Appeal by Plaintiff from order entered 16 March 2007 by Judge
Laura Powell in District Court, McDowell County. Heard in the
Court of Appeals 14 November, 2007.
David A. Perez, for Plaintiff-Appellant.
C. Gary Triggs, P.A., by C. Gary Triggs, for Defendant-
R.D.W. (Plaintiff) and J.B.W. (Defendant) are the father and
mother, respectively, of minor children S.D.W. and H.E.W. (the
children). Plaintiff and Defendant married in 1995 and divorced on
17 December 2001. The terms of the divorce did not resolve the
issue of custody of the children. Plaintiff had no contact withDefendant or the children over the next four years. The children
continued to reside with Defendant during this time.
Plaintiff filed a complaint for child visitation in McDowell
County District Court on 18 January 2006. Defendant filed a
"Motion to Dismiss, Answer and Counterclaim" on 27 March 2006. In
her counterclaim, Defendant: (1) alleged that Plaintiff had
abandoned the children and was incapable of providing proper care
for, and supervision of, the children; and (2) asked the trial
court to terminate Plaintiff's parental rights. The trial court
was uncertain as to whether Defendant, in her answer and
counterclaim, could properly request termination of Plaintiff's
parental rights. The trial court therefore instructed Defendant to
issue a "Termination of Rights Summons" to Plaintiff. A summons
was issued to Plaintiff on behalf of each of the children on 27
Plaintiff replied to Defendant's counterclaim on 24 August
2006 and denied the allegations therein. Defendant then filed a
motion for leave to amend her answer and counterclaim. Plaintiff
filed a motion on 27 December 2006 opposing Defendant's request for
leave to amend and seeking dismissal of Defendant's counterclaim.
In his motion to dismiss, Plaintiff argued that "it is procedurally
improper to assert a petition to terminate parental rights in a
counterclaim to a complaint for child visitation, as was done in
this case." The trial court granted Defendant's motion to amend on
29 December 2006 and deferred a ruling on Plaintiff's motion to
dismiss until trial. Defendant then filed her Amended Answer andCounterclaim alleging additional grounds for terminating
Plaintiff's parental rights.
The case was tried on 22 and 23 January 2007. The trial court
issued an order on 16 March 2007 terminating Plaintiff's parental
rights as to the children. Plaintiff appeals and argues, inter
alia, that it was procedurally improper for Defendant to seek
termination of Plaintiff's parental rights in Defendant's
counterclaim. Plaintiff contends that as a result of this improper
procedure, the trial court lacked subject matter jurisdiction over
Defendant's request for termination of Plaintiff's parental rights.
Article 11 of Chapter 7B of the General Statutes governs
termination of parental rights actions. Article 11 contemplates
two different procedures for filing an action to terminate a
parent's parental rights. First, N.C. Gen. Stat. § 7B-1102(a)
(2005) permits certain persons or agencies to file a motion in
district court for termination in a pending abuse, neglect, or
dependency proceeding concerning the juvenile.
Second, if there is
no such action pending, the person or agency may file a separate
petition to terminate parental rights. See
N.C. Gen. Stat. § 7B-
1103 (2005) (describing the persons or agencies who may file a
motion or petition); N.C. Gen. Stat. § 7B-1104 (2005) (describing
the requirements of a valid motion or petition). The motion or
petition must be entitled "In Re (last name of juvenile), a minor
juvenile." N.C.G.S. § 7B-1104. It shall also allege "[f]acts that
are sufficient to warrant a determination that one or more of thegrounds for terminating parental rights exist." N.C. Gen. Stat. §
7B-1104(6) (2005). See
N.C. Gen. Stat. § 7B-1111(a) (2005)
(listing the various findings that may serve as grounds for
terminating parental rights). After a person or agency files a
termination petition, the trial court "shall cause a summons to be
issued" to all respondents in the action, including the juvenile,
the juvenile's parents, and the juvenile's guardian or custodian.
N.C. Gen. Stat. § 7B-1106(a) (2005). The parent against whom
termination is sought may file an answer to a termination petition
or a response to a termination motion. N.C. Gen. Stat. § 7B-
1108(a) (2005). The trial court must then hold an adjudicatory
N.C. Gen. Stat. § 7B-1109 (2005), and may terminate
the parent's rights if it finds that (1) grounds for termination
exist, and (2) termination is in the best interests of the
N.C. Gen. Stat. § 7B-1110 (2005).
