In re T.P.

• Citation: 678 S.E.2d 781
• Decision Date: 07 July 2009
• Docket Number: No. COA09-143.,COA09-143.
• Parties: In the Matter of T.P., M.P., and K.P.
• Court: Court of Appeal of North Carolina (US)

678 S.E.2d 781

In the Matter of T.P., M.P., and K.P.

No. COA09-143.

Court of Appeals of North Carolina.

July 7, 2009.

Appeal by Respondent from orders entered 28 October 2008 by Judge John W. Davis in Warren County District Court. Heard in the Court of Appeals 25 May 2009.

Stainback, Satterwhite, Burnette & Zollicoffer, PLLC, by Caroline S. Burnette, Henderson, for Petitioner-Appellee Warren County Department of Social Services.

Thomas B. Kakassy, P.A., by Thomas B. Kakassy, Gastonia, for Respondent.

Deana K. Fleming, Raleigh, for Guardian ad Litem.

BEASLEY, Judge.

Respondent appeals from an order terminating her parental rights of her minor children, K.P., M.P., and T.P. We reverse and remand.

In July 2006 the Warren County Department of Social Services (Petitioner) investigated a report that Respondent's children, T.P. and M.P., were neglected. Petitioner discovered that T.P. and M.P. were undernourished and improperly supervised, had poor hygiene, and lived in inadequate and unsanitary conditions. Respondent was a habitual substance abuser who was "addicted to illegal drugs such as cocaine[.]" Petitioner's efforts to assist Respondent with substance abuse treatment were unsuccessful, and on 1 September 2006 Petitioner filed petitions alleging that T.P. and M.P. were neglected and dependent juveniles, as defined in N.C. Gen.Stat. § 7B-101(9) and (15) (2007). On the same day, the trial court issued nonsecure custody orders and placed T.P. and M.P. in Petitioner's custody.

Following a hearing conducted 28 November 2006, the trial court adjudicated T.P. and M.P. neglected and dependent. The formal adjudication and disposition orders were entered in June 2007. The children remained in the legal and physical custody of Petitioner, and Respondent was ordered to cooperate with substance abuse treatment.

In March 2007, Respondent gave birth to K.P. On 13 March 2007 Petitioner filed a petition alleging that K.P. was neglected and dependent. The trial court entered a nonsecure custody order placing K.P. in Petitioner's custody. Following a hearing conducted 29 January 2008, the trial court entered an adjudication and disposition order adjudicating K.P. neglected and continuing custody of K.P. with Petitioner.

On 20 June 2008, Petitioner filed petitions for termination of Respondent's parental rights to K.P., M.P., and T.P. The petitions alleged that Respondent was a chronic substance abuser who had not complied with previous court orders. The petitions asserted that the juveniles were neglected and dependent, that it was reasonably probable that the neglect and dependency would continue if they were returned to Respondent's custody, and that Respondent had willfully left them in foster care for more than a year without making reasonable progress towards correcting the conditions which had led to the children's placement outside the home.

In October 2008, the trial court conducted a hearing on the termination petitions. At the hearing, Petitioner offered the testimony of Nyesha Cook, the social worker assigned to this case. Cook testified that Respondent was a substance abuser who tested positive for drugs on every occasion that she had submitted to a drug test. Respondent had not complied with her case plan. Respondent did not cooperate with drug treatment, did not complete a parenting class or attend vocational training, and did not obtain suitable housing. Cook testified that Respondent had made no progress in correcting the problems that had led to the children being removed from her care. Following the hearing, the trial court on 23 October 2008 entered orders terminating Respondent's parental rights of K.P., M.P. and T.P. Respondent appeals these termination orders.

Respondent first argues that the trial court lacked subject matter jurisdiction to terminate her parental rights in M.P. and T.P. Although the absence of subject matter jurisdiction over a proceeding in which the juveniles have been adjudicated neglected would deprive the court of jurisdiction over a termination proceeding. In re K.J.L, ___ N.C.App. ___, ___, 670 S.E.2d 269, 271 (2008), we conclude that no such defect exists here.

