Manus, In re, 8620DC54

• Decision Date: 05 August 1986
• Docket Number: No. 8620DC54,8620DC54
• Citation: 346 S.E.2d 289,82 N.C.App. 340
• Parties: In re MANUS. UNION COUNTY DEPARTMENT OF SOCIAL SERVICES, By and Through its Director, H. Gene HERRELL v. Teresa Georgette MULLIS and David Neal Manus.
• Court: North Carolina Court of Appeals

Page 289

346 S.E.2d 289

82 N.C.App. 340

In re MANUS UNION COUNTY DEPARTMENT OF SOCIAL SERVICES, By and Through its Director, H. Gene HERRELL v. Teresa Georgette MULLIS and David Neal Manus.

No. 8620DC54.

Court of Appeals of North Carolina.

Aug. 5, 1986.

W. David McSheehan, Monroe, for respondent-appellant.

Griffin, Caldwell, Helder & Steelman by Jake C. Helder, and Harry B. Crow, Guardian Ad Litem, Monroe, for petitioner-appellee.

MARTIN, Judge.

Respondent Mullis contends that the trial court committed both procedural and substantive errors. She contends that the petition for termination of parental rights was invalid because it was not initiated by a person or agency authorized to maintain such actions and that the trial court erred in permitting an amendment to the petition without notice to her. She also contends that the court's findings of fact are not supported by competent evidence and are insufficient to support its conclusions of law and its order terminating her parental rights. Her latter contentions have some merit and we find it necessary to vacate the order and remand the case.

We first consider respondent's procedural arguments. The petition as originally filed was captioned

In re: Manus, minor children

H. Gene Herrell, DIRECTOR OF THE UNION COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner,

vs.

TERESA GEORGETTE MULLIS and DAVID NEAL MANUS, Respondents.

By written motion dated 17 December 1984 and marked filed by the Clerk of Superior Court on 24 January 1985, petitioner moved to amend the caption "in order to conform the caption of the petition and action to G.S. 7A-289.24...." Although petitioner asserts in its brief that the motion was orally made and allowed at the beginning of the termination hearing, there is no indication of such action in the record before us. Nor is there any indication that the written motion was served on respondent. By order dated 24 January 1985, the motion was allowed and the caption of the petition was amended nunc pro tunc from the date of its original filing. Respondent contends that allowance of the motion without notice to her was prejudicial error.

G.S. 7A-289.25 provides that a petition for termination of parental rights "shall be entitled 'In re (Last name of child), a minor child'...." The petition in this action was so captioned. The balance of the caption, naming petitioner and respondents, was not required by the statute and we consider it surplusage. Therefore, the order permitting the caption to be amended resulted in no prejudice to respondent.

Respondent further contends, however, that the petition for termination of parental rights was invalid and should have been dismissed because it was filed by a party not authorized to maintain such an action. G.S. 7A-289.24 limits the persons or agencies who may petition for termination of parental rights. A county department of social services, to whom custody of a child has been given by court order, has standing to maintain such an action. G.S. 7A-289.24(3). G.S. 7A-289.25(2) provides that the petition must set forth "[t]he name and address of the petitioner and facts sufficient to identify the petitioner as one entitled to petition under G.S. 7A-289.24."

The petition filed in the present case alleged:

2. That the name of the petitioner is H. Gene Herrell, and he is Director of the Union County Department of Social Services, and petitioner's address is Union County Department of Social Services, Union County Courthouse, Monroe, North Carolina 28110. Petitioner is entitled to petition for termination of parental rights under G.S. 7A-289.24(3) in that custody of the child Crystal Lynn Manus was surrendered to the Union County Department of Social Services by immediate custody order of Judge Donald R. Huffman dated January 21, 1983 ..., and the custody of Carolyn Irene Manus was surrendered to the Union County Department of Social Services by immediate custody order of Judge Kenneth W. Honeycutt dated August 25, 1983 ..., and the children have remained in the legal custody of the Union County Department of Social Services since those dates.