Plaintiff correctly recognizes that no abuse, neglect, or
dependency action involving the children had been filed prior to
the time Plaintiff filed his complaint for visitation. Therefore,
according to Plaintiff, Defendant could only have initiated
termination proceedings against Plaintiff by filing a petition
pursuant to Article 11. While Article 11 does allow one parent to
file a petition to terminate the parental rights of another parent,
N.C. Gen. Stat. § 7B-1103(a)(1) (2005), it does not expressly
provide that a request for termination may be made through a
counterclaim. Plaintiff argues that the procedure set out in
Article 11 is the exclusive procedure to be followed in terminationcases. Therefore, since Defendant did not follow the proper
procedure for bringing a termination action, the trial court lacked
subject matter jurisdiction over Defendant's counterclaim. See In
, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003)
("jurisdiction is dependent upon the existence of a valid motion,
complaint, petition, or other valid pleading").
Defendant disputes this contention and maintains that her
counterclaim complied with the requirements of Article 11.
Defendant essentially argues that even though Article 11 does not
explicitly allow for a termination action to be brought as a
counterclaim, it was nonetheless procedurally proper for her to do
so pursuant to N.C. Gen. Stat. § 1A-1, Rule 13 (2005) (providing
procedures for parties to assert counterclaims and crossclaims in
Our Court has recognized that where the juvenile code sets
forth specific procedures governing termination actions, those
procedures apply to the exclusion of the Rules of Civil Procedure.
We first considered this issue in In re Peirce
, 53 N.C. App. 373,
281 S.E.2d 198 (1981). In Peirce
, the Burke County Department of
Social Services (DSS) filed a petition to terminate the parental
rights of two parents whose child had been determined to be
neglected in an earlier proceeding.
(See footnote 1)
at 375, 281 S.E.2d at200. The respondent parents filed an answer to the DSS petition
and also asserted a number of counterclaims against DSS.
Specifically, the respondent parents claimed that: (1) the child's
best interests required that the child be transferred to the
respondent parents' new state of residence; (2) DSS should be
ordered to initiate such a transfer; (3) DSS made no effort to
reunite the child with the respondent parents, as required by the
juvenile code; and (4) the respondent parents themselves should be
awarded custody of the child. Id.
at 375-76, 281 S.E.2d at 200.
The trial court struck the respondent parents' counterclaims from
their answer, id.
at 376, 281 S.E.2d at 200, and ultimately entered
an order terminating their parental rights. Id.
at 378, 281 S.E.2d
at 202. On appeal, the respondent parents acknowledged that the
juvenile code "[did] not specifically allow a respondent in [a
termination] case to file anything other than an answer to the
petition to terminate parental rights." Id.
at 379, 281 S.E.2d at
N.C. Gen. Stat. § 7A-289.29(a) (1981), repealed by
N.C. Sess. Laws ch. 202, § 5 ("Any respondent may file a written
answer to the petition. The answer shall admit or deny the
allegations of the petition[.]"). However, the respondent parents
maintained that their counterclaims were permissible under N.C.G.S.
§ 1A-1, Rule 13. Peirce
, 53 N.C. App. at 379, 281 S.E.2d at 202.
Our Court first recognized in Peirce
that the General Assembly
had specifically stated that its intent in enacting that portion ofthe juvenile code was "'to provide judicial procedures
terminating the legal relationship between a child and his or her
biological or legal parents.'" Id.
at 379, 281 S.E.2d at 202
(emphasis in original) (quoting N.C. Gen. Stat. § 7A-289.22 (1981),
1998 N.C. Sess. Laws ch. 202, § 5).
Based upon this
clear legislative intent, we concluded:
The sections of Art. 24B comprehensively
delineate in detail the judicial procedure to
be followed in the termination of parental
rights. This article provides for the basic
procedural elements which are to be utilized
in these cases. . . . Due to the
legislature's prefatory statement in G.S.
