Appeal by respondent from order entered 26 April 2002 by Judge
Joseph Moody Buckner in Orange County District Court. Heard in the
Court of Appeals 19 May 2003.
Northen Blue Law Firm, by Carol J. Holcomb and Samantha H.
Cabe, for petitioner-appellee Orange County Dept. of Social
Epting & Hackney, by Karen Davidson, for petitioner-appellee
Guardian ad Litem.
Winifred H. Dillon, for respondent-appellant.
Respondent mother (Michelle McKinney) appeals from an order
terminating her parental rights in her daughter, Zoe McKinney
[hereinafter juvenile]. The factual and procedural history of this
case is summarized as follows: The juvenile was born on 28
February 2000. When the juvenile was approximately seven months
old, the Orange County Department of Social Services [hereinafter
petitioner] filed a petition alleging neglect and dependency and
naming both of the juvenile's parents as respondents. The juvenile
initially was placed with her maternal grandparents, Thomas and
Linda Elliott; however, on 13 November 2000, District Court JudgeM. Patricia DeVine entered an order placing temporary custody of
the juvenile with petitioner. The case was continued several times
during the following six months, and the juvenile's custody
remained with petitioner. On 6 March 2001, Judge DeVine entered an
order concluding in relevant part that as to respondent, the
juvenile was both a dependent juvenile within the meaning . . . of
N.C.G.S. [§] 7A-517(13)[,] and a neglected juvenile within the
meaning and scope of N.C.G.S. [§] 7A-523(21)[.] (We note that
N.C.G.S. ch. 7A was repealed effective l July 1999 and recodified
in N.C.G.S. ch. 7B, art. 11. Because all relevant proceedings in
the instant case occurred after 1 July 1999, the corresponding
provisions of N.C.G.S. ch. 7B are applicable, rather than N.C.G.S.
ch. 7A.) The trial court also concluded that custody should remain
with petitioner, and ordered that further efforts at reunification
be ceased and that petitioner file a petition to terminate parental
rights within the following sixty (60) days.
On 29 March 2001 petitioner filed a document captioned Motion
in the Cause. On 26 April 2001 respondent moved to dismiss
petitioner's motion, in part on the basis that petitioner's motion
failed to seek or request any relief. Respondent's motion was
summarily denied on 18 September 2001. On 26 April 2002 Judge
Joseph Moody Buckner entered an order terminating respondent's
parental rights in the juvenile. From this order, respondent
appeals and asserts errors not associated with subject matter
jurisdiction. Because we determine that petitioner's Motion in
the Cause was insufficient to constitute a petition for
termination of parental rights, and thus did not conferjurisdiction on the trial court, the order terminating respondent's
parental rights must be vacated.
Subject matter jurisdiction involves the authority of a court
to adjudicate the type of controversy presented by the action
before it. Haker-Volkening v. Haker
, 143 N.C. App. 688, 693, 547
S.E.2d 127, 130 (citing 1 Restatement (Second) of Judgments § 11,
at 108 (1982)), disc. review denied
, 354 N.C. 217, 554 S.E.2d 338
(2001). 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. Harris v. Pembaur
, 84 N.C. App. 666, 667, 353 S.E.2d
673, 675 (1987) (citing W. Shuford, N.C. Civil Practice and
§ 12-6 (1981)). Moreover, a
court's inherent authority
does not allow it to act where it would otherwise lack
jurisdiction. Courts have the inherent power to do only those
things which are reasonably necessary for the administration of
justice within the scope of their jurisdiction
. In re
Transportation of Juveniles
, 102 N.C. App. 806, 808, 403 S.E.2d
557, 559 (1991)
(citing 20 Am. Jur. 2d Courts § 78 (1965)). [T]he
inherent powers of a court do not increase its jurisdiction but are
limited to such powers as are essential to the existence of the
court and necessary to the orderly and efficient exercise of its
jurisdiction. Hopkins v. Barnhardt
, 223 N.C. 617, 619-20, 27
S.E.2d 644, 646 (1943). N.C.G.S. § 1A-1, Rule 2 (2001), provides in relevant part
that: There shall be in this State but one form of action for the
enforcement or protection of private rights or the redress of
private wrongs, which shall be denominated a civil action. Under
N.C.G.S. § 1A-1, Rule 3 (2001), [a] civil action is commenced by
filing a complaint with the court. Accordingly, jurisdiction is
dependent upon the existence of a valid motion, complaint,
petition, or other valid pleading:
cannot undertake to adjudicate a
controversy on its own motion; rather, it can
adjudicate a controversy
only when a party
presents the controversy to it, and then, only
if it is presented in the form of a proper
. Thus, before a court may act there
must be some appropriate application invoking
the judicial power of the court with respect
to the matter in question.
In re Transportation of Juveniles
, 102 N.C. App. at 808, 403 S.E.2d
at 558-559 (emphasis added) (where no action or proceeding had
been commenced . . . the district court was without jurisdiction to
enter an order) (citing 20 Am. Jur. 2d Courts
§ 94 (1965)).
Similarly, in Freight Carriers v. Teamsters Local
, 11 N.C. App.
