In re: M.T. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-385
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
IN THE MATTER OF:
M.T. and G.T. Robeson County
Nos. 12 JT 17-18
Appeal by respondent mother from order entered 16 December
2013 by Judge Herbert L. Richardson in Robeson County District
Court. Heard in the Court of Appeals 9 September 2014.
J. Hal Kinlaw, Jr. for Robeson County Department of Social
Services, petitioner-appellee.
Poyner Spruill LLP, by Daniel G. Cahill and Caroline P.
Mackie, for guardian ad litem.
Assistant Appellate Defender Joyce L. Terres for mother,
respondent-appellant.
McCULLOUGH, Judge.
Respondent mother appeals from the trial court’s order
terminating her parental rights to M.T. and G.T. We conclude
that the trial court did not have subject matter jurisdiction
over the proceedings and vacate the trial court’s order.
On 12 January 2012, Robeson County Department of Social
Services (“DSS”) filed juvenile petitions alleging M.T. and G.T.
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were neglected. On that same date, DSS obtained nonsecure
custody of the children. The trial court conducted a hearing on
23 May 2012 and the juveniles were adjudicated neglected. At a
permanency planning hearing held on 6 March 2013, the trial
court changed the permanent plan to adoption and termination of
parental rights. On 7 May 2013, DSS filed a petition to
terminate respondent’s parental rights, alleging as grounds:
(1) failure to make reasonable progress, N.C. Gen. Stat. § 7B-
1111(a)(2) (2013); and (2) failure to pay a reasonable portion
of the cost of care, N.C. Gen. Stat. § 7B-1111(a)(3) (2013).
After a hearing, the trial court found the existence of both
grounds alleged by DSS. The trial court further determined that
termination of respondent’s parental rights was in the best
interests of the children, and entered an order terminating
respondent’s parental rights. Respondent appeals.
Respondent argues the trial court lacked subject matter
jurisdiction to terminate her parental rights. Respondent
contends DSS did not properly sign and verify the initial
juvenile petitions alleging the children were neglected;
therefore, the trial court did not have jurisdiction and all of
its orders are void ab initio. Specifically, respondent
contends the initial nonsecure custody order granting DSS
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custody is void and DSS did not have standing to file the
petition to terminate respondent’s parental rights. We agree.
“The issue of subject matter jurisdiction may be considered
by the court at any time, and may be raised for the first time
on appeal.” In re T.B., 177 N.C. App. 790, 791, 629 S.E.2d 895,
896-97 (2006). “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). “[T]he petition shall be drawn by the director,
verified before an official authorized to administer oaths, and
filed by the clerk, recording the date of filing.” N.C. Gen.
Stat. § 7B-403(a) (2013). Under the Juvenile Code, a
“[d]irector” is defined as “[t]he 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. 108A-14.” N.C. Gen. Stat. § 7B-101(10)
(2013). Section 108A-14 provides that “[t]he director may
delegate to one or more members of his staff the authority to
act as his representative.” N.C. Gen. Stat. § 108A-14(b)
(2013).
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This Court has held that a petition is properly verified by
an authorized representative of the director if the petition
“contained sufficient information from which the trial court
could determine that [the signatory] had standing to initiate an
action under section 7B-403(a).” In re Dj.L., 184 N.C. App. 76,
80, 646 S.E.2d 134, 137 (2007). However, when a person signing
the juvenile petition purports to sign as the director, but the
signature is the director’s name signed by another, this Court
has held the petitions were improperly verified and insufficient
to confer subject matter jurisdiction upon the trial court. See
In re A.J.H-R., 184 N.C. App. 177, 179-80, 645 S.E.2d 791, 792-
93 (2007) (where the petitions at issue were signed as the
director with signatures of “[director’s name] by MH” and
“[director’s name] by MHenderson”).
In In re S.E.P., 184 N.C. App. 481, 646 S.E.2d 617 (2007),
the petition at issue was signed as the director with a
signature of “[director’s name] by Pam Frazier.” This Court
held:
[T]he trial court never obtained
jurisdiction in this action, and the orders
awarding DSS custody of [the children] were
void ab initio. Thus, DSS was not an agency
awarded custody of the minor children by a
court of competent jurisdiction, DSS did not
have standing to file the termination
petitions, and the trial court did not have
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subject matter jurisdiction to enter the
orders terminating Respondents’ parental
rights.
Id. at 487-88, 646 S.E.2d at 622.
In the case sub judice, the petitions were brought before
the magistrate and in the verification section of the petitions,
the director’s name is printed in block letters followed by a
slash mark and illegible initials. The “Director” box is
checked under the signature line. The petitions are clearly not
signed by the director. Moreover, contrary to DSS’s argument,
N.C. Gen. Stat. § 7B-404(a) (2013) does not grant a magistrate
independent authority apart from the director of DSS to draw and
verify the petition. Section 7B-404 provides:
(a) When the office of the clerk is closed,
a magistrate may be authorized by the
chief district court judge to draw,
verify, and issue petitions as follows:
(1) When the director of the
department of social services
requests a petition alleging a
juvenile to be abused, neglected,
or dependent, or
(2) When the director of the
department of social services
requests a petition alleging the
obstruction of or interference
with an assessment required by
G.S. 7B-302.
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We therefore hold DSS failed to properly verify the juvenile
petitions.
As in S.E.P., the trial court never obtained jurisdiction
and the order granting DSS nonsecure custody was void ab initio.
Thus, DSS was not a proper party with standing to file the
petition to terminate parental rights. See N.C. Gen. Stat. §
7B-1103(a)(3) (2013) (A petition to terminate parental rights
may be filed by “[a]ny county department of social services . .
. to whom custody of the juvenile has been given by a court of
competent jurisdiction.”). Accordingly, we must vacate the
order terminating respondent’s parental rights.
Vacated.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).