Opinion
No. COA10-508
Filed 2 November 2010 This case not for publication
Appeal by petitioner and respondent mother from order entered 9 February 2010 by Judge Jeffrey Evan Noecker in New Hanover County District Court. Heard in the Court of Appeals 29 September 2010.
Regina Floyd-Davis for petitioner-appellant. Janet K. Ledbetter for respondent-appellant. N.C. Administrative Office of the Courts, by Associate Counsel Deana K. Fleming, for guardian ad litem-appellee.
New Hanover County No. 09 JA 72.
Respondent mother and the New Hanover County Department of Social Services ("DSS") each appeal from the trial court's order appointing a maternal great aunt and uncle as guardians for the minor child M.M.L. ("Molly"). Although respondent mother argues that the trial court lacked personal jurisdiction over her, she waived any such argument when her counsel made a general appearance on her behalf at the hearing below and argued against appointment of the guardians. We agree, however, with DSS that the trial court's order must be reversed and a new hearing held on remand because the court based its order solely on reports from DSS and the guardian ad litem ("GAL") and the arguments of counsel. Under controlling precedent, the order is not, therefore, supported by sufficient evidence.
The pseudonym "Molly" is used throughout this opinion to protect the minor's privacy and for ease of reading.
Facts
On 22 February 2009, respondent mother was admitted to New Hanover Regional Medical Center in premature labor. She gave birth to her daughter, Molly, on 26 February 2009. At Molly's birth, respondent mother tested positive for cocaine, marijuana, benzodiazepine, syphilis, hepatitis C, and trichamonis, while Molly tested positive for cocaine, marijuana, and benzodiazepine. Respondent mother was discharged from the hospital on 28 February 2009 and visited Molly two times on 28 February 2009 and 1 March 2009. After the second visit, she told hospital staff that she was going to Myrtle Beach, South Carolina and would return in two days. She did not return, but did call the hospital to ask about Molly on 7 March 2009.
Although respondent mother provided a permanent address in Conway, South Carolina, DSS determined that respondent mother had not lived at that address for two years. Respondent mother was believed to be residing instead at a motel in Myrtle Beach. The identity of Molly's father is unknown.
Molly has been in foster care since being released from the hospital. On 6 March 2009, DSS filed a petition alleging that Molly was neglected and dependent, and the district court entered a nonsecure custody order placing Molly in DSS custody. A summons was also issued to respondent mother, listing her address as "unknown," and appointing provisional counsel for respondent mother. DSS ultimately served respondent mother by publication in the Myrtle Beach Herald on 26 March, 2 April, and 9 April 2009.
On 6 May 2009, the trial court conducted an adjudication hearing. Respondent mother was not present, but was represented by provisional counsel. On 22 May 2009, the trial court entered an order adjudicating Molly to be a dependent and neglected juvenile. The trial court found that respondent mother was unemployed, had substance abuse problems, and was unable to provide for Molly's basic needs. The trial court also found that DSS had been unable to locate respondent mother and that there was no current telephone number or address for her.
On 20 August 2009, the trial court held a permanency planning hearing. DSS had still been unable to locate respondent mother or identify Molly's father. The trial court ordered DSS to cease reasonable efforts to eliminate the need for placement and established a permanent plan of adoption for Molly.
On 2 October 2009, Molly's great aunt and great uncle, "the Randolphs," filed a motion to intervene, a motion to produce documents, and a motion seeking custody of Molly. On 21 October 2009, Molly's foster parents, "the Butlers," also filed a motion to intervene in the matter.
"The Randolphs" and "the Butlers" are pseudonyms used to protect the privacy of the minor child.
On 22 October 2009, the court held another permanency planning hearing prior to which respondent mother still had not been located. In the 18 November 2009 permanency planning order, the trial court continued legal custody with DSS, but placed Molly in the physical custody of the Randolphs. The permanent plan remained adoption.
On 12 November 2009, the Randolphs filed another motion to intervene, a motion for production of documents, and a motion for custody. On 19 November 2009, DSS filed a motion for review, in which it noted that respondent mother had signed a relinquishment of her parental rights and that she wished for the Butlers to adopt Molly. On 24 November 2009, the Butlers filed an amended motion to intervene. On 30 November 2009, respondent mother filed an affidavit of indigency and was appointed counsel the next day.
The various motions were heard on 2 December 2009. Respondent mother was not present, but was represented by her appointed attorney. The attorney informed the trial court that although respondent mother had notified DSS that she would not be present for the hearing, she wanted to express her desire that Molly be adopted by the Butlers. After considering the arguments of counsel, the trial court denied the Butlers' motion to intervene and proceeded to consider the DSS motions at the review hearing. DSS and the GAL each handed the court reports to the trial judge, but no witnesses testified. In an order entered 9 February 2010, the trial court allowed the Randolphs' motion to intervene and appointed them as guardians for Molly, kept the permanent plan for Molly as adoption, and authorized the Randolphs to seek a termination of parental rights. DSS and respondent mother timely appealed to this Court.
