In re T.R.P.

Justice NEWBY

dissenting.

The dispositive question is whether the North Carolina General Assembly designed the verification requirement of N.C.G.S. § 7B-403 as a jurisdictional prerequisite in abuse, neglect, and dependency proceedings. Put simply, did the legislature intend to jeopardize the well-being of a child due to a clerical error by a Department of Social Services (“DSS”) employee?- The majority determines the legislature crafted N.C.G.S. § 7B-403 with a view towards making a trial court’s subject matter jurisdiction in such proceedings contingent on verification of the juvenile petition. This conclusion cannot be reconciled with the principles the General Assembly has directed should govern interpretations of the Juvenile Code, and it is not compelled by our case law addressing the relationship between verification requirements and subject matter jurisdiction. The majority’s preference for form over substance in juvenile proceedings threatens to introduce additional instability into the lives of at-risk children. Accordingly, I respectfully dissent.

Before April 2003 respondent-mother obtained temporary custody of T.R.P. and a protective order against T.R.P.’s father. Along with her three minor children, respondent-mother was living at the home of her new boyfriend when police discovered a methamphetamine laboratory there on 21 April 2003. Respondent-mother was charged with child endangerment and felony drug offenses.

Wilkes County Department of Social Services (“WCDSS”) intervened at the request of the police and determined the laboratory created a dangerous situation for the three children. Respondent-mother complied with WCDSS’s suggestion that her two sons be placed with their father and that T.R.P be placed with respondent-mother’s sister. By 22 August 2003, the voluntary nature of the placement and respondent-mother’s refusal to sign and comply with the family service case plan made it necessary for WCDSS to file a petition alleging T.R.P. to be a neglected juvenile. Although the petition identified the petitioner and properly stated the factual allegations of neglect, the WCDSS director failed to sign and verify the petition. WCDSS took no affirmative action when it filed the petition.

Following a hearing on 15 September 2003, the trial court granted temporary legal and physical custody to WCDSS, but continued the adjudication because T.R.P.’s father was in a drug rehabilitation facility and could not be present. Hearings occurred on 16 and 23 February 2004 in which WCDSS presented evidence substantiating *600the allegations in the petition. The trial court, after finding it had subject matter jurisdiction and WCDSS had shown neglect by clear and convincing evidence, ordered physical and legal custody of T.R.P. to remain with WCDSS. Respondent-mother did not appeal the trial court’s decision. T.R.P. continued to reside with her aunt throughout this process.

At a statutorily required custody review hearing on 24 May 2004, the court again received testimony concerning the best interest of T.R.P. It ordered continued legal and physical custody of T.R.P. with WCDSS and future placement, supervised by WCDSS, with T.R.P.’s father. Objecting to the placement of T.R.P. with her father, respondent-mother appealed. For the first time, she argued the trial court lacked subject matter jurisdiction because the petition was not verified.

The majority concludes the General Assembly intended the verification requirement of N.C.G.S. § 7B-403(a) to be jurisdictional and affirms the Court of Appeals decision vacating the custody review order and dismissing the case because the juvenile petition was not verified. However, this result is not required by the Juvenile Code; indeed, such a reading contradicts the directives of the General Assembly.

In matters of statutory construction, our task is to determine the intent of the General Assembly. Person v. Garrett, 280 N.C. 163, 165, 184 S.E.2d 873, 874 (1971) (“The intent of the legislature controls the interpretation of a statute.”). Subchapter I of the Juvenile Code governs abuse, neglect, and dependency actions. In Article 1 of Sub-chapter I, the legislature specifically prescribed that Subchapter I be “interpreted and construed so as to implement the following purposes and policies:”

(1) To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents;
(2) To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family[;]
(3) To provide for services for the protection of juveniles by means that respect both the right to family autonomy and the juveniles’ needs for safety, continuity, and permanence; []
*601(4) To provide standards for the removal, when necessary, of juveniles from their homes and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents [; and]
(5) To provide standards, consistent with the Adoption and Safe Families Act of 1997, P.L. 105-89, for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile’s best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time.

N.C.G.S. § 7B-100 (2005).

