In re Poole

• Citation: 568 S.E.2d 200,151 NC App. 472
• Decision Date: 16 July 2002
• Docket Number: No. COA01-871.,COA01-871.
• Parties: In the Matter of Raven POOLE.
• Court: North Carolina Court of Appeals

568 S.E.2d 200

151 NC App. 472

In the Matter of Raven POOLE.

No. COA01-871.

Court of Appeals of North Carolina.

July 16, 2002.

Staff Attorney John F. Campbell, Fayetteville, for petitioner-appellee, Cumberland County Department of Social Services.

Hatley & Stone, P.A., by Michael A. Stone, Fayetteville, for respondent-appellant, Bernard Poole.

Deborah Koenig, Attorney Advocate, Fayetteville, for guardian ad litem.

GREENE, Judge.

Bernard Poole (Respondent) appeals an adjudication and disposition order entered 30 April 1997 adjudicating his daughter Raven Poole (Raven) dependent and awarding legal and physical custody of Raven to her maternal aunt and uncle, Jamesetta and Dwight Nixon (collectively, the Nixons).

In a petition dated 7 October 1996, the Cumberland County Department of Social Services (Petitioner) alleged Raven to be a dependent and neglected juvenile. The petition named the mother and Respondent as the "parent/guardian/custodian/caretaker(s)." The petition stated the mother's address but listed Respondent's address as "unknown." A summons was not issued to Respondent; thus he was never served with a summons and a copy of the petition, personally or by publication. The trial court entered a temporary nonsecure order dated 20 December 1996 granting legal and physical custody of Raven to the Nixons. Thereafter, on 30 April 1997, the trial court entered an order adjudicating Raven to be a dependent juvenile and awarded legal and physical custody to the Nixons.

On 2 May 2000, Respondent filed a motion to dismiss the dependency adjudication/disposition due to "lack of ... valid service of process." This motion was denied by the trial court in an order filed 30 November 2000.

The dispositive issue is whether the issuance and service of a summons on each parent is a prerequisite to the trial court's authority to enter an adjudicatory and dispositional order addressing the abuse, neglect, or dependency of a juvenile.

A trial court has the authority to enter an adjudicatory and dispositional order in a chapter 7B abuse, neglect, or dependency case only if it has subject matter jurisdiction under sections 7B-200(a) and 50A-201 and notice has been provided pursuant to sections 7B-407 and 50A-205(a). N.C.G.S. §§ 7B-200(a), 7B-407, 50A-201 (2001); N.C.G.S. § 50A-205(a) (2001) (notice must be given to both parents unless a parent's parental rights have been previously terminated); see N.C.G.S. § 50A-102(4) (2001) (the Uniform Child-Custody Jurisdiction and Enforcement Act (the UCCJEA) applies to proceedings for abuse, neglect, and dependency); In re Van Kooten, 126 N.C.App. 764, 768, 487 S.E.2d 160, 162-63 (1997) (the "jurisdictional requirements of the [UCCJEA] must ... be satisfied for the district court to have jurisdiction to adjudicate abuse, neglect, and dependency petitions"); Copeland v. Copeland, 68 N.C.App. 276, 278, 314 S.E.2d 297, 299 (1984); see also In re Mitchell, 126 N.C.App. 432, 433, 485 S.E.2d 623, 624 (1997). While it is not necessary for the trial court to satisfy all the elements of personal jurisdiction in order to have the authority to enter a chapter 7B adjudicatory or dispositional order in an abuse, neglect, or dependency case, see Harris v. Harris, 104 N.C.App. 574, 577-79, 410 S.E.2d 527, 529-30 (1991) (personal jurisdiction requires compliance with the applicable long-arm statute, notice, and minimum contacts); Shingledecker v. Shingledecker, 103 N.C.App. 783, 785, 407 S.E.2d 589, 591 (1991) ("personal jurisdiction over ... nonresident is not required under the [UCCJEA]"), service of a summons on both parents is required.¹ Indeed, sections 7B-406 and 7B-407 require the summons be issued to and served on both parents of a juvenile alleged to be abused, neglected, or dependent unless a parent's parental rights have been previously terminated. N.C.G.S. §§ 7B-406,—407 (2001) (issuance of a summons to and service on "the parent" required); see N.C.G.S. § 7B-101 (2001) ("[t]he singular includes the plural"); N.C.G.S. § 50A-205(a) (2001).

