Opinion
No. COA09-60
Filed 16 June 2009 Opinion Withdrawn.
Appeal by respondents from an order entered 9 October 2008 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 11 May 2009.
Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for petitioner-appellee. Joyce L. Terres, for respondent-appellant mother. Betsy J. Wolfenden, for respondent-appellant father.
Mecklenburg County Nos. 05 JT 727-30, 06 JT 1132.
Respondent-mother and respondent-father (collectively "respondents") appeal the order terminating their parental rights to the minor children, D.D., D.T., T.T., D.T., and T.T. For the reasons discussed herein, we vacate the trial court's order in part and affirm in part.
I. Procedural History and Factual Background
On 27 August 2004, the Rowan County Department of Social Services ("DSS") filed a juvenile petition alleging that D.D., D.T., T.T., and D.T. ("the older children") were neglected and dependent juveniles. No summons was issued to respondents. A hearing was held on 18 October 2004 at which respondents appeared and consented to an adjudication of neglect. On 13 January 2005, the court filed an order returning these children to respondents' custody.
On 5 May 2005, DSS filed a second juvenile petition alleging that the older children were neglected and dependent juveniles. Again, no summons was issued to respondents. On 27 June 2005, the court adjudicated the children dependent pursuant to a consent order. Respondents appeared in court for this adjudication. Because respondents were moving to Mecklenburg County, the trial court transferred the case to Mecklenburg County. The record reflects no independent basis for Mecklenburg County to have acquired subject matter jurisdiction.
On 8 September 2006, T.T. was born to respondents. Mecklenburg Youth and Family Services ("petitioner") filed a juvenile petition on 25 September 2006 alleging that T.T. was neglected and dependent, having tested positive for methadone at birth. Summons was issued to and served upon each respondent. T.T. was adjudicated as neglected and dependent following hearings on 25 January 2007 and 21 March 2007.
The record on appeal contains conflicting evidence as to whether T.T. was born on 7 September 2006 or 8 September 2006. Because the trial court's termination order provides that T.T. was born on 8 September 2006, we use this date throughout our opinion.
On 10 January 2008, petitioner filed petitions to terminate the parental rights of respondents to all five children. To establish its custody of the four oldest children, petitioner attached to the petitions the August 2004 Rowan County no secure custody order. Summonses were issued to respondents for each of the five children. On 9 October 2008, the trial court filed an order terminating the parental rights of respondents on the grounds that respondents (1) neglected the children, and (2) left the children in out-of-home placement for more than twelve months without making reasonable progress in correcting the conditions that led to the removal of the children from the home. As an additional ground for terminating the parental rights of respondent-mother, the trial court concluded she failed to pay a reasonable portion of the cost of care of the children. The trial court's order referenced only the Rowan County no secure custody order to establish its jurisdiction in the cases of the older children. Respondent-mother filed notice of appeal on 27 October 2008. Respondent-father, the father of the four youngest children, filed notice of appeal on 7 November 2008.
Paternity of the oldest child, D.D., has never been established.
II. Subject Matter Jurisdiction
On appeal, respondents argue that the trial court lacked subject matter jurisdiction to terminate their parental rights with respect to the older children, because no summons was issued to either party in the original juvenile petitions filed in Rowan County District Court. We are constrained to agree.
Pursuant to N.C. Gen. Stat. § 7B-1103(a), a petition to terminate the parental rights of a parent may be filed by "[a]ny county department of social services . . . to whom custody of the juvenile has been given by a court of competent jurisdiction." N.C. Gen. Stat. § 7B-1103(a) (2007). "If DSS does not lawfully have custody of the children, then it lacks standing to file a petition . . . to terminate parental rights, and the trial court, as a result, lacks subject matter jurisdiction." In re E.X.J., ___ N.C. App. ___, ___, 662 S.E.2d 24, 27 (2008) (citing In re Miller, 162 N.C. App. 355, 358, 590 S.E.2d 864, 866 (2004)), aff'd per curiam, 363 N.C. 9, 672 S.E.d2d 19 (2009). "`Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction.'" Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (quoting Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878, disc. rev. denied, 356 N.C. 610, 574 S.E.2d 474 (2002)), disc. rev. denied, 356 N.C. 675, 577 S.E.2d 628 (2003). "Further, `[i]f a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.'" Miller, 162 N.C. App. at 359, 590 S.E.2d at 866 (quoting State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999)).
