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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: D.D.F.
No. COA07-798
Filed: 4 December 2007
1. Termination of Parental Rights--juvenile petition signed by caseworker--no
jurisdictional deficit
The trial court had jurisdiction to enter a termination of parental rights order despite
respondent's contention that the juvenile petition was not properly signed. The petition and the
record before the trial court clearly demonstrated the petitioning caseworker's status and
respondent has never raised any question as to the caseworker's authority; the fact that the
petition did not explicitly state that the caseworker who signed the petition was an authorized
representative of the director of social services does not create a jurisdictional defect.
2. Termination of Parental Rights--juvenile petition--verified by caseworker--
jurisdiction conferred
A juvenile petition was properly verified and conferred jurisdiction on the trial court
where the caseworker signed the verification but did not sign the signature line itself.
Respondent did not argue that the caseworker was not an authorized representative of the
Director of the county DSS, that she exceeded the scope of her authority, or that respondent was
prejudiced in any way.
3. Termination of Parental Rights_standing to file petition_custody of juvenile
DSS had custody of a juvenile under an order from a court of competent jurisdiction, so
that DSS had standing to file a petition to terminate parental rights under N.C.G.S. § 7B-1104.
The petition was signed and verified in accordance with N.C.G.S. § 7B-1104.
4. Termination of Parental Rights--jurisdiction--signature on petition
An order awarding custody of a minor child to DSS was an order from a court of
competent jurisdiction, despite respondent's contention concerning the signature on the juvenile
petition, and DSS had standing to file a petition for termination of parental rights.
Appeal by respondent-father from order entered 1 May 2007 by
Judge Regan A. Miller in District Court, Mecklenburg County. Heard
in the Court of Appeals 5 November 2007.
Mecklenburg County Attorney's Office, by Tyrone C. Wade, for
petitioner-appellee.
Janet K. Ledbetter, for respondent-appellant.
STROUD, Judge.
Respondent appeals the 1 May 2007 order entered in District
Court, Mecklenburg County by Judge Regan A. Miller terminating his
parental rights. Respondent argues: (1) the trial court lacked
subject matter jurisdiction over the case due to petitioner failing
to state specifically in the petition that she was signing as DSS
director or an authorized representative thereof, and (2)
petitioner lacked standing to file the petition to terminate
respondent's parental rights, also due to the improperly signed
juvenile petition. We disagree and affirm the 1 May 2007 order of
the trial court.
I. Background
On 22 August 2000, petitioner Maureen Geier (Geier), a
Mecklenburg County Department of Social Services (DSS)
caseworker, filed a juvenile petition pursuant to N.C. Gen. Stat.
§ 7B-403 alleging that D.D.F. was a dependent juvenile as defined
by N.C. Gen. Stat. § 7B-101(9). The petition stated, Maureen
Geier, Petitioner, ha[s] sufficient knowledge or information to
believe that a case has arisen which invokes the juvenile
jurisdiction of the Court. The record indicates that Geier was a
social worker assigned to D.D.F.'s case. The petition's signature
line was left blank, but the address line was filled in as Youth
and Family Services. Also, directly under the signature and
address line was the verification section of the petition.
The verification section provides that [t]he undersigned
Petitioner, being duly sworn, says that the Petition hereon is true
to his own knowledge, except as to those matters alleged oninformation and belief, and as to those matters, he believes it to
be true. This verification was signed by Geier as petitioner-
affiant and properly notarized. In addition, as required by N.C.
Gen. Stat. § 7B-402(b), an Affidavit as to of Status of Minor
Child (affidavit) was also verified by Geier and was attached to
the petition. The affidavit stated, Maureen J. Geier, Mecklenburg
County Department of Social Services, Youth and Family Services,
720 East Fourth Street, Charlotte, N.C. 28202 . . . is the
[p]etitioner in this action.
The first adjudicatory hearing was held on 13 September 2000.
Counsel was present for both parents. Although respondent-father
(respondent) was served on 25 August 2000, he was not present.
Geier was present and was identified by the adjudicatory hearing
order entered on 14 September 2000 as the social worker for the
case. The 14 September 2000 order granted custody of D.D.F. to
Mecklenburg County Youth and Family Services.
Respondent began supervised visitation with D.D.F. in January
2001. By the 9 March 2001 review hearing, respondent's paternity
of D.D.F. had been confirmed by paternity testing, although he did
not attend this review hearing. As of the 25 September 2001 review
hearing, respondent's visitation had been terminated due to missing
several visits and failing to contact DSS to cancel. As of 20
September 2001, respondent was incarcerated on charges of robbery
with a dangerous weapon, two kidnapping charges, and larceny with
a car. He was convicted of robbery with a dangerous weapon in May
2002 and sentenced to an eight year term. Although both parentswere represented by counsel at all times since the inception of the
case in 2000, neither respondent nor the child's mother ever filed
any response to the petition or any motion to strike or to dismiss
the petition.
