In the Matter of V.T., No. COA06-355 (N.C. App. 2/6/2007)
| Decision Date | 06 February 2007 |
| Docket Number | No. COA06-355,COA06-355 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: V.T. & A.T., Minor Children. |
McDaniel & Anderson, L.L.P., by John M. Kirby, for the Guardian ad Litem.
Katharine Chester for respondent-appellant.
N.T.1 (respondent-mother) appeals from an order entered 11 August 2005 terminating her parental rights to her minor children V.T. and A.T. For the reasons below, we affirm the order of the trial court.
In June of 2002 the Iredell County Department of Social Services (DSS) received referrals concerning respondent and her minor child, A.T. On 20 June 2002, A.T. was placed in the custody of respondent's mother and step-father. Iredell County DSS learned on 23 August 2002 that respondent's step-father was a registered sex offender and immediately removed A.T. from the step-father's custody and placed him in foster care. A.T. was subsequently adjudicated a neglected and dependent juvenile by the Iredell County District Court on 8 October 2002.
The case was transferred to Mecklenburg County Youth and Family Services (YFS) on 26 November 2002. The Mecklenburg County District Court conducted a Dispositional Hearing on 4 March 2003, where the trial court adopted the Iredell County DSS case plan and YFS's recommendations. Respondent generally met the requirements of her case plan and a subsequent Permanency Planning Hearing was conducted on 19 April 2004 resulting in a trial home placement of A.T. with respondent on 27 April 2004.
On 6 May 2004, YFS filed a Juvenile Petition regarding V.T. after learning that the mother gave birth to V.T. on 29 April 2004 without having informed her social worker, the Guardian ad Litem's office or the court of her pregnancy, and because respondent had placed V.T. in the custody of her mother when she was admitted to the hospital for complications arising from the birth. YFS subsequently assumed custody of both V.T. and A.T. A Permanency Planning Review Hearing in A.T.'s case on 19 July 2004 resulted in the trial court changing the goal to adoption. V.T.'s case came before the trial court on 21 July 2004, where V.T. was adjudicated a neglected and dependent juvenile, and the trial court ordered YFS to cease reunification efforts and set the goal as adoption. On 4 November 2004 YFS filed petitions to terminate respondent's parental rights to V.T. and A.T. Respondent was not served with the petitions until 5 May 2005. The case came on for hearing on the Termination Petitions at the 27 June and 7 July 2005 sessions of Juvenile Court, Mecklenburg County, before the Hon. Louis A. Trosch, Jr., District Court Judge presiding. On 11 August 2005, the trial court entered an Order terminating respondent's parental rights to V.T. and A.T. Respondent appeals.
Respondent raises the issues of whether the trial court: (I) lacked subject matter jurisdiction over the instant action; (II) erred in failing to hold a timely hearing on the petitions to terminate respondent's parental rights; (III) erred in denying respondent's motion to recuse the presiding judge; (IV) erred in terminating respondent's parental rights because there was insufficient clear, cogent, and convincing evidence to support the trial court's findings of fact which also do not support its conclusions of law; and (V) erred in finding it was in the best interests of the children to terminate respondent's parental rights.
Respondent first argues the trial court lacked subject matter jurisdiction over the action to terminate respondent's parental rights because petitioner failed to secure its endorsement of the summons in this matter before it expired, and thus the action was discontinued. "Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question[, and] . . . is conferred upon the courts by either the North Carolina Constitution or by statute." Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987) (internal citation omitted). The district court division of the General Court of Justice has exclusive original jurisdiction of proceedings to terminate parental rights. N.C. Gen. Stat. § 7B-200(a)(4) (2005). The trial court's jurisdiction is further dependent on the existence of a valid petition filed with the trial court as a "court cannot undertake to adjudicate a controversy on its own motion[.]" In re Transportation of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 558 (1991); see also In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003) ().
Turning to respondent's argument, this Court has held that "[w]here service does not occur within the required period and an endorsement, extension, or alias/pluries summons is not acquired within ninety days of the summons' issuance, the action is discontinued, the trial court lacks jurisdiction, and any judgment rendered is void." In re A.B.D., 173 N.C. App. 77, 78, 617 S.E.2d 707, 709 (2005) (citation omitted). However, where an endorsement is not obtained within ninety days after issuance or prior endorsement of a summons and the action has been discontinued, a further extension of the summons may be endorsed by the clerk, but "the action shall be deemed to have commenced on the date of such issuance or endorsement." N.C. Gen. Stat. § 1A-1, Rule 4(e) (2005).
Here, the initial summonses for respondent in this matter were issued on 4 November 2004. These summonses were returned unserved and petitioner did not obtain an endorsement on the summonses within ninety days of their issuance. Therefore, the action against respondent was discontinued on 5 February 2005. However, petitioner obtained an endorsement on the summonses on 27 April 2005 and the action to terminate respondent's parental rights is deemed to have been instituted against respondent as of this date. Respondent was served with the endorsed summonses on 9 May 2005, within the thirty-day extension granted by the 27 April 2005 endorsement. Because the summonses were properly endorsed before they were served on respondent, the action to terminate respondent's parental rights was not discontinued at the time respondent was served with the summonses and the trial court had the requisite jurisdiction to hear the petition. This assignment of error is overruled.
Respondent next argues the trial court erred in failing to hold a timely hearing on the petition to terminate respondent's parental rights. The trial court must hold an adjudicatory hearing on a petition to terminate parental rights "no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of [§ 7B-1109] orders that it be held at a later time." N.C. Gen. Stat. § 7B-1109(a) (2005). As discussed in IssueI, supra, the petition to terminate respondent's parental rights was effectively filed on 27 April 2005. The trial court convened its hearing on the petition to terminate respondent's parental rights on 27 June 2005, and concluded the hearing on 7 July 2005. The hearing was convened sixty-one days, and concluded seventy-one days, after the petition was filed. Thus, the trial court held a timely hearing on the petition to terminate respondent's parental rights. This assignment of error is overruled.
We note that respondent attempts to include an argument that the petition to terminate respondent's parental rights was not filed within sixty days of the trial court's order from the permanency planning hearing ceasing reunification efforts and ordering petitioner to file a petition to terminate respondent's parental rights. See N.C. Gen. Stat. § 7B-907(e) (2005) (). However, respondent has not assigned this issue as error. It is well settled that "[t]he scope of appellate review is limited to those issues presented by assignment of error set out in the record on appeal[; and where] no assignment of error corresponds to the issue presented, this matter is not properly presented for our consideration." State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 771 (1992) (citing N.C. R. App. P.10(a)). Therefore we will not consider this aspect of respondent's argument.
Respondent also argues the trial court erred in denying respondent's motion to recuse Judge Trosch from hearing the action to terminate respondent's parental rights because the record reveals that he had a personal bias concerning respondent and had predetermined the outcome of the hearing. We disagree.
"[A] party has a right to be tried before a judge whose impartiality cannot reasonably be questioned." State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987). "[A] judge should disqualify himself/herself in a proceeding in which the judge's impartiality may reasonably be questioned[.]" N.C. Code of Judicial Conduct, Canon (3)(C)(1) (2007). "When a party requests such a recusal by the trial court, the party must demonstrate objectively that grounds for disqualification actually exist." In re Faircloth, 153 N.C. App. 565, 570, 571 S.E.2d 65, 69 (2002) (citation and internal quotation marks omitted). "The requesting party has the burden of showing through substantial evidence that the judge has such a personal...
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