In re O.E.M.

• Decision Date: 29 October 2021
• Docket Number: No. 471A20,471A20
• Citation: 379 N.C. 27,864 S.E.2d 257
• Parties: In the MATTER OF: O.E.M.
• Court: North Carolina Supreme Court

379 N.C. 27

864 S.E.2d 257

In the MATTER OF: O.E.M.

No. 471A20

Supreme Court of North Carolina.

Filed October 29, 2021

No brief filed for petitioner-appellee Transylvania County Department of Social Services.

Womble Bond Dickinson (US) LLP, Raleigh, by Rebecca C. Fleishman and Beth Tyner Jones, for appellee Guardian ad Litem.

Richard Croutharmel, Raleigh, for respondent-appellant father.

Earls, Justice.

¶ 1 In this case, we decide whether the trial court had jurisdiction to enter an order terminating respondent-father's parental rights in his child, O.E.M. (Oscar).¹ The party seeking termination, the Transylvania County Department of Social Services (DSS), failed to verify its motion in the cause for termination as required under N.C.G.S. § 7B-1104 (2019). Nevertheless, after conducting a hearing, the trial court terminated respondent-father's parental rights.

¶ 2 The precise question before us is whether DSS’ failure to verify its motion deprived the trial court of subject matter jurisdiction to conduct termination proceedings. In In re T.R.P. , this Court held that a party's failure to verify a petition alleging that a juvenile was neglected was a fatal jurisdictional defect. 360 N.C. 588, 588, 636 S.E.2d 787 (2006). Although In re T.R.P. addressed a party's failure to verify a juvenile petition, we hold today that the requirement contained in subsection 7B-1104 is also jurisdictional as applied to a motion in the cause for termination. Accordingly, we conclude that DSS’ failure to verify its motion in the cause deprived the trial court of subject matter jurisdiction, and we vacate the order terminating respondent-father's parental rights in Oscar.

I. Analysis

¶ 3 DSS filed a properly verified juvenile petition alleging that Oscar was a neglected and dependent juvenile on 27 November 2018. The petition alleged that Oscar's mother² lacked "knowledge of normal child development" and had exhibited "delusional" behavior at the hospital after giving birth, and that respondent-father lacked "essential items for the juvenile" in his residence and had a pending criminal charge for assault on a female. Both parents admitted to frequent marijuana usage. The trial court entered an order granting DSS nonsecure custody of Oscar and, after a hearing, an order adjudicating Oscar to be a dependent and neglected juvenile. Both parents entered into case plans with DSS. Respondent-father complied with some elements of his case plan and did participate in occasional visits with Oscar, but he continued to use marijuana and engaged in further acts of domestic violence.

¶ 4 On 25 March 2020, DSS filed a motion in the cause seeking termination of both parents’ parental rights on the grounds of neglect pursuant to N.C.G.S. § 7B-1111(a)(1), willful failure to make reasonable progress in correcting the conditions leading to Oscar's removal pursuant to N.C.G.S. § 7B-1111(a)(2), and incapability pursuant to N.C.G.S. § 7B-1111(a)(6). DSS failed to verify this motion.³ On 3 June 2020, the trial court conducted a termination hearing. On 21 June 2020, the trial court entered an order concluding that DSS had proven all three grounds and terminating both parents’ rights in Oscar.

¶ 5 On appeal, respondent-father does not challenge the findings of fact or conclusions of law contained in the termination order. Rather, the sole basis for respondent-father's appeal is DSS’ failure to verify its motion for termination. It is undisputed that DSS did not verify its motion as required under N.C.G.S. § 7B-1104. The parties disagree as to what consequences arise from this omission. Because the parties’ dispute centers on their competing interpretations of our holding in In re T.R.P. , we begin with a brief examination of our decision in that case.

A. In In re T.R.P. , this Court established that a statutory mandate to verify a juvenile petition before filing creates a jurisdictional requirement.

¶ 6 To initiate the process for terminating a parent's parental rights in a juvenile, the party seeking termination must file a petition or may, if the child is already the subject of a pending abuse, neglect, or dependency proceeding, file a motion in the cause for termination. N.C.G.S. § 7B-1104 (2019). Subsection 7B-1104 provides that "[t]he petition [for termination], or motion pursuant to [N.C.G.S. §] 7B-1102, shall be verified by the petitioner or movant." Id. (emphasis added). The significance of the phrase "shall be verified" is the sole issue before us in this case.

