{ "id": 8302461, "name": "In the Matter of A.J.M.", "name_abbreviation": "In re A.J.M.", "decision_date": "2006-06-06", "docket_number": "No. COA05-504", "first_page": "745", "last_page": "752", "citations": [ { "type": "official", "cite": "177 N.C. App. 745" } ], "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": "617 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633753 ], "year": 2005, "pin_cites": [ { "page": "712", "parenthetical": "quoting Lynch v. Lynch, 302 N.C. 189, 197, 274 S.E.2d 212, 219 (1981)" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0707-01" ] }, { "cite": "621 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634400 ], "year": 2005, "pin_cites": [ { "page": "653", "parenthetical": "quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0647-01" ] }, { "cite": "274 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "302 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564388 ], "year": 1981, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0189-01" ] }, { "cite": "173 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352895 ], "year": 2005, "pin_cites": [ { "page": "83", "parenthetical": "quoting Lynch v. Lynch, 302 N.C. 189, 197, 274 S.E.2d 212, 219 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0077-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "parenthetical": "stating \"[a] court of this State having jurisdiction of the subject matter may, without serving a summons upon him, exercise jurisdiction in an action over a person: (1) Who makes a general appearance in an action[.]\"" } ], "opinion_index": 0 }, { "cite": "291 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524016 ], "year": 1982, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0305-01" ] }, { "cite": "485 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "624", "parenthetical": "quoting Roshelli v. Sperry, 57 N.C. App. 305, 307, 291 S.E.2d 355, 356 (1982)" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11711175 ], "year": 1997, "pin_cites": [ { "page": "434", "parenthetical": "quoting Roshelli v. Sperry, 57 N.C. App. 305, 307, 291 S.E.2d 355, 356 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0432-01" ] }, { "cite": "436 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "901-02" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 747", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523795 ], "year": 1993, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0747-01" ] }, { "cite": "174 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352485 ], "year": 2005, "pin_cites": [ { "page": "524", "parenthetical": "quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0517-01" ] }, { "cite": "293 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "306 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571007 ], "year": 1982, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0394-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "676" }, { "page": "676" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "511" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] } ], "analysis": { "cardinality": 666, "char_count": 17540, "ocr_confidence": 0.712, "pagerank": { "raw": 8.355430303058642e-08, "percentile": 0.4812859745877076 }, "sha256": "a4d35ca40a89393d8f68a07c6ac80ecd017cf1aab40146667e9413b7ca2f6a67", "simhash": "1:76f8f64e88823048", "word_count": 2797 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "In the Matter of A.J.M." ], "opinions": [ { "text": "CALABRIA, Judge.\nMs. M. (\u201crespondent mother\u201d), the mother of now four-year-old A. J.M. (\u201cthe minor child\u201d), as well as two additional children, appeals an order adjudicating the minor child neglected. We affirm.\nIn June of 2003, the Halifax County Department of Social Services (\u201cDSS\u201d) received a call indicating respondent mother inappropriately disciplined the minor child with a belt as punishment for hitting a playmate over the head with a water gun. Respondent mother admitted she disciplined her minor children by using a belt whenever they failed to respond to verbal admonishment. During the DSS investigation, respondent mother\u2019s three children were cared for by her mother. Although respondent mother\u2019s two sons were later returned to her care, the minor child remained with her paternal aunt since respondent mother allegedly struck the minor child with a belt. Subsequently, DSS developed a case plan for reunification between the minor child and respondent mother if respondent mother completed both parenting classes and a mental health evaluation. Respondent mother agreed to allow the three children to live with their relatives, assist the relatives with the minor child\u2019s financial needs, and cooperate with supervised visitation.\nApproximately one year later on 11 June 2004, DSS filed a juvenile petition alleging the minor child was neglect\u00e9d and dependent. Alvin S. Mills, the minor child\u2019s father, consented to dependency since his incarceration prevented him from providing proper care and supervision. The only issue for hearing was the issue regarding neglect.\nAt the hearing on 22 July 2004 to determine whether the minor child was neglected, the court\u2019s pertinent findings of fact included respondent mother\u2019s discipline procedures and progress. In June of 2003, respondent mother disciplined the minor child, who was about to turn two years old, by \u201cstriking her repeatedly with a belt on the buttocks and thighs\u201d and \u201cdenied that this was inappropriate discipline.