{ "id": 4162626, "name": "IN THE MATTER OF: I.T.P-L., A Minor Child", "name_abbreviation": "In re I.T.P-L.", "decision_date": "2008-12-16", "docket_number": "No. COA08-622", "first_page": "453", "last_page": "468", "citations": [ { "type": "official", "cite": "194 N.C. App. 453" } ], "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": "630 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635992 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/630/0673-01" ] }, { "cite": "665 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641798 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/665/0812-01" ] }, { "cite": "665 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641799 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0818-01" ] }, { "cite": "659 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640690 ], "year": 2008, "pin_cites": [ { "parenthetical": "holding that service of the summons on the guardian ad litem's attorney advocate combined with naming the juvenile in the caption of the summons is sufficient to establish subject matter jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0014-01" ] }, { "cite": "653 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639960 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/653/0427-01" ] }, { "cite": "660 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640976 ], "year": 2008, "pin_cites": [ { "parenthetical": "citing In re K.A.D., 187 N.C. App. 502, 653 S.E.2d 427 (2007)" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0924-01" ] }, { "cite": "643 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638053 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/643/0023-01" ] }, { "cite": "601 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631663 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "538", "parenthetical": "quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)" } ], "opinion_index": 0, "case_paths": [ "/se2d/601/0538-01" ] }, { "cite": "534 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "669", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497880 ], "year": 2000, "pin_cites": [ { "page": "792", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0787-01" ] }, { "cite": "479 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "125 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865908 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/125/0143-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 48-3-705", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "594 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "163 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919284 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/163/0540-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "554 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138479 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0359-01" ] }, { "cite": "547 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "144 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432636 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/144/0032-01" ] }, { "cite": "178 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376306 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/178/0096-01" ] }, { "cite": "564 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "parenthetical": "citation omitted" }, { "page": "602", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079405 ], "weight": 3, "year": 2002, "pin_cites": [ { "parenthetical": "citation omitted" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0094-01" ] }, { "cite": "543 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442570 ], "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0607-01" ] }, { "cite": "192 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160469 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/192/0445-01" ] }, { "cite": "192 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160778 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/192/0478-01" ] }, { "cite": "189 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156746 ], "year": 2008, "pin_cites": [ { "parenthetical": "holding that service of the summons on the guardian ad litem's attorney advocate combined with naming the juvenile in the caption of the summons is sufficient to establish subject matter jurisdiction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0683-01" ] }, { "cite": "187 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375092 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/187/0502-01" ] }, { "cite": "190 N.C. App. 779", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157843 ], "year": 2008, "pin_cites": [ { "parenthetical": "citing In re K.A.D., 187 N.C. App. 502, 653 S.E.2d 427 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0779-01" ] }, { "cite": "182 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8173231 