In re J.A.P., COA07-1562.

• Docket Nº: No. COA07-1562.
• Citation: 659 S.E.2d 14
• Case Date: April 15, 2008
• Court: Court of Appeal of North Carolina (US)

659 S.E.2d 14 In the Matter of J.A.P. and I.M.P. No. COA07-1562. Court of Appeals of North Carolina. April 15, 2008.

[659 S.E.2d 15]

Appeal by Respondent from judgment entered 17 October 2007 by Judge William G. Jones in Iredell County District Court.

[659 S.E.2d 16]

Heard in the Court of Appeals 17 March 2008.

Lauren Vaughan, Hickory, for Petitioner-Appellee Iredell County Department of Social Services.

Parker Poe Adams & Bernstein LLP, by Lori R. Keeton, Charlotte, for Respondent-Appellee Guardian Ad Litem.

Carol Ann Bauer for Respondent-Appellant Mother.

STEPHENS, Judge.

On 27 October 2006, the Iredell County Department of Social Services ("DSS") filed petitions for the termination of Respondent's parental rights as to her minor children, J.A.P. and I.M.P. The petitions were heard on 12, 26, and 27 July 2007. On 17 October 2007, the trial court entered a consolidated judgment and order of adjudication and disposition terminating Respondent's parental rights to both children. From this order, Respondent appeals.

I. Subject Matter Jurisdiction

As a preliminary matter, we must determine whether the trial court had subject matter jurisdiction over the termination proceedings in this case. Although the parties have not questioned the court's subject matter jurisdiction, "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." Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000). In reviewing a question of subject matter jurisdiction, our standard of review is de novo. Raleigh Rescue Mission, Inc. v. Bd. of Adjust. of Raleigh, 153 N.C.App. 737, 571 S.E.2d 588 (2002).

Our juvenile code requires:

(a) . . . [U]pon the filing of the [termination] petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons or agency, not otherwise a party petitioner, who shall be named as respondents:

. . . .

(5) The juvenile.

. . . Except that the summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed. . . .

N.C. Gen.Stat. § 7B-1106 (2007). Plainly, where a guardian ad litem has been appointed for the juvenile, the statute directs that service of the summons be made on the guardian ad litem rather than on the juvenile.

In In re C.T., 182 N.C.App. 472, 643 S.E.2d 23 (2007), the petition to terminate parental rights was captioned with the names of both minor children at issue, C.T. and R.S., but no summons was issued referencing R.S. This Court held the trial court lacked subject matter jurisdiction to terminate respondent-mother's parental rights in R.S. because "the record fail[ed] to show that a summons was ever issued as to R.S." Id. at 475, 643 S.E.2d at 25. Accordingly, this Court vacated the termination order to the extent it terminated respondent-mother's parental rights in R.S.

In In re K.A.D., ___ N.C.App. ___, 653 S.E.2d 427 (2007), summons was issued regarding the minor child to the mother and father, but no summons was issued to the minor child. This Court, citing C.T., vacated the trial court's order terminating respondent-father's parental rights because it held that "the failure to issue a summons to the juvenile deprives the trial court of subject matter jurisdiction." Id. at ___, 653 S.E.2d at 428-29.

However, in In re J.B., 172 N.C.App. 1, 616 S.E.2d 264 (2005), this Court overruled respondent-mother's argument that the trial court had not acquired jurisdiction over the juvenile where service of summons regarding the juvenile was served on the guardian ad litem's attorney, rather than on the guardian ad litem, as contemplated by N.C. Gen.Stat. § 7B-1106(a). Noting that the guardian ad litem had not objected at trial to the sufficiency of service of the summons, nor raised such issue on appeal, this Court held that respondent-mother had failed to demonstrate any prejudice to her "from the alleged failure to properly serve [the juvenile]." Id. at 8,

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616 S.E.2d at 269. Additionally, this Court did not question the trial court's subject matter jurisdiction based on the service of summons and specifically concluded that the trial court did have subject matter jurisdiction over the proceedings. Thus, the trial court's order terminating respondent-mother's parental rights in J.B. was affirmed.¹ See also In re B.D., 174 N.C.App. 234, 620 S.E.2d 913 (2005), disc. review denied, 360 N.C. 289, 628 S.E.2d 245 (2006) (holding the trial court had jurisdiction where summons was served on the attorney advocate for the juvenile's guardian ad litem).

