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  "name": "IN RE: C.T. and R.S., Minor Children",
  "name_abbreviation": "In re C.T.",
  "decision_date": "2007-04-03",
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    "judges": [
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    "parties": [
      "IN RE: C.T. and R.S., Minor Children"
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      {
        "text": "LEVINSON, Judge.\nRespondent, who is the mother of minor children R.S. and C.T., appeals from an order terminating her parental rights in the children. We affirm the order of termination as to C.T. and vacate for lack of subject matter jurisdiction as to R.S.\nThe relevant facts are summarized as follows: R.S. was born in 1995, and C.T. in 2002. In March 2003 the children were placed in the custody of the petitioner, Forsyth County Department of Social Services (DSS). Thereafter, the children remained in DSS custody, except for a two month trial placement with respondent in early 2004. In September 2004 petitioner filed a petition to terminate respondent\u2019s parental rights, and a hearing on the petition was conducted in October 2005. On 18 November 2005 the trial court entered an order terminating respondent\u2019s parental rights in the minor children. Respondent appeals.\nRespondent argues that the trial court lacked subject matter jurisdiction over the termination of parental rights proceeding concerning R.S., on the grounds that petitioner failed to issue a summons. The petition to terminate parental rights was captioned with the names of both R.S. and C.T., but the summons that was issued referenced only C.T. Petitioner concedes that there is no summons with respect to R.S. in the Record on Appeal, or in the clerk\u2019s file.\n\u201cJurisdiction is the power of a court to decide a case on its merits; it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment.\u201d Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953) (citations omitted). \u201c \u2018Subject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and failure to demur, or object to the jurisdiction is immaterial.\u2019 \u201d In re T.B., J.B., C.B., 177 N.C. App. 790, 791, 629 S.E.2d 895, 896 (2006) (quoting Stark v. Ratashara, 177 N.C. App. 449, 451, 628 S.E.2d 471, 473, disc. review denied, sub nom Stark v. Ratashara, 360 N.C. 636, 633 S.E.2d 826 (2006)) (citations omitted). A court\u2019s general jurisdiction over a given type of proceeding is conferred by the North Carolina Constitution or the North Carolina General Assembly. In this regard, N.C. Const, art. IV, \u00a7 12 provides in part that:\n(1) The Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference. . . .\n(2) The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.\n(3) Except as otherwise provided by the General Assembly, the Superior Court shall have original general jurisdiction throughout the State. . . .\n(4) The General Assembly shall... prescribe the jurisdiction and powers of the District Courts and Magistrates.\nThe General Assembly has directed that the district court \u201cshall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile[.]\u201d N.C. Gen. Stat. \u00a7 7B-1101 (2005). \u201cThis statute confers upon the court general jurisdiction over termination of parental rights proceedings.\u201d In re T.B., J.B., C.B., 177 N.C. App. 790, 791, 629 S.E.2d 895, 897 (2006) (citations omitted).\nHowever, \u201c \u2018a trial court\u2019s general jurisdiction over the type of proceeding or over the parties does not confer jurisdiction over the specific action.\u2019 \u2018Thus, before a court may act there must be some appropriate application invoking the judicial power of the court with respect to the matter in question.\u2019 \u201d In re A.B.D., 173 N.C. App. 77, 86-87, 617 S.E.2d 707, 714 (2005) (quoting In re McKinney, 158 N.C. App. 441, 447, 581 S.E.2d 793, 797 (2003), and In re Transp. of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 558-59 (1991)) (citation omitted).\nIssuance of a summons in a termination of parental rights case is addressed in N.C. Gen. Stat. \u00a7 7B-1106 (2005), which provides in relevant part that:\n(a) Except as provided in G.S. 7B-1105, upon the filing of the petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons . . . who shall be named as respondents: (1) The parents of the juvenile[.]\nThis Court has held that failure to issue a summons deprives the trial court of subject matter jurisdiction. In re Mitchell, 126 N.C. App. 432, 433, 485 S.E.2d 623, 623 (1997) (\u201cThe dispositive issue on appeal is whether the court acquired jurisdiction of the subject matter of this juvenile action and the persons of the respondents without the proper issuance of summons. We hold that it did not.