{ "id": 8352791, "name": "IN THE MATTER OF: P.L.P", "name_abbreviation": "In re P.L.P.", "decision_date": "2005-09-06", "docket_number": "No. COA04-1150", "first_page": "1", "last_page": "21", "citations": [ { "type": "official", "cite": "173 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "539 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "365", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441627 ], "year": 2000, "pin_cites": [ { "page": "480", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0475-01" ] }, { "cite": "319 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "year": 1984, "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "554 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "31" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11362598 ], "year": 2001, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0641-01" ] }, { "cite": "324 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526538 ], "year": 1984, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0234-01" ] }, { "cite": "580 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186618 ], "year": 2003, "pin_cites": [ { "page": "207-08" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0198-01" ] }, { "cite": "518 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "802", "parenthetical": "where respondents failed to argue or assert authority in support of certain assignments of error on appeal from termination proceeding, those assignments held to be abandoned under Rule 28(b)(6)" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239010 ], "year": 1999, "pin_cites": [ { "page": "70", "parenthetical": "where respondents failed to argue or assert authority in support of certain assignments of error on appeal from termination proceeding, those assignments held to be abandoned under Rule 28(b)(6)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0067-01" ] }, { "cite": "153 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "269 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565575 ], "year": 1967, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0676-01" ] }, { "cite": "543 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "908" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442570 ], "year": 2001, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0607-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "252" }, { "page": "252" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "110" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "568 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250312 ], "year": 2002, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0410-01" ] }, { "cite": "582 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "citing In re Greene, 152 N.C. App. 410, 416, 568 S.E.2d 634, 638 (2002)" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954022 ], "year": 2003, "pin_cites": [ { "parenthetical": "citing In re Greene, 152 N.C. App. 410, 416, 568 S.E.2d 634, 638 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0075-01" ] }, { "cite": "373 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "320", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526464 ], "year": 1988, "pin_cites": [ { "page": "674", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0668-01" ] }, { "cite": "473 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913599 ], "year": 1996, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0434-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "610 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "426", "parenthetical": "\"This Court has previously stated that absent a showing of prejudice, the trial court's failure to reduce to writing, sign, and enter a termination order beyond the thirty day time window may be harmless error.\"" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470251 ], "year": 2005, "pin_cites": [ { "page": "378-79", "parenthetical": "\"This Court has previously stated that absent a showing of prejudice, the trial court's failure to reduce to writing, sign, and enter a termination order beyond the thirty day time window may be harmless error.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0375-01" ] }, { "cite": "553 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "court's jurisdiction over the minor child terminated on a date certain as provided in the court order" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378258 ], "year": 2001, "pin_cites": [ { "parenthetical": "court's jurisdiction over the minor child terminated on a date certain as provided in the court order" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0110-01" ] }, { "cite": "453 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "225", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "117 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526237 ], "year": 1995, "pin_cites": [ { "page": "700", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/117/0693-01" ] }, { "cite": "489 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "430", "parenthetical": "Wynn, J. dissenting" } ], "opinion_index": 1 }, { "cite": "127 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796084 ], "year": 1997, "pin_cites": [ { "page": "374", "parenthetical": "Wynn, J. dissenting" } ], "opinion_index": 1, "case_paths": [ "/nc-app/127/0370-01" ] }, { "cite": "563 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "a father's parental rights terminated because he was incarcerated and he failed to show filial affection for his child" } ], "opinion_index": 1 }, { "cite": "149 N.C. App. 951", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9133496 ], "year": 2002, "pin_cites": [ { "parenthetical": "a father's parental rights terminated because he was incarcerated and he failed to show filial affection for his child" } ], "opinion_index": 1, "case_paths": [ "/nc-app/149/0951-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491522 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0568-01" ] }, { "cite": "570 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "356 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511238, 1511214, 1511129, 1511513, 1511197 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/356/0302-02", "/nc/356/0302-05", "/nc/356/0302-03", "/nc/356/0302-01", "/nc/356/0302-04" ] }, { "cite": "565 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "151 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080092 ], "opinion_index": 1, "case_paths": [ "/nc-app/151/0286-01" ] }, { "cite": "576 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "409-10", "parenthetical": "willfulness not shown under N.C. Gen. Stat. \u00a7 7B-llll(a)(2) where the respondent was incarcerated but wrote letters and informed DSS that he did not want his parental rights terminated" } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190412 ], "year": 2003, "pin_cites": [ { "page": "290-91", "parenthetical": "willfulness not shown under N.C. Gen. Stat. \u00a7 7B-llll(a)(2) where the respondent was incarcerated but wrote letters