The majority's opinion erroneously affirms the trial court's termination of respondent-father's parental rights to T.M. The trial court was without power to exercise subject matter jurisdiction over respondent-father pursuant to N.C. Gen.Stat. § 7B-1104(5).
Alternatively, I vote to reverse the trial court's order because: (1) DSS failed to file the petition to terminate respondent-father's parental rights until six months after being ordered to do so, and more than four months after the maximum sixty days time after the permanency planning hearing as mandated by N.C. Gen.Stat. § 7B-907(e) (2005) and (2) a termination hearing was not held until more than two years after the maximum ninety days elapsed from the filing of the petition as mandated by N.C. Gen.Stat. § 7B-1109(a) (2005), both to the extreme prejudice of respondent-father, his child, and all other parties involved. I vote to reverse and respectfully dissent.
I. N.C. Gen.Stat. § 7B-1104(5)
Respondent-father asserts the trial court never acquired subject matter jurisdiction and argues the petition to terminate his parental rights was defective pursuant to N.C. Gen.Stat. § 7B-1104(5). I agree. The statutory required order granting custody of T.M. to DSS was not attached to the petition.
N.C. Gen.Stat. § 7B-1104(5) states:
The petition, or motion pursuant to G.S. 7B-1102, . . . shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:
(5) The name and address of any person or agency to whom custody of the juvenile has been given by a court of this or any other state; and a copy of the custody order shall be attached to the petition or motion.
(Emphasis supplied).
Here, the petition alleged that "[a] copy of the first order giving full legal custody of the children to the Pitt County Department of Social Services in file numbers 01 J 116-17 is attached hereto as exhibit `A'." This allegation is false. The file numbers cited by petitioner solely referred to earlier cases that involved T.M.'s siblings. No evidence in the record shows any custody orders regarding T.M. were attached to the petition to terminate respondent-father's parental rights to T.M.
A. In re Z.T.B.
This Court has specifically addressed this issue in In re Z.T.B., 170 N.C.App. 564, 613 S.E.2d 298 (2005) and in In re B.D., 174 N.C.App. 234, 620 S.E.2d 913 (2005), disc. rev. denied, 360 N.C. 289, 628 S.E.2d 245 (2006). In In re Z.T.B., the respondent argued DSS's petition was defective because no existing custody order was attached "to the petition as explicitly required by North Carolina General Statutes section 7B-1104." 170 N.C.App. at 568, 613 S.E.2d at 300. This Court reversed the trial court's order terminating the respondent's parental rights and stated because "the petition at issue in the instant case fails to comply with the mandatory requirements of [N.C. Gen.Stat. § 7B-1104(5)], we hold that it is facially defective and failed to confer subject matter jurisdiction upon the trial court." Id. at 570, 613 S.E.2d at 301 (emphasis supplied).
In reaching its holding, this Court distinguished the facts in an earlier decision in In re Humphrey, 156 N.C.App. 533, 577 S.E.2d 421 (2003). Id. at 569, 613 S.E.2d at 301. "[I]n [In re Humphrey], this Court declined to dismiss a petition for termination of parental rights that failed to conform to the requirements of North Carolina General Statutes section 7B-1104 absent a showing that the respondent was prejudiced by the omission." Id. (citing In re Humphrey, 156 N.C.App. at 539, 577 S.E.2d at 426.). This Court in In re Z.T.B. stated, "the defect in the petition in [In re Humphrey] could be overcome by information contained on the face of the petition itself." 170 N.C.App. at 570, 613 S.E.2d at 301.
B. In re B.D.
In the case of In re B.D., the respondent argued "that the trial court was without jurisdiction to proceed with the termination *480hearing because petitioner failed to attach a copy of the custody order regarding [the child] to the petition." 174 N.C.App. at 241, 620 S.E.2d at 917-18. The respondent relied upon In re Z.T.B. and contended "that failure to attach a custody order results in a `facially defective' petition which `fails to confer subject matter jurisdiction upon the trial court[,]'" Id. at 241, 620 S.E.2d at 918 (quoting In re Z.T.B., 170 N.C.App. at 570, 613 S.E.2d at 301.).
