In re T.R.M.

• Decision Date: 16 November 2010
• Docket Number: No. COA10-728.,COA10-728.
• Parties: In the Matter of T.R.M.
• Court: North Carolina Court of Appeals

702 S.E.2d 108 In the Matter of T.R.M. No. COA10-728. Court of Appeals of North Carolina. Nov. 16, 2010.

Appeal by respondent-mother from orders entered 12 June 2009 by Judge Jeanie R.Houston and 5 March 2010 by Judge David V. Byrd in District Court, Alleghany County. Heard in the Court of Appeals 18 October 2010.

James N. Freeman, Jr., Elkin, for petitioner Alleghany County Department of Social Services.

Leslie C. Rawls, Charlotte, for appellant-mother.

Lucy Tatum Austin, Apex, for guardian ad litem.

STROUD, Judge.

Respondent-mother appeals from the trial court's permanency planning order and termination of parental rights order. For the following reasons, we affirm the permanency planning order and vacate the termination of parental rights order.

I. Background

On 12 February 2008, the Alleghany County Department of Social Services ("DSS") filed a juvenile petition alleging that Tom ¹ was a neglected juvenile. On 13 February 2008, the trial court entered a nonsecure custody order giving DSS custody of Tom. On 20 May 2008, the trial court entered an order adjudicating Tom neglected, based on the consent of respondent-mother and the father. On 12 June 2009, the trial court entered a permanency planning order which ceased reunification efforts with respondent-mother and changed the permanent plan for Tom to adoption. On 17 July 2009, DSS filed a petition for termination of respondent-mother's parental rights. On 5 March 2010, the trial court entered an order terminating respondent-mother's parental rights. Respondent-mother appeals from the permanency planning order and the termination of parental rights order.

II. Termination of Parental Rights Order

Respondent-mother first contends that "[t]he trial court lacked subject matter jurisdiction over the termination proceedings because the unverified Petition did not comply with N.C. Gen.Stat. § 7B-1104[,]" which requires a petitioner to verify a petition to terminate parental rights. Because the petition was not verified, DSS and the guardian ad litem concede that the trial court lacked jurisdiction over the termination proceedings. Pursuant to N.C. Gen.Stat. § 7B-1104, "[t]he petition ... pursuant to G.S. 7B-1102 [to terminate parental rights], shall be verified by the petitioner [.]" N.C. Gen.Stat. § 7B-1104 (2009). "[A] violation of the verification requirement of N.C.G.S. § 7B-1104 has been held to be a jurisdictional defect per se." In re T.M.H., 186 N.C.App. 451, 454, 652 S.E.2d 1, 2, disc. review denied, 362 N.C. 87, 657 S.E.2d 31 (2007).

Here, DSS filed a petition to terminate respondent-mother's parental rights; however, the petition was not verified, as required by N.C. Gen.Stat. § 7B-1104. Therefore, the trial court never obtained jurisdiction over the termination action, and the trial court's termination of parental rights order is void; accordingly, we must vacate the trial court's order terminating parental rights. See In re C.M.H., 187 N.C.App. 807, 809, 653 S.E.2d 929, 930 (2007). As we are vacating the order terminating parental rights we need not address respondent-mother's remaining challenges regarding this order.

III. Permanency Planning Order

Respondent-mother also appeals from the trial court's permanency planning order because it ceased reunification efforts. Pursuant to N.C. Gen.Stat. § 7B-507(b), the trial court may cease reunification efforts with a parent under specified circumstances:

In any order placing a juvenile in the custody or placement responsibility of a county department of social services, ... the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:

(1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]

N.C. Gen.Stat. § 7B-507(b)(1) (2009). A trial court may "order the cessation of reunificationefforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts." In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 137 (2003).

This Court's review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. If the trial court's findings of fact are supported by any competent evidence, they are conclusive on appeal. The trial court's conclusions of law are reviewable de novo on appeal.

In re P.O., --- N.C.App. ----, ----, 698 S.E.2d 525, 530 (2010) (citation and quotation marks omitted).

Here, the trial court made numerous findings of fact before relieving DSS of further reunification efforts and changing the permanent plan to adoption. The following findings support the trial court's determination that a return to respondent-mother's home was contrary to Tom's health, safety, and need for a permanent home:

[T]om was born June 26, 2002 and is currently six and one-half years old. This Juvenile has experienced much trauma during his brief life highlighted by being a witness to numerous episodes of domestic abuse between his parents and being the victim of a sexual assault by his uncle in November of 2007. Even prior to the sexual abuse episode T[om] displayed bizarre behaviors at school such as pulling up his teachers' shirts, pulling his pants down and fondling himself, and playing with his own urine. In December 2007 he appeared with bruises and complained of being beaten by his mother. In February 2008 he appeared with additional bruising and it became clear that he was not being protected from his sexual abuser....

Although the mother has been generally compliant and concerned about her son's welfare something in the relationship between the Juvenile and his mother produces the bizarre behaviors.... Immediately after each visit with his mother, T[om] is aggressive with other children to the point of hitting, choking and spitting; he almost always returns from visits with soiled underwear either from urine or feces; [h]e attempts to make himself vomit and is hard to control or direct in school including cursing and making statements that are nonsensical, almost hallucinatory. The foster mother ... testified from an exhaustive daily journal that documented T[om]'s bizarre behaviors that occurred contemporaneously with visits with his mother.... Every time T[om] would make progress in his behavior another visit with his mother would set him back. The foster mother tried to help the biological mother by counseling with her about T[om]'s bathroom procedures, allowed her to return Tom home early from several

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