{ "id": 4170473, "name": "IN THE MATTER OF: J.D.L.", "name_abbreviation": "In re J.D.L.", "decision_date": "2009-08-18", "docket_number": "No. COA09-25", "first_page": "182", "last_page": "192", "citations": [ { "type": "official", "cite": "199 N.C. App. 182" } ], "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": "615 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633239 ], "year": 2005, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0026-01" ] }, { "cite": "657 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640477 ], "year": 2008, "pin_cites": [ { "page": "417", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0415-01" ] }, { "cite": "641 S.E.2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637928 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "729", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0725-01" ] }, { "cite": "617 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633753 ], "year": 2005, "pin_cites": [ { "page": "713", "parenthetical": "citations and quotation marks omitted; emphasis in first paragraph supplied by A.B.D. and emphasis in second paragraph added" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0707-01" ] }, { "cite": "643 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638053 ], "year": 2007, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0023-01" ] }, { "cite": "653 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639960 ], "year": 2007, "pin_cites": [ { "page": "428-29" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0427-01" ] }, { "cite": "672 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642723 ], "weight": 8, "year": 2009, "pin_cites": [ { "page": "17-18" }, { "page": "19" }, { "page": "18-19", "parenthetical": "citations, quotation marks, brackets and emphasis in original omitted; emphasis added" }, { "page": "18" }, { "page": "18", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0017-01" ] }, { "cite": "657 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640570 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0692-01" ] }, { "cite": "126 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "608", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "257 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568884 ], "year": 1962, "pin_cites": [ { "page": "501", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0486-01" ] }, { "cite": "346 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358667 ], "year": 1986, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0273-01" ] }, { "cite": "171 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436263 ], "year": 2005, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0230-01" ] }, { "cite": "189 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156462 ], "year": 2008, "pin_cites": [ { "page": "180", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0179-01" ] }, { "cite": "182 N.C. App. 214", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8170838 ], "year": 2007, "pin_cites": [ { "page": "219", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0214-01" ] }, { "cite": "604 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793476, 3799505, 3801974, 3800535, 3795417, 3797691, 3800412, 3797917 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0068-03", "/nc/359/0068-04", "/nc/359/0068-05", "/nc/359/0068-08", "/nc/359/0068-02", "/nc/359/0068-01", "/nc/359/0068-07", "/nc/359/0068-06" ] }, { "cite": "598 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997210 ], "year": 2004, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0311-01" ] }, { "cite": "173 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352895 ], "year": 2005, "pin_cites": [ { "page": "85-86", "parenthetical": "citations and quotation marks omitted; emphasis in first paragraph supplied by A.B.D. and emphasis in second paragraph added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0077-01" ] }, { "cite": "579 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491494 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0151-01" ] }, { "cite": "568 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "202", "parenthetical": "Timmons-Goodson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080835 ], "year": 2002, "pin_cites": [ { "page": "475", "parenthetical": "Timmons-Goodson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0472-01" ] }, { "cite": "89 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "593" } ], "opinion_index": 0 }, { "cite": "242 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621774 ], "year": 1955, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0696-01" ] }, { "cite": "677 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2009, "pin_cites": [ { "page": "837", "parenthetical": "emphasis added" }, { "page": "837" }, { "page": "837" }, { "page": "838" }, { "page": "838" } ], "opinion_index": 0 }, { "cite": "363 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150875 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "345", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0343-01" ] }, { "cite": "182 N.C. 