Opinion
No. 04-922.
Filed 6 September 2005.
Mecklenburg County No. 02 J 1172-1173.
Appeal by respondent-mother from order entered 17 March 2004 by Judge Avril U. Sisk in Mecklenburg County District Court. Heard in the Court of Appeals 21 March 2005.
Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for Mecklenburg County Department of Social Services, Youth Family Services Division, petitioner-appellee. Nelson Mullins Riley Scarborough, LLP, by Wallace C. Hollowell, III, for North Carolina Guardian ad Litem, petitioner-appellee. Mercedes O. Chut, for respondent-appellant.
Respondent-mother appeals from an order of the Mecklenburg District Court entered 17 March 2004 terminating her parental rights with respect to her minor children, T.G. and R.J. Respondent seeks reversal of the trial court's order.
Petitioner, Mecklenburg Department of Social Services (DSS), first became involved with respondent in 1995 when respondent was treated for psychotic episodes. DSS became involved a second time on 27 April 2001 after a referral regarding respondent's whipping R.J. with a belt and a drop cord, which left visible injuries on the child, allegedly because respondent was not able to locate the child the previous night. DSS's final involvement began on 16 April 2002 when respondent left both children alone at a shelter for an extended period of time while her whereabouts were unknown. The children eventually were picked up by a maternal relative. Subsequent to that incident, respondent brought T.G. with her to meet with DSS representatives and stated she would rather have the children placed for adoption than be bounced around between homes. Respondent then left T.G., who was only two years-old, at DSS without advising DSS of her location. DSS's subsequent attempts to locate respondent were unsuccessful.
Prior to April 2002 respondent's housing situation and that of her children was unstable. They lived in several apartments with respondent's mother, in a shelter and a hotel. During this time respondent was employed at Wendy's as a cashier. Respondent testified that during this time she used alcohol but no illegal drugs. After her children were removed by DSS in April 2002, respondent began using powder and crack cocaine and was homeless from April until October 2002. During this time, DSS was not aware of respondent's location. Respondent continued visitation with her children during this time until visitation was terminated. Respondent had signed a case plan with DSS when the children were removed from her custody, but failed to make any progress on the plan during this time.
On 22 July 2002 T.G. and R.J. were adjudicated neglected and dependant as to respondent. At a disposition hearing on 6 August 2002 the trial court entered an order adopting DSS's recommendation that proceedings to terminate respondent's parental rights should be commenced. The trial court allowed the maternal relatives ninety days to make progress toward obtaining custody before termination proceedings would be pursued. A meeting was held on 10 September 2002 at which DSS reviewed the case plan. Respondent's maternal relatives were invited to attend but did not attend or respond to the invitation in any way.
A permanency planning hearing was held on 6 November 2002 at which the trial court found that respondent had not visited her children since April 2002 when they were placed in foster care. The trial court determined the goal in the case should be termination of parental rights as to respondent and the fathers of both children. The court also relieved DSS of any further efforts toward reunification. On 25 November 2002 petitions to terminate respondent's parental rights as to T.G. and R.J. were filed by DSS. Because respondent's whereabouts were unknown to DSS at that time, the Summons' showed respondent's address as "unknown."
Respondent first entered a drug rehabilitation facility in October 2002 and was asked to leave in November of that year for having sex with a resident at the facility, in violation of the rules. Shortly thereafter, respondent was allowed to re-enter the facility. In January of 2003 respondent moved to Cascade, another rehabilitation facility. Respondent spent February 2003 in jail for communicating a threat and returned to Cascade upon her release. A second permanency planning hearing was held 7 July 2003 during which the court noted that the plan with regard to the children was still termination of parental rights. Since the first permanency planning hearing, respondent had contacted DSS regarding visitation with her children and she had a visit with them. This was the first visit between respondent and her children since they were removed from her custody fourteen months before.
Respondent made significant progress with her addiction while in Cascade, had been attending parenting classes, Narcotics Anonymous meetings, and was working on earning her G.E.D. since entering Cascade. Respondent also had given birth to a third child since T.G. and R.J. were removed from her custody. Respondent still had custody of that child. The trial court received reports on respondent's progress from the Cascade staff at a third permanency planning hearing held 21 January 2004. The court ordered that the plan for the children remain termination of parental rights and adoption notwithstanding respondent's progress.
A hearing to terminate respondent's parental rights was held on 10 February 2004. The court entered its order terminating respondent's parental rights as to T.G. and R.J. on the date of the hearing and signed the order 17 March 2004. Respondent appealed the order on 29 March 2004.
Respondent first argues that the trial court did not have personal jurisdiction over her in the action regarding T.G. as there was no record of service of the summons and petition on her for that action. However, respondent appeared before the trial court in the matter and raised no objection to the purported lack of service with regard to T.G. until this appeal.
