In re S. v. A.N.H
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-751 NORTH CAROLINA COURT OF APPEALS Filed: 7 January 2014 IN RE: S., A Minor Juvenile W.W.S., Petitioner, v. Wilkes County No. 07 JT 142 A.N.H., and J.L.S., Minor Child, by and through his Guardian Ad Litem, T.L., Respondents. Appeal by respondent from order entered 1 April 2013 by Judge Mitchell L. McLean in Wilkes County District Court. Heard in the Court of Appeals 25 November 2013. Paul W. Freeman, Jr., for petitioner-appellee. Robert W. Ewing for respondent-appellant. Louise M. Paglen for guardian ad litem-appellee. GEER, Judge. Respondent mother appeals from the trial court's terminating her parental rights to her son "John".1 contends 1 the trial court lacked jurisdiction order Respondent because the The pseudonym "John" is used throughout this opinion to protect the privacy of the child and for ease of reading. -2juvenile petition was not properly signed and verified. Respondent points to the fact that the initials "MH" appear next to the signature of the authorized representative of the Wilkes County Department of Social Services ("DSS") Director and argues that the initials necessarily mean that "MH" actually signed the petition rather petition was, than however, the authorized sworn and representative. subscribed to before The the magistrate, thus indicating that the authorized representative in fact petition. appeared before the magistrate when signing the Without more, the initials "MH" are not sufficient to overcome the presumption that the trial court, when it rendered a decision in this case, acted with jurisdiction. Accordingly, we affirm. Facts On 30 August 2007, DSS filed a petition alleging that John was neglected. The first page of the petition stated that the petitioner was "Linda Brooks for James D. Bumgarner." The line of the verification section of the petition for the "Signature Of Petitioner" was signed by Linda C. Brooks. Beneath Ms. Brooks' signature, a box was checked indicating that she was an authorized representative of the DSS Director. Ms. Brooks' signature, there appears to be the letters "MH." was smaller To the right of handwriting that There was no other writing in -3the signature space. The verification also indicated that the petition was sworn and subscribed to by Ms. Brooks before the magistrate on 30 August 2007. On 16 January 2008, the trial court entered an adjudicating John, as well as two siblings, neglected.2 June 2012, DSS filed a petition parental rights to John. to terminate order On 20 respondent's On 1 April 2013, the trial court entered an order in which it concluded that four grounds to terminate respondent's parental rights existed and that termination of respondent's parental rights was in John's best interest. Respondent timely appealed to this Court from the termination of parental rights order. I Preliminarily, strike the we affidavit must of address Linda C. respondent's Brooks. The motion to briefs of petitioner and of the guardian ad litem ("GAL") each attached an affidavit of Linda C. Brooks, dated 4 September 2013. affidavit appeal. was prepared in response to respondent's This brief on The GAL explained in a response to respondent's motion to strike that the affidavit was submitted (1) to provide an explanation for an ambiguous notation that is a part of the 2 Respondent's parental rights to John's two siblings were not addressed in the termination of parental rights order that gave rise to this appeal. -4record, (2) to provide an opportunity for this Court to take judicial notice of Ms. Brooks' signature, and (3) to correct a false assumption asserted by respondent. Rule 9 of the Rules of Appellate Procedure limits this Court's review to the record on appeal. the brief but outside the record "Matters discussed in will not be considered." Hudson v. Game World, Inc., 126 N.C. App. 139, 142, 484 S.E.2d 435, 437-38 (1997). of the amended record to on add Ms. Brooks' affidavit is not an actual part appeal the nor could the It was affidavit. record not on appeal "filed, be served, submitted for consideration, admitted, or made the subject of an offer of proof" in the trial court. This Court connection with cannot, this N.C.R. App. P. 11(c). therefore, appeal, consider and we the affidavit accordingly respondent's motion to strike the affidavit. in grant See In re L.B., 181 N.C. App. 174, 185, 639 S.E.2d 23, 28 (2007) (striking from record affidavit by DSS social worker added as an exhibit to a petitioner's brief and all references in brief to information contained in affidavit). II In two related arguments on appeal, respondent contends that the juvenile petition was not properly signed or verified. Respondent first argues that the failure to properly sign or -5verify the petition rendered the adjudication order void and deprived the trial court of subject matter jurisdiction to enter the adjudication order and all subsequent orders in the matter, including the termination of parental rights order. Respondent also argues that DSS lacked standing to file the