In re C.N.R., 379 N.C. 409 (2021)

  • Facts: A neglect petition was filed, and the juveniles were adjudicated neglected. After adoption was identified as the primary permanent plan, DSS filed a motion to TPR in the neglect proceeding, on July 2, 2020. The TPR granted, and respondent parents appeal, challenging subject matter jurisdiction. The DSS director and notary public the petition was verified before did not include the date of the verification. The petition stated “sworn to and subscribed before this ___ day of May, 2020”. 379 N.C. at 413. Further, the petition was signed by the DSS attorney on June 30, 2020 and filed on July 2, 2020.
  • Subject matter jurisdiction is a question of law that is reviewed de novo and may be raised at any time in the proceeding, including on appeal. The appellate court presumes a trial court properly exercises jurisdiction unless the party who challenges jurisdiction meets their burden of proof that the court did not have jurisdiction.
  • G.S. 7B-1102 authorizes a TPR to be filed as a motion in an underlying abuse, neglect, or dependency proceeding, and G.S. 7B-1104 required the motion be verified. Citing In re O.E.M., 2021-NCSC-120, the motion must be properly verified for the court to have subject matter jurisdiction over the TPR.
  • The Juvenile Code does not specify the method of verification that is required by either G.S. 7B-403 (abuse, neglect, dependency petition) or 7B-1104 (TPR). The supreme court relies on Rue 11 of the NC Rules of Civil Procedure, which requires an affidavit that is “confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.” 379 N.C. at 416 (citation omitted). A notary public is authorized to take an affidavit to verify a pleading. G.S. 1-148. There is nothing in Rule 11 or G.S. 1-148 that requires the date the verification was made or that the verified pleading be notarized. G.S. 1-148 does not require that the affidavit for verification be certified by a notary pursuant to the more formal provisions of G.S. 10B-1 through -146 that applies to a notarial certificate.
  • The director signed the verification form as did the notary public, and the form included the notarial stamp and date upon which the notary’s commission expired. G.S. 10B-40(d) requires substantial compliance with the form under G.S. 10B-43, and one provision includes the date of the oath or affirmation, which was not done here. Further, G.S. 10B-99 “contains a savings clause that accords a ‘presumption of regularity’ to notarized documents despite the existence of minor technical defects in the notarial certificate” as opposed to fraud or a deliberate violation of the Notary Public Act. 379 N.C. at 418. There is no evidence in the record of fraud or a deliberate violation of the Act. There was substantial compliance.
  • Although the date the attorney signed the motion was after the verification date of  ___ May, 2020, the appellate court does not assume the parents’ argument that the verification occurred before the motion was finalized is accurate. The dates may have been a clerical oversight. For a TPR, the significant date is the date the motion is filed not the date the petition is signed or verified. As such, neither Rule 11 nor G.S. 1-148 requires the verification occur at the same time as or after the pleading is signed.
Termination of Parental Rights
Subject Matter Jurisdiction
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