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/182/0472-01" ] }, { "cite": "536 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "noting that defendants' counsel's signature on a notice of appeal from an order granting sanctions indicated participation in the appeal" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125834 ], "year": 2000, "pin_cites": [ { "parenthetical": "noting that defendants' counsel's signature on a notice of appeal from an order granting sanctions indicated participation in the appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0270-01" ] }, { "cite": "374 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "323 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564565 ], "year": 1988, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0598-01" ] }, { "cite": "166 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411266 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "277", "parenthetical": "quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0276-01" ] } ], "analysis": { "cardinality": 1039, "char_count": 32295, "ocr_confidence": 0.739, "pagerank": { "raw": 2.7167100812709253e-07, "percentile": 0.8298091896477362 }, "sha256": "a7db2fe26d658d960491cd7342661e8f56fece054c47efcbc882dff07bc2cfee", "simhash": "1:bba8d22e585edd54", "word_count": 5348 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and JACKSON concur." ], "parties": [ "IN THE MATTER OF: I.T.P-L., A Minor Child" ], "opinions": [ { "text": "STEPHENS, Judge.\nRespondent-Mother (\u201cMother\u201d) and Respondent-Father (\u201cFather\u201d) (collectively \u201cRespondents\u201d) are the biological parents of I.T.P-L. (\u201cIvy\u201d), bom in 2006. Mother has four other children under the age of seven who have been removed from her care due to abuse, neglect, and dependency. Father is the biological father of two of the four children, and the children have been removed from his care as well. In 2004, a report prepared by Sampson Regional Hospital indicated that two of the children had numerous lacerations, marks, and bruises at various stages of healing. The hospital staff also indicated that Respondents\u2019 report of how the injuries occurred was not consistent with the injuries. In October 2005, Respondents entered Alford pleas to felony child abuse and were placed on three years supervised probation after having served ten months in jail. Under the terms of the pleas, Mother was not to have contact with minor children unless agreed to by the Duplin County Department of Social Services (\u201cDSS\u201d) and Father was not to reside in any home with a minor child. The maternal grandmother has guardianship of all four of the children.\nIn violation of Father\u2019s probation, Respondents had been living together with Ivy since her birth. On 25 September 2006, when Ivy was two months old, Mother contacted DSS because of a hostile verbal altercation with Father. Mother advised DSS that Father had taken Ivy from her at night without milk, blankets, or supplies. When DSS responded to Mother\u2019s home, Father announced that he was leaving the residence with Ivy. After a lengthy standoff, Father agreed to leave Ivy with Mother.\nOn 26 September 2006, DSS filed a juvenile petition alleging that Ivy was neglected and dependent, and the trial court entered a non-secure custody order granting legal and physical custody of Ivy to DSS. Although DSS attempted to place Ivy with the maternal grandmother, who was present during the altercation the previous day, the maternal grandmother refused as she \u201chad her hands full\u201d with Mother\u2019s four other children. DSS placed Ivy in foster care. By orders entered 20 October and 1 November 2006, the trial court continued nonsecure custody of Ivy with DSS.\nOn 26 November 2006, the trial court adjudicated Ivy neglected and dependent. The order placed the juvenile in the legal custody of DSS, giving DSS \u201cfull responsibility for the placement and care of the juvenile.\u201d Respondents were ordered to obtain mental health assessments and follow any recommendations, complete anger management classes thro\u00fagh U-Care, comply with their probation judgments, and have no visitation with Ivy.\nBased on a mental health evaluation performed on Mother by Michael B. Jones of Tar Heel Human Services in January 2007, Mother was diagnosed with Antisocial Personality Disorder and mild mental retardation. The report recommended that she be involved in outpatient therapy and indicated that \u201cthe Court System and Department of Social Services should consider the overwhelming evidence questioning [Mother\u2019s] need for assistance in parenting or ability to parent.