Opinion
No. 08-1122.
Filed March 17, 2009.
Appeal by respondents father and mother from order entered 16 June 2008 by Judge Eric Craig Chasse in Wake County District Court. Heard in the Court of Appeals 23 February 2009.
Assistant County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Anthony H. Morris, for appellee Guardian ad Litem. Hartsell Williams, P.A., by Christy E. Wilhelm, for respondent-appellant mother. William L. Livesay, for respondent-appellant father.
Appeal from the Wake (06JT659).
Respondents father and mother respectively appeal from an order terminating their parental rights to juvenile B.W.M. (hereinafter "juvenile"). After careful review, we affirm.
When juvenile was born in April 2006, both he and respondent mother tested positive for cocaine. Respondent mother admitted to using cocaine during her pregnancy. Although respondent father denied using drugs, Wake County Human Services ("WCHS") became involved with the family due to respondents' drug use. As part of a case plan, respondents agreed to enter substance abuse treatment and to find suitable employment and housing. Respondent mother has another child with an ex-spouse. That child lives with his paternal grandparents and has no contact with respondent mother.
Respondents are not married and were evicted from their home in April 2006. After the eviction, respondents lived with juvenile's elderly paternal grandparents. On 29 May 2006, respondent father was convicted of felony assault by strangulation and misdemeanor assault on a female resulting from a domestic incident with respondent mother. Respondent father was placed on probation.
On 24 August 2006, WCHS filed a petition in which it alleged that juvenile was neglected due to respondents' failure to comply with their case plan and failure to provide a safe home for juvenile. The petition further alleged that respondent mother did not consistently attend drug treatment and tested positive for cocaine multiple times, while respondent father did not comply with requests to submit to drug testing.
Juvenile was placed in foster care on 24 August 2006, four months after his birth. Juvenile quickly developed a bond with his foster family. Respondents reached a memorandum of understanding on 29 August 2006 in which they agreed that WCHS would assume authority to provide medical treatment, psychiatric treatment, psychological services, and any other remedial treatment necessary for juvenile.
The case came on for hearing on the allegation of neglect on 18 October 2006. The court found that juvenile was neglected and ordered that he remain in WCHS custody. The court ordered respondents to meet regularly with WCHS, undergo a mental assessment, undergo substance abuse treatment, submit to drug testing, maintain stable employment and housing, and pay child support. Respondents were permitted one hour of supervised visitation with juvenile per week.
Respondents made some progress in attending treatment in 2007, although both failed drug tests. Respondent father continued to have difficulty maintaining employment, and respondents were evicted from their apartment. Juvenile continued to thrive in his foster placement.
On 23 May 2007, respondent father was charged with assault on a female resulting from another domestic incident with respondent mother. Respondent father was also charged with probation violations in his earlier domestic case based on positive drug tests, failure to pay court fees, and failure to complete a drug assessment. Respondent father was arrested on 15 June and remained in jail until 6 July. Ultimately, the assault charge was dropped, but respondent father was placed on intensive probation.
On 11 December 2007, WCHS filed a petition to terminate respondents' parental rights. Summons were issued to respondents and juvenile, care of the guardian ad litem.
As grounds for termination, WCHS alleged that: respondents neglected juvenile as defined in N.C. Gen. Stat. § 7B-101(15); respondents willfully left juvenile in placement outside the home for a period of more than twelve months without making reasonable progress toward correcting the conditions that led to his removal; juvenile had been in custody of WCHS for the six months immediately preceding the filing of the petition; and respondents had failed to pay a reasonable share of the cost of child care despite being able to do so.
The termination hearing began on 15 April 2008 and was completed on 23 May 2008. The evidence at the hearing tended to show that although respondents attended some counseling sessions, they failed to follow through with substance abuse and mental health treatment. Respondent mother refused to sign releases so that WCHS could confirm her therapy status, and respondent father failed to provide documentation of his treatment. Respondent mother worked consistently, but tested positive for marijuana and cocaine. Respondent father tested positive for cocaine and also had difficulty keeping a job. After leaving their apartment in 2007, respondents lived with respondent father's parents. That arrangement was only intended to last for a few weeks. Respondents refused WCHS's help to obtain long-term, stable housing, including through public assistance. Financial assistance for housing and food vouchers were available to respondents.
After hearing the evidence, the trial court concluded that two grounds existed to terminate respondents' parent rights: (1) that respondents willfully left juvenile in foster care for more than 12 months without making reasonable progress toward correcting the conditions that led to his removal; and (2) respondents failed to pay child support for a period of six months prior to the filing of the petition while juvenile was in the custody of WCHS. Respondents appeal.
We first address respondents' contention that the trial court lacked subject matter jurisdiction because the summons was not properly served on juvenile. We disagree.