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App.", "case_ids": [ 8917259 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0355-01" ] } ], "analysis": { "cardinality": 925, "char_count": 22458, "ocr_confidence": 0.746, "pagerank": { "raw": 7.345432909102182e-08, "percentile": 0.44052993050946215 }, "sha256": "3b88ca0e98277e9efdc20492af74e119aa6657bcad55e19360a4c786abd48b47", "simhash": "1:bfa8506212fe4cf0", "word_count": 3651 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and STEPHENS concur." ], "parties": [ "IN THE MATTER OF: J.D.L." ], "opinions": [ { "text": "STROUD, Judge.\nRespondent\u2019s parental rights to her minor child were terminated by order entered 26 September 2008 in Craven County District Court. Respondent challenges the order on procedural and on substantive grounds. We affirm.\nI. Background\nJ.D.L. (hereinafter \u201cJoey\u201d) was bom 26 February 2005. On 24 May 2006, the Craven County Department of Social Services (hereinafter \u201cPetitioner\u201d or \u201cDSS\u201d) filed a petition alleging Joey was a neglected and dependent juvenile. The whereabouts of Joey\u2019s father were unknown at the time and no summons was issued to the father. A summons was issued to Joey\u2019s mother (hereinafter \u201cRespondent\u201d) on 24 May 2006 but was returned unserved. The record contains no indication that Petitioner ever obtained an endorsement, extension, or alias/pluries summons or that a summons was ever served on any party. However, Respondent was present at the hearing on the neglect and dependency petition on 29 September 2006.\nDSS subsequently deleted the allegations of neglect from the petition. On 15 November 2006, the trial court adjudicated Joey as dependent based upon Respondent\u2019s admissions in open court to the allegations of dependency. Custody of Joey was placed with DSS. Joey\u2019s father relinquished his parental rights.\nOn 10 March 2008, Petitioner filed a petition to terminate Respondent\u2019s parental rights to Joey. The petition alleged, inter alia, dependency and abandonment. Summons was issued and served upon Joey by and through the guardian ad litem on 12 March 2008 and upon Respondent on 13 March 2008. After conducting adjudicatory and disposition hearings on 22 August 2008, the trial court entered ah order terminating Respondent\u2019s parental rights on 26 September\n2008. Respondent appeals.\nII. Procedural Issues\nA. Subject Matter Jurisdiction\nRespondent first contends that the order terminating her parental rights must be vacated because the trial court lacked subject matter jurisdiction to hear and rule on the termination petition. We disagree.\nRespondent relies on In re Miller, 162 N.C. App. 355, 590 S.E.2d 864 (2004). In Miller, this Court vacated an order terminating parental rights for want of subject matter jurisdiction because the petitioner, DSS, did not have legal custody of the child as required by N.C. Gen. Stat. \u00a7 7B-1103(a). 162 N.C. App. at 358, 590 S.E.2d at 866.\nRespondent argues that because the summons in the underlying neglect and dependency petition was never served on her, the trial court\u2019s order placing custody with DSS in that proceeding was void. Respondent further contends that if the custody order was void, DSS never had legal custody of Joey and accordingly lacked standing to file the termination petition. Respondent concludes that absent standing by DSS, the trial court lacked subject matter jurisdiction to terminate her parental rights.\nIn re J.T. (I), J.T. (II), A.J. recently addressed the issue of subject matter jurisdiction over an action terminating parental rights pursuant to Article 11 of the Juvenile Code. 189 N.C. App. 206, 657 S.E.2d 692 (2008), rev\u2019d, 363 N.C. 1, 672 S.E.2d 17 (2009). In J.T., summonses were issued to the juveniles\u2019 parents, but no summonses were issued to the juveniles, as required by N.C. Gen. Stat. \u00a7 7B-1106(a). 363 N.C. at 2-3, 672 S.E.2d at 17-18. On appeal, this Court vacated the termination order, holding that \u201c \u2018failure to issue a summons to the juvenile deprives the trial court of subj\u00e9ct matter jurisdiction.\u2019 \u201d 189 N.C. App. at 208, 657 S.E.2d at 692 (quoting In re K.A.D., 187 N.C. App. 502, 504, 653 S.E.2d 427, 428-29 (2007), which cited In re C.T. & R.S., 182 N.C. App. 472, 475, 643 S.E.2d 23, 25 (2007)).