In Re Kjl

698 S.E.2d 150, 206 N.C. App. 530, 2010 N.C. App. LEXIS 1550
CourtCourt of Appeals of North Carolina
DecidedAugust 17, 2010
DocketCOA08-284-3
StatusPublished

This text of 698 S.E.2d 150 (In Re Kjl) 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 Kjl, 698 S.E.2d 150, 206 N.C. App. 530, 2010 N.C. App. LEXIS 1550 (N.C. Ct. App. 2010).

Opinion

698 S.E.2d 150 (2010)

In the Matter of K.J.L.

No. COA08-284-3.

Court of Appeals of North Carolina.

August 17, 2010.

*151 Charles E. Frye, III, Lexington, for petitioner-appellee Davidson County Department of Social Services; Laura B. Beck, Lexington, for appellee Guardian ad Litem.

Robert W. Ewing, Clemmons, for respondent-appellant.

STROUD, Judge.

This Court in In re K.J.L., 194 N.C.App. 386, 389-91, 670 S.E.2d 269, 271-72 (2008) vacated the order terminating respondent's parental rights on two separate grounds: (1) the trial court did not initially have subject matter jurisdiction to issue the adjudication order, as the summonses to the parents were not properly "issued[,]" and "the adjudication order was essential to the trial court's subject matter jurisdiction" in the termination proceeding; and (2) the trial court also lacked subject matter jurisdiction over the termination of parental rights proceeding because "no summons was issued to the juvenile and no summons was served upon or accepted by the guardian ad litem for the juvenile." Our North Carolina Supreme Court, in In re K.J.L., 363 N.C. 343, 348, 677 S.E.2d 835, 838 (2009), reversed the majority decision of this Court, on the basis of Judge Robert C. Hunter's dissenting opinion, and held that

[b]ecause the purpose of the summons is to obtain jurisdiction over the parties to an action and not over the subject matter, summons-related defects implicate personal jurisdiction. Any deficiencies in the issuance and service of the summonses in the neglect and [termination of parental rights] proceedings at issue in this case did not affect the trial court's subject matter jurisdiction, and any defenses implicating personal jurisdiction were waived by the parties.

This case comes before this Court on remand for the purpose of deciding the remaining issues not addressed by the majority opinion in In re K.J.L., 194 N.C.App. 386, 670 S.E.2d 269 (2008). Respondent argues that (1) the trial court erred in concluding that grounds existed to terminate her parental rights; (2) she received ineffective assistance of counsel; and (3) that her guardian ad litem breached his duty to protect her legal interests. We will present below pertinent facts to provide context for these remaining substantive issues.

I. Background[1]

On 28 March 2006, the Davidson County Department of Social Services ("DSS") filed a petition alleging that K.J.L. was a neglected and dependent juvenile. DSS stated that it had provided case management services to respondent since September 2005 "in an effort to alleviate chronic neglect." According to DSS, respondent was found to be in need of services due to her inability to parent K.J.L., as well as her inability to protect the child. DSS alleged that respondent had "significant mental health issues" and cited a 8 March 2006 psychological evaluation which diagnosed respondent as suffering from "Anxiety Disorder, Depression, and Other Personality Disorder with Immature and Passive Dependent Features." DSS further alleged that respondent suffered from "diabetes mellitus, type 1[,]" and "[a]s a result of mismanagement of her disease, there are concerns that she cannot take proper care of herself, much less her child."

DSS claimed that respondent had received counseling services but shown no improvement in her parenting skills. DSS further claimed that respondent had "received instruction from various professionals since [K.J.L.'s] birth regarding techniques for the care of her child; however, she has displayed significant difficulty in retaining such information and putting it into practice with the child." DSS asserted that respondent's inability to develop and retain parenting skills had impacted K.J.L.'s development.

*152 DSS further stated in the petition that respondent and K.J.L. had resided in a homeless shelter since September 2005. DSS claimed that shelter staff had "voiced numerous concerns about [respondent's] ability to live on her own and have advised against her moving into independent housing." The staff expressed concerns about respondent's "lack of parenting capacity" and believed allowing her to leave the shelter would place K.J.L. at risk of harm. DSS alleged that the shelter staff had "often `overlooked' the [respondent's] problematic behaviors because of their concern that, on her own, she could not appropriately parent her child."

DSS further alleged that respondent had no income for the three months prior to the petition filing and had been deemed "`unemployable,' due to her limited commitment to securing and maintaining employment." Additionally, DSS noted respondent's relationship with K.J.L.'s father, a registered sex offender and alcoholic. DSS stated that homeless shelter staff had smelled alcohol on his breath on occasion when he was transporting respondent, and respondent had maintained a relationship with the father despite DSS's concerns about K.J.L.'s safety when in his presence. On 3 April 2006, DSS obtained custody of K.J.L. by non-secure custody order.

On 8 September 2006, K.J.L. was adjudicated neglected based on stipulations made by respondent and the father. The court continued custody of K.J.L. with DSS. The court ordered that the permanent plan for the child be reunification, but further ordered that if "significant progress is not made by ... respondent in the next six (6) months, an alternative option sh[ould] be considered." To address respondent's issues, the court ordered that respondent: (1) attend individual counseling with Daymark Recovery Services; (2) maintain a suitable residence; (3) maintain gainful employment; and (4) follow any and all recommendations of her physician, and sign a release so that DSS could monitor her medical conditions.

A permanency planning review hearing was held on 8 January 2007. The trial court found that respondent: (1) had been padlocked out of her apartment for nonpayment of rent; (2) had lost her job at National Wholesale and had not worked since; (3) had not exhibited that she could take proper care of herself; and (4) continued to exhibit her lack of parenting skills, noting that respondent attempted to feed K.J.L. inappropriate foods, had to be prompted to tend to K.J.L. during visitation, and was easily distracted. Accordingly, the court authorized DSS to cease reunification efforts with respondent and changed the plan for the child to termination of parental rights and adoption.

On 12 April 2007, DSS filed a petition to terminate respondent's parental rights. DSS alleged that respondent had neglected K.J.L. within the meaning of N.C. Gen.Stat. § 7B-101(15), and that it was probable that there would be a repetition of neglect if the child was returned to respondent's care. Additionally, DSS alleged that K.J.L. had been placed in the custody of DSS and that respondent, for a continuous period of six months immediately preceding the filing of the petition, had failed to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so, pursuant to N.C. Gen.Stat. § 7B-1111(a)(3).

The trial court held the hearing on the petition to terminate respondent's parental rights on 6 and 13 December 2007. By order entered 15 January 2008, the trial court concluded that grounds existed pursuant to N.C. Gen.Stat. § 7B-1111(a)(1) and (3) to terminate respondent's parental rights.

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Bluebook (online)
698 S.E.2d 150, 206 N.C. App. 530, 2010 N.C. App. LEXIS 1550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kjl-ncctapp-2010.