In Re: D.P.H

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA10-624 NORTH CAROLINA COURT OF APPEALS Filed: 16 November 2010 IN THE MATTER OF: D.P.H. Burke County No. 05 J 62 Appeal by respondent-father from order entered 23 February 2010, nunc pro tunc 10 December 2009, by Judge Gary Dellinger in Burke County District Court. Heard in the Court of Appeals 3 November 2010. Russell R. Becker, for petitioners-appellees. Michael E. Casterline, for respondent-appellant father. JACKSON, Judge. Respondent-father parental appeals from the rights to D.P.H., respondent-father has failed to an order minor preserve terminating child. his sole his Because issue for appellate review, we dismiss. Petitioners are the aunt and uncle of D.P.H. D.P.H. was placed with petitioners by the child s mother on 26 July 2004, and has resided with petitioners since that time. petitioners were granted custody of the On 29 August 2005, juvenile and named guardians. On 25 February 2009, petitioners filed a petition to terminate respondent-father s parental rights. Petitioners alleged: (1) that -2the child was born out of wedlock, and that respondent-father had failed to establish paternity, legitimate the child, or provide substantial financial support or consistent care with respect to the child and the mother, pursuant to North Carolina General Statutes, section 7B-1111(a)(5); and (2) respondent-father willfully had abandoned the child for at least six consecutive months immediately preceding the filing of the petition, pursuant to North Carolina General Statutes, section 7B-1111(a)(7). Petitioners further stated their intent to file a petition for adoption upon termination of respondent-father s parental rights. On 10 December 2009, the trial court conducted a hearing on the petition to terminate respondent-father s parental rights. The trial court concluded that grounds to terminate respondent-father s parental rights existed pursuant to North Statutes, sections 7B-1111(a)(5) and (a)(7). concluded that it was in the juvenile s Carolina General The court further best interest that respondent-father s parental rights be terminated. Accordingly, on 23 February 2010, nunc pro tunc 10 December 2009, the trial court terminated respondent-father s parental rights. Respondent-father appeals. Respondent-father s sole argument on appeal is that the petition did not allege specific facts sufficient to support termination of his parental rights. See N.C. Gen. Stat. § 7B-1104(6) (2009) (A petition to terminate parental rights must set forth [f]acts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights -3exist. ). However, we decline to review respondent-father s argument because he has failed to preserve this question for appeal. An allegation that a petition to terminate parental rights does not sufficiently state the facts required pursuant to North Carolina General Statutes, section 7B-1104(6) constitutes a contention that the petition fails to state a claim for relief pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159 (1992). The Rules of Civil Procedure apply to proceedings for termination of parental rights[,] and a Rule 12(b)(6) motion may not be made for the first time on appeal. In re H.L.A.D., 184 N.C. App. 381, 392, 646 S.E.2d 425, 434 (2007) (internal citations and quotation marks omitted), aff d, 362 N.C. 170, 655 S.E.2d 712 (2008) (per curiam). Respondent-father never moved to dismiss this action for failure to state a claim for relief pursuant to Rule 12(b)(6). preserved Consequently, this issue for respondent-father appeal. has not Accordingly, we properly dismiss respondent-father s appeal. Dismissed. Judge HUNTER, Robert C. concurring by separate opinion. Judge ELMORE concurs. Report per Rule 30(e). NO. COA10-624 NORTH CAROLINA COURT OF APPEALS Filed: 16 November 2010 IN THE MATTER OF: D.P.H. Burke County No. 05 J 62 HUNTER, Robert C., Judge, concurring I agree with the majority s conclusion that [r]espondentfather never moved to dismiss this action for failure to state a claim for relief pursuant to Rule 12(b)(6)[,] of the Rules of Civil Procedure, and, therefore, any argument made by respondent pertaining Court. to Rule 12(b)(6) should not be addressed by this Still, respondent argues that the trial court lacked subject matter jurisdiction because petitioner failed to state specific facts in the petition sufficient to support termination as required by N.C. Gen. Stat. § 7B-1104(6) (2009). It is my position that this argument should be addressed and the trial court s order affirmed. It is well established that subject matter jurisdiction may be raised at any time by the parties or by the court . . . . In re J.D.S., 170 N.C. App. 244, 248, 612 S.E.2d 350, 353, cert. denied, 360 N.C. 64, 360 N.C. 176, 623 S.E.2d 584 (2005). Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. Haker-Volkening v. Haker, 143 N.C. App. 688, 693, 547 -5S.E.2d 127, 130, disc. review denied, 354 N.C. 217, 554 S.E.2d 338 (2001). In support of his argument that the trial court lacked subject matter jurisdiction, respondent cites In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003). There, this Court stated that in the absence of a proper petition, the trial court has no jurisdiction rights. to enter an order for termination Id. at 446, 581 S.E.2d at 796. to the case at bar. of parental McKinney is inapposite In holding that the trial court lacked subject matter jurisdiction and vacating the trial court s order, the Court in McKinney noted the following deficiencies in the petitioner s motion in the cause: The title, or caption, of petitioner s motion does not state that it is a petition for termination of parental rights. Nor does the motion reference any of the statutory provisions governing termination of parental rights. Petitioner s motion does not seek a termination of parental rights hearing, or request that the court issue an order of termination of parental rights. Indeed, the motion fails to request any relief, judgment, or order from the trial court. Nor does the petitioner s use of the word pray establish what relief is sought, as petitioner does not pray for any desired relief. Id. at 446, deficiency in 581 S.E.2d the at petition 796-97. for Here, termination the of only alleged respondent s parental rights is that the petition did not specifically set out facts to support petitioner s allegation that respondent s rights should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(5) and (a)(7) (2009). I would hold that any such deficiency, if in fact it is a deficiency, would not deprive the trial court of -6subject matter jurisdiction. As the majority states, respondent could have filed a motion pursuant to Rule 12(b)(6) requesting dismissal for failure to state a claim upon which relief could be granted; however, he chose not to do so, therefore any argument regarding insufficiency of the petition on that ground has been waived. order Based on the foregoing, I would affirm the trial court s since respondent s argument jurisdiction is without merit. regarding subject matter

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