\nHowever, the North Carolina Supreme Court granted discretionary review and reversed, holding that the trial court had subject matter jurisdiction despite the failure to issue summonses to the juveniles. 363 N.C. at 4-5, 672 S.E.2d at 19. Specifically, the Supreme Court held:\nIn any given case under the Juvenile Code, the issuance and service of process is the means by which the court obtains jurisdiction....\nIt is inconsequential to the trial court\u2019s subject matter jurisdiction that no summons named any of the three juveniles as respondent and that no summons was ever served on the juveniles or their GAL. These errors are examples of insufficiency of process and insufficiency of service of process, respectively, both of which are defenses that implicate personal jurisdiction and thus can be waived by the parties. . . .\nIn summary, [when] the requirements of N.C.G.S. \u00a7 7B-1101 [are] satisfied, the trial court\u2019s subject matter jurisdiction attache[s] upon issuance of a summons. It is therefore unnecessary to make inquiry into the summons beyond a determination of whether a summons was issued.\n363 N.C. at 4-5, 672 S.E.2d at 18-19 (citations, quotation marks, brackets and emphasis in original omitted; emphasis added).\nApproximately four months after deciding J.T., see id., the Supreme Court filed In re K.J.L., which held that even \u201cfailure to legally issue a summons\u201d implicated only personal jurisdiction. 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009) (emphasis added). K.J.L. further held that \u201cthe summons is not the vehicle by which a court obtains subject matter jurisdiction over a case, and failure to follow the preferred procedures with respect to the summons does not deprive the court of subject matter jurisdiction.\u201d 363 N.C. at 346, 677 S.E.2d at 837. K.J.L. also stated that \u201cthe summons affects jurisdiction over the person rather than the subject matter, [therefore] ... a general appearance by a civil defendant \u2018waive[s] any defect in or nonexistence of a summons.\u2019 \u201d (quoting Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 593 (1955), adding emphasis and omitting citations). 363 N.C. at 347, 677 S.E.2d at 837.\nK.J.L. also disavowed interpreting the following language in J.T., \u201c \u2018where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action[,]\u2019 \u201d J.T. at 4, 672 S.E.2d at 18 (quoting In re Poole, 151 N.C. App. 472, 475, 568 S.E.2d 200, 202 (2002) (Timmons-Goodson, J., dissenting) (citations omitted), rev\u2019dper curiam for reasons stated in dissenting opinion, 357 N.C. 151, 579 S.E.2d 248 (2003)), as \u201cmean[ing] the failure to issue a summons defeats subject matter jurisdiction.\u201d K.J.L., 363 N.C. at 347, 677 S.E.2d at 838. K.J.L. added that \u201c[t]he summons relates to subject matter jurisdiction . . . only insofar as it apprises the necessary parties that the trial court\u2019s subject matter jurisdiction has been invoked and that the court intends to exercise jurisdiction over the case.\u201d 363 N.C. at 347, 677 S.E.2d at 838.\n- By their respective holdings, J.T., 363 N.C. 1, 672 S.E.2d 17, and K.J.L., 363 N.C. 343, 677 S.E.2d 835, impliedly abrogated the following language of In re A.B.D.: \u25a0\n[Wjhere there is neither endorsement nor issuance of alias or pluries summons within 90 days after issuance of the last preceding summons, the action is discontinued as to any defendant not served within the time allowed and treated as if it had never been filed.\nBecause Petitioner failed to obtain an endorsement, extension, or alias/pluries summons within ninety days after the issuance of the summons, the termination of parental [rights] action should have been treated as if it had never been filed. And where an action has not been filed, a trial court necessarily lacks subject matter jurisdiction.\n173 N.C. App. 77, 85-86, 617 S.E.2d 707, 713 (2005) (citations and quotation marks omitted; emphasis in first paragraph supplied by A.B.D. and emphasis in second paragraph added). By impliedly abrogating the foregoing language in A.B.D., J.T. and K.J.L. also appear to have rejected the application of Rule 4(e) of the North Carolina Rules of Civil Procedure in all cases under the Juvenile Code.\nRule 4(e) provides that an \u201caction is discontinued as to any defendant not theretofore served with summons within the time allowed.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4(e). J.T. and K.J.L. impliedly add the words \u201cunless the party who is not served makes a general appearance in the action\u201d to the foregoing sentence for purposes of cases under the Juvenile Code.