for publication
Appeal by Respondents from order entered 2 September 2004 by Judge Bradley B. Letts in District Court, Graham County. Heard in the Court of Appeals 7 February 2006.
Sybil G. Mann, for petitioner-appellee. Nancy R. Gaines, for respondent-appellant-father. Robert W. Ewing, for respondent-appellant-mother. Hunton Williams, by Jason S. Thomas, for Guardian ad Litem.
Graham County No. 03 J 9.
Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and if the requirements of this rule are not complied with, the appeal must be dismissed. Here, Respondent-Mother failed to file her notice of appeal within the time allowed by Rule 3(b); moreover, Respondent-Father assigned error to an order that was not designated in his notice of appeal in violation of Rule 3(a). However, we grant certiorari and reach the merits of their appeals whereupon we affirm the order terminating their parental rights.
Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005).
As we have granted certiorari to review Respondents' appeals, we deny Appellee's motion to dismiss the appeals.
The Respondents are the natural parents of a child removed from their home in March 2002 by the Graham County Department of Social Services. The child, one-year-old at the time of removal, was adjudicated (by order entered 3 June 2002) to be a dependent and neglected juvenile as defined by sections 7B-101(9) and (15) of the North Carolina General Statutes. On 7 April 2003, DSS filed a Petition to terminate the parental rights of Respondents regarding this child. By order filed 28 March 2004, the trial court adjudicated that there was sufficient evidence to support the Petition for termination of parental rights and continued the dispositional hearing to a later date. Following the dispositional hearing the trial court by order entered 2 September 2004, terminated Respondents' parental rights. Respondent-Mother and Respondent-Father, individually, appeal from the 2 September 2004 order.
Appeal of Respondent-Mother
Rule 3 of the North Carolina Rules of Appellate Procedure and section 7B-1113 of the North Carolina General Statutes require Notice of Appeal from a termination of parental rights to be made "in writing within 10 days after entry of the order." N.C. Gen. Stat. § 7B-1113 (2004); see also N.C.R. App. P. 3(b). Respondent-Mother did not file her Notice of Appeal until 28 September 2004, more than ten days after entry of the termination of parental rights order. Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and if the requirements of this rule are not complied with, the appeal must be dismissed. Sillery, 168 N.C. App. at 234, 606 S.E.2d at 751 (notice of appeal was not filed until after the time for filing had expired); Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683, appeal dismissed and cert. denied, 327 N.C. 633, 399 S.E.2d 326 (1990).
Guardian ad Litem addresses this Court's lack of jurisdiction due to Respondent-Mother's untimely filing of her Appeal.
While this Court cannot hear Respondent-Mother's direct appeal, it does have the discretion to consider the matter by granting a petition for writ of certiorari. "The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action. . . ." N.C.R. App. P. 21(a)(1). Respondent-Mother filed a petition for a writ of certiorari on 7 February 2006. We grant Respondent-Mother's petition and will now address the merits of her appeal.
On appeal, Respondent-Mother argues that the trial court erred in (1) making insufficient findings of fact to support grounds to terminate under section 7B-1111(a)(2) of the North Carolina General Statutes and (2) making insufficient findings of fact to support grounds to terminate under section 7B-1111(a)(1) of the North Carolina General Statutes.
First, Respondent-Mother argues that the trial court erred in making insufficient findings of fact to support grounds to terminate under section 7B-1111(a)(1) of the North Carolina General Statutes. We disagree.
There are two stages involving a petition to terminate parental rights: adjudication and disposition. At the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence that at least one statutory ground for termination exists. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 173-74, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001); see N.C. Gen. Stat. § 7B-1109(f) (2004) (requiring findings of fact to be based on clear, cogent, and convincing evidence). A finding of one statutory ground is sufficient to support the termination of parental rights. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984).
"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." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Since Respondent has not assigned error to any of the trial court's findings of fact, the findings of fact are binding on appeal. Id. Therefore, we will review whether the trial court's findings of fact support the conclusions of law. McMillon, 143 N.C. App. at 408, 546 S.E.2d at 174. The trial court concluded there were grounds to terminate parental rights under section 7B-1111(a)(1) of the North Carolina General Statutes which provides that a trial court may terminate the parental rights upon the findings that:
The parent has . . . neglected the juvenile. The juvenile shall be deemed to be . . . neglected if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1) (2005). A neglected juvenile is defined as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2005). The trial court made the following pertinent findings of fact regarding Respondent-Mother's neglect which are binding on this Court on appeal:
28 March 2004 Order:
9.A. The juvenile was adjudicated a neglected and dependent juvenile by an order entered May 16, 2002, and subsequent order on disposition entered August 19, 2002, . . . .
