An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA08-707
NORTH CAROLINA COURT OF APPEALS
Filed:
18 November 2008
IN RE:
S.R.
M.R.
J.R.
Y.R.
Surry County
Nos. 06 JT 4-7
Court of Appeals
Appeal by respondent from orders entered 6 March 2008 by Judge
Angela B. Puckett in Surry County District Court.
Heard in the
Court of Appeals 20 October 2008.
Slip Opinion
H. Lee Merritt, for petitioner-appellee
Department of Social Services.
Surry
County
Pamela Newell Williams, for guardian ad litem.
Peter Wood, for respondent-appellant father.
MARTIN, Chief Judge.
Respondent appeals from an order terminating his parental
rights as father of the minor children on the grounds of neglect
and willfully leaving the children in foster care for more than
twelve months without making reasonable progress to correct the
conditions which led to the removal of the children.1
1
We affirm.
The children’s mother did not appeal the termination of
her parental rights and is therefore not a party to this appeal.
-2The Surry County Department of Social Services (“DSS”) became
involved with this family when the children’s mother informed DSS
in late December 2005 that she could no longer take care of the
children.
Respondent had recently moved out of the home due to
domestic violence and was not helping with child care.
A social
worker visited the home on 3 January 2006 and observed filthy
conditions, including rotting food and trash throughout the house.
On that day the children’s mother left the children alone for at
least an hour.
Respondent stated he was leaving for Mexico due to
his mother’s death, he would be gone for at least one month, and he
could not take the children with him.
The mother stated she would
not take care of the children and, on 10 January 2006, DSS took
nonsecure custody of the children and filed juvenile petitions
alleging neglect and dependency.
foster care.
The children were placed in
Nonsecure custody was continued by orders signed 20
January 2006.
After a hearing held on 9 February 2006, the trial court
entered orders on 17 February 2006 adjudicating the children
neglected and dependent and giving DSS responsibility for placement
of the children.
Respondent entered into a case plan with DSS and
agreed to: (1) take parenting classes; (2) engage in domestic
violence counseling; (3) submit to a substance abuse evaluation and
follow-up; (4) maintain employment and adequate housing; and (5) be
willing to pay child support.
visitation with his children.
Respondent was granted weekly
-3From February to April 2006, respondent was incarcerated on
charges of assault on a female and second-degree kidnapping after
an incident involving the children’s mother.
Most of the charges
were dismissed due to the mother’s failure to appear.
Respondent
was evicted from his apartment while he was incarcerated.
The
children’s mother moved back to Mexico and was not involved with
the children or the case after early 2006.
A 90-day review hearing was held on 27 April 2006.
significant changes were made to the previous orders.
No
On 2
November 2006, the court held a permanency planning review hearing.
The report submitted to the court by DSS described the social
worker’s visit to respondent’s new residence in Winston-Salem where
respondent was living with his girlfriend and her two children.
The social worker noted that respondent was not on the lease and he
had only known his girlfriend for nine weeks; therefore, the
housing situation was not secure and stable. Also, there were only
three bedrooms and two single beds for the four people already
living there.
had
only
Both beds were in one room and the other bedrooms
blankets
and
pillows
on
the
floor.
Finally,
the
neighborhood was not safe; the social worker had a police officer
escort her to respondent’s home.
The social worker informed
respondent that DSS did not consider the housing to be appropriate
or safe for the children.
In its report, DSS requested relief from
reunification efforts and to change the permanent plan to adoption.
After the hearing, the trial court made findings that respondent:
(1) had been residing in Winston-Salem for approximately eight
-4weeks; (2) had completed domestic violence counseling and parenting
classes; (3) was participating in substance abuse counseling; (4)
was visiting his children regularly on a weekly basis; and (5) was
gainfully employed.
In its order, the court stated it did not
approve a plan of adoption as requested by DSS and ordered DSS to
continue with reunification efforts. Respondent was ordered not to
discuss the foster parents with the children.