This Court has recognized “that N.C.G.S. § 7B-100 stresses the paramount importance of the child’s best interest and the need to place children in safe, permanent homes within a reasonable time. Whenever possible, [courts should] construe the provisions in Sub-chapter I to effectuate this intent.” In re R.T.W., 359 N.C. 539, 549-50, 614 S.E.2d 489, 496 (2005), superseded by statute on other grounds, Act of Aug. 23, 2005, ch. 398, sec. 12, N.C. Sess. Laws 1455, 1460-61.; see also In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984) (“[T]he fundamental principle underlying North Carolina’s approach to controversies involving child neglect and custody [is] that the best interest of the child is the polar star.”).

Taken together, the provisions of N.C.G.S. § 7B-100 compel reaching the merits of allegations of child abuse, neglect, and dependency. Such claims are to be fairly heard (subdivision (1)) and decided on the merits (subdivision (2)). The courts are to provide protection for children, recognizing the need for safety, continuity, and permanence (subdivision (3)), and remove children from their homes when necessary (subdivision (4)). Finally, “when reunification is against the child’s best interest, subdivision (5) favors placing the child ‘in a safe, permanent home within a reasonable amount of time.’ . . . [because] interminable custody battles do not serve the child’s best interest.” R.T.W., 359 N.C. at 545, 614 S.E.2d at 493.

After the stated purposes and definitions contained in Article 1, Subchapter I immediately addresses the subject raised by this appeal. Containing two sections, Article 2 (“Jurisdiction”) specifies the jurisdictional parameters of the courts to consider allegations of juvenile abuse, neglect, and dependency. The first section grants district *602.courts “exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent.” N.C.G.S. § 7B-200(a) (2005). The second section provides, “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.” Id. § 7B-201(a) (2005). Significantly, no provision of Article 2 makes jurisdiction contingent upon verification of the petition.

We must assume the General Assembly understands the fundamental concepts of jurisdiction and subject matter jurisdiction cited by the majority. Therefore, when the legislature expressly dedicates part of a statutory scheme to'jurisdiction, the courts should resist creating jurisdictional requirements elsewhere. The General Assembly could have included a verification requirement in the “Jurisdiction” Article. Instead, consistent with the purposes enumerated in Article 1, the General Assembly chose to provide district courts with broad subject matter jurisdiction over any matter in which a juvenile is “alleged to be abused, neglected, or dependent.” Id. § 7B-200(a). The majority’s imposition of an additional jurisdictional requirement undermines the comprehensive statutory scheme the legislature designed to protect at-risk children. Since a party may raise a trial court’s want of subject matter jurisdiction at any time, our Court should be reluctant to declare a provision jurisdictional unless the plain language of the statute compels such a conclusion.

The verification requirement of N.C.G.S. § 7B-403, on which the majority relies, does not appear in Subchapter I until Article 4 (“Venue; Petitions”). Article 4 nowhere indicates that any of its elements are jurisdictional in nature. Rather, N.C.G.S. § 7B-402 specifies certain requirements of a petition:

The petition shall contain the name, date of birth, address of the juvenile, the name and last known address of the juvenile’s parent, guardian, or custodian, and allegations of facts sufficient to invoke jurisdiction over the juvenile. A person whose actions resulted in a conviction under G.S. 14-27.2 or G.S. 14-27.3 and the conception of the juvenile need not be named in the petition. The petition may contain information on more than one juvenile when the juveniles are from the same home and are before the court for the same reason.

Id. § 7B-402(a) (2005) (emphasis added). Tellingly, N.C.G.S. § 7B-402 indicates that it is the “allegations of facts” of the child’s situation *603which must be “sufficient to invoke jurisdiction over the juvenile.” Id. The factual allegations, not the form of the petition, determine the question of jurisdiction. Here, respondent-mother does not contend the petition lacks any of the specified information.