159, 162, 180 S.E.2d 461, 463, cert. denied
, 278 N.C. 701, 181
S.E.2d 601 (1971), the appellee filed a document that did not
purport to be a complaint and cannot be held to be one[,] . . .
[and which] was not properly captioned as required by Rule 10(a)[,
and in which] . . . there was no demand for relief made in the
document as required by Rule 8(a) (2)[.] This Court held that no
complaint had been filed by plaintiff and thus the [court] never
acquired jurisdiction[.] Id.
at 160-61, 180 S.E.2d at 463.
To be valid, a pleading or motion must include a request ordemand for the relief sought, or for the order the party desires
the trial court to enter:
An application to the court for an order shall
be by motion which, unless made during a
hearing or trial or at a session at which a
cause is on the calendar for that session,
shall be made in writing, shall state with
particularity the grounds therefor, and shall
set forth the relief or order sought
requirement of writing is fulfilled if the
motion is stated in a written notice of the
hearing of the motion.
N.C.G.S. § 1A-1, Rule 7(b)(1) (2001) (emphasis added). See Farm
Lines, Inc. v. McBrayer
, 35 N.C. App. 34, 40, 241 S.E.2d 74, 78
(1978) (trial court erred by granting relief not sought in motion,
because motion failed to comply with requirement of Rule 7(b)(1)
that it set forth the relief or order sought).
The Rules of Civil Procedure apply to proceedings for
termination of parental rights:
The conclusion that G.S. 1A-1, Rule 17(c)(2),
Rules of Civil Procedure, applies [to
termination of parental rights proceedings] is
inescapable. All remedies in the courts of
this State divide into (1) actions or (2)
special proceedings. [N.C.]G.S. § 1-1. A
proceeding to terminate parental rights is . .
. either a civil action or a special
proceeding, . . . [and thus] the Rules apply,
G.S. 1-393, except where a different procedure
may be prescribed by statute.
In re Clark
, 303 N.C. 592, 598, n.3, 281 S.E.2d 47, 52 n. 3 (1981);
see also In re Hodge
, 153 N.C. App. 102, 105, 568 S.E.2d 878, 880
(2002) (proceedings under the Juvenile Code are civil in nature,
and accordingly, 'proceedings in juvenile matters are to be
governed by the Rules of Civil Procedure.')
(quoting Matter of
, 89 N.C. App. 171, 179, 365 S.E.2d 642, 646 (1988)); In
, 141 N.C. App. 550, 551, 539 S.E.2d 366, 368 (2000), cert.denied
, 353 N.C. 374, 547 S.E.2d 809 (2001) (because a termination
of parental rights proceeding is civil in nature, it is governed by
the Rules of Civil Procedure unless otherwise provided) (citing In
, 89 N.C. App. at 179, 365 S.E.2d at 646).
Under N.C.G.S. § 7B-200(a)(4) (2001), the district court has
exclusive, original jurisdiction over . . . [p]roceedings to
terminate parental rights. The district court has exclusive
original jurisdiction to hear and determine any petition or motion
relating to termination of parental rights[.] N.C.G.S. § 7B-1101
(2001) (emphasis added). However, in the absence of a proper
petition, the trial court has no jurisdiction to enter an order for
termination of parental rights. See In re Ivey
, 156 N.C. App. 398,
401, 576 S.E.2d 386, 389 (2003) ([T]he trial court erred in
[entering order for non-secure custody] . . . where no petition had
been filed and the trial court did not have jurisdiction over the
child.); In re Triscari Children
, 109 N.C. App. 285, 426 S.E.2d
435 (1993) (termination of parental rights order vacated for lack
of subject matter jurisdiction where petition not verified).
In the present case, an examination of petitioner's motion
reveals that it nowhere asks for the termination of respondent's
parental rights. The document is captioned generally as a Motion
in the Cause; thus, its title does not state the relief desired.
Below the caption is stated, NOW COMES [PETITIONER] BY AND THROUGH
THEIR UNDERSIGNED COUNSEL WHO RESPECTFULLY PRAYS THE COURT AS
FOLLOWS[.] Thereafter petitioner sets out seven paragraphs
containing factual allegations as follows:
1. Zoe McKinney is a juvenile who is now in
the custody of the Orange County Department of Social Services. . . .
2. The birth mother of Zoe McKinney is
Michelle McKinney. . . . The birth father is
John McKinney. . . .
3. A Permanency Planning hearing was held on
February 1, 2001 and the recommendation of the
[DSS] was that a Termination of Parental
Rights action be initiated. The Court ordered
that such an action should be filed.
4. As to Respondent Mother, she is incapable
of providing for the proper care and
supervision of the juvenile, such that the
juvenile is a dependent juvenile with the
meaning of NCGS 7B-101, and there is a
reasonable probability that such incapability
will continue for the foreseeable future. . .
a. Respondent has a long-standing
history of emotional and
psychological instability. . . .
5. As to Respondent Father and Respondent
Mother, the above named juvenile is a
neglected juvenile within the meaning and
scope of N.C.G.S. 7A-523(21) . . . [and did]
not receive proper care, supervision, or
discipline from her parents . . . .
