In the Matter of S.J.F.P., No. COA09-186 (N.C. App. 7/7/2009)
| Decision Date | 07 July 2009 |
| Docket Number | No. COA09-186,COA09-186 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: S.J.F.P., Minor Child. |
Donald E. Harrop, Jr. for petitioner-appellee.
Christy E. Wilhelm for respondent-appellant.
L.P. ("respondent") appeals from the order terminating her parental rights to the minor child, S.J.F.P. For the reasons discussed herein, we affirm the trial court's order.
Respondent is the biological mother of S.J.F.P. Before S.J.F.P. was toilet-trained and weaned from a bottle, respondent left him with his paternal aunt, Christine Williams ("petitioner"). When respondent dropped S.J.F.P. off with petitioner she "wasn't in a mental or a financial state . . . to take care of [him]." Petitioner was to "watch him" until respondent could "better" herself. Respondent did not return for S.J.F.P. Her "life just kept going down and down and didn't never get back up and it just kept going down."
Petitioner's brother was S.J.F.P.'s biological father. On 4 May 2006, S.J.F.P.'s father died. On 5 June 2006, petitioner filed a petition to terminate respondent's parental rights. An amended petition was filed 31 August 2007. Petitioner alleged grounds existed to terminate respondent's parental rights as follows:
N.C. Gen. Stat. 7B-1111(a)(1)— The mother has neglected the juvenile. When the juvenile was approximately one year old, she delivered the juvenile to the Petitioner. Since that time, she has not visited, has paid no support, has sent no cards or presents, has not called concerning the welfare of the child, and has had absolutely no role in the minor child's life.
N.C. Gen. Stat. 7B-1111(a)(7)— The mother has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of this Petition. As stated above, the mother has not visited the child in a number of years, has paid no support, has sent no cards or presents, has not inquired about the health, education, or general welfare of the minor child and has had no contact with him.
On 17 October 2008, a hearing was held in this matter. The trial court found that grounds existed for the termination of respondent's parental rights, and the order terminating her parental rights was filed on 21 November 2008. Respondent appeals.
We first address respondent's contention that the trial court lacked subject matter jurisdiction in this action because the summons was not served upon the juvenile in accordance with N.C.G.S. § 7B-1106(a) and Rule 4(j) of the North Carolina Rules of Civil Procedure. We note that, although respondent states that the trial court lacked subject matter jurisdiction, the argument presented in her brief involves personal jurisdiction. Specifically, respondent argues that failure to serve the juvenile's guardian ad litem removed the trial court's personal jurisdiction over the juvenile.
Our Supreme Court recently held that "summons-related deficiencies implicate personal jurisdiction rather than subject matter jurisdiction." In re J.T., 363 N.C. 1, 2, 672 S.E.2d 17 (2009). "Objections to a court's exercise of personal (in personam) jurisdiction . . . must be raised by the parties themselves and can be waived in a number of ways." J.T., at 4, 672 S.E.2d at 18. "[A]ny form of general appearance `waives all defects and irregularities in the process and gives the court jurisdiction of the answering party even though there may have been no service of summons.'" Id. (quoting Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 359 (1956)).
In this case, a summons was issued in the name of the juvenile and petitioner accepted service on his behalf. The guardian ad litem was not served; however, the guardian ad litem appeared at the termination hearing, presented a report, and testified. The guardian ad litem made no objection to the trial court's exercise of personal jurisdiction over S.J.F.P. The guardian ad litem's full participation in the termination proceedings, without objection, constituted a general appearance and served to waive any objections that might have been made. Id. at 4, 672 S.E.2d at 19. We therefore conclude that the trial court acquired and properly exercised personal jurisdiction over the juvenile. This assignment of error is overruled.
We next address respondent's contention that the trial court erred in failing to conduct the termination hearing within ninety days of the filing of the termination petition, thus violating N.C.G.S. § 7B-1109(a).