\u201d In August of 2003, respondent mother completed parenting classes, but not her mental health evaluation. Further, the minor child was staying with her paternal aunt \u201cbecause she had been physically harmed by [respondent] mother,\u201d and by late September 2003, respondent mother had not consistently visited the minor child or helped with the minor child\u2019s financial support.\nBetween 18 February and 11 June 2004, respondent mother attended only five of ten therapy sessions. In February of 2004, the minor child\u2019s paternal aunt moved to Emporia, Virginia. Despite a support group including: the aunt, a relative, and a social worker assisting with transporting either the minor child or respondent mother to and from Virginia to facilitate visitation and therapy appointments, respondent mother was not always home at the appointed times and she continued missing both therapy sessions and visitation with the minor child. Based upon clear, cogent, and convincing evidence, the court concluded as a matter of law the minor child was neglected pursuant to N.C. Gen. Stat. \u00a7 7B-101(15). That same day, the court entered an order placing the minor child in the legal custody of her paternal aunt who the court named \u201cGuardian of the person.\u201d Respondent mother appeals.\nI. FINDINGS OF FACT:\nRespondent mother first argues the trial court erred in making its findings of fact. Respondent mother contends certain findings are not supported by clear, cogent, and convincing evidence. We disagree.\n\u201cIn a . . . neglect adjudication, the trial court\u2019s findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.\u201d In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Further, \u201c[if] respondent [mother] did not except to [certain] . . . findings, they are presumed to be correct and supported by evidence.\u201d In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982).\nA. Finding of Fact Three:\nIn the instant case, respondent mother assigns error to portions of the findings of fact supporting the conclusion she neglected the minor child. First, she assigns error to the portion of finding of fact number three stating, \u201c[d]uring her testimony in this matter, [respondent mother] admitted striking the [minor] child but denies that this was inappropriate discipline for a 2-year-old child since she only struck her \u20184 or 5 licks.\u2019 \u201d Respondent mother contends she never denied that striking the child with a belt was inappropriate discipline. Despite the fact respondent mother never expressly denied that striking the minor child with a belt was inappropriate, her overall testimony supports such a finding. At the 22 July 2004 hearing, respondent mother indicated her use of the same disciplinary method for all three of the children. She testified\nthe way I discipline all three, not only [the minor child], all three of my children is I talk to them. You know, if they\u2019ve done something wrong I tell them that it\u2019s wrong for them to do. And I may tell them once or twice before then. But then on this occasion, I spoke to [the minor child] twice about running away from her cousin[.] I talked to her and explained to her that that was wrong. She was playing with the little girl and she hit a little girl over the head with a water gun. And so her mother then came to me and told me what my daughter had did. And I simply popped her with the belt.\nRespondent mother further testified that, \u201cother times, I have disciplined my children with belts.\u201d Based upon respondent mother\u2019s testimony, she considers spanking with a belt after verbal admonishment to be appropriate discipline for all three of her children. Thus, based on respondent mother\u2019s own testimony, clear and convincing competent evidence supported the trial court\u2019s finding that she denied striking the minor child with a belt was inappropriate discipline.\nB. Finding of Fact Four and Five:\nRespondent mother next assigns error to the portions of finding of fact number four stating the minor child \u201chad been physically harmed by her mother,\u201d respondent mother \u201chad not had a mental health evaluation,\u201d and she \u201chad not been consistently helping with [the minor child\u2019s] financial support and had not been visiting her regularly.\u201d Respondent mother\u2019s testimony that striking the minor child with a belt amounted to appropriate discipline combined with her not assigning error, see Moore, supra, to the finding that she \u201crepeatedly [struck the minor child] with a belt on the buttocks and thighs\u201d supports the trial court\u2019s finding she physically harmed the minor child.\nThough respondent mother is correct in asserting no testimonial evidence supports the finding she had yet to complete a mental health evaluation by the end of September 2003, ultimately in finding of fact number five she fails to assign error to the finding relevant to her mental health that \u201cshe only attended [five] of the [ten] therapy sessions ... scheduled between February 18 and June 11, 2004.