In re D.F.S. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-913
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF:
D.F.S. and J.I.M., Macon County
Nos. 12 JA 1-2
Appeal by respondent mother from order entered 21 December
2012 by Judge Donna F. Forga in Macon County District Court.
Heard in the Court of Appeals 27 January 2014.
Elizabeth Myrick Boone for petitioner-appellee Macon County
Department of Social Services.
Ewing Law Firm, PC, by Robert W. Ewing for respondent-
appellant mother.
Ellis & Winters, LLP, by Lauren A. Miller, for guardian ad
litem.
STEELMAN, Judge.
Where the juvenile petition is verified before an officer
authorized to administer oaths, and a person signs as an
authorized representative of the DSS director and checks the
appropriate box on the AOC form so indicating, the petition
properly confers jurisdiction upon the trial court. The
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uncontested findings of fact support the trial court’s
conclusion that reunification efforts with mother should be
ceased. Mother has not properly petitioned for a writ of
certiorari to review the visitation provisions of the order.
I. Factual and Procedural Background
V.M. (mother) is the mother of the minor children D.F.S.
and J.I.M., born in 1997 and 1999. On 18 January 2012 the Macon
County Department of Social Services (DSS) (petitioner) filed
petitions alleging that the juveniles were neglected and
dependent. The petitions asserted that mother had choked D.F.S
and given her a black eye, and had told J.I.M. to lie to DSS
about the cause of D.F.S’s injuries; that J.I.M. had also been
subjected to inappropriate discipline; that mother behaved
erratically and had twice been subject to commitment
proceedings; and that she had admitted using illegal drugs and
had tested positive for the presence of marijuana, opiates, and
methamphetamine. On the same day, petitioner obtained nonsecure
custody orders placing the children in petitioner’s custody.
A hearing was conducted on 9 April 2012, and on 11 May 2012
District Court Judge Roy Wijewickrama entered an order
adjudicating the juveniles to be neglected. In its disposition
order, the court continued the juveniles’ custody with DSS,
directed that visitation should be supervised, and ordered
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mother to maintain weekly contact with DSS, keep DSS informed of
her address, telephone number, and employment, complete anger
management, substance abuse, and parent education programs,
remain under the care of a mental health provider, provide DSS
with a list of her medications, remain drug free and submit to
drug screens by DSS, provide DSS with proof of housing and
obtain a stable source of income, attend family counseling, and
fully cooperate with DSS and child support enforcement
authorities.
The matter came on for a review and permanency planning
hearing on 6 December 2012. In an order entered 21 December
2012, the trial court relieved DSS of further efforts towards
reunification and changed the permanent plan for the juveniles
to guardianship with a court-approved caretaker or APPLA
(“another planned permanent living arrangement”).
Mother appeals.
II. Jurisdiction
In her first argument, mother contends that the order
relieving the Macon County DSS from further efforts to achieve
reunification is invalid, because the trial court lacked subject
matter jurisdiction over the proceedings in that “the underlying
juvenile petitions were not signed by the director or an
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authorized representative of the Macon County Department of
Social Services.” This argument is without merit.
“This Court recognizes its duty to insure subject matter
jurisdiction exists prior to considering an appeal.” In re
E.T.S., 175 N.C. App. 32, 35, 623 S.E.2d 300, 302 (2005) (citing
In re N.R.M., T.F.M., 165 N.C. App. 294, 296-98, 598 S.E.2d 147,
148-49 (2004)). “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. . . . [S]ubject matter jurisdiction over juvenile
actions is contingent upon verification of the petition.” In re
T.R.P., 360 N.C. 588, 593-94, 636 S.E.2d 787, 792 (2006)
(citations omitted). Upon review of the petitions filed in this
case, we conclude that they were properly verified.