7A-289.22 with regard to its intent to
establish judicial procedures for the
termination of parental rights, and due to the
specificity of the procedural rules set out in
the article, we think the legislative intent
was that G.S., Chap. 7A, Art. 24B, exclusively
control the procedure to be followed in the
termination of parental rights. It was not the
intent that the requirements of the basic
rules of civil procedure of G.S. 1A-1 be
superimposed upon the requirements of G.S.,
Chap. 7A, Art. 24B. Therefore, in this case
we need only ascertain whether the trial court
correctly followed the procedural rules
delineated in the latter.
. . . This statute does not specifically
grant the respondent in these cases the right
to file a counterclaim, nor does any other
section of G.S., Chap. 7A, Art. 24B, grant to
respondent such a right. The statutorily
established procedure for the termination of
parental rights does not include the right to
file a counterclaim, and we will not add that
right by imputation. Therefore, it was not
error for the trial court . . . to strike
at 380, 281 S.E.2d at 202-03.
Subsequent cases have reinforced our holding in Peirce
N.C.G.S. § 1A-1 does not provide parties in termination actionswith procedural rights not explicitly granted by the juvenile code.
See In re Jurga
, 123 N.C. App. 91, 472 S.E.2d 223 (1996) (holding
that parents could not execute a "Declaration of Voluntary
Termination of Parental Rights" because the juvenile code did not
provide procedures for this type of unilateral declaration); In re
Curtis v. Curtis
, 104 N.C. App. 625, 410 S.E.2d 917 (1991)
(reversing trial court's grant of summary judgment for the
petitioner on the issue of whether the respondent had abused his
daughter, because the termination procedures set out in the
juvenile code required an adjudicatory hearing on this issue and
did not authorize a summary procedure based on N.C. Gen. Stat. §
1A-1, Rule 56). In addition, just as we have "declined to
judicially impute procedural rights to parties which are not
otherwise authorized by the termination statute," we have likewise
"decline[d] to impute judicial limitations to rights plainly given
under the termination statutes." In re D.S.C.
, 168 N.C. App. 168,
173, 607 S.E.2d 43, 47 (2005) (finding that the termination
statutes explicitly required the trial court to appoint a guardian
ad litem for a disabled respondent parent in a broad range of
cases, and rejecting the petitioner's argument that the statute
only required the trial court to make such an appointment in a
smaller subset of those cases).
This is not to say, however, that the Rules of Civil Procedure
will never apply in a termination proceeding. Our Court has also
recognized that where the juvenile code does not identify a
specific procedure to be used in termination cases, the Rules ofCivil Procedure will fill the procedural gaps that Article 11
leaves open. In In re Triscari Children
, 109 N.C. App. 285, 426
S.E.2d 435 (1993), the trial court entered orders terminating the
respondent father's parental rights with respect to his two minor
children. The respondent father argued on appeal that the
termination petitions filed by the children's mother were defective
because they were not verified, as required by the juvenile code.
N.C. Gen. Stat. § 7A-289.25 (1989), repealed by
1998 N.C. Sess.
Laws. ch. 202, § 5 ("The petition shall be verified by the
petitioner[.]"). Therefore, according to the respondent father,
the trial court had no subject matter jurisdiction over the action.
, 109 N.C. App.
at 286-87, 426 S.E.2d at 436. The
termination statutes, while requiring a petition to be verified,
did not set out the requirements for proper verification. We
therefore looked to the Rules of Civil Procedure to determine
whether the petitions were properly verified:
The specific procedure that must be followed
in a termination of parental rights case is
set forth in Article 24B, chapter 7A of the
North Carolina General Statutes. The rules of
Civil Procedure set forth in chapter 1A are
not to be superimposed upon these cases, but
nor should they be ignored. Thus, because the
procedure set forth in the termination of
parental rights provisions requires a verified
petition, and verification is not defined in
chapter 7A, the requirements for verification
established in chapter 1A, Rule 11(b) should
determine whether the pleading has been
at 287, 426 S.E.2d at 437 (internal citations omitted). Our
Court ultimately determined that the termination petitions did not
comply with the Rules of Civil Procedure, and we therefore vacatedthe trial court's termination orders for lack of subject matter
at 287-89, 426 S.E.2d at 437-38.
