In re S.D.A.

• Decision Date: 17 May 2005
• Docket Number: No. COA04-54.,COA04-54.
• Citation: 612 S.E.2d 362
• Parties: In the Matter of S.D.A., R.G.A., V.P.M., and J.L.M., Minor Children.
• Court: North Carolina Supreme Court

612 S.E.2d 362

In the Matter of S.D.A., R.G.A., V.P.M., and J.L.M., Minor Children.

No. COA04-54.

Court of Appeals of North Carolina.

May 17, 2005.

Appeal by Intervenors from orders entered 7 October 2003 by Judge C. Randy Pool in District Court, Rutherford County. Heard in the Court of Appeals 11 February 2005.

Dameron Burgin & Parker, P.A., by Phillip T. Jackson, Marion; and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., by Eric M. Lieberman, David B. Goldstein, and

Roger Bearden, New York City, pro hac vice, for intervenor-appellants.

Marshall & Roth, P.L.L.C., by Philip J. Roth, Asheville, for S.D.A. and R.G.A.

Hamrick, Bowen, Mebane, Greenway & Lloyd, LLP, by Bradley K. Greenway, Rutherfordton, for Rutherford County Department of Social Services.¹

Smathers & Norwood, by E. Robert Hensley, Jr., Canton, for the mother.²

WYNN, Judge.

It is axiomatic that a trial court must have subject matter jurisdiction over a case to act in that case. In re N.R.M., T.F.M., 165 N.C.App. 294, 598 S.E.2d 147 (2004). Here, S.D.A., R.G.A., and the Covingtons contend that because the Lincoln County Department of Social Services (DSS) found no evidence of abuse and neglect, Rutherford County DSS, which referred the matter to the Lincoln County DSS for investigation due to a conflict, lacked the power to invoke the jurisdiction of the trial court under sections 7B-302(c) and (d) of the North Carolina General Statutes. We agree and therefore vacate the trial court's orders.

The record reflects that in 2000, a Florida court removed the four minor children in this matter from the custody of their mother due to neglect and substance abuse. The mother eventually moved from Florida to Spindale, North Carolina to reside with her sister, and soon thereafter the Florida court allowed the children to move to North Carolina as well.

In North Carolina, the mother and the children began attending religious services at the Word of Faith Fellowship ("Word of Faith"), an evangelical Christian church. The children were enrolled in the Word of Faith Christian School, a private Christian day school. At the church and school, the children participated in religious practices, including "strong prayer," or "blasting," and "discipleship," or "isolation." Strong prayer refers to a strong demonstration of God and driving out of devils through screaming prayer. Discipleship refers to a practice where church members spend time alone, during which they may pray and listen to/watch tapes containing religious teachings. The record indicates that discipleship is also used for behavior modification and involves moving disruptive children from the regular classroom setting into another room where they may receive religious instruction.

The mother obtained employment with Kent Covington, a Word of Faith leader. Mr. Covington and his wife, Brooke, became involved with the mother and her children in February 2001.

In September 2002, the mother chose to leave Spindale because she felt that continuing as a member of Word of Faith was abusive and neglectful of the children. After meeting resistence at Word of Faith, the mother sought the assistance of the Rutherford County Sheriff's Department and was referred to Rutherford County DSS. Rutherford County DSS completed an assessment and recorded that the mother admitted to inappropriate discipline and a history of drug abuse that affected her ability to supervise and care for the children. The mother agreed voluntarily to place her children with the Covingtons until Rutherford County DSS deemed it appropriate to return the children. The mother then signed an agreement giving the Covingtons custody of the children. However, in December 2002, the mother appeared unannounced at the Covingtons' residence and demanded custody of the children. Her request was denied.

On 23 December 2002, the Covingtons filed an action in District Court, Rutherford County to confirm their status as legal custodians of the children. The court entered an ex parte order, confirmed by a temporary order of custody on 31 December 2002, granting the Covingtons custody.

On 23 December 2002 and 4 January 2003, Rutherford County DSS received reports alleging that the children were being abused and/or neglected through, inter alia, corporal punishment and religious practices, particularly "blasting" and "isolation." Rutherford County DSS referred the reports to Lincoln County DSS for an unbiased investigation into the allegations. Lincoln County DSS investigated the reports and, in March 2003, upon request by Rutherford County DSS due to new allegations, conducted additional investigation into particular Word of Faith practices. On 3 April 2003, Lincoln County DSS closed its investigation and sent its decision by letter to Rutherford County DSS, stating: "[We] have completed our out-of-county investigation. The team decision was to unsubstantiate neglect. During the investigation there has been no evidence that [the four children] are neglected/abused by Brooke and Kent Covington or by any other member of Word of Faith."