\u201d). And, in In re A.B.D., supra, this Court held that the trial court had no subject matter jurisdiction over a proceeding for termination of parental rights where the summons was not timely served. In the instant case, the record fails to show that a summons was ever issued as to R.S. See Conner Bros. Mach. Co. v. Rogers, 177 N.C. App. 560, 562, 629 S.E.2d 344, 345 (2006) (\u201cBecause no summons was issued, . . . the trial court. . . did not have subject matter jurisdiction.\u201d).\nThe appellees argue that respondent waived the issue of jurisdiction by participating in the hearing and failing to object to the service of process. In support of their position, appellees cite cases addressing a party\u2019s waiver of personal jurisdiction. Appellees accurately state that the issue of personal jurisdiction is subject to waiver. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(h)(1) (2005) (\u201cdefense of lack of jurisdiction over the person ... is waived ... if it is neither made by motion . . . nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.\u201d). The issue in the instant case, however, concerns subject matter jurisdiction. We observe, too, that appellees have not articulated any argument addressing the fact that the summons in the instant case did not mention or reference R.S. Nor have they cited any case holding that subject matter jurisdiction existed where a statutorily required summons was not issued regarding a proceeding concerning a juvenile, a situation different from that presented by technical defects in service of a summons.\nDespite petitioner\u2019s failure to issue a summons pertaining to R.S., adequacy of notice has not been an issue in this case and respondent does not allege any confusion or misunderstanding about the fact that this was a proceeding to terminate her parental rights in both children. We are nonetheless constrained to conclude that the trial court lacked subject matter jurisdiction to terminate the respondent\u2019s parental rights in R.S. Accordingly, we vacate the order on termination to the extent it terminates the parental rights of respondent in R.S.\nWe next address respondent\u2019s argument that the order must be reversed because it was entered approximately thirteen (13) months after the petition to terminate parental rights was filed. Respondent argues that she and C.T. were prejudiced by this delay. We disagree.\nThis Court has held that the failure of the trial courts to enter a termination order within the time standards in N.C. Gen. Stat. \u00a7 7B-1109(e) (2005) constitutes reversible error where the appellant demonstrates prejudice as a result of the delay. See, e.g., In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006).\nIn the instant case, the issue is the prejudicial effect of delay prior to the hearing, rather than delay in entering the order after the hearing. In the absence of \u201cgood cause\u201d or \u201cextraordinary circumstances,\u201d the termination hearing shall be held within ninety (90) days after'the petition or motion to terminate is filed. N.C. Gen. Stat. \u00a7 7B-1109(a) (2005). The petition in this case was filed 20 September 2004, so the hearing should have been held by 20 December 2004. Instead, the hearing commenced 24 October 2005.\nThis Court has extended the reasoning regarding failure to enter a timely order to the failure to hold the termination hearing within the time period set forth in G.S. \u00a7 7B-1109(a). In re S.W., 175 N.C. App. 719, 722, 625 S.E.2d 594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006). Respondent argues that the trial court\u2019s delay prejudiced her and C.T. in that it \u201cleft [them] in emotional and legal limbo.\u201d In addition, respondent contends that she was denied a \u201ctimely right to appeal\u201d and was denied an \u201cimmediate, final decision.\u201d However, respondent does not support her arguments concerning prejudice with any greater detail or support beyond these statements.\nPetitioner argues that, rather than prejudicing respondent, the delay between the filing of the petition and the hearing benefitted her by giving her more time to address housing, employment, individual counseling, and substance abuse issues. Petitioner observes that respondent did not make any greater progress on these issues during the delay. Petitioner also points out that, judging from the trial court\u2019s findings of fact, the children continued to do well in foster care and were not prejudiced by the delay.