In re K.J.L.

• Decision Date: 18 June 2009
• Docket Number: No. 37A09.,37A09.
• Citation: 677 S.E.2d 835
• Parties: In the Matter of K.J.L.
• Court: North Carolina Supreme Court

677 S.E.2d 835

In the Matter of K.J.L.

No. 37A09.

Supreme Court of North Carolina.

June 18, 2009.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C.App. ___, 670 S.E.2d 269 (2008), vacating an order terminating parental rights entered on 15 January 2008 by Judge Mary F. Covington in District Court, Davidson County. Heard in the Supreme Court on 6 May 2009.

Charles E. Frye, III, Lexington, for petitioner-appellant Davidson County Department of Social Services, and Laura B. Beck, Attorney Advocate, Lexington, for appellant Guardian ad Litem.

Robert W. Ewing, Clemmons, for respondent-appellee mother.

NEWBY, Justice.

This case presents the question of whether a trial court lacks subject matter jurisdiction over an action when the summons in the case has not been signed by a statutorily designated member of the clerk of court's office and thus has not been legally issued. Because we hold that the lack of a proper summons implicates personal jurisdiction rather than subject matter jurisdiction, we reverse the decision of the Court of Appeals.

On 28 March 2006, the Davidson County Department of Social Services ("DSS") filed a juvenile petition alleging that the juvenile K.J.L. was neglected and dependent. The Office of the Clerk of Superior Court for Davidson County issued a summons in the matter pursuant to N.C.G.S. § 7B-406(a), which provides in pertinent part: "Immediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to the parent, guardian, custodian, or caretaker requiring them to appear for a hearing at the time and place stated in the summons." N.C.G.S. § 7B-406(a) (2007). The summons was deficient, however, in that it was not "dated and signed by the clerk, assistant clerk, or deputy clerk of the court in the county in which the action [was] commenced." Id. § 1A-1, Rule 4(b) (2007). The deputy clerk responsible for the summons later stated in an affidavit "[t]hat due to an oversight, [she] inadvertently failed to sign each" copy of the summons. Nonetheless, copies of the summons were served on both of K.J.L.'s parents on 30 March 2006, and both parents were present in open court when the matter was called for hearing. Without raising any objection to the court's jurisdiction, both parents knowingly stipulated that K.J.L. was a neglected juvenile. The trial court entered an order to that effect on 8 September 2006.

On 12 April 2007, DSS filed a petition for termination of the parental rights of K.J.L.'s parents. A properly signed summons was issued in the termination of parental rights ("TPR") proceeding, and copies were served on both parents. K.J.L.'s mother ("respondent") appeared at the TPR hearing without objecting to the court's jurisdiction, as did K.J.L.'s guardian ad litem ("GAL"). K.J.L.'s father failed to respond to the TPR petition and did not appear at the hearing. By order filed on 15 January 2008, the trial court terminated both parents' parental rights. Respondent appealed.

The Court of Appeals majority concluded that the lack of a signature from an appropriate member of the clerk's office on the summons in the neglect and dependency proceeding meant no summons was "issued" in that case for purposes of Rule of Civil Procedure 4(a), which provides: "A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so." Id. § 1A-1, Rule 4(a) (2007). The Court of Appeals majority further held that the absence of a legally issued summons deprived the trial court of the subject matter jurisdiction necessary to enter its initial order adjudicating K.J.L. a neglected juvenile. In re K.J.L., ___ N.C.App. ___, ___, 670 S.E.2d 269, 271 (2008). The court thus vacated the adjudication order and went on to vacate the TPR order as well "because the adjudication order was essential to the trial court's subject matter jurisdiction in the proceeding to terminate respondent's parental rights." Id. at ___, 670 S.E.2d at 271 (citing, inter alia, N.C.G.S. § 7B-1110(a) (2007)). The Court of Appeals majority also vacated the TPR order on alternative grounds, holding that the trial court lacked subject matter jurisdiction over the TPR proceeding because "no summons was issued to the juvenile and no summons was served upon or accepted by the guardian ad litem for the juvenile." Id. at ___, 670 S.E.2d at 272. The dissenting judge did not challenge the majority's holding that, due to the lack of a proper signature, no summons was legally issued in the neglect and dependency proceeding. Id. at ___, 670 S.E.2d at 274 (Hunter, Robert C., J., dissenting). The dissent also did not dispute that the summons in the TPR proceeding was not properly issued and served. Id. at ___, 670 S.E.2d at 279. However, the dissent would have resolved both issues by concluding that defects in the issuance and service of summons affect personal jurisdiction and can be waived by general appearance. Id. at ___, ___, 670 S.E.2d at 274, 279. We now review the Court of Appeals' decision on the basis of the dissenting opinion.