Another permanency planning review hearing was held on 15
March 2007. The court found that respondent was unemployed and the
two
older
children
were
attending
counseling
behavioral problems and adjustment issues.
to
deal
with
The two older children
had stated they no longer wanted to visit with their father.
The
trial court stated that filing petitions to terminate parental
rights would not be in the best interest of the children at that
time, as DSS was still attempting to reunify the children with
respondent.
Respondent was ordered to participate in counseling
with regard to the children’s behavioral issues and to comply with
recommendations.
The report DSS submitted to the court recited
respondent’s intent to continue living with his girlfriend and his
acknowledgment that without his girlfriend he could not survive
financially.
At the next permanency planning review hearing held on 7 June
2007, the trial court found that respondent was no longer in a
relationship with his girlfriend, had no permanent place to live,
had no means of transportation, and did not have the financial
ability to provide for himself.
The court found that respondent
-5had made little or no progress to correct the conditions which
caused the removal of the children from the home.
The court
explicitly approved the change in the permanent plan to adoption,
and relieved DSS of any further reunification efforts.
DSS was
ordered to initiate termination proceedings by filing petitions.
On
5
October
2007,
DSS
filed
petitions
to
terminate
respondent’s parental rights, alleging the grounds of neglect,
willful failure to provide financial support to pay for the cost of
care of the children, and willfully leaving the children in foster
care for more than twelve months without making reasonable progress
to correct the conditions which led to the removal of the children.
At the next permanency planning review hearing held on 28
November 2007, the trial court found that respondent was living in
Surry County again, was gainfully employed, and was making monthly
child support payments.
The court continued the permanent plan of
adoption and stated that there had not been a substantial change of
circumstances to warrant a change of the previous order.
Although
respondent began working again in August 2007, at the time of the
November hearing, the children had been in foster care for 22
months.
The termination hearing was held on 10 January and 7 February
2008.
noted
The guardian ad litem’s report prepared for the hearing
that
although
respondent
kept
up
visitation
with
the
children, he had never progressed beyond supervised visitation.
The report also stated that the two older children, aged nine and
seven, wanted to remain with their foster parents rather than
-6return to live with their father.
Further, the foster parents
intended to adopt all four of the children upon termination of
respondent’s parental rights, and the bond between the children and
the foster parents was “strong,” in the guardian ad litem’s view.
After taking evidence and testimony at the hearings, the trial
court entered adjudication orders on 6 March 2008 finding that
termination of respondent’s parental rights as to all four children
was justified due to respondent’s (1) neglect and (2) willfully
leaving the children in foster care for more than twelve months
without making reasonable progress.
The court entered separate
disposition orders on the same date finding that termination is in
the best interest of the children.
From the orders entered,
respondent appeals.
Respondent first argues the trial court had no subject matter
jurisdiction over these cases because the summonses were defective.
One set of summonses was issued on 5 October 2007 which named both
parents and the guardian ad litem as respondents.
were not named as respondents.
The juveniles
This set was served on respondent
father on 9 October 2007.
A second set of summonses was issued on
7
named
December
respondents.
2007
which
the
juveniles
as
additional
This set was apparently never served on any party,
although copies of both the petitions and summonses were served on
the guardian ad litem by mailing a copy to the attorney for the
guardian ad litem.
Respondent contends neither set of summonses
were sufficient to confer jurisdiction because the first set failed
-7to name the juveniles as respondents and the second set was not
properly issued because they were never served.
We disagree.
The General Statutes provide, “[a] summons is issued when,
after being filled out and dated, it is signed by the officer
having authority to do so.”
(2007).