\nWe conclude that respondent has failed to meet her burden to show prejudice caused by the delay in scheduling the hearing. At the time the petition was filed, petitioner had not demonstrated any real progress in changing the underlying circumstances and conditions that led to the children\u2019s removal from her home. Consequently, an immediate resolution would not have been in her favor, while the delay inured to her benefit. Secondly, the record shows that respondent sought more time when this matter came on for hearing 24 October 2005. We agree with appellees that, on these facts, the delay was not prejudicial, such that the order on termination must be reversed.\nRespondent nonetheless argues that, given this Court\u2019s holding in In re D.M.M. & K.G.M., 179 N.C. App. 383, 633 S.E.2d 715 (2006), \u201cit should be readily apparent that reversal is warranted[.]\u201d However, the instant case differs significantly from D.M.M. in that (1) the delay in D.M.M. consisted of violations of Section 7B-1109(a) (90 days to hold hearing) and N.C. Gen. Stat. \u00a7 7B-1110(a) (2005) (30 days to enter order), resulting in a nineteen (19) month delay between the filing of the petition and the entry of an order; and (2) the termination order in the instant case was entered within thirty (30) days following the hearing, whereas in D.M.M. the order was delayed seven (7) months.\nThe relevant assignments of error are overruled.\nWe next address respondent\u2019s argument that certain findings of fact are not supported by sufficient evidence, and that the findings do not support the court\u2019s conclusions of law. The trial court made sixty-one findings of fact in its order for termination of parental rights. We find it unnecessary to recite all of these verbatim, but note that the court\u2019s findings tended to show the following:\n1. In March 2003 C.T. and R.S. were placed in DSS custody, after DSS became concerned about respondent\u2019s substance abuse, inappropriate supervision, and the children\u2019s presence in an environment injurious to their welfare. They were later adjudicated dependent.\n2. After her children were adjudicated dependent, respondent got a substance abuse assessment, a psychological evaluation, and a parenting ability assessment, but did not follow the recommendations of those who administered these assessments.\n3. Respondent failed to stop her substance abuse after the children were removed from the home. She attended several substance abuse programs, but positive drug screen results were documented at intervals, including within the six months prior to the hearing.\n4. Respondent lived with her mother for most of the year prior to the hearing, paying nothing for rent, power, water, or food. She did not provide an independent stable residence, establish a budget, or develop a plan of care for the children.\n5. The children were in a trial placement with the mother from . 01/30/04 to 03/31/04. During the trial placement, respondent failed to meet her children\u2019s basic needs. C.T.\u2019s day care providers reported that the child was hungry, filthy, and had dried feces in her diaper. Respondent was also inattentive to C.T.\u2019s medical needs related to the child\u2019s asthma. She lost C.T.\u2019s inhaler, delayed getting a replacement, and smoked inside her house.\n6. During the trial placement, respondent did not keep her house in a safe condition for small children, and did not buy a fire extinguisher for the house.\n7. After the trial placement, DSS continued to work with respondent. When she still did not address the issues that brought the children into the custody of DSS, the plan changed from reunification with the parents to adoption.\n8. Respondent failed to keep a steady job. She states that she worked as a housekeeper several months before the hearing, but did not provide verification of this employment. Nor has she applied for other employment. Respondent decided not to obtain her GED, and has chosen not to work.\n9. Respondent has used inappropriate discipline, including excessive corporal punishment.\n10. Respondent repeatedly expressed hostility towards DSS employees, and has not complied with DSS recommendations for, e.g., individual counseling, budget planning, and substance abuse treatment.\n11. Respondent has willfully refused to provide a stable living arrangement for the children or to meet their needs.\n12. Regarding grounds listed in 7B-1111(a)(1) and 7B-lll(a)(2), the trial court relied heavily on the testimony of Dr. Chris Sheaffer, that respondent considers herself to be a good parent, denies having substance abuse problems, and denies that children had no problems. The trial court also considered Dr. Sheaffer\u2019s opinion that respondent lacked the ability to adequately supervise the children and to protect the children.