Opinion
No. 07-1424.
Filed March 4, 2008.
Carteret County Nos. 05J119-20.
Appeal by Respondent from order entered 6 September 2007 by Judge Paul Quinn in Carteret County District Court. Heard in the Court of Appeals 18 February 2008.
Betsy J. Wolfenden, for Respondent-Appellant. William F. Ward, III, P.A., by William F. Ward, III, for Petitioners-Appellees. Pamela Newell Williams, for Guardian ad Litem Appellee.
Respondent-mother appeals from an order terminating her parental rights to her two minor children, J.E.C.M. and R.E.S. On 2 August 2005, the Carteret County Department of Social Services ("DSS") filed juvenile petitions alleging that the minor children were neglected and dependent. DSS obtained non-secure custody of the children and placed them in the home of Petitioners, Sallie and Jeff Stamper, J.E.C.M.'s paternal aunt and uncle.
The order also terminated the parental rights of R.E.S.'s father, who is not a party to this appeal. J.E.C.M.'s father is deceased.
Respondent stipulated to an adjudication of dependency entered on 28 March 2006. The court made findings regarding Respondent's homelessness and substance abuse, and further found that Respondent and the minor children's fathers had all been drinking alcohol in J.E.C.M.'s father's residence on 30 July 2005, when J.E.C.M.'s father fatally shot himself while playing with a gun. The minor children were asleep in the residence at the time.
In the dispositional order, the court continued placement of the children with Petitioners but awarded legal custody and placement authority to DSS. The court ordered Respondent to do the following: (1) provide contact information to the DSS social worker; (2) maintain stable, independent housing free from domestic violence, criminal activity, and alcohol or drug use for at least six months; (3) maintain employment; (4) complete a substance abuse assessment at her own expense and submit the results to DSS; (5) properly take all medication as prescribed by a physician; (6) submit to random drug and alcohol screens; and (7) participate in individual mental health therapy. The court awarded the maternal grandmother twice-monthly visitation with the minor children and Respondent was allowed supervised visitation during the grandmother's visits.
A review hearing was held on 25 August 2006, and in an order entered 16 November 2006, the court awarded Petitioners guardianship of the minor children. The court retained jurisdiction in the matter but relieved DSS and the guardian ad litem of ongoing responsibilities. Its order provided that "this matter shall be reopened upon motion of any party[,]" but stated that "the juveniles cannot be returned to either parent without a hearing that determines that the parent can provide a safe home." Petitioners filed motions to terminate Respondent's parental rights on 1 May 2007. As grounds for termination, Petitioners alleged, pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (2), (3), and (7), that Respondent had (1) neglected the minor children; (2) willfully left the minor children in a placement outside the home for more than twelve months without making reasonable progress to correct the conditions which led to their removal; (3) willfully failed to pay a reasonable portion of the costs of the minor children's care during the six months immediately preceding Petitioners' filing of the motions; and (4) willfully abandoned the minor children. Respondent did not serve answers to the motions.
Petitioners' motions were heard on 23 August 2007. Although DSS was present at the hearing and advised the court that they supported the Petitioners' motions, DSS did not otherwise participate in the hearing. The court took judicial notice of the contents of the juvenile case files, including its prior orders. Petitioner Sallie Stamper was the only witness for the Petitioners. Her testimony tended to show the following: that she and her husband considered five-year-old J.E.C.M. and four-year-old R.E.S. to be their own children and wished to adopt them. Other than a chance, five-minute encounter in church on Easter Sunday of 2007, Respondent had not seen the children since they were placed in Petitioners' care. Prior to Petitioners' filing the motions to terminate her parental rights, Respondent had paid nothing toward the cost of care for the minor children. Respondent then made payments of $94.76 in June of 2007, $94.76 in July of 2007, and approximately $25.00 in August of 2007, pursuant to a child support order entered in June of 2007.
Ms. Stamper understood that the order entered 16 November 2006 forbade Respondent from visiting the children "until she prove[d] to the court that she was allowed to." Based on this understanding, Ms. Stamper told Respondent they "would have to go to court and present it to the Judge" before Ms. Stamper was allowed to let Respondent see the children. Respondent never scheduled a hearing to seek visitation with the children. Ms. Stamper had no knowledge of Respondent's "current circumstances" or compliance with the court's prior orders. On cross-examination, she acknowledged that Respondent had called her residence asking to see the children and had sent the children birthday and Christmas cards and gifts.
Respondent moved for a directed verdict at the conclusion of Ms. Stamper's testimony, arguing that Petitioners had failed to prove "any willful abandonment; any willful being placed outside the homes; or neglect or any of those things[.]" The district court denied the motion and invited Respondent to present her evidence in opposition to the motions.