We acknowledge this Court has previously stated that "`it is not necessary to serve [a dependency] petition on both parents, but only on one of them.'" In the Matter of Arends, 88 N.C.App. 550, 554, 364 S.E.2d 169, 171 (1988) (quoting In re Yow, 40 N.C.App. 688, 691, 253 S.E.2d 647, 649, disc. review denied, 297 N.C. 610, 257 S.E.2d 223 (1979)). This Court's holding in Yow, however, is based on a statute which provided that the summons must be served upon "the parents or either of them." N.C.G.S. § 7A-283 (1969) (amended 1979). As the legislature has changed the statute on which Yow relied, we are not bound by the holding of that case or Arends, which relied on Yow. In any event, as noted above, the UCCJEA now applies to abuse, neglect, and dependency actions under chapter 7B; and it requires notice to both parents.² In this case, there is no dispute that Respondent is the father of Raven and that, although he was listed as the father in the petition, a summons was not issued to or served on him. Thus, the trial court did not have the authority to enter the 30 April 1997 order adjudicating Raven to be a dependent juvenile and granting permanent custody to the Nixons. Accordingly, the 30 April 1997 order and any subsequent dispositional orders are vacated.

Vacated and remanded.

Judge HUNTER concurs.

Judge TIMMONS-GOODSON dissents.

TIMMONS-GOODSON, Judge, dissenting.

Because I disagree with the majority's conclusion that the trial court lacked jurisdiction to enter the order adjudicating Raven to be a dependent juvenile, I respectfully dissent.

Under the Juvenile Code, the district courts of North Carolina have "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent." N.C. Gen.Stat. § 7B-200(a) (2001). The issuance and service of process is the means by which the court obtains jurisdiction, see N.C. Gen.Stat. § 7B-401 (2001), and thus where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action. See In re Mitchell, 126 N.C.App. 432, 433, 485 S.E.2d 623, 624 (1997); In re McAllister, 14 N.C.App. 614, 616, 188 S.E.2d 723, 725 (1972). In the instant case, it is undisputed that Raven's mother was properly served with the summons. The trial court therefore clearly had subject matter jurisdiction over the action and personal jurisdiction over the mother. See In the Matter of Arends, 88 N.C.App. 550, 554-55, 364 S.E.2d 169, 172 (1988). The trial court obtained personal jurisdiction over respondent when he appeared in court on 24 May 2000. The issue is therefore whether the trial court's initial lack of personal jurisdiction over the juvenile's father divests the court of its ability to enter an order adjudicating the juvenile to be dependent. I conclude that the trial court could properly enter such an order.

As the majority recognizes, it is not necessary for the trial court to have personal jurisdiction over the juvenile's parents in order to have the authority to enter a chapter 7B adjudicatory or dispositional order in an abuse, neglect, or dependency case. The majority nevertheless concludes that, without service of a summons on both parents, the trial court is without "authority" to enter an adjudicatory or dispositional order relating to abuse, neglect, or dependency. Although it is unclear what the majority means by the term "authority," the majority appears to base its conclusion that summons must be issued to both parents before the court can properly enter an order of adjudication on requirements set forth in the UCCJEA. The majority is mistaken in its conclusion on several grounds.

First, the requirements set forth by the UCCJEA do not divest a court of jurisdiction where, as here, no other court has any claim to jurisdiction over the action. The UCCJEA is a jurisdictional act relating to child custody proceedings. See N.C. Gen.Stat. § 50A-101 (2001). It seeks, among other goals, to "[a]void jurisdictional competition and conflict with courts of other States in matters of child custody" and to "[p]romote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child[.]" N.C. Gen.Stat. § 50A-101, Official Comment. It also seeks to "[f]acilitate the enforcement of custody decrees of other States." Id. The mandates set forth in the UCCJEA, while applicable to adjudicatory hearings, see, e.g., In re Malone, 129 N.C.App. 338, 342, 498 S.E.2d 836, 838 (1998), do not divest the trial court of its authority to enter an order of adjudication under the facts of the present case. The petition for adjudication of neglect and dependency was brought pursuant to the Juvenile Code, and there is no indication in the record that any other court in any other State might have competing jurisdiction. As such, the UCCJEA simply does not control the outcome of the case at bar.

Further, the section of the UCCJEA addressing notice requirements states that "[b]efore a child-custody determination is made under this Article, notice and an opportunity to be heard in accordance with the standards of G.S. 50A-108 must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State[.]" N.C. Gen.Stat. § 50A-205(a) (2001) (emphasis added). As previously noted, the instant action was brought pursuant to the Juvenile Code, and not the UCCJEA. Under the law of this State, it is well established that "in order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them." Arends, 88 N.C.App. at 554, 364 S.E.2d at 171; see also In re Yow, 40 N.C.App. 688, 691, 253 S.E.2d 647, 649 (holding that the trial court properly entered an order of adjudication where notice was served on only one parent), disc. review...