Plainly, had it intended verification to be a jurisdictional prerequisite, the General Assembly could have included a verification requirement in Article 2. Not only did the legislature choose not to do this, it did not even deem verification worthy of inclusion among the substantive juvenile petition elements detailed in N.C.G.S. § 7B-402. Instead the legislature placed the verification requirement in N.C.G.S. § 7B-403 (“Receipt of reports; filing of petition”) a statute devoted to procedural matters:

All reports concerning a juvenile alleged to be abused, neglected, or dependent shall be referred to the director of the department of social services for screening. Thereafter, if it is determined by the director that a report should be filed as a petition, the petition 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) (2005). The obvious conclusion we should draw is that verification of juvenile petitions is a procedural, not a jurisdictional requirement. While the majority rightly opines that the purpose of verification is to ensure DSS thoroughly investigates allegations of abuse, neglect, and dependency before seeking judicial intervention, it does not follow that the requirement is jurisdictional. Nothing in N.C.G.S. § 7B-403 suggests its provisions should be construed as jurisdictional in nature. The majority simply holds the verification requirement to be so.

Significantly, unlike with, other governmental actors, the General Assembly specifically allows the drafting and filing of a juvenile petition by a non-lawyer DSS director. See id. § 84-4 (2005); see also id. § 7B-403(a). This unique authority recognizes the need to seek promptly the supervision of the trial court. Nonetheless, without attorney involvement, procedural errors could be more likely to occur.

The General Assembly anticipated procedural miscues and thus included a remedy in Subchapter I for mistakes like the one that occurred in this case. Errors in the form of a petition, such as a verification omission, can be cured through amendment. N.C.G.S. § 7B-800 provides: “The court may permit a petition to be amended *604when the amendment does not change the nature of the conditions upon which the petition is based.” Id. § 7B-800 (2005). This provision specifically allows the correction of mistakes which do not change the “nature” of the allegations contained in a juvenile petition. Hence, if as the majority opines, the “provisions in Chapter 7B establish one continuous juvenile case with several interrelated stages,” WCDSS should be allowed to amend its petition by adding a verification.

Treating the verification requirement as procedural is consistent with the North Carolina Rules of Civil Procedure. Rule 11 (“Signing and verification of pleadings”) requires all filings to be made in good faith. Id. § 1A-1, Rule 11(a) (2005). The rule specifically permits a party to sign an unsigned filing, provided he does so promptly after the omission is called to his attention. Id. In juvenile petitions, the DSS director confirms verification by signing the petition. Since Rule 11 allows signatures to be added after filing, the omission of a signature from a juvenile petition is not jurisdictional.

Although there appear to be no North Carolina cases applying Rule 11 to verification requirements, there are many federal ones. As North Carolina’s Rule 11 is substantially similar to the federal rule, the decisions of the federal courts are instructive. See Bryson v. Sullivan, 330 N.C. 644, 655, 412 S.E.2d 327, 332 (1992); Tamer v. Duke Univ., 325 N.C. 152, 164, 381 S.E.2d 706, 713 (1989). The federal cases hold that failure to comply with a statutory verification requirement is a procedural error subject to waiver. E.g., Rosaly v. Gonzalez, 106 F.2d 169, 171 (1st Cir. 1939) (per curiam) (“The law is definite and well settled that any objections to the lack of verification in a petition must be raised immediately or not at all.”).

Like the structure of the Juvenile Code, our legal precedents counsel viewing the verification requirement of N.C.G.S. § 7B-403 as procedural and not jurisdictional. In Alford v. Shaw, 327 N.C. 526, 398 S.E.2d 445 (1990), the plaintiffs commenced a shareholders’ derivative action alleging fraudulent merger and other unfair acts by the defendants. Id. at 530, 398 S.E.2d at 447. Contrary to N.C.G.S. § 1A-1, Rule 23(b), the plaintiffs did not verify their complaint prior to filing. Id. at 530-31, 398 S.E.2d at 447. More than seven years into the litigation and during the fourth appeal in the case, the defendants argued for the first time that the absence of the statutorily required verification deprived the trial court of subject matter jurisdiction. Id. at 531, 398 S.E.2d at 447. This Court disagreed, holding: (1) the plaintiffs’ failure to verify their complaint was a procedural, not a jurisdictional, defect; and (2) the defendants had waived their verification objection *605by failing to raise the issue earlier. Id. Our Court reasoned that the verification requirement of Rule 23(b) was not jurisdictional but specified the procedure to be followed. Id. Additionally, after noting the verification requirement was crafted to discourage shareholders from pursuing worthless claims in hopes of obtaining nuisance settlements, this Court concluded dismissal in favor of the defendants would be inappropriate since “the vigor with which [the parties] have litigated this case over the span of seven years[] and the massive amount of discovery conducted . . . indicate] that the purposes behind the verification rule have been met.” 327 N.C. at 532, 398 S.E.2d at 448.

