In re S.C.

269 N.C.App. 228

837 S.E.2d 398

In the MATTER OF: S.C.

No. COA19-333

Court of Appeals of North Carolina.

Filed: January 7, 2020

The Graham.Nuckolls.Conner. Law Firm, PLLC, Greenville, by Timothy E. Heinle, for the Petitioner-Appellee, Pitt County Department of Social Services.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W. Andrews, for the Respondent-Appellant.

BROOK, Judge.

Stanley Corbitt ("Respondent") appeals from the trial court's order authorizing Pitt County Department of Social Services ("the Department") to provide or consent to the provision of protective services. The trial court concluded that Respondent was a disabled adult who lacked capacity to consent to the provision of protective services. Respondent's appointed Guardian ad Litem counsel appeals. We affirm the order of the trial court.

I. Background

Respondent resides in Pitt County and presents a history of medical issues the treatment of which and his inability to follow recommended medical orders led to the involvement of the Department in his care. After receiving a report concerning Respondent's inability to care for himself and make decisions about his medical treatment in August 2018, the Department filed a petition on 3 October 2018 for an order authorizing the provision of protective services, alleging that Respondent lacked capacity to consent to the provision of protective services and was without a willing, able, and responsible person to perform or obtain these services.

At the 10 October 2018 hearing, District Court Judge Brian DeSoto heard testimony from Respondent and his brother, who had been his caretaker prior to the hearing, and a social worker employed by the Department. The social worker testified that Respondent suffered from numerous bacterial and fungal infections from wounds on his leg, arm, and skull, and was experiencing significant mental health issues. The social worker went on to testify that these issues had escalated while Respondent was hospitalized to the point where Respondent had taken "scissors and cut off tissue to the bone and the tendon [was] exposed." Respondent's brother testified that he believed Respondent could "pretty much take care of himself," explaining that he visited him at least once a week prior to his hospitalization. At the conclusion of the hearing the trial court found that Respondent was a disabled adult in need of protective services due to mental incapacity. The court entered an order to that effect the same day. Respondent's appointed Guardian ad Litem counsel entered timely written notice of appeal from that order.¹

II. Analysis

Respondent raises two arguments on appeal, which we address in turn.

A. Subject Matter Jurisdiction

Respondent first argues that the trial court lacked subject matter jurisdiction to authorize the Department to provide or consent to provide protective services. Specifically, Respondent contends that the absence of allegations in the petition about other individuals able, responsible, and willing to provide or assist him to obtain protective services rendered the petition fatally defective, depriving the trial court of subject matter jurisdiction. We disagree.

"Chapter 108A, Article 6, of the North Carolina General Statutes, entitled the ‘Protection of the Abused, Neglected, or Exploited Disabled Adult Act,’ sets out the circumstances and manner in which the director of a county department of social services may petition the district court for an order relating to provision of protective services to a disabled adult." In re Lowery , 65 N.C. App. 320, 324, 309 S.E.2d 469, 472 (1983). In October 2018, the time the petition at issue was filed, the Act defined "disabled adult" as follows:

The words "disabled adult" shall mean any person 18 years of age or over or any lawfully emancipated minor who is present in the State of North Carolina and who is physically or mentally incapacitated due to mental retardation, cerebral palsy, epilepsy or autism ; organic brain damage caused by advanced age or other physical degeneration in connection therewith; or due to conditions incurred at any age which are the result of accident, organic brain damage, mental or physical illness, or continued consumption or absorption of substances.

N.C. Gen. Stat. § 108A-101(d) (2017).² Upon reasonable determination "that a disabled adult is being [ ] neglected ... and lacks capacity to consent to protective services," N.C. Gen. Stat. § 108A-105(a) authorizes the Department to "petition the district court for an order authorizing the provision of protective services." N.C. Gen. Stat. § 108A-105(a) (2017). Subsection (a) goes on to require, "[t]he petition must allege specific facts sufficient to show that the disabled adult is in need of protective services and lacks capacity to consent to them." Id. (emphasis added). Subsection (a) does not elaborate on what "specific facts" must be alleged in the petition. See id.

