In re S.D.J.

Citation665 S.E.2d 818
Decision Date02 September 2008
Docket NumberNo. COA08-360.,COA08-360.
CourtNorth Carolina Court of Appeals
PartiesIn the Matter of S.D.J.

Mercedes O. Chut, Greensboro, for petitioner-appellee Guilford County Department of Social Services.

Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, Greensboro, for appellee Guardian ad Litem.

Mary McCullers Reece, Smithfield, for respondent-appellant mother.

HUNTER, Judge.

Respondent-mother appeals from the trial court's order, entered 28 December 2007, terminating her parental rights to her minor child S.D.J. After careful review, we affirm.

On 4 June 2007, the Guilford County Department of Social Services ("petitioner") filed a petition for termination of respondent's parental rights in Guilford County District Court. As grounds for termination, the petition alleged respondent (1) willfully left S.D.J. in foster care or placement outside the home for more than twelve months without showing that reasonable progress under the circumstances had been made in correcting those conditions that led to the removal of S.D.J. from the home, and (2) is incapable of providing for the proper care and supervision of S.D.J. such that S.D.J. is a dependent juvenile.

The petition came on for hearing by the trial court on 16 August 2007 and continued on 24 September and 19 November 2007. On 28 December 2007, the trial court entered an order terminating respondent's parental rights to S.D.J. on the grounds alleged in the petition. Respondent appeals.

As a preliminary matter, we must determine whether the trial court had subject matter jurisdiction over the termination proceedings in this case. It is well established that "`[t]he question of subject matter jurisdiction may be raised at any time, even in the Supreme Court. When the record clearly shows that subject matter jurisdiction is lacking, the Court will take notice and dismiss the action ex mero motu.'" In re A.F.H-G, ___ N.C.App. ___, ___, 657 S.E.2d 738, 739 (2008) (quoting Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85-86 (1986)). This Court has held that a failure to issue a summons to the juvenile deprives the trial court of subject matter jurisdiction. In re S.F., ___ N.C.App. ___, ___ - ___, 660 S.E.2d 924, 926-27 (2008) (citing In re K.A.D., ___ N.C.App. ___, ___ - ___, 653 S.E.2d 427, 428-29 (2007)). However, if a summons is not properly issued naming the juvenile as a respondent in a proceeding to terminate parental rights to the juvenile, the trial court will retain subject matter jurisdiction over the termination proceeding where the caption of an issued summons refers to the juvenile by name and a designated representative of the juvenile certifies the juvenile was served with the petition. See In re J.A.P., I.M.P., ___ N.C.App. ___, ___, 659 S.E.2d 14, 17 (2008) (holding the trial court had subject matter jurisdiction over a termination of parental rights proceeding where no summons was issued naming the juveniles as respondents, but the attorney advocate for the juveniles' guardian ad litem certified that she accepted service of process regarding both juveniles).

Here, the record contains no summons issued to the juvenile, naming S.D.J. as a respondent in this matter, and no indication that a summons was ever actually issued to the juvenile. On 4 June 2007 two summonses were issued naming respondent mother, the legal father, and "Any Unknown Putative Father" as respondents in this matter. Respondent was served with a summons on 6 June 2007, and the legal father and unknown putative father were served by publication on 13, 20, and 27 June 2007. While S.D.J.'s name appears on the summons forms in the case caption, neither summons names S.D.J. as a respondent. The record does, however, contain two certificates of acceptance of service signed by two different guardians ad litem for the juvenile. Upon appointment by the court, it is the responsibility of the guardian ad litem to represent the juvenile in court and in all respects "to protect and promote the best interests of the juvenile[.]" N.C. Gen.Stat. § 7B-601(a) (2007). In furtherance of this responsibility, it is within the purview of a guardian ad litem to stand in for the juvenile and accept service of a petition on a juvenile's behalf. In re J.A.P., I.M.P., ___ N.C.App. at ___, 659 S.E.2d at 17 (citing N.C. Gen.Stat. § 7B-1105 (2007)); In re N.C.H., G.D.H., D.G.H., ___ N.C.App. ___, ___, 665 S.E.2d 812, ___ (2008) (subject matter jurisdiction was proper with the trial court where the summonses contained the names of the juveniles in the caption and the guardian ad litem for the juveniles certified that she was served with copies of the summonses).

Therefore, even though the record before this Court contains no summons issued to S.D.J., naming the juvenile as a respondent in this matter, because 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, we hold the trial court had subject matter jurisdiction to hear the petition. Further, we note that there is no indication in the record that respondent was prejudiced in any way by petitioner's failure to properly issue a summons directed to and naming S.D.J. as a respondent in this matter.

Respondent first argues the trial court erred in admitting the reports of the results of drug screens and a letter from Alcohol and Drug Services ("ADS") because the documents were hearsay and fell under no recognized exception. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen.Stat. § 8C-1, Rule 801(c) (2007). Hearsay is inadmissible except when allowed by statute or the North Carolina Rules of Evidence. N.C. Gen.Stat. § 8C-1, Rule 802 (2007). One exception to the hearsay rule is the business record exception, which provides that business records of regularly conducted activity are not excluded by the hearsay rule, even though the declarant is unavailable as a witness. N.C. Gen.Stat. § 8C-1, Rule 803(6) (2007). A business record includes:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Id. A qualifying business record "is admissible when `a proper foundation . . . is laid by testimony of a witness who is familiar with the . . . records and the methods under which they were made so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy.'" State v. Price, 326 N.C. 56, 77, 388 S.E.2d 84, 95 (1990) (quoting State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973)); see also State v. Miller, 80 N.C.App. 425, 429, 342 S.E.2d 553, 556 ("`[o]ther qualified witness' has been construed to mean a witness who is familiar with the business entries and the system under which they are made"), appeal dismissed and disc. review denied, 317 N.C. 711, 347 S.E.2d 448 (1986). While the foundation must be laid by a person familiar with the records and the system under which they are made, there is "no requirement that the records be authenticated by the person who made them." State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985). Additionally, the foundational requirements of Rule 803(6) may be satisfied through the submission of:

An affidavit from the custodian of the records in question that states that the records are true and correct copies of records made, to the best of the affiant's knowledge, by persons having knowledge of the information set forth, during the regular course of business at or near the time of the acts, events or conditions recorded. . . .

In re S.W., 175 N.C.App. 719, 725, 625 S.E.2d 594, 598, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006).

In the present case, during the adjudicatory phase of the hearing, the trial court admitted the reports and the letter over objection by respondent's trial attorney, finding each was admissible under the business records exception to the hearsay rule. Here, a social worker in the employ of petitioner testified that she collected all but one of the samples used in the drug tests and then sealed and shipped the samples to the laboratory for testing. She further testified that she relied on the reports in the ordinary course of her business and that the reports were collected as part of petitioner's record in this particular case.

Respondent argues the trial court erred in admitting, over respondent's objection, her drug test results and the accompanying letter from ADS on the grounds that they fell under no exception to the rule against hearsay. We disagree.

Our Court's decision in Miller, 80 N.C.App. 425, 342 S.E.2d 553, is dispositive. In Miller, our Court found that the trial court did not err in allowing an emergency room nurse who ordered a blood test to testify at trial as a "qualified witness" regarding the trustworthiness of a blood test as a business record even though the nurse did not actually analyze the blood in the laboratory. Id. at 428-29, 342 S.E.2d at 555-56. We held, "the results of the blood test constitute a record made in the usual course of business" and...

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