Opinion
No. COA05-886
Filed 21 March 2006 This case not for publication
Appeal by respondent from order entered 8 July 2004 by Judge William G. Jones in Cleveland County District Court. Heard in the Court of Appeals 21 February 2006.
Charles E. Wilson, Jr., for petitioner-appellee Cleveland County Department of Social Services. Douglas L. Hall for respondent-appellant. Jeannie Brown for Guardian ad Litem Program.
Cleveland County No. 02 J 109.
Respondent-mother ("P.M.") appeals from an order of the trial court, terminating her parental rights to the minor child ("A.W.M."). We affirm.
P.M. is the mother and respondent-father ("R.M.") is the father of the minor child. On 9 May 2002, the Cleveland County Department of Social Services ("D.S.S.") filed a petition alleging neglect and abuse. On that date, the trial court granted D.S.S. non-secure custody of A.W.M., and since that time, he has remained in D.S.S.'s custody. Subsequently, the respondent parents stipulated to neglect since
the juvenile lived in an environment injurious to his welfare[.] [T]he respondent parents had prior histories with the Cleveland and Transylvania County Departments of Social Services. That the respondent mother had been involved with the Transylvania County Department of Social Services following the substantiation and adjudication of severe physical abuse of her then 22-month old daughter while in the mother's home. That the respondent father had been involved with the Cleveland County Department of Social Services following substantiation and adjudication of sexual abuse of a minor child in the home of the father.
Based upon the stipulation, the trial court adjudicated A.W.M. a neglected juvenile and entered a dispositional order that placed A.W.M. with D.S.S. and required the respondent parents, in part, to undergo psychological evaluations and "demonstrate appropriate parenting skills, including knowledge of child development, age appropriate behaviors and age appropriate discipline." After numerous review and permanency planning hearings, D.S.S. moved to terminate P.M.'s and R.M.'s parental rights, and the trial court held a hearing. At the conclusion of the hearing, the trial court made, inter alia, the following findings of fact:
19. . . . [R]espondent parents largely complied with the variety of services offered and ordered by the Court. . . . 23. [I]n spite of these services, neither parent demonstrated a significant change in behavior or in the reduction of risk to the juvenile. . . . 26. That during an unsupervised overnight visit in the home of the parents, the juvenile drank carpet cleaner or deodorizer in the presence of the respondent father, and the respondent parents failed to call poison control. . . . 28. That the respondent parents began to exercise unsupervised overnight visitation with the juvenile Christmas Eve, 2003, and the visits were increased to unsupervised weekend visits on January 21, 2004. 29. That following the increase in visitation, the juvenile exhibited a dramatic change in behavior, becoming extremely aggressive and also engaging in self-injurious behaviors, including hitting and biting himself and other children, throwing plates and chairs, and also exhibited a severe regression in toileting skills. . . . 33. That the Court specifically finds that the juvenile[']s aggressive and self-injurious behaviors were related to what was happening in the home of the parents. 34. That the respondent father testified that the respondent mother was both verbally and physically abusive to the juvenile during the unsupervised overnight visitations, and that she had jerked the child up by his arm on more than one occasion with such force that the father believed the child's arm would be pulled from its socket. The father observed the mother slamming the child into a chair, and on numerous occasions being verbally abusive to him. . . . 36. That the respondent mother denied all of the allegations of the respondent father. 37. That the respondent mother also denied any responsibility for the injuries suffered by [B.H.] even though the respondent mother's parental rights were terminated and she was also convicted of Assault with a Deadly Weapon with Intent to Kill Inflicting Serious Injury as a result of the abuse of [B.H.] That the respondent mother, in this hearing, testified that [B.H.'s] injuries were the result of her falling off a bicycle. 38. That the Court finds the testimony of the respondent mother to be fraught with inconsistencies and completely unbelievable. 39. That the Court also specifically finds that the prior abuse of [B.H.] at the hands of the respondent mother can[not] be ignored by this Court, and specifically finds that [B.H.] was brought into the Emergency Room of Transylvania County Community Hospital on January 12, 1992 and was pronounced dead on her arrival, but was subsequently resuscitated. That [B.H.] suffered numerous broken bones in various stages of healing. Her liver had been split into two from the force of being thrown against a chair. She had a torn mesentery artery, and was covered head to toe with bruises. She only weighed 17 pounds. She was diagnosed with Battered Child Syndrome. . . . 50. That the Court finds compelling the opinions of the five expert witnesses who testified in this matter. It was the consistent opinion of each of these witnesses that the parents were presently incapable of safely and properly parenting the juvenile and that this incapability would continue for the foreseeable future. . . . 53. That the Court specifically finds that the risk of the safety and welfare of the juvenile in the care of either parent far exceeds any benefit that may exist in retaining the parental relationship between the juvenile and either of the parents.
In the adjudication phase, the trial court additionally made findings and conclusions that grounds exist to terminate respondent-mother's parental rights based upon the statutory grounds that: 1) "[t]he parent has abused or neglected the juvenile"; 2) "[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"; 3) "[t]he parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile . . . and that there is a reasonable probability that such incapability will continue for the foreseeable future"; 4) "[t]he parent has committed . . . a felony assault that results in serious bodily injury to . . . another child of the parent"; and 5) "[t]heparental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home." N.C. Gen. Stat. §§ 7B-1111 (a)(1), (2), (6), (8), (9) (2005). The trial court also found grounds existed to terminate the parental rights of the respondent-father. The trial court then entered the dispositional phase and concluded that it was in the best interests of A.W.M. to terminate the parental rights of both the respondent-mother and the respondent-father. Respondent-mother appeals the trial court's order.