"`Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it[,] ... [and] is conferred upon the courts by either the North Carolina Constitution or by statute.'" In re McKinney, 158 N.C.App. 441, 443, 581 S.E.2d 793, 795 (2003) (quoting Haker-Volkening v. Haker, 143 N.C.App. 688, 693, 547 S.E.2d 127, 130 (2001) and Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987)). "Jurisdiction is the power of a court to decide a case on its merits; it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953) (citations omitted). "Subject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and failure to demur or object to the jurisdiction is immaterial." Stark v. Ratashara, 177 N.C.App. 449, 451-52, 628 S.E.2d 471, 473 (2006) (citations omitted). "The issue of subject matter jurisdiction may be considered by the court at any time, and may be raised for the first time on appeal." In re T.B., J.B., C.B., 177 N.C.App. 790, 791, 629 S.E.2d 895, 896-97 (2006). "In reviewing a question of subject matter jurisdiction, our standard of review is de novo." In re K.A.D., 187 N.C.App. 502, 503, 653 S.E.2d 427, 428 (2007).

Under N.C. Gen.Stat. § 7B-200(a)(4) (2007), the "court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent" and "also has exclusive original jurisdiction" over "[p]roceedings to terminate parental rights." Once "the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first." N.C. Gen.Stat. § 7B-201(a) (2007). We conclude that the trial court was generally authorized to exercise jurisdiction over the type of case presented in this instance. However, "`a trial court's general jurisdiction over the type of proceeding or over the parties does not confer jurisdiction over the specific action.' `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.'" In re A.B.D., 173 N.C.App. 77, 86-87, 617 S.E.2d 707, 714 (2005) (quoting In re McKinney, 158 N.C.App. at 444, 447, 581 S.E.2d at 795, 797) (other internal quotations omitted).

"The pleading in an abuse, neglect, or dependency action is the petition." N.C. Gen.Stat. § 7B-401 (2007). "A juvenile abuse, neglect, or dependency action is a creature of statute and `is commenced by the filing of a petition,' which constitutes the initial pleading in such actions." In re A.R.G., 361 N.C. 392, 397, 646 S.E.2d 349, 352 (2007) (citing N.C. Gen.Stat. § 7B-401, and quoting N.C. Gen.Stat. § 7B-405 [(2007)]). "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).

In the instant case, the trial court obtained subject matter jurisdiction over this matter on 1 September 2006, when Petitioner filed juvenile petitions alleging M.P. and T.P. were neglected and dependent juveniles. Respondent does not dispute that a properly verified petition was filed and a summons issued. Respondent's sole basis for challenging subject matter jurisdiction is her assertion that the court's initial temporary order for nonsecure custody, entered in September 2006, was improper. We disagree.

The criteria for the issuance of a nonsecure custody order are set out in N.C. Gen. Stat. § 7B-503 (2007), which provides in relevant part that:

(a) ... An order for nonsecure custody shall be made only when there is a reasonable factual basis to believe the matters alleged in the petition are true and ... (3) The juvenile is exposed to a substantial risk of physical injury or sexual abuse because the parent, ... has created the conditions likely to cause injury or abuse or has failed to provide, or is unable to provide, adequate supervision or protection[.] ... A juvenile alleged to be abused, neglected, or dependent shall be placed in nonsecure custody only when there is a reasonable factual basis to believe that there are no other reasonable means available to protect the juvenile....

The issuance of a nonsecure custody order is governed by N.C. Gen.Stat. § 7B-504 (2007), which provides, in pertinent part, that a nonsecure custody order "shall be in writing and shall direct a law enforcement officer or other authorized person to assume custody of the juvenile and to make due return on the order. A copy of the order shall be given to the juvenile's parent, guardian, custodian, or caretaker by the official executing the order." N.C. Gen.Stat. § 7B-506(a) (2007), states, in part, that a juvenile may not be "held under a nonsecure custody order for more than seven calendar days without a hearing on the merits or a hearing to determine the need for continued custody." In the instant case, Respondent does not allege that the criteria for nonsecure custody were not present, or that the trial court failed to follow the requirements of G.S. § 7B-504 and G.S. § 7B-506. However, Respondent asserts that the trial court's failure to state the specific basis for nonsecure custody in its temporary nonsecure custody order deprived the court of jurisdiction over the entire case. We disagree.

In its entry of an order for nonsecure custody, the trial court made use of a form provided by the Administrative Office of the Courts (AOC), AOC-J-150, "Order for Nonsecure Custody." This form order states in...