In re D.F.S.

• Court: Court of Appeals of North Carolina
• Decided: February 18, 2014
• Docket: 13-913
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA13-913 NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

IN THE MATTER OF:

D.F.S. and J.I.M., Macon County Nos. 12 JA 1-2

Appeal by respondent mother from order entered 21 December

2012 by Judge Donna F. Forga in Macon County District Court.

Heard in the Court of Appeals 27 January 2014.

Elizabeth Myrick Boone for petitioner-appellee Macon County Department of Social Services.

Ewing Law Firm, PC, by Robert W. Ewing for respondent- appellant mother.

Ellis & Winters, LLP, by Lauren A. Miller, for guardian ad litem.

STEELMAN, Judge.

Where the juvenile petition is verified before an officer

authorized to administer oaths, and a person signs as an

authorized representative of the DSS director and checks the

appropriate box on the AOC form so indicating, the petition

properly confers jurisdiction upon the trial court. The -2- uncontested findings of fact support the trial court’s

conclusion that reunification efforts with mother should be

ceased. Mother has not properly petitioned for a writ of

certiorari to review the visitation provisions of the order.

I. Factual and Procedural Background

V.M. (mother) is the mother of the minor children D.F.S.

and J.I.M., born in 1997 and 1999. On 18 January 2012 the Macon

County Department of Social Services (DSS) (petitioner) filed

petitions alleging that the juveniles were neglected and

dependent. The petitions asserted that mother had choked D.F.S

and given her a black eye, and had told J.I.M. to lie to DSS

about the cause of D.F.S’s injuries; that J.I.M. had also been

subjected to inappropriate discipline; that mother behaved

erratically and had twice been subject to commitment

proceedings; and that she had admitted using illegal drugs and

had tested positive for the presence of marijuana, opiates, and

methamphetamine. On the same day, petitioner obtained nonsecure

custody orders placing the children in petitioner’s custody.

A hearing was conducted on 9 April 2012, and on 11 May 2012

District Court Judge Roy Wijewickrama entered an order

adjudicating the juveniles to be neglected. In its disposition

order, the court continued the juveniles’ custody with DSS,

directed that visitation should be supervised, and ordered -3- mother to maintain weekly contact with DSS, keep DSS informed of

her address, telephone number, and employment, complete anger

management, substance abuse, and parent education programs,

remain under the care of a mental health provider, provide DSS

with a list of her medications, remain drug free and submit to

drug screens by DSS, provide DSS with proof of housing and

obtain a stable source of income, attend family counseling, and

fully cooperate with DSS and child support enforcement

authorities.

The matter came on for a review and permanency planning

hearing on 6 December 2012. In an order entered 21 December

2012, the trial court relieved DSS of further efforts towards

reunification and changed the permanent plan for the juveniles

to guardianship with a court-approved caretaker or APPLA

(“another planned permanent living arrangement”).

Mother appeals.

II. Jurisdiction

In her first argument, mother contends that the order

relieving the Macon County DSS from further efforts to achieve

reunification is invalid, because the trial court lacked subject

matter jurisdiction over the proceedings in that “the underlying

juvenile petitions were not signed by the director or an -4- authorized representative of the Macon County Department of

Social Services.” This argument is without merit.

“This Court recognizes its duty to insure subject matter

jurisdiction exists prior to considering an appeal.” In re

E.T.S., 175 N.C. App. 32, 35, 623 S.E.2d 300, 302 (2005) (citing

In re N.R.M., T.F.M., 165 N.C. App. 294, 296-98, 598 S.E.2d 147,

148-49 (2004)). “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. . . . [S]ubject matter jurisdiction over juvenile

actions is contingent upon verification of the petition.” In re

T.R.P., 360 N.C. 588, 593-94, 636 S.E.2d 787, 792 (2006)

(citations omitted). Upon review of the petitions filed in this

case, we conclude that they were properly verified.