and informed DSS that he did not want his parental rights terminated" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0281-01" ] }, { "cite": "296 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "813" } ], "opinion_index": 1 }, { "cite": "59 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526361 ], "year": 1982, "pin_cites": [ { "page": "324" } ], "opinion_index": 1, "case_paths": [ "/nc-app/59/0322-01" ] }, { "cite": "554 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "354 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138479 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/354/0359-01" ] }, { "cite": "547 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "158" } ], "opinion_index": 1 }, { "cite": "144 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432636 ], "year": 2000, "pin_cites": [ { "page": "40" } ], "opinion_index": 1, "case_paths": [ "/nc-app/144/0032-01" ] }, { "cite": "581 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "146", "parenthetical": "quoting In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (2000), aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001)" }, { "page": "146" } ], "opinion_index": 1 }, { "cite": "158 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188208 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "493", "parenthetical": "quoting In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (2000), aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001)" }, { "page": "493" } ], "opinion_index": 1, "case_paths": [ "/nc-app/158/0491-01" ] }, { "cite": "580 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "403" } ], "opinion_index": 1 }, { "cite": "158 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186618 ], "year": 2003, "pin_cites": [ { "page": "204" } ], "opinion_index": 1, "case_paths": [ "/nc-app/158/0198-01" ] }, { "cite": "543 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "908", "parenthetical": "internal quotations and citations omitted" }, { "page": "908" } ], "opinion_index": 1 }, { "cite": "142 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442570 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "610", "parenthetical": "internal quotations and citations omitted" }, { "page": "610" } ], "opinion_index": 1, "case_paths": [ "/nc-app/142/0607-01" ] } ], "analysis": { "cardinality": 1386, "char_count": 47540, "ocr_confidence": 0.762, "pagerank": { "raw": 9.108199453166563e-07, "percentile": 0.9793306482347041 }, "sha256": "5157823556c8bf449ff4b1799ac1253a99ca7d424c78d64778d2c1b490cda51b", "simhash": "1:e939912a54a60456", "word_count": 7824 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN concurs.", "Judge TYSON concurs in part and dissents in part." ], "parties": [ "IN THE MATTER OF: P.L.P." ], "opinions": [ { "text": "LEVINSON, Judge.\nMother and father appeal the trial court\u2019s termination of their parental rights over P.L.P. We affirm.\nP.L.P. was born on 25 March 1995. In the months preceding her birth, mother attempted to commit suicide by drug overdose. In response, the Buncombe County Department of Social Services (DSS) offered mother parenting classes and substance abuse treatment.\nIn the summer and fall of 1999, DSS received reports that P.L.P. was subject to \u201cinconsistent parenting\u201d and domestic abuse, that mother was taking drugs, and that mother had left P.L.P. and her stepsister with mother\u2019s brother \u201cfor the night and had not returned for a few weeks.\u201d Mother\u2019s brother was given protective supervision of P.L.P. and her step-sister while mother received treatment for substance abuse and domestic violence. On one occasion, P.L.P. reported feeling sick and urinating blood, and explained that her \u201cmama pulled the seatbelt really hard and hurt my belly.\u201d\nOn 5 November 1999, DSS filed a petition alleging P.L.P. was neglected, on the grounds that she did \u201cnot receive proper care, supervision, or discipline from [her] parent, guardian, custodian, or caretaker.\u201d The trial court adjudicated P.L.P. neglected, and ordered mother to complete parenting classes, domestic violence programs, and substance abuse treatment. Mother successfully completed the requirements, and by order entered 19 January 2001, the trial court ordered that (1) custody shall remain with mother, and that (2) DSS, the GAL, and their respective attorneys were \u201creleased from further responsibility in this matter and this juvenile file is hereby closed.\u201d\nIn November 1999, when DSS filed its first petition, father was in Buncombe County Jail. He was subsequently convicted of attempted first degree murder and sentenced to an active term of fourteen to eighteen years. At the termination hearing, father admitted that, while fighting in \u201ca barroom brawl,\u201d he had \u201cstabb[ed] a guy with a small pocketknife[.]\u201d\nOn 9 May 2002, DSS filed a second petition alleging P.L.P. and her step-sister were neglected juveniles, on the grounds that P.L.P. did \u201cnot receive proper care, supervision, or discipline from [her] parent, guardian, custodian, or caretaker\u201d and that she lived \u201cin an environment injurious to [her] welfare.\u201d The petition alleged that mother left her children at her brother\u2019s house for days at a time, had relapsed into substance abuse, and had been hospitalized for an overdose of drugs. Following a hearing on this petition, the trial court adjudicated P.L.P. to be neglected. The court placed P.L.P.\u2019s custody with Buncombe County DSS, and approved her placement in the home of a caregiver.\nSix months later, in December 2002, the trial court conducted a permanency planning and review hearing. The trial court found that the conditions that had required P.L.P.\u2019s removal from her home still existed, and directed that the permanent plan of care for P.L.P. include adoption. At the next permanency planning review several months later, the trial court found that mother\u2019s situation remained unchanged. The court directed that the permanent plan for P.L.P. be adoption or guardianship with a relative.\nDuring the summer of 2003, while the child was residing with a guardian, DSS filed another petition alleging P.L.P. was neglected. The allegations in this petition focused on domestic violence between the guardian and his girlfriend, and on the guardian\u2019s alcohol abuse. At a hearing the trial court adjudicated P.L.P. neglected, continued her custody with DSS, and changed the permanent plan for P.L.P. to adoption.\nOn 17 September 2003, DSS filed a motion to terminate respondents\u2019 parental rights. At the hearing on this motion, father was present in court, but mother did not appear. In its order, the trial court made findings concerning the history of adjudications, dispositions, review hearings, and permanency planning hearings for the child; the court also found that, notwithstanding his incarceration, father had been present at many of these court proceedings. The court also set out the history of P.L.P.