               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA17-119

                                     Filed: 5 July 2017

Iredell County, Nos. 15 JA 159-61

IN RE: T.P, T.P. and T.P., Three Minor Juveniles.


       Appeal by respondent from order entered 24 October 2016 by Judge H. Thomas

Church in Iredell County District Court. Heard in the Court of Appeals 7 June 2017.


       Lauren Vaughan for petitioner-appellee Iredell County Department of Social
       Services.

       Melanie Stewart Cranford for guardian ad litem.

       Appellate Defender Glenn Gerding, by Assistant Appellate Defender Joyce L.
       Terres, for respondent.


       DAVIS, Judge.


       T.P.1 (“Respondent”) appeals from the trial court’s 24 October 2016 order

placing her three children in the custody of the Iredell County Department of Social

Services (“DSS”) based on a report of abuse, neglect, or dependency that DSS had

received from law enforcement officers. At the time this report was received, the

court had previously discontinued periodic judicial reviews and released counsel in

connection with proceedings stemming from a prior adjudication of the children as

abused juveniles. On appeal, Respondent argues that the court (1) lacked subject


       1  Pseudonyms and initials are used throughout this opinion to protect the identity of the
juveniles and for ease of reading.
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matter jurisdiction to enter the 24 October 2016 order; and (2) erred by failing to

conduct an adjudicatory hearing pursuant to Article 8 of the Juvenile Code.

      This appeal requires us to consider how a trial court obtains subject matter

jurisdiction to enter an order removing the custody of juveniles from their parent in

a proceeding governed by N.C. Gen. Stat. § 7B-401(b). After careful review, we vacate

the trial court’s order for lack of subject matter jurisdiction.

                           Factual and Procedural Background

      “Tasha,” “Tina,” and “Tyler” are Respondent’s children from three different

fathers — G.P, P.S, and E.K.2 On 25 August 2015, DSS filed three verified petitions

alleging abuse and neglect of Tasha, Tina, and Tyler.            On 20 October 2015, an

adjudication hearing was held in Iredell County District Court before the Honorable

H. Thomas Church.             Following the hearing, the trial court entered an order

adjudicating the three children to be abused. On 17 November 2015, a dispositional

hearing was held, and the trial court issued an order on 1 December 2015 placing the

three children in the custody of DSS. Pursuant to the trial court’s order, permanency

planning hearings were subsequently held every 90 days.

      Following a 6 September 2016 permanency planning hearing, the trial court

entered an order on 7 September 2016 determining that Respondent was “fit and

proper to exercise the care, custody, and control of the juveniles” and ordering that



      2   None of the fathers are parties to this appeal.

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“[t]he legal and physical custody of the juveniles . . . shall be returned to Respondent

Mother.” P.S. was given joint legal and physical custody of Tina. G.P. and E.K. were

allowed supervised visits with their children. The 7 September 2016 order stated

that the court was “retain[ing] jurisdiction” but determined that “no further regular

review hearings are scheduled.” The order also provided that DSS “is relieved of

active monitoring responsibility, the Guardian ad Litem Program is relieved, and all

counsel is [sic] relieved.”

       On 14 September 2016, DSS received a new Child Protective Services report

stating that law enforcement officers had responded to a domestic altercation two

days earlier between Respondent and E.K. On 15 September 2016, a DSS social

worker met with Respondent, who admitted that the altercation had occurred and

that same day signed a safety plan in which she agreed to obtain a domestic violence

protective order (“DVPO”) against E.K. Based on its investigation of the incident,

DSS determined that immediate removal of the minor children from Respondent’s

custody was not required.

       On 16 September 2016, DSS filed a “Motion for Review” in the existing juvenile

matters as to each of the three children, requesting the trial court “to hear and further

consider the case” due to a “[c]hange in situation.” The motions detailed the 14

September report from law enforcement officers, the social worker’s meeting with

Respondent, and the safety plan to which Respondent had agreed. The motions



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further stated that Respondent had denied that any of the children were present

during the altercation but that E.K. had indicated to law enforcement officers that

his son had, in fact, been present. The motions also asserted that Respondent had

“stated that she was not going to [seek a DVPO], because she was going to move out

of the county.” On 3 October 2016, DSS filed a “Juvenile Court Summary” stating, in

pertinent part, that despite the safety plan Respondent had signed in which she

agreed that she would obtain a protective order against E.K., she had failed to follow

through by actually obtaining the DVPO.

