IN RE: C.M.H., B.N.H., S.W.A.
FILED: 18 December 2007
Termination of Parental Rights--failure to verify petition--lack of subject matter
The trial court lacked subject matter jurisdiction to terminate respondents' parental rights
where the petition to terminate parental rights was unverified.
Appeal by respondent-father and respondent-mother from order
entered 27 April 2007 by Judge Resson O. Faircloth in District
Court, Harnett County. Heard in the Court of Appeals 15 November
E. Marshall Woodall and Duncan B. McCormick for Harnett
County Department of Social Services.
Elizabeth Myrick Boone for guardian ad litem.
Lisa Skinner Lefler for respondent-appellant-father.
Sofie W. Hosford for respondent-appellant-mother.
Respondent-father and respondent-mother (respondents) appeal
the 27 April 2007 order of the trial court terminating their
parental rights. Respondents raised several issues, one of which
was the failure of the petitioner to attach a copy of the order
granting custody of the three minor children to the Harnett County
Department of Social Services (DSS) to the motion to terminate
parental rights, as required by North Carolina General Statute §
N.C. Gen. Stat. § 7B-1104(5) (2005). In response,
petitioner filed an amendment to the record with this Court. Theamendment was an affidavit by the Deputy Clerk of Harnett County
verifying that a copy of the Adjudication Order was attached to
the Motion to Terminate Parental Rights at the time of filing as
shown by the court file. The amendment included a complete copy
of the petition and attached order as filed with the trial court.
Although this issue was not raised in either respondent's brief, we
note that the 21 April 2005 motion to terminate parental rights was
A petition or motion to terminate parental rights is governed
by North Carolina General Statute § 7B-1104 which provides that
[t]he petition, or motion pursuant to G.S. 7B-1102, shall be
by the petitioner or movant . . . . N.C. Gen. Stat. §
7B-1104 (2005) (emphasis added). [A] violation of the
verification requirement of N.C.G.S. § 7B-1104 has been held to be
a jurisdictional defect per se
. In re T.M.H.
, No. COA07-609, 2007
WL 2989562, *2 (N.C. App. Oct. 16, 2007) (citing In re Triscari
, 109 N.C. App. 285, 287-88, 426 S.E.2d 435, 436 (1993); In
, 360 N.C. 588, 593-94, 636 S.E.2d 787, 792 (2006)). [A]
question of jurisdiction . . . may be addressed by this Court at
any time, sua sponte
, regardless of whether [parties] properly
preserved it for appellate review. Guthrie v. Conroy
, 152 N.C.
App. 15, 17, 567 S.E.2d 403, 406 (2002).
In In Re Triscari Children,
the father appealed the trial
court's orders which terminated his parental rights. 109 N.C. App.
285, 286, 426 S.E.2d 435, 436 (1993). This Court vacated the
orders finding a lack of subject matter jurisdiction because thepetitions to terminate parental rights were not verified. Id.
286-89, 426 S.E.2d at 436-38. The Juvenile Code has been
recodified since In Re Triscari Children,
but the North Carolina
Supreme Court has determined, subsequent to the recodification,
that verification of petitions is a requirement to invoke subject
matter jurisdiction. In re T.R.P.
, 360 N.C. 588, 636 S.E.2d 787
Petitioner's failure to verify the petition to terminate
parental rights left the trial court without subject matter
jurisdiction. N.C. Gen. Stat. § 7B-1104; see also In re T.M.H.
No. COA07-609, 2007 WL 2989562 (N.C. App. Oct. 16, 2007); In Re
at 286-89, 426 S.E.2d at 436-38. In the absence
of subject matter jurisdiction, the trial court's order is void and
should be vacated. In re D.B.
, No. 06-1426-2, 2007 WL 3254398, *8
(N.C. App. Nov. 6, 2007). Therefore, we vacate the 27 April 2007
order terminating the parental rights of respondents.
Judges TYSON and JACKSON concur.
*** Converted from WordPerfect ***