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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: S.D.A., R.G.A.,V.P.M., and J.L.M., Minor
Filed: 17 May 2005
Child Abuse and Neglect--subject matter jurisdiction--investigation did not indicate abuse
The trial court lacked subject matter jurisdiction in a child abuse and neglect case based
on the failure of Rutherford County DSS to follow its statutorily imposed duties under N.C.G.S.
§ 7B-302 prior to filing the petitions, and the trial court's orders are vacated, because: (1)
following an investigation and follow-up investigation at the request of Rutherford County DSS,
Lincoln County DSS stated its investigation revealed no evidence the children were neglected or
abused by their legal custodians or any other member of the pertinent church; (2) nothing in the
record indicates any additional reports were made or additional investigations conducted by
Rutherford County DSS indicating that abuse or neglect had occurred; and (3) Rutherford County
DSS's contention that the abuse and neglect alleged in the petitions involved reports of abuse and
neglect by the mother and not the legal custodians conflicts with the central allegation in the
petitions that the mother abused and neglected the children by leaving them in the care of the
legal custodians at the church where they were allegedly subjected to harmful practices.
Appeal by Intervenors from orders entered 7 October 2003 by
Judge C. Randy Pool in District Court, Rutherford County. Heard in
the Court of Appeals 11 February 2005.
Dameron Burgin & Parker, P.A., by Phillip T. Jackson; and
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., by
Eric M. Lieberman, David B. Goldstein, and Roger Bearden, pro
hac vice, for intervenor-appellants.
Marshall & Roth, P.L.L.C., by Philip J. Roth, for S.D.A. and
Hamrick, Bowen, Mebane, Greenway & Lloyd, LLP, by Bradley K.
Greenway, for Rutherford County Department of Social
(See footnote 1)
Smathers & Norwood, by E. Robert Hensley, Jr., for the
(See footnote 2)
It is axiomatic that a trial court must have subject matter
jurisdiction over a case to act in that case. In re N.R.M.,
T.F.M., 165 N.C.App. 294, 598 S.E.2d 147 (2004). Here, S.D.A.,
R.G.A., and the Covingtons contend that because the Lincoln County
Department of Social Services (DSS) found no evidence of abuse and
neglect, Rutherford County DSS, which referred the matter to the
Lincoln County DSS for investigation due to a conflict, lacked the
power to invoke the jurisdiction of the trial court under sections
7B-302(c) and (d) of the North Carolina General Statutes. We agree
and therefore vacate the trial court's orders.
The record reflects that in 2000, a Florida court removed the
four minor children in this matter from the custody of their mother
due to neglect and substance abuse. The mother eventually moved
from Florida to Spindale, North Carolina to reside with her sister,
and soon thereafter the Florida court allowed the children to move
to North Carolina as well.
In North Carolina, the mother and the children began attending
religious services at the Word of Faith Fellowship (Word of
Faith), an evangelical Christian church. The children were
enrolled in the Word of Faith Christian School, a private Christian
day school. At the church and school, the children participated in
religious practices, including strong prayer, or blasting, and
discipleship, or isolation. Strong prayer refers to a strongdemonstration of God and driving out of devils through screaming
prayer. Discipleship refers to a practice where church members
spend time alone, during which they may pray and listen to/watch
tapes containing religious teachings. The record indicates that
discipleship is also used for behavior modification and involves
moving disruptive children from the regular classroom setting into
another room where they may receive religious instruction.
The mother obtained employment with Kent Covington, a Word of
Faith leader. Mr. Covington and his wife, Brooke, became involved
with the mother and her children in February 2001.
In September 2002, the mother chose to leave Spindale because
she felt that continuing as a member of Word of Faith was abusive
and neglectful of the children. After meeting resistence at Word
of Faith, the mother sought the assistance of the Rutherford County
Sheriff's Department and was referred to Rutherford County DSS.