Respondent's argument is that the foregoing allegations establish that H. Gene Herrell, as an individual, is the petitioner and that the allegations do not establish that he is entitled, as an individual, to petition for termination of parental rights. We reject her argument. Even though the allegations of capacity may have been inartfully drafted, it is still readily apparent that Mr. Herrell did not petition for termination of respondents' parental rights in his capacity as an individual, but rather in his capacity as Director of DSS and, therefore, on behalf of DSS. The allegations are, in all respects, sufficient to establish that DSS is a party entitled to petition for termination of respondents' parental rights in these children pursuant to G.S. 7A-289.24(3).

Moreover, even if we were to decide that the allegations are insufficient to show that the petition was brought by DSS, the real party in interest pursuant to G.S. 7A-289.24(3), dismissal of the petition would not be warranted. G.S. 1A-1, Rule 17(a) provides, in part:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Rule 17(a) deals not only with real party in interest questions, but also with questions relating to capacity to maintain an action. Burcl v. N.C. Baptist Hospital, Inc., 306 N.C. 214, 293 S.E.2d 85 (1982). While this Court has held that the Rules of Civil Procedure are not superimposed upon the procedures set forth by statute for termination of parental rights, In re Clark, 76 N.C.App. 83, 332 S.E.2d 196 (1985); In re Peirce, 53 N.C.App. 373, 281 S.E.2d 198 (1981); In re Allen, 58 N.C.App. 322, 293 S.E.2d 607 (1982); it has also said that the Rules are not to be ignored. Clark, Allen. Indeed, each of the cited cases involved application of the Rules of Civil Procedure in addressing errors assigned to termination proceedings. Clark, supra, (service of process under Rule 4j); Allen, supra (Entry of written order proper under Rule 58); Peirce, supra (judgment properly corrected under Rule 60(a)).

The record does not reflect that respondents raised any question in the trial court with respect to Mr. Herrell's capacity to petition as director of DSS for termination of their parental rights. The petition provided respondents with full notice of the transactions and occurrences upon which the petition for termination was based. Because, for reasons hereinafter stated, we must vacate the order entered by the trial court and remand this case for further proceedings, we specifically hold that respondents are not entitled to a dismissal of the petition by reason of the erroneous designation of Mr. Herrell as petitioner. They can in no way be prejudiced by permitting DSS to ratify the petition and be substituted as petitioner.

We turn now to a consideration of respondent Mullis' substantive arguments. The petition sought to terminate respondents' parental rights upon two grounds: (1) that the minor children were neglected, (2) that neither respondent had paid a reasonable portion of the cost of support of the children while in DSS custody. The trial court, in its order terminating respondents' parental rights, found the following facts pertinent to those allegations:

"8. That the Court takes judicial notice of the previous orders entered in this case pertaining to the neglect of the minor children dated January 11, 1983; January 25, 1983; February 7, 1983; and January 12, 1984.

9. The Court also finds that Crystal Lynn Manus has been left in the care of her maternal grandmother, Dorothy Mullis, on various occasions when the father was drinking, and the mother would leave the child in the care of the maternal grandmother for indeterminate periods of time while she attempted to find the father. During these periods, the mother often left no money for food, Pampers, or other necessities nor made provision for these necessities for the minor child, Crystal. The maternal grandmother ultimately told the respondent-mother that she could no longer care for the children under these conditions.

....

11. That the children have had one extended visit with their parents over the 1983 Christmas holiday, and at the beginning of the visit, the mother was advised that Crystal had been exposed to chicken pox and to watch for symptoms of chicken pox in case Crystal had contracted the disease. At the termination of the visit, the mother advised the foster mother that Crystal was fine and exhibited no symptoms of the disease, and upon return of the child to the foster mother, the foster mother determined that the child had a fever and had evidence of chicken pox over a large part of her body and was exhausted when returned to the foster parent. Also during this visit, Carolyn had a fever when she was returned to the foster parent, and of the two medications which were given by the foster parent to the respondent-mother at the beginning of the visit, no medication had been given out of one bottle, and only a small amount was apparently used out of the second bottle. Specific instructions were given to the mother regarding dosage and use of the medication.

12. That during the time that these children have been in the custody of the Union County Department of Social Services, the parents have not maintained contact with the Department of Social Services on a regular basis and have not maintained permanent living arrangements over a large part of the time. During the period of time that the children have been in the custody...