In re N.C.H., COA08-413.

CourtCourt of Appeal of North Carolina (US)
Citation665 S.E.2d 812
Decision Date02 September 2008
Docket NumberNo. COA08-413.,COA08-413.
PartiesIn the Matters of N.C.H., G.D.H., D.G.H.

Davidson County Department of Social Services; Laura B. Beck, for appellee Guardian ad Litem.

Don Willey, Jefferson, for respondent-appellant.

HUNTER, Judge.

Respondent-mother ("respondent") appeals the orders terminating her parental rights to the minor children, G.D.H., D.G.H., and N.C.H. G.D.H. was born in 1999, D.G.H. in 2000, and N.C.H. in 2001. On 22 June 2006, the Davidson County Department of Social Services ("DSS") filed a petition alleging the children were abused and neglected. The children were placed in the nonsecure custody of DSS and have remained in DSS custody. On 27 February 2007, the children were adjudicated abused and neglected. Respondent appealed the orders and this Court affirmed the trial court's decision in an opinion filed 2 October 2007. See In the Matter of G.D.H., D.G.H., N.C.H., ___ N.C.App. ___, 650 S.E.2d 675 (2007) (unpublished).

On 31 January 2007, DSS filed petitions to terminate respondent's parental rights. The respective birth and legal fathers relinquished their rights and executed consents for adoption as to the children. On 18 January 2008, the trial court entered orders terminating respondent's parental rights, from which respondent now appeals.

Respondent argues that the trial court lacked subject matter jurisdiction because no summonses were issued in the juveniles' names as required by N.C. Gen.Stat. § 7B-1106(a)(5) (2007). We find this Court's recent decision in In re J.A.P., I.M.P., ___ N.C.App. ___, 659 S.E.2d 14 (2008), controlling on this issue. In that case, the summonses issued named the juveniles in the case caption, but did not name the juveniles as respondents. A guardian ad litem had been appointed for the juveniles. The guardian ad litem was not served with a copy of the summonses; however, the attorney advocate for the guardian ad litem was served. We held that where a juvenile's guardian ad litem is represented by an attorney advocate, service of the summons on the attorney advocate constitutes service on the guardian ad litem. Further, service on the guardian ad litem constitutes service on the juvenile, which is sufficient to establish subject matter jurisdiction when combined with naming the juvenile in the caption of the summons. Id. at ___, 659 S.E.2d at 17.

In the case of In re S.D.J., ___ N.C.App. ___, ___, 665 S.E.2d 818, ___ (2008), filed simultaneously herewith, we found that the trial court had subject matter jurisdiction even though a summons was not issued to the juvenile. Id. We reasoned that "the captions of the summonses naming the parents as respondents state the name of the juvenile, and the guardians ad litem for the juvenile certified that they accepted service of the petition on the juvenile's behalf[.]" Id. at ___, 665 S.E.2d at 821 (slip op. 4). In S.D.J. we adhered to the precedent set in J.A.P.

Here, the record before us shows summonses captioned as follows: "In the Matter of: [N.C.H.]"; "In the Matter of: [G.D.H.]"; and "In the Matter of: [D.G.H.]." The record also contains certifications from the guardian ad litem appointed for the juveniles that she was served with a copy of the summonses. We find that there are no significant distinctions between the facts of this case and those in J.A.P. or S.D.J. Therefore, in accordance with our holdings in those cases, we conclude that the trial court had subject matter jurisdiction over these proceedings. The orders are affirmed.

Affirmed.

Judge McGEE concurs.

Judge STROUD dissents in a separate opinion.

STROUD, Judge dissenting.

Because I do not believe the trial court had subject matter jurisdiction to enter the orders terminating parental rights as to the three juveniles, I respectfully dissent.

I. Background

The majority opinion correctly states the procedural history of this case. However, the failure of this Court in some of its prior opinions to identify clearly and to state in the opinion the factual details regarding the summonses which were actually issued has caused some of the confusion in the cases. Therefore, I would like to note that in this case, termination of parental rights ("TPR") summonses were issued on 1 February 2007.1 Each juvenile's name appeared in the caption of a summons, but no summons appearing in the record was issued to a juvenile as respondent. On 3 February 2007, the guardian ad litem for the juveniles signed an acceptance of service, which was filed with the trial court on 6 February 2007, for each of the three TPR summonses (one naming each juvenile in the caption) and the TPR petitions.

