In re Howell, COA03-85.

CourtCourt of Appeal of North Carolina (US)
Citation161 NC App. 650,589 S.E.2d 157
Docket NumberNo. COA03-85.,COA03-85.
PartiesIn re Barbara Marie Desiree HOWELL, DOB: 6-30-1995, A Minor Juvenile.
Decision Date16 December 2003

David A. Perez, Thomasville, for petitioner-appellee Gaston County Department of Social Services.

Hall & Hall, Attorneys at Law, P.C., by Douglas L. Hall, Newland, for respondent-appellant Kimberly Nicole Howell Jackson.

TYSON, Judge.

Kimberly Nicole Howell Jackson ("respondent") appeals from a judgment that terminated her parental rights. We affirm.

I. Background

On 25 July 1995, the Gaston County Department of Social Services ("GCDSS") filed a juvenile petition alleging that respondent's minor child, Barbara Marie Desiree Howell ("Barbara"), was a neglected child. GCDSS assumed legal custody of Barbara. An adjudication hearing was held on 25 September 1995. In its adjudication order, the trial court found Barbara to be "neglected" within the meaning of N.C. Gen.Stat. § 7A-517(21), in that Barbara did not receive proper care, supervision, or discipline from respondent. The trial court further found that Barbara tested positive for cocaine at birth and that respondent was homeless, a substance abuser, and exhibited incoherent and bizarre behavior. The trial court found respondent had a history of mental health treatments. On its own motion, the court also found Barbara to be "dependent" within the meaning of N.C. Gen.Stat. § 7A-517(13).

A dispositional hearing was held on 6 November 1995. Respondent was ordered to complete certain requirements to regain custody of Barbara. These requirements included: (1) obtaining a substance abuse evaluation, (2) receiving anger management treatment, (3) providing proper care and supervision for Barbara, and (4) cooperating in establishing paternity of Barbara.

Barbara remained in the legal and physical custody of GCDSS for over six years until the judgment terminating respondent's parental rights was filed on 13 June 2002. Respondent testified that she no longer used illegal drugs, that she continued to drink, but that her drinking was not a problem even though she was a recovering alcoholic.

Prior to the termination hearing, respondent had never provided GCDSS with any proof that she had participated in a substance abuse treatment program or an anger management program as ordered. Respondent was able to work and married to a man who had earned income of up to $5,000.00 per month, but never provided any financial assistance to Barbara during her six years in foster care.

From 8 April 1999 until visitation was ceased on 28 November 2000, respondent was afforded forty-one visitation opportunities with Barbara. Respondent attended only thirteen of these visits. Respondent arrived late and left early during some of these visits and involved herself in one activity while Barbara was involved in another. Respondent attributes her failure to attend more visitations and leaving early to having more than six social workers assigned to her case. Lack of transportation from her home in Cleveland County to Gaston County also caused communication difficulties and problems scheduling visitation.

Respondent's son, Barbara's half-brother, was twice-removed from but returned to respondent's care. Her son was removed in August of 2000 after a report was filed with the Cleveland County Department of Social Services ("CCDSS") that respondent and her son were riding in a vehicle where the driver was charged with DWI and where respondent was also very intoxicated. Respondent's son was again removed from her care after CCDSS received a report that respondent had threatened a farm worker with a knife after consuming wine.

CCDSS, however, also reported that respondent had maintained her supervised visitation schedule with her son and that she had enrolled and completed a forty-hour intermediate outpatient treatment program. CCDSS also reported that respondent completed an anger management program and that alcohol was never detected in over ninety in-home contacts.

On 21 October 1999, a psychological evaluation of respondent was ordered. Dr. William H. Varley ("Dr. Varley") concluded that Barbara had been under the foster mother's care since she was three-weeks-old. Dr. Varley testified that Barbara had attached and bonded to her foster mother. Dr. Varley also testified respondent's long-term instability and substance abuse had compromised her parenting capacity. The trial court found it to be in Barbara's best interests to terminate respondent's parental rights. Respondent appeals.

