In re B.D.

620 S.E.2d 913, 174 N.C. App. 234
Court of Appeals of North Carolina·Decided November 1, 2005·No. No. COA03-1599-2.·Published·Cited by 17 cases

Opinion

TIMMONS-GOODSON, Judge.

Respondent-mother and respondent-father (collectively, "respondents") appeal the trial court order terminating their parental rights to their adopted son, Brian.1 For the reasons discussed herein, we affirm the order of the trial court.

The facts and procedural history pertinent to the instant appeal are as follows: On 8 November 2000, Buncombe County Department of Social Services ("petitioner") filed a petition against respondents, alleging that respondent-father was allowing Brian to sit on his lap while he drove a motorized and reflector-less wheelchair on Highway 70 in Asheville, North Carolina, in the dark hours of early morning. Following an adjudication and disposition hearing, the trial court entered an order on 19 March 2001 adjudicating Brian neglected and granting custody to petitioner. On 19 June 2001, petitioner filed a second petition against respondents, alleging that respondents engaged in "sexual games" with Brian and encouraged him to urinate and defecate upon them, their cats, and their residence. Following an adjudication and disposition hearing, the trial court entered an order on 20 February 2002 adjudicating Brian neglected and abused.

Respondents appealed the 20 February 2002 order to this Court. In an unpublished opinion filed 2 September 2003 ("B.D.I"), this Court affirmed the trial court order. On 1 November 2002, while B.D.I was pending, petitioner filed a petition to terminate respondents' parental rights, alleging that Brian was neglected and that respondents had willfully left Brian in foster care for more than twelve months without showing any reasonable progress under the circumstances to correct those conditions which led to his removal.

The trial court held a hearing on the matter in February 2003. On 19 May 2003, the trial court entered an order terminating respondents' parental rights. After recapitulating the evidence and findings from the prior adjudication hearings as well as the evidence from the termination hearing, the trial court found as fact that (i) respondents had failed to comply with court orders and recommended services, (ii) there had been no change in the circumstances since the 20 February 2002 adjudication of neglect, (iii) there is a reasonable probability of continuing neglect if Brian were returned to respondent's care, and (iv) respondents had failed to demonstrate any reasonable progress to correct those conditions which led to Brian's removal from their home. Based upon its findings of fact, the trial court concluded as a matter of law that sufficient grounds exist to terminate respondents' parental rights pursuant to N.C. Gen.Stat. § 7B-1111(a)(1) and (2). After concluding that it was in Brian's best interests to do so, the trial court ordered the release of Brian for adoption and the termination of respondents' parental rights. Respondents appeal.

We note initially that, although their rights were terminated concurrently, respondents have filed separate appellate briefs with this Court. To the extent that their individual assignments of error present the same issue, we have chosen to address respondents' arguments together. Furthermore, where either respondent has failed to provide argument in their brief supporting an original assignment of error, we have deemed the omitted assignment of error abandoned pursuant to N.C.R.App. P. 28(b)(6) (2005). Accordingly, we limit our present review to those assignments of error properly preserved by respondents for appeal.

*917Respondents' Jurisdictional Arguments

Both respondents argue that because Brian was not served with a summons, the trial court lacked jurisdiction to proceed with the termination hearing. We disagree.

Upon the filing of a petition to terminate parental rights, N.C. Gen.Stat. § 7B-1106(a)(5) (2003) requires that a summons regarding the proceeding be issued to the juvenile whose rights are to be terminated. "[T]he summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed[.]" Id. In the instant case, the record reflects that the summons required by N.C. Gen.Stat. § 7B-1106(a)(5) was served upon the guardian ad litem's attorney advocate rather than the guardian ad litem. Assuming arguendo that this was error, we note that the guardian ad litem did not object at trial to the sufficiency of service, nor does the guardian ad litem argue on appeal that the trial court lacked jurisdiction over Brian. Instead, respondents object to the sufficiency of the service, arguing that the failure to properly serve Brian necessitates reversal of the trial court's termination order.

"Only a `party aggrieved' may appeal from an order or judgment of the trial division." Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990) (quoting N.C. Gen.Stat. § 1-271). "An aggrieved party is one whose rights have been directly and injuriously affected by the action of the court." Culton, 327 N.C. at 625, 398 S.E.2d at 324. In the instant case, respondents are unable to demonstrate any prejudice arising from the alleged failure to properly serve Brian. Therefore, we are unable to conclude that respondents were "directly and injuriously" affected by the alleged error, and accordingly, we overrule this argument.

Respondents also argue that the trial court erred by holding the special proceeding required by N.C. Gen.Stat. § 7B-1108(b) immediately prior to commencement of the termination hearing. Respondents assert that the failure to notify them of the special hearing ten days prior to its commencement was reversible error. We disagree.

When a respondent denies via answer any material allegation contained within a petition to terminate parental rights, N.C. Gen.Stat. § 7B-1108(b) (2003) requires that the trial court conduct a "special hearing . . . to determine the issues raised by the petition and answer. . . ." While we recognize that the statute provides that "notice of not less than 10 days nor more than 30 days" shall proceed the special hearing, Id., we note that this Court has held that similar requirements under former N.C. Gen.Stat. § 7A-289.29(b) were "general," and "[t]he fact that the hearing [i]s brief and held just prior to the trial does not conflict with the statutory requirements." In re Peirce, 53 N.C.App. 373, 383, 281 S.E.2d 198, 204 (1981).

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In re B.D., 620 S.E.2d 913, 174 N.C. App. 234 (N.C. Ct. App. 2005).

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