In re B.L.H.

660 S.E.2d 255, 190 N.C. App. 142, 2008 N.C. App. LEXIS 831
Court of Appeals of North Carolina·Decided May 6, 2008·No. No. COA07-1313-2.·Published·Cited by 27 cases

Opinions

CALABRIA, Judge.

C.L.H. ("respondent") appeals from orders terminating her parental rights to B.L.H. and Z.L.H. (collectively "the minor children"). Respondent is the biological mother of the minor children. The biological fathers of B.L.H. and Z.L.H. are unknown and respondent indicated she does not know the identity of the biological fathers. Although the legal father of Z.L.H. was identified, DNA testing confirmed that he was not the biological father.

On 30 January 2007 and 5 February 2007, the Buncombe County Department of Social Services ("petitioner") filed petitions and issued summonses for an action to terminate respondent's parental rights to B.L.H. and Z.L.H. Petitioner specifically alleged as grounds for terminating respondent's parental rights to B.L.H. and Z.L.H. that:

Pursuant to N.C.G.S. § 7B-1111(a)(1), the respondent mother has neglected the minor [children] ... [and that t]here is a high risk of repetition of neglect if the [minor children are] returned to the care and custody of the respondent mother....

Pursuant to N.C.G.S. § 7B-1111(a)(3), the minor [children have] been in the custody of the Department and in an out-of-home or foster-care placement for a continuous period of more than six months preceding the filing of this petition and, during this time, the respondent mother has willfully failed to pay a reasonable portion of the cost of care for the minor [children], although the respondent mother is able-bodied and capable of full time employment....

Respondent and the minor children were timely served copies of the summonses and petitions to terminate her parental rights to the minor children. Petitioner accomplished service by publication for the unknown fathers.

The petitions were heard on 16 May 2007 and 4 June 2007. At the adjudication hearing, petitioner's first witness was Andrea Biffle, the social worker supervising the minor children's foster care. Ms. Biffle testified to the history of the custody and placement of the minor children from 25 August 2005, when petitioner first became involved with the children, to 10 March 2006, when petitioner first assumed custody over the minor children. Petitioner then moved to amend the petitions to conform to the evidence presented to include an allegation that grounds existed to terminate respondent's parental rights under N.C.G.S. § 7B-1111(a)(2), arguing the children had been left in a foster care or out of home placement for a period of twelve months preceding the filing of the petitions. Defendant objected, arguing she received no notice of the allegation and that such an amendment was a substantial change to the petitions requiring additional time to prepare a defense. The trial court overruled defendant's objection and allowed the amendment.

On 25 July 2007, the trial court entered separate orders terminating respondent's parental rights to B.L.H. and Z.L.H. The only ground found by the trial court for terminating respondent's parental rights to the minor children was under N.C.G.S. § 7B-1111(a)(2). Respondent appeals.

I. Amendment of Petition

Respondent argues the trial court erred in finding and concluding that grounds existed to terminate respondent's parental rights under N.C.G.S. § 7B-1111(a)(2) when such grounds were not alleged in the petitions. Respondent contends the trial court erred in permitting petitioner to amend its petitions to conform to the evidence presented at the adjudication hearing to add N.C.G.S. § 7B-1111(a)(2) as an alleged ground of termination. Petitioner's response is that the trial court correctly allowed the petitions to be amended under Rule 15(b) of the North Carolina Rules of Civil Procedure. We disagree.

*257This Court has held that the North Carolina Rules of Civil Procedure do "not provide parties in termination actions with procedural rights not explicitly granted by the juvenile code." In re S.D.W. & H.E.W, ___ N.C.App. ___, ___, 653 S.E.2d 429, 432 (2007) (citing In re Jurga, 123 N.C.App. 91, 472 S.E.2d 223 (1996)) (holding that parents could not execute a "Declaration of Voluntary Termination of Parental Rights" because the juvenile code did not provide procedures for this type of unilateral declaration); In re Curtis v. Curtis, 104 N.C.App. 625, 410 S.E.2d 917 (1991) (reversing the trial court's grant of summary judgment for the petitioner on the issue of whether the respondent had abused his daughter, because the termination procedures set out in the juvenile code required an adjudication hearing on this issue and did not authorize a summary procedure based on N.C. Gen.Stat. § 1A-1, Rule 56); see also In re D.S.C., 168 N.C.App. 168, 173, 607 S.E.2d 43, 47 (2005) (our case law has "declined to judicially impute procedural rights to parties which are not otherwise authorized by the termination statute"); In re Peirce, 53 N.C.App. 373, 281 S.E.2d 198 (1981) (holding that a respondent in a termination of parental rights proceeding may not file a counterclaim).

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In re B.L.H., 660 S.E.2d 255, 190 N.C. App. 142, 2008 N.C. App. LEXIS 831 (N.C. Ct. App. 2008).

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