The panel of this Court in In re B.D. made no attempt to distinguish In re Z.T.B.'s holding that the petition was "facially defective and failed to confer subject matter jurisdiction upon the trial court" and relied instead on the "precedential authority" of In re Humphrey and overruled the respondent's argument, and stated "respondents are unable to demonstrate any prejudice arising from petitioner's failure to attach the pertinent custody order to the petition." In re Z.T.B., 170 N.C.App. at 570, 613 S.E.2d at 301; In re B.D., 174 N.C.App. at 241-42, 620 S.E.2d at 918. This Court noted, "there is also no indication that respondents were unaware of [the child's] placement at any point during the case." In re B.D., 174 N.C.App. at 242, 620 S.E.2d at 918. Also, "the petition noted that custody of [the child] was given by prior orders of the trial court, and it referenced the court file wherein those orders were entered." Id.
C. Analysis
Here, no evidence in the record shows DSS attached the statutory required custody order to the petition to terminate respondent-father's parental rights. "[T]he defect in the petition . . . [can] be overcome by information contained on the face of the petition itself." In re Z.T.B., 170 N.C.App. at 569-70, 613 S.E.2d at 301.
DSS's error may be excused by information on the face of the petition informing the parent that DSS had taken custody of the child. The petition unequivocally states T.M. "has been in the custody of the Pitt County Department of Social Services ... since June 13, 2002." Respondent-father must show he was prejudiced by DSS's failure to attach the custody order to the petition to terminate his parental rights. In re Humphrey, 156 N.C.App. at 539, 577 S.E.2d at 426; In re B.D., 174 N.C.App. at 241, 620 S.E.2d at 918.
1. Prejudice
The majority's opinion concludes respondent-father was not prejudiced because the record indicates he was aware through his attorneys of T.M.'s placement with DSS. I disagree.
DSS filed the petition to terminate respondent-father's parental rights on 28 December 2005. Respondent-father's whereabouts were unknown when the petition was filed. The trial court appointed two different attorneys over the course of the proceedings to represent respondent-father. Respondent-father was not served with the initial petition alleging neglect and dependency. Respondent-father neither received notice to appear at the initial non-secure custody hearing, nor did he actually appear at the adjudicatory hearing. Respondent-father did not appear in the case until 16 April 2003 when he was represented by Emma Holscher, Esq., consented to paternity testing, and a continuance was entered. Emma Holscher withdrew as respondent-father's attorney on 14 July 2004 to perform "contract work" for DSS and the trial court appointed Jay Saunders, Esq. to represent respondent-father.
On 28 September 2005, the court entered a non-secure custody order and also allowed Jay Saunders to withdraw from representation due to counsel's lack of contact with respondent-father. At the non-secure custody hearing immediately preceding the filing of the petition to terminate his parental rights, respondent-father was incarcerated in Virginia, was not represented by counsel, and was not served with notice.
Contrary to the majority opinion's conclusion, respondent-father was never initially served and could not be aware, through an appointed attorney who never had contacted him, of his child's whereabouts at the time the petition was filed on 28 December 2005. For the majority's opinion to conclude respondent-father was not prejudiced because he received "imputed notice" of the custody order through an appointed counsel who never spoke with him is disturbing and fallacious *481given the constitutional rights at stake and the decision the court entered.
Respondent-father's attorney, Jay Saunders, Esq., also withdrew from representation due to lack of contact with respondent-father before the petition to terminate his parental rights was filed. No subsequent counsel was appointed. Respondent-father asserted he was prejudiced by DSS's failure to attach the custody order because the record does not indicate he was made aware of T.M.'s placement with DSS when the petition to terminate his parental rights was filed or for five months thereafter. Respondent-father was neither present at the majority of the pre-termination hearings, nor was he represented by counsel at critical times throughout the process.
2. Due Process
Respondent-father has demonstrated extreme prejudice that strikes at the core of Due Process. Neither the fundamental right to be apprised of the pendency of an action nor respondent-father's right to be present and heard are present here. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865, 873 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.").
Without his fundamental statutory and constitutional rights being protected, respondent-father's constitutional right to the care, custody, and control of his child were violated. See Adams v. Tessener, 354 N.C. 57, 60, 550 S.E.2d 499, 501 (2001)("[A] parent enjoys a fundamental right to make decisions concerning the care, custody, and control of his or her children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution." (internal quotation omitted)).
I vote to dismiss the trial court's order due to the failure of the petition to confer subject matter jurisdiction on the trial court to terminate respondent-father's parental rights. The lack of jurisdiction can be raised at any time and cannot be waived. See Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85-86 (1986) ("The question of subject matter jurisdiction may be raised at any time, even in the Supreme Court. When the record clearly shows that subject matter jurisdiction is lacking, the Court will take notice and dismiss the action ex mero motu." (internal citations omitted)).
