{ "id": 8185896, "name": "IN THE MATTER OF: H.L.A.D., Minor Child", "name_abbreviation": "In re H.L.A.D.", "decision_date": "2007-07-03", "docket_number": "No. COA07-34", "first_page": "381", "last_page": "400", "citations": [ { "type": "official", "cite": "184 N.C. App. 381" } ], "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": "623 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634685 ], "year": 2005, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0045-01" ] }, { "cite": "638 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637406 ], "year": 2007, "pin_cites": [ { "page": "642", "parenthetical": "citing Stanback v. Stanback, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696 (1976), disc. review denied, 291 N.C. 712, 232 S.E.2d 205 (1977" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0638-01" ] }, { "cite": "629 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635828, 12635829 ], "year": 2006, "pin_cites": [ { "page": "919", "parenthetical": "holding that \"even when the trial court commits error in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0916-01", "/se2d/629/0916-02" ] }, { "cite": "638 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637349 ], "year": 2006, "pin_cites": [ { "page": "241-42", "parenthetical": "citing In re M.G.T.-B., 177 N.C. App. 771, 775, 629 S.E.2d 916, 919 (2006) (holding that \"even when the trial court commits error in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0236-01" ] }, { "cite": "628 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635594 ], "year": 2006, "pin_cites": [ { "page": "457", "parenthetical": "stating that \"[e]vidence supporting a determination of reasonable progress under N.C.G.S. \u00a7 7B-llll(a)(2) 'is not limited to that which falls during the twelve month period next preceding the filing of the motion or petition to terminate parental rights' \"" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0450-01" ] }, { "cite": "615 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633351 ], "year": 2005, "pin_cites": [ { "page": "709", "parenthetical": "stating that after the termination statute was amended in 2001, the \"focus is no longer solely on the progress made in the 12 months prior to the petition\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0704-01" ] }, { "cite": "626 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635200 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "734" }, { "page": "734", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0729-01" ] }, { "cite": "619 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633934, 12633935 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/619/0402-01", "/se2d/619/0402-02" ] }, { "cite": "612 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632903 ], "year": 2005, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0639-01" ] }, { "cite": "640 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637663 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/640/0439-01" ] }, { "cite": "620 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634261 ], "year": 2005, "pin_cites": [ { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0913-01" ] }, { "cite": "613 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632948 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/613/0298-01" ] }, { "cite": "629 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635823 ], "weight": 7, "year": 2006, "pin_cites": [ { "page": "897" }, { "page": "897" }, { "page": "898", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0895-01" ] }, { "cite": "625 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635064, 12635065, 12635063 ], "year": 2006, "pin_cites": [ { "parenthetical": "holding that jurisdiction in the district court was \"terminated by the trial court's order to 'close' the case\" and that DSS was required to file a new petition alleging neglect" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0779-02", "/se2d/625/0779-03", "/se2d/625/0779-01" ] }, { "cite": "618 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633847 ], "year": 2005, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0241-01" ] }, { "cite": "628 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635632 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0808-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "175 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350019 ], "year": 2005, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0066-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "676" }, { "page": "676", "parenthetical": "holding that findings of fact are conclusive if supported by clear and convincing competent evidence, even where the evidence might support contrary findings" } ], "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" ] }, { "cite": "547 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135896, 135730, 135565, 135847 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0374-03", "/nc/353/0374-01", "/nc/353/0374-02", "/nc/353/0374-04" ] }, { "cite": "536 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "846" }, { "page": "840" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125951 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "301" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0288-01" ] }, { "cite": "232 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559202, 8559235, 8559212, 8559183, 8559193 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0712-03", "/nc/291/0712-05", "/nc/291/0712-04", "/nc/291/0712-01", "/nc/291/0712-02" ] }, { "cite": "229 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548308 ], "year": 1976, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0174-01" ] }, { "cite": "181 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373638 ], "year": 2007, "pin_cites": [ { "page": "284", "parenthetical": "citing Stanback v. Stanback, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696 (1976), disc. review denied, 291 N.C. 712, 232 S.E.2d 205 (1977" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0278-01" ] }, { "cite": "554 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "holding that \"[w]here there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial\"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138560, 138547, 138483, 138421, 138301 ], "year": 2001, "pin_cites": [ { "parenthetical": "holding that \"[w]here there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial\"" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0218-02", "/nc/354/0218-05", "/nc/354/0218-03", "/nc/354/0218-01", "/nc/354/0218-04" ] }, { "cite": "546 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "175", "parenthetical": "holding that \"[w]here there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial\"" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434950 ], "year": 2001, "pin_cites": [ { "page": "411", "parenthetical": "holding that \"[w]here there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0402-01" ] }, { "cite": "177 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302674 ], "year": 2006, "pin_cites": [ { "page": "775", "parenthetical": "holding that \"even when the trial court commits error in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0771-01" ] }, { "cite": "180 N.C. App. 539", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8243658 ], "year": 2006, "pin_cites": [ { "page": "548", "parenthetical": "citing In re M.G.T.