\u2019s placements since P.L.P. first came under the jurisdiction of the court in 1995, and made findings on mother\u2019s lack of progress in improving her parenting skills or elim-mating her drug dependency. The court also made the following findings concerning father:\n48. That the Respondent Father has been incarcerated since 1998 and is currently serving a 14 to 18 year sentence for attempted murder. That the Respondent Father made no efforts to provide anything for the minor child at any time, and has not provided any love, nurturance [sic] or support for the minor child. That it is reasonable to assume that the Respondent Father would continue to neglect the minor child if the child was placed in his care, custody, or control as he has shown no interest in the welfare of the minor child.\n54. That the Buncombe County Department of Social Services testified, and the court will find as facts, that reunification with the Respondent Father cannot take place as Respondent Father will be incarcerated until the minor child reaches majority. That the minor child needs permanency. That the visits with the minor child were blocked but that Respondent Father could have written. Respondent Father did not obtain a substance abuse assessment and treatment, he did not cooperate with the Buncombe County Department of Social Services and he had no involvement with the minor child before his incarceration.\nThe trial court concluded that both parents had: (1) neglected P.L.P., under G.S. \u00a7 7B-llll(a)(l), and (2) willfully left P.L.P. in foster care for more than twelve months without showing that reasonable progress had been made to correct the conditions that led to P.L.P.\u2019s removal, under G.S'. \u00a7 7B-llll(a)(2). In addition, the court found that mother had failed to pay a reasonable portion of RL.R\u2019s costs of care for a continuous six month period, under G.S. \u00a7 7B-llll(a)(3), and had willfully abandoned P.L.P. for more than six months immediately preceding the filing of the petition, under G.S. \u00a7 7B-llll(a)(7).\nUpon these and other findings and conclusions, the trial court concluded that termination of respondents\u2019 parental rights was in P.L.P.\u2019s best interests. The court\u2019s order of termination was rendered in court on 23 January 2004, and entered on 23 March 2004. From this order respondents timely appealed. On appeal, respondents each contend the termination order should be reversed because the grounds found by the trial court are not supported by sufficient evidence. In addition, mother argues that the court lacked subject matter jurisdiction because she did not receive proper notice of the motion to terminate, and that the order on termination must be reversed because it was not timely entered.\nMother first argues that the court lacked jurisdiction to terminate her parental rights, on the grounds that she did not receive proper notice of DSS\u2019s motion to terminate her parental rights. She concedes that service was proper under N.C.G.S. \u00a7 1A-1, Rule 5. Mother contends, however, that service could only have been achieved in the instant case by meeting the requirements of N.C.G.S. \u00a7 1A-1, Rule 4. We disagree.\nN.C.G.S. \u00a7 7B-1106.1 (2003) states, in pertinent part, that: \u201cUpon the filing of a motion [to terminate parental rights] pursuant to G.S. \u00a7 7B-1102, the movant shall prepare a notice directed to .. . [t]he parents of the juvenile.\u201d N.C.G.S. \u00a7 7B-1102 (2003), in turn, provides that the service of the motion for termination of parental rights \u201crequired by G.S. 7B-1106.1 shall be served in accordance with G.S. 1A-1, Rule 5(b)[.]\u201d However, where \u201c[t]wo years has elapsed since the date of the original action[,]\u201d service \u201cmust be in accordance with . . . Rule 4[.]\u201d G.S. \u00a7 7B-1102(b)(l)c.\nMother argues that the \u201coriginal action\u201d was in 1999, when P.L.P. first came under the jurisdiction of the juvenile court. Mother posits that, because 1999 is outside the two-year period next preceding the date of the motion to terminate parental rights, service under Rule 4 was required. She contends that, because the Buncombe County Clerk of Court\u2019s office first opened a file concerning this juvenile in 1999, and assigned her case a \u201c99 J\u201d file number, this must be the \u201cdate of the original action\u201d as provided in G.S. \u00a7 7B-1102(b)(l)c. We disagree.\nUnder N.C.G.S. \u00a7 7B-406 (2003), an \u201caction is commenced by the filing of a petition in the clerk\u2019s office[.]\u201d Thus, an action was commenced when the neglect petition was filed in 1999. However, as the trial court correctly observed, the case was later \u201cclosed\u201d in December 2000, when RL.R was returned to mother\u2019s care and custody. Indeed, the trial court ceased exercising jurisdiction over the juvenile at that time. See N.C.G.S. \u00a7 7B-201 (2003) (\u201cWhen the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the courtf.]\u201d); In re Dexter, 147 N.C. App. 110, 553 S.E.2d 922 (2001) (court\u2019s jurisdiction over the minor child terminated on a date certain as provided in the court order).\nIn the instant case, after the first case was closed in 2000, another action was not commenced until 9 May 2002, when DSS filed a petition alleging neglect. We conclude that, because jurisdiction had been terminated by the trial court\u2019s order to \u201cclose\u201d the case, that 9 May 2002 is the date of the \u201coriginal action\u201d in the case. Because this date is within two years of the motion for termination of parental rights, service under Rule 5 was adequate. This assignment of error is overruled.\nMother next argues that the order on termination must be reversed because it was entered more than thirty days after the termination hearing was completed. We disagree.\nUnder N.C.G.S. \u00a7 7B-1109(e) (2003), \u201c[t]he adjudicatory order shall be ... entered no later than 30 days following the completion of the termination of parental rights hearing.\u201d There is a similar requirement for the entry of an order concerning the disposition, or best interests determination, of a motion to terminate parental rights. See N.C.G.S. \u00a7 7B-1110(a) (2003). It has not been an uncommon practice for our trial courts to delay the entry of orders on termination in violation of these time standards. In such circumstances, our appellate courts have uniformly applied a \u201cprejudicial error\u201d analysis to determine whether the subject order must be reversed. See, e.g., In re L.E.B. & K.T.B., 169 N.C. App. 375, 378-79, 610 S.E.2d 424, 426 (2005) (\u201cThis Court has previously stated that absent a showing of prejudice, the trial court\u2019s failure to reduce to writing, sign, and enter a termination order beyond the thirty day time window may be harmless error.\u201d). This Court has not held termination orders per se reversible where the time standards are not met.