In re E.B.
| Decision Date | 15 October 2019 |
| Docket Number | No. COA19-158,COA19-158 |
| Citation | 834 S.E.2d 169,268 N.C.App. 23 |
| Parties | In the MATTER OF: E.B. |
| Court | North Carolina Court of Appeals |
Jane R. Thompson for petitioner-appellee Rowan County Department of Social Services.
Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant father.
Respondent-Father appeals from the trial court's order terminating his parental rights. We conclude that there was sufficient evidence to support the trial court's finding of willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). Therefore, we affirm the termination order.
The minor child E.B.1 was born in 2016. The day after her birth, the child's biological mother relinquished custody of her to Petitioner Rowan County Department of Social Services ("DSS") for the purpose of placing her for adoption. The child's biological mother identified Respondent-Father as a potential putative father.
On 23 March 2016, Respondent-Father entered into an "Out of Home Family Services Agreement" with DSS, and on 19 April 2016, a paternity test confirmed that he was the minor child's biological father. Thereafter, the minor child was placed in foster care. Between 12 May 2016 and 25 January 2018, the trial court conducted six Permanency Planning and Review Hearings. The trial court entered six resulting orders that placed numerous requirements on Respondent-Father before he could be reunified with the minor child. Among those requirements were that Respondent-Father engage in various substance abuse, mental health, domestic violence, and parenting education services. No juvenile petition was ever filed in the case.
In April 2017, Respondent-Father requested that his sister, ShaVonnda Young, a California resident, be considered as a placement for the minor child. Placement of the minor child with Ms. Young was approved on 30 May 2018, but DSS did not recommend the placement, and the child remained with her foster family. On 22 January 2018, Respondent-Father moved to California.
DSS filed a petition to terminate Respondent-Father's parental rights on 10 April 2018, alleging grounds of neglect, failure to make reasonable progress, and willful abandonment. The petition came on for hearing before the Honorable Kevin Eddinger over the course of four days between July and November 2018.
By order entered 30 November 2018, the trial court terminated Respondent-Father's parental rights upon findings of grounds of neglect, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) ; failure to make reasonable progress, pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) ; and willful abandonment, pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). Respondent-Father timely filed written notice of appeal.
On appeal, Respondent-Father argues that the trial court erred in concluding that grounds existed to terminate his parental rights. Respondent-Father also filed a petition for writ of certiorari seeking this Court's review of the six Permanency Planning Orders entered in this case. Specifically, Respondent-Father contends that those orders "were entered without subject matter jurisdiction or authority because there was no pending juvenile action for abuse, neglect, or dependency filed under the Juvenile Code at the time the Orders were entered." Accordingly, Respondent-Father contends that the trial court erred in basing the termination of his parental rights on his failure to comply with the terms of those orders. We allowed Respondent-Father's petition for certiorari by order entered 15 August 2019.
This Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear, cogent, and convincing evidence exists to support the court's findings of fact, and whether the findings of fact support the court's conclusions of law. If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary. However, the trial court's conclusions of law are fully reviewable de novo by the appellate court.
In re C.J.H. , 240 N.C. App. 489, 497, 772 S.E.2d 82, 88 (2015) (citations and quotation marks omitted).
The trial court entered six Permanency Planning Orders between 14 July 2016 and 8 March 2018 while the minor child was in the custody of DSS. Those orders placed numerous requirements on Respondent-Father to overcome the barriers that the trial court found and impeded his reunification with the minor child, including that Respondent-Father engage in various substance abuse, mental health, domestic violence,2 and parenting education services. During the 21 months preceding the filing of the termination petition, Respondent-Father complied with some, but not all, of those requirements.
However, Respondent-Father contends, and DSS concedes, that the trial court lacked subject-matter jurisdiction to conduct review hearings or enter the Permanency Planning Orders in this case, in that DSS failed to file a proper juvenile petition consistent with the requirements of N.C. Gen. Stat. §§ 7B-402(a) and 403(a), and thus no juvenile abuse, neglect, or dependency action was ever commenced.3 See In re A.R.G. , 361 N.C. 392, 397, 646 S.E.2d 349, 352 (2007) ; In re T.R.P. , 360 N.C. 588, 591, 636 S.E.2d 787, 790 (2006) (); see also In re T.P. , ––– N.C. App. ––––, ––––, 803 S.E.2d 1, 7 (2017) (). Accordingly, Respondent-Father asserts that "[n]either the court nor DSS had the legal authority to condition [his] custody relationship with [the minor child] prior to the filing of the petition to terminate his rights," and that it was thus "prejudicial error for the court to then use his failure to meet its conditions as the principal basis to terminate his parental rights."
Indeed, because no abuse, neglect, or dependency action was commenced in the instant case by the filing of a proper petition, the trial court was without subject-matter jurisdiction to enter its six Permanency Planning Orders. See In re T.R.P. , 360 N.C. at 593, 636 S.E.2d at 792 (). Accordingly, each of those orders is void, and the requirements imposed on Respondent-Father therein are nugatory. See id. at 590, 636 S.E.2d at 790, 360 N.C. 588.
We therefore disregard the six Permanency Planning Orders that were entered in this case, and review whether there was clear, cogent, and convincing evidence to support the trial court's findings of grounds to terminate Respondent-Father's parental rights without reference to any facts relating to his failure to comply with the terms of the void orders.
Termination of parental rights proceedings are governed by independent jurisdictional prerequisites. See N.C. Gen. Stat. § 7B-1101 (2017) ; see also In re R.T.W. , 359 N.C. 539, 553, 614 S.E.2d 489, 497 (2005) ( ), superseded by statute on other grounds as stated in In re K.L. , 196 N.C. App. 272, 674 S.E.2d 789 (2009) ; In re O.C. , 171 N.C. App. 457, 463, 615 S.E.2d 391, 395 (), disc. review denied , 360 N.C. 64, 623 S.E.2d 587 (2005).
N.C. Gen. Stat. § 7B-1101 ; see also id. § 7B-1103(a)(4) (2017) (). Thus, pursuant to N.C. Gen. Stat. § 7B-1101, the trial court is vested "with exclusive subject matter jurisdiction to determine any petition or motion for termination of parental rights of any juvenile in the legal or physical custody of DSS at the time of the filing." In re K.J.L. , 363 N.C. 343, 350, 677 S.E.2d 835, 839 (2009) (Timmons-Goodson, J., concurring) (original emphasis omitted).
In the instant case, in that the minor child was in the custody of DSS by virtue of her biological mother's relinquishment, DSS had standing to file the petition to terminate Res...
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In re E.B.
...of N.C.[G.S.] §§ 7B-402(a) and 403(a), and thus no juvenile abuse, neglect, or dependency action was ever commenced." In re E.B. , 834 S.E.2d 169, 172 (N.C. Ct. App. 2019). Indeed, Ella was never adjudicated to be an abused, neglected or dependent child. Her father indicated his desire to h......
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