6. No Guardian of the Person has been
appointed and on information and belief, no
other state or jurisdiction has considered the
issue of the custody of [the juvenile]. . . .
7. It is in the best interest of [the
juvenile] that the parental rights of her
birth parents be terminated.
At the conclusion of petitioner's recitation of allegations, the
motion states in all caps: Now wherefore, the [petitioner]
respectfully prays the court followed by a blank area above the
signature of counsel.
The title, or caption, of petitioner's motion does not state
that it is a petition for termination of parental rights. Nor does
the motion reference any of the statutory provisions governing
termination of parental rights. Petitioner's motion does not seek
a termination of parental rights hearing, or request that the court
issue an order of termination of parental rights. Indeed, themotion fails to request any
relief, judgment, or order from the
trial court. Nor does the petitioner's use of the word pray
establish what relief is sought, as petitioner does not pray for
any desired relief. Moreover, shortly after petitioner filed its
motion, respondent moved to dismiss petitioner's motion in the
cause in part on the basis that the motion failed to state, in
its Motion in the Cause, any claim or demand for relief whatsoever
and should therefore be dismissed.
The law is settled that jurisdiction cannot be created by the
parties' stipulation, consent, or waiver:
Respondent did not lose her right to challenge
the custody jurisdiction of the Superior Court
of Stanly County by failing to appeal from the
order[.] . . . 'Jurisdiction over the subject
matter cannot be conferred upon a court by
consent, waiver or estoppel, and therefore
failure to demur or object to the jurisdiction
In re Custody of Sauls
, 270 N.C. 180, 187, 154 S.E.2d 327, 333
(1967) (quoting 1 Strong, N.C. Index, Courts § 2 (1957)); see also
Howard v. Coach Co.
, 211 N.C. 329, 331, 190 S.E. 478, 479 (1937) (a
party cannot by consent or by appearance confer jurisdiction when
there is none in law); Lockamy v. Lockamy
, 111 N.C. App. 260, 262,
432 S.E.2d 176, 177 (1993) (the fact that both parties
participated in the equitable distribution hearing does not save
plaintiff. Jurisdiction over the subject matter cannot be
conferred upon a court by consent, waiver or estoppel.); DeGree v.
, 72 N.C. App. 668, 670, 325 S.E.2d 36, 37
parties stipulated in a pre-trial conference 'that the court has
jurisdiction of the parties and of the subject matter,' we find
such to be ineffective in conferring jurisdiction upon thecourt.),disc. review denied
, 313 N.C. 598, 330 S.E.2d 607 (1985).
Nor is evidence that a party planned to file a motion, or
announced an intention to file a complaint sufficient to confer
jurisdiction. In Lockamy
, 111 N.C. App. at 261-62, 432 S.E.2d at
177, the plaintiff alleged in her initial complaint that she
that an action for . . . equitable distribution
shall be filed when it is appropriate to do so. In a subsequent
order granting absolute divorce, the trial court stated that all
matters of . . . Equitable Distribution . . . are reserved for
future disposition in a separate pending action. Id.
because no such separate pending action existed at the time of the
judgment of divorce this Court held that the trial court lacked
subject matter jurisdiction to enter an equitable distribution
Furthermore, a trial court's general jurisdiction over the
type of proceeding or over the parties does not confer jurisdiction
over the specific action. See Everette v. Taylor
, 77 N.C. App.
442, 444, 335 S.E.2d 212, 214 (1985) (court erred in granting a
permanent injunction when the only matter before the court was a
hearing on whether to extend the temporary restraining order).
We recognize that a party's failure to brief a question on
appeal ordinarily constitutes a waiver of the issue. See In re
, 153 N.C. App. 565, 581, 571 S.E.2d 65, 75 (2002) (where
respondent-father failed to argue certain issues on appeal from
order terminating his parental rights, respondent ha[d] abandoned
these issues on appeal pursuant to N.C.R. App. P. 10(a) and28(a)). However, regardless of whether subject matter jurisdiction
is raised by the parties, this Court may review the record to
determine if subject matter jurisdiction exists in this case.
Foley v. Foley
, 156 N.C. App. 409, 412, 576 S.E.2d 383, 385 (2003).
[A] court has inherent power to inquire into, and determine,
whether it has jurisdiction and to dismiss an action ex mero motu
when subject matter jurisdiction is lacking. Reece v. Forga
N.C. App. 703, 704, 531 S.E.2d 881, 882, disc. review denied
N.C. 676, 545 S.E.2d 428 (2000).
Because we resolve this appeal on the basis of subject matter
jurisdiction, it is unnecessary for us to consider the merits of
respondent's motions for a writ of certiorari
, and to amend the
record, and these motions are therefore denied. We further
conclude that petitioner's Motion in the Cause did not constitute
a petition for termination of parental rights, and thus that the
trial court lacked jurisdiction to enter an order for termination
of parental rights. Accordingly, the order for termination of
parental rights is vacated without prejudice to petitioner's right
to bring a proper petition before the court.
Chief Judge EAGLES and Judge BRYANT concur.
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