\u201d Mother submitted to a second evaluation with Scott Allen of Waynesborough Psychological Services in April 2007. The report from that evaluation concurred with the above-stated observation and concluded that \u201cit is unlikely that [Mother] will be capable of providing a safe and healthy environment for her children.\u201d\nIn a review order entered 8 May 2007, the trial court found, inter alia, that Respondents had moved but had not advised DSS of their new address, had attended some anger management classes but had not completed them, had not contacted DSS or attended appointments at DSS since January 2007, and had not contacted their probation officers or paid their probation fees. The trial court continued custody with DSS.\nOn 12 May 2007, Respondents got into an argument with each other. Mother put a pan of grease on the stove, heated it up, and threw the hot grease on Father. He was transported to Duplin General Hospital with bums to the left side of his body and was later transferred to the burn unit at UNC Hospitals in Chapel Hill. Mother was arrested and placed in the Duplin County Jail. She pled guilty and received a prayer for judgment.\nAt a permanency planning hearing on 25 July 2007, the trial court found, inter alia, that Respondents had not completed anger management classes and, despite Mother\u2019s attack, were still residing together. Reunification efforts with Respondents were terminated and the permanent plan for Ivy was changed from reunification to adoption. Custody of Ivy remained with DSS, and Ivy remained in foster care.\nOn 24 August 2007, DSS filed a petition to terminate Respondents\u2019 parental rights to Ivy. On motion by DSS, a guardian ad litem was appointed for Mother on 10 September 2007.\nAfter a hearing on 6 February 2008, the trial court entered an order on 28 February 2008, terminating Respondents\u2019 parental rights to Ivy. The trial court found and concluded that grounds existed to terminate Respondents\u2019 parental rights based on neglect under N.C. Gen. Stat. \u00a7 7B-llll(a)(l), placement of the juvenile with DSS for a continuous period of six months preceding the filing of the petition to terminate while willfully failing to pay a reasonable portion of the costs for the minor child under N.C. Gen. Stat. \u00a7 7B-llll(a)(3), and commission of a felony assault that resulted in serious bodily injury to another child of the parent or other child residing in the home under N.C. Gen. Stat. \u00a7 7B-llll(a)(8). The trial court then found and concluded that it would be in the child\u2019s best interests for Respondents\u2019 parental rights to be terminated. The order granted legal and physical custody of Ivy to DSS but ordered the juvenile be placed with her maternal grandmother.\nOn 22 February 2008, Petitioner filed a motion to set aside and stay the portion of the trial court\u2019s order placing the juvenile with her maternal grandmother. The trial court filed a temporary stay of that portion of its order on 6 March 2008, but dissolved the stay by order entered 25 April 2008. Petitioner and Respondents appeal from the trial court\u2019s termination order.\nI. Motions to Dismiss\nWe first address two motions, one filed 26 June 2008 by the juvenile\u2019s Guardian ad Litem for the juvenile and one filed 14 July 2008 by Petitioner, seeking to dismiss Respondents\u2019 appeals for failure to abide by Rule 3A of our Rules of Appellate Procedure. In response to the motions to dismiss, Respondents filed petitions for writ of certiorari.\nRule 3A provides:\nAny party entitled by law to appeal from a trial court judgment or order rendered in a case involving termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect, appealable pursuant to G.S. 7B-1001, may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties in the time and manner set out in Chapter 7B of the General Statutes of North Carolina. Trial counsel or an appellant not represented by counsel shall be responsible for filing and serving the notice of appeal in the time and manner required.\nN.C. R. App. P. 3A(a). Pursuant to N.C. Gen. Stat. \u00a7 7B-1001(b), \u201cnotice of appeal shall be given in writing . . . and shall be made within 30 days after entry and service of the order\u201d from which the party is appealing. N.C. Gen. Stat. \u00a7 7B-1001(b) (2007). \u201cIt is well established that \u2018[f]ailure to give timely notice of appeal... is jurisdictional, and an untimely attempt to appeal must be dismissed.\u2019 \u201d In re A.L., 166 N.C. App. 276, 277, 601 S.E.2d 538, 538 (2004) (quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)). Rule 3A further states, \u201c[i]f the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal.\u201d N.C. R. App. P. 3A(a). The signature requirement of Rule 3A provides record evidence that the appellant desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal. See Hummer v. Pulley, Watson, King & Lischer, P.A., 140 N.C. App. 270, 536 S.E.2d 349 (2000) (noting that defendants\u2019 counsel\u2019s signature on a notice of appeal from an order granting sanctions indicated participation in the appeal).