In the Matter of D.D., No. COA09-60 (N.C. App. 6/16/2009)
| Decision Date | 16 June 2009 |
| Docket Number | No. COA09-60,COA09-60 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: D.D., D.T., T.T., D.T. & T.T., Minor Children. |
Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for petitioner-appellee.
Joyce L. Terres, for respondent-appellant mother.
Betsy J. Wolfenden, for respondent-appellant father.
Respondent-mother and respondent-father (collectively "respondents") appeal the order terminating their parental rights to the minor children, D.D., D.T., T.T., D.T., and T.T. For the reasons discussed herein, we vacate the trial court's order in part and affirm in part.
On 27 August 2004, the Rowan County Department of Social Services ("DSS") filed a juvenile petition alleging that D.D., D.T., T.T., and D.T. ("the older children") were neglected and dependent juveniles. No summons was issued to respondents. A hearing was held on 18 October 2004 at which respondents appeared and consented to an adjudication of neglect. On 13 January 2005, the court filed an order returning these children to respondents' custody.
On 5 May 2005, DSS filed a second juvenile petition alleging that the older children were neglected and dependent juveniles. Again, no summons was issued to respondents. On 27 June 2005, the court adjudicated the children dependent pursuant to a consent order. Respondents appeared in court for this adjudication. Because respondents were moving to Mecklenburg County, the trial court transferred the case to Mecklenburg County. The record reflects no independent basis for Mecklenburg County to have acquired subject matter jurisdiction.
On 8 September 2006,1 T.T. was born to respondents. Mecklenburg Youth and Family Services ("petitioner") filed a juvenile petition on 25 September 2006 alleging that T.T. was neglected and dependent, having tested positive for methadone at birth. Summons was issued to and served upon each respondent. T.T. was adjudicated as neglected and dependent following hearings on 25 January 2007 and 21 March 2007.
On 10 January 2008, petitioner filed petitions to terminate the parental rights of respondents to all five children. To establish its custody of the four oldest children, petitioner attached to the petitions the August 2004 Rowan County nonsecure custody order. Summonses were issued to respondents for each of the five children. On 9 October 2008, the trial court filed an order terminating the parental rights of respondents on the grounds that respondents (1) neglected the children, and (2) left the children in out-of-home placement for more than twelve months without making reasonable progress in correcting the conditions that led to the removal of the children from the home. As an additional ground for terminating the parental rights of respondent-mother, the trial court concluded she failed to pay a reasonable portion of the cost of care of the children. The trial court's order referenced only the Rowan County nonsecure custody order to establish its jurisdiction in the cases of the older children. Respondent-mother filed notice of appeal on 27 October 2008. Respondent-father, the father of the four youngest children,2 filed notice of appeal on 7 November 2008.
On appeal, respondents argue that the trial court lacked subject matter jurisdiction to terminate their parental rights with respect to the older children, because no summons was issued to either party in the original juvenile petitions filed in Rowan County District Court. We are constrained to agree.
Pursuant to N.C. Gen. Stat. § 7B-1103(a), a petition to terminate the parental rights of a parent may be filed by "[a]ny county department of social services . . . to whom custody of the juvenile has been given by a court of competent jurisdiction." N.C. Gen. Stat. § 7B-1103(a) (2007). "If DSS does not lawfully have custody of the children, then it lacks standing to file a petition . . . to terminate parental rights, and the trial court, as a result, lacks subject matter jurisdiction." In re E.X.J., __ N.C. App. __, __, 662 S.E.2d 24, 27 (2008) (citing In re Miller, 162 N.C. App. 355, 358, 590 S.E.2d 864, 866 (2004)), aff'd per curiam, 363 N.C. 9, 672 S.E.d2d 19 (2009). "`Standing is a necessary prerequisite to a court's proper exercise of subject matter jurisdiction.'" Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 113, 574 S.E.2d 48, 51 (2002) (quoting Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878, disc. rev. denied, 356 N.C. 610, 574 S.E.2d 474 (2002)), disc. rev. denied, 356 N.C. 675, 577 S.E.2d 628 (2003). "Further, `[i]f a court finds at any stage of the proceedings that it lacks jurisdiction over the subject matter of a case, it must dismiss the case for want of jurisdiction.'" Miller, 162 N.C. App. at 359, 590 S.E.2d at 866 (quoting State v. Linemann, 135 N.C. App. 734, 739, 522 S.E.2d 781, 785 (1999)).
