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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
IN RE W.B.M. Camden County
No. 06 JT 002
Appeal by respondent from judgment entered 30 August 2006 by
Judge C. Christopher Bean in Camden County District Court. Heard
in the Court of Appeals 9 April 2007.
Hornthal, Riley, Ellis & Maland, LLP, by Michael P. Sanders,
Duncan B. McCormick for respondent-appellant.
M.C.F.,(respondent-mother) appeals from an order of the
trial court terminating her parental rights to W.B.M. (the minor
child). We vacate the order of the trial court.
Petitioner-father, W.E.M (petitioner) and respondent-mother
are the parents of the minor child born in January of 2001. The
petitioner and respondent-mother were married in November of 2000,
separated in February of 2003 and divorced on 18 June 2004. At the
time of the separation, the parties entered into a custody
agreement. Petitioner was awarded sole custody of the minor child
subject to the respondent-mother's reasonable rights of visitation
with the minor child. On 24 April 2006, petitioner filed a petition to terminate the
parental rights of respondent-mother on the grounds of willful
abandonment. The petition, in relevant part, alleged:
7. Grounds exist for termination of the
Respondent's parental rights to the minor
child in that pursuant to N.C. Gen. Stat. §
7B-1111(a)(7), the Respondent has willfully
abandoned the minor child for at least six
consecutive months immediately preceding the
filing of this action in that Respondent's
conduct manifests a willful determination to
forego all parental duties and to relinquish
all parental claims to the minor child. The
minor child does not remember nor know who the
On 5 June 2006, respondent-mother filed a pro se answer denying
willful abandonment of the minor child. An order terminating
respondent-mother's parental rights was entered on 30 August 2006.
I. Subject Matter Jurisdiction
Respondent-mother argues the trial court did not have subject
matter jurisdiction to enter an order terminating her parental
rights because the petition failed to comply with the requirements
of N.C. Gen. Stat. § 7B-1104(6). We agree.
[Subject matter] jurisdiction is dependent upon the existence
of a valid motion, complaint, petition, or other valid pleading.
In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003).
[I]n the absence of a proper petition, the trial court has no
jurisdiction to enter an order for termination of parental rights
[.] Id. at 445, 581 S.E.2d at 796. Pursuant to N.C. Gen. Stat.
§ 7B-1104(6), a proper petition for termination of parental rights
must set forth [f]acts that are sufficient to warrant adetermination that one or more of the grounds for terminating
parental rights exist. N.C. Gen. Stat. § 7B-1104(6) (2005). [A]
petitioner's bare recitation . . . of the alleged statutory grounds
for termination does not comply with the requirements of [§ 7B-
1104(6)]. In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158,
160 (1992). While there is no requirement that the factual
allegations be exhaustive or extensive, they must put a party on
notice as to what acts, omissions or conditions are at issue. In
re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). In
Hardesty, this Court reversed an order terminating the parental
rights of the respondent because the petitioner merely used words
similar to those in the statute setting out grounds for
termination. Id. In the case before us, petitioner's allegation
merely tracks the language of § 7B-1111(a)(7). The only factual
allegation contained in the petition was the minor child does not
remember or know who the Respondent is. This is not sufficient to
put respondent-mother on notice of the acts or omissions that are
Petitioner argues the petition contained sufficient factual
allegations because the child custody agreement was attached to and
incorporated into the petition. Documents incorporated into the
petition may be used to allege facts sufficient to give the
respondent notice. See Quevedo, 106 N.C. App. at 579, 419 S.E.2d
at 160; In re H.T., ___ N.C. App. ___, 637 S.E.2d 923 (2006).
However, the incorporated document must contain facts that show
grounds exist for terminating parental rights. Quevedo, 106 N.C.App. at 579, 419 S.E.2d at 160. In the case before us, the child
custody agreement merely established custody and visitation
arrangements between petitioner and respondent-mother. It did not
contain any facts regarding respondent-mother's behavior towards or
care of the minor child. Moreover, it did not contain any facts
indicating that respondent-mother acted in a manner inconsistent
with her role as the minor child's parent. The child custody
agreement did not contain facts sufficient to warrant a
determination that one or more of the grounds for terminating
parental rights exist. N.C. Gen. Stat. § 7B-1104(6). The trial
court did not have subject matter jurisdiction over the termination
of parental rights proceedings. Accordingly, the order for
termination of parental rights is vacated without prejudice to
petitioner's right to bring a proper petition before the court.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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