-B., 177 N.C. App. 771, 775, 629 S.E.2d 916, 919 (2006) (holding that \"even when the trial court commits error in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0539-01" ] }, { "cite": "177 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301372 ], "year": 2006, "pin_cites": [ { "page": "384", "parenthetical": "stating that \"[e]vidence supporting a determination of reasonable progress under N.C.G.S. \u00a7 7B-llll(a)(2) 'is not limited to that which falls during the twelve month period next preceding the filing of the motion or petition to terminate parental rights' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0375-01" ] }, { "cite": "171 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437736 ], "year": 2005, "pin_cites": [ { "page": "447", "parenthetical": "stating that after the termination statute was amended in 2001, the \"focus is no longer solely on the progress made in the 12 months prior to the petition\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0438-01" ] }, { "cite": "176 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301245 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "526" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0520-01" ] }, { "cite": "183 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "419", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549451 ], "year": 1971, "pin_cites": [ { "page": "351-52", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0348-01" ] }, { "cite": "581 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188012 ], "year": 2003, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0441-01" ] }, { "cite": "359 N.C. 852", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799365, 3803177, 3801579, 3795021, 3799539, 3799675 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0852-01", "/nc/359/0852-06", "/nc/359/0852-03", "/nc/359/0852-02", "/nc/359/0852-04", "/nc/359/0852-05" ] }, { "cite": "169 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472923 ], "year": 2005, "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0701-01" ] }, { "cite": "563 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "82" }, { "page": "82" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081240 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0380-01" ] }, { "cite": "181 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375085 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/181/0518-01" ] }, { "cite": "174 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351618 ], "year": 2005, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0234-01" ] }, { "cite": "170 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006115 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/170/0564-01" ] }, { "cite": "177 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302880 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "792" }, { "page": "793" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0790-01" ] }, { "cite": "360 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3797279 ], "year": 2006, "pin_cites": [ { "parenthetical": "holding that jurisdiction in the district court was \"terminated by the trial court's order to 'close' the case\" and that DSS was required to file a new petition alleging neglect" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0360-01" ] }, { "cite": "173 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352791 ], "year": 2005, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0001-01" ] }, { "cite": "177 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301489 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0441-01" ] }, { "cite": "511 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238024 ], "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0363-01" ] }, { "cite": "335 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523260 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0439-01" ] }, { "cite": "345 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "409", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524352 ], "year": 1986, "pin_cites": [ { "page": "538-39", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0531-01" ] }, { "cite": "566 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "861" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082050 ], "year": 2002, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0690-01" ] }, { "cite": "598 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997078 ], "year": 2004, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0294-01" ] }, { "cite": "595 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "797" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897753 ], "year": 2004, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0394-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "353 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169132 ], "year": 1987, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0666-01" ] }, { "cite": "628 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635483 ], "year": 2006, "pin_cites": [ { "page": "3", "parenthetical": "citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 1, "case_paths": [ "/se2d/628/0001-01" ] }, { "cite": "628 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635632 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "810" } ], "opinion_index": 1, "case_paths": [ "/se2d/628/0808-01" ] }, { "cite": "166 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "670" } ], "opinion_index": 1 }, { "cite": "275 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558370 ], "year": 1969, "pin_cites": [ { "page": "260" } ], "opinion_index": 1, "case_paths": [ "/nc/275/0250-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "136" } ], "opinion_index": 1 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "360 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789468 ], "year": 2006, "pin_cites": [ { "page": "387", "parenthetical": "citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0384-01" ] }, { "cite": "177 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301489 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 1, "case_paths": [ "/nc-app/177/0441-01" ] }, { "cite": "511 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "686", "parenthetical": "same result where child lived in North Carolina but Florida court still had jurisdiction; Court notes that statute \"requires a two-part- process\" wherein the trial court determines that it has custody under both the UCCJA and G.S. \u00a7 7B-1101" } ], "opinion_index": 1 }, { "cite": "132 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238024 ], "pin_cites": [ { "page": "366", "parenthetical": "same result where child lived in North Carolina but Florida court still had jurisdiction; Court notes that statute \"requires a two-part- process\" wherein the trial court determines that it has custody under both the UCCJA and G.S. \u00a7 7B-1101" } ], "opinion_index": 1, "case_paths": [ "/nc-app/132/0363-01" ] }, { "cite": "335 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "73" }, { "page": "74" }, { "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "77 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523260 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc-app/77/0439-01" ] }, { "cite": "598 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "149", "parenthetical": "although children present in North Carolina, thus meeting \"the general requirement that the children reside in or be found in the district where the petition is filed\" the court nonetheless lacked jurisdiction where Arkansas continued to exercise jurisdiction over the child's custody" } ], "opinion_index": 1 }, { "cite": "165 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997078 ], "year": 2004, "pin_cites": [ { "page": "298" } ], "opinion_index": 1, "case_paths": [ "/nc-app/165/0294-01" ] } ], "analysis": { "cardinality": 1325, "char_count": 48146, "ocr_confidence": 0.744, "pagerank": { "raw": 2.545024761595817e-07, "percentile": 0.8137862477696576 }, "sha256": "cf3690e1634415bc7c601fedfe46bf70d01ee3b82dd9721c0e7495c4b2df84c5", "simhash": "1:0ba90822522f3d56", "word_count": 7737 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GEER concurs.", "Judge LEVINSON dissents in separate opinion." ], "parties": [ "IN THE MATTER OF: H.L.A.D., Minor Child" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhen a court of this State, in an initial custody order, awards custody of a child to custodial guardians who thereafter move out of North Carolina, the courts of this State maintain exclusive, continuing jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act when the guardians file a petition, in a separate action, for the termination of parental rights.