“N.C. Gen. Stat. § 7B-403(a) (2005) provides that a
juvenile petition alleging dependency, abuse, or neglect ‘shall
be drawn by the director, verified before an official authorized
to administer oaths, and filed by the clerk, recording the date
of filing.’” In re Dj.L., D.L. & S.L., 184 N.C. App. 76, 79, 646
S.E.2d 134, 137 (2007). N.C. Gen. Stat. § 7B-101 (10) defines
“director” as the “director of the county department of social
services in the county in which the juvenile resides or is
found, or the director’s representative as authorized in G.S.
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108A-14.” N.C. Gen. Stat. § 108A-14(b) (2013) authorizes the
director of a county department of social services to “delegate
to one or more members of his staff the authority to act as his
representative.” Accordingly, a DSS director may “delegate to
one or more members of his staff the authority to act as his
representative” to file an abuse, neglect, and dependency
petition. Dj.L., 184 N.C. App. at 79, 646 S.E.2d at 137(internal citations and quotation marks omitted).
N.C. Gen. Stat. § 1A-1, Rule 11(b) provides that “[i]n any
case in which verification of a pleading shall be required by
these rules or by statute, it shall state in substance that the
contents of the pleading verified are true to the knowledge of
the person making the verification, except as to those matters
stated on information and belief, and as to those matters he
believes them to be true. Such verification shall be by
affidavit of the party[.]” “[If] a pleading is statutorily
required to be verified, that pleading ‘must be sworn to before
a notary public or other officer of the court authorized to
administer oaths.’ ‘Any officer competent to take the
acknowledgment of deeds, and any judge or clerk of the General
Court of Justice, notary public, in or out of the State, or
magistrate, is competent to take affidavits for the verification
of pleadings, in any court or county in the State, and for
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general purposes.’” Fansler v. Honeycutt, __ N.C. App. __, __,
728 S.E.2d 6, 8 (2012) (quoting 1 G. Gray Wilson, North Carolina
Civil Procedure § 11-7, at 196 (2d ed. 1995), and N.C. Gen.
Stat. § 1-148).
In this case, petitioner used AOC Form J-130 for
preparation of the juvenile petitions. This form contains a
verification section which provides for the petitioner to sign
his or her name and to swear that
Being first duly sworn, I say that I have
read the allegations in the petition and
that the same are true to my own knowledge,
except as to those matters alleged upon
information and belief, and as to those, I
believe them to be true.
Immediately below this averment is the dated signature of a
Deputy Clerk of Superior Court for Macon County, an official who
is authorized to administer oaths for purposes of verification,
and the signature of Lisa Hilliard, who signed the petition
“Lisa Hilliard: Jane C. Kimsey” and checked the box marked
“Authorized Representative of Director.” We conclude that
petitioner complied in every respect with the statutory
requirements for verification.
On 18 October 2013, petitioner filed a motion asking this
Court to take judicial notice of the status of Ms. Kimsey as DSS
director and Ms. Hilliard as her authorized representative. We
conclude, however, that it is not necessary for us to take
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judicial notice of these facts. A signed verification, witnessed
by an authorized official, is valid unless evidence in the
record impeaches the verification. 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). Mother has not identified any
evidence that might impeach the validity of the verification.
For example, she does not dispute that Ms. Kimsey was the DSS
director or that Ms. Hilliard was her duly authorized
representative. We hold that where a petition is (1) verified
before an officer who is entitled to administer oaths and who
checks one of the boxes indicating the source of his or her
authority and (2) is signed by an individual as the authorized
representative of the director, who checks the box for
“Authorized Representative” that (3) the petition is properly
verified. We conclude that the petitions conferred subject
matter jurisdiction upon the trial court and that mother is not
entitled to relief on this basis.
III. Cessation of Reunification
In her second argument, mother contends that the trial
court abused its discretion by relieving DSS of further efforts
to reunify the family, given that mother had made some progress
in complying with her case plan. We disagree.
