In re D.B.

652 S.E.2d 56, 186 N.C. App. 556, 2007 N.C. App. LEXIS 2257
Court of Appeals of North Carolina·Decided November 6, 2007·No. No. COA06-1426-2.·Published·Cited by 15 cases

Opinions

McCULLOUGH, Judge.

Respondents appeal the trial court's order terminating their parental rights.

On 30 September 2004, a petition to terminate respondents' parental rights as to C.B. and D.B. was filed in Cumberland County District Court. The respondents stipulated that the minor children were neglected at the time of the filing of the verified petition based on domestic violence problems between respondents and that C.B. and D.B. were adjudicated neglected on 31 March 2003. The petition further stated that respondents failed to alleviate the conditions which led to removal, failed to comply with the Family Services Case Plan, and that respondents' rights as to the juveniles should be terminated.

A hearing was held on the petition to terminate respondents' parental rights on 14 December 2005, and the court thereafter entered an order terminating the parental rights of respondents on 9 January 2006. From entry of this order, respondents appeal.

Respondent-mother and respondent-father contend on appeal that the lower court's order must be vacated due to lack of subject matter jurisdiction by the lower court. Specifically, respondents contend the lower court was deprived of subject matter jurisdiction because respondents were not served with valid summonses and the action was discontinued.

In the instant case, a summons was issued on 7 October 2004 as to respondent-mother and respondent-father, but it was never served upon either party. A second summons was thereafter issued on 18 October 2004 and was served on respondent-mother the same day. Respondent-mother contends that because the original summons was never served and the second summons was not issued by endorsement or as an alias and pluries summons, the action was discontinued due to failure to serve a valid summons. Therefore, the trial court lacked subject matter jurisdiction. After that time, two new *58summons were issued as to respondent-father on 26 January 2005 and 31 January 2005, respectively. Respondent-father was served with the first summons on 30 January 2005 and the second on 31 January 2005. Respondent-father also argues that the action was discontinued due to failure to serve a valid summons, and therefore, the trial court lacked subject matter jurisdiction.

North Carolina General Statutes section 7B-1101 confers on the District Court the exclusive power to hear actions to terminate parental rights. N.C. Gen.Stat. § 7B-1101 (2005). This subject matter jurisdiction is invoked upon the filing of a verified petition. In re Triscari Children, 109 N.C.App. 285, 426 S.E.2d 435 (1993). Subject matter jurisdiction is to be distinguished from personal jurisdiction, the court's power to bind a particular party by its judgment, which, unlike subject matter jurisdiction, can be obtained by a party's "appearance and participation in the legal proceeding without raising an objection to lack of service." In re S.J.M., ___ N.C.App. ___, 645 S.E.2d 798, 802 (2007). Because respondent-mother and respondent-father appeared at the hearing held on 14 December 2005 and 15 December 2005, without raising an objection to the sufficiency of process, it is clear that the trial court had personal jurisdiction over both parties, and only subject matter jurisdiction is at issue.

While a court's subject matter jurisdiction is invoked upon the filing of a verified petition, failure to serve a valid summons in accordance with North Carolina Civil Procedure Rule 4 can divest the court of such jurisdiction. Service of process under Rule 4 is intended to provide notice of the commencement of an action and "`to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit.'" Harris v. Maready, 311 N.C. 536, 541-42, 319 S.E.2d 912, 916 (1984) (citation omitted).

Rule 4 provides that a summons is to be issued within 5 days of filing the complaint and is to be served upon a party within 60 days of its issuance. N.C. Gen.Stat. § 1A-1, Rule 4(a),(c) (2005). If a summons is not served upon a party within the time allowed, "it becomes `dormant' and cannot effect service except that it be revived or `continued' by either `an endorsement upon the original summons ... or ... an alias or pluries summons. . . .'" Shiloh Methodist Church v. Keever Heating & Cooling, 127 N.C.App. 619, 621, 492 S.E.2d 380, 382 (1997) (quoting N.C. Gen.Stat. § 1A-1, Rule 4(d)). If the dormant summons is not continued pursuant to Rule 4(d) within 90 days of its issuance, the original action is deemed to be discontinued as to the defendant upon which service has not been made. N.C. Gen.Stat. § 1A-1, Rule 4(e). The discontinued action is treated as if it were never filed; thus, the court's subject matter jurisdiction is no longer invoked with respect to that defendant. In re A.B.D., 173 N.C.App. 77, 85, 617 S.E.2d 707, 713 (2005).

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In re D.B., 652 S.E.2d 56, 186 N.C. App. 556, 2007 N.C. App. LEXIS 2257 (N.C. Ct. App. 2007).

652 S.E.2d 56 (In re D.B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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