Rutherford County DSS completed an assessment and recorded that the
mother admitted to inappropriate discipline and a history of drug
abuse that affected her ability to supervise and care for the
children. The mother agreed voluntarily to place her children with
the Covingtons until Rutherford County DSS deemed it appropriate to
return the children. The mother then signed an agreement giving
the Covingtons custody of the children. However, in December 2002,
the mother appeared unannounced at the Covingtons' residence and
demanded custody of the children. Her request was denied.
On 23 December 2002, the Covingtons filed an action in
District Court, Rutherford County to confirm their status as legalcustodians of the children. The court entered an ex parte order,
confirmed by a temporary order of custody on 31 December 2002,
granting the Covingtons custody.
On 23 December 2002 and 4 January 2003, Rutherford County DSS
received reports alleging that the children were being abused
and/or neglected through, inter alia, corporal punishment and
religious practices, particularly blasting and isolation.
Rutherford County DSS referred the reports to Lincoln County DSS
for an unbiased investigation into the allegations. Lincoln County
DSS investigated the reports and, in March 2003, upon request by
Rutherford County DSS due to new allegations, conducted additional
investigation into particular Word of Faith practices. On 3 April
2003, Lincoln County DSS closed its investigation and sent its
decision by letter to Rutherford County DSS, stating: [We] have
completed our out-of-county investigation. The team decision was
to unsubstantiate neglect. During the investigation there has been
no evidence that [the four children] are neglected/abused by Brooke
and Kent Covington or by any other member of Word of Faith.
Notwithstanding Lincoln County DSS's unsubstantiation of the
abuse and neglect allegations, on 16 May 2003, Rutherford County
DSS filed four petitions alleging that the minor children were
abused and neglected from June 2000 through present because,
inter alia, [b]y returning her children to [Word of Faith's]
influence . . . and surrendering custody to the Covingtons, the
mother knowingly and willfully exposed her children to continued
improper discipline and neglect. The petitions contained detailedallegations of blasting and isolation.
By order filed 9 July 2003, the Covingtons were allowed to
intervene as parties, the trial court finding it is in the best
interests of said minor children that [the Covingtons] should be
subject to any court order entered in this case, and that [the
Covingtons] are necessary parties to this action . . .. On 21
August 2003, the trial court concluded that the children were
abused and neglected and entered four separate orders on 7 October
2003 adjudicating abuse and neglect, ordering the removal of the
children from the Covingtons' custody, and placing them in
Rutherford County DSS custody. The Covingtons appeal from these
The dispositive issue on appeal is whether the trial court
lacked subject matter jurisdiction over this matter because
Rutherford County DSS failed to follow its statutorily imposed
duties prior to filing the petitions.
(See footnote 3)
The issue of subject matterjurisdiction may be raised at any time, and may be raised for the
first time on appeal. In re J.B.
, 164 N.C. App. 394, 396, 595
S.E.2d 794, 795 (2004); McCombs v. N.C. Dep't of Human Res.
N.C. App 402, 404, 390 S.E.2d 761, 762 (1990). Here, the issue of
subject matter jurisdiction was brought to this Court's attention
by counsel for two of the children and the Covingtons. However, a
court has inherent power to inquire into, and determine, whether it
has jurisdiction and to dismiss an action ex mero motu
matter jurisdiction is lacking.' In re N.R.M., T.F.M.
, 165 N.C.
App. at 297, 598 S.E.2d at 149 (quoting Reece v. Forga
, 138 N.C.
App. 703, 704, 531 S.E.2d 881, 882, disc. review denied
, 352 N.C.
676, 545 S.E.2d 428 (2000)).
District courts have exclusive jurisdiction over any case
involving a juvenile who is alleged to be abused, neglected, or
dependent. N.C. Gen. Stat. § 7B-200 (2003). However, a trial
court's general jurisdiction over the type of proceeding or over
the parties does not confer jurisdiction over the specific action.