       On 4 October 2016, the trial court held a hearing on the Motions for Review.

The social worker, Respondent, and E.K. testified regarding the events of 12

September 2016. DSS recommended that “legal and physical custody of [Tasha] and

[Tyler] be placed with [DSS] with [DSS] having placement authority” and that “legal

and physical custody of [Tina be placed] with Respondent Father [P.S.]” On 24

October 2016, the court entered an order containing the following pertinent findings

of fact:

             3. This case came on for a Motion for Review filed
             September 16, 2016, by DSS and a Permanency Planning
             Review, the above-named juveniles having been found
             within the jurisdiction of the court as abused on October
             20, 2015. The current allegations involve a physical assault
             that occurred on or about September 12, 2016, between
             Respondent Mother and [E.K.] in which it is alleged they
             have been violating Orders of this Court regarding
             visitation with [E.K.] and that the minor, [Tyler], was
             present during the altercation.


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             4. The report of the social worker, which is attached
             hereto, shall be admitted into evidence and incorporated
             herein by reference as this Court’s findings of fact.
             Additionally, the Court takes judicial notice of the facts
             from prior orders entered in this matter and incorporates
             the same herein by reference. This Court has also
             considered the Motion for Review and Petitioner’s #1 which
             is the police incident report.

             ....

             6. The allegations in the Motion for Review are consistent
             with the police report, testimony from the social worker,
             and the reluctant admission from Respondent Mother that
             a physical assault did occur. Therefore this Court finds that
             those allegations contained in the Motion for Review are
             true and incorporates them herein.

      The trial court ultimately ordered that “[t]he legal and physical custody of

[Tasha and Tyler] shall be with the Iredell County Department of Social Services”

and “[t]he sole legal and physical custody of [Tina] shall be with [P.S.]” The court

also ordered that a subsequent permanency planning hearing be held in 90 days.

Respondent filed a timely notice of appeal.

                                      Analysis

      Respondent argues that the trial court did not possess subject matter

jurisdiction to enter its 24 October 2016 order. Alternatively, she contends that even

if subject matter jurisdiction existed, the court erred in failing to conduct an

adjudicatory hearing pursuant to the provisions of Article 8 of the Juvenile Code.




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Because we conclude that the trial court did, in fact, lack subject matter jurisdiction,

we must vacate the order.

       “Subject matter jurisdiction refers to the power of the court to deal with the

kind of action in question.” Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d

673, 675 (1987) (citation omitted).      It is well established that “[s]ubject matter

jurisdiction . . . is conferred upon the courts by either the North Carolina Constitution

or by statute.” In re M.B., 179 N.C. App. 572, 574, 635 S.E.2d 8, 10 (2006) (citation

and quotation marks omitted). With regard to “matters arising under the Juvenile

Code, the court’s subject matter jurisdiction is established by statute.” In re K.J.L.,

363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009) (citation omitted). “Subject matter

jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter

jurisdiction may be raised for the first time on appeal.” In re H.L.A.D., 184 N.C. App.

381, 385, 646 S.E.2d 425, 429 (2007), aff’d per curiam, 362 N.C. 170, 655 S.E.2d 712

(2008) (citation omitted).    Whether a court has jurisdiction is a question of law

reviewable de novo on appeal. In re K.U.-S.G., D.L.L.G., & P.T.D.G., 208 N.C. App.

128, 131, 702 S.E.2d 103, 105 (2010) (citation omitted).

       Our Supreme Court has held that a trial court must have subject matter

jurisdiction “over the nature of the case and the type of relief sought, in order to decide

a case.” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (citation and

quotation marks omitted).