\nIn the instant case, both stages of the termination hearing, adjudication and disposition, were held on 23 January 2004. The order should have been entered within thirty days thereafter. However, the order was not entered until 23 March 2004. Mother does not argue any prejudice resulted from the late entry of the order, and we discern none. Mother nevertheless urges this Court to adopt a per se reversible error rule and remand for a new hearing. However, we are bound by this Court\u2019s decisions, which hold that prejudice is the proper consideration when examining whether the delayed entry of an order constitutes reversible error. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d) (citation omitted).\nWe note that, in addressing this assignment of error, mother addresses the delayed entry of previous permanency planning orders and custody review orders for this juvenile. However, these orders are not the subject of this appeal and have no bearing on whether the order on termination of parental rights should be reversed. As discussed herein, the relevant statutes for an argument concerning the delayed entry of an order on termination of parental rights are G.S. \u00a7 7B-1109(e) and G.S. \u00a7 7B-1110(a).\nThe relevant assignments of error are overruled.\nWe next address the contention of both mother and father that clear, cogent and convincing evidence does not support the trial court\u2019s conclusions of law that grounds existed to terminate their parental rights.\n\u201cOn appeal, the standard of review from a trial court\u2019s decision in a parental termination case is whether there existed clear, cogent, and convincing evidence of the existence of grounds to terminate respondent\u2019s parental rights.\u201d In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). The trial court\u2019s findings in this regard are binding on appeal \u201ceven though there may be evidence to the contrary.\u201d In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988) (citation omitted). Further, where the trial court finds multiple grounds on which to base a termination of parental rights, and \u201can appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds.\u201d In re Clark, 159 N.C. App. 75, 78 n3, 582 S.E.2d 657, 659 n3 (2003) (citing In re Greene, 152 N.C. App. 410, 416, 568 S.E.2d 634, 638 (2002)).\n\u201cOnce the petitioner has proven th[e] ground [for termination] by' this standard, it has met its burden within the statutory scheme[.] . . . [T]he court then moves on to the disposition stage, where the court\u2019s decision to terminate parental rights is discretionary.\u201d In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the dis-positional stage, \u201cthe best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.\u201d In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001); see also G.S. \u00a7 7B-1110(a). The fact that \u201cthe parent loves or is concerned about his child will not necessarily prevent the court from making a determination that the child is neglected. . . . \u2018The welfare or best interest of the child is always to be treated as the paramount consideration to which even parental love must yield.\u2019 \u201d In re Montgomery, 311 N.C. at 109, 316 S.E.2d at 252 (quoting Wilson v. Wilson, 269 N.C. 676, 678, 153 S.E.2d 349, 351 (1967)).\nIn the instant case, the trial court terminated mother\u2019s parental rights under G.S. \u00a7\u00a7 7B-llll(a)(l) (neglect), 7B-llll(a)(2) (failure to make reasonable progress), 7B-llll(a)(3) (willful failure to pay reasonable portion of cost of care), and 7B-llll(a)(7) (abandonment).\nRule 28(b)(6) of the North Carolina Rules of Appellate Procedure provides in part, \u201c[assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(6); see also, e.g., In re Leftwich, 135 N.C. App. 67, 70, 518 S.E.2d 799, 802 (1999) (where respondents failed to argue or assert authority in support of certain assignments of error on appeal from termination proceeding, those assignments held to be abandoned under Rule 28(b)(6)).\nMother has neither articulated an argument, nor provided citations of authority in support of, her assignment of errors addressed to the trial court\u2019s conclusions that she neglected P.L.P. under G.S. \u00a7 7B-llll(a)(l), or willfully abandoned P.L.P. under G.S. \u00a7 7B-llll(a)(7). Mother\u2019s cursory argument concerning neglect and abandonment is predicated upon not receiving proper notice of the motion to terminate parental rights, an argument we rejected in our above discussion. The assignments of error concerning G.S. \u00a7\u00a7 7B-llll(a)(l) and 7B-llll(a)(7) are deemed abandoned under Rule 28(b)(6). Because these .grounds are therefore conclusively established, we need not address mother\u2019s arguments concerning the other grounds for termination found by the trial court. The assignments of error pertinent to this discussion are overruled.\nThe trial court terminated father\u2019s parental rights under G.S. \u00a7\u00a7 7B-llll(a)(l) (neglect), and 7B-llll(a)(2) (reasonable progress). We first address the court\u2019s conclusion that father neglected P.L.P. Father contends .that because the trial court\u2019s findings of fact are not supported by clear, cogent and convincing evidence, its conclusion of law that he neglected the child cannot be sustained. We disagree.\nAccording to N.C.G.S. \u00a7 7B-llll(a)(l) (2003), a court may terminate one\u2019s parental rights where:\nThe parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.\n\u201cNeglect\u201d is statutorily defined, in pertinent part, as follows:\nNeglected juvenile. \u2014 A juvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile\u2019s welfare; or who has been placed for care or adoption in violation of law.\nN.C.G.S. \u00a7 7B-101(15) (2003).\n\u201cIncarceration, standing alone, is neither a sword nor a shield in a termination of parental rights decision.\u201d In re Yocum, 158 N.C. App. 198, 207-08, 580 S.E.2d 399, 405 (2003). \u201cThe key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing.\u201d In re McDonald, 72 N.C. App. 234, 241, 324 S.E.2d 847, 851 (1984). Where \u201ca child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect[,] . . . because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible.\u201d In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001). \u201cThe determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.\u201d In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984).\nIn the instant case, the trial court found, inter alia, that father (1) \u201ccould have written\u201d but did not do so; (2) \u201cmade no efforts to provide anything for the minor child\u201d; (3) \u201chas not provided any love, nurturing] or support for the minor child\u201d; and (4) \u201cwould continue to neglect the minor child if the child was placed in his care[.]\u201d These findings are supported by clear, cogent and convincing evidence in the record.