On 8 November 2006, DSS filed a petition to terminate
respondent's parental rights. The petition was signed by Kathleen
A. Widelski, attorney for petitioner DSS, and was verified by
Leslie Buras, a DSS Youth and Family Services division social
worker assigned to the case of D.D.F. In an order entered 1 May
2007, following a termination hearing at which respondent was
represented by counsel, the district court terminated respondent's
parental rights on four grounds: (1) neglecting the child, (2)
willfully leaving the minor child in foster care for more than
twelve months without making reasonable progress to correct the
conditions that led to the child's removal from the home, (3)
willfully failing to pay a reasonable cost of the minor child's
care while in custody of Youth and Family Services, and (4)
willfully abandoning the minor child for at least six months
immediately preceding the filing of the petition to terminate
parental rights. See N.C. Gen. Stat. § 7B-1111(a)(1), (a)(2),
(a)(3), and (a)(7) (2005). Respondent appeals.
On appeal respondent argues only two issues: (1) whether the
trial court lacked subject matter jurisdiction over the case due to
petitioner's failure to state explicitly in the petition that she
was signing as DSS director or an authorized representative
thereof, and (2) whether petitioner had standing to file thepetition to terminate respondent's parental rights. We affirm the
trial court's order terminating respondent's parental rights.
II. Subject Matter Jurisdiction
[1] Respondent first argues that the trial court lacked
subject matter jurisdiction to enter the termination order because
the 22 August 2000 juvenile petition was not signed by the director
of DSS or an authorized representative of DSS.
See N.C. Gen.
Stat. §§ 7B-101(10), -403(a) (2005). Respondent acknowledges that
the petition was verified by Geier and that she was a Mecklenburg
County social worker who was assigned to D.D.F.'s case. However,
respondent contends that the petition was not signed or verified by
the director of DSS or an authorized representative, because the
petition does not state that Geier is an authorized
representative of the DSS director.
[W]hether a trial court has subject matter jurisdiction is a
question of law, which is reviewable on appeal
de novo.
Ales v.
T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455
(2004).
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.
The provisions of our Juvenile Code establish one
continuous juvenile case with several interrelated
stages. A trial court's subject matter jurisdiction
over all stages of a juvenile case is established when
the action is initiated with the filing of a properly
verified petition. [V]erification of the petition in an
abuse, neglect, or dependency action as required by
N.C.G.S. § 7B-403 is a vital link in the chain of
proceedings carefully designed to protect children at
risk on one hand while avoiding undue interference with
family rights on the other. [I]n the absence of averification [. . .] a trial court's order is void
ab
initio.
A petition to terminate parental rights may only be
filed by a person or agency given standing by section
7B-1103(a) of our General Statutes. One such agency is
any county department of social services [. . .] to whom
custody of the juvenile has been given by a court of
competent jurisdiction. Standing is jurisdictional in
nature and consequently, standing is a threshold issue
that must be addressed, and found to exist, before the
merits of the case are judicially resolved.
In re S.E.P. & L.U.E., 184 N.C. App. 381, 487, 646 S.E.2d 617, 621
(2007) (internal citations and internal quotations omitted).
A. Authorized representative of the Director
Juvenile petitions must be drawn by the director [of DSS],
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). N.C. Gen. Stat. § 7B-101(10) provides that the word
director as used in N.C. Gen. Stat. § 7B-403 includes the
director's representative as authorized in G.S. 108A-14. N.C.
Gen. Stat. § 7B-101(10). N.C. Gen. Stat. § 108A-14(11) gives the
director the duty and responsibility [t]o assess reports of
child abuse and neglect and to take appropriate action to protect
such children pursuant to the Child Abuse Reporting Law, Article 3
of Chapter 7B of the General Statutes. N.C. Gen. Stat. § 108A-
14(a)(11) (2005). N.C. Gen. Stat. § 108A-14(b) provides that
[t]he director may delegate to one or more members of his staff
the authority to act as his representative. The director may limit
the delegated authority of his representative to specific tasks or
areas of expertise. N.C. Gen. Stat. § 108A-14(b) (2005). In
light of the role of social services caseworkers as specificallydesignated by statute, where the record demonstrates that a DSS
caseworker is assigned to the child's case and there is no
indication whatsoever that the caseworker was not an authorized
representative of the director or that she was acting outside of
her authority, the DSS caseworker is an authorized representative
of the director for purposes of filing a petition under N.C. Gen.
