In re O.E.M., 2021-NCSC-120

There is a dissent
Barringer, J. joined by Newby J. and Berger, J.
  • Facts: In 2018, DSS filed a properly verified neglect and dependency petition. The juvenile was adjudicated dependent and neglected. In 2020, DSS filed a TPR motion in the underlying neglect and dependency action. The motion was not verified. The TPR was granted, and respondent father appeals, challenging subject matter jurisdiction.
  • G.S. 7B-1104 states a TPR petition or motion “shall be verified.” This opinion relies on In re T.R.P., 360 N.C. 588 (2006), which decided verification of an A/N/D petition was jurisdictional as it was a matter of substance and not form given the resulting interference by DSS with a parent’s constitutional rights to parent. The verification requirement of G.S. 7B-1104 is also jurisdictional for a TPR petition or motion. The language “shall be verified” is plain and unambiguous and applies to both a TPR petition and motion. The difference between a TPR petition or motion regarding the verification requirement is not legally significant. It is not redundant to require a verification to a TPR motion since new allegations regarding the parent’s conduct are required and are not included in the initial A/N/D petition. The Juvenile Code balances the best interests of the child as paramount with parent’s constitutional due process rights, and the verification requirement satisfies that balance. Jurisdiction in an A/N/D case does not, standing alone, give the court jurisdiction over a subsequent TPR proceeding. Failure to verify a TPR motion is a fatal jurisdictional defect.
  • Dissent: In re T.R.P. recognized an A/N/D action was “one continuous juvenile case with several interrelated stages, not a series of discrete proceedings.” Sl.Op. ¶37. The court’s subject matter jurisdiction was established when the neglect and dependency action was commenced with a properly verified petition. Verification of a motion in the A/N/D action as a jurisdictional requirement is not justified. Jurisdictional requirements for a TPR are set forth in G.S. 7B-1101, which does not address the need to verify a TPR motion, and G.S. 7B-1104 does not mention jurisdiction. Verification of a TPR motion in the underlying cause is a procedural requirement and is not jurisdictional.
Termination of Parental Rights
Subject Matter Jurisdiction
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