Opinion
No. COA08-1491.
Filed May 5, 2009.
Mecklenburg County No. 06-JT-750.
Appeal by respondents from order entered 8 September 2008 by Judge Hugh B. Lewis in District Court, Mecklenburg County. Heard in the Court of Appeals 13 April 2009.
Mecklenburg County Attorney's Office by J. Edward Yeager, Jr. for petitioner-appellee. North Carolina Administrative Office of the Courts by Associate Legal Counsel Pamela Newell Williams, for guardian ad litem. Charlotte Gail Blake, for respondent-appellant mother. David A. Perez, for respondent-appellant father.
Respondents mother and father appeal from the district court order terminating their parental rights to J.D. For the following reasons, we affirm.
The 8 September 2008 district court order terminating respondents' parental rights made the following pertinent findings of fact:
1. [J.D.] was born to [respondent mother] in Mooresville, North Carolina [in] . . . 2005.
[Respondent father] acknowledged paternity of [J.D.] and signed the child's birth certificate. The parents were married in December 2005. Paternity of [J.D.] has never been in doubt.
2. Lincoln County DSS received a referral on [J.D.] just after his birth. The referral stated the parents were homeless and did not have appropriate living arrangements for the child. The referral was substantiated.
3. The parents entered into a Family Services Case Plan with Lincoln County DSS. They agreed to maintain stable housing, complete parenting classes, complete a parental fitness evaluation, and follow through with any services [J.D.] might need.
4. The parents did not complete the requirements of the Family Services Case Plan.
5. In February 2006, another referral was received by Lincoln County. [J.D.] had an ear infection, but the parents failed to pick up his medications immediately. This referral was also substantiated. As a result, [J.D.] was placed with his paternal grandmother in Burke County.
6. The parents had been living in Lincoln County with relatives, but were asked to leave. The parents moved to Mecklenburg County. The DSS case involving [J.D.] was transferred to Mecklenburg County on 20 February 2006.
. . . .
8. When mediation on the juvenile petition was held on 9 August 2006, [J.D.] had been in placement with the grandmother for five months. The parents had only visited him four or five times. They had not participated in any of his medical appointments. They had not followed up with his doctors.
9. [J.D.] had been assessed by Children's Developmental Services in Shelby, NC and had been categorized as developmentally delayed. The father was unaware of this assessment. [J.D.] had weekly developmental therapy in his grandmother's home. He had asthma and required daily nebulizer treatments. He had issues with his vision and tilted his head significantly to one side. That condition could require surgery. He had six medical appointments scheduled from 27 June 2006 through July 2006.
. . . .
12. Due to the lack of progress by the parents and the realization [J.D.] would need to remain in placement with his grandmother indefinitely, YFS filed a juvenile petition on 27 June 2006. . . . [J.D.] was adjudicated to be dependent on 23 August 2006 as to his father and on 6 October 2006 as to his mother. . . .
. . . .
16. . . . [J.D.] suffers from asthma. . . . The parents agreed to not smoke inside the apartment, but the apartment smelled of stale smoke on several occasions when Ms. McCrorie [, the social worker,] visited it.
17. The parents were supposed to be in therapy to address the issues revealed in their parenting capacity evaluations. The father's therapy ended after just a few sessions because he was not making any progress. The mother claimed she completed therapy. In February 2007, the court ordered her to produce proof she had been successfully discharged from therapy. She never did.
18. . . . [Respondents] had trouble visiting [J.D.], who continued to live in Burke County, and attending [J.D.]'s medical and therapeutic appointments, which were in Burke County, Cleveland County, and Durham.
. . . .
20. . . . YFS and the court learned the mother had been let go by Wal-mart in June 2007. She had been deceptive to her social worker and the court about her employment situation. The mother collected unemployment compensation, but has never had regular employment after losing the job at Wal-mart.
. . . .
24. Of [J.D.]'s many medical and therapeutic appointments, the parents attended about half. He had eye surgery in Durham on 9 October 2006. The parents did not attend, citing a lack of money for the gas.
. . . .
27. The parents never assumed the lead in scheduling [J.D.]'s appointments or providing transportation to his appointments. In November 2007, [J.D.] had an appointment in Durham preliminary to another eye surgery. The parents did not take him to the appointment. They arrived 90 minutes late and then asked Ms. McCrorie if she could cash a $10 check from DSS so they could get out of the parking lot.
28. In September 2007, the parents asked the court for longer visits with [J.D.]. The court agreed and a complicated visitation schedule was put in place. The parents agreed with the schedule.
29. . . . The parents were able to meet the schedule only for the first visit. On the day of the second visit, the parents said they overslept, but did not call anyone to let them know they would be late.
. . . .
31. In October 2007, [J.D.] sustained a burn on his leg. His grandmother disclosed he had burned himself on a hot iron that was left on the living room floor.
She delayed seeking medical attention. When this was investigated by DSS in Burke County, they determined [J.D.] was the second child who had been burned by an iron in the grandmother's home. It was decided [J.D.] needed to be moved to foster care.
32. Foster parents, the Van Hornes, who knew the paternal grandmother, were located in Burke County.
[J.D.] was moved to their home on 2 November 2007.