Stat. § 7B-403. See N.C. Gen. Stat. §§ 7B-101(10), -403(a), 108A-
14(a)(11), (b).
The record demonstrates that Geier is the DSS caseworker who
was assigned to D.D.F.'s case at its inception, and as such, she
was charged with the duty and responsibility under N.C. Gen. Stat.
§ 108A-14(a)(11) to investigate the allegations of neglect of
D.D.F. and to take appropriate action to protect such [child]
pursuant to the Child Abuse Reporting Law, Article 3 of Chapter
7B. N.C. Gen. Stat. § 108A-14(a)(11). Such action would
properly include the filing of a petition for adjudication if
needed to protect the child. Id. The petition and record before
the trial court clearly demonstrate the petitioning caseworker's
status and respondent has never raised any question as to the
caseworker's authority to file a petition for adjudication.
Therefore, based upon the statutory duties assigned to the DSS
director, which are executed by the caseworkers, Geier was an
authorized representative of the director who could verify a
petition pursuant to N.C. Gen. Stat. § 7B-403. The fact that the
petition did not explicitly state that she was an authorized
representative of the director does not create a jurisdictionaldefect. See N.C. Gen. Stat. §§ 7B-101(10), -403(a), -108A-
14(a)(11).
This Court held in In Re Dj.L., D.L. & S.L that a juvenile
petition that was signed and verified by the social worker as the
petitioner and listed the social worker's address as Youth and
Family Services, contained sufficient information from which the
trial court could determine that the social worker had standing to
initiate the action under N.C. Gen. Stat. § 7B-403. In Re Dj.L.,
D.L. & S.L. 184 N.C. App. 76, 79, 646 S.E.2d 134, 137 (2007). Both
In Re Dj.L., D.L. & S.L. and the present case originated in
Mecklenburg County and both used exactly the same juvenile petition
form. See In re Dj.L., D.L. & S.L. 184 N.C. App. 76, 646 S.E.2d
134. The only potentially significant difference between the
petitions is that there was a signature by the social worker, Betty
Hooper, on the petition as well as the verification in In re Dj.L.,
D.L. & S.L., whereas Geier's signature is missing from the petition
herein. Id. We held in In re Dj.L., D.L. & S.L. that the juvenile
petition
contained sufficient information from which
the trial court could determine that [the DSS
social worker] had standing to initiate an
action under section 7B-403(a). In so
holding, we construe[d] the juvenile petition
as to do substantial justice. N.C. Gen.
Stat. § 1A-1, Rule 8 (2005) (All pleadings
shall be so construed as to do substantial
justice.).
Id. at 80, 646 S.E.2d at 137. We also emphasized in In re Dj.L.,
D.L. & S.L. and we do here as well, that respondent has never
argued, and does not now argue that the DSS social worker whosigned the verification was not an authorized representative of
the Director of the Mecklenburg County Department of Social
Services or that she exceeded the scope of her authority by filing
the juvenile petition, id. at 80, 646 S.E.2d at 137, but rather
respondent argues only that the petition does not explicitly state
that Geier is an authorized representative of the DSS director.
This case can be distinguished from In re Dj.L., D.L. & S.L.
only by the fact that in the present case petitioner failed to sign
on the petition's signature line and signed only the petitioner-
affiant signature line about three inches below the petition's
signature line, in the verification portion of the petition. See
id., 184 N.C. App. 82, 646 S.E.2d 134. However, respondent's
argument was not focused on the blank line, but, just as in In re
Dj.L., D.L. & S.L. respondent argued that the petition failed
because it was not signed and verified by the director of DSS or an
authorized representative. See id. at 82, 646 S.E.2d at 137.
The issue as to Geier's authority to verify the petition is
controlled by In Re Dj.L., D.L. & S.L. See id. 184 N.C. App. 76,
646 S.E.2d 134. We deem the petition sufficient in light of our
decision in In re Dj. L.,D.L. & S.L. and thus Geier had standing
to initiate an action under section 7B-403(a). See id. at 82, 646
S.E.2d at 137. Again we stress that the best practice is to
include a distinct statement that the petitioner is the director of
the county department of social services or is an authorized
representative of the director. Id. at 82, 646 S.E.2d at 137.
B. Failure to Sign Juvenile Petition [2] In the present case, we have an additional issue which did
not arise in In re Dj.L., D.L. & S.L. as Geier did not sign the
signature line on the petition itself, although she did sign the
verification. See id., 184 N.C. App. 76, 646 S.E.2d 134. We must
therefore consider whether the petitioner's signature on the
petition's signature line is an additional jurisdictional
requirement under N.C. Gen. Stat. § 7B-403 where the petition is
properly verified. See N.C. Gen. Stat. § 7B-403. N.C. Gen. Stat.