Subsection (c) then provides:

If, at the hearing, the judge finds by clear, cogent, and convincing evidence that the disabled adult is in need of protective services and lacks capacity to consent to protective services, he may issue an order authorizing the provision of protective services. This order may include the designation of an individual or organization to be responsible for the performing or obtaining of essential services on behalf of the disabled adult or otherwise consenting to protective services in his behalf. Within 60 days from the appointment of such an individual or organization, the court will conduct a review to determine if a petition should be initiated in accordance with Chapter 35A; for good cause shown, the court may extend the 60 day period for an additional 60 days, at the end of which it shall conduct a review to determine if a petition should be initiated in accordance with Chapter 35A. No disabled adult may be committed to a mental health facility under this Article.

Id. § 108A-105(c).

"When the trial court sits without a jury, the standard of review for this Court is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts." State v. Dunn , 200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009) (citation omitted).

Respondent suggests that the definition of "disabled adult ... in need of protective services" in N.C. Gen. Stat. § 108A-101(e) offers guidance on the specific facts that must be alleged under § 108A-105(a) for a court to enter an order authorizing the provision of protective services under § 108A-105(c). Section 108A-101(e) provides:

A "disabled adult" shall be "in need of protective services" if that person, due to his physical or mental incapacity, is unable to perform or obtain for himself essential services and if that person is without able, responsible, and willing persons to perform or obtain for his essential services.

N.C. Gen. Stat. § 108A-101(e) (2017). Respondent argues that the petition § 108A-105(a) authorizes the Department to file must contain "specific facts" indicating that he was "without able, responsible, and willing persons to perform or obtain for his essential services," quoting the language of § 108A-101(e).

Respondent goes further than arguing that read together, N.C. Gen. Stat. §§ 108A-105(a) and 108A-101(e) create a pleading requirement for petitions for authorization of the provision of protective services, however. Not only does § 108A-101(e) supply the standard against which the "specific facts" required to be alleged by § 108A-105(a) must be measured, according to Respondent; the statutes read together establish a standard that is a jurisdictional prerequisite to a trial court's disposition of a petition for protective services. Respondent thus contends that the definition in § 108A-101(e) of "disabled adult ... in need of protective services" combined with the authorization in § 108A-105(a) of the Department to petition for authorization to provide protective services creates a jurisdictional prerequisite similar to the verification requirement of N.C. Gen. Stat. § 7B-1104, applicable to petitions for termination of parental rights under the Juvenile Code. See, e.g. , In re C.M.H. , 187 N.C. App. 807, 809, 653 S.E.2d 929, 930 (2007) (holding that trial court lacked subject matter jurisdiction where petition for termination of parental rights failed to comply with verification requirement of N.C. Gen. Stat. § 7B-1104 ). Respondent posits that the absence of sufficient details in the petition about individuals "able, responsible, and willing [ ] to perform or obtain ... essential services" for a disabled adult deprives the trial court of subject matter jurisdiction to find "that the disabled adult is in need of protective services and lacks capacity to consent to protective services," and enter "an order authorizing the provision of protective services." N.C. Gen. Stat. § 108A-105(c) (2017). We disagree.

"Determined to protect the increasing number of disabled adults in North Carolina who are abused, neglected, or exploited, the General Assembly enact[ed] [ ] [the Protection of Abused, Neglected, or Exploited Disabled Adult Act (the "Act") ] to provide protective services for such persons." N.C. Gen. Stat. § 108A-100 (2017). Notably, the language of subsection (a) of N.C. Gen. Stat. § 108A-105, the provision of the Act requiring "specific facts" to be alleged in a petition for protective services before a court may "issue an order authorizing the provision of protective services," id. § 108A-105(c), does not contain a requirement that these allegations be verified, unlike a petition for termination of parental rights under N.C. Gen. Stat. § 7B-1104. See N.C. Gen. Stat. § 7B-1104 (2017) ("The petition ... shall be verified by the petitioner[.]"). Instead, under § 108A-105(a), the petition need only contain allegations "sufficient to show that the disabled adult is in need of protective services...