In re Z.G.J.

• Decision Date: 27 August 2021
• Docket Number: No. 339A20,339A20
• Citation: 862 S.E.2d 180,378 N.C. 500
• Parties: In the MATTER OF: Z.G.J.
• Court: North Carolina Supreme Court

378 N.C. 500

862 S.E.2d 180

In the MATTER OF: Z.G.J.

No. 339A20

Supreme Court of North Carolina.

Filed August 27, 2021

Lauren Vaughan, for petitioner-appellee Iredell County Department of Social Services.

Stephen M. Schoeberle, for appellee Guardian ad Litem.

Jeffrey L. Miller, Greenville, for respondent-appellant mother.

HUDSON, Justice.

¶ 1 Respondent appeals from the trial court's orders terminating her parental rights to her minor child Z.G.J. (Ann).¹ She raises four main arguments on appeal: (1) that the social worker who signed the termination of parental rights petition lacked standing to file the petition; (2) that the trial court improperly relied only on the termination petition when assessing whether grounds existed to terminate respondent's rights; (3) that the trial court's findings of fact do not support its determination that respondent's parental rights were subject to termination based on neglect, willfully leaving Ann in foster care or a placement outside the home for more than twelve months without making reasonable progress toward correcting the conditions that led to her removal, willfully failing to pay a reasonable portion of Ann's cost of care for the six months preceding the filing of the petition, and dependency; and (4) that respondent received ineffective assistance from her trial counsel. After review, we conclude the trial court's findings of fact do not support its conclusion that grounds for termination existed, and we reverse the termination orders.

I. Background

¶ 2 Petitioner Iredell County Department of Social Services (DSS) became involved with Ann's family beginning in August 2016 after DSS received a Child Protective Services (CPS) report alleging that Ann's parents were using a variety of drugs in front of Ann, engaging in domestic violence, and failing to supervise Ann, who was not yet two years old. DSS began providing services to the family but only received minimal cooperation with these services.

¶ 3 In the ensuing months, DSS received three more CPS reports which included more allegations of substance abuse and domestic violence by Ann's parents. The last of these reports was received on 14 February 2017 and reflected that respondent had overdosed and was found lying on the ground next to a vehicle where Ann was strapped into her car seat inside. Witnesses reported that both of Ann's parents had been shooting up heroin in the back of the vehicle. Both parents were charged with misdemeanor child abuse. The next day, DSS filed a petition alleging that Ann was an abused and neglected juvenile and obtained nonsecure custody.

¶ 4 On 21 March 2017, the parties entered into consent adjudication and disposition orders. Ann was adjudicated to be abused and neglected. In order to remedy the issues which led to Ann's removal, respondent was ordered to enter into and comply with a case plan, to cooperate with DSS and the guardian ad litem, to submit to substance abuse and domestic violence evaluations and comply with any resulting recommendations, to submit to random drug screens, to not use any illegal drugs and only use prescription medications in the manner prescribed, to not engage in domestic violence, and to not engage in criminal activity. Respondent was granted supervised visitation for two hours per week, with the opportunity for additional supervised visitation in the community if she submitted three consecutive negative drug screens.

¶ 5 The first permanency planning hearing was held on 12 September 2017. In the order that resulted, the trial court found that respondent was currently in jail awaiting trial on new criminal charges involving drug use and theft and that she had not made any progress on her case plan. The court established a primary permanent plan of guardianship, with a secondary plan of custody with a relative.

¶ 6 The next permanency planning hearing occurred on 5 December 2017. The parties agreed to a consent order which included findings that respondent had been released from jail and had begun to "lay some groundwork" for her case plan. The primary permanent plan was changed to reunification with a secondary plan of adoption.

¶ 7 The permanent plans remained unchanged through the 1 May 2018 permanency planning hearing. However, in its order from that hearing, the trial court found that respondent had tested positive for opiates and that she was not making adequate progress on her case plan within a reasonable period of time.

¶ 8 On 21 August 2018, DSS filed a petition to terminate respondent's parental rights on the grounds of neglect, willfully leaving Ann in foster care or a placement outside the home for more than twelve months without making reasonable progress toward correcting the conditions that led to her removal, willfully failing to pay a reasonable portion of Ann's cost of care for the six months preceding the filing of the petition, and dependency. See N.C.G.S. § 7B-1111(a)(1)–(3), (6) (2019). DSS social worker Toia Johnson verified the petition.