Contrary to respondents' contention, once the summons is properly issued, service becomes a personal jurisdiction issue, not a subject matter jurisdiction issue. See In re J.T. (I), J.T. (II), A.J., ___ N.C. ___, ___ S.E.2d ___ (DONo. 155PA08 filed 6 February 2009); see also N.C. Gen. Stat. § 1A-1, Rule 4(j) (2007). The transcript indicates that the guardian ad litem appeared at the termination hearing on both 15 April and 23 May 2008, thereby waiving any challenge to personal jurisdiction on behalf of juvenile. See In re D.B., C.B., 186 N.C. App. 556, 558, 652 S.E.2d 56, 58 (2007), affirmed per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008) ("[P]ersonal jurisdiction . . . can be obtained by a party's appearance and participation in the legal proceeding without raising an objection to [the] lack of service" (citation and internal quotation marks omitted)). Respondents' assignments of error are overruled.
We next address several arguments made only by respondent mother. First, respondent mother contends that the trial court erred by failing to conduct the termination hearing within ninety days of the filing of the petition. We disagree.
A termination of parental rights hearing must be held within ninety days of the filing of the juvenile petition. N.C. Gen. Stat. § 7B-1109(a) (2007). "[T]his Court has held that time limitations in the Juvenile Code are not jurisdictional . . . and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." In re C.L.C., K.T.R., A.M.R., E.A.R., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005) (citation omitted), affirmed in part, disc. review improvidently allowed in part, 360 N.C. 475, 628 S.E.2d 760 (2006). "[E]gregious delay alone will not give rise to a claim of prejudice per se. The appellant must still articulate some specific prejudice that he or she has suffered." In re R.L. N.M.Y., 186 N.C. App. 529, 537, 652 S.E.2d 327, 333 (2007) (citations omitted).
Here, the petition for termination of parental rights was filed on 11 December 2007. After a pretrial hearing, the termination hearing was scheduled for 5 March 2008, within the ninety-day period, but it was continued due to respondent father's illness. Respondent mother and her attorney were present when the hearing was continued, and she has made no showing that she objected to the continuance. The hearing began on 15 April 2008 and was completed on 23 May 2008, more than ninety days after the filing of the petition. Respondent mother contends that the delay cost her an opportunity to repair her relationship with juvenile, but given the fact that juvenile had been in foster care since shortly after his birth in 2004 and respondent had not made significant progress toward reunification during that time, we find that she has failed to demonstrate that she suffered any prejudice as a result of the delay. This assignment of error is overruled. Respondent mother next contends that the trial court erroneously relied on hearsay evidence describing her housing circumstances and a prior incident of domestic violence between respondents. We disagree.
"In a bench trial, the court is presumed to disregard incompetent evidence. Where there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial." In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175 (citations omitted), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). To prevail on appeal, "an appellant must show that the court relied on the incompetent evidence in making its findings." In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000) (citation and internal quotation marks omitted), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
Here, even if respondent mother is correct that the trial court admitted hearsay evidence, she has failed to demonstrate that the evidence prejudiced her. We find that there was ample other evidence to support the trial court's findings of fact and conclusions of law, including documentary evidence of respondent mother's housing and domestic violence difficulties. Accordingly, this assignment of error is overruled.
Next, we address arguments made only by respondent father. First, respondent father contends that the trial court erred by conducting its own investigation into his criminal history. Respondent father acknowledges in his brief that the appellate record is inadequate to support this allegation, and we will not consider matters outside the appellate record. International Brotherhood of Electrical Workers Union v. Country Club East, Inc., 283 N.C. 1, 15, 194 S.E.2d 848, 857 (1973). Therefore, this assignment of error is overruled.
Respondent father also contends that he was denied the effective assistance of counsel. Respondent father contends that his trial counsel failed to adequately perform numerous duties, including challenging subject matter jurisdiction, appealing or otherwise challenging a prior neglect consent order, calling respondent father's father as a witness at the termination hearing, presenting evidence that respondent father had not paid child support, objecting to hearsay testimony, and offering evidence beyond respondent father's own testimony. We disagree.
"A parent has a right to counsel in termination of parental rights proceedings." In re J.A.A. S.S.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005) (citations omitted). "To prevail in a claim for ineffective assistance of counsel, respondent must show: (1) her counsel's performance was deficient or fell below an objective standard of reasonableness; and (2) her attorney's performance was so deficient she was denied a fair hearing." Id. (citation omitted).
Respondent father has failed to demonstrate that trial counsel's performance was deficient or deprived him of a fair hearing. Respondent father's claims concerning subject matter jurisdiction and hearsay lack legal merit. The prior neglect adjudication that respondent father now claims counsel should have attacked was a consent decree. As to the remainder of respondent father's contentions, he has failed to demonstrate that trial counsel's performance deprived him of a fair hearing, and there was ample evidence on which to base the trial court's findings of fact and conclusions of law. Accordingly, this assignment of error is overruled.
