In re D.B.

• Decision Date: 06 November 2007
• Docket Number: No. COA06-1426-2.,COA06-1426-2.
• Court: North Carolina Court of Appeals
• Parties: In re D.B., C.B.

652 S.E.2d 56

In re D.B., C.B.

No. COA06-1426-2.

Court of Appeals of North Carolina.

November 6, 2007.

Appeal by respondents from order entered 9 January 2006 by Judge Edward A. Pone in Cumberland County District Court. Originally heard in the Court of Appeals 4 June 2007. An opinion vacating the order of the trial court was filed by this Court on 7 August 2007. Petition for Rehearing by Cumberland County Department of Social Services was filed on 1 September 2007, granted on 20 September 2007, and heard without additional briefs or oral argument. This opinion supersedes the previous opinion filed on 7 August 2007.

Janet K. Ledbetter, Hillsborough, for respondent-father appellant.

Katharine Chester, Siler City, for respondent-mother appellant.

Staff Attorney Elizabeth Kennedy-Gurnee, Fayetteville, for Cumberland County Department of Social Services appellee.

Attorney Advocate Beth A. Hall, Fayetteville, for Guardian ad Litem.

McCULLOUGH, Judge.

Respondents appeal the trial court's order terminating their parental rights.

On 30 September 2004, a petition to terminate respondents' parental rights as to C.B. and D.B. was filed in Cumberland County District Court. The respondents stipulated that the minor children were neglected at the time of the filing of the verified petition based on domestic violence problems between respondents and that C.B. and D.B. were adjudicated neglected on 31 March 2003. The petition further stated that respondents failed to alleviate the conditions which led to removal, failed to comply with the Family Services Case Plan, and that respondents' rights as to the juveniles should be terminated.

A hearing was held on the petition to terminate respondents' parental rights on 14 December 2005, and the court thereafter entered an order terminating the parental rights of respondents on 9 January 2006. From entry of this order, respondents appeal.

Respondent-mother and respondent-father contend on appeal that the lower court's order must be vacated due to lack of subject matter jurisdiction by the lower court. Specifically, respondents contend the lower court was deprived of subject matter jurisdiction because respondents were not served with valid summonses and the action was discontinued.

In the instant case, a summons was issued on 7 October 2004 as to respondent-mother and respondent-father, but it was never served upon either party. A second summons was thereafter issued on 18 October 2004 and was served on respondent-mother the same day. Respondent-mother contends that because the original summons was never served and the second summons was not issued by endorsement or as an alias and pluries summons, the action was discontinued due to failure to serve a valid summons. Therefore, the trial court lacked subject matter jurisdiction. After that time, two new summons were issued as to respondent-father on 26 January 2005 and 31 January 2005, respectively. Respondent-father was served with the first summons on 30 January 2005 and the second on 31 January 2005. Respondent-father also argues that the action was discontinued due to failure to serve a valid summons, and therefore, the trial court lacked subject matter jurisdiction.

North Carolina General Statutes section 7B-1101 confers on the District Court the exclusive power to hear actions to terminate parental rights. N.C. Gen.Stat. § 7B-1101 (2005). This subject matter jurisdiction is invoked upon the filing of a verified petition. In re Triscari Children, 109 N.C.App. 285, 426 S.E.2d 435 (1993). Subject matter jurisdiction is to be distinguished from personal jurisdiction, the court's power to bind a particular party by its judgment, which, unlike subject matter jurisdiction, can be obtained by a party's "appearance and participation in the legal proceeding without raising an objection to lack of service." In re S.J.M., ___ N.C.App. ___, 645 S.E.2d 798, 802 (2007). Because respondent-mother and respondent-father appeared at the hearing held on 14 December 2005 and 15 December 2005, without raising an objection to the sufficiency of process, it is clear that the trial court had personal jurisdiction over both parties, and only subject matter jurisdiction is at issue.

While a court's subject matter jurisdiction is invoked upon the filing of a verified petition, failure to serve a valid summons in accordance with North Carolina Civil Procedure Rule 4 can divest the court of such jurisdiction. Service of process under Rule 4 is intended to provide notice of the commencement of an action and "`to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit.'" Harris v. Maready, 311 N.C. 536, 541-42, 319 S.E.2d 912, 916 (1984) (citation omitted).

