In re C.T.

643 S.E.2d 23, 182 N.C. App. 472, 2007 N.C. App. LEXIS 683
Court of Appeals of North Carolina·Decided April 3, 2007·No. No. COA06-923.·Published·Cited by 29 cases

Opinion

LEVINSON, Judge.

Respondent, who is the mother of minor children R.S. and C.T., appeals from an order terminating her parental rights in the children. We affirm the order of termination as to C.T. and vacate for lack of subject matter jurisdiction as to R.S.

The relevant facts are summarized as follows: R.S. was born in 1995, and C.T. in 2002. In March 2003 the children were placed in the custody of the petitioner, Forsyth County Department of Social Services (DSS). Thereafter, the children remained in DSS custody, except for a two month trial placement with respondent in early 2004. In September 2004 petitioner filed a petition to terminate respondent's parental rights, and a hearing on the petition was conducted in October 2005. On 18 November 2005 the trial court entered an order terminating respondent's parental rights in the minor children. Respondent appeals.

Respondent argues that the trial court lacked subject matter jurisdiction over the termination of parental rights proceeding concerning R.S., on the grounds that petitioner failed to issue a summons. The petition to terminate parental rights was captioned with the names of both R.S. and C.T., but the summons that was issued referenced only C.T. Petitioner concedes that there is no summons with respect to R.S. in the Record on Appeal, or in the clerk's file.

"Jurisdiction 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." Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953) (citations omitted). "`Subject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel, and failure to demur or object to the jurisdiction is immaterial.'" In re T.B., ___ N.C.App. ___, ___, 629 S.E.2d 895, 896 (2006) (quoting Stark v. Ratashara, ___ N.C.App. ___, ___, 628 S.E.2d 471, 473, disc. review denied, sub nom Stark v. Ratashara, 360 N.C. 636, 633 S.E.2d 826 (2006)) (citations omitted). A court's general jurisdiction over a given type of proceeding is conferred by the North Carolina Constitution or the North Carolina General Assembly. In this regard, N.C. Const. art. IV, § 12 provides in part that:

(1) The Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference. . . .

(2) The Court of Appeals shall have such appellate jurisdiction as the General Assembly may prescribe.

(3) Except as otherwise provided by the General Assembly, the Superior Court shall have original general jurisdiction throughout the State. . . .

(4) The General Assembly shall . . . prescribe the jurisdiction and powers of the District Courts and Magistrates.

The General Assembly has directed that the district court "shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile[.]" N.C. Gen. Stat. § 7B-1101 (2005). "This statute confers upon the court general jurisdiction over termination of parental rights proceedings." In re T.B., ___ N.C.App. ___, ___, 629 S.E.2d 895, 897 (2006) (citations omitted).

However, "`a trial court's general jurisdiction over the type of proceeding or *25over the parties does not confer jurisdiction over the specific action.' `Thus, before a court may act there must be some appropriate application invoking the judicial power of the court with respect to the matter in question.'" In re A.B.D., 173 N.C.App. 77, 86-87, 617 S.E.2d 707, 714 (2005) (quoting In re McKinney, 158 N.C.App. 441, 447, 581 S.E.2d 793, 797 (2003), and In re Transp. of Juveniles, 102 N.C.App. 806, 808, 403 S.E.2d 557, 558-59 (1991)) (citation omitted).

Issuance of a summons in a termination of parental rights case is addressed in N.C. Gen.Stat. § 7B-1106 (2005), which provides in relevant part that:

(a) Except as provided in G.S. 7B-1105, upon the filing of the petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons ... who shall be named as respondents: (1) The parents of the juvenile[.]

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In re C.T., 643 S.E.2d 23, 182 N.C. App. 472, 2007 N.C. App. LEXIS 683 (N.C. Ct. App. 2007).

643 S.E.2d 23 (In re C.T.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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