An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-751 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN RE: S., A Minor Juvenile W.W.S., Petitioner,
v. Wilkes County No. 07 JT 142 A.N.H., and J.L.S., Minor Child, by and through his Guardian Ad Litem, T.L., Respondents.
Appeal by respondent from order entered 1 April 2013 by
Judge Mitchell L. McLean in Wilkes County District Court. Heard
in the Court of Appeals 25 November 2013.
Paul W. Freeman, Jr., for petitioner-appellee.
Robert W. Ewing for respondent-appellant.
Louise M. Paglen for guardian ad litem-appellee.
GEER, Judge.
Respondent mother appeals from the trial court's order
terminating her parental rights to her son "John".1 Respondent
contends the trial court lacked jurisdiction because the
1 The pseudonym "John" is used throughout this opinion to protect the privacy of the child and for ease of reading. -2- juvenile petition was not properly signed and verified.
Respondent points to the fact that the initials "MH" appear next
to the signature of the authorized representative of the Wilkes
County Department of Social Services ("DSS") Director and argues
that the initials necessarily mean that "MH" actually signed the
petition rather than the authorized representative. The
petition was, however, sworn and subscribed to before the
magistrate, thus indicating that the authorized representative
in fact appeared before the magistrate when signing the
petition. Without more, the initials "MH" are not sufficient to
overcome the presumption that the trial court, when it rendered
a decision in this case, acted with jurisdiction. Accordingly,
we affirm.
Facts
On 30 August 2007, DSS filed a petition alleging that John
was neglected. The first page of the petition stated that the
petitioner was "Linda Brooks for James D. Bumgarner." The line
of the verification section of the petition for the "Signature
Of Petitioner" was signed by Linda C. Brooks. Beneath Ms.
Brooks' signature, a box was checked indicating that she was an
authorized representative of the DSS Director. To the right of
Ms. Brooks' signature, there was smaller handwriting that
appears to be the letters "MH." There was no other writing in -3- the signature space. The verification also indicated that the
petition was sworn and subscribed to by Ms. Brooks before the
magistrate on 30 August 2007.
On 16 January 2008, the trial court entered an order
adjudicating John, as well as two siblings, neglected.2 On 20
June 2012, DSS filed a petition to terminate respondent's
parental rights to John. On 1 April 2013, the trial court
entered an order in which it concluded that four grounds to
terminate respondent's parental rights existed and that
termination of respondent's parental rights was in John's best
interest. Respondent timely appealed to this Court from the
termination of parental rights order.
I
Preliminarily, we must address respondent's motion to
strike the affidavit of Linda C. Brooks. The briefs of
petitioner and of the guardian ad litem ("GAL") each attached an
affidavit of Linda C. Brooks, dated 4 September 2013. This
affidavit was prepared in response to respondent's brief on
appeal. The GAL explained in a response to respondent's motion
to strike that the affidavit was submitted (1) to provide an
explanation for an ambiguous notation that is a part of the
2 Respondent's parental rights to John's two siblings were not addressed in the termination of parental rights order that gave rise to this appeal. -4- record, (2) to provide an opportunity for this Court to take
judicial notice of Ms. Brooks' signature, and (3) to correct a
false assumption asserted by respondent.
Rule 9 of the Rules of Appellate Procedure limits this
Court's review to the record on appeal. "Matters discussed in
the brief but outside the record will not be considered."
Hudson v. Game World, Inc., 126 N.C. App. 139, 142, 484 S.E.2d
435, 437-38 (1997). Ms. Brooks' affidavit is not an actual part
of the record on appeal nor could the record on appeal be
amended to add the affidavit. It was not "filed, served,
submitted for consideration, admitted, or made the subject of an
offer of proof" in the trial court. N.C.R. App. P. 11(c).
This Court cannot, therefore, consider the affidavit in
connection with this appeal, and we accordingly grant
respondent's motion to strike the affidavit. See In re L.B.,
181 N.C. App. 174, 185, 639 S.E.2d 23, 28 (2007) (striking from
record affidavit by DSS social worker added as an exhibit to a
petitioner's brief and all references in brief to information
contained in affidavit).
II
In two related arguments on appeal, respondent contends
that the juvenile petition was not properly signed or verified.
Respondent first argues that the failure to properly sign or -5- verify the petition rendered the adjudication order void and
deprived the trial court of subject matter jurisdiction to enter
the adjudication order and all subsequent orders in the matter,
including the termination of parental rights order. Respondent
also argues that DSS lacked standing to file the termination of
parental rights petition because it was not given custody of
John by a court of competent jurisdiction as the petition was
not properly verified. Both arguments hinge on respondent's
assertion that "MH," and not Ms. Brooks, actually signed the
petition.
"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." In
re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). A
juvenile petition alleging abuse, neglect, or dependency "shall
be drawn by the director, 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) (2011).