\u201d Moreover, she assigns as error in finding of fact number five only that there was no evidence she missed two mental health appointments dated 3 October 2003 and 18 December 2003. Thus, because she does not object to the substantive finding of the trial court that she failed to attend half of her assigned mental health therapy sessions, that finding is supported by convincing and competent evidence and moreover, ameliorates any concern pertaining to the two dates she allegedly missed mental health appointments. Admittedly, there is not testimonial evidence respondent mother failed to provide consistent financial support to the minor child. However, when compared to the overwhelming, substantive evidence supporting findings of fact four and five, that respondent mother physically harmed the minor child and failed to consistently attend assigned mental health sessions, and finding of fact six, that respondent mother failed to regularly visit the minor child, we believe such substantive evidence supports the trial court\u2019s conclusion the minor child was neglected.\nC. Finding of Fact Six:\nRespondent mother next assigns error to finding of fact number six which states\n[i]n mid or late February of 2004, [the minor child\u2019s paternal aunt] moved to Emporia, Virginia to be closer to her job, and [respondent mother] agreed for the [minor child] to continue living with [the paternal aunt.] Various people, including [the paternal aunt], another relative, the social worker and the CVS worker providing services tb [respondent mother\u2019s] two boys, all agreed to take turns transporting this juvenile or her mother to and from Virginia to make visitation and therapy available. However, in spite of this assistance, [respondent mother] was sometimes not at home at the appointed times, and continued to miss therapy sessions and visitation with [the minor child].\nSholanda James (\u201cMs. James\u201d), the social worker assigned to the instant case, testified that respondent mother was routinely offered this type of assistance. \u201cIt was arranged that [respondent mother] would have her visits with [the minor child] on Wednesdays.\u201d Ms. James continued \u201c[w]e had the rotation that Ms. Clements], the social worker,] would transport on certain weeks and the cousin, the relatives would transport.\u201d Despite this effort, Ms. James noted \u201cthere was times [respondent mother] didn\u2019t answer the door,\u201d specifically referencing 26 May 2004 where \u201cI actually transported [the minor child] from Emporia [] [a]nd [respondent mother] did not answer the door.\u201d Accordingly, convincing and competent evidence supports finding of fact number six. Thus, because clear and convincing, competent evidence supports the trial court\u2019s findings of fact, this assignment of error is overruled.\nII. CONCLUSIONS OF LAW:\nRespondent next argues the trial court erred in concluding the minor child was neglected. Respondent mother contends that conclusion is not supported by findings of fact or the evidence. We disagree.\nNorth Carolina General Statutes \u00a7 7B-101(15) (2005) defines a neglected juvenile as \u201c[a] juvenile who does not receive proper care, supervision or discipline from the juvenile\u2019s parent[.]\u201d \u201c \u2018[T]his Court has consistently required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline.\u2019 \u201d In re E.C., 174 N.C. App. 517, 524, 621 S.E.2d 647, 653 (2005) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)). \u201cOur review of a trial court\u2019s conclusions of law is limited to whether they are supported by the findings of fact.\u201d Helms, 127 N.C. App. at 511, 491 S.E.2d at 676.\nIn the instant case, the trial court\u2019s findings support the conclusion respondent mother neglected the minor child. First, respondent mother struck her then one-year-old child with a belt, raising the distinct potential of physical, mental, or emotional harm. Further, respondent mother testified she previously used the belt as a means of discipline for all three of her children, including the minor child. Second, a mental health evaluation and completion of accompanying therapy was required. However, she failed to fully comply, missing five of ten therapy sessions scheduled between 18 February and 11 June 2004. Finally, despite attempts of the minor child\u2019s paternal aunt, who had moved to Virginia in February of 2004, and others, respondent mother was not at home at the appointed times and consequently missed visits with the minor child and several therapy sessions. Therefore, because the court\u2019s findings support its conclusion that respondent mother neglected the minor child, this assignment of error is overruled.\nIII. SERVICE OF PROCESS AND PERSONAL JURISDICTION.\nRespondent mother argues the trial court erred by failing to obtain personal jurisdiction over her since she was not served the juvenile summons in compliance with Rule 4 of the North Carolina Rules of Civil Procedure. We disagree.\nNorth Carolina General Statutes \u00a7 7B-406(a) (2005) states \u201c[i]m-mediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to the parent. . . requiring them to appear for a hearing at the time and place stated in the summons.\u201d This Court previously held \u201c \u2018process must be issued and served in the manner prescribed by statute, and failure to do so makes the service invalid even though a defendant had actual notice of the lawsuit.