The purpose of service of a summons is to give notice to the party against whom a proceeding is commenced to appear at a certain place and time and to answer a complaint against him. Farr v. Rocky Mount, 10 N.C. App. 128, 130, 177 S.E.2d 763, 764 (1970), cert. denied, 277 N.C. 725, 178 S.E.2d 831 (1971). However, service of process is only one way in which a court may establish personal jurisdiction over a party. Personal jurisdiction over a party also may be obtained by voluntary appearance of the party before the court or by consent. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 687-88, 567 S.E.2d 179, 183 (2002).
"`A general appearance waives any defects in the jurisdiction of the court for want of valid summons or of proper service thereof.'" Youngblood v. Bright, 243 N.C. 599, 602, 91 S.E.2d 559, 561 (1956) (quoting In re Blalock, 233 N.C. 493, 504, 64 S.E.2d 848 (1951)), superceded by statute on other grounds as stated in Highlands Township Taxpayers Asso. v. Highlands Township Taxpayers Asso., 62 N.C. App. 537, 303 S.E.2d 234, (1983). In the case sub judice, respondent made a general appearance before the court by participating in the proceedings with regard to both juveniles without making an objection to the lack of service of process or making a motion to dismiss the petition pertaining to T.G. for lack of personal jurisdiction. Accordingly, this assignment of error is overruled. Respondent further argues that the absence of the summons for each of the juveniles in the record constitutes error as North Carolina General Statutes section 7B-1106(a)(5) requires that a summons be issued to the juveniles in the action and that the trial court erred in failing to appoint a guardian ad litem for the juveniles. No objection to either of these alleged errors was raised by any party before the trial court.
A timely objection must be presented to the trial court and a ruling on the objection must be received for a question to be properly preserved for appellate review. N.C.R. App. P. 10(b)(1)(2005); State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). As no objection to the lack of issuance of summons to the juveniles or to the failure to appoint a new guardian ad litem was made before the trial court, these assignments of error have not been properly preserved for our review.
Respondent next argues that seven of the trial court's findings of fact are not supported by the evidence. On appeal from the order of a judge sitting without a jury, the court's findings of fact are conclusive and binding on appeal if there is any competent evidence to support them, even if there is evidence which could support contrary findings. Goodson v. Goodson, 145 N.C. App. 356, 362, 551 S.E.2d 200, 205 (2001).
Finding of fact number 7.
Finding of fact number seven states, "Ms. Miller testified that during her involvement with the case [respondent] did not complete any of the terms or conditions of her case plan." On direct examination, Miller, respondent's social worker, was asked, about each term of the case plan specifically, whether the terms of the case plan had been completed during her tenure as respondent's social worker. To all but one of the terms she indicated that they had not been completed and to the final term, regarding whether the parenting capacity evaluation had been completed, she responded "[n]ot that I'm aware of." This testimony clearly supports the trial court's finding of fact. Therefore, this assignment of error is overruled.
Finding of fact number 9.
In this finding of fact the trial court found that respondent's visitation with T.G. and R.J. was suspended due to respondent missing three consecutive visits without an appropriate reason. Respondent argues that petitioner failed to provide any information regarding respondent's reason for missing the visits, or even whether she gave any reason whatsoever. The trial court based its finding on the testimony of Miller that,
[t]here had been visits set in place prior to my receipt of the case. They occurred on a weekly basis at Walton Plaza. Ms. Gaddy missed three visits in succession, and so the visits were suspended.
Respondent argues that because this suspension had occurred prior to Miller's assignment to respondent's case, this testimony is insufficient to support this finding of fact. Although respondent's argument is unpersuasive as it asks this Court to go beyond the appropriate standard of review, we find that this finding of fact is not supported by competent evidence as the above quoted testimony was objected to and stricken from the record. As no other evidence in the record supports this finding as to why the visits were suspended, this assignment of error is sustained.
Finding of fact number 12.
Finding of fact number 12 states, "Following that hearing Ms. Miller sent a letter to respondent mother explaining to her what had happened and had no further contact with her." Respondent contends this finding of fact is not supported by the following testimony by Miller:
Q. At some point did the plan of care for the children change for[m] reunification?
A. Yes, it did.
Q. Do you know when that was?
A. It was in November of 2002 at the Permanency Planning Hearing. I believe it was the 6th of November.
Q. What did you do when that happened?
A. I sent a letter to [respondent], the mother of the children, and to her mother, Mary, to explain what had happened in court since neither of them were present.
Q. Did [respondent], the mother [respondent], did she contact you after that?
A. I believe she might have called me and we may have had a brief conversation, but no contact beyond that.
As Miller testified that she possibly had contact with respondent after sending the letter, the portion of this finding of fact regarding Miller having no further contact with respondent, is not supported by competent evidence. Accordingly, this assignment of error is sustained.