Finally, respondents each challenge some of the trial court's findings of fact, conclusions of law, and its determination that termination of parental rights was in juvenile's best interests. We disagree.
In termination of parental rights cases, a trial court's findings of fact must be supported by clear, cogent, and convincing evidence. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004) (citations omitted). This "standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases." In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984) (citation omitted).
In the adjudicatory stage, the burden is on the petitioner to prove that at least one ground for termination exists by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B-1109(f) (2007); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001) (citations omitted). Review in the appellate courts is limited to determining whether clear, cogent, and convincing evidence exists to support the findings of fact, and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. at 291, 536 S.E.2d at 840 (citation omitted). "`[F]indings of fact made by the trial court . . . are conclusive on appeal if there is evidence to support them.'" In re H.S.F., 182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007) (alterations in original) (quoting Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987)).
Here, we find that the trial court's findings of fact and conclusions of law are supported by ample evidence from the record and termination hearing.
Respondent mother first challenges findings thirteen, fourteen, and fifteen, in which the trial court found that she tested positive for marijuana and cocaine, failed to obtain mental health or substance abuse treatment, and failed to sign releases to verify whether she was receiving mental health and substance abuse treatment. Respondent mother's positive tests for drugs and failure to obtain treatment are well documented in the record and by the testimony from multiple social workers at the hearing. Also, a social worker testified that respondent mother refused to sign releases so that WCHS could verify that she was receiving mental health and substance abuse treatment.
Respondent mother next challenges findings twenty-three through twenty-seven, which address respondents' failure to find suitable housing. Respondents' housing status fluctuated throughout this case. At different points, respondents were evicted from two homes, briefly lived in a hotel, then moved into a home provided by respondent father's father. WCHS made public assistance available to respondents to help stabilize their housing situation, and multiple social workers testified that respondents' unstable housing circumstances were a concern.
Respondent mother also challenges findings twenty-eight and twenty-nine, which are more in the form of conclusions of law, that respondents did not make reasonable progress toward correcting the conditions that led to juvenile's removal from the home, willfully left juvenile in foster care for more than twelve months, and failed to pay a reasonable portion of the costs of care for the six months preceding the filing of the petition. Although we note that these findings were supported by the evidence, we will address the trial court's conclusions of law below.
Finally, respondent father challenges finding eleven, that he was ordered to submit to mental health assessment, domestic violence program, substance abuse treatment, and maintain stable employment and housing. Again, the trial court's findings are supported by the record and by the testimony at the hearing from social workers describing WCHS's case plan as well as documents from the record. Thus, we find that the findings of fact challenged by respondents are well supported by the evidence.
In addressing the trial court's conclusions of law, we note that respondent father has not challenged the conclusions of law in the adjudication phase. Thus, those conclusions are binding on appeal as to respondent father. As to respondent mother, although the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) and (3) to terminate respondent mother's parental rights, we find it dispositive that the evidence is sufficient to support termination of respondent's parental rights pursuant to § 7B-1111(a)(2), that respondent mother willfully left juvenile in foster care for more than twelve months without making reasonable progress toward correcting the conditions that led to juvenile's removal from the home. 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).
In the adjudication phase, the trial court made numerous findings of fact that supported its conclusion as to respondent mother. The trial court found that juvenile was removed from the home primarily due to respondents' drug abuse, domestic violence, and failure to secure stable housing. The trial court found that respondent mother had attended some treatment sessions, but had failed to maintain six months of sobriety, had tested positive numerous times for cocaine and marijuana in 2006 and 2007, and had not provided documentation that she attended treatment regularly. Further, the trial court found that respondents had moved several times, were evicted from an apartment for failing to pay rent, and resided in an extended stay hotel before respondent father's father purchased a home that he allowed them to stay in with him. These findings are supported by the evidence and support the trial court's conclusion that respondent mother failed to make reasonable progress in correcting the conditions that led to juvenile's placement in foster care.
Once the trial court determines that a ground for termination exists, it moves on to the disposition stage, where it must determine whether termination is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a) (2007). The court's decision at this 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 factors. The trial court found that juvenile was twenty-five months old and had been out of respondents' care for more than twenty-one months. The trial court also found that juvenile has a "very strong bond" with his prospective adoptive family, and a "very close relationship" with his foster family. The trial court found that juvenile had a bond with respondents, but that "it is not necessarily a `parent/child' bond." Finally, the trial court found that juvenile's permanent plan is adoption, and that terminating respondents' parental rights would help effectuate that plan. Accordingly, we find that the trial court made sufficient findings to support its determination that termination of respondents' parental rights is in juvenile's best interests and did not abuse its discretion in terminating respondents' parental rights.
Affirmed.
Judges BRYANT and CALABRIA concur.
Reported per Rule 30(e).