The majority dismisses this appeal by a parent as being interlocutory because it involves a review order and not a final disposition. Yet, the dispositive issue on appeal is not whether the parent challenges the "outcome" of the review order; instead, the issue is whether DSS may institute proceedings without complying with the statutory mandates for doing so, thus, depriving the trial court of subject-matter jurisdiction. Indeed, audaciously, DSS recognizing that its petition was statutorily deficient, prepared the proper documents after notice of appeal was given to this Court, and by motion, asks this Court to now consider that documentation as part of the record on appeal. I would deny that motion, address this appeal which challenges the subject-matter jurisdiction of the trial court, and vacate the proceedings below.
Moreover, the review order modified the custodial rights as it changed the plan to adoption and directed DSS to pursue termination of Respondent's parental rights. Therefore, the order was appealable. N.C. Gen.Stat. § 7B-1001(4) (2004). As this order was appealable, I would address the issues and must respectfully dissent.
The majority cites to In re B.N.H., 170 N.C.App. 157, 611 S.E.2d 888 (2005), in support of their argument that the review order is not a final order and not appealable. In B.N.H., this Court held that a permanency planning order that does not modify custody is not a final order and not immediately appealable pursuant to N.C. Gen.Stat. § 7B-1001(3). Id. at 162, 611 S.E.2d at 891.
Here, the previous review orders and permanency orders sought reunification with the mother, but made no mention of Respondent. The prior 14 September 2004 review order ceased reunification efforts with the mother and allowed DSS to pursue permanency for the minor child, however, again made no orders with respect to Respondent. In the 25 May 2005 review order on appeal, the trial court for the first time entered an order with respect to Respondent, that DSS should pursue termination of his rights and adoption for the minor child. As this was the first order that affected Respondent's parental rights, it is a change in custody and appealable pursuant to N.C. Gen.Stat. § 7B-1001(4). See also In re Weiler, 158 N.C.App. 473, 477, 581 S.E.2d 134, 136-37 (2003) (order that changed the disposition from reunification with the mother to termination of parental rights was appealable). Accordingly, as this order is immediately appealable I would address the issues.
On appeal, Respondent argues that the trial court lacked subject matter jurisdiction to enter the order of 25 May 2005 as the petition failed to contain the information required by sections 50A-209(a) and 7B-402. I agree and would vacate the order.
Section 50A-209(a) of the North Carolina General Statutes requires:
In a child-custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period . . . .
N.C. Gen.Stat. § 50A-209(a) (2003).
The record on appeal confirms that DSS never filed an affidavit of status with the trial court. Indeed, DSS did not complete an affidavit until 28 December 2005, over six *150months after entry of the trial court's 25 May 2005 order and Respondent's 6 June 2005 Notice of Appeal. While DSS filed a Motion to Amend the Record on 29 December 2005, asking this Court to include the affidavit of status dated 28 December 2005, I would deny that motion because the affidavit of status was never before the trial court and therefore should not be included in the record on appeal.
Nonetheless, DSS cites to In re Clark, 159 N.C.App. 75, 79, 582 S.E.2d 657, 660 (2003), in support of its argument that failure to properly file an affidavit of status is not reversible error. In Clark, the Stokes County Department of Social Services failed to file an affidavit of status at the time of the filing of the petition. Id. However, the trial court gave Stokes County DSS five days to comply, and it filed the affidavit within five days. Id. at 79-80, 582 S.E.2d at 660. This Court found that "[a]lthough it remains the better practice to require compliance with section 50A-209," as the affidavit was filed prior to the trial court rendering its decision, the trial court was able to determine whether jurisdiction existed. Id.
Unlike Clark, the trial court in this case was not able to determine whether jurisdiction existed before it rendered its decision as DSS failed to file an affidavit of status. Rather nothing in the record shows that DSS made any effort to comply with the provisions of section 50A-209(a) until well after the trial court's decision and the Notice of Appeal had been given in this case.
Moreover, the Petition contained in the record on appeal shows that DSS did not include the child's date of birth or address as required by section 7B-402 which states,
The petition shall contain the name, date of birth, address of the juvenile, the name and last known address of the juvenile's parent, . . . and shall allege the facts which invoke jurisdiction over the juvenile. . . .
N.C. Gen.Stat. § 7B-402 (2003).
"[N]atural parents have a constitutionally protected interest in the companionship, custody, care, and control of their children." Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530 (1997). Therefore, proceedings to terminate constitutionally protected parental rights must be conducted with fairness and due process of the law. See N.C. Gen.Stat. § 7B-100(1) (2003) (purpose of Chapter 7B is: "To provide procedures for the hearing of juvenile cases that assure fairness and equity and that protect the constitutional rights of juveniles and parents[.]"). Section 50A-209 requires DSS to file an affidavit of status with the trial court in order to confer jurisdiction to the trial court. Compliance with this statute is a legislative requisite that in this case appears to have been neither difficult nor burdensome on DSS. The letter of the law must be followed to ensure due process of the law in terminating a parent's constitutionally protected right to parent. When, as here, DSS fails to comply with statutes conferring jurisdiction to the trial court, this Court should vacate the trial court's order.
As DSS failed to comply with sections 50A-209 and 7B-402 of the North Carolina General Statutes, the trial court was unable to determine whether jurisdiction existed. Therefore, I would vacate the trial court's decision.