\nAs a preliminary matter, we note that the uncontradicted evidence of record demonstrated that father- had been continuously incarcerated since 1998; that father would be incarcerated for approximately ten more years, at which time P.L.P. will have reached the age of majority; that father did not obtain a substance abuse assessment and follow-up treatment; and that the child cannot be placed with father during his incarceration. In addition, although P.L.P. visited father \u201cseveral\u201d times after his incarceration in 1998, these visits were ceased by the trial court, over father\u2019s objection, for reasons adequately explained in finding of fact number 23:\n[T]he [paternal grandmother] had taken [the juvenile] to see her father in prison and [P.L.P.] . . . has been waking up screaming with nightmares about the prison bars ever since. That based on this, visits with the Respondent Father were ceased.\nWe next review additional pertinent evidence in the record to determine whether the trial court\u2019s findings are supported by sufficient evidence.\nAt the termination hearing, father admitted that before his incarceration on the attempted murder offense, he \u201clivfed] the life of a criminal.\u201d Between 1995, when the child was born, and 1998, when the father was jailed on the attempted murder offense, father was in and out of jail \u2014 including one time for 120 days on misdemeanor larceny. Although father testified that he was the caretaker for the child before his incarceration, he also testified that, e.g., \u201c[a]ctually she was living with me at my mother\u2019s house[.]\u201d Father further acknowledged that he, at times, \u201cwas at a friend\u2019s house. . . . [I]f you\u2019ve ever been around two women eating a bunch of pills and cussing [sic] you 24-7, I had pretty much got run off.\u201d The testimony of Ms. Hoffart, who worked for Buncombe County DSS, indicates that father was not significantly involved in the child\u2019s life before or after his incarceration in 1998:\nA: [The father] was available until 1998, before he was incarcerated. But according to the record, he did not participate in any kind of support.\nQ: So he hasn\u2019t participated, since 1995, in anything that the Department has a record of, as far as care of this child or concern for her welfare?\nA: No.\nQ: Has he ever provided birthday cards or letters, or anything, for this child, that you\u2019re aware of?\nA: Not to my knowledge.\nQ: Are you aware or have any information that [P.L.P.] has ever had [father] involved in her life in any sort of significant way?\nA: The child has reported to me that she had involvement with him very early in her life, but not in many years.\nHoffart continued, when questioned by counsel for DSS:\nQ: [F]easibly, he could have written to this child?\nA: Yes.\nQ: Did he ever once, while he was incarcerated, write to [P.L.P.]?\nA: No.\nWhen asked by counsel whether father was \u201cinvolved in any way, shape or form with [P.L.P.]\u201d during the period of time associated with the May 2002 petition alleging neglect, Hoffart answered \u201cno.\u201d She also answered \u201cno\u201d when asked by counsel whether there had been any \u201ccontact or involvement by father\u201d in July 2003, when P.L.P. was adjudicated neglected. Hoffart also testified:\nQ: How many years would you say that\u2019s been that he\u2019s had no involvement with [P.L.P.]?\nA: I would say approximately five.\nQ: Do you have concerns about this child being in the custody of [father]?\nA: Yes.\nQ: What are those concerns?\nA: My concerns would be that she has not maintained a stable relationship with [father].\nQ: Since you\u2019ve been involved in this case since May of last year . . . has the father called you to ask about this child or made any suggestions as to who could care for her?\nA: He has not contacted me directly, no.\nFather testified that he had written to P.L.P. from jail, but had stopped in 2003. In addition, he stated that he spoke with P.L.P. approximately five times in 2003. According to father, he sent letters to mother \u201cup until the time Social Services took custody\u201d and that \u201c[mother] probably has every one of them.\u201d Thereafter, father continued, DSS offered to give address information to him for his letters but did not do so. He did not send any letters to DSS or call DSS on his own even though'he had the contact information for Social Services, \u201cbecause every time I\u2019m in court, they spend most of their time trying to keep me away from [P.L.P.], instead of trying to reunite me with her in any way.\u201d A social worker testified that, in cases involving other incarcerated parents, she forwards mail from them to their children. Furthermore, according to the record of DSS, father initiated no independent efforts to send letters to the child, and made no efforts to stay in contact with the assigned DSS worker. In fact, he had \u201cnever spoken with,\u201d written, or contacted \u201cin any way\u201d social worker Hoffart, who had been assigned to the case since May 2003.\nWe conclude that the trial court\u2019s findings of fact are supported by clear, cogent and convincing evidence, and that these findings, in turn, support its conclusion of law that father neglected the child pursuant to G.S. \u00a7 7B-llll(a)(l). Since we have concluded that the trial court did not err by concluding that father neglected P.L.P., we need not address father\u2019s further arguments regarding termination pursuant to G.S. \u00a7 7B-llll(a)(2) (failure to make reasonable progress).\nWe cannot disagree with the dissent\u2019s observation that the trial court relied, in part, on father\u2019s past and current incarceration in passing on this motion to terminate father\u2019s parental rights. This, of course, was appropriate and permissible. Father\u2019s incarceration, together with the balance of the record evidence and findings by the trial court, amply support this termination by the requisite standards. We respectfully disagree with the dissent\u2019s observation that father has \u201cconsistently and continually done all he can do to maintain ongoing contact with P.L.P.\u201d and therefore communicate expressions of care and concern to her. Indeed, father\u2019s own testimony \u2014 and the trial court\u2019s findings \u2014 reveal his lackluster efforts to do so. At best, the evidence would only support an inference that father sent letters until the last time P.L.P. was removed from mother\u2019s care. Moreover, father\u2019s testimony on this issue was contradicted to some degree by the testimony of DSS employees, and \u201cit 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.\u201d In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted). Significantly, after evaluating the witnesses\u2019 testimony, the trial court did not find that, e.g., father wrote letters to the child before 2003; nor does father argue on appeal that the court was compelled to do so.\nAssignments of error pertinent to this discussion are overruled. In addition, we conclude the remaining arguments by respondents are without merit.