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              A court cannot undertake to adjudicate a controversy on its
              own motion; rather, it can adjudicate a controversy only
              when a party presents the controversy to it, and then, only
              if it is presented in the form of a proper pleading. Thus,
              before a court may act there must be some appropriate
              application invoking the judicial power of the court with
              respect to the matter in question.

In re Transp. of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 558 (1991) (citation

omitted and emphasis added).

       Thus, “a trial court’s general jurisdiction over the type of proceeding or over

the parties does not confer jurisdiction over the specific action.” In re McKinney, 158

N.C. App. 441, 447, 581 S.E.2d 793, 797 (2003). “The instant that the court perceives

that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought

to stay its action, and, if it does not, such action is, in law, a nullity.” In re Officials

of Kill Devil Hills Police Dep’t, 223 N.C. App. 113, 117, 733 S.E.2d 582, 586 (2012)

(citation and quotation marks omitted) (holding trial court lacked jurisdiction to enter

order permitting employees with grievances against police department to present

complaint).

       We have applied this rule in cases arising under the Juvenile Code. See, e.g.,

McKinney, 158 N.C. App. at 446-47, 581 S.E.2d at 796-97 (holding that trial court

lacked jurisdiction to enter order terminating parental rights where DSS filed

“Motion in the Cause” that did not reference pertinent statutory provisions or seek

relief in form of termination of parental rights); see also Transp. of Juveniles, 102



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N.C. App. at 808, 403 S.E.2d at 559 (ruling that trial court did not possess jurisdiction

to enter order transporting delinquent juveniles where no complaint or motion was

filed seeking such relief).

       In the present case, our jurisdictional analysis is impacted by the General

Assembly’s recent amendment to N.C. Gen. Stat. § 7B-401 for the purpose of adding

subsection (b). See 2013 N.C. Sess. Laws 305, 308, ch. 129, § 8 (codified as N.C. Gen.

Stat. § 7B-401 (2015)). Section 7B-401(b) states as follows:

               If the court has retained jurisdiction over a juvenile whose
               custody was granted to a parent and there are no periodic
               judicial reviews of the placement, the provisions of Article
               8 of this subchapter shall apply to any subsequent report
               of abuse, neglect, or dependency determined by the director
               of social services to require court action pursuant to G.S.
               7B-302.3

N.C. Gen. Stat. § 7B-401(b) (footnote added).

       In order for § 7B-401(b) to apply, four requirements must be met: (1) the court

must have “retained jurisdiction over a juvenile whose custody was granted to a

parent”; (2) the court must no longer be holding “periodic judicial reviews of the

placement” of the juvenile; (3) after the court discontinued periodic judicial reviews,




       3  N.C. Gen. Stat. § 7B-302 provides the procedure by which the director of DSS must conduct
an assessment “in order to ascertain the facts of the case, the extent of the abuse or neglect, and the
risk of harm to the juvenile, in order to determine whether protective services should be provided or
the complaint filed as a petition.” N.C. Gen. Stat. § 7B-302(a) (2015). This statute also provides that
if abuse, neglect, or dependency has occurred, the director must determine whether immediate
removal is required or otherwise arrange protective services for the care of the juvenile. N.C. Gen.
Stat. § 7B-302(c)-(d).

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DSS must have received a new report of abuse, neglect, or dependency; and (4) the

director of social services must have determined based on an assessment conducted

pursuant to § 7B-302 that court action was required.

      In cases where § 7B-401(b) is applicable, the director (or his designee) must file

a petition in the existing case setting out the new allegations of abuse, neglect, or

dependency in order for the trial court to have subject matter jurisdiction to

adjudicate the juvenile. Once the petition is filed, the trial court is required to follow

the provisions of Article 8 and conduct an adjudicatory hearing.            If the court

determines that the allegations in the petition were proved by clear and convincing

evidence and adjudicates the juvenile as abused, neglected, or dependent, it must

then conduct an initial dispositional hearing. See N.C. Gen. Stat. § 7B-807(a) (2015);

N.C. Gen. Stat. § 7B-808(a) (2015); see also N.C. Gen. Stat. § 7B-901(a) (2015) (“The

dispositional hearing shall take place immediately following the adjudicatory hearing

and shall be concluded within 30 days of the conclusion of the adjudicatory hearing.”).

