In re S.A.A.

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-1357
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1357 NORTH CAROLINA COURT OF APPEALS Filed: 15 April 2014 In the Matter of: Durham County No. 11 J 108 S.A.A.

Appeal by respondent-mother from order entered 30 August

2013 by Judge William A. Marsh, III, in Durham County District

Court. Heard in the Court of Appeals 31 March 2014.

Assistant County Attorney Bettyna Belly Abney for Durham County Department of Social Services.

Peter Wood for respondent-mother.

Parker Poe Adams & Bernstein LLP, by Erica R. Messimer, for the guardian ad litem.

ERVIN, Judge.

Respondent-Mother Donna F. appeals from an order

terminating her parental rights in her minor child, S.A.A.1 On

appeal, Respondent-Mother contends that the trial court’s order

should be vacated for lack of jurisdiction over the subject

matter of this case as the result of deficiencies in the

1 S.A.A. will be referred to throughout the remainder of this opinion as “Sally,” which is a pseudonym used for ease of reading and to protect the juvenile’s privacy. -2- juvenile petition with which the underlying abuse and neglect

proceeding had been initiated. After careful consideration of

Respondent-Mother’s challenge to the trial court’s order in

light of the record and the applicable law, we conclude that the

trial court’s order should be affirmed.

I. Factual Background

On 5 April 2011, the Durham County Department of Social

Services filed a petition alleging that Sally was an abused and

neglected juvenile and took her into its custody on the basis of

the issuance of a non-secure custody order. On 19 December

2011, Judge Brian C. Wilks entered an order finding that Sally

was a neglected juvenile and directing Respondent-Mother to

comply with all recommended mental health services, participate

in parenting and domestic violence education, and obtain and

maintain stable housing and employment.

After efforts to reunify Sally with Respondent-Mother

proved unsuccessful, DSS filed a petition seeking to have

Respondent-Mother’s parental rights in Sally terminated on the

grounds of neglect, dependency, and failure to make reasonable

progress in correcting the conditions that had led to Sally’s

removal from Respondent-Mother’s home. After a two-day hearing

held in June and July 2013, the trial court entered an order

terminating Respondent-Mother’s parental rights in Sally on the -3- basis of determinations that all three grounds for termination

alleged in the DSS petition existed and that termination of

Respondent-Mother’s parental rights in Sally would be in Sally’s

best interests. Respondent-Mother noted an appeal to this Court

from the trial court’s order.

II. Subject Matter Jurisdiction

In her sole challenge to the trial court’s termination

order, Respondent-Mother argues that the trial court lacked

jurisdiction over the subject matter of this case on the grounds

that the initial abuse and neglect petition had not been

properly verified. More specifically, Respondent-Mother

contends that the initial abuse and neglect petition had not

been verified as required by N.C. Gen. Stat. § 7B-403 since it

had not been signed (1) by an authorized person (based upon a

contention that the identity of the individual verifying the

petition was unclear) (2) before an individual authorized to

administer oaths (based upon a contention that the signature of

the person who witnessed the affiant’s signature on the

verification was illegible) and (3) that these defects in the

underlying abuse and neglect petition deprived the trial court

of jurisdiction over the subject matter of the termination case.

We do not find Defendant’s arguments persuasive. -4- “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).

“Because litigants cannot consent to jurisdiction not authorized

by law, they may challenge jurisdiction over the subject matter

. . . at any stage of the proceedings, even after judgment.”

Id. at 595, 636 S.E.2d at 793 (citation and quotation marks

omitted; omission in original). A signed verification that was

witnessed by an authorized official is, however, valid until it

has been successfully impeached. 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); see also Moore v. Moore, 108

N.C. App. 656, 659, 424 S.E.2d 673, 675 (stating that “North

Carolina recognizes a presumption in favor of the legality of an

acknowledgment of a written instrument by a certifying

officer”), aff’d, 334 N.C. 684, 435 S.E.2d 71 (1993). “In our

view, matters outside the pleadings . . . may be considered and

weighed by the court in determining the existence of

jurisdiction over the subject matter.” Tart v. Walker, 38 N.C.

App. 500, 502, 248 S.E.2d 736, 737 (1978).

The argument advanced in Respondent-Mother’s brief assumes

the existence of various irregularities in the manner in which -5- the underlying abuse and neglect petition was signed and

verified without identifying any evidence tending to actually

impeach the validity of the challenged actions. As a result,

Respondent-Mother’s argument to the contrary notwithstanding, we

are required to assume that the underlying abuse and neglect

petition was properly signed and verified. In addition, a

careful examination of the record establishes that Phanta

Diabate, a social worker employed by DSS, signed the initial

abuse and neglect petition and swore to its accuracy before

Samuel L. Biers, a magistrate. As a result of the fact that Mr.

Biers was authorized to administer oaths and assist in the

verification of pleadings, N.C. Gen. Stat. § 1-148; N.C. Gen.

Stat. §§ 7A-292(1) and (5), and the fact that Respondent-Mother

has not shown that Ms. Diabate lacked “sufficient knowledge or

information to believe that a case has arisen that invoke[d] the

juvenile jurisdiction of the court” or was not authorized in the

course and scope of her employment with DSS to file the

underlying abuse and neglect petition, we hold that the petition

in question was properly signed and verified and that this

petition sufficed to give the trial court jurisdiction over the

subject matter of this case.

III. Conclusion -6- Thus, for the reasons set forth above, Respondent-Mother’s

sole challenge to the trial court’s termination order lacks

merit. As a result, the trial court’s order should be, and

hereby is, affirmed.

AFFIRMED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).