\nHere, the trial court entered its order terminating Respondents\u2019 parental rights to Ivy on 28 February 2008, and the order was served on Respondents by depositing a copy in the United States mail on 6 March 2008. Accordingly, the deadline for filing notice of appeal from the trial court\u2019s order was 5 April' 2008. Respondents both filed notices of appeal on 26 March 2008, within the statutory period. However, neither Respondent signed the initial notice of appeal. Respondents filed amended notices of appeal bearing their signatures, Father on 8 April 2008 and Mother on 25 April 2008, outside the thirty-day deadline imposed by N.C. Gen. Stat. \u00a7 7B-1001(b). As proper and timely notice of appeal is jurisdictional, we must dismiss Respondents\u2019 appeal. A.L., 166 N.C. App. 276, 601 S.E.2d 538. Nevertheless, as the timely, albeit incomplete, notices of appeal together with the amended notices of appeal provide record evidence that Respondents desired to pursue the appeal, understood the nature of the appeal, and cooperated with counsel in filing the notice of appeal, we exercise our discretion pursuant to N.C. R. App- P-21(a)(1) and allow Respondents\u2019 petitions for writ of certiorari to permit consideration of their appeals on the merits so as to avoid penalizing Respondents for their attorneys\u2019 errors.\nOn 14 July 2008, DSS, concerned its notice of appeal might have been untimely, filed a petition for writ of certiorari in this matter. However, DSS filed its notice of appeal on 31 March 2008, prior to the 5 April 2008 deadline imposed by N.C. Gen.'Stat. \u00a7 7B-1001(b). As DSS timely filed notice of appeal, DSS\u2019s petition for writ of certiorari is unnecessary and is thus dismissed.\nII. Subject Matter Jurisdiction\nRespondents first argue that the trial court lacked subject matter jurisdiction over the termination proceedings because no summons was issued naming the juvenile as a respondent as required by N.C. Gen. Stat. \u00a7 7B-1106.\nThis Court has held that the failure to issue a summons regarding the juvenile in a termination of parental rights proceeding deprives the trial court of subject matter jurisdiction. In re C.T., 182 N.C. App. 472, 643 S.E.2d 23 (2007). This Court later construed C.T. to mean that the failure to issue a summons to the juvenile in a termination of parental rights proceeding deprives the trial court of subject matter jurisdiction. In re S.F., 190 N.C. App. 779, 660 S.E.2d 924 (2008) (citing In re K.A.D., 187 N.C. App. 502, 653 S.E.2d 427 (2007)). However, even if a summons does not name the juvenile as a respondent, the trial court will retain subject matter jurisdiction over the termination proceeding where the caption of an issued summons refers to the juvenile by name and a designated representative of the juvenile certifies the juvenile was served with the petition. See In re J.A.P., I.M.P., 189 N.C. App. 683, 659 S.E.2d 14 (2008) (holding that service of the summons on the guardian ad litem\u2019s attorney advocate combined with naming the juvenile in the caption of the summons is sufficient to establish subject matter jurisdiction).\nIn In re S.D.J., 192 N.C. App. 478, 665 S.E.2d 818 (2008), this Court concluded that the trial court had subject matter jurisdiction where, even though a summons was not issued to the juvenile, \u201cthe captions of the summonses naming the parents as respondents state[d] the name of the juvenile, and the guardians ad litem for the juvenile certified that they accepted service of the petition on the juvenile\u2019s behalff.]\u201d Id. at 481, 665 S.E.2d at 821.\nIn In re N.C.H., G.D.H., D.G.H., 192 N.C. App. 445, 665 S.E.2d 812 (2008), the record contained summonses captioned in the names of the juveniles and certifications from the guardian ad litem for the juveniles' that she was served with copies of the summonses. This Court found that, in accordance with J.A.P. and S.D.J., the trial court had subject matter jurisdiction over the proceedings.\nHere, the record before us shows a summons captioned as follows: \u201cIn the Matter of: [I.T.P-L.]\u201d The record also reflects that copies of the summons and petition were served on the juvenile\u2019s guardian ad litem, Patrick Giddeons, at the Duplin County Courthouse. We find no significant distinctions between the facts of this case and those in S.D.J. or N.C.H. Therefore, in accordance with our holdings in those cases, we conclude the trial court had subject matter jurisdiction over these proceedings. Respondents\u2019 arguments are overruled.\nIII. Grounds for Termination\nBy various assignments of error, Mother argues the trial court erred in its conclusion that grounds exist to terminate her parental rights.