N.C. Gen. Stat. § 1A-1, Rule 4(a)
In termination of parental rights cases, a summons must
also conform to section 7B-1106(a), which provides that a summons
“shall be directed” to the following respondents:
(1)
(2)
(3)
(4)
(5)
The parents of the juvenile;
Any person who has been judicially
appointed as guardian of the person of
the juvenile;
The custodian of the juvenile appointed
by a court of competent jurisdiction;
Any county department of social services
or licensed child-placing agency to whom
a juvenile has been released by one
parent pursuant to Part 7 of Article 3 of
Chapter 48 of the General Statutes or any
county department of social services to
whom placement responsibility for the
child has been given by a court of
competent jurisdiction; and
The juvenile.
N.C. Gen. Stat. § 7B-1106(a) (2007).
Here, both sets of summonses
were properly filled out, dated, and signed by a deputy clerk of
superior court.
Although the initial summonses were not properly
directed to the juveniles, summonses may be amended at any time
“unless it clearly appears that material prejudice would result to
substantial rights of the party against whom the process issued.”
N.C. Gen. Stat. § 1A-1, Rule 4(i).
In this case, the summonses
were amended prior to the beginning of the hearing, which began on
10 January 2008.
We see no prejudice to either the juveniles or
any other party to this action by the amendment of the summonses.
-8Therefore,
the
summonses
were
properly
amended
to
name
the
juveniles as respondents pursuant to section 7B-1106(a), and we
find the summonses were properly issued as required.
With respect to respondent’s argument that the summonses were
defective because they were not properly served, we note that once
the summonses are properly issued, service becomes a personal
jurisdiction issue, not a subject matter jurisdiction issue.
N.C. Gen. Stat. § 1A-1, Rule 4(j).
See
Further, the record reflects
that the guardian ad litem was served with the petitions and the
summonses.
Even if service was somehow improper or invalid, the
guardian ad litem appeared at the termination hearing on both 10
January and 7 February 2008, thereby waiving any challenge to
personal jurisdiction on behalf of the minor children.
See In re
D.B., C.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) (“[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.” (internal quotation marks omitted)).
Since the trial court properly had jurisdiction over these cases,
respondent’s assignments of error on this issue are overruled.
Respondent next argues the trial court erred in finding that
grounds
existed
to
terminate
his
parental
rights
insufficient evidence failed to support the grounds.
because
We do not
agree.
Termination of parental rights cases are determined in two
phases:
(1) the adjudication phase, governed by N.C.G.S. § 7B-
-91109; and (2) the disposition phase, governed by N.C.G.S. § 7B1110.
See In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146
(2003). The petitioner has the burden of proving by clear, cogent,
and convincing evidence that at least one ground for termination
exists.
See N.C. Gen. Stat. § 7B-1111(b) (2007); In re Blackburn,
142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
The standard
of review on appeal is whether the trial court’s findings of fact
are supported by clear, cogent, and convincing evidence and whether
the conclusions of law are supported by the findings of fact.
See
In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000),
disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
Findings
of fact supported by competent evidence are binding on appeal even
though
there
may
be
evidence
to
the
contrary.
See
In
Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).
re
A
trial court only needs to find one statutory ground for termination
before proceeding to the dispositional phase of the hearing.
See
N.C. Gen. Stat. § 7B-1111(a); In re Shermer, 156 N.C. App. 281,
285, 576 S.E.2d 403, 406 (2003).
In the disposition phase, the
trial court determines whether termination of parental rights is in
the best interest of the child.
See Blackburn, 142 N.C. App. at
610, 543 S.E.2d at 908.
Parental rights may be terminated when “[t]he parent has
willfully left the juvenile in foster care or placement outside the
home for more than 12 months without showing to the satisfaction of
the court that reasonable progress under the circumstances has been
made in correcting those conditions which led to the removal of the
-10juvenile.”
N.C. Gen. Stat. § 7B-1111(a)(2).
Willfulness does not
imply fault on the part of the parent, but may be established
“‘when the respondent had the ability to show reasonable progress,
but was unwilling to make the effort.’”
In re O.C. & O.B., 171
N.C. App. 457, 465, 615 S.E.2d 391, 396 (quoting In re McMillon,
143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001)), disc. review
denied, 360 N.C. 64, 623 S.E.2d 587 (2005).