\nAccording to social worker Hoffart, P.L.P. \u201ccould possibly for the first time in her life have some permanence.\u201d This, after at least eight, (8) placements since coming^into the custody of DSS.\nAffirmed.\nChief Judge MARTIN concurs.\nJudge TYSON concurs in part and dissents in part.", "type": "majority", "author": "LEVINSON, Judge." }, { "text": "TYSON, Judge\nconcurring in part, dissenting in part.\nI concur to affirm the trial court\u2019s order terminating mother\u2019s parental rights. I respectfully dissent from the majority\u2019s opinion affirming the trial court\u2019s order terminating father\u2019s parental rights.\nI. Notice\nN.C. Gen. Stat. \u00a7 7B-1102 (2003) provides in part:\n(a) When the district court is exercising jurisdiction over a juvenile and the juvenile\u2019s parents in an abuse, neglect, or dependency proceeding, a person or agency specified in G.S. 7B-1103(a) may file in that proceeding a motion for termination of the parent\u2019s rights in relation to the juvenile.\n(b) A motion pursuant to subsection (a) of this section and the notice requirement by G.S. 7B-1106.1 shall be served in accordance with G.S. 1A-1, Rule 5(b), except:\n(1) Service must be in accordance with G.S. 1A-1, Rule 4, if one of the following applies:\nc. Two years has elapsed since the date of the original action.\nN.C. Gen. Stat. \u00a7 7B-1106.1 (2003) states in part:\n(a) Upon the filing of a motion pursuant to G.S. 7B-1102, the movant shall prepare a notice directed to each of the following persons or agency, not otherwise a movant:\n(1) The parents of the juvenile.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 5(b) (2003) provides:\nService \u2014 How made. \u2014 A pleading setting forth a counterclaim or cross claim shall be filed with the court and a copy thereof shall be served on the party against whom it is asserted or on the party\u2019s attorney of record. With respect to all pleadings subsequent to the original complaint and other papers required or permitted to be served, service with due return may be made in the manner provided for service and return of process in Rule 4 and may be made upon either the party or, unless service upon the party personally is ordered by the court, upon the party\u2019s attorney of record. With respect to such other pleadings and papers, service upon the attorney or upon a party may also be made by delivering a copy to the party or by mailing it to the party at the party\u2019s last known address or, if no address is known, by filing it with the clerk of court. Delivery of a copy within this rule means handing it to the attorney or to the party, leaving it at the attorney\u2019s office with a partner or employee, or by sending it to the attorney\u2019s office by a confirmed telefacsimile transmittal for receipt by 5:00 RM. Eastern Time on a regular business day, as evidenced by a telefacsimile receipt confirmation. If receipt of delivery by tele-facsimile is after 5:00 P.M., service will be deemed to have been completed on the next business day. Service by mail shall be complete upon deposit of the pleading or paper enclosed in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.'\nMother asserts the \u201coriginal action,\u201d as stated in N.C. Gen. Stat. \u00a7 7B-1102(b)(l)(c), began in November 1999. However, as the trial court noted during the termination hearing, that file and matter was \u201cclosed\u201d in December 2000 and P.L.P. was returned to mother\u2019s care and custody. DSS filed a motion alleging P.L.P. to be neglected on 9 May 2002. The matter before us began in May 2002 and is a separate and distinct action from the closed action which occurred during the Summer and Fall of 1999.\nDSS properly served notice of its motion to terminate respondents\u2019 parental rights upon respondents\u2019 counsel on 17 September 2003, within two years of the initial action in May 2002. Respondents received proper service and notice of DSS\u2019s motion.\nII. Findings of Fact and Conclusions of Law\nRespondents assert competent evidence did not exist to support the trial court\u2019s conclusions of law and subsequent order terminating their parental rights. I concur to affirm regarding mother, but vote to reverse the trial court\u2019s order regarding father\u2019s appeal.\nA. Standard of Review\n\u201cOn appeal, \u2018our standard of review for the termination of parental rights is whether the court\u2019s \u2018findings of fact are based upon clear, cogent and convincing evidence\u2019 and whether the \u2018findings support the conclusions of law.\u2019 \u201d In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003) (quoting In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (2000), aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001)).\nThere is a two-step process in a termination of parental rights proceeding. In the adjudicatory stage, the trial court must find that at least one ground for the termination of parental rights listed in N.C. Gen. Stat. \u00a7 7A-289.32 (now codified as section 7B-1111) exists. In this stage, the court\u2019s decision must be supported by clear, cogent and convincing evidence with the burden of proof on the petitioner .... Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.\nIn re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001) (internal quotations and citations omitted).\nB. Analysis\n1. Father\nThe trial court terminated father\u2019s parental rights under N.C. Gen. Stat. \u00a7\u00a7 7B-lll'l(a)(l)-(2) (2003), which provide:\n(a) The court may terminate the parental rights upon a finding of one or more of the following:\n(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.\n(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.\n(Emphasis supplied).\nN.C. Gen. Stat. \u00a7 7B-101(15) (2003) defines a neglected juvenile as a:\njuvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile\u2019s welfare ....\n\u201cNeglect may be manifested in ways less tangible than failure to provide physical necessities^] . . . the trial judge may [also] consider ... a parent\u2019s complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.\u201d In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982). A showing of personal contact, parental love, and affection negates neglect.\nWhere a respondent has been and continues to be incarcerated, our courts have prohibited termination of parental rights solely on that factor. Compare with In re Shermer, 156 N.C. App. 281, 290-91, 576 S.E.2d 403, 409-10 (2003) (willfulness not shown under N.C. Gen. Stat. \u00a7 7B-llll(a)(2) where the respondent was incarcerated but wrote letters and informed DSS that he did not want his parental rights terminated); In re Clark, 151 N.C. App. 286, 565 S.E.2d 245 (termination of parental rights reversed where the father was incarcerated and evidence was insufficient to find that he was unable to care for his child), disc. rev. denied, 356 N.C. 302, 570 S.E.2d 501 (2002); In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (the respondent was incarcerated but also did nothing to emotionally or financially support and benefit his children), aff\u2019d, 357 N.C. 568, 597 S.E.2d 674 (2003); In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002) (a father\u2019s parental rights terminated because he was incarcerated and he failed to show filial affection for his child).