\nA termination of parental rights proceeding involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001) (citation omitted). The initial stage is the adjudicatory stage whereby the petitioner must establish by clear, cogent, and convincing evidence that at least one of the statutory grounds for termination listed in N.C. Gen. Stat. \u00a7 7B-1111 exists. N.C. Gen. Stat. \u00a7 7B-1109 (2007); In re Anderson, 151 N.C. App. 94, 564 S.E.2d 599 (2002) (citation omitted). A finding of any one of the grounds enumerated in N.C. Gen. Stat. \u00a7 7B-1111 will support a trial court\u2019s order of termination. A Child\u2019s Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d 673 (2006). Appellate review of a trial court\u2019s determination at the adjudicatory stage is whether the trial court\u2019s findings of fact are based upon clear, cogent, and convincing evidence and whether the findings support the conclusions of law. In re Pope, 144 N.C. App. 32, 547 S.E.2d 153, aff\u2019d, 354 N.C. 359, 554 S.E.2d 644 (2001). \u201cWhere no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Furthermore, on appeal, the scope of review is limited to those issues presented by assignment of error in the record on appeal. N.C. R. App. P. 10(a).\nThe trial court may terminate parental rights upon a finding that the parent \u201chas committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home[.]\u201d N.C. Gen. Stat. \u00a7 7B-1111(a)(8).\nIn its order terminating Mother\u2019s parental rights, the trial court made the following findings of fact:\n19. The respondent mother also took an Alford plea to felony child abuse on or about October 18, 2005, and under the terms of her probation is not to have contact with minor children unless agreed to by the Duplin County Department of Social Services.\n22. The respondent mother and the respondent father were incarcerated from January 2005 through October 2005 for felony child abuse. They both continue to deny, that they had anything to do with the injuries inflicted on those minor children.\nAs Mother did not assign error to these findings of fact, the findings are presumed to be supported by competent evidence and are binding on appeal. Koufman, 330 N.C. 93, 408 S.E.2d 729. Based on these findings of fact, the trial court concluded, inter alia:\n6. The respondent parents have committed a felony assault that resulted in serious bodily injury to another child in their care.\nThe trial court\u2019s findings of fact support this conclusion of law. Furthermore, Mother did not assign error to this conclusion of law, thus precluding review of the conclusion on appeal. N.C. R. App. P. 10(a). Accordingly, the trial court did not err in determining that grounds exist to terminate Mother\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-1111(a)(8). Having concluded that at least one ground for termination of parental rights exists, we need not address the additional grounds for termination found by the trial court. In re B.S.D.S., 163 N.C. App. 540, 594 S.E.2d 89 (2004). Mother\u2019s argument is overruled.\nIV. Best Interests of the Child\nMother next argues that the trial court erred in determining that it was in the best interests of the child to terminate Mother\u2019s parental rights.\n\u201cIf the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.\u201d Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602 (citation omitted).\nIn making this determination, the court shall consider the following:\n(1) The age of the juvenile.\n(2) The likelihood of adoption of the juvenile.\n(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.\n(4) The bond between the juvenile and the parent.\n(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.\n(6) Any relevant consideration.\nN.C. Gen. Stat. \u00a7 7B-1110(a) (2007). A trial court\u2019s determination at the dispositional stage is reviewed on appeal for abuse of discretion. Anderson, 151 N.C. App. 94, 564 S.E.2d 599.\nThe trial court made the following relevant findings of fact regarding the best interests of the child:\n14. The minor child has been in foster care since September 26, 2006 due to the respondent mother and the respondent father providing an injurious environment due to a hostile verbal altercation between the parties while the child was in the home. The minor child remains in the same placement she has been in since she was placed in foster care.\n21. The respondent mother has a history of mental illness and violent behavior. ...\n23. The Department of Social Services has a long history with respondent mother dating back to 2001 after her first child was bom in regard to abuse and neglect. The respondent mother has a long history of violent behavior and instability.\n25. The . . . Department of Social Services had serious concerns about the mental stability of the respondent mother... during the investigation....