Discussion
We first address respondent mother's contention that the trial court lacked personal jurisdiction over her under North Carolina's long arm statute and because she was not properly served by publication. We need not address either argument because respondent mother waived any challenge to personal jurisdiction by making a general appearance. In North Carolina, "[o]ther than a motion to dismiss for lack of jurisdiction[,] virtually any action constitutes a general appearance." Judkins v. Judkins, 113 N.C. App. 734, 737, 441 S.E.2d 139, 140, disc. review denied, 336 N.C. 781, 447 S.E.2d 424 (1994).
In Williams v. Williams, 46 N.C. App. 787, 789, 266 S.E.2d 25, 27 (1980) (quoting Fulton v. Ramsey, 67 W. Va. 321, 327, 68 S.E. 381, 383 (1910)), this Court explained that the test for whether a defendant has made a general appearance "`is whether the defendant became an actor in the cause,'" such as by asking for or receiving "`some relief in the cause or participat[ing] in some step taken therein.'" The Court held in Williams, a child custody case, that "[t]he death blow" to the defendant's argument that the trial court lacked personal jurisdiction over him lay "in the fact that defendant's counsel participated in a conference on 23 February 1979 in Judge Huffman's office, pertaining to the custody of defendant's minor child, and did not at this time make any objection as to the lack of jurisdiction over the defendant." Id. at 788, 266 S.E.2d at 27. The Court concluded that "[t]his activity constitutes a general appearance and confers jurisdiction over defendant's person even though no service was made upon either the defendant or his counsel of record." Id.
In this case, respondent mother signed an affidavit of indigency on 30 November 2009, seeking appointment of counsel, and was appointed counsel on 31 November 2009. Her counsel appeared on her behalf at the 2 December 2009 hearing, but did not argue that the trial court lacked personal jurisdiction. Rather, respondent mother's counsel participated in the matter and opposed the appointment of the Randolphs as Molly's guardians by arguing that respondent mother preferred that the trial court allow the Butlers to adopt Molly. Under Williams, this appearance by respondent mother's counsel addressing the merits and requesting relief was sufficient to constitute a general appearance waiving any objection to personal jurisdiction. The trial court, therefore, had personal jurisdiction over respondent mother.
DSS argues that the trial court's order must be reversed because the trial court failed to conduct a proper hearing. This Court recently reversed a permanency planning order when "the trial court entered an order based solely on the written reports of DSS and the guardian ad litem, prior court orders, and oral arguments by the attorneys involved in the case. . . . No sworn testimony from respondent-mother or any other witness was received." In re D.Y., B.M.T., J.A.T., ___ N.C. App. ___, ___, 688 S.E.2d 91, 93, disc. review denied, 364 N.C. 129, ___ S.E.2d ___ (2010). The Court concluded, "that because no evidence was presented, the trial court's findings of fact [were] unsupported, and its conclusions of law [were] in error." Id. at ___, 688 S.E.2d at 93.
The trial court, in this case, apparently conducted a joint review hearing and permanency planning hearing since it specifically stated in its conclusions of law that it was acting "pursuant to" N.C. Gen. Stat. § 7B-906 (2009) (governing review hearings) and § 7B-907 (2009) (governing permanency planning hearings). The court also specifically found "[t]hat the permanent plan for the child remains adoption and [the Randolphs] are authorized to seek termination of the parental rights of the parents of [Molly] should they decide to do so." Further, since the trial court's order named the Randolphs as guardians of the person for Molly, N.C. Gen. Stat. § 7B-906(g) required the trial court to "verify that the person receiving custody or being appointed as guardian of the juvenile understands the legal significance of the placement or appointment and will have adequate resources to care appropriately for the juvenile."
We hold that In re D.Y. controls. Since prior to entering its order naming the Randolphs as guardians for Molly and authorizing them to seek termination of parental rights, the trial court did not hear any testimony, but instead only considered the DSS and GAL reports and arguments of counsel, In re D.Y. requires that we reverse the trial court's order and remand for a new hearing. Because we are remanding for a new hearing, we need not address DSS' remaining arguments.
We note that it does not appear that the reports were formally admitted into evidence. Rather, they were simply handed up to the trial judge.
With respect to DSS' contention that the trial court lacked authority to appoint guardians for Molly, we note that this argument hinges on its assertion that respondent mother signed a relinquishment of minor for adoption form and that DSS formally accepted that relinquishment. The documents on which DSS relies to support this argument are not part of the record and are improperly included in an appendix to DSS' brief. We have allowed the motion to strike the appendix and, therefore, do not address this argument.
Reversed and remanded.
Judges ROBERT C. HUNTER and CALABRIA concur.
Report per Rule 30(e).