NO. COA02-1580
The proceedings to terminate respondent mother's parental rights were a nullity and the
order is therefore vacated, because the trial court lacked subject matter jurisdiction over the case
based on the fact that the Department of Social Services (DSS) lacked standing to file a petition
for termination of parental rights when at the time of the filing of the petition DSS did not have
custody of the child. N.C.G.S. § 7B-1103(a).
Appeal by respondent from orders entered 9 August 2002 and 5
September 2002 by Judge R. Les Turner in Wayne County District
Court. Heard in the Court of Appeals 27 October 2003.
No brief filed on behalf of petitioner-appellee, Wayne County
Department of Social Services.
Rebekah W. Davis, for respondent-appellant.
No brief filed on behalf of the guardian ad litem.
GEER, Judge.
Respondent Tomiko Shanntell Miller, the mother of four-year-
old Devante TyQuez Miller, appeals from the termination of her
parental rights. We conclude that the Wayne County Department of
Social Services ("DSS") lacked standing to file a petition for
termination of parental rights because, at the time of the filing
of the petition, DSS did not have custody of the child. We
therefore vacate the district court's order terminating Ms.
Miller's parental rights for lack of subject matter jurisdiction.
In April 2001, DSS received a telephone call from an
individual who claimed that respondent had given Devante to Larry
and LaSonya Jackson so that the Jacksons could adopt him. Later
that month, DSS filed a petition alleging that Devante was
neglected and dependent. Although an order does not appear in the
record, the court at some point granted custody of Devante to DSS.
On 18 June 2001, the district court entered an order adjudicating
Devante as neglected and dependent, continuing custody of the child
with DSS, and authorizing DSS to place him in the Jacksons' home.
Following a permanency planning hearing on 25 October 2001,
the court in an order filed 1 February 2002 found that "Lasonya and
Larry Jackson are fit and proper persons to have custody of the
juvenile" and ordered "[t]hat the custody of Devante Miller is
placed with Lasonya and Larry Jackson." The guardian ad litem
("GAL") who had previously been appointed to represent the
interests of Devante was relieved of her duties. In subsequent
orders, the district court continued to grant custody of Devante to
the Jacksons.
On 1 March 2002, DSS filed a petition to terminate the
respondent mother's parental rights (the "TPR petition"). On 7 May
2002, respondent answered the petition, denying the allegations of
abandonment and neglect. The court appointed an attorney advocate
to represent Devante on 22 May 2002, but did not appoint a new GAL. On 11 July 2002, the court held an adjudicatory hearing on the
TPR petition. The court appointed a GAL on 29 July 2002 and held
a dispositional hearing on the TPR petition on 8 August 2002. The
court entered an order on 9 August 2002 finding that grounds to
terminate respondent's parental rights existed. On 5 September
2002, the court entered an order terminating respondent's parental
rights. Respondent filed notice of appeal on 10 September 2002.
Respondent has raised several assignments of error in this
appeal, including a contention that DSS lacked standing to initiate
a proceeding to terminate her parental rights since DSS did not
have custody of the minor child. Standing is jurisdictional in
nature and "[c]onsequently, standing is a threshold issue that must
be addressed, and found to exist, before the merits of [the] case
are judicially resolved." In re Will of Barnes, 157 N.C. App. 144,
155, 579 S.E.2d 585, 592, disc. review denied, appeal dismissed,
357 N.C. 460, __ S.E.2d __ (2003). Because we agree that DSS
lacked standing, we need not reach respondent's remaining
assignments of error.
"Standing is a requirement that the plaintiff [has] been
injured or threatened by injury or [has] a statutory right to
institute an action."
In re Baby Boy Scearce, 81 N.C. App. 531,
541, 345 S.E.2d 404, 410 (1986). In North Carolina, the GeneralAssembly has prescribed by statute who has standing to file a TPR
petition. N.C. Gen. Stat. § 7B-1103(a) provides:
(a) A petition or motion to terminate the
parental rights of either or both parents to
his, her, or their minor juvenile may
only be
filed by one or more of the following:
(1) Either parent seeking termination of
the right of the other parent.
(2) Any person who has been judicially
appointed as the guardian of the
person of the juvenile.
(3)
Any county department of social
services, consolidated county human
services agency, or licensed
child-placing agency to whom custody
of the juvenile has been given by a
court of competent jurisdiction.
(4)
Any county department of social
services, consolidated county human
services agency, or licensed
child-placing agency to which the
juvenile has been surrendered for
adoption by one of the parents or by
the guardian of the person of the
juvenile,
pursuant to G.S. 48-3-701.
(5) Any person with whom the juvenile
has resided for a continuous period
of two years or more next preceding
the filing of the petition or
motion.
(6) Any guardian ad litem appointed to
represent the minor juvenile
pursuant to G.S. 7B-601 who has not
been relieved of this
responsibility.
(7) Any person who has filed a petition
for adoption pursuant to Chapter 48
of the General Statutes.
N.C. Gen. Stat. § 7B-1103(a) (2003) (emphasis added). This Court
observed that the predecessor statute, containing language
virtually identical to the current statute, "limit[ed] the personsor agencies who may petition for termination of parental rights."
In re Manus, 82 N.C. App. 340, 342, 346 S.E.2d 289, 291 (1986)
(citing former N.C. Gen. Stat. § 7A-289.24).
DSS did not identify a factual basis for its standing in the
petition. Under the circumstances of this case, only N.C. Gen.
Stat. § 7B-1103(a)(3) potentially applies. Under that subsection,
DSS may file a TPR petition only if a court has given DSS custody
of the juvenile.
See also Manus, 82 N.C. App. at 342-343, 346
S.E.2d at 291 ("A county department of social services, to whom
custody of a child has been given by court order, has standing to
maintain such an action.").
At the time DSS filed its petition on 1 March 2002, DSS no
longer had custody of Devante. The order filed on 1 February 2002
as a result of a permanency planning hearing on 25 October 2001
stated that "the custody of Devante Miller is placed with Lasonya
and Larry Jackson." Because DSS no longer had custody of the
child, DSS lacked standing, under the plain language of N.C. Gen.
Stat. § 7B-1103(a), to file a petition to terminate respondent's
parental rights.
A North Carolina court has subject matter jurisdiction only if
the petitioner or plaintiff has standing.
Sarda v. City/County of
Durham Bd. of Adjustment, 156 N.C. App. 213, 215, 575 S.E.2d 829,
831 (2003). Further, "[i]f a court finds at any stage of the
proceedings that it lacks jurisdiction over the subject matter ofa case, it must dismiss the case for want of jurisdiction."
State
v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999).
See also Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808
(1964)
("A universal principle as old as the law is that the
proceedings of a court without jurisdiction of the subject matter
are a nullity.").
Here, because the trial court lacked subject matter
jurisdiction over the case, the proceedings to terminate
respondent's parental rights were a nullity. We therefore vacate
the order from which respondent appeals.
Vacated.
Chief Judge EAGLES and Judge HUNTER concur.
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