\n28. There are numerous concerns about the: violent tendencies of the respondent mother and her lack of truthfulness. The respondent mother admitted that she was kicked out of high school for stabbing someone who \u201cbothered her.\u201d\n47. The conduct of the respondent mother has been such as to demonstrate that she did not provide the degree of care which will promote the healthy and orderly, physical and emotional well-being of the minor child.\n49. The minor child is in need of a permanent plan of care at the earliest possible age, which can be obtained only by the severing of the relationship between the child and the respondent mother by termination of parental rights.\n54. It is in the best interest of the minor child that the parental rights of [Mother] be terminated.\nAs Mother did not assign error to findings of fact numbers 21, 28, 47, 49, and 54, these findings are binding on appeal. Koufman, 330 N.C. 93, 408 S.E.2d 729. Furthermore, a thorough review of the record reveals that findings of fact numbers 14, 24, and 25 are supported by clear, cogent, and convincing evidence. Based on these findings of fact, the trial court concluded:\n9. It is in the best interest of the minor child that the parental rights of [Mother] be terminated.\nMother argues that she \u201cpresented ample evidence in her statement of facts that she was not neglecting the minor child when the child was removed by DSS\u201d and that \u201cthere was no clear, cogent, or convincing evidence of neglect or abuse.\u201d However, as stated above, the trial court had sufficient, grounds to terminate Mother\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-1111(a)(8), and thus, Mother\u2019s argument is misplaced.\nGiven the abundant evidence of Mother\u2019s violent and inconsistent behavior, inability to parent appropriately, and inability to follow the recommendations of medical personnel to improve her mental health and parenting abilities, as well as Ivy\u2019s young age, the fact that she has been in DSS custody almost her whole life, and her need for permanency, we conclude the trial court did not abuse its discretion in concluding that it was in Ivy\u2019s best interests to terminate Mother\u2019s parental rights. Accordingly, Mother\u2019s argument is overruled.\nV. Appointment of Guardian ad'Litem for Mother\nMother next argues that the trial court erred in failing to timely appoint her a guardian ad litem pursuant to N.C. Gen. Stat. \u00a7 7B-1101.1(c).\nN.C. Gen. Stat. \u00a7 7B-1101.1(c) mandates appointment of a guardian ad litem to represent a parent in proceedings to terminate that parent\u2019s parental rights\nif the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest.\nN.C. Gen. Stat. \u00a7 7B-1101.1(c) (2007).\nHere, the petition to terminate Mother\u2019s parental rights was filed on 24 August 2007. On 7 September 2007, DSS filed a Motion for Appointment of a Guardian ad Litem for Mother and the trial court appointed a guardian ad litem for Mother on 10 September 2007. There was no court hearing on the termination proceeding scheduled until 31 October 2007, and that hearing was continued until 12 December 2007. Thus, the trial court appointed a guardian ad litem for Mother seventeen days after the petition for termination was filed and more than three months before the first hearing in the termination proceeding took place. Mother argues that N.C. Gen. Stat. \u00a7 7B-1101.1(c) required the trial court to have appointed her a guardian ad litem when Ivy was first taken into DSS custody. We disagree. N.C. Gen. Stat. \u00a7 7B-1101.1(c) only mandates timely appointment of a guardian ad litem during a termination of parental rights proceeding. We thus hold that the trial court complied with the statutory mandate in N.C. Gen. Stat. \u00a7 7B-1101.1(c). Mother\u2019s argument is overruled.\nVI. Assignments of Error Deemed Waived\nFather set out twenty-two assignments of error in the Record, but argues only one of these in his brief to this Court. The assignments of error not argued or supported by legal authority in Father\u2019s brief are deemed abandoned. N.C. R. App. P. 28(b)(6).\nVII. Subject Matter Jurisdiction to Place the Child\nPetitioner argues that, pursuant to N.C. Gen. Stat. \u00a7 7B-1112, since DSS had legal and physical custody of Ivy when the trial court terminated Respondents\u2019 parental rights, DSS retained legal and physical custody of the child and, thus, had the exclusive authority to place the child.\nPursuant to N.C. Gen. Stat. \u00a7 7B-1112:\nIf the juvenile had been placed in the custody of ... a county department of social services or licensed child-placing agency and is in the custody of the agency at the time of the filing of the petition or motion, including a petition or motion filed pursuant to G.S. 7B-1103(6), that agency shall, upon entry of the order terminating parental rights, acquire all of the rights for placement of the juvenile as the agency would have acquired had the parent whose rights are terminated released the juvenile to that agency pursuant to the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes, including the right to consent to the adoption of the juvenile.