The statutory definition of director includes "[t]he
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. 108A-14." N.C.
Gen. Stat. § 7B-101(10) (2011) (emphasis added). Accordingly, a -6- 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. In re Dj.L., D.L., & S.L.,
184 N.C. App. 76, 79, 646 S.E.2d 134, 137 (2007) (quoting N.C.
Gen. Stat. § 108A-14(b) (2005)).
Respondent did not argue before the trial court that the
petition was improperly verified and, therefore, the trial court
had no opportunity to clarify the significance of the initials
"MH" written next to the signature "Linda C. Brooks." It is
Free access — add to your briefcase to read the full text and ask questions with AI
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. COA13-751 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN RE: S., A Minor Juvenile W.W.S., Petitioner,
v. Wilkes County No. 07 JT 142 A.N.H., and J.L.S., Minor Child, by and through his Guardian Ad Litem, T.L., Respondents.
Appeal by respondent from order entered 1 April 2013 by
Judge Mitchell L. McLean in Wilkes County District Court. Heard
in the Court of Appeals 25 November 2013.
Paul W. Freeman, Jr., for petitioner-appellee.
Robert W. Ewing for respondent-appellant.
Louise M. Paglen for guardian ad litem-appellee.
GEER, Judge.
Respondent mother appeals from the trial court's order
terminating her parental rights to her son "John".1 Respondent
contends the trial court lacked jurisdiction because the
1 The pseudonym "John" is used throughout this opinion to protect the privacy of the child and for ease of reading. -2- juvenile petition was not properly signed and verified.
Respondent points to the fact that the initials "MH" appear next
to the signature of the authorized representative of the Wilkes
County Department of Social Services ("DSS") Director and argues
that the initials necessarily mean that "MH" actually signed the
petition rather than the authorized representative. The
petition was, however, sworn and subscribed to before the
magistrate, thus indicating that the authorized representative
in fact appeared before the magistrate when signing the
petition. Without more, the initials "MH" are not sufficient to
overcome the presumption that the trial court, when it rendered
a decision in this case, acted with jurisdiction. Accordingly,
we affirm.
Facts
On 30 August 2007, DSS filed a petition alleging that John
was neglected. The first page of the petition stated that the
petitioner was "Linda Brooks for James D. Bumgarner." The line
of the verification section of the petition for the "Signature
Of Petitioner" was signed by Linda C. Brooks. Beneath Ms.
Brooks' signature, a box was checked indicating that she was an
authorized representative of the DSS Director. To the right of
Ms. Brooks' signature, there was smaller handwriting that
appears to be the letters "MH." There was no other writing in -3- the signature space. The verification also indicated that the
petition was sworn and subscribed to by Ms. Brooks before the
magistrate on 30 August 2007.
On 16 January 2008, the trial court entered an order
adjudicating John, as well as two siblings, neglected.2 On 20
June 2012, DSS filed a petition to terminate respondent's
parental rights to John. On 1 April 2013, the trial court
entered an order in which it concluded that four grounds to
terminate respondent's parental rights existed and that
termination of respondent's parental rights was in John's best
interest. Respondent timely appealed to this Court from the
termination of parental rights order.
I
Preliminarily, we must address respondent's motion to
strike the affidavit of Linda C. Brooks. The briefs of
petitioner and of the guardian ad litem ("GAL") each attached an
affidavit of Linda C. Brooks, dated 4 September 2013. This
affidavit was prepared in response to respondent's brief on
appeal. The GAL explained in a response to respondent's motion
to strike that the affidavit was submitted (1) to provide an
explanation for an ambiguous notation that is a part of the
2 Respondent's parental rights to John's two siblings were not addressed in the termination of parental rights order that gave rise to this appeal. -4- record, (2) to provide an opportunity for this Court to take
judicial notice of Ms. Brooks' signature, and (3) to correct a
false assumption asserted by respondent.
Rule 9 of the Rules of Appellate Procedure limits this
Court's review to the record on appeal. "Matters discussed in
the brief but outside the record will not be considered."
Hudson v. Game World, Inc., 126 N.C. App. 139, 142, 484 S.E.2d
435, 437-38 (1997). Ms. Brooks' affidavit is not an actual part
of the record on appeal nor could the record on appeal be
amended to add the affidavit. It was not "filed, served,
submitted for consideration, admitted, or made the subject of an
offer of proof" in the trial court. N.C.R. App. P. 11(c).
This Court cannot, therefore, consider the affidavit in
connection with this appeal, and we accordingly grant
respondent's motion to strike the affidavit. See In re L.B.,
181 N.C. App. 174, 185, 639 S.E.2d 23, 28 (2007) (striking from
record affidavit by DSS social worker added as an exhibit to a
petitioner's brief and all references in brief to information
contained in affidavit).