It is well established that "[t]he issuance and service of process is the means by which the court obtains jurisdiction." In re Mitchell, 126 N.C. App. 432, 433, 485 S.E.2d 623, 624 (1997) (citations omitted). Recent cases have distinguished between the effect of a failure to issue a summons and the failure to serve a summons in termination of parental rights cases. Failure to issue a summons is a matter of subject matter jurisdiction, while failure to serve a properly issued summons is a matter of personal jurisdiction. In re K.J.L., ___ N.C. App. ___, ___, 670 S.E.2d 269, 271 (2008) (citations omitted). Although jurisdiction over the person can be waived, In re J.B., 164 N.C. App. 394, 396, 595 S.E.2d 794, 795-96 (2004), "[i]t is well settled that a challenge to a court's jurisdiction over the subject matter of an action cannot be waived at any point in the proceedings." In re J.T., 363 N.C. 1, 3, 672 S.E.2d 17, 18 (2009). "This is because `the proceedings of a court without jurisdiction of the subject matter are a nullity.'" Id. (quoting Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)) (citation omitted).
"Where no summons is issued [in a juvenile action] the court acquires jurisdiction over neither the persons nor the subject matter of the action." K.J.L., ___ N.C. App. at ___, 670 S.E.2d at 271 (quoting Mitchell, 126 N.C. App. at 433, 485 S.E.2d at 624); see also In re K.A.D., 187 N.C. App. 502, 502, 653 S.E.2d 427, 427 (2007) ("Failure to issue a summons deprives the trial court of subject matter jurisdiction."). In K.J.L., we held that the trial court lacked subject matter jurisdiction over neglect and dependency proceedings where the summons for the petition alleging the child was neglected and dependent was not properly issued. We also vacated the termination order "because the adjudication order was essential to the trial court's subject matter jurisdiction in the proceeding to terminate respondent's parental rights." Id. (citing N.C. Gen. Stat. § 7B-1110(a) (2007)). In the present case, no summons was issued in either of the Rowan County adjudication proceedings for the four oldest children. Because no summons was issued, the Rowan County trial court never acquired subject matter jurisdiction over the children, and thus, Rowan County could not transfer the matter to Mecklenburg County. Because petitioner relied solely on the Rowan County no secure custody order to establish its custody of the children, and that order was a nullity, Mecklenburg County also did not acquire subject matter jurisdiction over the older children's cases. Therefore, although a summons was issued for the petition to terminate respondents' parental rights, petitioner was not a party under N.C. Gen. Stat. § 7B-1103(a) who may file a petition to terminate respondents' parental rights since petitioner was never given custody of the four oldest children "by a court of competent jurisdiction." N.C. Gen. Stat. § 7B-1103(a). For this reason, the trial court's order terminating respondents' parental rights to the older children must be vacated.
Although our case law mandates that the trial court's order be vacated, we note that this action does not lead to a desirable outcome in this instance. The initial juvenile petition was filed on 27 August 2004. Pursuing these proceedings over almost five years has undermined the stability of these children and has frustrated the judicial system's ability to act in their best interests. The detrimental impact of our decision on the children's sense of permanence and stability is especially troubling when we consider that both respondents were present at the adjudication proceedings in Rowan County and stipulated to the adjudication of neglect. Respondents have not argued any prejudice from the failure to issue summonses. Unfortunately, the individuals harmed most by that failure are the four oldest children. Thus, it is with great reluctance that we vacate that portion of the trial court's order terminating respondents' parental rights to the four oldest children.
III. Termination of Parental Rights
Having concluded that the trial court lacked subject matter jurisdiction as to the older children, we address respondents' arguments as to the trial court's termination order only as it applies to respondents' youngest child, T.T.
For the remaining portion of our opinion, "T.T." shall be used to refer to respondents' youngest child, born 8 September 2006.
"Termination of parental rights is a two-stage proceeding." In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). At the adjudicatory stage, the trial court must determine that at least one ground for termination exists pursuant to N.C. Gen. Stat. § 7B-1111. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In this stage, the burden of proof is on the petitioner, and the court's decision must be supported by clear, cogent, and convincing evidence. Id. A trial court's determination that at least one ground for termination exists will be overturned only upon a showing by the respondent that there is a lack of clear, cogent, and convincing competent evidence to support the findings. In re Allen, 58 N.C. App. 322, 325, 293S.E.2d 607, 609 (1982). The trial court's "findings of fact are conclusive on appeal if they are supported by `ample, competent evidence,' even if there is evidence to the contrary." In re J.M.W., 179 N.C. App. 788, 792, 635 S.E.2d 916, 919 (2006) (quoting In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988)).
Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.
Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. "Once [the petitioner] has met its burden of proof in showing the existence of one of the grounds for termination, . . . the decision of whether to terminate parental rights is within the trial court's discretion." In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996) (citation omitted). "The decision to terminate parental rights is vested within the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the [trial court's] actions were manifestly unsupported by reason." In re J.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005) (citation omitted).
A. Termination of Respondent-Father's Parental Rights
Respondent-father argues the trial court's termination order was entered in error because the findings were not supported by clear, cogent, and convincing evidence, and the findings were insufficient to support the conclusion that respondent-father is likely to neglect T.T. in the future. We disagree.
A neglected juvenile is defined by N.C. Gen. Stat. § 7B-101(15) as one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home . . . where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2007). In determining whether to terminate parental rights on the ground the parent has neglected a child, the trial court may consider evidence of neglect prior to removal of a child from custody, and "must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (citation omitted). When a child has been absent from the parent's home for a period of time preceding the termination hearing, "the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999). The trial court's findings of fact show that T.T. was born addicted to methadone on 8 September 2006. Respondent-father had a prescription for methadone, but respondent-mother did not. At the time of the filing of the juvenile petition for T.T., a social worker went to the home for the purpose of picking up the children's clothes and possessions. The social worker found the home "in shambles." She found dirty clothes piled everywhere, dirty dishes stacked up in the kitchen, and food and food wrappers dispersed all over the home. The social worker also observed that during visits, respondent-father had trouble controlling the children, who were disrespectful to him. Respondent-father sometimes appeared drowsy during visits.
Although respondent-mother had admitted to him that she had abused methadone for years and that she stole respondent-father's methadone, respondent-father testified at the termination hearing that he did not think respondent-mother had a problem with substance abuse. Furthermore, respondent-mother had attended inpatient treatment programs for drug addiction, and she had lost her license as a registered nurse due to problems with substance abuse.
The trial court made the following findings of fact with respect to respondent-father:
38. The father is limited in the care he can provide [T.T.] His pain medication makes him drowsy and slow. Most of the specific examples of inappropriate supervision, poor choices in care, . . ., and the messy homes, happened when the father was in charge because the mother was in the hospital or away for other reasons. . . .
39. The father is in denial about the nature and extent of [respondent-mother's] addiction. He claims not to have noticed she had been stealing his methadone for years. He cannot be counted on to care for [T.T.] if the mother is incapacitated due to substance abuse, health problems, or [if] she finds work.
. . . .
51. Due to the father's inability to identify or acknowledge the mother's substance abuse problems and symptoms and the family's chronic issues with budgeting and multiple collapses into homelessness, the likelihood for the repetition of the neglect of [T.T.] is high.
The record provides ample competent evidence to support the trial court's factual findings, and the findings of fact support the trial court's conclusion of law that T.T. is neglected and that it is probable the neglect will be repeated. Accordingly, respondent-father's argument is overruled.
Having concluded that this ground for termination of parental rights existed, we need not address respondent-father's argument that the trial court erred in terminating his parental rights on the ground that he left T.T. in foster care or outside the home without showing to the satisfaction of the court that reasonable progress had been made in twelve months in correcting the conditions which led to the removal of T.T. from the home. "[W]here we determine the trial court properly concluded that one ground exists to support the termination of parental rights, we need not address the remaining grounds." In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003).
B. Termination of Respondent-Mother's Parental Rights Respondent-mother argues the trial court erred in failing to make sufficient findings of fact to support its conclusion of law that it is in the best interests of T.T. to terminate respondent-mother's parental rights. Specifically, respondent-mother contends the trial court failed to make adequate findings of fact to reflect that it considered the factors listed in N.C. Gen. Stat. § 7B-1110(a) in making its best interests determination.
Once the court determines the existence of a ground to terminate parental rights, it must then determine whether the best interests of the child require termination of parental rights. N.C. Gen. Stat. § 7B-1110(a)(2007). In determining whether termination of parental rights is in the best interests of the child, the court considers:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
In the present case, the trial court's order contains findings of fact as to T.T.'s age, how long T.T. has been in foster care, and the likelihood of T.T. being adopted by the current relative placement. The findings reflect that T.T. has been placed with a maternal aunt since birth and has never lived with respondent-mother, and is doing well in the placement with the child's aunt, that T.T.'s needs are being met, and that the aunt is interested in adopting T.T. Accordingly, we hold that the trial court's findings of fact and conclusions of law support its determination that it is in T.T.'s best interests to terminate respondent-mother's parental rights. Respondent-mother's argument is overruled.
VACATED IN PART AND AFFIRMED IN PART.
Judges JACKSON and STROUD concur.