“N.C. Gen. Stat. § 7B-403(a) (2005) provides that a

juvenile petition alleging dependency, abuse, or neglect ‘shall

be drawn by the director, verified before an official authorized

to administer oaths, and filed by the clerk, recording the date

of filing.’” In re Dj.L., D.L. & S.L., 184 N.C. App. 76, 79, 646

S.E.2d 134, 137 (2007). N.C. Gen. Stat. § 7B-101 (10) defines

“director” as the “director of the county department of social

services in the county in which the juvenile resides or is

found, or the director’s representative as authorized in G.S. -5- 108A-14.” N.C. Gen. Stat. § 108A-14(b) (2013) authorizes the

director of a county department of social services to “delegate

to one or more members of his staff the authority to act as his

representative.” Accordingly, a DSS director may “delegate to

one or more members of his staff the authority to act as his

representative” to file an abuse, neglect, and dependency

petition. Dj.L., 184 N.C. App. at 79, 646 S.E.2d at 137

(internal citations and quotation marks omitted).

N.C. Gen. Stat. § 1A-1, Rule 11(b) provides that “[i]n any

case in which verification of a pleading shall be required by

these rules or by statute, it shall state in substance that the

contents of the pleading verified are true to the knowledge of

the person making the verification, except as to those matters

stated on information and belief, and as to those matters he

believes them to be true. Such verification shall be by

affidavit of the party[.]” “[If] a pleading is statutorily

required to be verified, that pleading ‘must be sworn to before

a notary public or other officer of the court authorized to

administer oaths.’ ‘Any officer competent to take the

acknowledgment of deeds, and any judge or clerk of the General

Court of Justice, notary public, in or out of the State, or

magistrate, is competent to take affidavits for the verification

of pleadings, in any court or county in the State, and for -6- general purposes.’” Fansler v. Honeycutt, __ N.C. App. __, __,

728 S.E.2d 6, 8 (2012) (quoting 1 G. Gray Wilson, North Carolina

Civil Procedure § 11-7, at 196 (2d ed. 1995), and N.C. Gen.

Stat. § 1-148).

In this case, petitioner used AOC Form J-130 for

preparation of the juvenile petitions. This form contains a

verification section which provides for the petitioner to sign

his or her name and to swear that

Being first duly sworn, I say that I have read the allegations in the petition and that the same are true to my own knowledge, except as to those matters alleged upon information and belief, and as to those, I believe them to be true.

Immediately below this averment is the dated signature of a

Deputy Clerk of Superior Court for Macon County, an official who

is authorized to administer oaths for purposes of verification,

and the signature of Lisa Hilliard, who signed the petition

“Lisa Hilliard: Jane C. Kimsey” and checked the box marked

“Authorized Representative of Director.” We conclude that

petitioner complied in every respect with the statutory

requirements for verification.

On 18 October 2013, petitioner filed a motion asking this

Court to take judicial notice of the status of Ms. Kimsey as DSS

director and Ms. Hilliard as her authorized representative. We

conclude, however, that it is not necessary for us to take -7- judicial notice of these facts. A signed verification, witnessed

by an authorized official, is valid unless evidence in the

record impeaches the verification. Skinner v. Skinner, 28 N.C.

App. 412, 414, 222 S.E.2d 258, 260-61, disc. review denied, 289

N.C. 726, 224 S.E.2d 674 (1976). Mother has not identified any

evidence that might impeach the validity of the verification.

For example, she does not dispute that Ms. Kimsey was the DSS

director or that Ms. Hilliard was her duly authorized

representative. We hold that where a petition is (1) verified

before an officer who is entitled to administer oaths and who

checks one of the boxes indicating the source of his or her

authority and (2) is signed by an individual as the authorized

representative of the director, who checks the box for

“Authorized Representative” that (3) the petition is properly

verified. We conclude that the petitions conferred subject

matter jurisdiction upon the trial court and that mother is not

entitled to relief on this basis.