II
In two related arguments on appeal, respondent contends
that the juvenile petition was not properly signed or verified.
Respondent first argues that the failure to properly sign or -5- verify the petition rendered the adjudication order void and
deprived the trial court of subject matter jurisdiction to enter
the adjudication order and all subsequent orders in the matter,
including the termination of parental rights order. Respondent
also argues that DSS lacked standing to file the termination of
parental rights petition because it was not given custody of
John by a court of competent jurisdiction as the petition was
not properly verified. Both arguments hinge on respondent's
assertion that "MH," and not Ms. Brooks, actually signed the
petition.
"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." In
re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). A
juvenile petition alleging abuse, neglect, or dependency "shall
be drawn by the director, 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) (2011).
The statutory definition of director includes "[t]he
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. 108A-14." N.C.
Gen. Stat. § 7B-101(10) (2011) (emphasis added). Accordingly, a -6- 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. In re Dj.L., D.L., & S.L.,
184 N.C. App. 76, 79, 646 S.E.2d 134, 137 (2007) (quoting N.C.
Gen. Stat. § 108A-14(b) (2005)).
Respondent did not argue before the trial court that the
petition was improperly verified and, therefore, the trial court
had no opportunity to clarify the significance of the initials
"MH" written next to the signature "Linda C. Brooks." It is
well established that "[a]lthough the question of subject matter
jurisdiction may be raised at any time," when, as here, "the
trial court has acted in a matter, 'every presumption not
inconsistent with the record will be indulged in favor of
jurisdiction[.]'" Cheape v. Town of Chapel Hill, 320 N.C. 549,
557, 359 S.E.2d 792, 797 (1987) (quoting Dellinger v. Clark, 234
N.C. 419, 424, 67 S.E.2d 448, 452 (1951)).
In this case, there is no dispute that Linda C. Brooks was
an authorized representative of the DSS Director and could
properly verify the juvenile petition. The sole issue is
whether Ms. Brooks in fact signed the petition. The petition on
its face indicates that the petition was sworn and subscribed to
by Ms. Brooks before the magistrate. See N.C. Gen. Stat. § 7A-
292(5) (2011) (granting magistrates authority to verify -7- pleadings); N.C. Gen. Stat. § 1-148 (2011) (providing that
magistrate "is competent to take affidavits for the verification
of pleadings").
A signed verification, witnessed by an authorized official,
is presumed valid unless evidence in the record impeaches the
verification. See Moore v. Moore, 108 N.C. App. 656, 659, 424
S.E.2d 673, 675 ("North Carolina recognizes a presumption in
favor of the legality of an acknowledgment of a written
instrument by a certifying officer."), aff'd per curiam, 334
N.C. 684, 435 S.E.2d 71 (1993). See also Skinner v. Skinner, 28
N.C. App. 412, 414, 222 S.E.2d 258, 261 (1976) (holding
verification valid where "[t]here was no showing that plaintiff
did not in fact sign the verification," "nothing in the record
suggests that the signature which appears thereon was not in
fact his signature," "[t]he certificate to the verification
signed by the notary public and attested by her seal certifies
that the verification was '[s]worn to and subscribed' before
her, and nothing in the record impeaches that certification")
Respondent attempts to impeach the verification by alleging
that the letters "MH" handwritten near Ms. Brooks' signature
prove that Ms. Brooks did not actually sign the verification.
Respondent attempts to draw a parallel between the instant case
and the facts that led to our prior decision in In re A.J.H-R. & -8- K.M.H-R., 184 N.C. App. 177, 645 S.E.2d 791 (2007). In that
case, we held that the signatures on the verifications of two
petitions were insufficient, where those two signatures read
"'James D. Bumgarner by MH'" and "'James D. Bumgarner by
MHenderson,'" with the "'Director'" box checked on each
petition. Id. at 179, 645 S.E.2d at 792. Those petitions
plainly indicated that they were not signed by the party
purporting to verify them. Here, in contrast, the verification
does not indicate that the signature was given "by" any
individual other than the identified authorized representative
of the DSS Director, Ms. Brooks. See also In re S.E.P. &
L.U.E., 184 N.C. App. 481, 487, 646 S.E.2d 617, 621 (2007)
(holding no subject matter jurisdiction where petitioner's
signature read "'[director's name] by Pam Frazier'" with
"'[d]irector'" box checked because signature not in fact
director's signature and where amended petition not signed by
any DSS personnel). Therefore, we find respondent's comparison
to In re A.J.H-R. unavailing and hold that the letters "MH" next
to Ms. Brooks' signature, without more, are insufficient
evidence to overcome the presumption that Ms. Brooks in fact
signed her name. Because Ms. Brooks' signature constitutes a
signature of an authorized representative of the DSS Director as -9- required by N.C. Gen. Stat. § 7B-403(a), the verification was
valid. Accordingly, we affirm.
Affirmed.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).