It is well established that "[t]he issuance and service of process is the means by which the court obtains jurisdiction." In re Mitchell, 126 N.C. App. 432, 433, 485 S.E.2d 623, 624 (1997) (citations omitted). Recent cases have distinguished between the effect of a failure to issue a summons and the failure to serve a summons in termination of parental rights cases. Failure to issue a summons is a matter of subject matter jurisdiction, while failure to serve a properly issued summons is a matter of personal jurisdiction. In re K.J.L., __ N.C. App. __, __, 670 S.E.2d 269, 271 (2008) (citations omitted). Although jurisdiction over the person can be waived,In re J.B., 164 N.C. App. 394, 396, 595 S.E.2d 794, 795-96 (2004), "[i]t is well settled that a challenge to a court's jurisdiction over the subject matter of an action cannot be waived at any point in the proceedings." In re J.T., 363 N.C. 1, 3, 672 S.E.2d 17, 18 (2009). "This is because `the proceedings of a court without jurisdiction of the subject matter are a nullity.'" Id. (quoting Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964)) (citation omitted).
"Where no summons is issued [in a juvenile action] the court acquires jurisdiction over neither the persons nor the subject matter of the action." K.J.L., __ N.C. App. at __, 670 S.E.2d at 271 (quoting Mitchell, 126 N.C. App. at 433, 485 S.E.2d at 624); see also In re K.A.D., 187 N.C. App. 502, 502, 653 S.E.2d 427, 427 (2007) (). In K.J.L., we held that the trial court lacked subject matter jurisdiction over neglect and dependency proceedings where the summons for the petition alleging the child was neglected and dependent was not properly issued. We also vacated the termination order "because the adjudication order was essential to the trial court's subject matter jurisdiction in the proceeding to terminate respondent's parental rights." Id. (citing N.C. Gen. Stat. § 7B-1110(a) (2007)). In the present case, no summons was issued in either of the Rowan County adjudication proceedings for the four oldest children. Because no summons was issued, the Rowan County trial court never acquired subject matter jurisdiction over the children, and thus, Rowan County could not transfer the matter to Mecklenburg County. Because petitioner relied solely on the Rowan County nonsecure custody order to establish its custody of the children, and that order was a nullity, Mecklenburg County also did not acquire subject matter jurisdiction over the older children's cases. Therefore, although a summons was issued for the petition to terminate respondents' parental rights, petitioner was not a party under N.C. Gen. Stat. § 7B-1103(a) who may file a petition to terminate respondents' parental rights since petitioner was never given custody of the four oldest children "by a court of competent jurisdiction." N.C. Gen. Stat. § 7B-1103(a). For this reason, the trial court's order terminating respondents' parental rights to the older children must be vacated.
Although our case law mandates that the trial court's order be vacated, we note that this action does not lead to a desirable outcome in this instance. The initial juvenile petition was filed on 27 August 2004. Pursuing these proceedings over almost five years has undermined the stability of these children and has frustrated the judicial system's ability to act in their best interests. The detrimental impact of our decision on the children's sense of permanence and stability is especially troubling when we consider that both respondents were present at the adjudication proceedings in Rowan County and stipulated to the adjudication of neglect. Respondents have not argued any prejudice from the failure to issue summonses. Unfortunately, the individuals harmed most by that failure are the four oldest children. Thus, it is with great reluctance that we vacate that portion of the trial court's order terminating respondents' parental rights to the four oldest children.
Having concluded that the trial court lacked subject matter jurisdiction as to the older children, we address respondents' arguments as to the trial court's termination order only as it applies to respondents' youngest child, T.T.3
"Termination of parental rights is a two-stage proceeding." In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000) . At the adjudicatory stage, the trial court must determine that at least one ground for termination exists pursuant to N.C. Gen. Stat. § 7B-1111 . In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In this stage, the burden of proof is on the petitioner, and the court's decision must be supported by clear, cogent, and convincing...
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