In re N.T. , 368 N.C. 705 ( 2016 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 119PA15
Filed 18 March 2016
IN THE MATTER OF: N.T.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 769 S.E.2d 658 (2015), vacating an order
entered on 7 May 2014 by Judge Monica M. Bousman in District Court, Wake County.
Heard in the Supreme Court on 15 February 2016.
Office of the Wake County Attorney, by Roger A. Askew and Claire H. Duff, for
petitioner-appellant Wake County Human Services.
Poyner Spruill LLP, by John Michael Durnovich, for appellant Guardian ad
Litem.
W. Michael Spivey for respondent-appellee father.
JACKSON, Justice.
In this case we consider whether a juvenile petition was properly verified when
the signature of the person before whom it was verified is illegible and nothing in the
record identifies that person’s name or title. In light of the presumption of regularity
which places the burden of proof on the party challenging jurisdiction, we conclude
that respondent has failed to show that the petition was not properly verified.
Accordingly, we reverse.
IN RE N.T.
Opinion of the Court
On 21 May 2012, Wake County Human Services (WCHS) obtained non-secure
custody of N.T. On 22 May 2012, WCHS filed a juvenile petition alleging that N.T.
was a neglected juvenile. The petition contains a section for an authorized
representative of the director of WCHS to sign and verify the following statement:
“Being first duly sworn, I say that I have read this Petition and that the same is true
of my own knowledge, except as to those matters alleged upon information and belief,
and as to those, I believe it to be true.” It is signed by Diamond Wimbish. The
verification section also designates a space for “Signature of Person Authorized to
Administer Oaths,” which is signed with the letter “C” followed by an illegible
signature. Although there is also a space for the person’s title, the space has not been
filled in with any title.
The trial court entered an adjudication order concluding that N.T. was a
neglected juvenile and continuing custody of N.T. with WCHS. Subsequently, the
trial court ceased reunification efforts and changed the permanent plan for N.T. to
adoption. On 24 September 2013, WCHS filed a motion to terminate parental rights
alleging grounds of neglect, failure to make reasonable progress to correct the
conditions that led to N.T.’s removal from the home, and failure to pay a reasonable
portion of the cost of care. On 7 May 2014, the trial court entered an order
terminating the parental rights of respondent and N.T.’s mother. Respondent
appealed.
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IN RE N.T.
Opinion of the Court
In a published opinion filed on 17 March 2015, the North Carolina Court of
Appeals vacated the order terminating parental rights. In re N.T., ___ N.C. App. ___,
___, 769 S.E.2d 658, 661 (2015). The Court of Appeals stated that “[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.” Id. at ___, 769 S.E.2d
at 660 (quoting In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006)). After
reviewing the record and noting the illegible signature on the juvenile petition, the
Court of Appeals concluded that the trial court never obtained subject matter
jurisdiction over this case because “[n]othing in the record . . . establishes that the
person before whom the petition was verified was authorized to acknowledge the
verification.” Id. at ___, 769 S.E.2d at 661. In a footnote the Court of Appeals
acknowledged that WCHS had requested to amend the record to include an affidavit
from Wake County Magistrate Christopher H. Graves stating that the illegible
signature was his and that he signed the petition in his official capacity as a
magistrate. Id. at ___ n.2, 769 S.E.2d at 661 n.2. However, the court determined that
the affidavit could not be considered because it had not been a part of the record
before the trial court. Id. at ___ n.2, 769 S.E.2d at 661 n.2. We allowed WCHS’s
petition for discretionary review.
In its appeal WCHS argues that, although it is the better practice for a judicial
officer who acknowledges a verification to identify his or her name and office, the
absence of this information does not render the verification invalid. In response,
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IN RE N.T.
Opinion of the Court
respondent contends that a juvenile petition must be verified before a person who has
the authority to administer oaths. Respondent asserts that here the affidavit of
verification “fails to show that the truth of the contents of the petition were sworn to
or affirmed before an officer having authority to administer an oath.” We disagree
with the latter assertion and conclude that respondent had the burden of showing
that the petition, which appears facially valid, was not verified before a person
authorized to administer oaths.