\nN.C. Gen. Stat. \u00a7 7B-1112(1) (2007). Part 7 of Article 3 of Chapter 48 provides:\n[A] relinquishment by a parent or guardian ... to place a minor for adoption:\n(1) Vests legal and physical custody of the minor in the agency; and\n(2) Empowers the agency to place the minor for adoption with a prospective adoptive parent selected in the manner specified in the relinquishment.\nN.C. Gen. Stat. \u00a7 48-3-705(b) (2007).\nIn applying the above-stated law in In re Asbury, 125 N.C. App. 143, 479 S.E.2d 229 (1997), this Court determined that since the minor child was in the Mecklenburg County Department of Social Services\u2019 custody when her parents\u2019 rights were terminated, legal and physical custody of the child vested in the Department of Social Services upon the trial court\u2019s entering the order of termination. When legal and physical custody of the child vested in the Department of Social Services, the Department of Social Services was then authorized to proceed in its discretion with placing the child for adoption, and the trial court had no authority to interfere with the Department of Social Services\u2019 decision to place the child.\nHere, DSS was granted nonsecure custody of Ivy on 26 September 2006. The trial court entered orders on 20 October and 1 November 2006 continuing nonsecure custody with DSS. On 26 November 2006, the trial court adjudicated Ivy neglected and dependent and ordered that \u201clegal custody of the juvenile shall remain with [DSS] with [DSS] having full responsibility for the placement and care of the juvenile.\u201d Subsequent review and permanency planning orders continued legal custody with DSS. The order terminating Respondents\u2019 parental rights found as fact that\n6. The Petitioner in this action is the duly constituted Duplin County Department of Social Services, which has been given legal and physical custody of the minor pursuant to N.C. Gen. Stat. \u00a7 7B-1103(a)(3).\nAs Ivy was in the custody of DSS when the trial court terminated Respondents\u2019 parental rights, legal and physical custody of Ivy vested in DSS upon the termination. Thus, when legal and physical custody of Ivy vested in DSS, DSS was then authorized to proceed in its discretion with placing Ivy. Accordingly, the trial court lacked jurisdiction to place Ivy and the trial court\u2019s order placing Ivy with her maternal grandmother must be vacated. In light of this conclusion, we need not reach Petitioner\u2019s remaining assignments of error.\nFor the above-stated reasons, we\nAFFIRM IN PART AND VACATE IN PART.\nJudges McCULLOUGH and JACKSON concur.\n. A pseudonym has been used to protect the identity of the child.\n. \u201c[A]n \u2018Alford plea\u2019 constitutes a guilty plea in the same way that a plea of nolo contendere or no contest is a guilty plea.\u201d State v. Alston, 139 N.C. App. 787, 792, 534 S.E.2d 666, 669 (2000) (quotation marks and citation omitted).\n. The record is silent as to whether Mother had obtained permission from DSS to have contact with Ivy.\n. Additionally, Father\u2019s Motion to Amend Petition for Writ of Certiorari to allow him to file a Verification of the original petition, as required by N.C. R. App. P. 21(c), filed 11 July 2008, is hereby allowed.\n. This assignment of error has been addressed in this opinion in Section II. Subject Matter Jurisdiction.\n. Asbury applied N.C. Gen. Stat. \u00a7 7A-289.33 (1995), the previous version of N.C. Gen. Stat. \u00a7 7B-1112. However, the language of the two statutes is identical.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Elizabeth Myrick Boone for Petitioner Duplin County Department of Social Services.", "Winifred H. Dillon for Respondent-Father.", "Patricia Kay Gibbons for Respondent-Mother. '", "Pamela Newell Williams for the Juvenile\u2019s Guardian as Litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: I.T.P-L., A Minor Child\nNo. COA08-622\n(Filed 16 December 2008)\n1. Appeal and Error\u2014 appealability \u2014 failure to sign initial notice of appeal \u2014 untimely amended notice of appeal \u2014 writ of certiorari\nThe motions filed on 26 June 2008 by juvenile\u2019s guardian ad ' litem for the juvenile and on 14 July 2008 by petitioner seeking to dismiss respondents\u2019 appeals for failure to abide by N.C. R. App. P 3A are denied because: (1) although neither respondent signed the initial notice of appeal and the amended notices of appeal were filed outside the thirty-day deadline imposed by N.C.G.S. \u00a7 7B-1001(b), the Court of Appeals exercised its discretion under N.C. R. App. P. 21(a)(1) to allow respondent parents\u2019 petitions for writ of certiorari to permit consideration of their appeal on the merits so as to avoid penalizing respondents for their attorneys\u2019 errors; and (2) DSS timely filed its notice of appeal on 31 March 2008 prior to the 5 April 2008 deadline imposed by N.C.G.S. \u00a7 7B-1001(b), and thus DSS\u2019s petition for writ of certiorari was unnecessary and dismissed.