In re S.F.
| Decision Date | 04 August 2009 |
| Docket Number | No. COA09-426.,COA09-426. |
| Citation | 682 S.E.2d 712 |
| Parties | In re S.F. |
| Court | North Carolina Court of Appeals |
Feagan Law Firm, PLLC, by Phillip R. Feagan, Columbus, for petitioner-appellee, Polk County Department of Social Services.
Pamela Newell Williams, for the Guardian ad Litem.
Peter Wood, for respondent-appellant.
In this appeal, Respondent-Father argues the trial court erred by terminating his parental rights to minor child S.F. Because clear and convincing evidence supports the trial court's findings of fact, which in turn support grounds to terminate Respondent-Father's parental rights, we affirm.
On 20 August 2003, the Polk County Department of Social Services (DSS) filed a juvenile petition alleging that S.F. had severe bruising all over her body, and that S.F. told hospital personnel that her mother's boyfriend caused the bruising. DSS took nonsecure custody of S.F. and custody was continued until the adjudication hearing pursuant to the consent of S.F.'s mother. In October 2003, the trial court adjudicated S.F. an abused, neglected, and dependent juvenile based upon her being physically abused by her mother's boyfriend while in her mother's home.
S.F. was initially placed in a foster home, but after Respondent-Father made substantial gains toward reunification, the trial court placed S.F. with Respondent-Father in April 2004. However, following a permanency planning hearing in October 2004, the trial court removed S.F. from Respondent-Father's home based upon his positive tests for illegal drugs, and having been charged with drug and weapon offenses. The trial court placed S.F. with her paternal grandparents and allowed visitation.
In April 2005, the trial court awarded guardianship of S.F. to the paternal grandparents and ceased reunification efforts with Respondent-Father and S.F.'s mother. Upon learning that the paternal grandmother had allowed S.F. to spend the night at Respondent-Father's home where he and his girlfriend abused drugs, DSS filed a motion for review. In September 2005, the trial court terminated the paternal grandparents' guardianship of S.F. and returned custody of S.F. to DSS.
The paternal grandparents appealed the termination of their guardianship, and Respondent-Father appealed the cessation of reunification efforts by DSS. Meanwhile, S.F.'s mother relinquished her parental rights to S.F., who was placed with a family that adopted S.F.'s half-sister. After holding a permanency planning hearing on 24 October 2006, the trial court concluded that DSS should pursue termination of Respondent-Father's parental rights pending the outcome of the appeal by Respondent-Father and S.F.'s paternal grandparents. By an unpublished opinion filed 2 January 2007, this Court affirmed the trial court's order terminating guardianship and ceasing reunification efforts. In re S.F., 181 N.C.App. 149, 639 S.E.2d 454 (2007) (unpublished).
On 23 May 2007, DSS filed a petition to terminate Respondent-Father's parental rights and, on 21 November 2007, the trial court terminated Respondent-Father's parental rights. Respondent-Father appealed to this Court. By opinion filed 3 June 2008, this Court vacated the trial court's order for lack of subject matter jurisdiction. In re S.F., 190 N.C.App. 779, 660 S.E.2d 924 (2008).
On 14 August 2008, DSS filed a motion to terminate Respondent-Father's parental rights. The trial court conducted a hearing on the motion on 22 December 2008. Following the hearing, the trial court orally announced the termination of Respondent-Father's parental rights in open court. Respondent-Father filed notice of appeal from that order on 31 December 2008. However, the trial court's written order was not filed until 4 February 2009.1 In its order, the trial court terminated Respondent-Father's parental rights based upon neglect (N.C. Gen.Stat. § 7B-1111(a)(1)) and willfully leaving the child in foster care without making reasonable progress under the circumstances (N.C. Gen.Stat. § 7B-1111(a)(2)). The trial court also concluded that it was in the best interest of the child to terminate Respondent-Father's parental rights.