Failure of the trial court to timely hold the termination hearing after the filing of the termination petition need only be reversed when the appellant demonstrates prejudice as a result of the delay. In re S.W., 175 N.C. App. 719, 722, 625 S.E.2d 594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006). To show prejudice, respondent must show that any delay "had a probable impact on the outcome of the proceeding." In re D.B., 186 N.C. App. 556, 560, 652 S.E.2d 56, 59 (2007) (internal quotation marks omitted), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008).
Respondent contends the delay in conducting the termination hearing resulted in prejudice to her by further distancing her from S.J.F.P. Respondent could have sought judicial assistance in seeing S.J.F.P., but did not do so. We find that the delay provided respondent with an opportunity to correct her lack of involvement with S.J.F.P., and respondent failed to take full advantage of that opportunity. Accordingly, respondent has failed to show prejudice and this assignment of error is overruled.
We now turn to respondent's argument that the trial court's findings of fact are not supported by clear, cogent, and convincing evidence; and that the trial court's conclusions of law are not supported by the findings of fact.
A termination of parental rights proceeding is conducted in two phases: (1) adjudication and (2) disposition. See In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudication phase, the petitioner has the burden of proving by clear, cogent, and convincing evidence that one or more of the statutory grounds for termination under N.C.G.S. § 7B-1111(a) exists. Id. "The standard of appellate review of the trial court's conclusion that grounds exist for termination of parental rights is whether the trial judge's findings of fact are supported by clear, cogent, and convincing evidence, and whether these findings support its conclusions of law." In re Nesbitt, 147 N.C. App. 349, 351, 555 S.E.2d 659, 661 (2001). Findings of fact supported by competent evidence are binding on appeal, even where there is evidence which supports contrary findings. See In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166, 169 (2002), cert. denied, 356 N.C. 672, 577 S.E.2d 627 (2003).
Respondent challenges the following findings of fact made by the trial court:
11. The minor child resided with the Petitioner for a period of at least two years prior to the filing of this Petition. In fact, the child has lived with the Petitioner since shortly after his birth.
12. The minor child came to live with the Petitioner while he was still in diapers. Since that time, the Petitioner has raised him essentially on her own. She has been responsible for his support, both financially and emotionally. She has taken care of his medical needs and seen that he attends school on a regular basis. She has been responsible to [sic] take care of his educational needs and has provided for his day care.
13. The minor child calls her "mother[.]"
14. The Petitioner lives in an appropriate home where the juvenile has his own room. He has been described as an intelligent young man and there was no testimony that he is a behavior problem in any way[.]
15. The Respondent Mother has not provided any financial support for this child to the Petitioner. She admitted that she has not paid any money towards his support. She also admitted that she has not paid any money for his day care[.]
16. The Respondent Mother has not attended to any of the child's educational needs and has not been to his school. She does not know who his teachers are this year and has not made any contact with the Petitioner or the child's teachers to inquire about his schooling.
17. The Respondent has not provided for the child's emotional needs, nor has she provided him the love and affection that one would expect of a parent. She has not visited the child in a number of years except when he would go to visit his sisters or other family members[.]
18. It is in the best interests of this child for the rights of the mother to be terminated. He is in a stable and secure location. He is progressing emotionally and socially. The Guardian Ad Litem report was introduced into evidence and she testified[.] By her evidence, the minor child wants to remain with the Petitioner and considers her home to be his home. It is the intention of the Petitioner to adopt this child[.]
Here, the evidence tended to show that S.J.F.P. was eleven years old at the time of the termination hearing. He came to live with petitioner when he was still in diapers, and petitioner has been responsible for taking care of S.J.F.P.'s needs since that time. Although, respondent's mother and daughters often visited with S.J.F.P. and provided gifts and cards, the evidence did not show that respondent did. Instead, respondent would see S.J.F.P. around town. Respondent testified that she did not know who S.J.F.P.'s teachers were and she never visited the school. Furthermore, respondent admitted that she never paid any support for S.J.F.P. because petitioner never asked. Accordingly, we find that the trial court's findings of fact are based on clear, cogent, and convincing evidence.
Having determined that the findings of fact are supported...
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