\nA.B.D. and Rule 4(e) notwithstanding, K.J.L. and J. T. hold that lack of a summons in any juvenile action, including both failure to issue a summons to and failure to serve a summons upon a parent in an action for abuse, neglect or dependency, creates a defect only as to personal jurisdiction.\nIt is well settled that\n[objections to a court\u2019s exercise of personal (in personam) jurisdiction . . . must be raised by the parties themselves and can be waived in a number of ways. Broadly stated, any form of general appearance waives all defects and irregularities in the process and gives the court jurisdiction of the answering party even though there may have been no service of summons.\nJ.T., 363 N.C. at 4, 672 S.E.2d at 18 (citations and quotation marks omitted).\nIn the case sub judice, a summons was issued forthwith after the filing of the neglect and dependency petition. Even though Respondent was never served with the summons, she made a general appearance in the action before the trial court, thus waiving any defense as to personal jurisdiction. No defect in the trial court\u2019s jurisdiction otherwise appearing, we conclude the trial court had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to DSS. The custody order gave DSS standing to file the instant petition for termination of parental rights per N.C. Gen. Stat. \u00a7 7B-1103(a). Respondent\u2019s argument is without merit.\nB. Appointment of Guardian Ad Litem\nRespondent next contends that the court erred by failing to appoint a guardian ad litem for her. Petitioner has filed a motion to strike this argument on the ground it is not raised by an assignment of error. Our review is limited to the assignments of error set out in the record on appeal. N.C.R. App. P. 10(a). \u201cEach assignment of error shall. . . state plainly, concisely and without argumentation the legal basis upon which error is assigned.\u201d N.C.R. App. P. 10(c)(1).\nHere, Respondent cites assignments of error numbers 19 and 26 as the basis for her argument. Assignment of error number 19 states that conclusion of law number 3 is not supported by the evidence. Conclusion of law number 3 consists of the court\u2019s determination of the existence of grounds to terminate Respondent\u2019s parental rights. Assignment of error number 26 states that the court erred by concluding that Respondent\u2019s parental rights should be terminated on the ground of dependency. Neither of the assignments of error cited in support of this argument by Respondent \u201cplainly, concisely and without argumentation\u201d raise the question of whether the court erred by failing to appoint a guardian ad litem for Respondent. N.C.R. App. P. 10 (c)(1). We therefore allow the motion to strike and we do not consider the merits of this argument.\nIII. Substantive Issues\nRespondent contends that the court committed reversible error in finding dependency and abandonment as grounds to terminate her parental rights. Respondent further contends that even if grounds for termination exist, the trial court erroneously concluded that termination is in Joey\u2019s best interests.\n\u201cA finding of any one of the grounds enumerated [in N.C. Gen. Stat. \u00a7 7B-1111], if supported by competent evidence, is sufficient to support a termination\u201d of parental rights. In re J.L.K., 165 N.C. App. 311, 317, 598 S.E.2d 387, 391, disc. review denied, 359 N.C. 68, 604 S.E.2d 314 (2004). \u201cOn appeal, this Court considers whether the trial court\u2019s findings of fact are based on clear, cogent, and convincing evidence and whether those findings support the trial court\u2019s conclusion that grounds for termination exist pursuant to N.C. Gen. Stat. \u00a7 7B-1111.\u201d In re C.W., 182 N.C. App. 214, 219, 641 S.E.2d 725, 729 (2007) (citations omitted).\nIf no reversible error is found in the trial court\u2019s conclusion that grounds for termination exist, this Court then \u201cconsiders whether the trial court abused its discretion in determining that it was in the child\u2019s best interests to terminate the respondent\u2019s parental rights.\u201d Id. \u201cAn abuse of discretion is a decision manifestly unsupported by reason or one so arbitrary that it could not have been the result of a reasoned decision.\u201d Greene v. Hoekstra, 189 N.C. App. 179, 180, 657 S.E.2d 415, 417 (2008) (citation and quotation marks omitted).\nA. Grounds for Termination\nParental rights may be terminated if it is shown \u201c[t]hat the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future.\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(6) (2007). A dependent child is one who is \u201cin need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile\u2019s care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.