A. Standard of Review
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“‘This Court reviews an order that ceases reunification
efforts to determine whether the trial court made appropriate
findings, whether the findings are based upon credible evidence,
whether the findings of fact support the trial court’s
conclusions, and whether the trial court abused its discretion
with respect to disposition.’ Findings of fact which are not
challenged on appeal as lacking adequate evidentiary support are
deemed supported by competent evidence and are binding for
purposes of appellate review.” In re D.E.G., __ N.C. App. __,
__, 747 S.E.2d 280, 283 (2013) (quoting In re C.M., 183 N.C.
App. 207, 213, 644 S.E.2d 588, 594 (2007) (internal citation
omitted), and citing Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991).
B. Analysis
A court may direct DSS to cease further reasonable efforts
toward reunification if it finds “[s]uch efforts clearly would
be futile or would be inconsistent with the juvenile's health,
safety, and need for a safe, permanent home within a reasonable
period of time[.]” N.C. Gen. Stat. § 7B-507(b)(1) (2013). In
this case, the trial court made sufficient findings of fact,
supported by competent evidence, to support its finding that
further efforts toward reunification would be futile. The trial
court found, in relevant part, that:
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. . .
29. That pursuant to N.C. General Statutes §
7B-507, DSS has made reasonable efforts to .
. . reunify this family[.] . . . Some of
these reasonable efforts include: providing
Medicaid, providing food stamps . . .
meeting with the Respondent mother on
numerous occasions prior to the filing of
the juvenile petitions in attempts to engage
the Respondent mother in a case plan for the
family, facilitating visitations, making
referrals for the minor children for mental
health counseling, making referrals to the
Respondent mother . . . for mental health
services and treatment, developing a case
plan with the Respondent mother, monitoring
visitations, linking the Respondent mother
with services regarding counseling,
parenting classes, therapy, drug testing,
and case management[.]
30. . . . That there are no appropriate
relatives available for placement of the
minor children at this time.
31. That return of the minor children to
their home would be contrary to the minor
children’s welfare, safety, and best
interest at this time.
. . .
35. That the minor children have expressed
to the social worker that they are afraid to
return to the home of the Respondent mother.
. . .
43. That the Respondent mother did sign a
case plan with DSS on April 13, 2012. She
does maintain weekly contact with DSS and
does maintain face to face monthly contact
with DSS. She keeps DSS informed of her
contact information and status. She has
attended parenting classes and sees a
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counselor for anger management, individual
counseling, and substance abuse. The
Respondent mother currently lives in a one
bedroom apartment after being evicted from
her previous home by summary ejectment in
July 2012. In that matter, Respondent mother
did appear in Court and did not dispute the
details of the ejectment.
44. That on October 8, 2012, DSS social
worker Stacey Jenkins left the Respondent
mother a voice mail requesting she submit to
a random drug screen; later that day the
Respondent mother left social worker Jenkins
a voice mail indicating that she was
available later that day; because of the
time frame before which the Respondent
mother made herself available for the
requested screen, DSS deemed the Respondent
mother did not appear for the screen. The
Respondent mother is not required to take
random drug screens for her substance abuse
counseling.
45. That despite her appointments/sessions
with Mr. Ross, the Respondent mother has
failed to demonstrate an ability to parent
the children and has failed to prove to the
satisfaction of the Court that she has
addressed her anger management issues.
. . .
48. That the Respondent mother has worked
with her counselor in efforts to increase
her ability to deal with the minor children
but her contact with the children has not
demonstrated that ability.
49. That the Respondent mother has had 14
appointments with Appalachian Counseling;
ten were completed, two were rescheduled by
Appalachian, and two were cancelled by the
Respondent mother. That there needs to be
one more session to complete anger
management, but the substance abuse and
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parenting sessions are ongoing.
50. That the issue of discipline has been a
small part of the Respondent mother’s
counseling.
