In re S.J.M.

645 S.E.2d 798, 184 N.C. App. 42
Court of Appeals of North Carolina·Decided June 19, 2007·No. No. COA06-822.·Published·Cited by 12 cases

Opinions

HUNTER, Judge.

This appeal arises out of the trial court's order ceasing reunification with respondents, mother and father, and their minor child, S.J.M. Because the record shows that there was competent evidence to support the trial court's order, we affirm.

The underlying facts show that on 20 June 2005, Lee County Department of Social Services ("DSS") filed a juvenile petition alleging that respondent-mother and respondent-father (together, "respondents") neglected their child and the child was dependent. The trial court placed the child in the protective custody of DSS, adjudicated the child dependent, and ordered respondents to work with DSS, Naven's Nest (an intensive in-home reunification service), and the foster parent. On 22 November 2005, at the Permanency Planning/Review hearing, the trial court ordered the cessation of reunification efforts and changed the plan from reunification to adoption.1 Respondents appeal.

Both respondents argue that the trial court erred in changing the permanent plan from reunification to adoption because there were insufficient findings of fact to support its conclusions of law that reunification efforts should cease and for a permanent plan of adoption. Respondent-mother further argues that the trial court lacked subject matter jurisdiction over this matter.

"Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law." In re J.C.S., 164 N.C.App. 96, 106, 595 S.E.2d 155, 161 (2004). This Court is "bound by the trial court['s] findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984); N.C. Gen.Stat. § 1A-1, Rule 52 (2005). The trial court is required to make written findings on all of the relevant criteria detailed by N.C. Gen.Stat. § 7B-907(b) (2005):

(b) . . . At the conclusion of the hearing, if the juvenile is not returned home, the court shall consider the following criteria and make written findings regarding those that are relevant:

(1) Whether it is possible for the juvenile to be returned home immediately or within the next six months, and if not, why it is not in the juvenile's best interests to return home;

(2) Where the juvenile's return home is unlikely within six months, whether legal guardianship or custody with a relative or some other suitable person should be established, and if so, the rights and responsibilities which should remain with the parents;

(3) Where the juvenile's return home is unlikely within six months, whether adoption should be pursued and if so, any barriers to the juvenile's adoption;

(4) Where the juvenile's return home is unlikely within six months, whether the juvenile should remain in the current placement or be placed in another permanent living arrangement and why;

(5) Whether the county department of social services has since the initial permanency plan hearing made reasonable *802efforts to implement the permanent plan for the juvenile;

(6) Any other criteria the court deems necessary.

Id.

"In a nonjury trial, it is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000).

I.A.

Respondent-mother first argues that a summons was never issued as to either respondent, and as such, the trial court did not have subject matter jurisdiction over this matter. While it is true that the original record on appeal contains no summons in this matter, on 8 September 2006 DSS filed a motion to amend the record on appeal to include a copy of the summons along with an affidavit from Denise Whitaker, Deputy Clerk of Superior Court of Lee County, attesting to the fact that she had issued the summons on 21 June 2005, the date on the face of the summons. The summons is addressed to each of the parents at their address in Sanford, North Carolina, lists the names and phone numbers of the lawyers temporarily assigned to represent them, and advises them of a hearing on 24 June 2005 at 10:00 a.m. at the Lee County Courthouse. We hereby grant DSS's motion to amend the record on appeal and, thus, the record shows that a summons was in fact issued on 21 June 2005. We therefore dismiss this assignment of error.

The dissent correctly notes that in our opinion in In re Mitchell, 126 N.C.App. 432, 485 S.E.2d 623 (1997), on very similar facts, we held that because no summons had been issued we did not have jurisdiction-personal or subject matter-over the persons involved. Id. at 433, 485 S.E.2d at 624. However, because we grant the motion to amend the record to include the summons, the record now reflects that a summons was in fact issued, and thus Mitchell is not controlling on this point.

The summons does not show that it was served on either parent. However, service of process may be waived by appearance and participation in the legal proceeding without raising an objection to the lack of service. N.C. Gen.Stat. § 1A-1, Rule 12(h) (2005); see also In re D.R.S., ___ N.C.App. ___, ___, 638 S.E.2d 626, 628 (2007); In re Howell, 161 N.C.App. 650, 655, 589 S.E.2d 157, 160 (2003). The record in this case shows that a hearing was held on 24 June 2005, at which the parents were not present.

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In re S.J.M., 645 S.E.2d 798, 184 N.C. App. 42 (N.C. Ct. App. 2007).

645 S.E.2d 798 (In re S.J.M.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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