\u201d N.C. Gen. Stat. \u00a7 7B-101(9) (2007). A conclusion that a juvenile is dependent may be supported by evidence that the parent is unable to care for the child or to suggest an appropriate alternative placement for the child. In re D.J.D., 171 N.C. App. 230, 239, 615 S.E.2d 26, 32 (2005).\nParental rights may also be terminated upon a finding that \u201c[t]he parent has willfully abandoned the juvenile for at least six months immediately preceding the filing of the petition.\u201d N.C. Gen. Stat. \u00a7 7B-1111(a)(7) (2007). \u201cAbandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child.\u201d In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). \u201cIt has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.\u201d Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962) (citation omitted).\nIn the order of termination, the trial court adopted findings of fact made in previous orders in this case and made additional findings based upon evidence received at the termination hearing. The trial court\u2019s findings of fact show Respondent stipulated the child was dependent at the time of the original adjudication order.- At that time Respondent was homeless and unable to secure and maintain a stable residence for herself and the minor child. Joey was born with low birth rate and was not making appropriate weight gains. Respondent failed to appear for medical appointments so physicians could monitor Joey\u2019s condition. Respondent had not fed Joey on the day a social worker made a home visit at 2:15 p.m.\nAt the time of a review hearing on 29 September 2006, Respondent was residing with her parents, who have legal custody of Respondent\u2019s two older children, also subjects of juvenile petitions. The maternal grandfather was a paraplegic, and the maternal grandmother was caring for him in addition to Respondent\u2019s two elder children. The guardian ad litem believed that respondent lacked the ability to care for herself alone, much less a child. The guardian ad litem advocated that the next move of the child should be to a permanent home, given that Respondent failed to make satisfactory progress in her parenting skills after the older two children were taken from her. The court warned Respondent that she needed to show dramatic improvement in her ability to live independently and to care for Joey.\nRespondent failed to appear for a review hearing on 18 January 2008. At that time she was still unemployed. She had recently delivered another child. Respondent told a social worker that her living arrangements are of no concern to the DSS and that she wanted the DSS out of her business. Respondent failed to maintain contact with her attorney. Respondent\u2019s attorney stated that \u201che could not, in good conscience, oppose\u201d the court\u2019s permanent plan of adoption by the paternal grandparents, \u201cgiven the Respondent/Mother\u2019s current situation, and lack of an appropriate alternative plan.\u201d\nThe trial court further found that while Respondent had made some progress during the previous twelve months, \u201cconditions have not sufficiently changed so that the minor child is no longer dependent, as defined by N.C.G.S. \u00a7 7B-101.\u201d The court\u2019s findings indicate that Respondent \u201cstill fails to show the Court the ability to properly parent the minor child and attend to his special needs.\u201d Respondent \u201cdenied that the juvenile was ever dependent in her care, despite prior adjudications and stipulations.\u201d Having been in foster care for more than two thirds of his life, Joey has several special needs, including speech and hearing issues. Respondent had not seen Joey since January 2007, she had \u201cgiven no gifts, support or shown any love or affection for the child since she last saw him,\u201d and she had not attempted to do so.\nClear, cogent, and convincing evidence in the record supports these findings. The findings in turn support the trial court\u2019s conclusions that Joey was dependent and abandoned, both of which are statutory grounds for termination. N.C. Gen. Stat. \u00a7 7B-1111 (2007).\nB. Best Interests of Child\nN.C. Gen. Stat. \u00a7 7B-1110(a) provides trial judges with criteria to consider in making the best interests determination:\n(1) [t]he age of the juvenile[;] (2) [t]he likelihood of adoption of the juvenile[;] (3) [w]hether termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile[;] (4) [t]he bond between the juvenile and the parent[;] (5) [t]he quality of the relationship between the juvenile and the proposed adoptive parent...[;] and (6) [a]ny relevant consideration.\nN.C. Gen. Stat. \u00a7 7B-1110(a)(2007).