§ 7B-403(a) requires that the juvenile petition be drawn by the
director, verified before an official authorized to administer
oaths, and filed by the clerk. Id. N.C. Gen. Stat. § 7B-403(a)
does not specifically provide that the petition must be signed in
addition to the signature on the verification. Id.
We can find no case addressing what it means for the petition
under N.C. Gen. Stat. § 7B-403(a) to be drawn by the director,
although the cases citing this statute seem to be using the terms
drawn by as synonymous with signed by the director.
See, e.g.,
In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006). North
Carolina's reported cases which address the issue of the trial
court's jurisdiction where a petition has an alleged deficiency in
its signing and verification under N.C. Gen. Stat. § 7B-403(a) have
dealt with petitions which were not verified or which were neither
signed nor verified. The common element in all of the cases is the
absence of a proper
verification, which our Supreme Court held to
be a jurisdictional requirement in
In re T.R.P. See, e.g.,
id.,
360 N.C. 588, 636 S.E.2d 787. The holding in
In re T.R.P. wasspecifically that the district court could not exercise subject
matter jurisdiction here in the absence of the
verification of the
petition, where the petition was
neither signed nor verified by
the Director of WCDSS or any authorized representative thereof.
Id. at 589, 636 S.E.2d at 789 (emphasis added).
(See footnote 1)
Respondent has not argued that Geier is not an authorized
representative of the Director of the Mecklenburg County DSS, thatshe exceeded the scope of her authority by filing the juvenile
petition, or that the lack of her signature on a line approximately
three inches above the line upon which she did sign for purposes of
the verification has prejudiced respondent in any way. We hold
that pursuant to In re T.R.P., the petition was properly verified
and it does confer jurisdiction on the trial court. See id., 360
N.C. 588, 636 S.E.2d 787.
We also note that the state of North Carolina's standard form
entitled Juvenile Petition (Abuse/Neglect/Dependency), form AOC-
J-130 (New 7/99) does not have a separate line for the petitioner's
signature but rather has a blank for the petitioner to sign once,
only within the verification portion of the form. We will not now
make the failure to sign the petition on a separate signature line
which was added by petitioner herein a jurisdictional requirement,
where the verification is properly signed. See, e.g., State v.
Sanford Video & News, Inc., 146 N.C. App. 554, 560-61, 553 S.E.2d
217, 221 (2001), disc. rev. denied, 355 N.C. 221, 560 S.E.2d 359
(2002) (holding that where form AOC-CR-305 provided two blanks for
the judge's signature, one directly underneath the judgment, and
the other located at the bottom of the form below the section
giving notice of appeal and the judge signed the second signature
area at the bottom of the form, this was sufficient to constitute
signing the judgment and that defendant was not prejudiced
thereby).
Despite our holding, we do not condone petitioner's failure to
sign on the signature line for petitioner upon its own form andsuggest that consistent and careful use of the AOC's standard
juvenile forms may help avoid problems with the execution of
petitions in the future. We recognize the contributions of the DSS
employees who work on these difficult cases, some of which, just as
this case, last for many years. However, we reiterate our
suggestion as stated in In re S.E.P. & L.U.E., with a slight
modification: We take this opportunity to suggest that properly
[signing and] verifying a petition is likely to be the easiest part
of DSS's job. In re S.E.P. & L.U.E. at 488, 646 S.E.2d at 622.
Likewise, we appreciate the work of the trial judges, but we also
suggest that checking the petition to make sure that it is both
signed, if the petition has a separate signature line, and verified
before proceeding with an adjudication hearing is likely to be the
easiest part of the trial court's job. This assignment of error is
overruled.
C. Petition to Terminate Parental Rights
[3] Respondent also contends the petition to terminate
parental rights is deficient because it was not verified by a
person who is specifically identified as an authorized
representative of the Director of MCDSS. Respondent concedes
that the petition to terminate parental rights was signed by the
attorney for DSS, who may be considered an authorized
representative of MCDSS, but argues that the case sub judice is
directly on point with In Re S.E.P. & L.U.E., in which we held
that the trial court lacked subject matter jurisdiction for the
adjudication order and we therefore also vacated the ordersterminating parental rights. See In Re S.E.P. & L.U.E., 184 N.C.
App. 481, 646 S.E.2d 617.