Rule 4 provides that a summons is to be issued within 5 days of filing the complaint and is to be served upon a party within 60 days of its issuance. N.C. Gen.Stat. § 1A-1, Rule 4(a),(c) (2005). If a summons is not served upon a party within the time allowed, "it becomes `dormant' and cannot effect service except that it be revived or `continued' by either `an endorsement upon the original summons ... or ... an alias or pluries summons. . . .'" Shiloh Methodist Church v. Keever Heating & Cooling, 127 N.C.App. 619, 621, 492 S.E.2d 380, 382 (1997) (quoting N.C. Gen.Stat. § 1A-1, Rule 4(d)). If the dormant summons is not continued pursuant to Rule 4(d) within 90 days of its issuance, the original action is deemed to be discontinued as to the defendant upon which service has not been made. N.C. Gen.Stat. § 1A-1, Rule 4(e). The discontinued action is treated as if it were never filed; thus, the court's subject matter jurisdiction is no longer invoked with respect to that defendant. In re A.B.D., 173 N.C.App. 77, 85, 617 S.E.2d 707, 713 (2005).

However, the law is clear that, even where an original suit is discontinued for failure to serve a summons, the issuance of a new summons begins a new action and reinvokes subject matter jurisdiction. Stokes v. Wilson and Redding Law Firm, 72 N.C.App. 107, 111, 323 S.E.2d 470, 474 (1984) (noting that "a properly issued and served second summons can revive and commence a new action on the date of its issuance"), disc. review denied, 313 N.C. 612, 332 S.E.2d 83 (1985); see also Chateau Merisier, Inc. v. GEKA, S.A., 142 N.C.App. 684, 686, 544 S.E.2d 815, 817 (2001) (holding that where an original summons was not served within the allocated time and no endorsement nor alias and pluries summons was sought within 90 days, plaintiff's action was deemed to have begun on the date at which a new summons was issued). Likewise, even where a summons is not yet dormant, the issuance of a new summons without reference to the original summons discontinues the original action and initiates a new one. Integon Gen. Ins. Co. v. Martin, 127 N.C.App. 440, 490 S.E.2d 242 (1997); Mintz v. Frink, 217 N.C. 101, 6 S.E.2d 804 (1940).

Respondents contend that the action was discontinued because the original summons, which was issued within 5 days of the filing of the petition, was not served upon the parties, and there was no extension given by way of endorsement or alias and pluries summons pursuant to Rule 4(d). While it is true that the original summons was not served within 60 days nor was an extension of time granted, a new valid summons was issued as to both respondents and likewise served upon them. A second summons was issued and served upon respondent-mother on 18 October 2004, within 60 days of the issuance of the original summons. While the original summons was not yet dormant, because the second summons did not conform with the requirements of Rule 4(d), the original action was discontinued, and the trial court's subject matter jurisdiction was reinvoked as of 18 October 2004.

Respondent-father was issued and served with two valid summons, issued on 26 January 2005 and 31 January 2005, respectively. Though each was issued more than 90 days after the issuance of the original summons, at which time the action was discontinued with respect to respondent-father under Rule 4(e), each new issuance is deemed to revive the action as of the respective date of issuance. The 31 January 2005 summons discontinued the action revived by the 26 January 2005 issuance and commenced a new action against respondent-father as of 31 January 2005. Because both respondents were properly served with newly issued summons, commencing new actions and reinvoking the trial court's subject matter jurisdiction as of their respective dates of issuance, the contention that the court lacked subject matter jurisdiction over the parties due to ineffective service is without merit.

Respondents further contend the trial court erred in failing to hold a timely hearing on the petition to terminate respondents' parental rights in violation of N.C. Gen.Stat. § 7B-1109(a) (2005).

The North Carolina General Statutes set forth that a hearing on the termination of parental rights shall be held no later than 90 days from the filing of the petition to terminate such rights. N.C. Gen.Stat. § 7B-1109(a). This Court has held that the failure of the trial court to enter a termination order within the time standards in N.C. Gen.Stat. § 7B-1109(e) constitutes reversible error where the appellant demonstrates prejudice as a result of the delay. See In re P.L.P., 173 N.C.App. 1, 7, 618 S.E.2d 241, 245 (2005), aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006). This Court has extended the reasoning regarding failure to enter a timely order to the failure to hold the termination hearing within the time period set forth in N.C. Gen.Stat. § 7B-1109(a). In re S.W., 175 N.C.App. 719, 722, 625 S.E.2d 594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006).

Where there does not appear to be a clear articulation by this Court as to the standard by which prejudice should be measured, we adopt the reasoning set forth in Judge Levinson's concurrence in In re J.N.S., ___ N.C.App. ___, ___, 637 S.E.2d...