¶ 9 The trial court conducted a termination hearing on 24 September 2019. During the adjudication phase, Johnson was the only witness, and she testified that she would adopt the allegations in the termination petition as her testimony. There were no objections to entering the petition into the record, and respondent's counsel declined to cross-examine Johnson. At the conclusion of the adjudicatory phase, the trial court rendered its decision that grounds existed to terminate respondent's parental rights. The case then proceeded to the dispositional phase.

¶ 10 Respondent did not arrive until midway through the disposition hearing. She was permitted to testify and recounted some of her progress, including her plan to enter into an in-patient substance abuse treatment program. On cross-examination, respondent admitted that she was addicted to heroin and that she had failed to satisfy many of the conditions of her case plan. After hearing the evidence and the arguments of counsel, the trial court rendered its determination that termination of respondent's parental rights was in Ann's best interest.

¶ 11 On 30 April 2020, the trial court entered two written orders terminating respondent's parental rights to Ann.² In its adjudication order, the court concluded that all four grounds for termination alleged by DSS existed, and in its disposition order, the court concluded that termination was in Ann's best interests. Respondent appeals.

II. Standing

¶ 12 Respondent's first argument is that the trial court lacked subject matter jurisdiction to terminate her parental rights because the termination petition was not filed by a party with standing. "Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction." In re A.S.M.R. , 375 N.C. 539, 542, 850 S.E.2d 319 (2020) (cleaned up).

The existence of subject matter jurisdiction is a matter of law and cannot be conferred upon a court by consent. A court's lack of subject matter jurisdiction is not waivable and can be raised at any time, including for the first time upon appeal. We review questions of law de novo.

In re N.P. , 376 N.C. 729, 2021-NCSC-11, ¶ 5, 855 S.E.2d 203 (cleaned up). "This Court presumes the trial court has properly exercised jurisdiction unless the party challenging jurisdiction meets its burden of showing otherwise." In re L.T. , 374 N.C. 567, 569, 843 S.E.2d 199 (2020).

¶ 13 To have standing to file a termination of parental rights case, a petitioner or movant must fall within one of the seven categories set out in N.C.G.S. § 7B-1103 (2019). Further, N.C.G.S. § 7B-1104 requires the petition or motion initiating a termination action to include "facts sufficient to identify the petitioner or movant as one authorized by G.S. 7B-1103 to file a petition or motion." N.C.G.S. § 7B-1104(2) (2019).

¶ 14 Section 7B-1103(a)(3) authorizes a termination petition to be filed by "[a]ny county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction." The termination petition in this case alleged standing based on this provision:

The petitioner is Toia Johnson, a social worker employed by the Iredell County Department of Social Services, whose address is Post Office Box 1146 / 549 Eastside Drive, Statesville, North Carolina 28687[.] The petitioner qualifies to bring this Petition to Terminate Parental Rights under N.C. Gen. Stat. § 7B-1103(a)(3), as the Iredell County Department of Social Services has been given custody of the above-referenced juvenile by a court of competent jurisdiction, as set forth in the order attached hereto as "Exhibit #1" and incorporated herein by reference.

Johnson also executed a sworn verification of the petition, in which she identified herself as "Social Worker Iredell County Dept. of Social Services."

¶ 15 Respondent does not dispute that DSS had been given custody of Ann by a court of competent jurisdiction at the time the termination petition was filed. Instead, she argues that since "Ms. Johnson stated under oath that she was the petitioner in this matter[,]" the petition must have been filed in Johnson's individual capacity. As an individual, Johnson did not satisfy any of the categories in N.C.G.S. § 7B-1103(a) that provide standing to file a termination petition. Respondent contends the termination orders should therefore be vacated.

¶ 16 Respondent provides an untenable interpretation of Johnson's verified allegation describing the basis of her standing to file the termination petition. Her interpretation necessarily ignores the portions of the allegation where Johnson explicitly identified herself as "a social worker employed by the Iredell County Department of Social Services," where Johnson listed her address as that of DSS, and where Johnson alleged she had standing to file the petition under N.C.G.S. § 7B-1103(a)(3), which applies only to certain...