In re S.A.A. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1357
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
In the Matter of:
Durham County
No. 11 J 108
S.A.A.
Appeal by respondent-mother from order entered 30 August
2013 by Judge William A. Marsh, III, in Durham County District
Court. Heard in the Court of Appeals 31 March 2014.
Assistant County Attorney Bettyna Belly Abney for Durham
County Department of Social Services.
Peter Wood for respondent-mother.
Parker Poe Adams & Bernstein LLP, by Erica R. Messimer, for
the guardian ad litem.
ERVIN, Judge.
Respondent-Mother Donna F. appeals from an order
terminating her parental rights in her minor child, S.A.A.1 On
appeal, Respondent-Mother contends that the trial court’s order
should be vacated for lack of jurisdiction over the subject
matter of this case as the result of deficiencies in the
1
S.A.A. will be referred to throughout the remainder of this
opinion as “Sally,” which is a pseudonym used for ease of
reading and to protect the juvenile’s privacy.
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juvenile petition with which the underlying abuse and neglect
proceeding had been initiated. After careful consideration of
Respondent-Mother’s challenge to the trial court’s order in
light of the record and the applicable law, we conclude that the
trial court’s order should be affirmed.
I. Factual Background
On 5 April 2011, the Durham County Department of Social
Services filed a petition alleging that Sally was an abused and
neglected juvenile and took her into its custody on the basis of
the issuance of a non-secure custody order. On 19 December
2011, Judge Brian C. Wilks entered an order finding that Sally
was a neglected juvenile and directing Respondent-Mother to
comply with all recommended mental health services, participate
in parenting and domestic violence education, and obtain and
maintain stable housing and employment.
After efforts to reunify Sally with Respondent-Mother
proved unsuccessful, DSS filed a petition seeking to have
Respondent-Mother’s parental rights in Sally terminated on the
grounds of neglect, dependency, and failure to make reasonable
progress in correcting the conditions that had led to Sally’s
removal from Respondent-Mother’s home. After a two-day hearing
held in June and July 2013, the trial court entered an order
terminating Respondent-Mother’s parental rights in Sally on the
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basis of determinations that all three grounds for termination
alleged in the DSS petition existed and that termination of
Respondent-Mother’s parental rights in Sally would be in Sally’s
best interests. Respondent-Mother noted an appeal to this Court
from the trial court’s order.
II. Subject Matter Jurisdiction
In her sole challenge to the trial court’s termination
order, Respondent-Mother argues that the trial court lacked
jurisdiction over the subject matter of this case on the grounds
that the initial abuse and neglect petition had not been
properly verified. More specifically, Respondent-Mother
contends that the initial abuse and neglect petition had not
been verified as required by N.C. Gen. Stat. § 7B-403 since it
had not been signed (1) by an authorized person (based upon a
contention that the identity of the individual verifying the
petition was unclear) (2) before an individual authorized to
administer oaths (based upon a contention that the signature of
the person who witnessed the affiant’s signature on the
verification was illegible) and (3) that these defects in the
underlying abuse and neglect petition deprived the trial court
of jurisdiction over the subject matter of the termination case.
We do not find Defendant’s arguments persuasive.
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“A trial court’s subject matter jurisdiction over all
stages of a juvenile case is established when the action is
initiated with the filing of a properly verified petition.” In
re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006).
“Because litigants cannot consent to jurisdiction not authorized
by law, they may challenge jurisdiction over the subject matter
. . . at any stage of the proceedings, even after judgment.”
Id. at 595, 636 S.E.2d at 793 (citation and quotation marks
omitted; omission in original). A signed verification that was
witnessed by an authorized official is, however, valid until it
has been successfully impeached. Skinner v. Skinner, 28 N.C.
App. 412, 414, 222 S.E.2d 258, 260-61, disc. review denied, 289
N.C. 726, 224 S.E.2d 674 (1976); see also Moore v. Moore, 108
N.C. App. 656, 659, 424 S.E.2d 673, 675 (stating that “North
Carolina recognizes a presumption in favor of the legality of an
acknowledgment of a written instrument by a certifying
officer”), aff’d, 334 N.C. 684, 435 S.E.2d 71 (1993). “In our
view, matters outside the pleadings . . . may be considered and
weighed by the court in determining the existence of
jurisdiction over the subject matter.” Tart v. Walker, 38 N.C.
App. 500, 502, 248 S.E.2d 736, 737 (1978).
The argument advanced in Respondent-Mother’s brief assumes
the existence of various irregularities in the manner in which
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the underlying abuse and neglect petition was signed and
verified without identifying any evidence tending to actually
impeach the validity of the challenged actions. As a result,
Respondent-Mother’s argument to the contrary notwithstanding, we
are required to assume that the underlying abuse and neglect
petition was properly signed and verified. In addition, a
careful examination of the record establishes that Phanta
Diabate, a social worker employed by DSS, signed the initial
abuse and neglect petition and swore to its accuracy before
Samuel L. Biers, a magistrate. As a result of the fact that Mr.
Biers was authorized to administer oaths and assist in the
verification of pleadings, N.C. Gen. Stat. § 1-148; N.C. Gen.
Stat. §§ 7A-292(1) and (5), and the fact that Respondent-Mother
has not shown that Ms. Diabate lacked “sufficient knowledge or
information to believe that a case has arisen that invoke[d] the
juvenile jurisdiction of the court” or was not authorized in the
course and scope of her employment with DSS to file the
underlying abuse and neglect petition, we hold that the petition
in question was properly signed and verified and that this
petition sufficed to give the trial court jurisdiction over the
subject matter of this case.
III. Conclusion
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Thus, for the reasons set forth above, Respondent-Mother’s
sole challenge to the trial court’s termination order lacks
merit. As a result, the trial court’s order should be, and
hereby is, affirmed.
AFFIRMED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).