III. Cessation of Reunification

In her second argument, mother contends that the trial

court abused its discretion by relieving DSS of further efforts

to reunify the family, given that mother had made some progress

in complying with her case plan. We disagree.

A. Standard of Review -8- “‘This Court reviews an order that ceases reunification

efforts to determine whether the trial court made appropriate

findings, whether the findings are based upon credible evidence,

whether the findings of fact support the trial court’s

conclusions, and whether the trial court abused its discretion

with respect to disposition.’ Findings of fact which are not

challenged on appeal as lacking adequate evidentiary support are

deemed supported by competent evidence and are binding for

purposes of appellate review.” In re D.E.G., __ N.C. App. __,

__, 747 S.E.2d 280, 283 (2013) (quoting In re C.M., 183 N.C.

App. 207, 213, 644 S.E.2d 588, 594 (2007) (internal citation

omitted), and citing Koufman v. Koufman, 330 N.C. 93, 97, 408

S.E.2d 729, 731 (1991).

B. Analysis

A court may direct DSS to cease further reasonable efforts

toward reunification if it finds “[s]uch efforts clearly would

be futile or would be inconsistent with the juvenile's health,

safety, and need for a safe, permanent home within a reasonable

period of time[.]” N.C. Gen. Stat. § 7B-507(b)(1) (2013). In

this case, the trial court made sufficient findings of fact,

supported by competent evidence, to support its finding that

further efforts toward reunification would be futile. The trial

court found, in relevant part, that: -9- . . .

29. That pursuant to N.C. General Statutes § 7B-507, DSS has made reasonable efforts to . . . reunify this family[.] . . . Some of these reasonable efforts include: providing Medicaid, providing food stamps . . . meeting with the Respondent mother on numerous occasions prior to the filing of the juvenile petitions in attempts to engage the Respondent mother in a case plan for the family, facilitating visitations, making referrals for the minor children for mental health counseling, making referrals to the Respondent mother . . . for mental health services and treatment, developing a case plan with the Respondent mother, monitoring visitations, linking the Respondent mother with services regarding counseling, parenting classes, therapy, drug testing, and case management[.]

30. . . . That there are no appropriate relatives available for placement of the minor children at this time.

31. That return of the minor children to their home would be contrary to the minor children’s welfare, safety, and best interest at this time.

. . .

35. That the minor children have expressed to the social worker that they are afraid to return to the home of the Respondent mother.

43. That the Respondent mother did sign a case plan with DSS on April 13, 2012. She does maintain weekly contact with DSS and does maintain face to face monthly contact with DSS. She keeps DSS informed of her contact information and status. She has attended parenting classes and sees a -10- counselor for anger management, individual counseling, and substance abuse. The Respondent mother currently lives in a one bedroom apartment after being evicted from her previous home by summary ejectment in July 2012. In that matter, Respondent mother did appear in Court and did not dispute the details of the ejectment.

44. That on October 8, 2012, DSS social worker Stacey Jenkins left the Respondent mother a voice mail requesting she submit to a random drug screen; later that day the Respondent mother left social worker Jenkins a voice mail indicating that she was available later that day; because of the time frame before which the Respondent mother made herself available for the requested screen, DSS deemed the Respondent mother did not appear for the screen. The Respondent mother is not required to take random drug screens for her substance abuse counseling.

45. That despite her appointments/sessions with Mr. Ross, the Respondent mother has failed to demonstrate an ability to parent the children and has failed to prove to the satisfaction of the Court that she has addressed her anger management issues.

48. That the Respondent mother has worked with her counselor in efforts to increase her ability to deal with the minor children but her contact with the children has not demonstrated that ability.

49. That the Respondent mother has had 14 appointments with Appalachian Counseling; ten were completed, two were rescheduled by Appalachian, and two were cancelled by the Respondent mother. That there needs to be one more session to complete anger management, but the substance abuse and -11- parenting sessions are ongoing.

