In re J.S.L.
| Citation | 628 S.E.2d 387 |
| Decision Date | 18 April 2006 |
| Docket Number | No. COA05-768.,COA05-768. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | In re J.S.L., A Minor Child. In re G.T.L., A Minor Child. In re T.L.L., A Minor Child. |
Hunton & Williams LLP, by Ray A. Starling, Raleigh, for petitioner-appellee Guardian ad Litem.
Carol Ann Bauer, Morganton, for respondent mother-appellant.
Mercedes O. Chut, Greensboro, for respondent father-appellant.
R.K.L. ("respondent mother") and R.L.L. ("respondent father") appeal from judgments entered terminating their parental rights to their children, J.S.L, G.T.L., and T.L.L. We affirm in part, reverse in part, and remand.
Subsequent to the filing of respondent father's notice of appeal, the appellee guardian ad litem for the minor children filed a motion to dismiss respondent father's appeal pursuant to Rule 37 of the North Carolina Rules of Appellate Procedure.
The trial court's judgments were entered 30 December 2004 and served on the parties. The ten-day period for filing a notice of appeal expired on 13 January 2005. The attorney for appellee Rutherford County Department of Social Services ("DSS") served respondent father by placing a copy of the judgments in his attorney's mailbox maintained by the clerk of court at the courthouse. The attorney representing respondent father died on 7 February 2005. Respondent father filed his notice of appeal pro se on 9 February 2005.
Subsequent to the filing of the motion to dismiss, respondent father filed a petition for writ of certiorari. Respondent father's petition is granted. N.C. Gen.Stat. § 7A-31 (2005); N.C.R.App. P. 21 (2006). Appellee guardian ad litem's motion to dismiss is denied.
Respondent father moved to amend his notice of appeal to include the following additional assignment of error: "[t]he trial court committed reversible error in delaying entry of each order of adjudication in this case beyond the statutory requirement of thirty days." We allow respondent father's motion to amend to add this additional assignment of error.
Respondents have three children, J.S.L., age thirteen, G.T.L., age nine, and T.L.L., age eight.
On 1 November 2002, both respondents admitted to allegations of neglect concerning all three children and stipulated the children's best interests would be served for DSS to have custody of the children and for DSS to make a lawful placement of the children.
DSS developed a case plan to address the issue of neglect of the children. Respondent father signed the case plan. Respondent mother declined to sign the plan.
The case plan established several objectives, including: (1) respondent mother should overcome substance abuse and addiction; (2) respondents should establish a home free of domestic violence; (3) respondents should provide the children a sanitary environment in which to live; (4) respondents should provide financial child support for the children; and (5) respondent mother should gain stable mental health and good parenting abilities.
To work toward the first objective, DSS encouraged respondent mother to voluntarily go to an inpatient treatment program for her substance abuse problems. The trial court found respondent mother has Respondent mother never voluntarily attended an inpatient program. Respondent mother was incarcerated from April 2003 until July 2003 for an attempted forgery conviction and was required to undergo mandatory treatment during that time. DSS also requested respondent mother consult only one doctor for legitimate illnesses and one pharmacy for obtaining prescription medications. Respondent mother has not complied with that request.
To work toward the second objective, DSS requested that respondent father attend anger management classes. Respondent father attended and completed the classes. After attending the anger management classes, respondent father pled guilty to assault on a female after he "spit" on respondent mother.
DSS established the third objective because respondents were without a home. Respondents had failed to pay rent and utility bills and were forced to vacate their home. Following DSS's recommendation, respondents moved into a mobile home rent free and received assistance to pay utilities. Respondent father is gainfully employed. Respondent mother is in the process of filing for disability.
DSS established the fifth objective as a result of respondent mother's substance abuse and addiction. DSS encouraged respondent mother to obtain a mental health evaluation and follow all recommendations. Respondent mother never presented for a mental health examination, even though she called mental health services several times and threatened to commit suicide.
Respondent mother argues the trial court: (1) lacked jurisdiction to hear the motion in the cause to terminate her parental rights because she was not properly served with notice; (2) erred in receiving her mental health records into evidence; and (3) erred in not appointing a guardian ad litem to aid her.
Respondent father argues the trial court erred by: (1) making findings of fact that are not supported by clear, cogent, and convincing evidence; (2) concluding as a matter of law that grounds existed to terminate his parental rights to each child and failing to make proper conclusions of law; (3) terminating his rights to each child where the motions in the cause violated N.C. Gen.Stat. § 7B-1104(6); (4) terminating his rights to each child when he was not properly served with notice under N.C. Gen.Stat. §§ 7B-1106.1.26 and 7B-1106.1.27; and (5) delaying entry of the adjudicatory orders in this case beyond the statutory requirement of thirty days after hearing as required by N.C. Gen. Stat. § 7B-1110(a).
"On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Baker, 158 N.C.App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations omitted).
The trial court's "conclusions of law are reviewable de novo on appeal." Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C.App. 332, 336, 477 S.E.2d 211, 215 (1996).
Respondent mother argues the trial court lacked jurisdiction to hear DSS's motion in the cause to terminate her parental rights. She asserts DSS failed to properly serve her with notice of the termination proceedings.
N.C. Gen.Stat. § 7B-1106.19(a)(1) (2005) provides, "(a) Upon the filing of a motion pursuant to G.S. 7B-1102, the movant shall prepare a notice directed to each of the following persons or agency, not otherwise a movant: (1) The parents of the juvenile."
Respondent mother was present with counsel and participated in the termination hearing and entered no objection regarding improper notice at the proceeding. This Court stated in In re B.M., 168 N.C.App. 350, 355, 607 S.E.2d 698, 702 (2005) (internal quotations and citations omitted).
In In re J.S., the respondents contended they did not receive proper notice of the permanency planning hearing in accordance with N.C. Gen.Stat. § 7B-907(a). 165 N.C.App. 509, 514, 598 S.E.2d 658, 662 (2004). The respondents and their attorneys were present and participated in the hearing and failed to object to the insufficiency of notice. Id. We held the respondents "waived any objection they might have had to improper notice." Id. Here, respondent mother appeared with counsel at the hearing and failed to object to any lack of notice. This assignment of error is overruled.
Respondent mother argues the trial court erred by receiving her mental health medical records into evidence. We disagree.
At trial, respondent mother made a general objection to the admission of her mental health records on privacy grounds. Respondent mother argues that "any records relating to [her] mental or substance abuse issues are not admissible as hospital records." Respondent mother contends the mental health records were inadmissible based upon the requirements of N.C. Gen.Stat. § 122C-52(b).
The trial court made the following finding of fact:
(6) Upon conclusion of all the evidence as to adjudication the Court recessed for the purpose of reviewing the substantial medical records of the mother offered into evidence by the Guardian ad Litem. Following review of the medical records of [respondent mother] and the other evidence presented the Court is convinced that [she] has experienced substantial problems with abuse of prescription drugs and illegal controlled substances since 1996.
N.C. Gen.Stat. § 8-44.1 (2005) provides:
Copies or originals of hospital medical records shall not be held inadmissible in any court action or proceeding on the grounds that they lack certification, identification, or authentication, and shall be received as evidence if otherwise admissible, in any court or quasi-judicial proceeding, if they have been tendered to the presiding judge or designee by the custodian of...
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