Finding of fact number 14.
Finding of fact 14 provides, "[s]ince that time the respondent mother has generally contacted the social [worker] once per month. Finding of fact 13 dealt with the assignment of respondent's case to social worker Jennifer Novak ("Novak") in February 2003 and respondent contacting Novak in May 2003, accordingly it is reasonable to believe that "[s]ince that time," as used in finding of fact number 14, refers to the period after May 2003. Novak's testimony regarding her contact with respondent was that respondent called more than once per month most months, but that some months she called only once. Again, this testimony does not support the trial court's finding of fact and this assignment of error is sustained.
Finding of fact number 20.
Respondent argues that the trial court's finding that none of the parents had provided any of the cost of the minors' care despite having the ability to do so is not supported by the evidence as far as respondent's ability to pay. Respondent's own testimony, however, was that she had been employed until January 2004 and that she currently was saving money and had a savings account. This testimony is sufficient to support this finding of fact. Accordingly, this assignment of error is overruled.
Finding of fact number 21.
Respondent contends that the portion of this finding of fact that she participated in parenting classes at Cascade, but had not completed them as of the date the termination proceeding had begun was not supported by the evidence. Respondent testified, "I take parenting classes . . .," and respondent's case coordinator at Cascade, Natasha Perry ("Perry"), responded affirmatively when asked if respondent was still involved in parenting classes in the program. Perry further testified that, as far as she knew, respondent had completed the parenting classes successfully so far. This evidence clearly supports the trial court's finding that respondent had not yet completed parenting classes and this assignment is, therefore, overruled.
Finding of fact 27.
Respondent next assigns error to the trial court's finding that she was not currently in a position to obtain, appropriate, long-term housing and that she did not know when she would be in a position to do so. Perry testified on cross-examination that respondent was eligible to stay in Cascade housing until December 2004, only ten months after the hearing. This testimony was presented after Perry had refreshed her memory by reviewing an exhibit introduced at trial consisting of a letter she (Perry) had written regarding respondent's status at Cascade and corrected her testimony on direct examination that respondent could remain in Cascade housing until 2005.
Respondent testified that she hoped to obtain housing upon leaving Cascade through the Charlotte Housing Authority or a program called Shelter Plus. Respondent testified that she was unable to apply for assistance from the Charlotte Housing Authority until she paid off a $700 bill and that after applying it takes six months to a year to get housing. Respondent was unable to provideany specific details about the Shelter Plus program. This testimony is sufficient to support the trial court's finding of fact that respondent was not able to secure appropriate, long-term housing at that time. Accordingly, this assignment of error is overruled.
Respondent next argues that the underlying juvenile files do not constitute, nor can they substitute for, proper findings of fact. There is no indication in the trial court's order that these files were used a basis for the court's findings of fact or conclusions of law. Also, this argument is not included in any of respondent's assignments of error, and is, therefore, not properly before us on appeal and is not considered. N.C.R. App. P. 10(a)(2005); State v. Smith, 160 N.C. App. 107, 122, 584 S.E.2d 830, 840 (2003).
Although we have determined that several of the trial court's findings of fact are not supported by competent evidence, the remaining findings nonetheless are sufficient to support the trial court's conclusion of law that grounds existed to terminate respondent's parental rights pursuant to North Carolina General Statutes section 7B-1111(a)(1). Further, respondent has failed to show how any of the trial court's errors prejudiced her in any way.
Respondent also argues that the trial court erred in terminating her parental rights on the basis of neglect when neither the findings of fact nor the evidence in the record support termination on that ground. A prior adjudication of neglect may be considered in a later termination of parental rights action, but changes in parent's conditions subsequent to the prior adjudication also must be considered. In re Beasley, 147 N.C. App. 399, 404, 555 S.E.2d 643, 647 (2001) (citing In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984)). The trial court then must make an independent determination that there is a probability that the neglect will be repeated in order to terminate the parent's rights. In re Parker, 90 N.C. App. 423, 425, 368 S.E.2d 879, 881 (1988).
In the case sub judice, the trial court stated on the record that "the conditions that took the children into custody have not been sufficiently alleviated to make the Court think that it [the neglect] would not occur once again." Also, in finding of fact number 21 the trial court acknowledges that respondent had enrolled in a residential drug treatment program and had participated in parenting classes since after the first adjudication. This unequivocally shows that the trial court considered respondent's changed circumstances and made an independent determination that the neglect was likely to be repeated if the children were returned to respondent notwithstanding her progress. Accordingly this assignment of error is overruled.
As we have found that respondent's parental rights were properly terminated for neglect under North Carolina General Statutes section 7B-1111(a)(1), it is unnecessary for us to reach respondent's final assignment of error.
Affirmed.
Judges MARTIN and HUDSON concur.
Report per Rule 30(e).