\nA review of the transcript and record indicates the primary reason for terminating father\u2019s parental rights under both statutory grounds results from his incarceration. Father was charged with and convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury and was sentenced to an active term of imprisonment of fourteen to eighteen years. Neither of these charges involved P.L.P. or her mother. As of the date of the termination hearing, his remaining sentence was approximately ten years. DSS proffered evidence asserting father did not make efforts to see P.L.P. while in prison, did not contact P.L.P., and would be unable to care for P.L.P. while incarcerated.\nFather initially enjoyed regular visits with P.L.P. during his incarceration and testified that during these visits P.L.P. \u201cwas the happiest child you\u2019d ever see. She never left my lap . . . She was pretty much a daddy\u2019s girl.\u201d However, DSS intervened and expressly prevented P.L.P. from visiting father due to its \u201cpolicy\u201d prohibiting children from visiting incarcerated parents. DSS admits never speaking with P.L.P. on the subject of visitation with her father. DSS further sought and obtained court orders banning and preventing father from visiting with P.L.P. Father applied for visitation, but was denied relief in the trial court on 19 January 2000 and 11 August 2003.\nThe majority\u2019s opinion relies on DSS\u2019s testimony that father was not \u201cinvolved in any way, shape, or form with P.L.P.\u201d during the period of time associated with the May 2002 petition alleging neglect. Father testified that before DSS took custody of P.L.P. he wrote and mailed letters to her every other week through her mother and talked to P.L.P. on the telephone. He further testified that when DSS took custody of P.L.P, he asked the social worker if he could write to her in the group home, or if he could write to the social worker to give to P.L.P. The social worker told father that she would send him an address where he could write to P.L.P., but he never received an address from her.\nThe initial social worker ceased oversight of P.L.P. and the current social worker admitted neither seeking or having any communication with father. Father testified, \u201cthey stopped me from any contact whatsoever. They didn\u2019t want me to write her.\u201d Father testified that he keeps pictures of P.L.P. in his possession and \u201ccan\u2019t even count the number of pictures\u201d he has of her. P.L.P. is father\u2019s only child.\nFather participated in every aspect of the multiple juvenile proceedings in attempts to maintain his parental rights. The social worker testified that DSS was not aware of anything that would lead it to conclude that father has willfully failed to pay support to the child. The social worker further testified that father was unable to pay support. The social worker admitted DSS had done nothing to help or encourage father and P.L.P. maintain their familial relationship or to reunify. The present social worker admitted having no interaction or communication with father or any knowledge of the type of parent father was before or while in prison. She made no effort to contact father. The social worker admitted DSS failed to offer services to father solely because of his incarceration.\nThe majority\u2019s opinion relies on the social worker\u2019s testimony that father was not significantly involved in P.L.P.\u2019s life before his incarceration. This is not supported by any evidence presented at the hearing. Father testified that until th.e time of his incarceration, he cared for P.L.P. himself and \u201cpretty much did everything for the little girl.\u201d Father also raised C.R., another child of mother, and assumed the role of father to C.R.\nDSS acknowledged throughout the hearing that it was apparent that father loved P.L.P. and failed to present any evidence that it assisted or offered services to father. Father stated,\nThe thing I\u2019m worried about is that I don\u2019t get to see her, I don\u2019t get to write her, I don\u2019t get to call her ... All I want is my family to have a chance to be around [P.L.P.], even if you let them see [her] on the weekends and maybe let them bring her to see me.\nFather requested home studies on family members as a placement for P.L.P. DSS failed to complete these requested home studies.\nThe record does not include clear, cogent, and convincing evidence to show father: (1) \u201cmade no efforts to provide anything for the minor child, and has not provided any love, nurturance or support for the minor child;\u201d (2) \u201cwillfully left the minor child in foster care or placement outside the home for more than 12 months\u201d without showing reasonable progress to improve the underlying conditions; (3) cannot be reunified with P.L.P. while incarcerated; (4) could have written P.L.P., but chose not to; and (5) had no involvement with P.L.P. prior to his incarceration. See In re Baker, 158 N.C. App. at 493, 581 S.E.2d at 146. The trial court erred in finding grounds to terminate father\u2019s parental rights under N.C. Gen. Stat. \u00a7 7B-1111.\nFurther, the trial court\u2019s findings do not support its conclusions of law that father: (1) \u201cneglected the minor child;\u201d and (2) willfully left P.L.P. in \u201cfoster care or placement outside the home for more than 12 months without showing reasonable progress\u201d to improve the underlying conditions. The basis for the trial court\u2019s findings and ruling stems entirely from DSS\u2019s prevention of contact or visitation between father and P.L.P. Although father is incarcerated and may remain so for approximately seven more years, that fact alone cannot support a conclusion to terminate his parental rights. Many parents are voluntarily and physically absent from their children for extended periods of time due to military deployment, hospitalization, or employment. Such physical absence cannot be a basis to terminate their parental rights where these parents seek to maintain contact within the physical limitations of their absence.\nSubstantial evidence shows father has consistently and continually done all he can do to maintain ongoing contact with P.L.P. and to preserve his parental rights. Such is particularly the case when DSS did absolutely nothing to encourage or facilitate father and P.L.P. to maintain a familial relationship or reunify as required by the statute and actively and expressly prevented contact or visitation between P.L.P. and her father due to DSS\u2019s no visitation \u201cpolicy\u201d regarding children of incarcerated parents.