termination of parental rights petition because it was not given custody of John by a court of competent jurisdiction as the petition was not properly verified. Both arguments hinge on respondent's assertion that "MH," and not Ms. Brooks, actually signed the petition. "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). A juvenile petition alleging abuse, neglect, or dependency "shall be drawn by the director, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing." The N.C. Gen. Stat. § 7B-403(a) (2011). statutory definition of director includes "[t]he director of the county department of social services in the county in which the juvenile resides or is found, or director's representative as authorized in G.S. 108A-14." Gen. Stat. § 7B-101(10) (2011) (emphasis added). the N.C. Accordingly, a -6DSS director may "'delegate to one or more members of his staff the authority to act as his representative'" to file an abuse, neglect, and dependency petition. In re Dj.L., D.L., & S.L., 184 N.C. App. 76, 79, 646 S.E.2d 134, 137 (2007) (quoting N.C. Gen. Stat. § 108A-14(b) (2005)). Respondent did not argue before the trial court that the petition was improperly verified and, therefore, the trial court had no opportunity to clarify the significance of the initials "MH" written next to the signature "Linda C. Brooks." It is well established that "[a]lthough the question of subject matter jurisdiction may be raised at any time," when, as here, "the trial court has inconsistent acted with jurisdiction[.]'" the in a record matter, will 'every be presumption indulged in favor not of Cheape v. Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d 792, 797 (1987) (quoting Dellinger v. Clark, 234 N.C. 419, 424, 67 S.E.2d 448, 452 (1951)). In this case, there is no dispute that Linda C. Brooks was an authorized properly representative verify the juvenile of the DSS petition. Director The whether Ms. Brooks in fact signed the petition. sole and could issue is The petition on its face indicates that the petition was sworn and subscribed to by Ms. Brooks before the magistrate. 292(5) (2011) (granting See N.C. Gen. Stat. § 7A- magistrates authority to verify -7pleadings); N.C. Gen. Stat. § 1-148 (2011) (providing that magistrate "is competent to take affidavits for the verification of pleadings"). A signed verification, witnessed by an authorized official, is presumed valid unless evidence in the record impeaches the verification. See Moore v. Moore, 108 N.C. App. 656, 659, 424 S.E.2d 673, 675 ("North Carolina recognizes a presumption in favor of the legality of an acknowledgment of a written instrument by a certifying officer."), aff'd per curiam, 334 N.C. 684, 435 S.E.2d 71 (1993). N.C. App. 412, 414, 222 See also Skinner v. Skinner, 28 S.E.2d 258, 261 (1976) (holding verification valid where "[t]here was no showing that plaintiff did not in fact sign the verification," "nothing in the record suggests that the signature which appears thereon was not in fact his signature," "[t]he certificate to the verification signed by the notary public and attested by her seal certifies that the verification was '[s]worn to and subscribed' before her, and nothing in the record impeaches that certification") Respondent attempts to impeach the verification by alleging that the letters "MH" handwritten near Ms. Brooks' signature prove that Ms. Brooks did not actually sign the verification. Respondent attempts to draw a parallel between the instant case and the facts that led to our prior decision in In re A.J.H-R. & -8K.M.H-R., 184 N.C. App. 177, 645 S.E.2d 791 (2007). In that case, we held that the signatures on the verifications of two petitions "'James were D. Bumgarner MHenderson,'" petition. plainly insufficient, with by the MH'" and two "'James box signatures D. that they indicate that were not read Bumgarner checked Id. at 179, 645 S.E.2d at 792. indicated not those "'Director'" purporting to verify them. does where on by each Those petitions signed by the party Here, in contrast, the verification the signature was given "by" any individual other than the identified authorized representative of the DSS Director, L.U.E., 184 (holding signature N.C. no subject read "'[d]irector'" App. Ms. Brooks. 481, 487, matter "'[director's box checked See also In re S.E.P. 646 S.E.2d jurisdiction name] because by 617, where Pam 621 (2007) petitioner's Frazier'" signature & not in with fact director's signature and where amended petition not signed by any DSS personnel). Therefore, we find respondent's comparison to In re A.J.H-R. unavailing and hold that the letters "MH" next to Ms. Brooks' signature, without more, are insufficient evidence to overcome the presumption that Ms. Brooks in fact signed her name. Because Ms. Brooks' signature constitutes a signature of an authorized representative of the DSS Director as -9required by N.C. Gen. Stat. § 7B-403(a), the verification was valid. Accordingly, we affirm. Affirmed. Chief Judge MARTIN and Judge STROUD concur. Report per Rule 30(e).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