51. That the Respondent mother has had
supervised visitations with the minor
children[.] . . . Visitations were ended
with [D.F.S.] on September 24, 2012, on the
recommendations of Ms. Holmes, [D.F.S.’s]
therapist. Prior to that time, there were a
number of visits that ended with [D.F.S.]
due to the Respondent mother and [D.F.S.]
regarding typical teenage issues such as
attire, cheerleading, school, etc., but the
general underlying problem between [D.F.S.]
and the Respondent mother is a failure to
communicate. The Respondent mother’s
counseling has been unsuccessful in trying
to address that issue. The Respondent mother
lacks the ability to effectively deal with
the typical teen age problems of the minor
children.
52. That visitations between [J.I.M.] and
the Respondent mother have been appropriate
for the most part; that they get along well
and can discuss issues effectively but that
the discussion of the progress of this case
has caused anxiety on [J.I.M.’s] part.
53. That the Respondent mother is more short
and more critical with [D.F.S.] than she is
with [J.I.M.]. On September 17, 2012, the
Respondent mother told [D.F.S.] that she
didn’t have to come home.
54. That the Respondent mother loves both
children deeply and both children love their
mother. That while they desire to be with
their mother, the minor children do not feel
safe being with their mother at this time.
Both children expressed a desire to have a
relationship with their mother but do not
want to live with their mother. Both
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children do not believe that their mother
has the ability to effectively parent them
at this time.
55. That a difficulty in communication
between DSS and the Respondent mother has
created a situation where the minor child
[D.F.S.] attempts to communicate information
with the Respondent mother that increases
the anxiety in their relationship.
56. That the family therapy visits that were
previously ordered by the Court between the
minor children and the Respondent mother
were stopped by the therapist between the
Respondent mother and [J.I.M.] despite the
Court not specifically allowing those
sessions to stop. The therapists
recommendations regarding family therapy in
the prior Orders referred to [D.F.S.].
57. That while the minor children love their
mother, neither feels it is appropriate for
them to go home at this time.
58. That the permanent plan of reunification
is no longer an appropriate plan for the
minor children.
59. That the minor children continue to
require more adequate care than the
Respondent parents can provide.
60. That it is not possible for the minor
children to be returned to their own home at
this time and it is not in their best
interest to do so at this time.
On appeal, mother directs our attention to evidence that might
have supported different findings of fact, but challenges the
evidentiary support for only two of the trial court’s findings,
Nos. 48 and 51. As discussed above, unchallenged findings are
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binding on appeal. We conclude that the trial court’s
unchallenged findings of fact support its conclusion that
further efforts at reunification would be futile. The trial
court’s findings of fact describe a situation in which
respondent made some efforts toward completing components of her
case plan, but was unable to demonstrate progress in adequately
communicating with or caring for the juveniles. “‘An abuse of
discretion occurs when the trial court’s ruling is so arbitrary
that it could not have been the result of a reasoned decision.’”
D.E.G., __ N.C. App. at __ 747 S.E.2d at 283 (quoting In re
Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)
(internal quotations omitted). Given the trial court’s extensive
findings describing respondent’s lack of progress, we cannot say
that the court’s ruling was not the result of a reasoned
decision, and hold that the trial court did not abuse its
discretion.
IV. Visitation
Finally, in a footnote in her brief, respondent requests
that we treat her brief as a petition for writ of certiorari in
order to permit review of her visitation argument. Respondent’s
attempt to request certiorari through a footnote, however, does
not comply with the requirements of N.C.R. App. P. 21(c), and
she has not made any argument that her request for review falls
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within N.C.R. App. P. 21(a). Therefore, we decline to exercise
our discretion to allow respondent’s purported petition or to
use N.C.R. App. P. 2 to suspend the requirements of Rule 21 in
order to expand the scope of appellate review. State v. McCoy,
171 N.C. App. 636, 639, 615 S.E.2d 319, 321, appeal dismissed,
360 N.C. 73, 622 S.E.2d 626 (2005).
AFFIRMED.
Judges HUNTER, Robert C., and BRYANT concur.
Report per Rule 30(e).