\n13. In addressing whether there is a possibility of continued neglect, the trial court considered the fact that respondent perceives no problem or need to change herself. Respondent\u2019s behavior shows neglect at the time of the hearing and a strong probability of the repetition of neglect.\n14. Respondent has not made a genuine, consistent, or persistent effort to address the issues that caused the children to be placed in DSS\u2019s custody.\n\u201cOn appeal, our standard of review for the termination of parental rights is whether the court\u2019s findings of fact are supported by clear, cogent and convincing evidence and whether the findings support the conclusions of law.\u201d In re Baker, 158 491, 493, 581 S.E.2d 144, 146 (2003). \u201cThe trial court\u2019s \u2018conclusions of law axe reviewable de novo on appeal.\u2019 \u201d In re D.H., C.M., B.H. & C.H., II, 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006) (quoting Starco, Inc. v. AMG Bonding and Ins. Svcs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (2006)). If one ground for termination is sustained, we need not address the remaining grounds found by the trial court. In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986).\nThe court may terminate parental rights when a parent neglects a child within the meaning of N.C. Gen. Stat. \u00a7 7B-101(15). N.C. Gen. Stat. \u00a7 7B-llll(a)(l) (2005). G.S. \u00a7 7B-101(15), in turn, defines a \u201cneglected juvenile\u201d as \u201c[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s parent[.] \u201c[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.\u201d In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (internal quotation marks omitted). And the neglect must be \u201cbased on evidence showing neglect at the time of the termination hearing.\" In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). Where the child has not been in the care of the parent, the court must consider the probability that the child would be neglected should the child be returned to the parent\u2019s care. In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).\nAfter reviewing the record, we conclude the trial court\u2019s findings of fact are supported by sufficient evidence in the record, and that its findings of fact support its conclusion of law that respondent neglected C.T. The relevant assignments of error are overruled.\nAffirmed in part, vacated in part.\nJudges MCCULLOUGH and BRYANT concur.",
        "type": "majority",
        "author": "LEVINSON, Judge."
      }
    ],
    "attorneys": [
      "Forsyth County Department of Social Services, by John L. McGrath, for petitioner-appellee.",
      "Womble Carlyle Sandridge & Rice, by Christopher G. Daniel, for petitioner-appellee Guardian ad Litem.",
      "Janet K. Ledbetter, for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "IN RE: C.T. and R.S., Minor Children\nNo. COA06-923\n(Filed 3 April 2007)\n1. Termination of Parental Rights\u2014 summons \u2014 subject matter jurisdiction\nThe trial court lacked subject matter jurisdiction to terminate respondent\u2019s parental rights to one of two children where the summons referred only to the other child. The failure to issue a summons deprived the court of subject matter jurisdiction even though adequacy of notice was not an issue and confusion about the nature of the proceeding was not alleged. N.C.G.S. \u00a7 7B-1106(a).\n2. Termination of Parental Rights\u2014 delay between petition and order \u2014 not prejudicial\nA termination of parental rights order was not reversed even though the hearing was held 13 months after the petition was filed. The respondent did not show prejudice because the delay worked to her benefit in showing progress in changing the underlying circumstances. Moreover, respondent sought more time when the matter came on for hearing. N.C.G.S. \u00a7 7B-1109(a).\n3. Termination of Parental Rights\u2014 findings \u2014 supported by evidence \u2014 conclusions\u2014supported by findings\nThe trial court\u2019s findings of fact in a termination of parental rights case based upon neglect were supported by the evidence, and the findings supported the conclusions.\nAppeal by respondent-mother from order entered 18 November 2005 by Judge Lisa V. L. Menefee in Forsyth County District Court. Heard in the Court of Appeals 7 February 2007.\nForsyth County Department of Social Services, by John L. McGrath, for petitioner-appellee.\nWomble Carlyle Sandridge & Rice, by Christopher G. Daniel, for petitioner-appellee Guardian ad Litem.\nJanet K. Ledbetter, for respondent-appellant."
  },
  "file_name": "0472-01",
  "first_page_order": 504,
  "last_page_order": 512
}
