In Re HT

637 S.E.2d 923, 180 N.C. App. 611, 2006 N.C. App. LEXIS 2497
CourtCourt of Appeals of North Carolina
DecidedDecember 19, 2006
DocketCOA06-177
StatusPublished

This text of 637 S.E.2d 923 (In Re HT) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re HT, 637 S.E.2d 923, 180 N.C. App. 611, 2006 N.C. App. LEXIS 2497 (N.C. Ct. App. 2006).

Opinion

637 S.E.2d 923 (2006)

In re H.T.

No. COA06-177.

Court of Appeals of North Carolina.

December 19, 2006.

Womble Carlyle Sandridge & Rice, PLLC, by Christopher G. Daniel, Winston-Salem, for petitioner-appellee Guardian Ad Litem.

Michael E. Casterline, Asheville, for respondent-mother.

Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, Morganton, for respondent-father.

WYNN, Judge.

"[A] party who is entitled to notice of a hearing waives that notice by attending the hearing of the motion and participating in it without objecting to lack thereof."[1] Here, because Respondents, mother and father, participated in the hearing to terminate their parental rights, we reject their challenges to proper service in this matter.

Additionally, in general, technical errors and violations of the Juvenile Code will be found to be reversible error only upon a showing of prejudice by respondents.[2] Here, Respondents argue a number of technical errors and deficiencies in the conduct of the proceedings to terminate their parental rights. Because Respondents make no specific allegations or showings of prejudice resulting from these errors, we affirm the trial court's order terminating their parental rights.

Respondents are the natural parents of a minor child removed from their home in July 2002 by the Henderson County Department of Social Services (DSS). According to the DSS petition, the parents showed signs of serious impairment when the child was removed. Neither parent could give an account of what, if anything, the child had been fed that day, and there was evidence of some domestic violence between the parents, as well as bullets found on the floor of the living room where the child had been playing. Respondent-father was diagnosed with a drug overdose and delirium later that day; his drug screen revealed opiates, cannabinoids, amphetamines, and benzodiazepines. Respondent-mother refused to take a drug screen the next day, but the petition stated that she had needle marks on her arms, indicative of intravenous drug use. DSS also averred that it had substantiated claims of neglect in the past with respect to Respondents, although they had subsequently complied with their treatment plan and their case was closed. At that time, the child went to live with a maternal cousin and her husband.

In an order dated 23 September 2002, the child was adjudicated neglected based on the allegations of domestic violence and substance abuse in the petition and according to the definition provided in North Carolina General Statutes § 7B-101(15). However, Respondent-mother retained custody of the child, so long as she continued to comply with recommendations outlined in the Guardian Ad Litem court report. Specifically, Respondent-mother was ordered to maintain her participation in the Mary Benson House, a one-year residential substance abuse program in Asheville, where she had been living with the child since 5 August 2002.

Respondent-mother was allowed to spend weekends away from the Home with the child; on 30 September 2002, DSS received a message that Respondent-mother and the child had not returned to the House following *926 their weekend pass. DSS subsequently filed a motion for review of the order on 7 October 2002, seeking immediate custody of the child. On 9 October 2002, the district court formalized its 23 September handwritten order, entering a typewritten order adjudicating the child neglected but finding it in the best interest of the child to remain in the custody of Respondent-mother, so long as she continued in the residential substance abuse program. The court also ordered Respondent-father to undergo an alcohol and drug assessment and denied him unsupervised visitation with the child.

After Respondent-mother continued to fail to return to the residential substance abuse program, DSS filed for nonsecure custody on 7 October 2002. The child was placed with a maternal uncle and aunt on 17 October 2002, with supervised visitation for Respondent-mother and no visitation for Respondent-father. The child had five placements within the first four months of DSS involvement but was stable in foster care placement after it was made on 21 November 2002, until the date of the termination order. During this period, Respondent-mother was in and out of substance abuse programs and prison, and Respondent-father was also incarcerated for several lengths of time. Respondent-mother had limited interaction with the child after he entered DSS custody and foster care; Respondent-father did not see the child after the initial removal and had no contact with him at all aside from two phone calls in June 2003.

In 2004, the child's foster parents expressed interest in adopting him, as did a great-aunt and great-uncle, and an order was entered on 16 April 2004 changing the permanency plan to termination of parental rights and adoption. On 12 July 2004, DSS filed a petition to terminate the parental rights of Respondents regarding the child. For Respondent-mother, the grounds were neglect, willfully leaving the child in care or placement outside her custody for twelve months without showing reasonable progress to correct the circumstances leading to the placement, and willfully failing to pay a reasonable share of the cost of the child's care, despite an ability to do so. The same grounds were alleged for Respondent-father, as well as that he had willfully abandoned the child for more than six months immediately preceding the filing of the petition.

After a series of continuances and other delays, some of which related to who might adopt the child, an order was entered on 31 May 2005, terminating the parental rights of Respondents on each of the grounds alleged in the DSS petition. Respondents now appeal individually from that termination order; we address each of their appeals in turn.

Respondent-Mother's Appeal

In her appeal, Respondent-mother argues that the trial court lacked subject matter jurisdiction because (I) there was not proper service of the summons and petition to terminate parental rights and (II) the petition to terminate parental rights did not allege specific facts sufficient to determine that grounds for termination existed.

First, Respondent-mother contends service of the petition to terminate her parental rights should have been in accordance with Rule 4 of the North Carolina Rules of Procedure, rather than Rule 5, as Respondent-mother admits was done. See N.C. Gen.Stat. § 7B-1102(b) ("A motion pursuant to subsection (a) of this section [authorizing a person to file for termination of parental rights when a district court is exercising jurisdiction over the child and parent in an abuse, neglect, or dependency proceeding] and the notice required . . . shall be served in accordance with . . . Rule 5(b)"). Respondent-mother argues that the instant case fell within one of the exceptions to the service provisions of N.C. Gen.Stat. § 7B-1102(b), such that service was required to be in accordance with Rule 4 and its more rigorous provisions. See N.C. Gen.Stat. § 1A-1, Rule 4 (2005). Specifically, Respondent-mother cites the exception named in N.C. Gen.Stat. § 7B-1102(b)(1)(c) that "[t]wo years ha[ve] elapsed since the date of the original action," which triggers the application of Rule 4.

When calculating a period of time prescribed or allowed by statute, "[t]he last day of the period to be so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, . . . in which event the period *927

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Bluebook (online)
637 S.E.2d 923, 180 N.C. App. 611, 2006 N.C. App. LEXIS 2497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ht-ncctapp-2006.