Thus, under Alford, this Court assumes the General Assembly did not intend a verification requirement to be jurisdictional if it is included among the procedures to be followed. Id. at 531-32, 398 S.E.2d at 447-48. Moreover, when verification is not a jurisdictional prerequisite, a party may waive the right to object by failing to raise lack of verification in a timely manner. Id. Had it properly applied the reasoning of Alford to the instant case, the majority would have been compelled to conclude the verification requirement of N.C.G.S. § 7B-403 is not jurisdictional and that respondent-mother waived her objection.

This Court’s reluctance to deem procedural matters jurisdictional in Alford is consistent with our prior holding in Pulley v. Pulley, 255 N.C. 423, 121 S.E.2d 876 (1961), appeal dismissed and cert. denied, 371 U.S. 22, 83 S. Ct. 120, 9 L. Ed. 2d 96 (1962). There, the defendant entered a judgment by confession for alimony under N.C.G.S. § 1-247 (repealed 1967). Id. at 428, 121 S.E.2d at 879. The defendant later argued that he was not bound by the judgment because he had not verified his confession pursuant to N.C.G.S. § 1-248 (repealed 1967). Id. As in the present case, he argued the verification requirement was jurisdictional. However, this Court determined the trial court had general subject matter jurisdiction over alimony actions under N.C.G.S. § 50-1 (repealed 1971), and hence, the defendant was “estopped to question the validity of his own confessed judgment for alimony.” 255 N.C. at 430-32, 121 S.E.2d at 881-82.

The majority’s reliance on our divorce jurisprudence is misplaced. Chapter 50 (“Divorce and Alimony”) has no Article expressly devoted to jurisdiction. Unlike the verification required in N.C.G.S. § 7B-403 or N.C.G.S. § 1A-1, Rule 23(b), the verification requirement for divorce proceedings appears in a statute containing the substantive elements of divorce complaints. See N.C.G.S. § 50-8 (2005); see *606also Eudy v. Eudy, 288 N.C. 71, 74, 215 S.E.2d 782, 785 (1975) (“[T]he allegations required by G.S. 50-8 are indispensable, constituent elements of a divorce action and must be established either by the verdict of a jury or by a judge, as the pertinent statute may permit.”), overruled on other grounds by Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).'

Notably, most of the divorce cases relied upon by the majority were decided well before North Carolina made the fundamental change from code pleading to notice pleading. See generally Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970) (acknowledging North Carolina’s transition to a notice pleading system through revision of the North Carolina Rules of Civil Procedure). The majority’s holding rests upon vestiges of our code pleading jurisprudence. Notice pleading is designed to have matters evaluated on the merits. See Mangum v. Surles, 281 N.C. 91, 99, 187 S.E.2d 697, 702 (1972) (“ [I]t is the essence of the Rules of Civil Procedure that decisions be had on the merits and. not avoided on the basis of mere technicalities.”); 1 G. Gray Wilson, North Carolina Civil Procedure § 1-2, at 2 (2d ed. 1995) (“It was the intent of the General Statutes Commission that drafted the civil rules to develop a scheme under which cases could be disposed of on the merits and not on the basis of procedural errors.”). North Carolina modeled its notice pleading approach after that of the federal system. Sutton, 277 N.C at 99, 176 S.E.2d at 164. The U.S. Supreme Court has declared that “[t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80, 86 (1957). Gamesmanship, which is to be avoided in general, should never be allowed to interfere with custody determinations concerning the best interests of at-risk children.

The majority also relies on a Court of Appeals decision, In re Green, 67 N.C. App. 501, 313 S.E.2d 193 (1984), which held the verification requirement in juvenile neglect cases to be jurisdictional. Id. at 504, 313 S.E.2d at 195. As a decision from a lower court, Green is not controlling. In Green, the Court of Appeals rigidly applied a nineteenth-century affidavit case, Alford v. McCormac, 90 N.C. 151, 152-53 (1884), and failed to engage in statutory construction. The opinion presents no compelling reasoning for us to follow.