\nH.D. was born in 2002 in Gaston County, North Carolina. On 27 March 2003, H.D. was found with her father, Chad D. (respondent), while he \u201cwas under the influence of marijuana[.]\u201d Respondent \u201chad left two loaded unsecured guns[,] a handgun and a rifle, within the reach of [one-year old H.D.]\u201d At that time, respondent \u201chad mental health problems\u201d and \u201csuffered from alcohol abuse.\u201d\nOn 28 March 2003, H.D. was placed in the custody of Gaston County Department of Social Services (DSS), and on 13 May 2003, the court adjudicated H.D. to be neglected and dependent. H.D. was placed with Kelly A. (mother). Thereafter, mother and respondent resumed their relationship, and mother and H.D. moved in with respondent, in violation of a court order. DSS removed H.D. from mother\u2019s custody.\nOn 19 August 2003, the court approved a case plan ordering that respondent \u201csubmit to random drug screens, comply with parenting training, anger management and drug and psychological evaluations.\u201d Prior to August 2003, respondent attended only two of five scheduled supervised visitations with H.D.\nOn 21 October 2003, the court placed H.D. in foster care with Tony and Christine Helms, relatives of H.D.\u2019s mother, and ordered that respondent comply with the recommendations of DSS. Between October 2003 and 14 January 2004, the court found that \u201c[mother and respondent] made minimal efforts to comply with recommendations and remedy the conditions that necessitated removal.\u201d Respondent\u2019s contact with Tony and Christine Helms was \u201cdisruptive and negative,\u201d and respondent\u2019s \u201crepeated interference\u201d resulted in the foster parents \u201csurrendering [H.D.] to [DSS] rather than deal further with [respondent].\u201d\nOn 14 March 2005, the District Court of Gaston County, North Carolina, entered an order, to which respondent consented, granting custody of H.D. to James R. and Crystal Helms, who were also relatives of H.D.\u2019s mother.\nOn 27 June 2005, the court entered an order amending the 14 March 2005 order to require respondent to submit to \u201chair follicle drug tests.\u201d The court also scheduled telephonic contact between respondent and H.D.\nOn 31 August 2005, the court entered an order suspending visitation and finding that respondent had not submitted to drug tests as previously ordered. Respondent testified that he \u201chad no good excuse\u201d for not taking the required drug tests.\nOn 17 May 2006, respondent sought to reinstate visitation with H.D. through a motion in the cause, on grounds that he had complied with the court\u2019s 31 August 2005 order. Respondent complied with the order in that he had submitted to a hair follicle drug test, but the results of the test were positive for marijuana metabolites. On 21 June 2005, the court entered an order denying respondent visitation. After the court\u2019s order on 21 June 2005, respondent made \u201cno effort to comply with the ordered drug tests.\u201d\nIn February 2006, the court entered an order finding that H.D. had been placed with James R. and Crystal Helms for more than one year and that placement was stable. The trial court found that father violated the March 2005 order by failing to take required drug tests, by interfering with the Helms\u2019 peace and quiet through unwarranted \u201cinquiries regarding [H.D.] in an uncooperative, confrontational, and belligerent manner[,]\u201d by refusing to stop using marijuana, and by displaying hostility toward DSS, the foster parents, and the Helms throughout the previous three years.\nOn 4 April 2006, James R. and Crystal Helms filed a petition in a separate action pursuant to N.C. Gen. Stat. \u00a7 7B-1103(a)(2), to terminate respondent and mother\u2019s parental rights.\nOn 14 September 2006, the court entered an order terminating respondent and mother\u2019s parental rights, concluding pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(2), that they had willfully left H.D. in placement outside the home for more than twelve months without reasonable progress, and that it was in H.D.\u2019s best interests to terminate respondent\u2019s parental rights.\nFrom this order, respondent appeals. Mother did not appeal the order of termination.\nI: Subject Matter Jurisdiction\nIn his first argument, respondent contends that the trial court lacked subject matter jurisdiction to enter the order terminating his parental rights, because H.D. and her custodial guardians resided in Alabama when the petition for termination was filed. We disagree.\n\u201cSubject matter jurisdiction refers to the power of the court to deal with the kind of action in question .... [and] is conferred upon the courts by either the North Carolina Constitution or by statute.\u201d Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987). Subject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal. See In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). \u201cThe determination of subject matter jurisdiction is a question of law and this Court has the \u2018power to inquire into, and determine, whether it has jurisdiction and to dismiss an action . . . when subject matter jurisdiction is lacking.\u2019 \u201d In re J.B., 164 N.C. App. 394, 398, 595 S.E.2d 794, 797 (2004).\nN.C. Gen. Stat. \u00a7 7B-1101 (2005), states that \u201c[t]he court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion.\u201d Id. (emphasis added). N.C. Gen. Stat. \u00a7 7B-1101 also requires that \u201cbefore exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204[,]\u201d which are jurisdictional provisions under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA). See In re N.R.M., T.F.M., 165 N.C. App. 294, 298, 598 S.E.2d 147, 149 (2004); N.C. Gen. Stat. \u00a7 50A-101 et seq. (2005).\n\u201c[W]hen a prior custody order exists, a court cannot ignore the provisions of the UCCJEA and the [Parental Kidnapping Prevention Act].\u201d In re Brode, 151 N.C. App. 690, 695, 566 S.E.2d 858, 861 (2002). The first provision under the UCCJEA, N.C. Gen. Stat. \u00a7' 50A-201, addresses jurisdiction for initial child-custody determinations. The phrase \u201cinitial determination\u201d is defined as \u201cthe first child-custody determination concerning a particular child.\u201d N.C. Gen. Stat. \u00a7 50A-102(8). We note that the definition of a \u201cchild-custody proceeding\u201d under the UCCJEA specifically includes a proceeding for neglect, abuse, dependency or termination of parental rights. N.C. Gen. Stat. \u00a7 50A-102(4).\nOnce a court of this State has made an initial child-custody determination, the UCCJEA provides for \u201cexclusive, continuing jurisdiction\u201d pursuant to N.C. Gen. Stat. \u00a7 50A-202 (2005), which mandates that:\n(a) Except as otherwise provided in G.S. 50A-204, a court of this State which has made a child-custody determination consistent with G.S. 50A-201 or G.S. 50A-203 has exclusive, continuing jurisdiction over the determination until:\n(1) A court of this State determines that neither the child, the child\u2019s parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child\u2019s care, protection, training, and personal relationships; or\n(2) A court of this State or a court of another state determines that the child, the child\u2019s parents, and any person acting as a parent do not presently reside in this State.\n(b) A court of this State which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under G.S. 50A-201.\nN.C. Gen. Stat. \u00a7 50A-202 (2005). This section of the UCCJEA is consistent with In re Baby Boy Scearce, in which this Court held that \u201c[ojnce jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined.\u201d In re Baby Boy Scearce, 81 N.C. App. 531, 538-39, 345 S.E.2d 404, 409 (1986) (citations omitted). Further, N.C. Gen. Stat. \u00a7 7B-201 provides: \u201c[w]hen the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first.\u201d Id.\nImportantly, we note the distinction between the \u201cexclusive, original jurisdiction\u201d of N.C. Gen. Stat. \u00a7 7B-1101, and the \u201cexclusive, continuing jurisdiction\u201d of the UCCJEA. Blacks Law Dictionary, 869 (8th ed. 2004), defines \u201cexclusive jurisdiction\u201d to mean \u201c[a] court\u2019s power to adjudicate an action or class of actions to the exclusion of all other courts[.]\u201d Further, \u201coriginal jurisdiction\u201d means \u201c[a] court\u2019s power to hear and decide a matter before any other court can review the matter.\u201d Id. \u201cContinuing jurisdiction[,]\u201d however, is defined as \u201c[a] court\u2019s power to retain jurisdiction over a matter after entering a judgment, allowing the court to modify its previous rulings or orders.\u201d Blacks Law Dictionary, 868 (8th ed. 2004). N.C. Gen. Stat. \u00a7 7B-1101 therefore provides that the district court in that district shall have the power to adjudicate termination of parental rights proceedings to the exclusion of, and before, all other courts when the circumstances specified in N.C. Gen. Stat. \u00a7 7B-1101 relating to that district exist. This, however, does not preclude the district court\u2019s exercise of jurisdiction in circumstances in which the court already has \u201cexclusive, continuing jurisdiction\u201d pursuant to the UCCJEA.\nThe opinion cited by the dissent, In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73 (1985) is distinguishable from the instant case. In Leonard, this Court held that the district court lacked jurisdiction pursuant to N.C. Gen. Stat. \u00a7 7A-289.23 even though the court had jurisdiction pursuant to N.C. Gen. Stat. \u00a7 50A-3, the prior version of the UCCJEA, the Uniform Child Custody Jurisdiction Act (\u201cUCCJA\u201d). In Leonard, unlike the instant case, there was no indication that there was ever a prior custody determination that would have given the court exclusive, continuing jurisdiction over the child. The codification of N.C. Gen. Stat. \u00a7 50A-202, which provided for \u201cexclusive, continuing jurisdiction, see 1999 N.C. Sess. Laws ch. 223, \u00a7 3, followed the publication of Leonard. The concept of \u201ccontinuing jurisdiction\u201d was neither specifically addressed in the UCCJA nor contemplated by the Leonard court.\nThe provisions of the Parental Kidnapping Prevention Act (\u201cPKPA\u201d) are instructive. The PKPA provides that \u201c[t]he jurisdiction of a court of a State which has made a child custody or visitation determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.\u201d 28 U.S.C.A. \u00a7 1738A(d) (2002). Subsection (c)(1) provides that \u201c[a] child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if . . . (1) such court has jurisdiction under the law of such State[.]\u201d 28 U.S.C.A. \u00a7 1738A(b)(3) defines a child custody determination as \u201ca judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications.\u201d This Court has held that \u201c[t]he PKPA has established the national policy with regard to custody jurisdiction, and to the extent a state custody statute conflicts with the PKPA, the federal statute controls. In re Bean, 132 N.C. App. 363, 366, 511 S.E.2d 683, 686.\nIn the instant case, James R. and Crystal Helms, H.D.\u2019s custodial guardians, resided with H.D. in Alabama when the petition for termination was filed. H.D.\u2019s parents resided in Gaston County, North Carolina. The initial custody determination was made by the Gaston County, North Carolina, court on 28 March 2003, when H.D. was placed in the custody of Gaston County DSS. After this initial custody determination, the courts of this State maintained exclusive, continuing jurisdiction. A court of this State has not made a determination that neither H.D., H.D.\u2019s parents, nor any person acting as H.D.\u2019s parent lack a significant connection with this State. N.C. Gen. Stat. \u00a7 50A-202 (2005)(a)(l). Nor has a court determined that \u201csubstantial evidence is no longer available in this State concerning the child\u2019s care, protection, training, and personal relationships.\u201d Id. Further, neither a North Carolina court, nor an Alabama court has determined that \u201cthe child, the child\u2019s parents, and any person acting as a parent do not presently reside in this State.\u201d N.C. Gen. Stat. \u00a7 50A-202 (2005)(a)(2). To the contrary, both parents continue to reside in Gaston County, North Carolina.\nRespondent specifically argues that In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808, (2006), is binding precedent, and that the trial court lacked jurisdiction to terminate his parental rights. We disagree. In the case of In re D.D.J., this Court held, pursuant to N.C. Gen. Stat. \u00a7 7B-1101, that \u201cthere are three sets of circumstances in which the court has jurisdiction to hear a petition to terminate parental rights:\u201d\n(1) if the juvenile resides in the district at the time the petition is filed; (2) if the juvenile is found in the district at the time the petition is filed; or (3) if the juvenile is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time the petition is filed.\nIn re D.D.J., 177 N.C. App. at 442-43, 628 S.E.2d at 810. While this is a correct statement of the law, the language of N.C. Gen. Stat. \u00a7 7B-1101 and In re D.D.J. does not foreclose the establishment of exclusive continuing jurisdiction over a juvenile pursuant to N.C. Gen. Stat. \u00a7 50A-201 and 202 of the UCCJEA. In fact, one purpose of the codification of the UCCJEA is specifically to provide for \u201ccontinuing jurisdiction\u201d in circumstances similar to those of H.D., and to address the considerable confusion of the former UCCJA\u2019s silence as to continuing jurisdiction.\nFurther, In re D.D.J. is distinguishable from the instant case in two respects: First, in D.D.J., DSS did not have custody of the juvenile, and therefore, lacked standing to file for termination pursuant to N.C. Gen. Stat. \u00a7 7B-1103(a)(3) (2005), which provides:\nA petition or motion to terminate the parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following: . . . Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction.\nSecond, the trial court in D.D.J. had no jurisdiction to enter the 17 March 2004 order on termination subsequent to granting \u201cfull custody\u201d of the juveniles to custodial guardians on 26 September 2003 and specifying that \u201cthis case is closed.\u201d See In re P.L.P., 173 N.C. App. 1, 7, 618 S.E.2d 241, 245 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006) (holding that jurisdiction in the district court was \u201cterminated by the trial court\u2019s order to \u2018close\u2019 the case\u201d and that DSS was required to file a new petition alleging neglect).\nHere, James R. and Crystal Helms, H.D.\u2019s guardians, had custody of H.D., and therefore, had standing to file a petition for termination pursuant to N.C. Gen. Stat. \u00a7 7B-1103(a)(3) (2005). Further, the district court of Gaston County had exclusive, continuing jurisdiction pursuant to N.C. Gen. Stat. \u00a7 50A-202(a) (2005). The court did not, at any time, specify that the case as to H.D. was \u201cclosed.\u201d To the contrary, in an order entered 28 February 2006, the court specifically retained jurisdiction \u201cfor further orders.