[J.D.] remains there. This is a foster/adopt home.
. . . .
34. The last visit between the parents and [J.D.] was on 2 January 2008. . . .
35. . . . [Respondent father] never had any child support withheld and has made no payments. . . . The mother has paid nothing to defray the costs of [J.D.]'s in [sic] placement outside the home. . . .
36. Mecca Harvey became the social worker for [J.D.] on 2 November 2007. . . .
. . . .
38. At a court review hearing on 6 December 2007, the court changed the goal for the case to termination of parental rights and adoption. . . .
39. [J.D.] had a second eye operation at Duke University Hospital on 29 February 2008 to correct his ocular alignment. The parents did not attend the surgery.
. . . .
45. The parents have not improved their situation in the nearly 2 and 1/2 years since [J.D.] had to be placed out of their care. . . .
46. The parents are not able to meet [J.D.]'s needs.
They cannot provide for him and cannot transport him to appointments. He has had eye surgery twice and the parents have failed to attend either procedure. They stated to Ms. McCrorie they felt he would "grow out of his problems."
. . . .
65. The foster parents are aware of [J.D.]'s challenges and needs. They have transported him to many therapy sessions and for surgery. There is no impediment to their adopting [J.D.] except for his parents' rights being intact.
Based on these and other findings, the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3), and (7) to terminate respondents' parental rights and that it was in J.D.'s best interests to do so. Respondents appeal from the order.
We first consider the two arguments presented only by respondent mother. First, respondent mother contends that the trial court erred by ceasing reunification efforts when it changed the permanent plan to adoption in its 4 January 2008 order. Respondent mother argues the evidence does not support the district court's finding that
[i]t is not possible for the juvenile(s) to be returned home immediately or within 6 months nor is it in the juvenile(s) best interest to return home because: the child has been in care 527 days and the court has grave concerns regarding the parents' veracity; the state of the home in light of the child's health issues; their lack of time management skills.
Respondent mother contends that the ceased reunification efforts were based upon this erroneous finding.
"If the trial court's findings of fact are supported by competent evidence, they are conclusive on appeal. This Court is bound by the trial court's findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re B.P., 169 N.C. App. 728, 732-33, 612 S.E.2d 328, 331 (2005).
Before the district court there was evidence, inter alia, that (1) J.D. was in custody for 527 days as he was placed in non-secure custody on 27 June 2006 and the permanency planning hearing in contention was held on 4 December 2007, 527 days later; (2) respondent mother lied about being employed; (3) respondents' home was "littered with trash[;]" and (4) respondents missed J.D.'s medical and therapy appointments. The record clearly demonstrates that the contested finding was supported by the evidence and that such findings establish the conclusion that "[i]t is not possible for the juvenile(s) to be returned home immediately or within 6 months nor is it in the juvenile[']s best interests to return home[.]" See generally N.C. Gen. Stat. § 7B-907(b) (2007). Based upon the contested and other findings, the trial court did not err in ceasing reunification efforts between J.D. and respondent mother. See N.C. Gen. Stat. § 7B-907(c) (2007) ("At the conclusion of the hearing, the judge shall make specific findings as to the best plan of care to achieve a safe, permanent home for the juvenile within a reasonable period of time."). This argument is overruled.
Next, respondent mother contends that the trial court erred when it did not appoint her a guardian ad litem at the termination hearing. N.C. Gen. Stat. § 7B-1101.1(c) provides that a trial court may appoint a guardian ad litem for a parent "if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." N.C. Gen. Stat. § 7B-1101.1(c) (2007). The trial court is required to appoint a guardian ad litem only when the allegations of dependency focus on the parent's "debilitating condition[.]" In re J.M.W., ___ N.C. App. ___, ___, 635 S.E.2d 916, 920 (2006). Although "[a] trial judge has a duty to properly inquire into the competency of a litigant in a civil trial or proceeding when circumstances are brought to the judge's attention, which raise a substantial question as to whether the litigant is non compos mentis[,]" whether to conduct such an inquiry is in the sound discretion of the judge. In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005).
Here, nothing in respondent mother's conduct at the termination hearing raised a question about her competency. Respondent mother testified on her own behalf and asserted her own interest in retaining her parental rights. Respondent mother also had a parenting capacity evaluation which included psychological testing and this report did not raise any issues regarding competency. Furthermore, DSS asserted several grounds for termination in the petition, but respondent mother's mental health was not asserted as a reason why respondent mother's parental rights should be terminated. Therefore, the trial court acted within its discretion when it did not appoint a guardian ad litem. This argument is overruled. We now consider two arguments presented only by respondent father. First, respondent father argues that the trial court lacked subject matter jurisdiction because he was not properly served with the summons. However, respondent father's own brief indicates that "[a] summons was issued to him;" and thus his only contention is regarding being served with it. "[I]nsufficiency of process and insufficiency of service of process . . . both . . . are defenses that implicate personal jurisdiction and thus can be waived by the parties." In re J.T., ___ N.C.___, ___, 672 S.E.2d 17, 19 (2009) (citations omitted). Furthermore, "personal jurisdiction . . . can be obtained by a party's appearance and participation in the legal proceeding without raising an objection to lack of service." In re D.B., 186 N.C. App. 556, 558, 652 S.E.2d 56, 58 (2007), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008). Respondent father attended the termination hearing and was represented by counsel; thus, respondent father's participation without objection waived any contention he may have had regarding the trial court's exercise of personal jurisdiction. See id.; J.T. at ___, 672 S.E.2d at 19. Accordingly, this argument is without merit.