II. N.C. Gen.Stat. § 7B-907(e) and § 7B-1109(a)
Respondent-father also argues the trial court erred in terminating his parental rights due to DSS's failure to file the petition to terminate his parental rights within sixty days of the permanency planning hearing as mandated by N.C. Gen.Stat. § 7B-907(e). Respondent-father additionally argues the trial court erred by terminating his parental rights to T.M. because it failed to hold a hearing for more than two years after the maximum ninety days allowed after the filing of the petition to terminate his parental rights as mandated by N.C. Gen.Stat. § 7B-1109(a). The majority's opinion holds respondent-father failed to show any prejudice from the extreme delays on either or both issues. I disagree.
N.C. Gen.Stat. § 7B-907(e) states, "[DSS] shall file a petition to terminate parental rights within 60 calendar days from the date of the permanency planning hearing unless the court makes written findings why the petition cannot be filed within 60 days." (Emphasis supplied). Here, the permanency planning hearing was conducted on 10 July 2003. The trial court ordered DSS to file a petition to terminate respondent-father's parental rights.
The trial court failed to make any written findings to show why the petition could not be filed within the sixty days or to extend the time in which DSS could file the petition. The petition to terminate respondent-father's parental rights was not filed until 28 December 2005, more than two years after the sixty day maximum required by N.C. Gen.Stat. § 7B-907(e).
Respondent-father argues he and T.M. were prejudiced by DSS's unexplained and excessive delay. Respondent-father argues he and T.M. were both prejudiced because:
*482Any hope of closure or permanence brought on by the allowance or denial of a Petition to Terminate Parental Rights has been hopelessly set adrift by the delay in filing. While some modest delay would be excusable, this delay was fifteen times the 60 days allowed by our Legislature for filing, or 842 days.
(Emphasis supplied).
N.C. Gen.Stat. § 7B-1109(a) mandates:
The hearing on the termination of parental rights shall be conducted by the court sitting without a jury and shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time.
(Emphasis supplied). Here, the petition to terminate respondent-father's parental rights was filed on 28 December 2005. The first hearing on the petition was held on 10 May 2006, 134 days after the petition was filed and seventy-four days after the maximum time allowed by N.C. Gen.Stat. § 7B-1109(a).
Respondent-father argues he was prejudiced by this delay because his right to appeal was delayed and "any hope of finality or permanence for the [respondent-father] or [T.M.] was dashed by the failure to timely hear this matter." I agree.
Respondent-father, T.M., and all other parties are prejudiced by DSS's repeated and extraordinary delays in the initiation, resolution, and disposition of this matter. DSS's unexplained and repeated failures to comply with statutory time limits "defeated the purpose of the time requirements specified in the statute, which is to provide [all] parties with a speedy resolution of cases where juvenile custody is at issue" and prejudiced respondent-father and T.M. In re B.M., M.M., An.M., and Al.M., 168 N.C.App. 350, 355, 607 S.E.2d 698, 702 (2005).
Prejudice is also shown because the "appellate process was put on hold[][and] any sense of closure for the children, respondent, or the children's current care givers was out of reach. . . ." In re C.J.B., 171 N.C.App. 132, 135, 614 S.E.2d 368, 370 (2005). Respondent-father, T.M., and the child's care-givers suffered severe prejudice resulting from DSS's repeated and cumulative failures to comply with the statutory mandated maximum time limits from the beginning and throughout the child custody and termination of parental rights proceedings. I vote to reverse the order of the trial court.
III. Conclusion
The trial court did not acquire subject matter jurisdiction under N.C. Gen.Stat. § 7B-1104(5) due to of DSS's failure to attach the statutory required custody order to its petition to terminate respondent-father's parental rights. Respondent-father was prejudiced because the record does not show he was aware of T.M.'s placement when the petition to terminate his parental rights was filed or when the many subsequent hearings were held.
Respondent-father's appointed attorney never made contact with him and was allowed to withdraw. No subsequent counsel was appointed to represent respondent-father at the termination hearing in gross violation of his fundamental rights as a parent and his right to basic due process. Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873; Adams, 354 N.C. at 60, 550 S.E.2d at 501.
All statutory mandated time limits under N.C. Gen.Stat. § 7B-907(e) and § 7B-1109(a) were grossly violated. All parties were prejudiced by DSS's failures because respondent-father was prohibited from filing an appeal and all interested parties were denied a speedy resolution of this case.
For these reasons, individually or collectively, I vote to reverse the trial court's order terminating respondent-father's parental rights. I respectfully dissent.