      The criteria set out in § 7B-401(b) were met in this case. In its 7 September

2016 order, the trial court stated that “[w]hile the Court retains jurisdiction, no

further regular review hearings are scheduled.” On 14 September 2016, DSS received

a new Child Protective Services report from law enforcement officers. Two days later,

DSS filed three motions for review based on this report as well as the social worker’s

subsequent meeting with Respondent. Thus, because § 7B-401(b) was triggered, DSS



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was required to file a verified petition seeking an adjudication of the juveniles. The

trial court was then required to conduct an adjudicatory hearing pursuant to the

provisions of Article 8 to determine if an adjudication of abuse, neglect, or dependency

was appropriate and — if so — to then conduct a dispositional hearing.

      However, rather than filing a petition seeking such an adjudication, DSS

instead merely submitted motions for review requesting that the trial court “hear and

further consider the case of the juvenile . . . [due to a c]hange in situation.” Therefore,

based on N.C. Gen. Stat. § 7B-401(b), despite the fact that the trial court’s 7

September 2016 order stated that the court was “retain[ing] jurisdiction,” the court

lacked subject matter jurisdiction to adjudicate the new allegations of abuse, neglect,

or dependency absent a verified petition filed by DSS, which would — in turn — have

implicated the provisions of Article 8.

      Accordingly, even if DSS had properly filed a petition as required by § 7B-

401(b), the trial court would have been required to then conduct a new adjudicatory

hearing pursuant to Article 8, which it did not do in this case. Instead, the trial court

simply conducted a dispositional hearing, determining that a change in

circumstances had occurred that affected the best interests of the children and that

— for this reason — removal of the children from Respondent’s custody was

necessary.   See T.R.P., 360 N.C. at 593, 636 S.E.2d at 792 (“[A] dispositional

hearing . . . must be preceded by the filing of a petition and an adjudication.”).



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      Thus, the trial court’s error was twofold: (1) it took action based on the new

allegations of abuse, neglect, or dependency without DSS having filed a verified

petition that would have conferred subject matter jurisdiction upon it to do so; and

(2) it conducted a dispositional hearing and subsequently entered a dispositional

order removing custody of the juveniles from Respondent without first conducting a

new adjudicatory hearing and actually adjudicating the children to be abused,

neglected, or dependent.

      Our ruling on this issue is supported by the language used by the General

Assembly both in § 7B-401(b) and Article 8 of the Juvenile Code. As noted above,

§ 7B-401(b) expressly incorporates Article 8.         See N.C. Gen. Stat. § 7B-401(b)

(“ . . . [T]he provisions of Article 8 of this subchapter shall apply to any subsequent

report of abuse, neglect, or dependency . . . .”). Article 8 of the Juvenile Code

guarantees a parent the right to a hearing before her child is adjudicated abused,

neglected, or dependent. See N.C. Gen. Stat. § 7B-802 (2015).

      Article 8 also makes the filing of a verified petition a mandatory prerequisite

to such a hearing, stating, in pertinent part, that an adjudicatory hearing “shall be a

judicial process designed to adjudicate the existence or nonexistence of any of the

conditions alleged in a petition” and that “[t]he allegations in a petition alleging that

a juvenile is abused, neglected, or dependent shall be proved by clear and convincing

evidence.” Id. (emphasis added); N.C. Gen. Stat. § 7B-805 (2015) (emphasis added).



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Article 8 further provides that “[i]f the court finds from the evidence, including

stipulations by a party, that the allegations in the petition have been proven by clear

and convincing evidence, the court shall so state.”        N.C. Gen. Stat. § 7B-807(a)

(emphasis added); see also T.R.P., 360 N.C. at 598, 636 S.E.2d at 795 (holding “the

trial court has no power to act” where verified petition invoking subject matter

jurisdiction was not filed prior to order removing custody).