Next, respondent father challenges the trial court's limitation of his cross-examination of social worker Mecca Harvey ("Ms. Harvey"). "Since the limit of legitimate cross-examination is a matter largely within the trial judge's discretion, his rulings thereon will not be held to be prejudicial error in absence of a showing that the verdict was improperly influenced by the ruling." State v. Edwards, 305 N.C. 378, 381-82, 289 S.E.2d 360, 363 (1982) (citations omitted).
Ms. Harvey testified on direct, was cross-examined by respondent father's counsel, and then was briefly questioned on re-direct regarding a 7 September 2007 order. The re-direct examination mainly consisted of Ms. Harvey reading portions of the order aloud. Mr. Mackey, respondent father's counsel, requested an opportunity to re-cross regarding the order. We agree with the trial court that nothing new was introduced on re-direct as Ms. Harvey simply read from an order already before the trial court. Furthermore, Ms. Harvey's reading of the terms of the order cannot prejudice respondent father, given the existence of the order itself, the validity of which was not challenged. The trial court did not err in denying re-cross examination. This argument is overruled.
Finally, both respondents challenge the trial court's conclusion that grounds exist to terminate their parental rights and that termination of their parental rights is in J.D.'s best interests. Review in the appellate courts is limited to determining "whether the court's findings of fact are based upon clear, cogent, and convincing evidence and whether the findings support the conclusions of law." In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (citation and quotation marks omitted), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). Here, the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3), and (7) to terminate respondents' parental rights, but we deem it dispositive that the trial court's findings are sufficient to support termination of respondents' parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), that J.D. was a neglected juvenile. See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one statutory ground is sufficient to support the termination of parental rights).
A neglected juvenile is 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.
N.C. Gen. Stat. § 7B-101(15) (2007).
A review of the uncontested findings alone establishes that the trial court made sufficient findings to support its conclusion that J.D. was neglected; these findings included:
18. The family was never able to obtain reliable transportation. Family members gave or loaned them a jeep and then a truck, but they were often in disrepair. They often relied upon friends and neighbors to provide them rides. They had bus passes, provided by either YFS or employers for in-town trips, but had trouble visiting [J.D.], who continued to live in Burke County, and attending [J.D.]'s medical and therapeutic appointments, which were in Burke County, Cleveland County, and Durham.
. . . .
24. Of [J.D.]'s many medical and therapeutic appointments, the parents attended about half. He had eye surgery in Durham on 9 October 2006. The parents did not attend, citing a lack of money for the gas.
. . . .
26. The court became increasingly frustrated with the parents' inability to attend his appointments. In September 2007, the court ordered that the parents take the lead in scheduling [J.D.]'s appointments and in taking him to his appointments.
. . . .
39. [J.D.] had a second eye operation at Duke University Hospital on 29 February 2008 to correct his ocular alignment. The parents did not attend the surgery.
. . . .
41. He still requires speech therapy. He may need more surgery that might require transporting him to Durham or some other distant hospital. He still has asthma and allergies.
. . . .
62. His parents would be unable or unwilling to transport him to therapy or other appointments, just as they were unable or unwilling to come to court on 6 August 2008.
We find that the trial court's uncontested findings demonstrate respondents' evident and continuing inability or unwillingness to transport J.D. to his medical appointments as well as their lack of understanding of the care needed to address J.D.'s substantial medical needs. We agree with the trial court's conclusion that J.D. was neglected pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). See N.C. Gen. Stat. § 7B-1111(a)(1) (2007).
Once the trial court determines that a ground for termination exists, it must determine whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2007) (citation omitted). The court's decision at this disposition stage is reviewed for an abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted).
In determining the best interests of the child, the court must consider:
(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.
Here, the trial court's order demonstrates that it considered the relevant statutory factors. The court found that: (1) J.D. was born in 2005[;] (2-3) J.D.'s current foster placement is his prospective adoptive home and there is no obstacle to the foster parents adopting J.D., other than respondents' parental rights; (4-6) J.D. had been outside respondents' care for nearly two-and-a-half years at the time of the termination hearing. When J.D. needs comfort, he seeks it from his foster parents, and he has thrived with his foster sisters. J.D's foster parents are aware of his medical needs and transport him to his medical appointments. J.D. has made progress since he was placed in foster care, although he will require additional therapy. Based on these findings, we conclude that the trial court properly considered the required statutory factors and did not abuse its discretion when it concluded that it was in J.D.'s best interests to terminate respondents' parental rights, and thus we affirm the order terminating respondents' parental rights.
AFFIRMED.
Judges JACKSON and STEPHENS concur.