II. Legal Analysis

Respondent argues that the trial court lacked subject matter jurisdiction because no summonses were issued in the juveniles' names as required by N.C. Gen.Stat. § 7B-1106(a)(5). I agree.

A. Concepts and Rules

"Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question [and] is conferred upon the courts by either the North Carolina Constitution or by statute." Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987) (citations omitted). More specifically, "[j]urisdiction is the power of a court to decide a case on its merits; it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment." In re C.T. & R.S., 182 N.C.App. 472, 473, 643 S.E.2d 23, 24 (2007) (citations and quotation marks omitted). "Jurisdiction rests upon the law and the law alone. It is never dependent upon the conduct of the parties." In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (citation and quotation marks omitted). Therefore, "[s]ubject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and failure to demur or object to the jurisdiction is immaterial." C.T., 182 N.C.App. at 473, 643 S.E.2d at 24 (citations and quotation marks omitted).

The district court is vested with exclusive original jurisdiction over proceedings for the termination of parental rights ("TPR"). N.C. Gen.Stat. § 7B-200(a)(4) and § 7B-1101 (2007). For the district court to acquire subject matter jurisdiction over a particular TPR proceeding, strict compliance with the statutory provisions enacted by the General Assembly is necessary. In re S.F., ___ N.C.App. ___, ___, 660 S.E.2d 924, 928 (2008); see also T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (vacating custody review order when statutory verification requirements were not strictly complied with).

The district court's subject matter jurisdiction as to a particular action to terminate parental rights is invoked by the filing of a motion, N.C. Gen.Stat. § 7B-1102(a) (2007) or a petition,2 N.C. Gen.Stat. § 7B-1105 (2007), in accordance with the statutory mandates of Article 11 of Chapter 7B of the North Carolina General Statutes, which "provide judicial procedures for terminating the legal relationship between a juvenile and the juvenile's biological or legal parents[,]" N.C. Gen.Stat. § 7B-1100(1) (2007). N.C. Gen. Stat. § 7B-1106(a) sets forth the requirement that a summons be issued to certain parties, including the juvenile, as respondents.3 Upon the filing of a termination petition, N.C. Gen.Stat. § 7B-1106(a) mandates that "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 [including, inter alia,] [t]he juvenile." N.C. Gen.Stat. § 7B-1106(a)(5)(2007) (emphasis added); see also In re Poole, 151 N.C.App. 472, 475, 568 S.E.2d 200, 202 (2002) (Timmons-Goodson, J., dissenting) ("The issuance and service of process is the means by which the court obtains jurisdiction [in an abuse, neglect, or dependency proceeding] thus where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action." (Citations and emphasis in original omitted.)), rev'd, 357 N.C. 151, 579 S.E.2d 248 (2003) (reversing per curiam for the reasons stated in the dissenting opinion).

In general, the summons in a civil action is the means of obtaining personal jurisdiction over the defendant. N.C. Gen.Stat. § 1A-1, Rule 4(j); Draughon v. Harnett Cty. Bd. of Educ., 166 N.C.App. 449, 451, 602 S.E.2d 717, 718 (2004) ("In order for a court to obtain personal jurisdiction over a defendant, a summons must be issued and service of process secured by one of the statutorily specified methods."); Childress v. Forsyth County Hosp. Auth., 70 N.C.App. 281, 285, 319 S.E.2d 329, 332 (1984) ("The summons constitutes the means of obtaining jurisdiction over the defendant."), disc. review denied, 312 N.C. 796, 325 S.E.2d 484 (1985). But see Conner Bros. Mach. Co. v. Rogers, 177 N.C.App. 560, 562, 629 S.E.2d 344, 345 (2006) (holding that subject matter jurisdiction did not exist in a civil action when no summons was issued within five days of filing the complaint, because the action was deemed never to have commenced per N.C. Gen.Stat. § 1A-1, Rule 4(a)); Dozier v. Crandall, 105 N.C.App. 74, 78, 411 S.E.2d 635, 638 ("[T]he action is discontinued as to any defendant not served within the time allowed and treated as if it had never been filed" per N.C. Gen.Stat. § 1A-1, Rule 4(e). (Emphasis in original omitted, emphasis added.)), disc. review improvidently allowed, 332 N.C. 480, 420 S.E.2d 826 (1992). However, the issuance of the summons confers subject matter jurisdiction in a proceeding for termination of parental rights, perhaps because the juvenile is both a person and the subject matter of the litigation. See In re Mitchell, 126 N.C.App. 432, 433, 485 S.E.2d 623, 624 (1997) ("In a juvenile action, the...

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