In re S.N.
| Citation | 669 S.E.2d 55 |
| Decision Date | 02 December 2008 |
| Docket Number | No. COA08-624.,COA08-624. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | In the Matter of S.N., X.Z. |
Where the minor children were named in the caption of the summons in a proceeding to terminate parental rights, and the children's guardian ad litem was named as a respondent and accepted service of the summons, the trial court had subject matter jurisdiction. The trial court's uncontested findings of fact supported its conclusion that grounds existed for termination of respondent's parental rights based upon the minor children being willfully left in foster care for twelve months (N.C.Gen.Stat. § 7B-1111(a)(2)).
Respondent is the mother of S.N. and X.Z. Respondent was incarcerated from December 2004 to February 2006. While she was incarcerated, she allowed her mother, P. Barnes (Barnes), to take custody of S.N. Respondent gave birth to X.Z. while in prison and allowed Barnes to take custody of X.Z. Respondent was released from prison in February 2006 and did not assume custody of the children.
X.Z. was born with spina bifida and has special needs. He is able to walk with the aid of leg braces, he has to be catheterized four times per day, and he has a shunt in his brain that drains fluid.
On 16 June 2006, the Guilford County Department of Social Services ("DSS") became involved in the case. A petition was filed that alleged the following: (1) respondent was addicted to crack cocaine; (2) Barnes was an alcoholic; (3) domestic violence occurred in the home of Barnes; and (4) X.Z. had unexplained burns on his foot. Barnes entered into a safety plan with DSS on 7 July 2006, but she failed to comply with its terms. The juveniles were placed in DSS custody on 27 July 2006 and have been in DSS custody since that date. S.N. and X.Z. were adjudicated neglected and dependent by consent on 7 September 2006.
On 15 May 2007, respondent entered into a case plan with DSS for reunification. The case plan required her to: (1) establish a verifiable source of income; (2) complete a medication and parenting assessment and follow all recommendations; (3) complete a drug and alcohol assessment and provide proof of completion; (4) remain drug and alcohol free and submit to random drug screens; and (5) establish stable and suitable housing for the return of the children and not be evicted due to nonpayment of rent or mortgage. Respondent entered into a second case plan on 17 August 2007, which reiterated the previous objectives and contained an additional condition that she obtain counseling.
On 4 September 2007, DSS filed a petition to terminate respondent's parental rights to S.N. and X.Z. The petition also sought to terminate the parental rights of the father of X.Z. The father of S.N. was deceased. The petition alleged the following grounds for termination: (1) neglect, (2) willful abandonment, (3) willfully leaving the children in foster care for over twelve months without showing reasonable progress in correcting the conditions which led to removal, and (4) willful failure to pay a reasonable portion of the cost of care for the juveniles.
The trial court conducted hearings in the matter on 5 November 2007, 3 December 2007, 14 January 2008, 17 January, 24 January, and 11 February 2008. Melissa Fox, a Licensed Clinical Social Worker, and Christopher Hines, the Child Protective Services ("CPS") case worker assigned to the children's case, testified for DSS. Mr. Hines testified that DSS was unable to make contact with respondent for a long period of time after the children were taken into DSS custody, and that respondent failed to keep appointments with DSS. Mr. Hines further testified that, after entering into the 15 May and 17 August 2007 case plans, respondent continued to change her residence and was twice incarcerated. Respondent's whereabouts were unknown to DSS for several months in the summer and fall of 2007. Finally, Mr. Hines testified that respondent had not met the objectives in her case plan. Ms. Fox began treating S.N. for anxiety on 26 September 2006. She felt that it was not in S.N.'s best interest to return to live with respondent. Respondent testified about her problems with drug and alcohol abuse, her new job, and her attempts to meet the objectives of her case plan.
On 14 March 2008, the trial court entered an order terminating respondent's parental rights to S.N. and X.Z. on the grounds of (1) neglect under N.C. Gen.Stat. § 7B-1111(a)(1); (2) willfully leaving the children in foster care under N.C. Gen.Stat. § 7B-1111(a)(2); and (3) willfully failing without justification to pay a reasonable portion of the cost of care for the children under N.C. Gen.Stat. § 7B-1111(a)(3). From these orders, respondent appeals. X.Z.'s father's parental rights were terminated, and he did not appeal.