Although I agree with the majority that the General Assembly attempted to balance the rights of parents and children, the majority *607decision does little to protect parents and much to harm children. The majority suggests verification protects parents by having an identifiable government actor “vouch” for the validity of the allegations in a juvenile petition to ensure that a “department of social services intervention ... is based upon valid and substantive allegations.” While these goals may be advanced if the omission were intentional and the missing verification noticed before a custody hearing, they are not furthered by vacating custody orders entered after evidence has been received at a hearing.

Here, there is no hint that WCDSS acted improperly. In fact, WCDSS showed considerable restraint by attempting to resolve the situation without judicial intervention, and the trial court found that WCDSS was entirely justified in filing a petition to have T.R.P. adjudicated a neglected juvenile. The petition identified the petitioner, and the failure to verify it appears to be a mere administrative oversight. To ignore an adjudication on the merits because of inadvertence hardly promotes the best interest of T.R.P. As such, the majority’s interpretation of N.C.G.S. § 7B-403 cannot be reconciled with the principles of construction set out in N.C.G.S. § 7B-100.

Nor is verification the vital safeguard portrayed by the majority. The goal is to initiate court intervention only into meritorious cases in which evidence exists to support the allegations. Once the process is begun, however, it is the in- court testimony, not the original verification, that determines the need and degree of DSS intervention. In fact, in an emergency situation, DSS is authorized to act without a petition. N.C.G.S. § 7B-500 (2005). Whether or not the petition is verified, DSS intervention could still be inappropriate. Were a petition to be filed because of ill motives, the trial court could address the problem by issuing sanctions against the responsible party. Such a tailored response is preferable to dismissing all juvenile cases that originated with unverified petitions.

In this case, the petition contained sufficient allegations of neglect to invoke the trial court’s jurisdiction. Id. § 7B-200(a). As envisioned by N.C.G.S. § 7B-100(2), the trial court has entered a judgment “that reflects consideration of the facts, the needs and limitations of the juvenile, and the strengths and weaknesses of the family.” Id. § 7B-100(2). The majority admits the court properly found T.R.P. to be neglected and developed a placement plan in her best interest. Nonetheless, after more than two years, the majority would now disrupt the placement of the child and return her to the status quo ante. This outcome clearly contradicts the statutory directive “that when it *608is not in the juvenile’s best interest to be returned home, the juvenile [should] be placed in a safe, permanent home within a reasonable amount of time.” Id. § 7B-100(5). Absent a clear statutory mandate, I cannot agree with the majority that careful consideration of a child’s best interest by a court with general subject matter jurisdiction over abuse, neglect, and dependency actions should be disregarded because of a technical omission that in no way affected the court proceedings or harmed anyone involved.

Moreover, the majority’s decision is not limited to the facts of this case; its potential disruptive effect on abused, neglected, or dependent children is staggering. Children are often placed with persons who have no legal right to custody apart from a court order. Even after the passage of considerable time, a biological parent who finds a procedural defect in the DSS petition could completely undermine years of stability and healing by setting aside all the court’s orders addressing the merits and demanding a return to the status quo ante without regard to the child’s welfare. Children on the doorstep of adoption might be returned to their biological parents only to be removed again. In short, the majority’s approach will potentially “result in protracted custody proceedings that leave . . . the child in legal limbo. . . . thwart[ing] the legislature’s wish that children be placed ‘in .. . safe, permanent home[s] within a reasonable amount of time.’ ” R.T.W., 359 N.C. at 547, 614 S.E.2d at 494 (alterations in original) (quoting N.C.G.S. § 7B-100(5)).

At its core, this case is about two different types of neglect. T.R.P.’s mother neglected her daughter; a DSS employee neglected to sign the petition. By holding that an administrative oversight in failing to verify the petition is jurisdictional, the majority has made the child the victim of both.

Chief Justice PARKER and Justice BRADY join in this dissenting opinion.