DocketNumber: No. COA04-1356.
Citation Numbers: 619 S.E.2d 525, 173 N.C. App. 541
Judges: Hunter, Levinson
Filed Date: 10/4/2005
Status: Precedential
Modified Date: 1/13/2023
Renee Browe ("respondent-mother") appeals a custody review order ("Order") entered on 16 June 2004 as to the minor child ("TRP"). The issues before the Court are: (I) Whether the trial court lacked jurisdiction to enter the Order, because the initial juvenile petition was not verified as required by law, and (II) whether the trial court erred in ordering the physical custody of the minor child to her father, Ronnie Parks ("Parks"), when it failed to make findings that the minor child would receive proper care and supervision in a safe home.
On 21 April 2003, respondent-mother and her live-in boyfriend, Michael Russell ("Russell"), were charged with operating a methamphetamine laboratory in the bathroom of their home. Both pled guilty to several felony charges and received probationary sentences.
Respondent-mother and her three children had been living with Russell for several months prior to the discovery of the laboratory. At the time of the discovery of the laboratory by police, TRP was present in the home. The chemicals used in the methamphetamine laboratory were found to be volatile and explosive, and a danger to the three children living in the home.
On 22 August 2003, Wilkes County Department of Social Services ("DSS") filed a Juvenile Petition ("Petition") alleging that TRP, a minor child, was a neglected juvenile, in that the juvenile "does not receive proper care, supervision, or discipline from the juvenile's parent" and "lives in an environment injurious to the juvenile's welfare." Furthermore, DSS recommended that it would be in TRP's best interest for DSS to have physical and legal custody of the child and for TRP to be placed with her maternal aunt.
Although the Petition was not verified by an authorized representative of DSS, it was notarized by Linda Garrett and submitted to the trial court. On 23 February 2004, the trial court, finding that it had jurisdiction over the case, concluded that there was clear and convincing evidence that TRP was in a state of neglect. The trial court placed legal and physical custody of the minor child with DSS after concluding it would be in TRP's best interest. The trial court also ordered that Parks submit to a mental health evaluation before being allowed overnight visits with TRP. Additionally, the trial court ordered that respondent-mother sign all releases and consent forms required by DSS and be more cooperative with DSS.
On 24 May 2004, a review hearing was held pursuant to N.C. Gen.Stat. § 7B-906 for the purposes of reviewing the custodial status of TRP. The trial court found that respondent-mother was more cooperative with DSS, but was currently pregnant with Russell's child, unemployed, and living in a mobile home *527owned by Russell's family. The trial court also found that Russell was currently incarcerated due to probation violations. Additionally, the trial court found that Parks was cooperative with DSS, receiving counseling, and had passed seven drug tests. The trial court also found that Parks had a full-time and part-time job.
On 16 June 2004, the trial court entered an Order concluding that it would be in the best interest of TRP to remain in the legal and physical custody of DSS. However, the trial court also concluded that "it appears that return of the child to her father's home is in her best interest in the near future[.]" Additionally, the trial court concluded that when school started, TRP's physical custody would be transferred to Parks upon the express conditions that: (1) he continue counseling, (2) remain alcohol and drug free, and (3) submit to DSS a written plan for daycare. Respondent-mother appeals from this Order.
In her first assignment of error, respondent-mother contends that the trial court lacked jurisdiction to enter the review order since the initial juvenile petition was not verified as required by law. We agree.
"Jurisdiction of the court over the subject matter of an action is the most critical aspect of the court's authority to act. Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question[, and] . . . is conferred upon the courts by either the North Carolina Constitution or by statute."
