In re J.A.P.

659 S.E.2d 14, 189 N.C. App. 683, 2008 N.C. App. LEXIS 716
Court of Appeals of North Carolina·Decided April 15, 2008·No. No. COA07-1562.·Published·Cited by 33 cases

Opinion

STEPHENS, Judge.

On 27 October 2006, the Iredell County Department of Social Services ("DSS") filed petitions for the termination of Respondent's parental rights as to her minor children, J.A.P. and I.M.P. The petitions were heard on 12, 26, and 27 July 2007. On 17 October 2007, the trial court entered a consolidated judgment and order of adjudication and disposition terminating Respondent's parental rights to both children. From this order, Respondent appeals.

I. Subject Matter Jurisdiction

As a preliminary matter, we must determine whether the trial court had subject matter jurisdiction over the termination proceedings in this case. Although the parties have not questioned the court's subject matter jurisdiction, "a court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking." Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000). In reviewing a question of subject matter jurisdiction, our standard of review is de novo. Raleigh Rescue Mission, Inc. v. Bd. of Adjust. of Raleigh, 153 N.C.App. 737, 571 S.E.2d 588 (2002).

Our juvenile code requires:

(a) . . . [U]pon the filing of the [termination] petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons or agency, not otherwise a party petitioner, who shall be named as respondents:

. . . .

(5) The juvenile.

. . . Except that the summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed. . . .

N.C. Gen.Stat. § 7B-1106 (2007). Plainly, where a guardian ad litem has been appointed for the juvenile, the statute directs that service of the summons be made on the guardian ad litem rather than on the juvenile.

In In re C.T., 182 N.C.App. 472, 643 S.E.2d 23 (2007), the petition to terminate parental rights was captioned with the names of both minor children at issue, C.T. and R.S., but no summons was issued referencing R.S. This Court held the trial court lacked subject matter jurisdiction to terminate respondent-mother's parental rights in R.S. because "the record fail[ed] to show that a summons was ever issued as to R.S." Id. at 475, 643 S.E.2d at 25. Accordingly, this Court vacated the termination order to the extent it terminated respondent-mother's parental rights in R.S.

In In re K.A.D., ___ N.C.App. ___, 653 S.E.2d 427 (2007), summons was issued regarding the minor child to the mother and father, but no summons was issued to the minor child. This Court, citing C.T., vacated the trial court's order terminating respondent-father's parental rights because it held that "the failure to issue a summons to the juvenile deprives the trial court of subject matter jurisdiction." Id. at ___, 653 S.E.2d at 428-29.

However, in In re J.B., 172 N.C.App. 1, 616 S.E.2d 264 (2005), this Court overruled respondent-mother's argument that the trial court had not acquired jurisdiction over the juvenile where service of summons regarding the juvenile was served on the guardian ad litem's attorney, rather than on the guardian ad litem, as contemplated by N.C. Gen.Stat. § 7B-1106(a). Noting that the guardian ad litem had not objected at trial to the sufficiency of service of the summons, nor raised such issue on appeal, this Court held that respondent-mother had failed to demonstrate any prejudice to her "from the alleged failure to properly serve [the juvenile]." Id. at 8, *17616 S.E.2d at 269. Additionally, this Court did not question the trial court's subject matter jurisdiction based on the service of summons and specifically concluded that the trial court did have subject matter jurisdiction over the proceedings. Thus, the trial court's order terminating respondent-mother's parental rights in J.B. was affirmed.1 See also In re B.D., 174 N.C.App. 234, 620 S.E.2d 913 (2005), disc. review denied, 360 N.C. 289, 628 S.E.2d 245 (2006) (holding the trial court had jurisdiction where summons was served on the attorney advocate for the juvenile's guardian ad litem).

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In re J.A.P., 659 S.E.2d 14, 189 N.C. App. 683, 2008 N.C. App. LEXIS 716 (N.C. Ct. App. 2008).

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