I. Jurisdiction
In North Carolina, "standing is jurisdictional in nature and `consequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of [the] case are judicially resolved.'" In re Miller, 162 N.C.App. 355, 357, 590 S.E.2d 864, 865 (2004) (quoting In re Will of Barnes, 157 N.C.App. 144, 155, 579 S.E.2d 585, 592, disc. rev. denied, 357 N.C. 460, 586 S.E.2d 94 (2003)).
This Court has stated:
regardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists in [the] case. A court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking.
....
Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. Jurisdiction of the court over the subject matter of an action is the most critical aspect of the court's authority to act. Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question[, and]... is conferred upon the courts by either the North Carolina Constitution or by statute.
In re N.R.M., 165 N.C.App. 294, 297, 598 S.E.2d 147, 149 (2004) (internal quotations omitted).
In North Carolina the rule is that the statute of limitations begins to run against an infant or an insane person who is represented by a guardian at the time the cause of action accrues. If he has no guardian at that time, then the statute begins to run upon the appointment of a guardian or upon the removal of his disability as provided by G.S. § 1-17, whichever shall occur first.
Bryant v. Adams, 116 N.C.App. 448, 459, 448 S.E.2d 832, 837 (1994) (citations omitted) (emphasis supplied), disc. rev. denied, 339 N.C. 736, 454 S.E.2d 647 (1995).
N.C. Gen.Stat. § 7B-1103(5) (2003) provides, "[a]ny person with whom the juvenile has resided for a continuous period of two years or more next preceding the filing of the petition" may file a petition to terminate parental rights.
*306This Court in In re Miller, held DSS did not have standing to file a petition to terminate respondent's parental rights in accordance with N.C. Gen.Stat. § 7B-1103(3). 162 N.C.App. at 359, 590 S.E.2d at 866. When DSS filed its petition to terminate the respondent's parental rights, DSS no longer had custody of the minor child. Id. at 358, 590 S.E.2d at 866. "Because DSS no longer had custody of the child, DSS lacked standing, under the plain language of N.C. Gen.Stat. § 7B-1103(a), to file a petition to terminate respondent's parental rights." Id.
Here, the trial court lacked subject matter jurisdiction to terminate respondent's parental rights. Petitioners' petition, filed 17 December 2002, alleged E.T.S. had resided with them for over two years. The trial court asserted jurisdiction over these proceedings based solely on this claim. N.C. Gen.Stat. § 7B-1103(5). However, when petitioners received custody of E.T.S. and when the petition was filed, respondent was a minor under legal disability. Respondent was not represented by an appointed guardian when: (1) DSS intervened and filed a petition for non-secure custody; (2) E.T.S. was adjudicated dependent; (3) petitioners gained custody of E.T.S.; or (4) the petition before us was filed. N.C. Gen.Stat. § 1A-1, Rule 17 (2003).
Although evidence was presented to show E.T.S. had lived with petitioners for over two years, a substantial portion of that time period was tolled until either the court appointed a guardian or respondent attained legal majority. Id. Until a guardian was appointed or respondent attained legal majority, respondent remained under a legal disability. The two-year time period required to confer jurisdiction on the trial court under the grounds asserted in the petition had not yet accrued after respondent's legal disability was removed. The petition for termination of respondent's parental rights filed by petitioners was fatally flawed and failed to vest jurisdiction to the trial court.
The majority's opinion cites this Court's decision in In re O. C., ___ N.C.App. ___, 615 S.E.2d 391, disc. rev. denied, 360 N.C. 64, ___ S.E.2d ___ (2005). The facts and applicable law in In re O.C. have no bearing or precedential authority here. In In re O. C., the respondent alleged that she was entitled to a guardian ad litem under N.C. Gen.Stat. § 7B-1101 and § 1111(a)(6), which mandates a guardian ad litem to be appointed to a parent where it is alleged that the parent's rights should be terminated and the parent is incapable of providing for the minor child due to substance abuse, mental retardation, etc. Id. at ___, 615 S.E.2d at 394. The respondent, in In re O.C., was an adult and at all times during the proceeding did not assert a jurisdictional claim. This Court held that the respondent was not entitled to the appointment of a guardian ad litem because the motion to terminate her parental rights failed to allege the respondent was incapable of providing for her minor children due to a debilitating condition. Id. at ___, 615 S.E.2d at 396.
The respondent, in In re O. C., also argued she should have been appointed a guardian ad litem under N.C. Gen.Stat. § 7B-602(b)(1) during the dependency adjudication proceedings, because she was incapable of providing support to her minor children as a result of her substance abuse. This Court held that even if respondent had erroneously been denied the appointment of a guardian ad litem at the proceedings, "there is no statutory authority for the proposition that the instant order is reversible because of a [guardian ad litem] appointment deficiency that may have occurred years earlier." Id. at ___, 615 S.E.2d at 395.
Here, it is undisputed that respondent was a minor and under a legal disability at the time of the dependency adjudication proceedings. N.C. Gen.Stat. § 7B-602 was not in effect until June 2001, six months after the proceedings in this case were completed. However, Rule 17 of the North Carolina Rules of Civil Procedure mandates, "[i]n actions or special proceedings when any of the defendants are infants or incompetent persons, whether residents or nonresidents of this State, they must defend by general or testamentary guardian, if they have any within this State or by guardian ad litem appointed as hereinafter provided." N.C. Gen.Stat. § 1A-1, Rule 17. The trial court did not appoint respondent a guardian ad litem when one was clearly mandated under *307N.C. Gen.Stat. § 1A-1, Rule 17. As a minor under legal disability, any adjudication affecting her legal or parental rights was void in the absence of a guardian who could legally accept service, appear on respondent's behalf, assert her claims, and protect her constitutional rights. The facts or holding in In re O.C. are not analogous or relevant to this case.
The trial court's failure to appoint a guardian ad litem for respondent in the dependency adjudication proceedings, when the child was removed from her custody, or at the time the present petition to terminate her rights was filed, voids the trial court's assertion of subject matter jurisdiction in the hearing to terminate her parental rights and requires its order to be vacated.
Petitioners filed for the termination of respondent's parental rights in accordance with N.C. Gen.Stat. § 7B-1103(5). Petitioners gained custody of the minor child from respondent at the dependency adjudication proceedings. After petitioners retained custody of E.T.S. for two years, they filed the petition to terminate respondent's parental rights. Petitioners' petition was erroneously granted because when E.T.S. was adjudicated dependent and custody over E.T.S. was taken away, respondent was not represented by a statutorily required guardian ad litem. This omission is deemed "prejudicial error per se." Id. The two years that elapsed while the minor child remained in petitioners' illegally obtained custody, standing alone, does not provide any basis under N.C. Gen.Stat. § 7B-1103(5) for petitioners to petition for the trial court to assert jurisdiction to adjudicate the matter or to terminate respondent's parental rights.
II. Conclusion
The trial court erred in asserting subject matter jurisdiction over respondent and E.T.S. Petitioners' petition solely asserted a two-year time period as grounds for jurisdiction to file the petition. E.T.S. was adjudicated dependent, custody was removed from respondent, and a portion of the two-year required time period all occurred while respondent was a minor. No statutorily required guardian was appointed to represent respondent's interests or to assert her rights as a minor when the adjudication was made that placed E.T.S. in petitioners' custody or when the present petition was filed. The failure of the court to appoint a guardian for respondent was "prejudicial error per se." Id. I vote to vacate the trial court's judgment. I respectfully dissent.