50. That the issue of discipline has been a small part of the Respondent mother’s counseling.

51. That the Respondent mother has had supervised visitations with the minor children[.] . . . Visitations were ended with [D.F.S.] on September 24, 2012, on the recommendations of Ms. Holmes, [D.F.S.’s] therapist. Prior to that time, there were a number of visits that ended with [D.F.S.] due to the Respondent mother and [D.F.S.] regarding typical teenage issues such as attire, cheerleading, school, etc., but the general underlying problem between [D.F.S.] and the Respondent mother is a failure to communicate. The Respondent mother’s counseling has been unsuccessful in trying to address that issue. The Respondent mother lacks the ability to effectively deal with the typical teen age problems of the minor children.

52. That visitations between [J.I.M.] and the Respondent mother have been appropriate for the most part; that they get along well and can discuss issues effectively but that the discussion of the progress of this case has caused anxiety on [J.I.M.’s] part.

53. That the Respondent mother is more short and more critical with [D.F.S.] than she is with [J.I.M.]. On September 17, 2012, the Respondent mother told [D.F.S.] that she didn’t have to come home.

54. That the Respondent mother loves both children deeply and both children love their mother. That while they desire to be with their mother, the minor children do not feel safe being with their mother at this time. Both children expressed a desire to have a relationship with their mother but do not want to live with their mother. Both -12- children do not believe that their mother has the ability to effectively parent them at this time.

55. That a difficulty in communication between DSS and the Respondent mother has created a situation where the minor child [D.F.S.] attempts to communicate information with the Respondent mother that increases the anxiety in their relationship.

56. That the family therapy visits that were previously ordered by the Court between the minor children and the Respondent mother were stopped by the therapist between the Respondent mother and [J.I.M.] despite the Court not specifically allowing those sessions to stop. The therapists recommendations regarding family therapy in the prior Orders referred to [D.F.S.].

57. That while the minor children love their mother, neither feels it is appropriate for them to go home at this time.

58. That the permanent plan of reunification is no longer an appropriate plan for the minor children.

59. That the minor children continue to require more adequate care than the Respondent parents can provide.

60. That it is not possible for the minor children to be returned to their own home at this time and it is not in their best interest to do so at this time.

On appeal, mother directs our attention to evidence that might

have supported different findings of fact, but challenges the

evidentiary support for only two of the trial court’s findings,

Nos. 48 and 51. As discussed above, unchallenged findings are -13- binding on appeal. We conclude that the trial court’s

unchallenged findings of fact support its conclusion that

further efforts at reunification would be futile. The trial

court’s findings of fact describe a situation in which

respondent made some efforts toward completing components of her

case plan, but was unable to demonstrate progress in adequately

communicating with or caring for the juveniles. “‘An abuse of

discretion occurs when the trial court’s ruling is so arbitrary

that it could not have been the result of a reasoned decision.’”

D.E.G., __ N.C. App. at __ 747 S.E.2d at 283 (quoting In re

Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)

(internal quotations omitted). Given the trial court’s extensive

findings describing respondent’s lack of progress, we cannot say

that the court’s ruling was not the result of a reasoned

decision, and hold that the trial court did not abuse its

discretion.

IV. Visitation

Finally, in a footnote in her brief, respondent requests

that we treat her brief as a petition for writ of certiorari in

order to permit review of her visitation argument. Respondent’s

attempt to request certiorari through a footnote, however, does

not comply with the requirements of N.C.R. App. P. 21(c), and

she has not made any argument that her request for review falls -14- within N.C.R. App. P. 21(a). Therefore, we decline to exercise

our discretion to allow respondent’s purported petition or to

use N.C.R. App. P. 2 to suspend the requirements of Rule 21 in

order to expand the scope of appellate review. State v. McCoy,

171 N.C. App. 636, 639, 615 S.E.2d 319, 321, appeal dismissed,

360 N.C. 73, 622 S.E.2d 626 (2005).

AFFIRMED.

Judges HUNTER, Robert C., and BRYANT concur.

Report per Rule 30(e).