In her first argument, respondent contends that the trial court lacked subject matter jurisdiction over this case on the grounds that the summons for the petition to terminate parental rights did not list the minor children as a respondents. We disagree.
The standard of appellate review for a question of subject matter jurisdiction is de novo. Raleigh Rescue Mission, Inc. v. Bd. of Adjust. of City of Raleigh, 153 N.C.App. 737, 740, 571 S.E.2d 588, 590 (2002).
N.C. Gen.Stat. § 7B-1106 (2007) governs the issuance of a summons in a termination of parental rights case and requires that the juvenile be named as a respondent. The statute provides, however, that "the summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem ..." Id. "The purpose of a summons is to give notice to a person to appear at a certain place and time to answer a complaint against him." Latham v. Cherry, 111 N.C.App. 871, 874, 433 S.E.2d 478, 481 (1993) (quotation omitted). "Service of summons on the guardian ad litem ... constitutes service on the juvenile, as expressly stated in N.C. Gen.Stat. § 7B-1106(a)." In re J.A.P., ___ N.C.App. ___, ___, 659 S.E.2d 14, 17 (2008).
On 4 September 2007, a summons was issued that named the children's guardian ad litem as a respondent. S.N.'s and X.Z.'s names were included in the caption of the summons, but S.N. and X.Z. were not named as respondents. Chet Zukowski, the guardian ad litem appointed on 10 August 2006, accepted service on behalf of the children on or about 14 September 2007.
The summons' deviation from the requirements of N.C. Gen.Stat. § 7B-1106(a) are akin to a nonjurisdictional irregularity and not a defect that deprives the trial court of subject matter jurisdiction. See In re A.F.H-G., ___ N.C.App. ___, ___, 657 S.E.2d 738, 742 (2008) (Stephens, J., concurring). Further, we are bound by the holding of this Court in J.A.P. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, we hold that service of the summons upon the children's guardian ad litem constituted service on S.N. and X.Z. for purposes of N.C. Gen.Stat. § 7B-1106(a). The trial court had subject matter jurisdiction over these proceedings.
This argument is without merit.
In her second argument, respondent contends that the trial court erred in terminating her parental rights on the grounds that the evidence did not support the trial court's conclusion that her parental rights should be terminated. We disagree.
Termination of parental rights is a two-step process. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001) (citation omitted). In the first phase of the termination hearing, the petitioner must show by clear, cogent and convincing evidence that a statutory ground to terminate exists. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997) (citation omitted). The trial court must make findings of fact which are supported by this evidentiary standard, and the findings of fact must support the trial court's conclusions of law. In re Shermer, 156 N.C.App. 281, 285, 576 S.E.2d 403, 406 (2003). "The standard of review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law." In re Shepard, 162 N.C.App. 215, 221-222, 591 S.E.2d 1, 6 (2004) (quoting In re Clark, 72 N.C.App. 118, 124, 323 S.E.2d 754, 758 (1984)). The trial court's conclusions of law "are fully reviewable de novo by the appellate court." Mann Contr'rs, Inc. v. Flair with Goldsmith Consultants-II, Inc., 135 N.C.App. 772, 775, 522 S.E.2d 118, 121 (1999) (citation omitted). "So long as the findings of fact support a conclusion [that one of the enumerated grounds exists] the order terminating parental rights must be affirmed." In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (quotation omitted).
Once the trial court has found a ground for termination, the court then considers the best interests of the child in making its decision on whether to terminate parental rights. Blackburn at 610, 543 S.E.2d at 908. We review this decision on an abuse of discretion standard, and will reverse a court's decision only where it is "manifestly unsupported by reason." Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
N.C. Gen.Stat. § 7B-1111(a)(2)
In considering the ground for termination under Section 7B-1111(a)(2), the trial court must employ a two-part analysis and determine: (1) that a child has been willfully left by the...
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