B. Both parents have admitted to a history of drug abuse prior to and after the birth of [the child]. At the time of the taking of that juvenile into custody, Respondent Mother was taking oxyxodine, oxycontin, amytriptolene and tested positive for the presence of THC from marijuana and amphetamines. . . .
C. Respondent Mother failed to attend and participate on three separate attempts to enroll her in the Alcohol Drug Abuse Treatment Center. These three missed admissions were without excuse or good cause shown. Respondent Mother was admitted on the fourth attempt to the Treatment Center on November 11, 2002. She completed the program on December 2, 2002.
D. On October 18, 2002, a substance abuse panel was preformed by Quest Diagnostics on a specimen from Respondent Mother, which indicated a positive result for the presence of methamphetamines and amphetamines.
E. On November 9, 2002, a substance abuse panel was performed on a specimen from Respondent Mother, which indicated a positive result for the presence of methamphetamines.
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G. While a patient at Murphy Medical Center giving birth to the juvenile's brother . . . Respondent Mother participated in a screening for drugs. The test results were positive for methamphetamines. A drug test was performed on a sample from the baby's meconium, on March 8, 2003, which tested positive for amphetamines and methamphetamines.
H. The result of a drug screen test performed on Respondent Mother on April 8, 2003, was positive for the presence of opiates and methamphetamines.
I. Respondent Mother was incarcerated in the North Carolina Department of Corrections from May 20[0]3 until November 12, 2003.
K. Respondent Mother is not seeing a counselor, psychologist or social worker.
2 September 2004 Order:
17. From November, 2003, to the date of this hearing Respondent Parents have not (a) given any support or other money for juvenile; (b) given any gifts for the child to the Department; (c) given the Department any letters or cards for the juvenile; (d) given any photos or other items to the Department for the child; (e) given the Department any written requests to have contact with the juvenile; (f) given the Department any information concerning hair or drug tests; and (g) given the Department any documentation regarding their current employment.
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28. The juvenile has atypical development. Most children, who were her age at the time when she came to the current foster care placement, have a vocabulary of about 100 words; [the child] did not. She had less than half that number. She used tears, screaming, and bodily manipulation to express her needs. Lack of consistent parenting by the Respondent Parents, who left her with various relatives during the time she was in their custody, and by the relative placement contributed to her language development problems.
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48. In utero drug abuse by the Respondent Mother created an unhealthy environment for the juvenile before she was born. Continued neglect by the Respondent Mother after birth reinforced this unhealthy environment. Maltreatment at an early age can lead children to believe that their predicament or life situation is their fault. . . .
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51. The effects of the juvenile's maltreatment are still evident and in some ways will affect her for the rest of her life. She will always live with some fear of abandonment and will likely struggle with intimacy for some time. The foster patents are highly motivated to continue getting the juvenile the treatment and support needed to facilitate her ongoing healing.
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53. Respondent Parents are not healthy candidates to take on the care of a child with Reactive Attachment Disorder due to their drug abuse, chaotic home and family dysfunction.
Where termination of parental rights is sought upon allegations of neglect, the court may consider evidence of neglect occurring before custody has been taken from the parents, but termination may not be based solely on conditions of neglect which may have previously existed, but no longer exist. In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232-33 (1984). The court must also consider evidence of any change in condition up to the time of the hearing, but this evidence is to be considered in light of the evidence of prior neglect and the probability of repetition of neglect. Id. "In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent. Therefore, the fact that the parent loves or is concerned about his child will not necessarily prevent the court from making a determination that the child is neglected." In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).
The trial court's findings of fact support its conclusion of law that the child is neglected and that there are sufficient grounds to terminate Respondent-Mother's parental rights under section 7B-1111(a)(1). The trial court found that Respondent-Mother has a long history of drug abuse, gave no financial assistance for the child, and sent no letters, gifts, or photographs to the child. Also, the trial court found that Respondent-Mother's early neglect and abandonment of the child have caused lasting psychological problems for the child. Accordingly, there were sufficient findings of fact to support the trial court's conclusion of law that Respondent-Mother neglected the child to support the trial court's termination of Respondent-Mother's parental rights.