Even if a parent has
made some efforts to regain custody, a trial court may still find
that he or she willfully left the child in foster care under
section 7B-1111(a)(2).
See id.
Here, the reason for the removal of the children from their
home was a lack of supervision, as well as unsafe and unsanitary
conditions
in
the
home.
Respondent
argues
that
he
was
not
responsible for the conditions that led to the removal of the
children because he was not living there at the time.
He contends
that he made reasonable efforts to keep his children out of foster
care
and
that
his
compliance
with
his
case
plan
constitutes
reasonable progress.
In its order finding grounds to terminate parental rights, the
trial court made the following findings of fact:
13. The family services case plan identified a
need for the respondent-father to improve his
parenting skills.
Prior to being placed in
the custody of [DSS], the [minor children] had
been left alone for periods of time.
The
parents had not properly supervised their
children
nor
properly
maintained
their
residence. The residence where the children
were residing immediately prior to be[ing]
placed in the custody of [DSS] was littered
with rotting food and trash. The conditions
in the home and the lack of proper supervision
-11by the parents exposed the [minor children] to
serious injury and harm.
14. Respondent-father did attend a parenting
class and completed the class in May 2006. In
addition to attending the class, [DSS] wanted
the father to demonstrate his parenting skills
during the visits with the children.
15. Respondent-father has visited with the
minor child[ren] regularly. The visits have
been supervised by [DSS].
The visits have
occurred both at [DSS’s] offices and at other
locations. During many of these visits, the
children have been unruly and out of control.
On these occasions, the social worker has
intervened and helped the father re-gain
control
of
the
children.
On
several
occasions, the social worker met with the
father and encouraged the respondent-father to
develop a plan of structured activities for
the children during the visits. Even though
the father has been strongly encouraged to do
so, he has not developed a plan of structured
activities for the children during the visits
and the visits are often chaotic.
16. [DSS] also requested that the respondentfather obtain and maintain housing that would
be suitable and safe for himself and his
children.
From April 2006 until early
September 2006, the father resided in an
apartment in Elkin which he shared with
several other individuals.
This was not a
safe and suitable residence where the children
could reside. From early September 2006 until
June 2007, the father resided in WinstonSalem, North Carolina. In Winston-Salem, the
father lived with a woman and her two (2)
teenage children. The social worker and the
volunteer guardian ad litem made a home visit
to the residence in Winston-Salem. This house
was not a suitable or safe residence for the
children to reside. The father in July 2007
moved to Dobson, where he shared a residence
with a male friend of his. This residence was
not a safe or suitable residence for the
children to reside in.
17. In May 2007, the social worker met with
the father and discussed with him [DSS’s]
concerns with his living arrangements, his
-12parenting skills, and his lack of progress in
having the children returned to him.
The
social worker also told the father that [DSS]
intended to ask the court to relieve [DSS] of
reunification efforts at the next review
hearing in June 2007.
18. A permanency planning review hearing was
conducted in June 2007. The court entered an
order on July 25, 2007, relieving [DSS] of
reunification efforts. The court found that
the respondent-father had made little or no
progress to correct the conditions which
existed at the time that the [minor children
were] placed in the care of [DSS]. The court
further found that it was not likely that the
[minor children] would be returned to the
father within the following six (6) months.
At that time, the father had no means of
transportation, no permanent place to live,
nor did he have the financial ability to
provide for himself.
The father, at that
time, had not paid child support on a regular
basis and he had allowed a substantial
arrearage to accumulate. The court approved
at that time the permanent plan of adoption of
the children.
19. The respondent-father has not demonstrated
that he has the parenting skills necessary to
provide appropriate care for his children.
20. The respondent-father has made some
progress in correcting the conditions which
existed at the time of the removal of the
children from the parents’ care. The progress
that the father has made has been minimal and
not measurable.
Respondent challenges findings 13, 15, 19, and 20, but does not
challenge
the
others,
which
supported by the evidence.