Notwithstanding Lincoln County DSS's unsubstantiation of the abuse and neglect allegations, on 16 May 2003, Rutherford County DSS filed four petitions alleging that the minor children were abused and neglected from "June 2000 through present" because, inter alia, "[b]y returning her children to [Word of Faith's] influence ... and surrendering custody to the Covingtons, the mother knowingly and willfully exposed her children to continued improper discipline and neglect." The petitions contained detailed allegations of "blasting" and "isolation."

By order filed 9 July 2003, the Covingtons were allowed to intervene as parties, the trial court finding "it is in the best interests of said minor children that [the Covingtons] should be subject to any court order entered in this case, and that [the Covingtons] are necessary parties to this action...." On 21 August 2003, the trial court concluded that the children were abused and neglected and entered four separate orders on 7 October 2003 adjudicating abuse and neglect, ordering the removal of the children from the Covingtons' custody, and placing them in Rutherford County DSS custody. The Covingtons appeal from these orders.

The dispositive issue on appeal is whether the trial court lacked subject matter jurisdiction over this matter because Rutherford County DSS failed to follow its statutorily imposed duties prior to filing the petitions.³ The issue of subject matter jurisdiction may be raised at any time, and may be raised for the first time on appeal. In re J.B., 164 N.C.App. 394, 396, 595 S.E.2d 794, 795 (2004); Yates for McCombs v. N.C. Dep't of Human Res., 98 N.C.App. 402, 404, 390 S.E.2d 761, 762 (1990). Here, the issue of subject matter jurisdiction was brought to this Court's attention by counsel for two of the children and the Covingtons. However, "a court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking.'" In re N.R.M., T.F.M., 165 N.C.App. at 297, 598 S.E.2d at 149 (quoting Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000)).

District courts have exclusive jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent. N.C. Gen.Stat. § 7B-200 (2003). However, "a trial court's general jurisdiction over the type of proceeding or over the parties does not confer jurisdiction over the specific action." In re McKinney, 158 N.C.App. at 447, 581 S.E.2d at 797 (citation omitted). "`Thus, before a court may act there must be some appropriate application invoking the judicial power of the court with respect to the matter in question.'" Id. at 444, 581 S.E.2d at 795 (quoting In re Transp of Juveniles, 102 N.C.App. 806, 808, 403 S.E.2d 557, 558 (1991)).

North Carolina General Statutes section 7B-302(a) mandates that when a department of social services receives a report of abuse or neglect, "the director of the department of social services shall make a prompt and thorough investigation. . . ." N.C. Gen.Stat. § 7B-302(a)(2003). A referral to another county is permissible "[w]hen in the professional judgment of the county director the agency would be perceived as having a conflict of interest. . . ." 10A N.C.A.C. 70A.0103(b).⁴ If the investigation indicates abuse or neglect, North Carolina General Statutes section 7B-302 provides two possible avenues through which the director of the department may invoke the jurisdiction of the court. If abuse or neglect is indicated by the investigation, but immediate removal does not appear necessary, the director must immediately provide or arrange for protective services. N.C. Gen.Stat. § 7B-302(c) (2003). If the parent or custodian refuses the protective services, then the department may invoke the court's jurisdiction for the protection of the child(ren). Id. However, if immediate removal seems necessary, then the director shall sign a complaint alleging the applicable facts to invoke the jurisdiction of the court. N.C. Gen.Stat. § 7B-302(d) (2003). Under this statutory scheme, the two avenues for invoking the court's jurisdiction are available only when an investigation indicates that abuse or neglect has occurred.

The statute is silent on DSS's appropriate course of action if the investigation does not indicate abuse or neglect, and it may be inferred that no further steps are to be taken. This inference is supported by the North Carolina Administrative Code pertaining to DSS investigations, which states: "When a thorough investigation does not reveal abuse, neglect or dependency, the county director, shall ... communicate to [any parent or caretaker who was alleged to have abused or neglected the child or children, any parent or other individual with whom the child or children resided at the time the...