\n2. Termination of Parental Rights\u2014 subject matter jurisdiction \u2014 failure to issue summons naming juvenile as respondent\nThe trial court had subject matter jurisdiction over the termination of parental rights case even though no summons was issued naming the juvenile as a respondent as required by N.C. G.S. \u00a7 7B-1106 because: (1) even if a summons does not name the juvenile as a respondent, the trial court will retain subject matter jurisdiction over the termination proceeding where the caption of an issued summons refers to the juvenile by name and a designated representative of the juvenile certifies the juvenile was served with the petition; and (2) the record showed the caption of the summons had the juvenile\u2019s name and also reflected that copies of the summons and petition were served on the juvenile\u2019s guardian ad litem.\n3. Termination of Parental Rights\u2014 grounds \u2014 felony assault\nThe trial court did not err by concluding that grounds existed to terminate respondent mother\u2019s parental rights based on a finding that the parent has committed a felony assault that resulted in serious bodily injury to the child, another child of the parent, or other child residing in the home under N.C.G.S. \u00a7 7B-llll(a)(8) because: (1) respondent did not assign error to the findings of fact, and thus they are presumed to be supported by competent evidence and are binding on appeal; and (2) respondent did not assign error to the pertinent conclusion of law thus precluding its review.\n4. Termination of Parental Rights\u2014 best interests of child\u2014 abuse of discretion standard\nThe trial court did not abuse its discretion by determining that it was in the best interest of the child to terminate respondent mother\u2019s parental rights because of: (1) respondent\u2019s violent and inconsistent behavior, inability to parent appropriately, and inability to follow the recommendations of medical personnel to improve her mental health and parenting abilities; and (2) the minor child\u2019s young age, the fact that she has been in DSS custody almost her whole life, and her need for permanency.\n5. Termination of Parental Rights\u2014 appointment of guardian ad litem for parent \u2014 timeliness\nThe trial court did not err in a termination of parental rights case by allegedly failing to timely appoint respondent mother a guardian ad litem under N.C.G.S. \u00a7 7B-1101.1(c) because: (1) the trial court appointed a guardian ad litem for respondent seventeen days after the petition for termination was filed and more than three months before the first hearing in the termination proceeding took place; and (2) although respondent contends N.C.G.S. \u00a7 7B-1101.1(c) required the trial court to have appointed her a guardian ad litem when the minor child was first taken into DSS custody, the statute only mandates timely appointment of a guardian ad litem during a termination of parental rights proceeding.\n6. Appeal and Error\u2014 preservation of issues \u2014 failure to argue \u2014 failure to cite legal authority\nThe assignments of error that respondent father failed to argue or support with legal authority are deemed abandoned under N.C. R. App. P. 28(b)(6).\n7. Termination of Parental Rights\u2014 placement of minor child \u2014 legal and physical custody vested in DSS\nThe trial court lacked jurisdiction to place the minor child in a termination of parental rights case, and the trial court\u2019s order placing her with her maternal grandmother must be vacated, because: (1) the minor child was in the custody of DSS when the trial court terminated respondents\u2019 parental rights, and thus legal and physical custody of the minor child vested in DSS upon the termination; and (2) when legal and physical custody of the minor child vested in DSS, DSS was then authorized to proceed in its discretion with placing the minor child.\nAppeal by Petitioner and Respondents from order entered 28 February 2008 by Judge Carol Jones Wilson in Duplin County District Court. Heard in the Court of Appeals 15 September 2008.\nElizabeth Myrick Boone for Petitioner Duplin County Department of Social Services.\nWinifred H. Dillon for Respondent-Father.\nPatricia Kay Gibbons for Respondent-Mother. '\nPamela Newell Williams for the Juvenile\u2019s Guardian as Litem." }, "file_name": "0453-01", "first_page_order": 485, "last_page_order": 500 }