In Re JDL

681 S.E.2d 485, 199 N.C. App. 182, 2009 N.C. App. LEXIS 1374
CourtCourt of Appeals of North Carolina
DecidedAugust 18, 2009
DocketCOA09-25
StatusPublished
Cited by7 cases

This text of 681 S.E.2d 485 (In Re JDL) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JDL, 681 S.E.2d 485, 199 N.C. App. 182, 2009 N.C. App. LEXIS 1374 (N.C. Ct. App. 2009).

Opinion

681 S.E.2d 485 (2009)

In the Matter of J.D.L.

No. COA09-25.

Court of Appeals of North Carolina.

August 18, 2009.

*487 Laura M. Watts-Whitley, New Bern, for petitioner-appellee.

Deana K. Fleming, Raleigh, for guardian ad litem.

Windy H. Rose, Columbia, for respondent-appellant.

STROUD, Judge.

Respondent's parental rights to her minor child were terminated by order entered 26 September 2008 in Craven County District Court. Respondent challenges the order on procedural and on substantive grounds. We affirm.

I. Background

J.D.L. (hereinafter "Joey")[1] was born 26 February 2005. On 24 May 2006, the Craven County Department of Social Services (hereinafter "Petitioner" or "DSS") filed a petition alleging Joey was a neglected and dependent juvenile. The whereabouts of Joey's father were unknown at the time and no summons was issued to the father. A summons was issued to Joey's mother (hereinafter "Respondent") on 24 May 2006 but was returned unserved. The record contains no indication that Petitioner ever obtained an endorsement, extension, or alias/pluries summons or that a summons was ever served on any party. However, Respondent was present at the hearing on the neglect and dependency petition on 29 September 2006.

DSS subsequently deleted the allegations of neglect from the petition. On 15 November 2006, the trial court adjudicated Joey as dependent based upon Respondent's admissions in open court to the allegations of dependency. Custody of Joey was placed with DSS. Joey's father relinquished his parental rights.[2]

On 10 March 2008, Petitioner filed a petition to terminate Respondent's parental rights to Joey. The petition alleged, inter alia, dependency and abandonment. Summons was issued and served upon Joey by and through the guardian ad litem on 12 March 2008 and upon Respondent on 13 March 2008. After conducting adjudicatory and disposition hearings on 22 August 2008, the trial court entered an order terminating Respondent's parental rights on 26 September 2008. Respondent appeals.[3]

*488 II. Procedural Issues

A. Subject Matter Jurisdiction

Respondent first contends that the order terminating her parental rights must be vacated because the trial court lacked subject matter jurisdiction to hear and rule on the termination petition. We disagree.

Respondent relies on In re Miller, 162 N.C.App. 355, 590 S.E.2d 864 (2004). In Miller, this Court vacated an order terminating parental rights for want of subject matter jurisdiction because the petitioner, DSS, did not have legal custody of the child as required by N.C. Gen.Stat. § 7B-1103(a). 162 N.C.App. at 358, 590 S.E.2d at 866.

Respondent argues that because the summons in the underlying neglect and dependency petition was never served on her, the trial court's order placing custody with DSS in that proceeding was void. Respondent further contends that if the custody order was void, DSS never had legal custody of Joey and accordingly lacked standing to file the termination petition. Respondent concludes that absent standing by DSS, the trial court lacked subject matter jurisdiction to terminate her parental rights.

In re J.T. (I), J.T. (II), A.J. recently addressed the issue of subject matter jurisdiction over an action terminating parental rights pursuant to Article 11 of the Juvenile Code.[4] 189 N.C.App. 206, 657 S.E.2d 692 (2008), rev'd, 363 N.C. 1, 672 S.E.2d 17 (2009). In J.T., summonses were issued to the juveniles' parents, but no summonses were issued to the juveniles, as required by N.C. Gen.Stat. § 7B-1106(a). 363 N.C. at 2-3, 672 S.E.2d at 17-18. On appeal, this Court vacated the termination order, holding that "`failure to issue a summons to the juvenile deprives the trial court of subject matter jurisdiction.'" 189 N.C.App. at 208, 657 S.E.2d at 692 (quoting In re K.A.D., 187 N.C.App. 502, 504, 653 S.E.2d 427, 428-29 (2007), which cited In re C.T. & R.S., 182 N.C.App. 472, 475, 643 S.E.2d 23, 25 (2007)).

However, the North Carolina Supreme Court granted discretionary review and reversed, holding that the trial court had subject matter jurisdiction despite the failure to issue summonses to the juveniles. 363 N.C. at 4-5, 672 S.E.2d at 19. Specifically, the Supreme Court held:

In any given case under the Juvenile Code, the issuance and service of process is the means by which the court obtains jurisdiction....
. . . .
It is inconsequential to the trial court's subject matter jurisdiction that no summons named any of the three juveniles as respondent and that no summons was ever served on the juveniles or their GAL. These errors are examples of insufficiency of process and insufficiency of service of process, respectively, both of which are defenses that implicate personal jurisdiction and thus can be waived by the parties....
In summary, [when] the requirements of N.C.G.S. § 7B-1101 [are] satisfied, the trial court's subject matter jurisdiction attache[s] upon issuance of a summons. It is therefore unnecessary to make inquiry into the summons beyond a determination of whether a summons was issued.

363 N.C. at 4-5, 672 S.E.2d at 18-19 (citations, quotation marks, brackets and emphasis in original omitted; emphasis added).

Approximately four months after deciding J.T., see id., the Supreme Court filed In re K.J.L., which held that even "failure to legally issue a summons" implicated only personal jurisdiction. 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009) (emphasis added). K.J.L. further held that "the summons is not the vehicle by which a court obtains subject matter jurisdiction over a case, and failure to follow the preferred procedures with respect to the summons does not deprive the court of *489 subject matter jurisdiction." 363 N.C. at 346, 677 S.E.2d at 837. K.J.L. also stated that "the summons affects jurisdiction over the person rather than the subject matter, [therefore] ... a general appearance by a civil defendant `waive[s] any defect in or nonexistence of a summons.'" (quoting Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 593 (1955), adding emphasis and omitting citations). 363 N.C. at 347, 677 S.E.2d at 837.

K.J.L. also disavowed interpreting the following language in J.T., "`where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action[,]'" J.T. at 4, 672 S.E.2d at 18 (quoting In re Poole, 151 N.C.App. 472, 475, 568 S.E.2d 200, 202 (2002) (Timmons-Goodson, J., dissenting) (citations omitted), rev'd per curiam for reasons stated in dissenting opinion, 357 N.C. 151, 579 S.E.2d 248 (2003)), as "mean[ing] the failure to issue a summons defeats subject matter jurisdiction." K.J.L., 363 N.C. at 347, 677 S.E.2d at 838. K.J.L.

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Cite This Page — Counsel Stack

Bluebook (online)
681 S.E.2d 485, 199 N.C. App. 182, 2009 N.C. App. LEXIS 1374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jdl-ncctapp-2009.