Here, the record on appeal includes copies of summonses captioned: "In the Matter of: [J.A.P.]" and "In the Matter of: [I.M.P.]" The record also contains certifications by the Attorney Advocate for the Guardian ad Litem that she accepted service of process regarding both minors. The certifications read: "I, Holly Groce, Attorney Advocate, do hereby accept service of the attached Summons in Proceeding for Termination of Parental Rights and Petition for Termination of Parental Rights, and acknowledge receipt of the same in the above-entitled proceeding pending in the General Court of Justice, Iredell County, North Carolina, and service by an officer is hereby expressly waived." The Acceptance of Service of Process certifications are entitled "In the Matter of: [J.A.P.], a minor child[,]" and "In the Matter of: [I.M.P.], a minor child." The summonses and the Acceptance of Service of Process certifications are paginated consecutively in the record. Thus, unlike in C.T. where no summons was issued regarding R.S., summonses were issued referencing both J.A.P. and I.M.P. Furthermore, unlike in K.A.D. where no summons was issued to the minor child,² here, as in J.B., summonses were accepted on behalf of the minor children by the attorney advocate for the children's guardian ad litem. See North Carolina Rules of Prof'l Conduct R. 1.2(a) (2005) ("A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation."). We hold that where a juvenile's guardian ad litem is represented by an attorney advocate in a termination of parental rights proceeding, service of summons on the attorney advocate constitutes service on the guardian ad litem. Service of summons on the guardian ad litem, in turn, constitutes service on the juvenile, as expressly stated in N.C. Gen.Stat. § 7B-1106(a). Accordingly, we conclude that the trial court had subject matter jurisdiction over these proceedings.

II. Personal Jurisdiction

Next, Respondent asserts that the trial court erred in concluding that it had personal jurisdiction over the minor children because summons was not properly issued to the minor children.

Upon the filing of a petition to terminate parental rights, a summons regarding the proceeding must be issued to the juvenile. N.C. Gen.Stat. § 7B-1106(a)(5). "[T]he summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed[.]" N.C. Gen.Stat. § 7B-1106(a). Here, the record reflects that the summonses required by N.C. Gen.Stat. § 7B-1106(a) were served upon the guardian ad litem's attorney advocate. Such service, as explained above, effectively served the minor children for purposes of N.C. Gen.Stat. § 7B-1106(a).

However, even if service upon the attorney advocate was error, "[o]nly a `party aggrieved' may appeal from an order or judgment of the trial division." Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990) (quoting N.C. Gen.Stat. § 1-271). "An aggrieved party is one whose rights have been directly and injuriously affected by the action of the court." Id. Here, the guardian ad litem did not object at trial to the sufficiency of service, nor does the guardian ad litem argue now that the trial court lacked jurisdiction over the minor children. Furthermore, Respondent failed to demonstrate

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any prejudice to her resulting from service upon the attorney advocate, rather than the guardian ad litem. Accordingly, we overrule this argument.

III. Termination of Parental Rights

Proceedings to terminate parental rights occur in two phases: (1) the adjudication phase, and (2) the disposition phase. In re Baker, 158 N.C.App. 491, 581 S.E.2d 144 (2003). In the adjudication phase, findings made by the trial court must be supported by clear, cogent, and convincing evidence, and the findings must support a conclusion that at least one statutory ground for the termination of parental rights exists. In re Shermer, 156 N.C.App. 281, 576 S.E.2d 403 (2003). A trial court is only required to find one statutory ground for termination before proceeding to the disposition phase. N.C. Gen.Stat. § 7B-1111(a) (2007). In the disposition phase, the trial court must determine whether termination of parental rights is in the best interests of the child. In re Blackburn, 142 N.C.App. 607, 543 S.E.2d 906 (2001).

A. Neglect as Grounds for Termination

Respondent assigns error to the trial court's determination that grounds existed to terminate Respondent's parental rights based on the neglect of the minor children.

The standard of review on appeal is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Huff, 140 N.C.App. 288, 536 S.E.2d 838 (2000), disc. review denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). Findings of fact supported by competent evidence are binding on appeal, even though there may be evidence to the contrary. In re Williamson, 91 N.C.App. 668, 373 S.E.2d 317 (1988).

Parental rights may be terminated if the juvenile has been neglected. N.C. Gen.Stat. § 7B-1111(a)(1)...