\u201d We conclude that the trial court had exclusive, continuing jurisdiction to enter the order terminating respondent\u2019s parental rights after jurisdiction attached on 28 March 2003, when the North Carolina court entered an order as to the custody of H.D. Since jurisdiction under the UCCJEA is exclusive and continuing, the courts of North Carolina still had jurisdiction over H.D. to enter an order terminating respondent\u2019s parental rights, even though H.D. resided in Alabama with the custodial guardians, because the requisites of \u201csubstantial connection\u201d jurisdiction pursuant to Section 201 were met. This assignment of error is overruled.\nII: Motions to Dismiss\nIn his second argument, respondent contends that the trial court erred by denying respondent\u2019s motions to dismiss.\nSpecifically, respondent argues that the trial court did not have jurisdiction to enter the order terminating respondent\u2019s parental rights because petitioners failed to attach a copy of the custody order to the petition for termination in violation of N.C. Gen. Stat. 7B-1104(5) (2005). We disagree.\nN.C. Gen. Stat. \u00a7 7B-1103 identifies the parties with standing to petition the trial court for termination of parental rights. N.C. Gen. Stat. \u00a7 7B-1103; see also In re T.B., 177 N.C. App. 790, 792, 629 S.E.2d 895, 897 (2006). N.C. Gen. Stat. \u00a7 7B-1104(5) (2005), sets out the requirements for a petition for termination of parental rights and provides in relevant part that the petition \u201cshall set forth . . . (5) The name and address of any person or agency to whom custody of the juvenile has been given by a court of this or any other state; and a copy of the custody order shall be attached to the petition or motion.\u201d\nRespondent specifically relies upon In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (2005), and In re T.B., 177 N.C. App. 790, 629 S.E.2d 895, in which this Court held that failure to comply with N.C. Gen. Stat. \u00a7 7B-1104(5) divested the trial court of subject matter jurisdiction. See In re Z.T.B., 170 N.C. App. 564, 613 S.E.2d 298 (holding that because the petitioner failed in the petition to set forth facts known to petitioner, or state that petitioner has no knowledge of facts, regarding the name and address of any judicially appointed guardian, or person or agency awarded custody of the child by a court, and failed to attach the existing custody order to the petition, it was facially defective and did not confer subject matter jurisdiction upon the trial court); In re T.B., 177 N.C. App. 790, 629 S.E.2d 895 (holding that because the petition did not have a copy of the custody order, the petition failed to confer subject matter jurisdiction on the trial court); but see In re B.D., 174 N.C. App. 234, 242, 620 S.E.2d 913, 918 (2005) (holding that the failure to attach a custody order was not reversible error because there was no showing of prejudice where the respondents were aware of the child\u2019s placement, the petition noted that \u201ccustody of [the child] was given by prior orders[,]\u201d the respondent admitted that the child was \u201cin the legal custody of the Buncombe County Department of Social Services,\u201d and the respondents were present at pre-termination hearings in which custody was granted to petitioner and hearings in which visitation options were discussed and determined), In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439 (2007) (holding that the failure to attach a custody order was not reversible error because there was no showing of prejudice where there was no indication that the respondent was unaware of the placement or custody of the children at any time, the motion to terminate stated that DSS was given legal custody of the minor children, and the record included a copy of an order, in effect when the motion was filed, that awarded DSS custody of the children). We follow the reasoning of B.D. and W.L.M. and conclude that Z. T.B. and T.B. are distinguishable from the instant case.\nIn Z.T.B., this Court held that the petition to terminate the father\u2019s parental rights was facially defective, and the trial court lacked subject matter jurisdiction due to the petitioner\u2019s failure to attach an existing custody order to the petition. However, in Z.T.B., \u201cthe issue of where the child was physically located and who had legal custody was very much in question at the time the petition to terminate the father\u2019s parental rights was filed.\u201d In re W.L.M., 181 N.C. App. 518, 640 S.E.2d 439 (2007). This fact situation does not exist in the instant case.\nIn the case of In re T.B., 177 N.C. App. at 793, 629 S.E.2d at 897, this Court held that \u201cwhere DSS files a motion for termination of parental rights, the trial court has subject matter jurisdiction only if the record includes a copy of an order, in effect when the petition is filed, that awards DSS custody of the child.\u201d However, the Court in T.B. also stated that this \u201comission need not have been fatal if petitioner had simply amended the petition by attaching the proper custody order or otherwise ensured the custody order was made a part of the record before the trial court.\u201d Id., 177 N.C. App. at 793, 629 S.E.2d at 898 (emphasis in original).\nIn the instant case, petitioners concede that they did not attached a copy of the custody order to the petition to terminate respondents\u2019 parental rights. However, there is also no indication that respondent was unaware of H.D.\u2019s placement at any point during the case. In fact, respondent entered into a consent order providing for H.D.\u2019s guardianship with petitioners. Respondent was certainly aware of H.D.\u2019s residence with the custodial guardians in Alabama. Further, the petition noted that \u201con February 9, 2005[,] the Petitioners were granted guardianship of the minor child, H.D[,]\u201d and the custody order was made part of the record before the trial court. The petition also stated that \u201c[o]n February 28, 2006, an Order was entered in the matter of In Re: H.D., . . . which provides that the Court sanctions a permanent plan of Guardianship and that the Petitioners shall remain the juvenile\u2019s permanent guardians pending further orders[.]\u201d Various trial court orders in the record on appeal and referenced in the order terminating respondent\u2019s parental rights note that respondent was present at pre-termination hearings in which custody was granted to petitioners as well as hearings in which visitation options were determined.\nIn light of the foregoing, we conclude that respondent is unable to demonstrate any prejudice whatsoever arising from petitioners\u2019 failure to attach the pertinent custody order to the petition. Accordingly, we overrule this argument.\nRespondent next argues that petitioners failed to allege sufficient facts as required by N.C. Gen. Stat. \u00a7 7B-1104(6) to warrant a determination that grounds existed to terminate his parental rights.\nN.C. Gen. Stat. \u00a7 7B-1104 (2005) provides that \u201c[t]he petition, or motion pursuant to G.S. 7B-1102, . . . shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:... (6) Facts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.\u201d Id. \u201cWhile there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue.\u201d In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002); see also In re A.D.L., 169 N.C. App. 701, 709, 612 S.E.2d 639, 644, disc. rev. denied by 359 N.C. 852, 619 S.E.2d 402 (2005). Merely using words similar to the relevant statutory ground for termination is not sufficient to comply with N.C. Gen. Stat. \u00a7 7B-1104(6). In re Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82.\nIn the instant case, however, respondent failed to preserve this matter for appeal. \u201cThe Rules of Civil Procedure apply to proceedings for termination of parental rights[,]\u201d In re McKinney, 158 N.C. App. 441, 444, 581 S.E.2d 793, 795 (2003), and \u00e1 Rule 12(b)(6) motion may not be made for the first time on appeal. Dale v. Lattimore, 12 N.C. App. 348, 351-52, 183 S.E.2d 417, 419 (1971) (citations omitted). Respondent made a motion to dismiss after the presentation of petitioner\u2019s evidence and at the close of all evidence. Those motions were based on the insufficiency of the evidence, not the legal insufficiency of the petition. Therefore, respondent has not properly preserved this issue for appeal, and this assignment of error is overruled.