In re McKinney,
"[A] court's inherent authority does not allow it to act where it would otherwise lack jurisdiction." In re McKinney,
The dissent contends that as respondent-mother appeals from a review order and not the initial custody order in this matter, the right to challenge subject matter jurisdiction has been waived, citing Sloop v. Friberg,
Such cases are readily distinguishable from the instant case, which does not involve a consent judgment entered at the behest of both parties, but rather concerns adversarial State action to remove a child from its parent on the grounds of dependency, neglect, or abuse. Here, respondent-mother raises a substantive challenge to the trial court's subject matter jurisdiction in this case, based on the lack of verification of the original petition. "In juvenile actions, the requirement that petitions be verified is `essential to both the validity of the petition and to establishing the jurisdiction of the court.'" In re Triscari Children,
"In the absence of a statutory requirement or rule of court to the contrary, it is ordinarily not necessary to the validity of a petition that it be signed or verified." In re Green,
A juvenile action, including a proceeding in which a juvenile is alleged to be abused or neglected, is commenced by the filing of a petition. N.C. Gen.Stat. § 7B-405 (2003). The pleadings relevant to an abuse, neglect, and dependency action are the petition, and it is specifically required by statute that "the 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) (2003).
In Green, this Court held that "the failure of the petitioner to sign and verify the petition before an official authorized to administer oaths rendered the petition fatally deficient and inoperative to invoke the jurisdiction of the court[.]" Green,
The Juvenile Code requisites that the petition be signed and verified are therefore essential to both the validity of the petition and to establishing the jurisdiction of the court. The primary purpose to be served by signature and verification on the part of the petitioner is to obtain the written and sworn statement of the facts alleged in such official and authoritative form as that it may be used for any lawful purpose, either in or out of a court of law. Under the Juvenile Code, these requirements also serve to invoke the jurisdiction of the court.
Verification requires a petitioner to attest "that the contents of the pleading verified are true to the knowledge of the person making the verification[.]" N.C. Gen.Stat. § 1A-1, Rule 11(b) (2003). Verification is defined as "[a] notarial act in which a notary certifies that a signer, whose identity is personally known to the notary or proven on the basis of satisfactory evidence, has, in the notary's presence, voluntarily signed a document and taken an oath or affirmation concerning the document." N.C. Gen.Stat.
*529§ 10A-3(9) (2003) (emphasis added). Our Supreme Court has held that notarization is insufficient to constitute verification. See Martin v. Martin,
Here, the Petition was notarized, the notarization reading "[s]worn and subscribed to before me." However, the Petition was neither signed nor verified by the director or an authorized representative of the director. Thus, the Petition requesting the juvenile be adjudicated neglected was not in compliance with the statute requiring that all Petitions be verified pursuant to N.C. Gen.Stat. § 7B-403, and the trial court, therefore, lacked subject matter jurisdiction to adjudicate this matter.
DSS, however, relying on In re Mitchell,
Such reliance on Mitchell is misplaced. Mitchell does not hold that petition formalities are unnecessary to obtain jurisdiction, but rather discusses a further procedural requirement to establish subject matter jurisdiction in a juvenile action. Id. at 433,
We share the dissent's concerns for the welfare of TRP, and would caution DSS to be observant as to the statutory requirements for the filing of juvenile petitions so as to avoid future errors of this nature. However, we are bound by the requirements established by our legislature and the prior decisions of this Court, which reflect a need to ensure that petitions to remove a child from the custody of their guardians be filed only when the underlying facts have been verified by the appropriate authorities. Therefore, under Green and Triscari, the failure of the director to sign and verify the Petition before the notary rendered the Petition fatally deficient and inoperative to invoke the jurisdiction of the court. As there is no evidence in the record suggesting later filings sufficient to invoke jurisdiction as to the review order, the trial court erred in proceeding on the matter due to lack of subject matter jurisdiction.
As the trial court lacked jurisdiction to enter the contested Order, we do not reach respondent-mother's remaining assignment of error.
Because the Petition was not duly verified as required by law, we conclude that the trial court lacked subject matter jurisdiction. Therefore, the Order of the trial court must be vacated and the case dismissed.
Vacated and dismissed.
Judge McGEE concurs.
Judge LEVINSON dissents in a separate opinion.