II. Issues

The issues are whether: (1) respondent should be granted a new trial due to the poor quality of the audio recording of portions of the termination hearing; (2) the trial court had jurisdiction over respondent or the termination hearing because no summons was issued to respondent in regards to the petition to terminate her parental rights as required by N.C. Gen.Stat. § 7B-1106; (3) the trial court had jurisdiction over respondent or the termination hearing as respondent was not served with the petition to terminate her parental rights pursuant to N.C. Gen.Stat. § 7B-1102; and (4) the trial court abused its discretion in determining that Barbara's best interests would be served by terminating respondent's parental rights.

III. Quality of Audio Recording

Respondent contends that she should be granted a new trial due to the poor quality of portions of the audio recordings at the termination hearing. We disagree.

There is a presumption of regularity in a trial. State v. Sanders, 280 N.C. 67, 72, 185 S.E.2d 137, 140 (1971). In order to overcome this presumption, it is necessary that matters which constitute material and reversible error appear in the record on appeal. Id.

Before a new trial should be ordered, certainly enough ought to be alleged to show that error was probably committed. If defense counsel even suspect[s] [sic] error in the charge, they should set out in the record what the error is. If the solicitor does not object, theirs becomes the case on appeal. If he does object, the court could then settle the dispute. The appellate court would then have something tangible upon which to predicate a judgment. The material parts of a record proper do not include either the testimony of the witnesses or the charge of the court.

Id.

In State v. Neely, this Court considered an assignment of error in which a complete stenographic trial transcript was lacking. 26 N.C.App. 707, 708, 217 S.E.2d 94, 96 (1975). A partial transcript was prepared. Id. The direct examination of at least two witnesses, in addition to defendant's testimony, were not transcribed. Id. The defendant appealed and alleged errors which may have been committed in portions of the lost testimony. Id. This Court emphasized the presumption of regularity in a trial and indicated that specific error should have been set forth by the defendant in the record. Id. We concluded that mere allegations that error may have occurred was not sufficient for a reversal. Id. at 709, 217 S.E.2d at 97. We stated that "[a]bsent some specific, affirmative showing by the defendant that error was committed, we will uphold the conviction because of the presumption of regularity in a trial." Id.

Respondent sets out numerous portions of the transcript of the termination hearing that are unintelligible, but cites no specific instances of alleged reversible error committed by the trial court in these omitted portions. Respondent argues these portions are unintelligible and that a new trial should be granted. Respondent has failed to demonstrate any "specific, affirmative showing" that error was committed in the unintelligible portions of the transcript to overcome the presumption of regularity. Id. Respondent's assignment of error is overruled.

IV. Failure to Issue Summons and Serve Petition

Respondent contends that the trial court had no jurisdiction over her or the termination hearing. She asserts no summons was issued in the petition to terminate her parental rights and she was not served with the petition to terminate parental rights. As issues three and four are similar, we address them together.

Rule 12 of the North Carolina Rules of Civil Procedure requires that certain defenses must be raised by a pre-answer motion or in a responsive pleading. N.C. Gen. Stat. § 1A-1, Rule 12(h) (2001). Failure to do so waives these defenses. Id. Among the defenses that must be raised are jurisdiction over the person, insufficiency of process, and insufficiency of service of process. Id. Our Supreme Court has held that a general appearance of a party in an action gives the court jurisdiction over the appearing party even though no service of a summons is shown. Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 358-359 (1956).

Respondent failed to object, by motion or otherwise under Rule 12 of the North Carolina Rules of Civil Procedure, to either a lack of personal jurisdiction over her or insufficiency of process or service of process at any point prior to or during the termination hearing. Respondent made a general appearance at the adjudicatory hearing and at the dispositional hearing. Respondent waived these issues as defenses. The trial court gained jurisdiction through respondent's waiver. Respondent appeared in court on 28 August 1995, signed an affidavit of indigency, and requested that counsel be appointed to her. Respondent was represented by counsel at the adjudicatory hearing on 25 September 1995. Both respondent and her counsel were present at the dispositional hearing on 6 November 1995.

Respondent filed and served upon petitioner in the dispositional hearing an "Answer to Petition to Terminate Parental Rights," which was verified by respondent. Respondent failed to assert the defenses of lack of personal jurisdiction and insufficiency of process or service of process. There is no evidence that respondent raised these defenses in a pre-answer motion. These issues were...

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