“In appeals from the trial division of the General Court of Justice, review is
solely upon the record on appeal, the verbatim transcript of proceedings, if one is
designated, and any other items filed pursuant to [Rule 9 of the North Carolina Rules
of Appellate Procedure].” N.C. R. App. P. 9(a). “Although the question of subject
matter jurisdiction may be raised at any time . . . where the trial court has acted in a
matter, ‘every presumption not inconsistent with the record will be indulged in favor
of jurisdiction. . . .’ ” Cheape v. Town of Chapel Hill, 320 N.C. 549, 557, 359 S.E.2d
792, 797 (1987) (internal citations omitted) (quoting Dellinger v. Clark, 234 N.C. 419,
424, 67 S.E.2d 448, 452 (1951)). Nothing else appearing, we apply “the prima facie
presumption of rightful jurisdiction which arises from the fact that a court of general
jurisdiction has acted in the matter.” Williamson v. Spivey, 224 N.C. 311, 313, 30
S.E.2d 46, 47 (1944) (citations omitted). As a result, “[t]he burden is on the party
asserting want of jurisdiction to show such want.” Dellinger, 234 N.C. at 424, 67
S.E.2d at 452.
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IN RE N.T.
Opinion of the Court
A juvenile petition alleging dependency, abuse, or neglect “shall be drawn by
the director, verified before an official authorized to administer oaths, and filed by
the clerk, recording the date of filing.” N.C.G.S. § 7B-403(a) (2015). “[V]erification of
the petition in an abuse, neglect, or dependency action as required by N.C.G.S. § 7B-
403 is a vital link in the chain of proceedings carefully designed to protect children at
risk on one hand while avoiding undue interference with family rights on the other.”
In re T.R.P., 360 N.C. at 591, 636 S.E.2d at 791. In In re T.R.P., the juvenile petition
was notarized, but “was neither signed nor verified by the Director . . . or any
authorized representative thereof.” Id. at 589, 636 S.E.2d at 789. In concluding that
the absence of proper verification deprived the trial court of subject matter
jurisdiction, this Court emphasized “the magnitude of the interests at stake in
juvenile cases and the potentially devastating consequences of any errors.” Id. at 592,
636 S.E.2d at 791. Specifically, we observed that a juvenile petition may be based
upon an anonymous report and frequently results in “immediate interference” with a
parent’s fundamental rights to the custody, care, and control of his or her children.
Id. at 591-92, 636 S.E.2d at 791. Noting the “gravity” of these interests, we explained
that the verification requirement is a reasonable means by which the General
Assembly could ensure “that our courts exercise their power only when an identifiable
government actor ‘vouches’ for the validity of the allegations.” Id. at 592, 636 S.E.2d
at 791. We determined that “in the absence of the verification . . . the trial court’s
order was void ab initio.” Id. at 588, 636 S.E.2d at 789.
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IN RE N.T.
Opinion of the Court
A pleading is verified by means of an affidavit stating “that the contents of the
pleading verified are true to the knowledge of the person making the verification,
except as to those matters stated on information and belief, and as to those matters
he believes them to be true.” N.C.G.S. § 1A-1, Rule 11(b) (2015). “Any officer
competent to take the acknowledgement of deeds, and any judge or clerk of the
General Court of Justice, notary public, in or out of the State, or magistrate, is
competent to take affidavits for the verification of pleadings, in any court or county
in the State, and for general purposes.” Id. § 1-148 (2015). This Court has been clear
that “[g]enerally there is a presumption that a public official in the performance of an
official duty acts in accordance with the law and the authority conferred upon him.
The burden is upon the contesting party to overcome this presumption.” State v.
Watts, 289 N.C. 445, 449, 222 S.E.2d 389, 391 (1976) (citations omitted).
Here the juvenile petition contains a verification that appears facially valid—
it is signed by an authorized representative of the director of WCHS who “vouches”
for the truth of the allegations in the petition, see In re T.R.P., 360 N.C. at 592, 636
S.E.2d at 791, and another signature appears in a space clearly reserved for
“Signature of Person Authorized to Administer Oaths.” By signing in a space with
such a conspicuous designation, the person who did so necessarily represented that
he or she possessed such authority, and there is nothing in the record indicating that
this person lacked the authority he or she claimed to possess. Respondent never
submitted any evidence, or even any specific allegations, tending to overcome the
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IN RE N.T.
Opinion of the Court
presumption of regularity. Instead, respondent’s argument is based upon speculation
as to whether a person who represented that he or she had the authority to
administer oaths actually had such authority. Considering only the materials
contained in the record on appeal and the presumption of regularity that attaches to
the trial court’s decision to exercise jurisdiction, the Court of Appeals had no basis to
conclude that the petition was not properly verified. Accordingly, we reverse that
court’s decision.
REVERSED.
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