Respondent testified that she called Ms. Stamper "on several occasions" four or five months after Petitioners were awarded guardianship of the minor children. Ms. Stamper refused to allow her to see or speak to the children. Respondent's mother had been granted bi-weekly weekend visitation with the children but would not allow Respondent to participate in the visits, "saying that she would lose her visitation if [Respondent] were to go over there and see the children." Respondent had provided no money to Petitioners for the minor children's care prior to the entry of a child support order in June 2007. Although Respondent was on maternity leave at the time of the hearing, she had been working at Domino's Pizza since April 2007. She had not otherwise been employed since DSS took custody of her children in August 2005. Respondent obtained an apartment for herself and her two-week-old son on 12 July 2007. Before moving into the apartment, Respondent "stayed with a friend of the family" for approximately one year and "really didn't have a home before that." In the two years prior to the hearing, Respondent had been convicted of controlling an unknown substance and spent thirty-three days in jail. She had not obtained her court-ordered substance abuse assessment or treatment and had not submitted to random drug screens by DSS. Although she had been tested by her probation officer, she was unable to obtain the release of the test results. Respondent completed parenting classes in June 2007, but had not attended any individual mental health therapy. Respondent admitted that she had not filed a motion requesting visitation from the court and acknowledged, "I didn't do what I was suppose[d] to do when I was suppose[d] to[.]" Respondent stated, however, that she was now "working hard to do it to get done what the Court asked" so that she could see her children again.
Respondent's mother, Tracy Sardo, testified that she had been granted bi-weekly weekend visitation with the minor children but had not exercised her visitation rights since becoming the manager of a Domino's Pizza in April of 2007. Sardo had delivered gifts from Respondent to the children but did not allow her to attend the visitation, "because she was Court ordered not to see the children[.]" Sardo had employed Respondent full-time since April of 2007, and although Sardo was moving to Massachusetts two weeks after the hearing, she expected Respondent to continue working at Domino's. When asked by the court if she had wanted to be the guardian of her grandchildren, Sardo replied, "I did, but I realized they were in a good place and I work a lot." Sardo had a friendly relationship with Petitioners and believed they were providing a safe, stable, and loving home for her grandchildren.
After hearing all the evidence, the court concluded that grounds existed to terminate Respondent's parental rights but deferred disposition pending its consideration of the best interests of the minor children. Respondent offered additional evidence at disposition, including proof of her completion of parenting classes, a copy of her lease, and pictures of her apartment. She advised the court that she was not seeking custody of the minor children but wanted to "have visitation with them to build a relationship with them."
In its written order entered 6 September 2007, the court adjudicated the existence of grounds for termination under N.C. Gen. Stat. §§ 7B-1111(a)(2) and (7). The court found that Respondent, by her own admission, had never complied with the dispositional order entered on 28 March 2006. Specifically, she had failed to (1) maintain stable, independent housing for six months, (2) maintain employment, (3) remain free from drug use and criminal activity, (4) complete a substance abuse evaluation, (5) submit alcohol or drug screens, or (6) participate in individual mental health therapy. Noting that the minor children had "been outside of the home of [R]espondent . . . since early August 2005, and . . . in the home of [Petitioners] for over two years[,]" the court found that "[R]espondent's conduct . . . evinces a willful disobedience of the Court's Order." The court concluded that Respondent had "willfully left the minor children in their placement outside of her home with [Petitioners] for more than twelve months without showing . . . that any reasonable progress under the circumstances ha[d] been made to correct the conditions which led to the children's removal from her home as defined by N.C. Gen. Stat. § 7B-1111(a)(2)." The court further found that, except for the unplanned meeting in church, Respondent had had no contact with the children in the six months that preceded Petitioners' motions to terminate her rights. Inasmuch as Respondent had been ordered not to have contact with the children until she complied with the court's orders, and had made no prior effort to show such compliance, the court found that Respondent had "withheld her love, care, filial affection, support and maintenance to the minor children[,]" in a manner revealing a "settled purpose by the [R]espondent to forego all parental duties . . . to the minor children." Accordingly, the court concluded that she had willfully abandoned the children pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
The court determined that the best interests of the minor children would be served by terminating Respondent's parental rights and that termination of Respondent's parental rights would facilitate Petitioners' adoption of the minor children.
On appeal, Respondent first asserts that the trial court erred in denying her motion for a directed verdict at the conclusion of Petitioners' evidence because the evidence presented by Petitioners was insufficient to sustain a verdict in their favor on any termination ground.
Directed verdicts are appropriate only in jury cases. Mayo v. Mayo, 73 N.C. App. 406, 326 S.E.2d 283 (1985). In nonjury cases, the appropriate motion by which a respondent may test the sufficiency of the petitioner's evidence is a motion for involuntary dismissal under N.C. Gen. Stat. § 1A-1, Rule 41(b). Id.
After the [petitioner], in an action tried by the court without a jury, has completed the presentation of [its] evidence, the [respondent], without waiving [the] right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the [petitioner] has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the [petitioner] or may decline to render any judgment until the close of all the evidence.