S.E.2d
127,
133
are
presumed
to
be
correct
and
See In re Moore, 306 N.C. 394, 404, 293
(1982).
In
particular,
respondent
does
not
challenge finding 16 regarding his failure to establish adequate
housing for himself and his four children.
findings
are
all
supported
by
clear,
We find that the
cogent,
and
convincing
-13evidence, both in the record as well as from testimony taken at the
hearing.
The record reflects that the children were removed from
their home due to unsafe and unsanitary conditions, and that both
parents were not providing proper supervision.
Respondent did not
challenge these allegations at the initial adjudication hearing
finding neglect.
At the termination hearing, a social worker
testified that the visits between respondent and the children were
chaotic and that despite her instructions to respondent to try to
provide structured activities for the children, in her opinion, the
structure of the visits had not improved over time.
Finally,
sufficient evidence was presented to support the trial court’s
determination
that
respondent
had
not
demonstrated
sufficient
parenting skills or reasonable progress such that his children
could be returned to him.
Evidence was presented regarding the
lack of structure and discipline at the visits with the children,
as well as respondent’s inability to find suitable housing or to
maintain employment for the twelve months preceding the filing of
the termination petitions. Even though some evidence was presented
showing that respondent made some progress toward his case plan,
such limited progress is not enough to show that the trial court
erred in finding that respondent willfully left his children in
foster care for more than twelve months without making reasonable
progress.
See O.C. & O.B., 171 N.C. App. at 465, 615 S.E.2d at
396. Since we find that the trial court properly based termination
on the ground of failure to make reasonable progress pursuant to
N.C.G.S.
§
7B-1111(a)(2),
we
need
not
address
respondent’s
-14arguments
regarding
neglect.
See Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406.
Respondent’s
the
assignments
remaining
of
error
ground
for
regarding
termination
of
these
issues
are
court
abused
its
therefore overruled.
Finally,
respondent
contends
the
trial
discretion by terminating his rights with respect to the four minor
children.
Respondent argues the trial court did not sufficiently
consider the fact that three of the children are not United States
citizens and that termination would not only separate them from
their natural family and culture in Mexico, but would subject them
to deportation since the United States is not their legal home.
Respondent contends that the children are not adoptable due to
their illegal immigrant status, and that when no reasonable chance
of adoption exists, it is reversible error to terminate parental
rights.
We are not persuaded by respondent’s arguments.
By statute, a trial court is required to consider certain
factors
when
determining
whether
termination
is
in
interest of the minor children:
(1)
(2)
(3)
(4)
(5)
(6)
The age of the juvenile.
The likelihood of adoption of the
juvenile.
Whether the termination of parental
rights will aid in the accomplishment of
the permanent plan for the juvenile.
The bond between the juvenile and the
parent.
The quality of the relationship between
the juvenile and the proposed adoptive
parent, guardian, custodian, or other
permanent placement.
Any relevant consideration.
the
best
-15N.C. Gen. Stat. § 7B-1110(a) (2007).
The determination by the
trial court that termination is in the best interest of the
children will not be overturned absent an abuse of discretion. See
Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406-07.
Here, the trial court stated that it considered all of the
statutory factors, particularly the positive relationship between
the children and the foster parents and the likelihood of adoption
by
the
foster
respondent’s
love
parents.
and
Although
affection
for
the
his
court
acknowledged
children,
the
court
concluded that termination of parental rights would aid in the
permanent plan of adoption and that termination would be in the
children’s best interest.
Respondent does not support his contention that the children
could not be adopted by the foster parents. Evidence was presented
that the foster parents intended to adopt all four of the children,
and that the bond between the children and the foster parents is
very strong.
Respondent also fails to indicate how termination of
his parental rights would subject his children to a greater risk of
deportation.
We therefore find the trial court did not abuse its
discretion in determining that termination of respondent’s parental
rights was in the best interest of the children.
affirm the orders of the trial court.
Affirmed.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
Accordingly, we
