In Re A.F.H-G.

657 S.E.2d 738, 189 N.C. App. 160, 2008 N.C. App. LEXIS 424

• Court: Court of Appeals of North Carolina
• Decided: March 4, 2008
• Docket: COA07-1346
• Status: Published

Opinions

STEELMAN, Judge.

Where no summons is issued to the juvenile as required by N.C. Gen. Stat. § 7B-1106(a)(5), we must vacate an order terminating parental rights under N.C. Gen. Stat. Chapter 7B for lack of subject matter jurisdiction.

A.S. (“mother”) gave birth to A.F.H-G., the minor child, in 1998! In 1999, following an incident that resulted in mother’s hospitalization, the court granted custody of A.F.H-G. to a maternal aunt and uncle, with reasonable visitation by mother. On 23 October 2006, the custodial aunt and her husband filed a petition to terminate both mother’s and father’s parental rights. On 24 October 2006, a summons was issued that named both parents, but not the minor child, as respondents. On 13 September 2007, nunc pro tunc 14 August 2007, the trial court terminated mother’s and father’s parental rights under N.C. Gen. Stat. § 7B-llll(a)(7). Mother appeals.

The 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. Every court necessarily has the inherent judicial power to inquire into, hear and determine questions of its own jurisdiction, whether of law or fact, the decision of which is necessary to determine the questions of its jurisdiction.

Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85-86 (1986) (internal citations omitted). The judicial procedure for termination of parental rights includes procedural protections that must be followed to endow the court with subject matter jurisdiction. N.C. Gen. Stat. § 7B-1101 et seq. (2005). In relevant part, N.C. Gen. Stat. § 7B-1105(a)(5) requires that a summons be issued to the juvenile, “who shall be named as a respondent.” Id. (2005).

In this case, petitioners failed to name the juvenile as a respondent in the summons. “ ‘In order for a summons to serve as proper notification, it must be issued and served in the manner prescribed by statute.’ ” Latham v. Cherry, 111 N.C. App. 871, 874, 433 S.E.2d 478, 481 (1993) (quoting Everhart v. Sowers, 63 N.C. App. 747, 750, 306 S.E.2d 472, 474 (1983)), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994).

This Court has recently held that the failure to issue a summons to the juvenile in accordance with N.C. Gen. Stat. § 7B-1106(a)(5) deprives the trial court of subject matter jurisdiction. In re K.A.D., 187 N.C. App. 502, 504, 653 S.E.2d 427, 428-29 (2007) (citing In re C.T. & R.S., 182 N.C. App. 472, 475, 643 S.E.2d 23, 25 (2007)). We are bound by our prior holdings on this issue. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989).

We vacate the order terminating parental rights.

VACATED. .

Judge CALABRIA concurs. Judge STEPHENS concurs in separate opinion.