¶ 7 In In re T.R.P. , we examined an analogous statutory provision requiring that a petition alleging a juvenile to be abused, neglected, or dependent "shall be ... verified before an official authorized to administer oaths." 360 N.C. at 591, 636 S.E.2d 787 (quoting N.C.G.S. § 7B-403(a) (2005) ). In that case, the Wilkes County Department of Social Services (WCDSS) filed a juvenile petition alleging that a juvenile was neglected, but the petition "was neither signed nor verified by the Director of WCDSS or any authorized representative thereof." Id. at 589, 636 S.E.2d 787. After the trial court entered an order granting legal custody of the juvenile to WCDSS and physical custody to the juvenile's father, the respondent-mother appealed, contending that "the trial court lacked jurisdiction to enter the challenged review order because the juvenile petition was not verified as required by law." Id. The Court of Appeals agreed with respondent-mother and vacated the custody order for lack of subject matter jurisdiction. In re T.R.P. , 173 N.C. App. 541, 619 S.E.2d 525 (2005). In a 4-3 decision, this Court affirmed the decision of the Court of Appeals.

¶ 8 The majority began by describing the General Assembly's expansive authority to "within constitutional limitations, [ ] fix and circumscribe the jurisdiction of the courts of this State." In re T.R.P. , 360 N.C. at 590, 636 S.E.2d 787 (quoting Bullington v. Angel , 220 N.C. 18, 20, 16 S.E.2d 411 (1941) ). According to the majority, when the legislature requires a party "follow a certain procedure" to invoke the trial court's subject matter jurisdiction, a trial court lacks authority to act if the party fails to follow that procedure. Id. (quoting Eudy v. Eudy , 288 N.C. 71, 75, 215 S.E.2d 782 (1975) ). Thus, the majority recognized the general rule that "for certain causes of action created by statute, the requirement that pleadings be signed and verified ‘is not a matter of form, but substance, and a defect therein is jurisdictional.’ " Id. (quoting Martin v. Martin , 130 N.C. 27, 28, 40 S.E. 822 (1902) ). The majority found ample reason to extend this general rule to causes of action created by North Carolina's juvenile code.

¶ 9 According to the majority, "verification of a juvenile petition is no mere ministerial or procedural act." Id. at 591, 636 S.E.2d 787. Instead, the majority reasoned that in a proceeding which "frequently results in DSS’ immediate interference with a respondent's constitutionally-protected right to parent his or her children," id. at 591–92, 636 S.E.2d 787, the verification requirement serves as a "vital link in the chain of proceedings carefully designed to protect children at risk on one hand while avoiding undue interference with family rights on the other," id. at 591, 636 S.E.2d 787. The majority emphasized "[t]he gravity of a decision to proceed and the potential consequences of filing a petition" alleging that a juvenile is abused, neglected, or dependent. Id. at 592, 636 S.E.2d 787. In light of

the magnitude of the interests at stake in juvenile cases and the potentially devastating consequences of any errors, the General Assembly's requirement of a verified petition is a reasonable method of assuring that our courts exercise their power only when an identifiable government actor "vouches" for the validity of the allegations in such a freighted action.

Id. In addition, the majority noted that "for more than twenty years our Court of Appeals has consistently held that subject matter jurisdiction over juvenile actions is contingent upon verification of the petition," and that the General Assembly had never amended the relevant provisions of the juvenile code to modify or abrogate this holding. Id. at 594, 636 S.E.2d 787.

B. The verification requirement is jurisdictional with regard to both petitions and motions in the cause filed pursuant to N.C.G.S. § 7B-1102.

¶ 10 Although In re T.R.P. did not directly address the statute or circumstances at issue in this case, both parties agree In re T.R.P. is relevant. According to respondent-father, the exact same reasons which compelled this Court to hold that the verification requirement contained in N.C.G.S. § 7B-403(a) was jurisdictional should compel us to hold that the verification requirement contained in N.C.G.S. § 7B-1104 —which mirrors subsection 7B-403(a) in providing that a petition or motion "shall be verified"—is also jurisdictional. The appellee, Oscar's guardian ad litem (GAL), acknowledges that under In re T.R.P. , the verification requirement contained in N.C.G.S. § 7B-1102 is jurisdictional with regards to a petition for termination of parental rights. Nonetheless, the GAL contends that In re T.R.P. does not control when, as in this case, the party seeking termination initiates termination proceedings with the filing of a motion in the cause. In this circumstance, the GAL argues, and the dissent agrees, that the verification requirement should be treated as a merely "procedural" requirement and that DSS’ failure to verify its motion does not dispossess the trial court of the jurisdiction it obtained when DSS filed a properly verified petition to have Oscar adjudicated neglected and dependent. We reject this argument for three reasons.

1. The statutory text of N.C.G.S. § 7B-1104 does not support drawing any distinction between petitions and motions in the cause regarding application of the verification requirement.

¶ 11 The first problem with the GAL's...