\nTTT: Reasonable Progress\nIn his final argument, respondent contends that the trial court erred by concluding that the father willfully left H.D. in placement outside the home for more than twelve months without showing to the satisfaction of the court that reasonable progress had been made to correct the conditions which led to the removal of H.D. We disagree.\nRespondent specifically argues that because the trial court ceased reunification efforts and, in an order consented to by respondent, changed the child\u2019s permanent plan to custody by a permanent guardian, respondent lost the opportunity to make reasonable progress, and that N.C. Gen. Stat. 7B-llll(a)(2) cannot provide grounds for termination. Respondent argues that respondent\u2019s failure to make reasonable progress under N.C. Gen. Stat. 7B-llll(a)(2) could never be willful, since DSS had ceased reunification efforts. We find respondent\u2019s argument unpersuasive.\nIn the case of In re A.C.F., 176 N.C. App. 520, 526, 626 S.E.2d 729, 734 (2006), this Court concluded that the language, \u201c \u2018for more than 12 months,\u2019 \u201d in N.C. Gen. Stat. \u00a7 7B-llll(a)(2), must be defined as \u201cthe duration of time beginning when the child was \u2018left\u2019 in foster care or placement outside the home pursuant to a court order, and ending when the motion or petition for termination of parental rights was filed.\u201d In re A.C.F., 176 N.C. App. at 526, 626 S.E.2d at 734 (emphasis in original); see also In re C.L.C., 171 N.C. App. 438, 447, 615 S.E.2d 704, 709 (2005) (stating that after the termination statute was amended in 2001, the \u201cfocus is no longer solely on the progress made in the 12 months prior to the petition\u201d); In re J.G.B., 177 N.C. App. 375, 384, 628 S.E.2d 450, 457 (2006) (stating that \u201c[e]vidence supporting a determination of reasonable progress under N.C.G.S. \u00a7 7B-llll(a)(2) \u2018is not limited to that which falls during the twelve month period next preceding the filing of the motion or petition to terminate parental rights\u2019 \u201d). Here, DSS took nonsecure custody of H.D. on 29 March 2003, after which she did not return to respondent\u2019s custody. Respondent entered into a consent order on 9 February 2005, granting guardianship to petitioners. This was more than twenty-two months after H.D. was initially removed from respondent\u2019s custody, meeting the requirement of N.C. Gen. Stat. \u00a7 7B-1111(a)(2) as interpreted by A.G.F. The petition for termination was filed on 4 April 2006. H.D. had lived outside of respondent\u2019s custody for more than three years. We conclude, and respondent admitted at the hearing on termination, that there was clear, cogent and convincing evidence of respondent\u2019s failure to make reasonable progress between the time of the initial custody determination and the signing of the consent order. At the hearing, attorney for respondent stated that if \u201cthey\u2019re referring to . . . how [respondent] willfully left the child in a placement outside the home for more than 12 months, okay, that\u2019s true, if you take everything that they\u2019re saying, before guardianship. We fully admit that.\u201d (T Vol 5, P 209).\nMoreover, the trial court entered the following findings, which are binding on this Court due to respondent\u2019s failure to \u201cset out [an argument] in [his] brief,\u201d with cited authority. See N.C. R. App. R. 28(b)(6).\n43. The Respondents, as parents, have only sporadically complied with the case plans and have, on balance, failed to show any positive response to the efforts to assist them.\n44. The Respondent... has willfully refused, with no good cause, to stop using marijuana.\n45. Respondent ... is competent to participate in this case, and has been lucid and aware of the meaning of the hearing, and has meaningfully participated in, and assisted his lawyer in his presentation of, evidence before the court.\n46. That Respondent . . . has displayed inappropriate behavior and unwarranted hostility toward [DSS], foster parents, and the juvenile\u2019s guardians throughout the last three years, leading this Court to conclude that he has not meaningfully address the anger problems which contributed to the juvenile\u2019s removal.\nBecause the trial court\u2019s findings support its conclusion that grounds for termination existed pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(2), and because these findings were based on clear, cogent and convincing evidence stemming from the period of time between H.D.\u2019s initial removal from respondent\u2019s custody and respondent\u2019s entry of the consent order granting guardianship to petitioners, we conclude that the requirements set forth by N.C. Gen. Stat. \u00a7 7B-llll(a)(2) and A.C.F. are satisfied. This assignment of error is overruled.\nIV: Hearsay\nIn his next argument, respondent contends that the trial court erred by overruling his objections to the admission of the DSS file, testimony with respect to the contents of the file, and other testimony that constituted inadmissible hearsay. We disagree. Even assuming arguendo that the records contain inadmissible hearsay, respondent has failed to demonstrate that the trial court\u2019s order must be reversed.\nRespondent does not demonstrate prejudice in his argument on appeal, which is necessary for this Court to reverse the trial court\u2019s order. See In re T.M., 180 N.C. App. 539, 548, 638 S.E.2d 236, 241-42 (2006) (citing In re M.G.T.-B., 177 N.C. App. 771, 775, 629 S.E.2d 916, 919 (2006) (holding that \u201ceven when the trial court commits error in allowing the admission of hearsay statements, one must show that such error was prejudicial in order to warrant reversal\u201d). Here, respondent makes a general claim that the admission of hearsay \u201cwas highly prejudicial.\u201d This general argument is not sufficient to establish that the admission of the alleged hearsay evidence prejudiced him. Further, the court\u2019s findings and conclusions here are supported by evidence other than the evidence challenged as hearsay. Respondent\u2019s own testimony, and that of respondent\u2019s father, contained competent evidence to support the findings that grounds existed for termination pursuant to N.C. Gen. Stat. 7B-llll(a)(2). See In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001) (holding that \u201c[w]here there is competent evidence to support the court\u2019s findings, the admission of incompetent evidence is not prejudicial\u201d).\nFurther, there is a presumption in a bench trial is that \u201cthe judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby.\u201d In re L.C., 181 N.C. App. 278, 284, 638 S.E.2d 638, 642 (2007) (citing Stanback v. Stanback, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696 (1976), disc. review denied, 291 N.C. 712, 232 S.E.2d 205 (1977). Respondent bears the burden of showing that the trial court relied on the incompetent evidence in making its findings. In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000), appeal dismissed and disc, review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). As in the case of In re L.C., respondent has not met this burden. The records and documents to which respondent objects contain over two-thousand pages. However, respondent has failed to make specific allegations that the trial court disregarded inadmissible evidence in making its findings of fact. Rather, respondent generally argues that \u201cthe inadmissible hearsay supported a number of adjudicatory findings])]\u201d This general sort of argument is not sufficient to rebut the presumption that the judge disregarded any incompetent evidence.