Opinion
No. COA12–95.
2012-07-17
In The Matter of F.H.R.P–H.
R. Kent Harrell for petitioner-appellee. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-mother.
Appeal by respondent-mother from order entered 24 October 2011 by Judge R. Russell Davis in Pender County District Court. Heard in the Court of Appeals 25 June 2012. R. Kent Harrell for petitioner-appellee. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-mother.
HUNTER, Robert, C., Judge.
Respondent-mother appeals from the trial court's order terminating her parental rights to the juvenile F.H.R.P–H. Respondent contends that the trial court lacked jurisdiction to hold the termination hearing and erred by conducting the hearing in the absence of the juvenile's guardian ad litem. We reverse the trial court's termination order and remand the matter to the trial court.
The juvenile was born in February of 2006, and the Duplin County Department of Social Services filed a juvenile petition on 28 February 2006 alleging that the juvenile was malnourished. On 22 June 2006, the juvenile was adjudicated dependent by Duplin County District Court and placed in the care of respondent's niece, a licensed foster parent in Pender County. In a permanency planning order entered 26 September 2006, respondent's niece and her husband (“petitioners”) were given full custody of the juvenile. Respondent was allowed supervised visits.
On 10 December 2010, in Pender County, petitioners filed a petition to terminate respondent's parental rights, as well as the parental rights of the juvenile's father. After the father's identity was confirmed by DNA testing, petitioners voluntarily dismissed the petition to terminate the rights of “any unknown father.” In an amended petition, petitioners alleged three grounds to terminate respondent's parental rights: (1) willful failure to make reasonable progress; (2) willful failure to pay a reasonable portion of the juvenile's cost of care for six months prior to the filing of the petition; and (3) willful abandonment.
The juvenile's father is not a party to this appeal and is not discussed further herein.
Respondent filed a written response to the petition on 8 April 2011. In an order entered 19 April 2011, the trial court appointed a licensed attorney as a guardian ad litem for the juvenile. On 7 September 2011, the guardian ad litem was served with notice that the termination of parental rights hearing was scheduled for 28 September 2011. At the hearing, petitioners' counsel informed the trial court that the juvenile's guardian ad litem would not attend the adjudication phase of the hearing, but would be present for the disposition. The guardian ad litem testified during the dispositional phase of the termination hearing.
On 24 October 2011, the trial court entered an order terminating respondent's parental rights. The order does not indicate that the juvenile's guardian ad litem was present for the termination hearing. The trial court found all three grounds to terminate respondent's parental rights as alleged in the petition, as well as neglect. The trial court also concluded that it was in the best interest of the juvenile to terminate respondent's parental rights. Respondent appeals.
We first address respondent's argument that the trial court lacked jurisdiction to hold the termination hearing in Pender County because the underlying juvenile proceeding was initiated in Duplin County, which is in another judicial district. Respondent's argument lacks merit.
The district court “has exclusive, original jurisdiction” over abuse, neglect, and dependency proceedings, as well as proceedings to terminate parental rights. N.C. Gen.Stat. § 7B200 (a)(4) (2011). Additionally, N.C. Gen.Stat. § 7B–1101 (2011) provides that in termination of parental rights cases, the district court has
exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion.
The district court's subject matter jurisdiction in termination of parental rights cases is invoked by the filing of a verified petition to terminate parental rights. In re M.M., ––– N.C.App. ––––, ––––, 720 S.E.2d 417, 417 (2011). “[W]e must keep in mind the clear distinction between jurisdiction and venue. Jurisdiction implies or imports the power of the court; venue the place of action.” Shaffer v. Bank, 201 N.C. 415, 418, 160 S.E. 481, 482 (1931).
Here, all of the evidence in the record indicates that the juvenile resided with petitioners in Pender County at the time the verified petition to terminate respondent's parental rights was filed in Pender County District Court. Accordingly, pursuant to N.C. Gen.Stat. § 7B–1101, Pender County District Court acquired subject matter jurisdiction over the matter and was also the appropriate venue for the termination proceeding. We agree with petitioners' assertion that respondent's argument confuses issues of jurisdiction and venue, and disagree with respondent's contention that the prior Duplin County matter foreclosed the filing of the petition in Pender County. We also note that respondent did not file a motion to change venue in the termination proceeding before answering the petition for termination of parental rights or object to venue in her answer. See In re J.L.K., 165 N.C.App. 311, 320, 598 S.E.2d 387, 393 (concluding the district court properly exercised subject matter jurisdiction where the child was physically present in that county when the petition for termination of parental rights was filed, and concluding the respondent-father waived his right to seek a change of venue by failing to either file a motion for a change of venue prior to answering the termination petition or to object to venue in his answer), disc. review denied,359 N.C. 68, 604 S.E.2d 314 (2004), motion dismissed,359 N.C. 281, 609 S .E.2d 773 (2005). Accordingly, we overrule respondent's argument that the Pender County District Court lacked jurisdiction to terminate respondent's parental rights.
We next address respondent's contention that the trial court committed prejudicial error by conducting the termination hearing in the absence of the juvenile's guardian ad litem. Petitioners concede that the trial court erred by proceeding without the guardian ad litem, and we agree.
“If an answer or response denies any material allegation of the petition or motion [to terminate parental rights], the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile [.]” N.C. Gen.Stat. § 7B–1108(b) (2011). The guardian ad litem “stands in the place of the minor who is not sui juris.” In re J.H.K., 365 N.C. 171, 175, 711 S.E.2d 118, 120 (2011).
Once appointed, the guardian ad litem's duties include:
[T]o make an investigation to determine the facts, the needs of the juvenile, and the available resources within the family and community to meet those needs; to facilitate, when appropriate, the settlement of disputed issues; to offer evidence and examine witnesses at adjudication; to explore options with the court at the dispositional hearing; to conduct follow-up investigations to insure that the orders of the court are being properly executed; to report to the court when the needs of the juvenile are not being met; and to protect and promote the best interests of the juvenile until formally relieved of the responsibility by the court.
N.C. Gen.Stat. § 7B–601(a) (2011) (emphasis added).
In this case, respondent filed an answer denying allegations in the termination petition, and a guardian ad litem was appointed to represent the juvenile pursuant to N.C. Gen.Stat. § 7B–1108. The record and the trial transcript indicate that the juvenile's guardian ad litem was not present for the adjudication phase of the termination hearing. One of the enumerated duties of a juvenile's guardian ad litem is to offer evidence and examine witnesses at the adjudication phase, a duty the guardian did not perform in this case. As we have previously held, this Court “must presume prejudice where, as here, a child was not represented by a guardian ad litem at a critical stage of the termination proceedings.” In re R.A.H ., 171 N.C.App. 427, 431, 614 S.E.2d 382, 385 (2005). Accordingly, we reverse the order terminating respondent's parental rights and remand the matter to the trial court.
Because we reverse the trial court's order terminating respondent's parental rights for the reason stated herein, we need not address the remainder of respondent's arguments, which challenge specific findings of fact or conclusions of law in the termination order.
Reversed and remanded. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).