Likewise, in In re McKinney
, we applied the Rules of Civil
Procedure to determine whether the contents of a motion filed to
terminate the respondent's parental rights were sufficient to
confer subject matter jurisdiction on the trial court. The Orange
County Department of Social Services had filed a purported
termination motion in an ongoing neglect and dependency action
pursuant to N.C.G.S. § 7B-1102. McKinney
, 158 N.C. App. at 442-43,
581 S.E.2d at 794. While the motion did contain factual
allegations, it did not state that it was a termination motion and
it did not request any specific relief from the trial court. Id.
at 445-446, 581 S.E.2d at 796-97. We first noted that "'because a
termination of parental rights proceeding is civil in nature, it is
governed by the Rules of Civil Procedure unless otherwise
at 445, 581 S.E.2d at 796 (emphasis added)
(quoting and citing In re Brown
, 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);
In re Bullabough
, 89 N.C. App. 171, 179, 365 S.E.2d 642, 646
Finding no specific pleading requirements in Article 11,
we instead turned to N.C. Gen. Stat. § 1A-1, Rule 7(b)(1) to
determine whether the termination motion was sufficient to confer
subject matter jurisdiction on the trial court. Id.
at 444, 581
S.E.2d at 795. Our Court ultimately found that the termination
motion did not comply with the Rules of Civil Procedure and vacated
the trial court's termination order for lack of subject matterjurisdiction. Id.
at 448, 581 S.E.2d at 797-98.
In the case before us, we must first determine whether Chapter
7B, Article 11 provides the exclusive procedure to be used when
filing a termination of parental rights petition. If so, we must
then determine whether the trial court correctly followed that
procedure. See Peirce
, 53 N.C. App. at 380, 281 S.E.2d at 202.
Article 11, like its predecessor, expressly states that the
general legislative purpose of the Article "is to provide judicial
procedures for terminating the legal relationship between a
juvenile and the juvenile's biological or legal parents." N.C.
Gen. Stat. § 7B-1100(1) (2005). The statutes that follow this
statement of legislative intent set out detailed procedures
governing who may file a termination motion or petition, and how
that party may bring such an action. Unlike requirements governing
proper petition verification and requests for relief, which are
found solely in the Rules of Civil Procedure and have no
counterpart in the juvenile code, the procedures for commencement
of a termination of parental rights action under Article 11 clearly
overlap the procedures set out in Chapter 1A-1 for commencement of
other civil actions. Given both the statement of legislative
intent in N.C.G.S. § 7B-1100(1) and the specificity of the Article
11 procedures, see Peirce
, 53 N.C. App. at 380, 281 S.E.2d at 203,
we find that Article 11 provides the exclusive procedures to be
used. Defendant therefore cannot rely on N.C.G.S. § 1A-1, Rule 13
as the basis for her counterclaim, as the General Assembly has"otherwise provided" for procedures governing commencement of
termination actions. Bullabough
, 89 N.C. App. at 179, 365 S.E.2d
We must next determine whether the trial court followed the
procedures provided by Article 11. As noted above, Article 11 sets
forth two ways in which a proper party may commence a termination
of parental rights action. The first is by filing a termination
motion in a pending abuse, neglect, or dependency action. See
N.C.G.S. § 7B-1102. The second is by filing a termination
N.C.G.S. §§ 7B-1103, -1104. The statutes do not
provide a procedure through which a party may counterclaim for
termination of parental rights in response to a complaint for child
visitation. Rather, Article 11 contemplates that a termination
petition should be brought in a separate action. See, e.g.
N.C.G.S. § 7B-1104 (requiring that a termination petition have its
own caption, "In Re (last name of juvenile), a minor juvenile").
Since Article 11 does not provide a party with the right to seek
termination of parental rights in a counterclaim, "we will not add
that right by imputation." Peirce
, 53 N.C. App. at 380, 281 S.E.2d
at 203. We recognize that the trial court did attempt to rectify
the procedural error by causing summonses to be issued to Defendant
regarding the termination counterclaim. See
N.C.G.S. § 7B-1106(a).
However, the issuance of a summons alone does not vest a trial
court with subject matter jurisdiction over an action when that
action was never properly commenced.
We conclude that Defendant did not file a proper petition fortermination of Plaintiff's parental rights, and therefore the trial
court lacked subject matter jurisdiction over the termination
proceeding. Accordingly, the trial court's order for termination
of parental rights is vacated without prejudice to Defendant's
right to file a proper petition in the trial court.
In light of the foregoing, we do not address Plaintiff's
remaining assignments of error.
Judges HUNTER and BRYANT concur.