\nDSS cannot base this petition to terminate father\u2019s parental rights on grounds of failure to make progress, visit, and maintain a relationship with P.L.P. when it failed to provide him with the means to communicate or visit with her and affirmatively prohibited such visits and opportunities for father to maintain his relationship with her. The sole reason for the lack of visits between father and P.L.P. was due to DSS\u2019s \u201cpolicy\u201d preventing children from contact or visiting with incarcerated parents.\nNeither father nor P.L.P. should suffer the consequences of a termination of his parental rights and P.L.P.\u2019s rights as a child of her father. \u201cTerminating the father\u2019s parental rights carries with it the ancillary action of terminating his responsibility to provide and support his child. In short, this child\u2019s 'right to seek support from [her] father is also terminated.\u201d In re Hunt, 127 N.C. App. 370, 374, 489 S.E.2d 428, 430 (1997) (Wynn, J. dissenting).\nRetaining non-secure custody of P.L.P. or her placement with her relatives, rather than terminating father\u2019s parental rights and P.L.P.\u2019s right to receive support, love, and nurture from her father, serves her best interests. See In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995) (citation omitted) (\u201cIf the best interests of the children require that the parent\u2019s rights not be terminated, the court must dismiss the petition.\u201d)\nThe trial court erred in finding grounds to terminate father\u2019s parental rights under N.C. Gen. Stat. \u00a7 7B-1111. Where no grounds are proven by the required clear, cogent, and convincing evidence standard of proof to terminate parental rights, \u201cthe dispositional stage where the best interests of the. child are considered\u201d is not addressed. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. The trial court\u2019s order terminating father\u2019s parental rights should be reversed.\nIII. Conclusion\nRespondents received proper notice of DSS\u2019s motion to terminate their parental rights. Clear, cogent, and convincing evidence supports the trial court\u2019s findings of fact and conclusions of law to terminate mother\u2019s parental rights. I concur with that portion of the majority\u2019s opinion.\nThe findings of fact and conclusions of law are not supported by clear, cogent, and convincing or any other evidence. The trial court erred in terminating father\u2019s parental rights. I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge" } ], "attorneys": [ "Charlotte W. Nallan andKavita Uppal, for petitioner Buncombe County Department of Social Services.", "Judy N. Rudolph, for Guardian ad Litem.", "M. Victoria Jayne, for respondent father.", "Charlotte Gail Blake, for respondent mother." ], "corrections": "", "head_matter": "IN THE MATTER OF: P.L.P.\nNo. COA04-1150\n(Filed 6 September 2005)\n1. Process and Service\u2014 termination of parental rights\u2014 date action commenced\nThe trial court did .not lack jurisdiction in a termination of parental rights case even though respondent mother contends she did not receive proper notice of the Department of Social Services\u2019 motion to terminate her parental rights when service could only have been achieved in the instant case by meeting the requirements of N.C.G.S. \u00a7 1A-1, Rule 4, because: (1) respondent concedes that service was proper under N.C.G.S. \u00a7 1A-1, Rule 5; (2) although an action was commenced when the neglect petition was filed in 1999, the case was later closed in December 2000 when the minor child was returned to her mother\u2019s care and custody; (3) after the first case was closed in 2000, another action was not commenced until 9 May 2002 when DSS filed a petition alleging neglect, making 9 May 2002 the date of the original action in this case; and (4) 9 May 2002 was within two years of the motion for termination of parental rights as required for service in accordance with N.C.G.S. \u00a7 1A-1, Rule 5.\n2. Termination of Parental Rights\u2014 order entered more than thirty days after hearing \u2014 failure to show prejudice\nThe trial court\u2019s order in a termination of parental rights case does not require reversal even though the order was entered more than thirty days after the termination hearing was completed, because: (1) respondent mother does not argue any prejudice resulted from the late entry of the order and the Court of Appeals did not find any; and (2) although respondent asks the Court of Appeals to adopt a per se reversible error rule and remand for a new hearing, the Court of Appeals has already held that prejudice is the proper consideration when examining whether the delayed entry of an order constitutes reversible error.\n3. Termination of Parental Rights\u2014 conclusions of law\u2014 clear, cogent, and convincing evidence\nClear, cogent, and convincing evidence supported the trial court\u2019s conclusions of law that grounds existed to termination respondents\u2019 parental rights, because: (1) respondent mother failed to articulate an argument or provide citations of authority in support of her assignments of errors addressed to the trial court\u2019s conclusions that she neglected the minor child under N.C.G.S. \u00a7 7B-llll(a)(l) or willfully abandoned the minor child under N.C.G.S. \u00a7 7B-llll(a)(7), thus making these grounds conclusively established without the need of addressing her arguments concerning the other grounds for termination found by the trial court; (2) the trial court properly found that respondent father neglected the child where the father had been continuously incarcerated since 1998 and would be incarcerated for approximately ten more years at which time the child will have reached the age of majority, the father did not obtain a substance abuse assessment and follow-up treatment, the child cannot be placed with her father during his incarceration, the child had nightmares after visiting her father in prison, and the father was not significantly involved in the child\u2019s life before or after his incarceration in 1998; (3) the trial court appropriately and permissibly relied in part on respondent father\u2019s past and current incarceration in passing on this motion to terminate parental rights; and (4) it is the duty of the trial court to consider and weigh all of the evidence and determine the credibility of witnesses, and the trial court did not find that respondent father wrote letters to the child before 2003 which was contrary to the father\u2019s testimony.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by respondents father and mother from order entered 23 March 2004 by Judge Peter L. Roda in Buncombe County District Court. Heard in the Court of Appeals 21 April 2005.\nCharlotte W. Nallan andKavita Uppal, for petitioner Buncombe County Department of Social Services.\nJudy N. Rudolph, for Guardian ad Litem.\nM. Victoria Jayne, for respondent father.\nCharlotte Gail Blake, for respondent mother." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 51 }