As finding of one statutory ground is sufficient to support the termination of parental rights, we need not address whether the trial court erred in concluding grounds existed to terminate Respondent-Mother's parental rights pursuant to section 7B-1111(a)(2). In re Pierce, 67 N.C. App. at 261, 312 S.E.2d at 903.
Appeal of Respondent-Father
On appeal, Respondent-Father argues six assignments of error contending that the trial court erred as there was insufficient evidence for findings of ongoing neglect or willfully leaving the minor child in foster care. However, all six assignments of error assign error only to the 28 March 2004 order. Respondent-Father gave Notice of Appeal from only the 2 September 2004 order. Rule 3 of the North Carolina Rules of Appellate Procedure requires that the notice of appeal ". . . shall designate the judgment or order from which appeal is taken. . . ." N.C.R. App. P. 3(d); see also In re L.L., ___ N.C. App. ___, ___, 616 S.E.2d 392, 396 (2005) (assignments of error referred to an intervention order but the notice of appeal only included the review order). As we previously stated, Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and if the requirements of this rule are not complied with, the appeal must be dismissed. See Von Ramm v. VonRamm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (notice of appeal from denial of a motion to set aside a judgment which did not also specifically appeal the underlying judgment does not properly present the underlying judgment for review). However, we will treat Respondent Father's appeal as a petition for writ of certiorari, which we will grant and reach the merits of his appeal. See Smith v. Winn-Dixie Charlotte, Inc., 142 N.C. App. 255, 257 n. 1, 542 S.E.2d 288, 290 n. 1 (2001) (treat interlocutory appeal as a petition for writ of certiorari and reach the merits of the appeal); Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 693, 529 S.E.2d 697, 699 (2000) (appellant failed to include in the record on appeal a copy of the certificate of service of the notice of appeal, this Court treated the appeal as a petition for writ of certiorari).
Guardian ad Litem addresses this Court's lack of jurisdiction due to Respondent-Father's failure to include the 28 March 2004 order in the Notice of Appeal.
On appeal, Respondent-Father argues that the trial court erred in (1) making insufficient findings of fact to support grounds to terminate under section 7B-1111(a)(2) of the North Carolina General Statutes and (2) making insufficient findings of fact to support grounds to terminate under section 7B-1111(a)(1) of the North Carolina General Statutes.
In addition to the findings of fact referenced above regarding neglect of the child, the trial court made the following findings of fact specific to Respondent-Father:
28 March 2004 Order
9.R. On January 24, 2003, a controlled substance test was conducted on a hair sample of Respondent Father . . . which testedpositive for amphetamines and methamphetamines. . . .
S. On May 8, 2003, a urine test was performed on Respondent Father which tested positive for marijuana while Respondent/Father was incarcerated in Graham County Jail. . . .
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U. The only prolonged, focused, and purposeful treatment for substance abuse which Respondent Father has participated occurred on an involuntary basis while he was incarcerated.
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CC. Respondent Father has made no payments to Graham County DSS to help with supporting the juvenile.
As we have previously stated with Respondent-Mother, the trial court found that Respondent-Father has a long history of drug abuse, gave no financial assistance for the child, and sent no letters, gifts, or photographs to the child. Also, the trial court found that Respondent-Father's early neglect and abandonment of the child have caused lasting psychological problems for the child. Accordingly, there were sufficient findings of fact to support the trial court's conclusion of law that Respondent-Father neglected the child to support the trial court's termination of Respondent-Father's parental rights.
As finding of one statutory ground is sufficient to support the termination of parental rights, we need not address whether the trial court erred in concluding grounds existed to terminate Respondent-Father's parental rights pursuant to section 7B-1111(a)(2). In re Pierce, 67 N.C. App. at 261, 312 S.E.2d at 903. Respondent-Father fails to argue his remaining assignments of error; therefore, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
Affirmed.
Judges HUNTER concurs.
Judge JACKSON concurs in part and dissents in part in separate opinion.
Report per Rule 30(e).