In Re N.G.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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-621 NORTH CAROLINA COURT OF APPEALS Filed: 18 November 2014 IN THE MATTER OF: Pender County No. 13 JT 31 N.G.H. Appeal by Respondent-mother from order entered 12 March 2014 by Judge R. Russell Davis in Pender County District Court. Heard in the Court of Appeals 27 October 2014. Corbett & Fisler, by Robert H. Corbett, for Petitioners. Appellate Defender Staples Hughes, by Assistant Appellate Defender J. Lee Gilliam, for Respondent-mother. STEPHENS, Judge. Respondent-mother appeals from an order terminating her parental rights to her minor child, N.G.H., 1 who was born in January 2012. 1 Petitioners, a cousin of Respondent-mother and We refer to the juvenile by her initials in order to protect her identity. -2his wife, filed a petition to terminate Respondent-mother’s parental rights on 5 August 2013. Respondent-mother contends that the order must be vacated because Petitioners failed to establish that they had standing to file the petition. “Whether petitioner had standing is a legal issue that this Court reviews de novo.” In re A.D.N., ___ N.C. App. ___, ___, 752 S.E.2d 201, 205 (2013) (italics added), disc. review denied, file a ___ Standing to legal matter jurisdiction, and N.C. ___, proceeding 755 is “[i]ssues S.E.2d a of 626 (2014). of subject subject matter matter jurisdiction may be raised at any time, including on appeal.” Peacock v. Shinn, 139 N.C. App. 487, 491, 533 S.E.2d 842, 845 (citation omitted), disc. review denied and appeal dismissed, 353 N.C. 267, 546 S.E.2d 110 (2000). Standing to file a petition or motion to terminate parental rights is conferred by N.C. Gen. Stat. § 7B-1103. In re Miller, 162 N.C. App. 355, 357, 590 S.E.2d 864, 865 (2004). A petition or motion must state “[t]he name and address of the petitioner or movant and facts sufficient to identify the petitioner or movant as one authorized by [section] 7B-1103 to file a petition or motion” to terminate parental rights. N.C. Gen. Stat. § 7B-1104(2) (2013). The petition must include any document or order through which the petitioner claims standing that will enable the court to -3determine whether it has subject matter jurisdiction. In re T.B., 177 N.C. App. 790, 793, 629 S.E.2d 895, 897-98 (2006). Petitioners submit that they have standing have filed a petition to adopt the child. because they See N.C. Gen. Stat. § 7B-1103(7) (2013) (stating that “[a]ny person who has filed a petition for adoption pursuant to Chapter 48 of the General Statutes” has standing to file a petition to terminate parental rights). We petition, unable, after find to Petitioners Chapter are any factual allegation petition for have 48. filed No a petition for careful examination therein adoption adoption is of the that pursuant attached to to the termination of parental rights petition or referenced therein. On appeal, deficient. pleadings, Petitioners However, such as they [a] concede contend contract that that the “matters attached to [a] petition is outside the defendant’s motion [to dismiss for lack of subject matter jurisdiction], may be considered and weighed by the court in determining existence of jurisdiction over the subject matter.” Walker, 38 (citation N.C. App. omitted). 500, Tart, 502, 248 however, S.E.2d 736, concerned Tart v. 737 a the (1978) contract dispute, not a petition for termination of parental rights filed under Chapter 7B. See id. In In re T.B., we held that, where DSS files a motion for termination of parental rights, the trial -4court has subject matter jurisdiction only if the record includes a copy of an order, in effect when the petition is filed, that awards DSS custody of the child. This is implicitly recognized by N.C. Gen. Stat. § 7B-1104(5) . . ., which sets out the requirements for a petition for termination of parental rights, and provides in relevant part that the petition shall set forth . . . (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. 177 N.C. App. at 793, internal quotation Likewise, section 629 marks S.E.2d omitted; 7B-1104 also at 897-98 (citation emphasis requires that in a and original). petition for termination of parental rights must include, inter alia, “[t]he name and sufficient address to of identify the petitioner the or petitioner movant or and movant as facts one authorized by [section] 7B-1103 to file a petition or motion.” N.C. Gen. Stat. § 7B-1104(2). This Court has upheld orders terminating parental rights in cases where petitions failed to allege or prove standing, but only where the required documentation, such as a custody order, was later filed and made part of the record. 381, 390-92, challenge to 646 the See, e.g., In re H.L.A.D., 184 N.C. App. S.E.2d 425, petitioners’ 429-30 standing (2007) where, (rejecting although a [the] petitioners failed to attach a copy of the custody order to the petition for termination, the custody order was later made part -5of the record before the trial court, and the mother failed to show that she was prejudiced in any way by the failure to physically attach a custody order to the motion), affirmed per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008); In re W.L.M., 181 N.C. App. 518, 526, 640 S.E.2d 439, 444 (2007) (rejecting a challenge to the trial court’s subject matter jurisdiction where no custody order was attached to the petition, but “the motion to terminate [the] respondent’s parental rights incorporated by reference the juvenile file and custody order in effect when the motion was filed.”). Petitioners note that, at the termination hearing, one of them testified that the Petitioners had . . . filed an action for adpotion[.]” ”contemporaneous[ly] However, no testimony established that any adoption petition was filed pursuant to Chapter 48 or that Petitioners had standing to file an adoption petition under Chapter Respondent-mother’s 48. parental The rights petition did not to terminate incorporate by reference any adoption petition, and no copy of any adoption petition was ever filed in this matter. include a “ultimately copy of the petition deprived the [district] jurisdiction.” at 898. to Petitioners’ failure to adopt court of in the record subject matter See In re T.B., 177 N.C. App. at 793, 629 S.E.2d Because the district court lacked subject matter -6jurisdiction, the order terminating Respondent-mother’s parental rights must be vacated without prejudice to Petitioners’ right to file a new petition alleging facts that would show they have standing to bring that action. See id. Accordingly, the order terminating Respondent-mother’s parental rights is VACATED. Judges GEER and MCCULLOUGH concur. Report per Rule 30(e).

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