In re J.B.

• Citation: 616 S.E.2d 264
• Decision Date: 02 August 2005
• Docket Number: No. COA04-579.,COA04-579.
• Parties: In the Matter of J.B.
• Court: North Carolina Supreme Court

616 S.E.2d 264

In the Matter of J.B.

No. COA04-579.

Court of Appeals of North Carolina.

August 2, 2005.

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Appeal by respondent from order entered 27 October 2003 by Judge Marvin P. Pope, Jr., in Buncombe County District Court. Heard in the Court of Appeals 26 January 2005.¹

Charlotte A. Wade, Esq., Asheville, for petitioner-appellee Buncombe County Department of Social Services.

Judy N. Rudolph, Asheville, for guardian ad litem-appellee.

Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, Morganton, for respondent-appellant.

TIMMONS-GOODSON, Judge.

Respondent-mother appeals the trial court order terminating her parental rights to her minor son, John.² For the reasons discussed herein, we affirm the order of the trial court.

The facts and procedural history pertinent to the instant appeal are as follows: On 7 October 2002, Buncombe County Department of Social Services ("petitioner") filed a petition to terminate respondent's parental rights to John. The petition asserted that sufficient evidence exists to terminate respondent's parental rights to John pursuant to N.C. Gen.Stat. § 7B-1111(a)(1), (2) and (6), in that respondent: (i) neglected John by failing to provide him with appropriate care, by subjecting him to an environment injurious to his emotional welfare, and by emotionally abusing John; (ii) willfully left John in foster care or placement out of the home for more than twelve months without making reasonable progress under the circumstances to correct those conditions which led to John's removal; and (iii) was incapable of providing for the proper care and supervision of John. The case proceeded to trial, and, after hearing arguments and receiving evidence from the parties, the trial court concluded that sufficient grounds exist to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B-1111(a)(1), (2), and (6). After concluding that it was in the best interests of John to do so, the trial court entered an order terminating respondent's parental rights on 27 October 2003. It is from this order that respondent appeals.

We note initially that respondent's brief contains arguments supporting only fourteen of the original fifteen assignments of error. Pursuant to N.C.R.App. P. 28(b)(6) (2005), the omitted assignment of error is deemed abandoned. Therefore, we limit our present review to those issues properly preserved by respondent for appeal.

The issues on appeal are whether the trial court erred by: (I) exercising personal jurisdiction over respondent; (II) denying respondent's request for a stay in the proceedings and thus exercising subject matter jurisdiction over the case; (III) denying respondent's motion to continue the trial; (IV) denying respondent's request for expenses; (V) denying respondent's motion to interview John; (VI) admitting into evidence prior disposition orders in the matter; (VII) admitting into evidence respondent's mental health records; (VIII) allowing two therapists to testify and render conclusions regarding their evaluations; (IX) excluding respondent from the courtroom during John's testimony; (X) concluding that respondent's parental rights should be terminated prior to a disposition hearing; (XI) concluding that it was in John's best interests to terminate respondent's parental rights; (XII) directing petitioner's attorney to draft the order for termination of parental rights; and (XIII) failing to enter the order terminating respondent's parental rights within thirty days.

I. Personal Jurisdiction

Respondent first argues that the trial court erred by exercising personal jurisdiction over her. Respondent asserts that the failure to properly serve John prevented the trial court from acquiring jurisdiction over respondent. We disagree.

Upon the filing of a petition to terminate parental rights, the Juvenile Code requires that a summons regarding the proceeding be issued to the juvenile whose rights are to be terminated. N.C. Gen.Stat. § 7B-1106(a)(5) (2003). "[T]he summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed[.]" Id. In the instant case, the record reflects that the summons required by N.C. Gen.Stat. § 7B-1106(a)(5) was served upon the guardian ad litem's attorney advocate rather than the guardian ad litem. Assuming arguendo that this was error, we note that the guardian ad litem did not object at trial to the sufficiency of service, nor does the guardian ad litem argue on appeal that the trial court lacked jurisdiction over John. Instead, respondent objects to the sufficiency of the service, arguing that the failure to properly serve John constitutes grounds for reversal of the trial court order.