It is clear that the summons in the neglect and dependency proceeding was not signed in compliance with Rule of Civil Procedure 4(b). The summons was thus not "issued" as that term is used in Rule 4(a), and consequently the issuance requirement of N.C.G.S. § 7B-406(a) was not satisfied. We must determine whether the failure to legally issue a summons implicates the court's jurisdiction over the subject matter of an action or merely affects jurisdiction over the parties thereto. The allegations of a complaint determine a court's jurisdiction over the subject matter of the action. Peoples v. Norwood, 94 N.C. 167, 172 (1886). In matters arising under the Juvenile Code, the court's subject matter jurisdiction is established by statute. N.C.G.S. §§ 7B-200, -1101 (2007). The existence of subject matter jurisdiction is a matter of law and "`"cannot be conferred upon a court by consent."'" In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (quoting In re Custody of Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967)). Consequently, a court's lack of subject matter jurisdiction is not waivable and can be raised at any time. N.C.G.S. § 1A-1, Rule 12(h)(3) (2007). Conversely, a court's jurisdiction over a person is generally achieved through the issuance and service of a summons. Peoples, 94 N.C. at 172. Deficiencies regarding the manner in which a court obtains jurisdiction over a party, including those relating to a summons, are waivable and must be raised in a timely manner. N.C.G.S. § 1A-1, Rule 12(h)(1) (2007). Generally, such deficiencies can be cured. Even without a summons, a court may properly obtain personal jurisdiction over a party who consents or makes a general appearance, for example, by filing an answer or appearing at a hearing without objecting to personal jurisdiction. Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94 (1996) ("Jurisdiction of the court over the person of a defendant is obtained by service of process, voluntary appearance, or consent." (citation omitted)).

This Court has held that "the absence of the clerk's signature on the summons [is] a defect of a formal character which [is] waived by a general appearance." Hooker v. Forbes, 202 N.C. 364, 368, 162 S.E. 903, 905 (1932). We have recently reiterated this position, holding that summons-related deficiencies similar to those at issue here "implicate personal jurisdiction and thus can be waived by the parties." In re J.T. (I), 363 N.C. 1, 4, 672 S.E.2d 17, 19 (2009) (citing N.C.G.S. § 1A-1, Rule 12(h)(1); Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 359 (1956)).

These holdings are elaborations on basic principles long recognized by this Court: the summons is not the vehicle by which a court obtains subject matter jurisdiction over a case, and failure to follow the preferred procedures with respect to the summons does not deprive the court of subject matter jurisdiction.

The purpose of the summons is to bring the parties into, and give the [c]ourt jurisdiction of them, and of the pleadings, to give jurisdiction of the subject matter of litigation and the parties in that connection, and this is orderly and generally necessary; but when the parties are voluntarily before the [c]ourt, and ... a judgment is entered in favor of one party and against another, such judgment is valid, although not granted according to the orderly course of procedure.

Peoples, 94 N.C. at 172 (citations omitted). Because the summons affects jurisdiction over the person rather than the subject matter, this Court has held that a general appearance by a civil defendant "waive[s] any defect in or nonexistence of a summons." Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 593 (1955) (emphasis added) (citations omitted); see also Hatch v. Alamance Ry. Co., 183 N.C. 617, 628, 112 S.E. 529, 534 (1922) (Clark, C.J., dissenting) ("[A]ppearance in an action dispenses with the necessity of process. Indeed, there are numerous cases that although there has been no summons at all issued, a general appearance, by filing an answer or otherwise, makes service of summons at all unnecessary." (citations omitted)). In the instant case, the failure to issue a summons in the neglect and dependency action did not affect the trial court's subject matter jurisdiction, and the parents' appearance at the neglect and dependency hearing without objection to jurisdiction waived any defenses implicating personal jurisdiction.

In the recent case In re J.T. (I), a TPR summons had been issued but failed to name any of the three juveniles in that case as respondent, and no summons had been served on the juveniles or their GAL. We held these deficiencies implicated personal jurisdiction, not subject matter jurisdiction. 363 N.C. at 4, 672 S.E.2d at 19. In our decision, we quoted the...