N.C. Gen. Stat. § 1A-1, Rule 41(b) (2005). "The permissive language of the rule itself makes clear that the court may decline to render judgment until all of the evidence has been presented. In fact, a judge should decline to do so except in the clearest of cases." Esteel Co. v. Goodman, 82 N.C. App. 692, 695, 348 S.E.2d 153, 156 (1986), disc. review denied, 318 N.C. 693, 351 S.E.2d 745 (1987) (citations omitted). If a respondent's motion for involuntary dismissal is denied, but the respondent, as she has a right to do, elects to introduce evidence, she waives the right to have reviewed on appeal the question whether her motion made at the close of petitioner's evidence was erroneously denied. Redevelopment Comm'n of Greenville v. Unco, Inc., 23 N.C. App. 574, 209 S.E.2d 841 (1974), cert. denied, 286 N.C. 415, 211 S.E.2d 795 (1975). "The significance of this is that on appeal from a final judgment the court will look to all of the evidence and not merely that put in as part of the [petitioner's] case." Id. at 580, 209 S.E.2d at 845 (quoting Wright and Miller, Federal Practice and Procedure, § 2371, p. 221).
As this action was tried by the court without a jury, the proper motion to test the sufficiency of Petitioners' evidence was a motion for involuntary dismissal. Although Respondent's motion was not properly made, we shall treat it as having been a motion for involuntary dismissal under Rule 41(b). Mayo, 73 N.C. App. 406, 326 S.E.2d 283. Respondent made her motion at the close of Petitioners' evidence, at which time the district court denied the motion. However, since Respondent then presented evidence of her own to the court, she waived the right to have reviewed on appeal whether her motion was erroneously denied. Accordingly, Respondent's assignment of error is overruled. Respondent next argues that the trial court erred by entering a termination order because DSS failed to file answers to Petitioners' motions and to participate as a party at the hearing.
A party who files a motion for termination of parental rights in a pending abuse, neglect, or dependency proceeding is required to serve notice of the motion upon, inter alia, "any county department of social services to whom placement responsibility for the juvenile has been given by a court of competent jurisdiction." N.C. Gen. Stat. § 7B-1106.1(a)(4) (2005). "If a county department of social services, not otherwise a movant, is served with a motion seeking termination of a parent's rights, the director shall file a written response and shall be deemed a party to the proceeding." N.C. Gen. Stat. § 7B-1106.1(c) (2005).
Here, although DSS was relieved of "placement responsibility" for the minor children and Petitioners were not required to serve DSS with the motions, Petitioners did so nonetheless. However, DSS did not file written responses to the motions. Furthermore, although DSS appeared at the termination hearing and announced its support of Petitioners' motions, DSS did not otherwise participate in the hearing.
This Court has held on numerous occasions that where, as here, a trial court fails to meet a statutory requirement, the error does not establish a ground for reversal absent a showing of prejudice. See In re T.H.T., ___ N.C. ___, 648 S.E.2d 519 (2007) (holding that the trial court's failure to hold a hearing pursuant to N.C. Gen. Stat. § 7B-807(b) was not reversible error absent a showing of prejudice); In re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167, disc. review denied, 359 N.C. 189, 606 S.E.2d 903 (2004) (holding that the trial court's failure to timely enter adjudication and disposition orders was not reversible error absent a showing of prejudice); In re Clark, 159 N.C. App. 75, 582 S.E.2d 657 (2003) (applying a prejudice requirement to an error under N.C. Gen. Stat. § 7B-806 requiring electronic or mechanical recording of all adjudicatory and dispositional hearings); In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996) (finding that although a statute governing notice and service by publication was violated, reversal was not warranted where there was no prejudice to the respondent). Respondent asserts that the trial court's failure to require DSS to file an answer and participate in the hearing, while at the same time allowing DSS to voice its support of termination, amounted to a "stealth attack" on Respondent which denied her of her right to a fair termination hearing. Furthermore, Respondent alleges that "[b]y failing to require DSS to participate [in] the termination hearing, the trial court prevented Respondent## from confronting DSS regarding its support of [Petitioners'] termination motions."
Respondent was served by Petitioners with the motions to terminate her parental rights which detailed the allegations against her. Thus, she was on notice of the specific charges against which she would be required to defend at the termination hearing. DSS's failure to file a response and its subsequent support of the motions did not prejudice Respondent's ability to adequately prepare her defense as DSS made no further allegations against Respondent. Furthermore, even though DSS was "deemed a party to the proceeding" pursuant to statute, this only subjected them to any judgment rendered therein and did not require DSS to present evidence, examine witnesses, or make an argument to the court. More importantly, Respondent was not precluded from calling DSS personnel as witnesses at the hearing in order to confront them regarding their support for the motions. Finally, to the extent Respondent complains that DSS's expression of support at the hearing for Petitioners' motions prejudiced her, Respondent's failure to object to that statement at trial waived appellate review of this issue. See N.C. R. App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion. . . ."). Therefore, we hold that any violation of N.C. Gen. Stat. § 7B-1106.1(c) was harmless under the facts of this case and Respondent's assignment of error is overruled.
The record on appeal includes additional assignments of error not addressed by Respondent in her brief to this Court. We deem them abandoned. N.C. R. App. P. 28(b)(6).
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).