In re T.M.

643 S.E.2d 471, 182 N.C. App. 566, 2007 N.C. App. LEXIS 802
Court of Appeals of North Carolina·Decided April 17, 2007·No. No. COA06-1271.·Published·Cited by 18 cases

Opinions

HUNTER, Judge.

T.M. was born on 12 June 2002. At the time of his birth, the Pitt County Department of Social Services ("DSS") had legal custody of respondent-mother's two other children, T.S. and S.M. DSS had initially received a report on 26 March 2001 that T.S. and S.M. were living in an environment where domestic violence and the use and sale of drugs was occurring. T.S. and S.M. were adjudicated neglected juveniles on 13 December 2001. In re T.S., 163 N.C.App. 783, 595 S.E.2d 239 (2004) (unpublished), disc. review denied, 360 N.C. 647, 637 S.E.2d 218 (2006).

On 13 June 2002, and as amended on 18 June 2002, DSS filed a petition alleging that T.M. was a neglected and dependent juvenile. DSS noted that it had custody of T.S. and S.M. and incorporated their court files by reference (01 J 116-17). DSS cited the siblings' court files and claimed that respondent-mother "continues to have anger management problems[,]" and "continued to maintain a relationship with T. Seymore, Jr. with whom she ha[d] been involved in at least two incidences of domestic violence within the last year." DSS asserted that respondent-mother's home was found not to be "safe and appropriate" for the return of T.S. and S.M. Additionally, DSS alleged that the respondent-father was "a known drug dealer and has a criminal history." DSS also reported that respondent-father "has had altercations, involving guns" with a man who resided with respondent-mother and was a caretaker for the child. Accordingly, DSS sought custody of T.M. until respondent-mother could provide a safe and permanent home. An order for nonsecure custody was entered and DSS assumed immediate custody of T.M.

On 6 March 2003, the court held an adjudication and disposition hearing. At the hearing, the court took judicial notice of the court files in 01 J 116-17, adopted findings from court orders from permanency planning review hearings held in 01 J 116-17, and adjudged T.M. to be neglected and dependent. Both respondent-mother and respondent-father appealed.

On 4 January 2005, this Court remanded the adjudication and disposition order. The Court noted that it had rendered an opinion in the siblings' case, In re T.S., 163 N.C.App. 783, 595 S.E.2d 239, in which it determined that the trial court's adjudication and disposition order was "deficient because it did not contain ultimate findings of fact and specific conclusions of law[.]" In re T.M.M., 167 N.C.App. 801, 803, 606 S.E.2d 416, 418 (2005). The Court remanded In re T.S. "`"with instructions to make ultimate findings of fact based on the evidence and to enter clear and specific conclusions of law based on the findings of fact."'" Id. at 802, *474606 S.E.2d at 417 (citations omitted). This Court then concluded that, because of its holding in In re T.S., the trial court's determination that T.M.M. was neglected and dependent was likewise deficient. Accordingly, the matter was remanded to the trial court for further proceedings. Id. at 803-04, 606 S.E.2d at 418.

On 28 December 2005, DSS filed a petition to terminate respondents' parental rights as to T.M. DSS alleged four grounds for termination: (1) that respondents had neglected T.M. within the meaning of N.C. Gen.Stat. § 7B-101(15) (2005), and pursuant to N.C. Gen.Stat. § 7B-1111(a)(1) (2005); (2) that respondents had willfully left T.M. in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions that led to the child's removal, pursuant to N.C. Gen.Stat. § 7B-1111(a)(2) (2005); (3) that the child had been placed in the custody of the petitioner and that respondents, 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 T.M., pursuant to N.C. Gen.Stat. § 7B-1111(a)(3); and (4) that respondents had abandoned T.M. for at least six consecutive months immediately preceding the filing of the petition, pursuant to N.C. Gen.Stat. § 7B-1111(a)(7).

Hearings were held on the petition to terminate respondents' parental rights on 10 May, 18 May, and 8 June 2006. The trial court concluded that grounds existed pursuant to N.C. Gen.Stat. § 7B-1111(a)(1), (2), (3) and (7) to terminate respondents' parental rights. The court further concluded that it was in the child's best interest that respondents' parental rights be terminated. Respondents appeal. We affirm the trial court's holdings.

I.

Respondents first argue that DSS lacked standing to file the petition to terminate their parental rights. Pursuant to N.C. Gen.Stat. § 7B-1103(a)(3) (2005), petitioner could only file the petition if it had custody of T.M. Respondents cite the dispositional order entered on 6 March 2003 as purportedly granting custody of T.M. to DSS, but note that this Court found the dispositional order to be deficient and remanded the matter to the district court for further findings and conclusions. In re T.M.M., 167 N.C.App. at 803-04, 606 S.E.2d at 418. However, upon remand, no new adjudicatory hearings occurred. Instead, nonsecure custody orders were entered granting custody to DSS. Respondents contend that nonsecure custody orders are temporary in nature and do not confer standing. See N.C. Gen.Stat. § 7B-506(a) (2005) ("[n]o juvenile shall be held under a nonsecure custody order for more than seven calendar days without a hearing on the merits or a hearing to determine the need for continued custody"). Therefore, respondents claim that petitioner lacked standing to file the petition and the trial court did not have subject matter jurisdiction. We are not persuaded.

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In re T.M., 643 S.E.2d 471, 182 N.C. App. 566, 2007 N.C. App. LEXIS 802 (N.C. Ct. App. 2007).

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