We initially address respondent-mother's argument that the trial court lacked jurisdiction over her because no summons was issued. North Carolina General Statutes § 7B-401 (2005) states that "[t]he process in an abuse, neglect or dependency action is the summons." Pursuant to statute, "Immediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to the parent . . . requiring them to appear for a hearing at the time and place stated in the summons." N.C. Gen. Stat. § 7B-406 (2005). Our Supreme Court has held, "[t]he issuance and service of process is the means by which the court obtains jurisdiction . . . and thus, where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action." In re Poole, 357 N.C. 151, 579 S.E.2d 248 (2003). However, "A defense of . . . insufficiency of process, or insufficiency of service of process is waived (i) if omitted from a motion in the circumstances described in section (g), or (ii) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." N.C. Gen. Stat. § 1A-1, Rule 12 (h) (2005). Moreover, "a 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 summons." Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 358-59 (1956). In the case sub judice, respondent-mother raises the issue of insufficiency of process for the first time on appeal after fully participating in all proceedings of the trial court without raising the issue. Accordingly, we hold that respondent-mother's willful and full participation in the trial court's proceedings amounts to a general appearance such that this issue has been waived. See In re Howell, 161 N.C. App. 650, 655, 589 S.E.2d 157, 160 (2003). Therefore, this assignment of error is without merit.
Respondent-mother additionally argues that "the trial court erred in impermissibly allowing in prejudicial evidence concerning another child . . . which occurred approximately a dozen years prior to the termination of parental rights hearing." Respondent-mother argues that testimony provided by a social worker, Dottie Harris ("Harris"), who was involved in D.S.S.'s removal of B.H. from respondent-mother, amounted to hearsay and did not qualify for the business records exception from the hearsay rule. Respondent-mother argues that the introduction of the challenged testimony resulted in the trial court's finding of fact number 39, stated supra. However, the transcripts reveal that the majority of the testimony supporting finding 39 was offered prior to any objection based on hearsay grounds. Moreover, the trial court determined that the business records exception to the hearsay rule need not be used because Harris had a personal recollection of the events at issue. Accordingly, finding 39 is supported by clear, cogent, and convincing evidence, and the applicable assignments of error are without merit.
Respondent-mother additionally argues that testimony regarding B.H. was inadmissible under Rule 404(b) and that this "evidence which occurred . . . over 12 years prior to the case at hand" should not have been admitted. Respondent-mother's argument that testimony regarding B.H. was inadmissible under Rule 404(b) has not been preserved for appellate review because she did not object to the challenged testimony on this grounds at trial. N.C.R. App. P. 10(b)(1) (2006). However, respondent-mother's relevancy argument was preserved by objection at trial. Specifically, she argues the evidence was not probative since it occurred 12 years earlier. We note that "`[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2005). This Court has stated that "even though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal." State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991). Under this standard, we hold that the trial court did not err in determining that the challenged evidence was relevant. Moreover, although respondent-mother argues that the challenged testimony was "highly prejudicial," we need not address whether this evidence should have been excluded under N.C.R. Evid. 403 (2005) since respondent-mother failed to object at trial on this ground. N.C.R. App. P. 10(b)(1).
Respondent-mother additionally challenges several findings of fact, some of which are more appropriately termed conclusions of law. Termination of parental rights is a process involving both an adjudicatory stage and dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudicatory stage, the trial court considers whether the petitioner has proved by clear, cogent, and convincing evidence one of the grounds for terminating parental rights set forth is N.C. Gen. Stat. § 7B-1111(a). Id. Appellate review of the adjudicatory stage is limited to considering whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). If any grounds exist to terminate parental rights, the trial court then enters the dispositional stage and considers whether termination of a respondent's parental rights is in the best interests of the minor child. Id. We review the dispositional phase for an abuse of discretion. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
In the case sub judice, the trial court found five grounds existed under § 7B-1111 to support terminating respondent-mother's parental rights. One of the grounds is "[t]he parent . . . has committed a felony assault that results in serious bodily injury to . . . another child of the parent[.] . . ." Respondent-mother does not specifically assign error to the trial court's finding that "[P.M.] has committed a felony assault that resulted in serious bodily injury to [B.H.] another child living in her home, and was convicted by a jury of her peers in the Superior Court of Transylvania County of Felonious Assault with a Deadly Weapon with the Intent to Kill Inflicting Serious Injury." Moreover, the trial transcripts reveal that respondent-mother stipulated to the conviction. Accordingly, clear, cogent, and convincing evidence supports the trial court's findings of fact and the findings support the conclusion that grounds exist to terminate P.M.'s parental rights based upon N.C. Gen. Stat. § 7B-1111(8). Furthermore, respondent-mother does not assign error to the trial court's conclusion that it is in A.W.M.'s best interests to terminate respondent-mother's parental rights. For the foregoing reasons, we affirm the order of the trial court.
Having determined that at least one ground exists for terminating respondent-mother's parental rights, we further hold respondent-mother's argument that the trial court erred in denying her motion to dismiss is without merit. In re Cusson, 43 N.C. App.333, 335, 258 S.E.2d 858, 860 (1979) ("In testing the sufficiency of the evidence . . . the standard is whether there is substantial evidence to support the allegations of the petition, viewing the evidence in the light most favorable to petitioner, and giving petitioner the benefit of every reasonable inference to be drawn from the evidence").
In the interest of judicial economy, we decline to address respondent-mother's additional arguments that relate to whether the trial court properly determined that other statutory grounds existed for the termination of her parental rights. Moreover, because respondent-mother has failed to argue her remaining assignments of error on appeal, we deem them abandoned pursuant to N.C.R. App. P. 28(b)(6) (2005).
Affirmed.
Judges McGEE and GEER concur.
Report per Rule 30(e).