\u2019 \u201d In re Mitchell, 126 N.C. App. 432, 434, 485 S.E.2d 623, 624 (1997) (quoting Roshelli v. Sperry, 57 N.C. App. 305, 307, 291 S.E.2d 355, 356 (1982)). Nevertheless, a defendant who makes a general appearance without objection waives the issue of insufficiency of service of process and submits to the personal jurisdiction of the court. See N.C. Gen. Stat. \u00a7 1-75.7 (2005) (stating \u201c[a] court of this State having jurisdiction of the subject matter may, without serving a summons upon him, exercise jurisdiction in an action over a person: (1) Who makes a general appearance in an action[.]\u201d) (emphasis added).\nIn the instant case, the juvenile petition was filed 11 June 2004 and the summons was issued four days later. The summons was returned by the sheriff on 30 June 2004 unserved. On 8 July 2004, respondent mother attended the hearing regarding the allegations the minor child was neglected and dependent. Respondent mother was not only present in court, but also agreed to continue the matter until 22 July 2004. There is no evidence in the record respondent mother raised any objection at this hearing regarding insufficient service of process or personal jurisdiction. Moreover, respondent mother, who acknowledged she had \u201cactual notice\u201d of the proceedings, fails to argue in her brief that she made any such necessary objections. This Court-has held that this amounts to waiver. \u201c \u2018[A]ny act which constitutes a general appearance obviates the necessity of service of summons and waives the right to challenge the court\u2019s exercise of personal jurisdiction over the party making the general appearance.\u2019 \u201d In re A.B.D., 173 N.C. App. 77, 83, 617 S.E.2d 707, 712 (2005) (quoting Lynch v. Lynch, 302 N.C. 189, 197, 274 S.E.2d 212, 219 (1981)). This assignment of error is overruled.\nAffirmed.\nJudges McGEE and GEER concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Mercedes O. Chut for respondent-appellant mother.", "No brief filed for appellee Halifax County Department of Social Services." ], "corrections": "", "head_matter": "In the Matter of A.J.M.\nNo. COA05-504\n(Filed 6 June 2006)\n1. Child Abuse and Neglect\u2014 neglect \u2014 findings of fact \u2014 clear, cogent, and convincing evidence\nThe trial court did not err in a child neglect case by its findings of fact numbers three through six, because: (1) despite the fact respondent mother never expressly denied that striking the minor child with a belt was inappropriate, her overall testimony supported such a finding; (2) respondent\u2019s testimony that striking the minor child with a belt amounted to appropriate discipline combined with her not assigning error to the finding that she repeatedly struck the minor child with a belt on the- buttocks and thighs supported the trial court\u2019s finding she physically harmed the minor child; (3) although respondent correctly asserts no testimonial evidence supported the finding she had yet to complete a mental health evaluation by the end of September 2003, she failed to assign error to the finding relevant to her mental health that she only attended five of the ten therapy sessions scheduled between February 18 and June 11, 2004; and (4) there was also clear, cogent, and convincing evidence that respondent was routinely offered assistance to visit her daughter but there were times respondent was not at home at the appointed times.\n2. Child Abuse and Neglect\u2014 neglect \u2014 conclusion of law\nThe trial court did not err by concluding the minor child was neglected based on its findings including that: (1) respondent mother struck her then one-year-old child with a belt, and respondent testified she previously used the belt as a means of discipline for all three of her children; (2) a mental health evaluation and completion of accompanying therapy was required, but respondent failed to fully comply; and (3) despite attempts of the minor child\u2019s paternal aunt and others, respondent was not at home at the appointed times and consequently missed visits with the minor child and several therapy sessions.\n3. Jurisdiction; Process and Service\u2014 failure to comply with Rule 4 \u2014 general appearance without objection \u2014 waiver\nThe trial court in a child neglect case did not fail to obtain personal jurisdiction over respondent mother who was not served the juvenile summons in compliance with N.C.G.S. \u00a7 1A-1, Rule 4, because: (1) a defendant who makes a general appearance without objection waives the issues of insufficiency of service of process and submits to personal jurisdiction of the court; (2) respondent was not only present in court, but also agreed to continue the matter; (3) there is no evidence respondent raised any objection at the hearing regarding insufficient service of process or personal jurisdiction; and (4) respondent acknowledged she had actual notice of the proceedings, and failed to argue in her brief that she had made any such objections.\nAppeal by respondent mother from order entered 20 August 2004 by Judge Sarah R Bailey in Halifax County District Court. Heard in the Court of Appeals 22 March 2006.\nMercedes O. Chut for respondent-appellant mother.\nNo brief filed for appellee Halifax County Department of Social Services." }, "file_name": "0745-01", "first_page_order": 779, "last_page_order": 786 }