In re P.L.P., COA04-1150.

Docket NºNo. COA04-1150.
Citation618 S.E.2d 241
Case DateSeptember 06, 2005
CourtUnited States State Supreme Court of North Carolina

Page 241

618 S.E.2d 241
In the Matter of P.L.P.
No. COA04-1150.
Court of Appeals of North Carolina.
September 6, 2005.

Page 242

Appeal by respondents father and mother from order entered 23 March 2004 by Judge Peter L. Roda in Buncombe County District Court. Heard in the Court of Appeals 21 April 2005.

Charlotte W. Nallan and Kavita Uppal, Asheville, for petitioner Buncombe County Department of Social Services.

Judy N. Rudolph, Asheville, for Guardian ad Litem.

M. Victoria Jayne, Hickory, for respondent father.

Charlotte Gail Blake, for respondent mother.

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Mother and father appeal the trial court's termination of their parental rights over P.L.P. We affirm.

P.L.P. was born on 25 March 1995. In the months preceding her birth, mother attempted to commit suicide by drug overdose. In response, the Buncombe County Department of Social Services (DSS) offered mother parenting classes and substance abuse treatment.

In the summer and fall of 1999, DSS received reports that P.L.P. was subject to "inconsistent parenting" and domestic abuse, that mother was taking drugs, and that mother had left P.L.P. and her stepsister with mother's brother "for the night and had not returned for a few weeks." Mother's brother was given protective supervision of P.L.P. and her step-sister while mother received treatment for substance abuse and domestic violence. On one occasion, P.L.P. reported feeling sick and urinating blood, and explained that her "mama pulled the seatbelt really hard and hurt my belly."

On 5 November 1999, DSS filed a petition alleging P.L.P. was neglected, on the grounds that she did "not receive proper care, supervision, or discipline from [her] parent, guardian, custodian, or caretaker." The trial court adjudicated P.L.P. neglected, and ordered mother to complete parenting classes, domestic violence programs, and substance abuse treatment. Mother successfully completed the requirements, and by order entered 19 January 2001, the trial court ordered that (1) custody shall remain with mother, and that (2) DSS, the GAL, and their respective attorneys were "released from further responsibility in this matter and this juvenile file is hereby closed."

In November 1999, when DSS filed its first petition, father was in Buncombe County Jail. He was subsequently convicted of attempted first degree murder and sentenced to an active term of fourteen to eighteen years. At the termination hearing, father admitted that, while fighting in "a barroom brawl," he had "stabb[ed] a guy with a small pocketknife[.]"

On 9 May 2002, DSS filed a second petition alleging P.L.P. and her step-sister were neglected juveniles, on the grounds that P.L.P. did "not receive proper care, supervision, or discipline from [her] parent, guardian, custodian, or caretaker" and that she lived "in an environment injurious to [her] welfare." The petition alleged that mother left her children at her brother's house for days at a time, had relapsed into substance abuse, and had been hospitalized for an overdose of drugs. Following a hearing on this petition, the trial court adjudicated P.L.P. to be neglected. The court placed P.L.P.'s custody with Buncombe County DSS, and approved her placement in the home of a caregiver.

Six months later, in December 2002, the trial court conducted a permanency planning and review hearing. The trial court found that the conditions that had required P.L.P.'s removal from her home still existed, and directed that the permanent plan of care for P.L.P. include adoption. At the next permanency planning review several months later, the trial court found that mother's situation remained unchanged. The court directed that the permanent plan for P.L.P. be adoption or guardianship with a relative.

During the summer of 2003, while the child was residing with a guardian, DSS filed another petition alleging P.L.P. was neglected. The allegations in this petition focused on domestic violence between the guardian and his girlfriend, and on the guardian's alcohol abuse. At a hearing the trial court adjudicated P.L.P. neglected, continued her custody with DSS, and changed the permanent plan for P.L.P. to adoption.

On 17 September 2003, DSS filed a motion to terminate respondents' parental rights. At the hearing on this motion, father was present in court, but mother did not appear. In its order, the trial court made findings concerning the history of adjudications, dispositions, review hearings, and permanency planning hearings for the child; the court also found that, notwithstanding his incarceration, father had been present at many of these court proceedings. The court also set out the history of P.L.P.'s placements since P.L.P. first came under the jurisdiction of the court in 1995, and made findings on

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mother's lack of progress in improving her parenting skills or eliminating her drug dependency. The court also made the following findings concerning father:

. . . .