"Only a `party aggrieved' may appeal from an order or judgment of the trial division." Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990) (quoting N.C. Gen.Stat. § 1-271). "An aggrieved party is one whose rights have been directly and injuriously affected by the action of the court." Culton, 327 N.C. at 625, 398 S.E.2d at 324. In the instant case, respondent has failed to demonstrate any prejudice to her resulting from the alleged failure to properly serve John. Thus, we are unable to conclude that respondent was "directly and injuriously" affected by the alleged error, and, accordingly, we overrule this argument.

II. Subject Matter Jurisdiction

Respondent presents two arguments asserting that the trial court erred by exercising subject matter jurisdiction over the case. Respondent first asserts that the trial court erred by denying her request for a stay in the termination proceeding pending this Court's determination of her appeal of previous orders. Respondent also asserts that the trial court did not have subject matter jurisdiction over the case at the time of the termination hearing, "pursuant to the decision of this [C]ourt captioned as In re J.B., 03-807[.]" Because of the similarity of these two arguments, we have chosen to address them concurrently, and, in light of the record before us, we conclude that the trial court did not err.

In In re J.B., 164 N.C.App. 394, 595 S.E.2d 794 (2004) ("J.B. I"), this Court reviewed a previous appeal by respondent stemming from trial court orders changing the permanency plan for John, releasing petitioner from all efforts to reunify respondent with John, and dismissing respondent's previous appeals regarding production of medical records and permanency planning hearings. Respondent contended in J.B. I "that the trial court did not possess subject matter jurisdiction in this matter because [John] and respondent were residing outside of North Carolina at the time the proceedings in this case were initiated." Id. at 396, 595 S.E.2d at 795. After reviewing the record, we were unable to conclude whether the trial court possessed subject matter jurisdiction. We thus vacated the order and remanded the case with instructions to the trial court to "make specific findings of fact to support its conclusion of law that it possessed subject matter jurisdiction under the [Uniform Child Custody Jurisdiction and Enforcement Act] and [Parental Kidnapping Prevention Act] as outlined in N.C. Gen.Stat. § 50A-201." Id. at 398, 595 S.E.2d at 797.

The record in the instant case reveals that, while respondent's prior appeal was pending, the trial court entered the instant order terminating respondent's parental rights. Respondent contends that the trial court was prohibited from entering an order terminating her parental rights while her prior appeal was pending before this Court. However, our Supreme Court has recently issued an opinion in In re R.T.W., ___ N.C. ___, 614 S.E.2d 489 (2005) (No. 417PA04), whereby the Court held that "a trial court retains jurisdiction to terminate parental rights during the pendency of a custody order appeal in the same case." ___ N.C. at ___, 614 S.E.2d at 498. The Court noted that "[e]ach termination order relies upon an independent finding that clear, cogent, and convincing evidence supports at least one of the grounds for termination under N.C.G.S. § 7B-1111[,]" Id. at ___, 614 S.E.2d at 497, and it concluded that, where a termination order is entered while a prior custody order is pending, "[t]he termination order necessarily renders the pending appeal moot." Id. at ___, 614 S.E.2d at 498. In the instant case, the trial court provided several findings of fact in support of its decision to exercise jurisdiction over the case in general and the termination proceedings in particular. Respondent does not object to any of these findings of fact on appeal. Therefore, in light of the foregoing, we conclude that the trial court had subject matter jurisdiction over the case and did not err in denying respondent's motion to stay the termination proceeding. Accordingly, this argument is overruled.

III. Motion to Continue

Respondent also argues that the trial court erred by denying her motion to continue the termination hearing. Respondent asserts that the trial court was required to continue the termination hearing due to respondent's recent incarceration. We disagree.

N.C. Gen.Stat. § 7B-803 (2003) provides as follows:

The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.

A trial court's decision regarding a motion to continue is discretionary and will not be disturbed on appeal absent a showing of abuse of discretion. In re Humphrey, 156 N.C.App. 533, 538, 577 S.E.2d 421, 425 (2003) (citin...