However, we have already held above that the original
adjudication petition did confer jurisdiction upon the trial
court. In In Re S.E.P. & L.U.E., we held that the trial court did
not have jurisdiction because the petitions were not properly
verified. Id. This case is therefore not directly on point
with In Re S.E.P. & L.U.E. See id.
Petitions to terminate parental rights are governed by N.C.
Gen. Stat. § 7B-1104, which states that the petitioner or
movant shall verify the petition. N.C. Gen. Stat. § 7B-1104
(2005). N.C. Gen. Stat. § 7B-1103 provides that [a]ny county
department of social services . . . to whom custody of the
juvenile has been given by a court of competent jurisdiction may
file a petition to terminate parental rights. N.C. Gen. Stat. §
7B-1103(a)(3) (2005). Unlike N.C. Gen. Stat. § 7B-403(a),
sections 7B-1103 and 7B-1104 do not require a termination
petition to be signed or verified by the director of DSS or an
authorized representative. See N.C. Gen. Stat. §§ 7B-403(a); -
1103, -1104.
We held above that DSS had custody of the juvenile under an
order from a court of competent jurisdiction, so that the county
department of social services had standing to file a petition
under N.C. Gen. Stat. § 7B-1104. See N.C. Gen. Stat. § 7B-1103,
-1104. The petition to terminate respondent's parental rights
filed on 8 November 2006 was signed and verified, in accordancewith N.C. Gen. Stat. § 7B-1104. See id. Therefore, this
assignment of error is overruled.
III. Standing
[4] In respondent's second assignment of error, he contends
the petitioner did not have standing to file a petition to
terminate parental rights pursuant to N.C. Gen. Stat. § 7B-
1103(a)(3) because the trial court did not have jurisdiction to
grant DSS custody since the juvenile petition was invalid. In
other words, defendant argues that because the juvenile petition
did not expressly state it was signed by the DSS director or an
authorized representative thereof, the court did not have
jurisdiction to enter the custody order and D.D.F. was thus not
placed into DSS's custody by a court of competent jurisdiction.
See N.C. Gen. Stat. §§ 7B-1103(a)(3), -1104.
We have already determined above that the 2000 juvenile
petition was sufficient to invoke the subject matter jurisdiction
of the trial court. Therefore, the order dated 14 September 2000
awarding custody of the minor child to DSS was an order from a
court of competent jurisdiction.
See id. Pursuant to N.C.
Gen. Stat. § 7B-1103(a)(3), DSS is a county department of social
services . . . to whom custody of the juvenile has been given by
a court of competent jurisdiction, and therefore DSS had
standing to file a petition for termination of respondent's
parental rights.
See N.C. Gen. Stat. § 7B-1103(a)(3). This
assignment of error is overruled.
IV. Conclusion
Respondent has not argued his remaining assignments of error
and they are therefore deemed abandoned. N.C.R. App. P.
28(b)(6). For the foregoing reasons, the order of the trial court
terminating respondent's parental rights is affirmed.
AFFIRMED.
Judges WYNN and ELMORE concur.
Footnote: 1
N.C. Gen. Stat. § 1A-1, Rule 11(a) deals with the signing
of pleadings and provides that
[e]very pleading, motion, and other paper of a
party represented by an attorney shall be
signed by at least one attorney of record in
his individual name, whose address shall be
stated. A party who is not represented by an
attorney shall sign his pleading, motion, or
other paper and state his address. Except
when otherwise specifically provided by rule
or statute, pleadings need not be
verified....
N.C. Gen. Stat. § 1A-1, Rule 11(a) (2005).
Rule 11(a) also provides for the consequences of the failure
of a party to sign a pleading: If a pleading, motion, or other
paper is not
signed, it shall be stricken unless it is signed
promptly after the omission is called to the attention of the
pleader or movant.
Id. (emphasis added). Rule 11(a)
contemplates the omission of a signature as a simple oversight,
which can be easily corrected when pointed out, and then the case
may proceed on its course, dealing with the substantive issues
raised by the pleadings. Only if the pleading is not signed
promptly even after omission is pointed out does Rule 11(a)
provide for the pleading to be stricken.
See id. The juvenile
code would not prevent this type of minor amendment to a petition,
as N.C. Gen. Stat. § 7B-800 provides that [t]he court may permit
a petition to be amended when the amendment does not change the
nature of the conditions upon which the petition is based. N.C.
Gen. Stat § 7B-800 (2005). We cannot imagine how the addition of
the petitioner's signature in compliance with N.C. Gen. Stat. § 1A-
1, Rule 11(a) would change the nature of the conditions upon which
the petition is based.
See N.C. Gen. Stat. §§ 1A-1, Rule 11(a),
7B-800.
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