\nWe conclude that respondent has failed to demonstrate that the trial court\u2019s order must be reversed and overrule this assignment of error.\nV: Clear. Cogent, and Convincing Evidence\nIn respondent\u2019s next argument, respondent contends that pertinent findings of fact were not supported by clear, cogent and convincing evidence, and do not support the trial court\u2019s conclusion to terminate respondent\u2019s parental rights. We disagree.\nOn appeal, this Court must determine whether the trial court\u2019s findings of fact were supported by clear, cogent and convincing evidence, and whether its conclusion that grounds existed to terminate parental rights was supported by those findings of fact. In re Huff, 140 N.C. App. at 291, 536 S.E.2d at 840. The trial court\u2019s findings of fact are conclusive if supported by clear and convincing competent evidence, even where the evidence might support contrary findings. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).\nIn its order terminating respondent\u2019s parental rights, the court found that:\n42. Respondent. . . has been a disruptive and negative infhience on the juvenile, insisting on the focus of his contact with the juvenile being primarily on the juvenile\u2019s reference to him as \u201cdaddy,\u201d rather than on the juvenile\u2019s development, emotional state or interests, all to the juvenile\u2019s confusion and detriment.\nRespondent contends that even though respondent \u201chad an extremely contentious relationship with the petitioners [,]\u201d respondent was not \u201cdisruptive\u201d or \u201cnegative,\u201d because he made weekly calls to H.D., all of which \u201cdid not deal with whether his daughter called him ldaddy\u2019[.]\u201d However, petitioner testified that \u201c[respondent] tells her that . . . we\u2019re her pretend daddy and not her real mommy and daddy[;] . . . [that] she\u2019s been a bad little girl and Jesus doesn\u2019t like it; he\u2019s watching[;]... that we\u2019re trying to steal her from him.\u201d Petitioner said, respondent \u201ccontinuefs] to tell her that we\u2019re the reason that he can\u2019t visit.\u201d Petitioner stated that respondent \u201cwas very antagonistic with me [when he called], [and] tried to engage me in arguments.\u201d We conclude that respondent\u2019s argument as to this finding is unpersuasive, and that the finding is supported by clear, cogent and convincing evidence. See In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676 (holding that findings of fact are conclusive if supported by clear and convincing competent evidence, even where the evidence might support contrary findings).\nRespondent generally argues that the remaining challenged findings of fact, numbers 41, 43, 48, 49, 60 and 61, were not supported by clear, cogent and convincing evidence. However, respondent does not bring forward her assignments of error with specific arguments challenging these findings of fact. Rather, respondent only generally states that the findings \u201care not supported by clear, cogent and convincing evidence.\u201d Findings of fact not argued on appeal are deemed to be supported by sufficient evidence, and are binding on appeal. N.C. R. App. P. 28(b)(6) (2006).\nVI: Neglect\nIn respondent\u2019s final argument, he contends that the trial court erred by concluding that grounds existed to terminate respondent\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(l). As only one ground is necessary to support the termination, and the trial court properly concluded that grounds for termination existed pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(2), we need not address whether evidence existed to support termination based on N.C. Gen. Stat. \u00a7 7B-llll(a)(l). See In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005). We decline to address this question.\nFor the foregoing reasons, we affirm the trial court\u2019s decision to terminate respondent\u2019s parental rights.\nAFFIRMED.\nJudge GEER concurs.\nJudge LEVINSON dissents in separate opinion.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "LEVINSON, Judge\ndissenting.\nI respectfully dissent, on the grounds that the trial court lacked subject matter jurisdiction to enter the order terminating respondent\u2019s parental rights. Neither the court\u2019s general jurisdiction over proceedings for termination of parental rights, nor its continuing jurisdiction over custody after an initial custody determination, may substitute for the specific standing requirements for termination of parental rights.\nSubject matter jurisdiction for termination of parental rights is governed by N.C. Gen. Stat. \u00a7 7B-1101 (2005), which provides in pertinent part that:\nThe court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services ... at the time of filing of the petition or motion. . . . Provided, that before exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204. . . . (emphasis added).\n\u201cWhen the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.\u201d Diaz v. Division of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006) (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)). The language of Section 7B-1101 is \u201cclear and without ambiguity\u201d and must be applied as written. When petitioners filed the termination of parental rights petition, the minor did not reside in North Carolina, was not found in North Carolina, and was not in the custody of a North Carolina county social services agency. Thus, under G.S. \u00a7 7B-1101, the court lacked jurisdiction over the case.\nThis Court has held that there are\nthree sets of circumstances in which the court has jurisdiction to hear a petition to terminate parental rights: (1) if the juvenile resides in the district at the time the petition is filed; (2) if the juvenile is found in the district at the time the petition is filed; or (3) if the juvenile is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time the petition is filed.\nIn re D.D.J., 177 N.C. App. 441, 442-43, 628 S.E.2d 808, 810 (2006). The majority concedes that \u201cthis is a correct statement of the law,\u201d yet asserts that \u201cthe language of N.C. Gen. Stat. \u00a7 7B-1101 and In re D.D.J. does not foreclose the establishment of. . . jurisdiction over a juvenile\u201d in a termination of parental rights proceeding \u201cpursuant to N.C. Gen. Stat. \u00a7\u00a7 50A-201 and 202 of the UCCJEA.\u201d I respectfully disagree for several reasons.\nThe majority opinion presumably is based on language in Section 7B-1101 following the statute\u2019s articulation of the prerequisites for jurisdiction, that \u201cbefore exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. [\u00a7] 50A-201, 50A-203, or 50A-204.\u201d This statutory language requires that the court not only determine that jurisdiction exists under Section 1101, but that it also make sure \u201cbefore exercising jurisdiction under this Article\u201d that the exercise of jurisdiction would not run afoul of the UCCJEA. The statute nowhere suggests that .compliance with the UCCJEA is a substitute for the jurisdiction requirements of G.S. \u00a7 7B-1101. Further, while Section 50A-201 et seq. addresses the general limits on a state\u2019s jurisdiction in a situation where more than one state might be involved, Section 1101 is specifically addressed to the subject matter jurisdiction requirements for termination of parental rights proceedings. It is a legal truism that \u201ca statute dealing with a specific situation controls, with respect to that situation, other sections which are general in their application.\u201d Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969). Accordingly, to the extent that they conflict, the specific provisions of Section 1101 would control jurisdiction in a termination of parental rights case.