All parties to this appeal filed briefs in this Court. Respondent-Father filed a brief on 16 April 2009, the Guardian ad Litem for S.F. filed a brief on 5 May 2009, and DSS filed a brief on 18 May 2009. Respondent-Father also filed a petition for writ of certiorari on 13 May 2009. However, the Guardian ad Litem and DSS filed a joint motion to dismiss this appeal on 28 May 2009, alleging that this Court lacks jurisdiction because Respondent-Father's Notice of Appeal was untimely and included no certificate of service.
Thus, we first consider our jurisdiction to hear this appeal. Regarding the timeliness of Respondent-Father's notice of appeal, this Court has squarely held that notice of appeal given within thirty days after rendering of judgment in open court, but before entry of judgment, is timely. Darcy v. Osborne, 101 N.C.App. 546, 548, 400 S.E.2d 95, 96 (1991). Therefore, Respondent-Father's notice of appeal in this case was timely.
The Guardian ad Litem and DSS also contend that this Court lacks jurisdiction because the notice of appeal did not include a certificate of service. However, our case law establishes that the failure to show proof of service affects personal jurisdiction and does not deprive this Court of subject-matter jurisdiction. Blevins v. Town of West Jefferson, 182 N.C.App. 675, 682-83, 643 S.E.2d 465, 469-70 (Geer, J., dissenting), adopted per curiam, 361 N.C. 578, 653 S.E.2d 392 (2007); Hale v. Afro-American Arts Int'l, 110 N.C.App. 621, 625, 430 S.E.2d 457, 459-60 (Wynn, J., dissenting), adopted per curiam, 335 N.C. 231, 436 S.E.2d 588 (1993). But cf. In re C.T. & B.T., 182 N.C.App. 166, 641 S.E.2d 414, aff'd per curiam, 361 N.C. 581, 650 S.E.2d 593 (2007) (). Because this Court has subject-matter jurisdiction over this appeal, and the record shows that the Guardian ad Litem and DSS had actual notice of this appeal, we exercise our discretion and allow Respondent-Father's petition for writ of certiorari to address the merits of his contentions. See N.C.R.App. 21.
On the merits of his appeal, Respondent-Father contends the trial court: (I) erred by concluding that grounds existed to terminate his parental rights; and (II) abused its discretion by concluding that terminating his parental rights was in S.F.'s best interests. We disagree with Respondent-Father's contentions.
Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, "the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists." In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002). "If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child." Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. Id.
Parental rights may be terminated when "[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile." N.C. Gen.Stat. § 7B-1111(a)(2) (2007). Willfulness does not imply fault on the part of the parent, but may be established "`when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.'" In re O.C. & O.B., 171 N.C.App. 457, 465, 615 S.E.2d 391, 396 (quoting In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175 (2001)), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005). Even if a parent has made some efforts to regain custody, a trial court may still find that he or she willfully left the child in foster care under section 7B-1111(a)(2). See id.
Supporting its conclusion that Respondent-Father willfully left S.F. in foster care or placement outside the home for more than 12 months without showing reasonable progress to the satisfaction of the court, the trial court found in pertinent part:
14. The child was first placed in the custody of Polk County DSS on August 20, 2003, when a Non-Secure Custody Order was entered and continued until October 21, 2003, when an Adjudication Order of Abuse and Neglect was entered. The child remained in foster care until a trial placement began with the Respondent Father ... by Order entered April 13, 2004. The child remained in the home of the Respondent Father until October 2004, when she was moved into the home of her paternal grandparents ... after Polk County DSS learned that the Respondent Father was charged with drug and weapon offenses and tested positive for controlled substances.
15. Guardianship of the child was given to the paternal grandparents by Order entered April 12, 2005. Said guardianship in the paternal grandparents was terminated by Order entered September 13, 2005, after said guardians allowed the child to be unsupervised in the presence of persons using illegally controlled substances, thereby neglecting their duties as guardian of the person of the juvenile. On December 21, 2005, the child was placed in her current foster care placement where she continues to reside.
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19. On December 21, 2005, the child was placed in her current foster care placement which is where she continues to reside. The juvenile has remained...
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