In re Z.T.B., COA04-238.

• Citation: 613 S.E.2d 298
• Decision Date: 07 June 2005
• Docket Number: No. COA04-238.,COA04-238.
• Court: United States State Supreme Court of North Carolina
• Parties: In the Matter of: Z.T.B., A Minor Child Burke County.

613 S.E.2d 298

In the Matter of: Z.T.B., A Minor Child Burke County.

No. COA04-238.

Court of Appeals of North Carolina.

June 7, 2005.

Appeal by respondent from an order entered 29 July 2003 by Judge Burford A. Cherry in Burke County District Court. Heard in the Court of Appeals 7 March 2005.

No brief filed by petitioner-appellee.

M. Victoria Jayne, Hickory, for respondent-appellant.

JACKSON, Judge.

Respondent father appeals from an order terminating his parental rights to Z.T.B, born 24 June 1995. Petitioner, who is Z.T.B.'s mother, filed a petition for termination of respondent's parental rights on 3 January 2003, alleging respondent's willful abandonment, failure to legitimate Z.T.B., and lack of substantial financial support or consistent care. Respondent answered on 11 February 2003, admitting his failure to legitimate the minor child, but alleging that his inability to provide financial support was caused by petitioner's concealment of both her whereabouts and those of Z.T.B. for three years. He alleged that petitioner had moved numerous times and had changed her telephone number without notice to him. He further alleged that petitioner had not complied with the provisions of a custody order providing him with specific periods of visitation, by failing to appear at pre-arranged custody exchanges. He contended he consistently had resided in the same location since Z.T.B.'s birth, and that his extended family's residences were known to petitioner, who easily could have notified him about her whereabouts.

At the hearing on 12 June 2003, respondent was represented by counsel but did not appear. Based on verified pleadings, testimony, and evidence contained in the files in three other court proceedings between the parties, the trial court found that respondent and petitioner had never married. In March 2001, petitioner moved with Z.T.B. to South Carolina. The first month following her move, she met respondent at a gas station to exchange Z.T.B. Petitioner returned to the gas station for the next two scheduled visits to exchange Z.T.B., but respondent did not appear. The trial court also found there was no custody order attached to the termination petition, but that respondent had not raised petitioner's failure to attach the order as an affirmative defense or filed a motion to dismiss based on the defects in the petition, despite acknowledging the existence of a custody order in his answer. Regarding respondent's claim that he did not participate in Z.T.B.'s life due to his inability to find him, the trial court noted that petitioner had filed a motion and notice for child support on 19 February 2002, which was served upon respondent and which contained petitioner's address. Respondent never challenged service of the motion and notice for child support nor did he allege in response to the motion that petitioner had concealed the child from him.

Additionally, the trial court found that respondent had not provided substantial support or care for the child even though he had been under an order to pay child support, and that he had failed to appear in response to an order to show cause for failure to pay child support, resulting in the issuance of an order for his arrest, with bond set at $1,000.00. The trial court also observed that respondent's failure to appear at the termination hearing likely was due to this outstanding warrant for his failure to pay child support.

The trial court took judicial notice of three other court proceedings between the parties in Burke County, one of which purported to create a guardianship for the child, which the trial court found to be void. None of these court files were made a part of the record on appeal in this case. The trial court found that Z.T.B. had resided with petitioner for more than two years prior to the filing of the petition and that petitioner had informed respondent of her South Carolina address. The trial court also found that respondent had chosen to end his visitation with the minor and had not pursued enforcement of the visitation order. Based upon its findings, the trial court concluded, inter alia:

5. That the Respondent is the father of the minor child, has never legitimated the minor child born out wedlock pursuant to NCGS § 49-10 or filed a petition for that purpose, has willfully abandoned the minor child for at least six consecutive months preceding the filing of the Petition, has not provided substantial financial support or consistent care with respect to the minor child and the Petitioner, and the grounds for termination of parental rights have been proven by clear, cogent and convincing evidence.

. . .

11. That based upon the evidence, the verified pleadings, and the findings of fact contained above which are incorporated herein by reference, the Court concludes as a matter of law that not only do grounds exist for the termination of parental rights, but also that it would be in the best interests of the minor child that the parental rights of [respondent] in and to the minor child, [Z.T.B.] be terminated.