\nMoreover, binding precedent of this Court has held that the provisions of the UCCJEA are no substitute for the jurisdictional requirements of the juvenile code. In In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73 (1985), the petitioner father filed to terminate the parental rights of respondent mother. Respondent, who had remarried and moved to Ohio with the minor just days before the petition was filed, argued that \u201csince the mother left with the child for Ohio four days before the petition was filed, the child was not \u2018residing in\u2019 or \u2018found in\u2019 the district \u2018at the time of filing\u2019 and therefore the petition should fail for lack of subject matter jurisdiction.\u201d Id. at 440, 335 S.E.2d at 73. This Court agreed, and vacated the order for termination of parental rights. In so doing; the Court expressly rejected the position of the majority opinion. In 1985, as is true today, \u201c[bjefore determining parental rights, the court must find under G.S. \u00a7 50A-3 [now \u00a7 50A-201 et. seq. ] that it has jurisdiction to make a child custody determination.\u201d Id. at 441, 335 S.E.2d at 74. In Leonard the trial court had \u201cconcluded that it would have jurisdiction to determine [the child\u2019s] custody under G.S. \u00a7 50A-3 [now \u00a7 50A-201, et. seq.]\u201d Id. This Court held that:\nWhile a determination of jurisdiction over child custody matters will precede a determination of jurisdiction over parental rights, it does not supplant the parental rights proceedings.\nId. (emphasis added). It makes no difference whether certain uniform child custody jurisdiction provisions have changed since Leonard was decided in 1985, because the essential holding of Leonard is that jurisdiction under the UCCJEA cannot substitute for the specific termination of parental rights jurisdictional requirements.\nOther cases have likewise held that, before exercising jurisdiction over a termination of parental rights proceeding, the trial court must determine that it has jurisdiction under both G.S. \u00a7 7B-1101 and Chapter 50A. See, e.g., In re N.R.M. and T.F.M., 165 N.C. App. 294, 298, 598 S.E.2d 147, 149 (2004) (although children present in North Carolina, thus meeting \u201cthe general requirement that the children reside in or be found in the district where the petition is filed\u201d the court nonetheless lacked jurisdiction where Arkansas continued to exercise jurisdiction over the child\u2019s custody); In re Bean, 132 N.C. App. 363, 366, 511 S.E.2d 683, 686 (1999) (same result where child lived in North Carolina but Florida court still had jurisdiction; Court notes that statute \u201crequires a two-part- process\u201d wherein the trial court determines that it has custody under both the UCCJA and G.S. \u00a7 7B-1101).\nFinally, the holding of In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808 is functionally indistinguishable from the instant case. In D.D.J. this Court held that, where the court did not have jurisdiction under \u00a7 7B-1101, the trial court lacked subject matter jurisdiction over the termination of parental rights proceeding. The majority attempts to distinguish D.D.J. on the basis that in that case, unlike the instant case, the petitioner lacked standing to file a petition. This is a distinction without a difference because whether a petitioner has standing to file a petition is an issue completely separate from whether a court has jurisdiction under Section 1101.\nThe majority is correct that, having made an initial custody determination, North Carolina continued to enjoy exclusive continuing jurisdiction over custody matters generally. However, North Carolina did not meet the specific jurisdictional requirements of Section 1101. Both the plain language of the statute and binding precedent establish that the trial court lacked jurisdiction over this termination of parental rights proceeding. Accordingly, the order on appeal must be vacated.", "type": "dissent", "author": "LEVINSON, Judge" } ], "attorneys": [ "Sofie W. Hosford for petitioners-appellees, James R. Helms and Crystal Helms.", "Page Dolley Morgan, for Guardian ad Litem.", "Duncan B. McCormick for respondent-appellant father." ], "corrections": "", "head_matter": "IN THE MATTER OF: H.L.A.D., Minor Child\nNo. COA07-34\n(Filed 3 July 2007)\n1. Termination of Parental Rights \u2014 jurisdiction-continuing\u2014 child moving out of state\nA North Carolina court did not lack subject matter jurisdiction to enter an order terminating parental rights where the child and the child\u2019s guardians had moved from North Carolina to Alabama. The courts of North Carolina retained exclusive, continuing jurisdiction after the initial custody determination, and the requisites of \u201csubstantial connection\u201d jurisdiction were met.\n2. Termination of Parental Rights\u2014 jurisdiction \u2014 notice\u2014 failure to attach copy of custody order to petition\nThe trial court had jurisdiction over a termination of parental rights proceeding where petitioner did not attach a copy of the custody order to the petition. There was no indication that respondent was unaware of the child\u2019s placement, and respondent was unable to demonstrate any prejudice.\n3. Appeal and Error\u2014 preservation of issues \u2014 sufficiency of petition \u2014 not raised below\nA Rule 12(b)(6) motion may not be made for the first time on appeal, and respondent did not properly preserve for appeal the issue of whether the petition for termination of parental rights alleged sufficient facts. Respondent\u2019s motions to dismiss came at the close of the evidence and were based on sufficiency of the evidence rather than sufficiency of the petition.\n4. Termination of Parental Rights\u2014 grounds \u2014 failure to make progress toward correcting conditions \u2014 reunification efforts ended\nThe requirements for terminating parental rights based on leaving the child in placement outside the home without reasonable progress were met even though the court had ceased reunification efforts and the permanent plan had been changed to custody by a guardian. The court\u2019s findings were based on clear, cogent, and convincing evidence from the time between the initial removal and entry of the order granting guardianship.\n5. Evidence\u2014 hearsay \u2014 prejudice\u2014general argument not sufficient\nThe respondent in a termination of parental rights hearing did not demonstrate prejudice from the introduction of a DSS file and other hearsay. A general claim that the evidence was highly prejudicial is not sufficient; furthermore, other evidence supported the court\u2019s findings and conclusion.\n6. Termination of Parental Rights\u2014 findings \u2014 negative influence on child\nThe trial court\u2019s findings in a termination of parental rights case that respondent had a disruptive and negative influence on the juvenile were supported by clear, cogent, and convincing evidence.\n7. Appeal and Error\u2014 assignments of error \u2014 sufficiency of evidence to support findings \u2014 specificity required\nFindings in a termination of parental rights case that were not supported by specific assignments of error were deemed to be supported by sufficient evidence and were binding on appeal.\n8. Termination of Parental Rights\u2014 appeal \u2014 only one ground required \u2014 others not considered\nOnly one ground for termination of parental rights is necessary. Contentions concerning other grounds were not considered on appeal where the first was properly found.\nJudge Levinson dissenting.\nAppeal by respondent father from order entered 14 September 2006 by Judge Thomas G. Taylor, in Gaston County District Court. Heard in the Court of Appeals 23 April 2007.\nSofie W. Hosford for petitioners-appellees, James R. Helms and Crystal Helms.\nPage Dolley Morgan, for Guardian ad Litem.\nDuncan B. McCormick for respondent-appellant father." }, "file_name": "0381-01", "first_page_order": 413, "last_page_order": 432 }