Opinion
No. 07-59.
Filed September 4, 2007.
Brunswick County No. 05 J 121A.
Appeal by respondent from order entered 23 February 2006 by Judge Douglas B. Sasser in Brunswick County District Court. Heard in the Court of Appeals 20 August 2007.
Fairley, Jess, Isenberg Thompson, by Elva L. Jess, for petitioner-appellee Brunswick County Department of Social Services. Betsy J. Wolfenden, for respondent-appellant.
Tonya J. ("respondent") appeals from an order terminating her parental rights to her minor child, B.L.J. For the reasons stated below, we affirm.
Brunswick County Department of Social Services ("DSS") took B.L.J. into custody on 21 February 2003 after both he and respondent tested positive for cocaine following his birth on 14 January 2003. On 21 August 2003, the trial court adjudicated B.L.J. neglected. After respondent complied with the terms and conditions of a family services case plan, B.L.J.'s legal custody was returned to her on 27 January 2004. The trial court subsequently vacated prior custody orders in an order entered on 2 February 2004. On 30 March 2004, DSS again took B.L.J. into custody pursuant to a nonsecure custody order after respondent failed to pick him up from daycare and could not be contacted. In an order entered 2 August 2004, B.L.J. was adjudicated both neglected and dependent. Respondent was present at review hearings held on 26 October 2004, 25 January 2005, and 5 April 2005, but was not present for a review hearing on 6 July 2005. The trial court granted respondent's counsel's request that he be removed as counsel of record because he had received no instructions from respondent with respect to the case.
On 22 July 2005, DSS filed a petition terminate respondent's parental rights. While the petition stated that the 2 August 2004 custody order was attached to it, only the previously vacated 21 August 2003 custody order was attached.
At the termination hearing on 13 February 2006, respondent's counsel stipulated that B.L.J. was in DSS's legal and physical custody. Respondent testified that B.L.J. initially came into DSS's custody following his birth in 2003. She acknowledged that B.L.J. was returned to her legal custody in January of 2004, but she stated DSS removed him again in June of 2004 as a result of her renewed use of cocaine. On 23 February 2006, the trial court entered orders terminating respondent's parental rights. Respondent filed timely notice of appeal.
In her sole argument on appeal, respondent contends the trial court failed to obtain jurisdiction over the subject matter on the grounds that DSS failed to attach a valid custody order to the petition to terminate her parental rights. We disagree.
North Carolina General Statutes, section 7B-1104(5) requires that "a copy of the custody order shall be attached to the petition or motion." N.C. Gen. Stat. § 7B-1104(5) (2005). As this Court has held, "where DSS files a motion for termination of parental rights, the trial court has subject matter jurisdiction only if the record includes a copy of an order, in effect when the petition is filed, that awards DSS custody of the child." In re T.B., 177 N.C. App. 790, 793, 629 S.E.2d 895, 897 (2006). "[A]bsent a showing of prejudice, failure to comply with N.C. Gen. Stat. § 7B-1104(5) does not deprive the trial court of subject matter jurisdiction." In re T.M., ___ N.C. App. ___, ___, 643 S.E.2d 471, 475 (2007).
In the case sub judice, the 21 August 2003 custody order attached to the petition to terminate had been vacated earlier by the trial court's 2 February 2004 order. As such, respondent is correct that DSS failed to attach a valid custody order to the petition to terminate. However, all of the custody orders, including those in effect at the time the petitions were filed, were before the trial court at the time the petitions were filed. DSS filed its petition to terminate respondent's parental rights on 22 July 2005. An order on the need for continued nonsecure custody, filed on 6 July 2004, expressly provided DSS would retain custody of B.L.J. indefinitely pending further hearings. As such, "`the record include[d] a copy of an order, in effect when the petition[s] [were] filed, that award[ed] DSS custody of the child[ren].'" In re W.L.M., ___ N.C. App. ___, ___, 640 S.E.2d 439, 444 (2007) (quoting T.B., 177 N.C. App. at 793, 629 S.E.2d at 897).
Additionally, respondent fails to cite any prejudice due to DSS's error, and none is apparent on the record. See T.M., ___ N.C. App. at ___, 643 S.E.2d at 475. She was present for several review hearings as well as both days of the termination hearing. At the start of the termination hearing, respondent's counsel and DSS's counsel stipulated that B.L.J. was in DSS's legal and physical custody. Respondent acknowledged at the termination hearing that B.L.J. initially came into DSS's custody following his birth in 2003 and that B.L.J. was removed from her custody again in June 2004 by DSS as a result of her renewed use of cocaine. Nothing in the record suggests respondent was unaware of B.L.J.'s placement with DSS. See id. ("There is no indication that respondent-mother was unaware of T.M.'s placement at any point during the case.").
In sum, respondent has failed to demonstrate any prejudice as a result of DSS's failure to comply with North Carolina General Statutes, section 7B-1104(5), and the record before the trial court contained a valid custody order in effect when the petitions to terminate were filed. "While ideally a custody order should be attached to all motions or petitions seeking to terminate a parent's rights, we hold that in the instant case respondent was not prejudiced by the lack of a [valid] custody order being attached to the motion." W.L.M., ___ N.C. App. at ___, 640 S.E.2d at 444. Accordingly, respondent's assignment of error is overruled. Respondent has failed to argue her remaining assignments of error, and therefore, they are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2006).
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).