\nThe findings of fact show that Joey was three years old at the time of the order terminating Respondent\u2019s parental rights. He had been residing with his paternal grandparents for more than one year. The permanent plan for Joey was adoption and the paternal grandparents desired to adopt him as soon as all obstacles to adoption were removed. Joey had not seen Respondent for more than one year when the petition was heard. Respondent had given no gifts, support, love or affection to Joey since the last time she saw him. Respondent also failed to attend hearings concerning Joey. All of these factors call into question the strength of Respondent\u2019s bond with Joey.. The trial court also found that Joey had formed a bond with his paternal grandparents. They have given him the love and affection that they would have given their own biological child. They have taken care of his special needs by taking him to appointments with various specialists. Joey will also be eligible to receive certain VA benefits as an adopted child if something happened to the paternal grandfather.\nThe foregoing findings reflect a reasoned decision by the trial court. We find no abuse of discretion in the trial court\u2019s determination that termination of Respondent\u2019s parental rights is in Joey\u2019s best interest. Accordingly, the order is affirmed.\nAFFIRMED.\nJudges JACKSON and STEPHENS concur.\n. We will refer to J.D.L. by a pseudonym, Joey, to protect the child\u2019s identity and for ease of reading.\n. The trial court found as fact that Joey\u2019s father relinquished his rights to Joey, but it is not clear from the record how or when this happened. Joey\u2019s father is not a party to this appeal.\n. Respondent\u2019s counsel filed a notice of appeal, without Respondent\u2019s signature showing her consent, on 27 October 2008. Respondent\u2019s counsel filed an amended notice of appeal, which contained Respondent\u2019s signature indicating her consent to an appeal, on 30 October 2008. Petitioner has filed in this Court a motion to dismiss the appeal. As notice of appeal in compliance with Appellate Rule 3A(a) and N.C. Gen. Stat. \u00a7 7B-1001(e) was not given within 30 days after entry of judgment as required by N.C. Gen. Stat. \u00a7 7B-1001(b), we grant the motion and consider Respondent\u2019s petition for writ of certiorari filed in response to the motion to dismiss. In our discretion we allow the petition for writ of certiorari.\n. The Juvenile Code is found in Chapter 7B of the General Statutes of North Carolina.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Laura M. Watts-Whitley for petitioner-appellee.", "Deana K. Fleming for guardian ad litem.", "Windy H. Rose for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: J.D.L.\nNo. COA09-25\n(Filed 18 August 2009)\n1. Termination of Parental Rights\u2014 subject matter jurisdiction \u2014 failure to issue summons \u2014 general appearance\nThe trial court had subject matter jurisdiction to terminate respondent\u2019s parental rights even though the summons in the underlying neglect and dependency petition was never served on her because lack of a summons in any juvenile action creates a defect only as to personal jurisdiction and respondent made a general appearance in the action before the trial court, thus waiving any defense as to personal jurisdiction.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to plainly, concisely and without argumentation raise question\nAlthough respondent contends the trial court erred in a termination of parental rights case by failing to appoint a guardian ad litem for respondent, the merits of this argument are not considered and petitioner\u2019s motion to strike is allowed because neither of the assignments of error cited in support of this argument by respondent plainly, concisely, and without argumentation raise the question as required by N.C. R. App. P. 10 (c)(1).\n3. Termination of Parental Rights\u2014 sufficiency of evidence of dependency and abandonment \u2014 clear, cogent, and convincing evidence \u2014 best interests of child\nThe trial court did not abuse its discretion in a termination of parental rights case by finding dependency and abandonment as grounds to terminate respondent mother\u2019s parental rights, and by concluding that termination is in the minor child\u2019s best interests.\nAppeal by respondent from order entered 26 September 2008 by Judge Karen Alexander in Craven County District Court. Heard in the Court of Appeals 11 May 2009.\nLaura M. Watts-Whitley for petitioner-appellee.\nDeana K. Fleming for guardian ad litem.\nWindy H. Rose for respondent-appellant." }, "file_name": "0182-01", "first_page_order": 208, "last_page_order": 218 }