The trial court entered judgment terminating respondent's parental rights from which judgment respondent appeals.

Respondent first argues that the petition to terminate his parental rights was defective on its face and should have been dismissed. The dissent in this case contends that respondent failed to raise the statutory defects either in his answer or by motion to dismiss and therefore cannot raise them on appeal. However, we note that respondent's attorney did make an oral motion before the trial court regarding these issues, which the trial court denied. In fact, after making his argument to the trial court respondent's attorney stated:

"Your Honor, I'd just like to preserve my motion for the record. I understand the motion that the petition is outstanding and we've denied that. And the motion to dismiss the petition or the order granting the plaintiff or petitioner custody is not attached, and we've denied that. We'd like to preserve those for the record for appeal, Your Honor."

Respondent's attorney also raised the issue of the court's subject matter jurisdiction as shown by the following exchange between the trial judge and respondent's attorney:

Court: Are you arguing this Court does not have subject matter jurisdiction in this TPR matter because of that guardianship?

Mr. Hall: I'm arguing that. I'm arguing that my client doesn't have any rights to be terminated because he gave guardianship of him over to someone. And I'm arguing that [petitioner] has no standing to bring this matter.

Assuming arguendo that the arguments by respondent's counsel before the trial court are not sufficient to preserve the issue for appeal, because these defects raise a question of the trial court's subject matter jurisdiction over the action, these issues properly may be raised for the first time on appeal. N.C.R.App. P.10(a)(2005). See State v. Beaver, 291 N.C. 137, 140-41, 229 S.E.2d 179, 181 (1976).

Pursuant to our statutory requirements "[t]he [district] court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile. . . ." N.C. Gen.Stat. § 7B-1101 (2004). Where there is no proper petition, however, the trial court has no jurisdiction to enter an order for termination of parental rights. In re McKinney, 158 N.C.App. 441, 445, 581 S.E.2d 793, 796 (2003); see also, In re Ivey, 156 N.C.App. 398, 576 S.E.2d 386 (2003).

The requirements for a proper petition to terminate parental rights are set forth in the North Carolina General Statutes, section 7B-1104, which provides in relevant part:

The petition, or motion pursuant to G.S. 7B-1102, . . . shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:

(4) The name and address of any person who has been judicially appointed as guardian of the person of the juvenile.

(5) The name and address of any person or agency to whom custody of the juvenile has been given by a court of this or any other state; and a copy of the custody order shall be attached to the petition or motion.

N.C. Gen.Stat. § 1104 (2004)(emphasis added).

Respondent argues that the petition in the case sub judice fails to set forth facts known to petitioner, or fails to state that petitioner has no knowledge of facts, regarding the name and address of any judicially appointed guardian or the name and address of any person or agency awarded custody of the child by a court; and does not attach the existing custody order to the petition as explicitly required by North Carolina General Statutes section 7B-1104.

The use of the word "shall" by our Legislature has been held by this Court to be a mandate, and the failure to comply with this mandate constitutes reversible error. In re Eades, 143 N.C.App. 712, 713, 547 S.E.2d 146, 147 (2001); In re Johnson, 76 N.C.App. 159, 331 S.E.2d 756 (1985); In re Wade, 67 N.C.App. 708, 313 S.E.2d 862 (1984). This Court also has held that when the statute governing petitions for termination of parental rights stated that "`[t]he petition shall be verified by the petitioner . . .,'" the petitioner's failure to verify the petition precluded the trial court from exercising subject matter jurisdiction over the action. In re Triscari Children, 109 N.C.App. 285, 287, 426 S.E.2d 435, 436 (1993)(quoting N.C. Gen.Stat. § 7A-289.25 (1989)).

However, in another case, this Court declined to dismiss a petition for termination of parental rights that failed to conform to the requirements of North Carolina General Statutes section 7B-1104 absent a showing that the respondent was prejudiced by the omission. In re Humphrey, 156 N.C.App. 533, 539, 577 S.E.2d 421, 426 (2003). In Humphrey, the petitioner failed to include the required statement that the purpose of the petition was not to circumvent the Uniform Child Custody...