In re McKinney
, 158 N.C. App. at 447, 581 S.E.2d at 797 (citation
omitted). '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.' Id
at 444, 581 S.E.2d
at 795 (quoting In re Transp. of Juveniles
, 102 N.C. App. 806, 808,
403 S.E.2d 557, 558 (1991)).
North Carolina General Statutes section 7B-302(a) mandatesthat when a department of social services receives a report of
abuse or neglect, the director of the department of social
services shall make a prompt and thorough investigation . . ..
N.C. Gen. Stat. § 7B-302(a)(2003). A referral to another county is
permissible [w]hen in the professional judgment of the county
director the agency would be perceived as having a conflict of
interest . . .. 10A N.C.A.C. 70A.0103(b).
(See footnote 4)
If the investigation
indicates abuse or neglect, North Carolina General Statutes section
7B-302 provides two possible avenues through which the director of
the department may invoke the jurisdiction of the court. If abuse
or neglect is indicated by the investigation, but immediate removal
does not appear necessary, the director must immediately provide
or arrange for protective services. N.C. Gen. Stat. § 7B-302(c)
(2003). If the parent or custodian refuses the protective
services, then the department may invoke the court's jurisdiction
for the protection of the child(ren). Id
. However, if immediate
removal seems necessary, then the director shall sign a complaint
alleging the applicable facts to invoke the jurisdiction of the
court. N.C. Gen. Stat. § 7B-302(d) (2003). Under this statutory
scheme, the two avenues for invoking the court's jurisdiction are
available only when an investigation indicates that abuse orneglect has occurred.
The statute is silent on DSS's appropriate course of action if
the investigation does not indicate abuse or neglect, and it may be
inferred that no further steps are to be taken. This inference is
supported by the North Carolina Administrative Code pertaining to
DSS investigations, which states: When a thorough investigation
does not reveal abuse, neglect or dependency, the county director,
shall . . . communicate to [any parent or caretaker who was alleged
to have abused or neglected the child or children, any parent or
other individual with whom the child or children resided at the
time the county director initiated the investigation, and any
agency with whom the court has vested legal custody] that the
Department shall no longer be involved with the child or children
on a non-voluntary basis.
(See footnote 5)
10A N.C.A.C. 70A.0108. Moreover, in
In re Stumbo
, 357 N.C. 279, 286-89, 582 S.E.2d 255, 258-61 (2003),
an informative if not analogous case, our Supreme Court held a
trial court's order must fail where a report did not legally
constitute a report of abuse or neglect sufficient to invoke the
investigatory power of DSS under North Carolina General Statutes
The Court held: Having concluded that the
investigative mandate of N.C.G.S.§ 7B-302 was not properly invoked,it follows that the trial court's order based upon the petition
filed pursuant to N.C.G.S. § 7B-303 charging the parents with
interference with or obstruction of an investigation must fail.
. at 289, 582 S.E.2d at 261.
Here two reports of abuse and neglect were received by
Rutherford County DSS; these reports contained allegations of,
, blasting and isolation. The two reports triggered
Rutherford County DSS's statutory duty to conduct an investigation.
N.C. Gen. Stat. §7B-302(a). Due to concern regarding a conflict,
Rutherford County DSS referred the reports to Lincoln County DSS.
10A N.C.A.C. 70A.0103(b). Following an investigation and follow-up
investigation at the request of Rutherford County DSS, Lincoln
County DSS decided to unsubstantiate the allegations, stating their
investigation revealed no evidence the children were neglected or
abused by the Covingtons or any other member of Word of Faith and
noting no concerns for the  children.
In its response to the motions to dismiss,
(See footnote 6)
DSS stated the investigation by the Rutherford County Department
of Social Services' [sic] involved reports of abuse and neglect by
the Respondent mother and not the Intervenor-Appellants.