48. That the Respondent Father has been incarcerated since 1998 and is currently serving a 14 to 18 year sentence for attempted murder. That the Respondent Father made no efforts to provide anything for the minor child at any time, and has not provided any love, nurturance [sic] or support for the minor child. That it is reasonable to assume that the Respondent Father would continue to neglect the minor child if the child was placed in his care, custody, or control as he has shown no interest in the welfare of the minor child.

. . . .

54. That the Buncombe County Department of Social Services testified, and the court will find as facts, that reunification with the Respondent Father cannot take place as Respondent Father will be incarcerated until the minor child reaches majority. That the minor child needs permanency. That the visits with the minor child were blocked but that Respondent Father could have written. Respondent Father did not obtain a substance abuse assessment and treatment, he did not cooperate with the Buncombe County Department of Social Services and he had no involvement with the minor child before his incarceration.

The trial court concluded that both parents had: (1) neglected P.L.P., under G.S. § 7B-1111(a)(1), and (2) willfully left P.L.P. in foster care for more than twelve months without showing that reasonable progress had been made to correct the conditions that led to P.L.P.'s removal, under G.S. § 7B-1111(a)(2). In addition, the court found that mother had failed to pay a reasonable portion of P.L.P.'s costs of care for a continuous six month period, under G.S. § 7B-1111(a)(3), and had willfully abandoned P.L.P. for more than six months immediately preceding the filing of the petition, under G.S. § 7B-1111(a)(7).

Upon these and other findings and conclusions, the trial court concluded that termination of respondents' parental rights was in P.L.P.'s best interests. The court's order of termination was rendered in court on 23 January 2004, and entered on 23 March 2004. From this order respondents timely appealed. On appeal, respondents each contend the termination order should be reversed because the grounds found by the trial court are not supported by sufficient evidence. In addition, mother argues that the court lacked subject matter jurisdiction because she did not receive proper notice of the motion to terminate, and that the order on termination must be reversed because it was not timely entered.

Mother first argues that the court lacked jurisdiction to terminate her parental rights, on the grounds that she did not receive proper notice of DSS's motion to terminate her parental rights. She concedes that service was proper under N.C.G.S. § 1A-1, Rule 5. Mother contends, however, that service could only have been achieved in the instant case by meeting the requirements of N.C.G.S. § 1A-1, Rule 4. We disagree.

N.C.G.S. § 7B-1106.1 (2003) states, in pertinent part, that: "Upon the filing of a motion [to terminate parental rights] pursuant to G.S. § 7B-1102, the movant shall prepare a notice directed to . . . [t]he parents of the juvenile." N.C.G.S. § 7B-1102 (2003), in turn, provides that the service of the motion for termination of parental rights "required by G.S. 7B-1106.1 shall be served in accordance with G.S. 1A-1, Rule 5(b)[.]" However, where "[t]wo years has elapsed since the date of the original action[,]" service "must be in accordance with . . . Rule 4[.]" G.S. § 7B-1102(b)(1)c.

Mother argues that the "original action" was in 1999, when P.L.P. first came under the jurisdiction of the juvenile court. Mother posits that, because 1999 is outside the two-year period next preceding the date of the motion to terminate parental rights, service under Rule 4 was required. She contends that, because the Buncombe County Clerk of Court's office first opened a file concerning

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this juvenile in 1999, and assigned her case a "99 J" file number, this must be the "date of the original action" as provided in G.S. § 7B-1102(b)(1)c. We disagree.

Under N.C.G.S. § 7B-405 (2003), an "action is commenced by the filing of a petition in the clerk's office[.]" Thus, an action was commenced when the neglect petition was filed in 1999. However, as the trial court correctly observed, the case was later "closed" in December 2000, when P.L.P. was returned to mother's care and custody. Indeed, the trial court ceased exercising jurisdiction over the juvenile at that time. See N.C.G.S. § 7B-201 (2003) ("When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court[.]"); In re Dexter, 147 N.C.App. 110, 553 S.E.2d 922 (2001) (court's jurisdiction over the minor child terminated on a date certain as provided in the court order).

In the instant case, after the first case was closed in 2000, another action was not commenced until 9 May 2002, when DSS filed a petition alleging neglect. We conclude that, because jurisdiction had been...

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