      It is important to note that a petition is not a mere technical requirement. To

the contrary, a petition in the form required by N.C. Gen. Stat. § 7B-402 ensures that

the due process rights of a parent are protected by requiring a petitioner to make

specific allegations of abuse, neglect or dependency and set out the relief it is seeking

from the court in connection with the juvenile at issue. See T.R.P., 360 N.C. at 592,

636 S.E.2d at 791 (“[G]iven the magnitude of the interests at stake in juvenile cases

and the potentially devastating consequences of any errors, the General Assembly’s

requirement of a verified petition is a reasonable method of assuring that our courts

exercise their power only when an identifiable government actor ‘vouches’ for the

validity of the allegations in such a freighted action.”). Thus, the petition allows a

parent to fully understand the allegations being made and the relief being sought so

as to provide her with a full and fair opportunity to rebut those allegations.

      We note that our ruling in the present case is consistent with our decision in

McKinney. In that case, the Orange County DSS filed a document captioned “Motion



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in the Cause” in an ongoing neglect and dependency action pursuant to N.C. Gen.

Stat. § 7B-1102. McKinney, 158 N.C. App. at 443, 581 S.E.2d at 794. Although the

motion contained various factual allegations, it failed to (1) state that it was a petition

for termination of parental rights; (2) reference the statutory provisions governing

termination of parental rights; or (3) request any specific relief from the court. Id. at

446, 581 S.E.2d at 796-97. After a hearing was held on DSS’s motion, the trial court

entered an order terminating the respondent-mother’s parental rights to the juvenile.

Id. at 443, 581 S.E.2d at 794.

      On appeal, the respondent-mother asserted errors “not associated with subject

matter jurisdiction[,]” but we nevertheless determined ex mero motu that the trial

court lacked jurisdiction to enter its order. Id. at 443, 581 S.E.2d at 794-95. In our

decision, we stated that “[t]o be valid, a pleading or motion must include a request or

demand for the relief sought, or for the order the party desires the trial court to

enter[.]” Id. at 444, 581 S.E.2d at 795. We ruled that “an examination of petitioner’s

motion reveal[ed] that it nowhere ask[ed] for the termination of respondent’s parental

rights” and did not “reference any of the statutory provisions governing termination

of parental rights.” Id. at 445-46, 581 S.E.2d at 796-97. Indeed, we noted that the

motion “fail[ed] to request any relief, judgment, or order from the trial court.” Id. at

446, 581 S.E.2d at 797. Notably, in holding that the trial court lacked subject matter

jurisdiction to enter the order, we stated that “a trial court’s general jurisdiction over



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the type of proceeding or over the parties does not confer jurisdiction over the specific

action.” Id. at 447, 581 S.E.2d at 797 (citation omitted and emphasis added).

      We wish to emphasize that our decision today applies only to proceedings that

fall within the purview of § 7B-401(b). Nothing in our ruling should be construed as

holding that the trial court is divested of general jurisdiction in an abuse, neglect, or

dependency action simply because it discontinues periodic judicial reviews. See N.C.

Gen. Stat. § 7B-201 (“When the court obtains jurisdiction over a juvenile, jurisdiction

shall continue until terminated by order of the court or until the juvenile reaches the

age of 18 years or is otherwise emancipated, whichever occurs first.”). Rather, we are

simply holding that in cases where — as here — a director of social services seeks

court action based on a new report of abuse, neglect, or dependency in a case that

falls within the parameters of N.C. Gen. Stat. § 7B-401(b), the trial court lacks subject

matter jurisdiction to adjudicate the juvenile as abused, neglected, or dependent

absent the prior filing of a verified petition by DSS as required by Article 8. Moreover,

a trial court in such circumstances cannot proceed directly to a dispositional hearing

without first conducting an adjudicatory hearing and actually adjudicating the

juvenile as abused, neglected, or dependent.

      Accordingly, the trial court’s 24 October 2016 order is vacated. See McKinney,

158 N.C. App. at 448, 581 S.E.2d at 798 (vacating trial court’s order for lack of subject

matter jurisdiction).



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                              Conclusion

For the reasons stated above, we vacate the trial court’s 24 October 2016 order.

VACATED.

Judges HUNTER, JR. and MURPHY concur.




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