Rutherford County DSS failed, however, to cite anything in the
record indicating that additional reports were made or additional
investigations conducted. Nothing in the record indicates anyadditional reports of abuse and/or neglect or a new investigation
by Rutherford County DSS indicating that abuse and/or neglect
(See footnote 7)
Indeed the record supports the conclusion that no
further reports or investigations occurred: A 19 September 2003
guardian ad litem
report stated that Rutherford County DSS later
filed the Petitions regarding the minor children despite Lincoln
County's failure to substantiate[;] in contrast to the lengthy
testimony by Lincoln County DSS investigators, no Rutherford County
DSS investigators testified at the hearings; and a Lincoln County
DSS investigator testified that To my knowledge, the two reports
that we received . . . those two reports were made on these
children, and to my knowledge, there was not any other reports
[sic] made on these children. Moreover, Rutherford County DSS's
contention that the abuse and neglect alleged in the petitions
involved reports of abuse and neglect by the mother and not the
Covingtons conflicts with the central allegation in the petitions
that the mother abused and neglected the children by leaving them
in the care of the Covingtons at Word of Faith, where they were
subjected to harmful practices.
(See footnote 8)
Rutherford County DSS thus lacked the power to invoke the
jurisdiction of the court under North Carolina General Statutes
sections 7B-302(c) or (d) because the investigation did not
indicate that abuse or neglect had occurred. Consequently,
non-voluntary involvement should have ceased with regard to the 23
December 2002 and 4 January 2003 reports of abuse and neglect
following Lincoln County DSS's unsubstantiation. Because the
proper procedure under North Carolina General Statutes section
7B-302 was not followed to invoke the jurisdiction of the court,
the trial court lacked subject matter jurisdiction in the
Accordingly, we vacate the orders and remand the four
underlying cases to the trial court for dismissal.
Vacated and remanded.
Judges CALABRIA and JACKSON concur.
The only writing filed by the Rutherford County Department
of Social Services was a response to S.D.A., R.G.A., and
Intervenors' motions to dismiss.
No brief was filed by the mother of the minor children.
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 Procedure
§ 12-6 (1981)).
In re N.R.M., T.F.M.
, 165 N.C.App. at 294, 598 S.E.2d at 149(quoting In re McKinney
, 158 N.C. App. 441, 443, 581 S.E.2d 793,
We note that the North Carolina Division of Social Services
Family Services Manual also permits referral to a sister county
when a conflict of interest exists. Though the manual states
that when an investigation is referred, the sister county is
solely responsible for the case decision, it also states that
the counties should seek assistance in resolving any
disagreements about the decision. North Carolina Division of
Social Services Family Services Manual § 1410(V)(A)(7).
This is further substantiated by the North Carolina
Division of Social Services Family Services Manual, which states:
If the case decision is to unsubstantiate, a determination
should be made as to what agency services or outside resources,
if any, would be helpful. These services can be offered and
referrals suggested, but the family may refuse. North Carolina
Division of Social Services Family Services Manual §
We note that, in violation of Rule 37 of the Rules of
Appellate Procedure, Rutherford County DSS's response to the
motions to dismiss was filed on 22 July 2004,
more than ten days
after the motions to dismiss were filed on 6 May 2004 and 8 July
The only suggestion of additional investigation, but not of
additional reports of abuse or neglect, was an assertion by the
mother's counsel that it's my understanding that Rutherford
County continued the investigation.
We also note that the trial court, in its order deeming the
Covingtons necessary parties to the action, found that:
Petitioner alleges that these said minor children
are abused juveniles, in that Respondent mother .
. . voluntarily returned physical possession of
the children to [the Covingtons], and later she
gave [the Covingtons] the permanent care, custody
and control of said minor children, and that [theCovingtons] (by implication) have the said minor
children involved in the harmful practices of the
Word of Faith Fellowship Church, and that
Respondent mother has willfully exposed these said
minor children to continued additional abuse by
allowing cruel and grossly inappropriate devices
or procedures to modify behavior to be used upon
said minor juveniles by returning said minor
children to [the Covingtons].
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