In re K.J.L.

670 S.E.2d 269, 194 N.C. App. 386

Opinions

STROUD, Judge.

I. Background

K.J.L., the minor child, was born on 18 July 2005. On 28 March 2006, the Davidson County Department of Social Services ("DSS") filed a petition alleging that K.J.L. was a neglected and dependent juvenile. Summonses naming the father and mother ("respondent") as respondents pursuant to the neglect and dependency petition were *270filed on 29 March 2006. The father and respondent were served with the petition and respective summonses on 30 March 2006. However, neither the summons to the respondent nor to the father was signed or dated by the clerk of court's office. On 8 September 2006, the district court adjudicated K.J.L. a neglected juvenile based on a stipulation between the parties.

On 12 April 2007, DSS filed a petition for termination of the parental rights ("TPR") of respondent and the juveniles father. On the same day, a summons regarding the TPR proceeding was issued to both parents and to the guardian ad litem for respondent, but no TPR summons was issued to the juvenile as required by N.C. Gen.Stat. § 7B-1106(a)(5). The TPR petition and summons were served on respondent on 12 April 2007. The guardian ad litem for the respondent accepted service of the TPR petition and summons on 12 July 2007. The record contains no indication that the TPR summons was ever served upon the juvenile or a guardian ad litem for the juvenile. On or about 15 January 2008, the trial court terminated the parental rights of both father and respondent. Respondent appeals.

II. Jurisdiction

The threshold issue for this Court to consider on appeal is whether the trial court acquired jurisdiction of the subject matter of this juvenile action without the proper issuance of summonses. We hold that it did not.

Petitioner cites In re Howell, 161 N.C.App. 650, 589 S.E.2d 157 (2003), to contend that any jurisdictional deficiencies arising from the failure to issue summonses in either the abuse and neglect proceeding or the termination proceeding were strictly a matter of personal jurisdiction which were cured by waiver when respondent appeared and fully participated at the TPR hearing. Respondent cites In re Mitchell, 126 N.C.App. 432, 485 S.E.2d 623 (1997), to contend that the trial court did not acquire subject matter jurisdiction over the underlying juvenile file, which gave custody to the petitioner and adjudicated the minor child as neglected, because the civil summons in the neglect and dependency proceeding was not issued by the clerk of court. The distinction between the two types of jurisdiction is important sub judice, because as Howell correctly stated, defects in personal jurisdiction may be cured by waiver, 161 N.C.App. at 655-56, 589 S.E.2d at 160, but "[s]ubject matter jurisdiction cannot be conferred upon a court by ... waiver...." In re T.B., 177 N.C.App. 790, 791, 629 S.E.2d 895, 896 (2006) (citation and quotation marks omitted).

A. Summons in a Neglect and Dependency Proceeding

A juvenile action, including a proceeding in which a juvenile is alleged to be neglected, is commenced by the filing of a petition. N.C. Gen.Stat. § 7B-405 (2007). "Immediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to the parent ... requiring [him] to appear for a hearing at the time and place stated in the summons." N.C. Gen.Stat. § 7B-406(a) (2007) (emphasis added); see also N.C. Gen.Stat. § 1A-1, Rule 4(a) ("A summons is issued when, after being filled out and dated, it is signed by the officer having authority to do so."). Rule 4 of the Rules of Civil Procedure further provides: "Upon the filing of the complaint, summons shall be issued forthwith, and in any event within five days."¹ N.C. Gen.Stat. § 1A-1, Rule 4(a). The comment to Rule 4(a) makes clear that "[t]he five-day period was inserted to mark the outer limits of tolerance in respect to delay in issuing the summons." N.C. Gen.Stat. § 1A-1, Rule 4(a) cmt.

"Where a complaint has been filed and a proper summons does not issue within the five days allowed under the rule, the action is deemed never to have commenced." County of Wayne ex rel. Williams v. Whitley, 72 N.C.App. 155, 157, 323 S.E.2d 458, 461 (1984) (citation omitted and emphasis added); see also Huggins v. Hallmark Enterprises, Inc., *27184 N.C.App. 15, 18, 351 S.E.2d 779, 781 (1987) ("The record shows that the plaintiff had a summons issued on 17 September 1982, the same day the complaint was filed. Thus, the action did in fact commence."). It follows that where an action is deemed never to have commenced, "a trial court necessarily lacks subject matter jurisdiction." In re A.B.D., 173 N.C.App. 77, 86, 617 S.E.2d 707, 713 (2005); In re Mitchell, 126 N.C.App. 432, 433, 485 S.E.2d 623, 624 (1997) ("Where no summons is issued [in a juvenile action] the court acquires jurisdiction over neither the persons nor the subject matter of the action." (Emphasis added.)).

In the case cited by respondent, Howell, the respondent mother contended that "no summons was issued in the petition to terminate her parental rights and she was not served with the petition to terminate parental rights." 161 N.C.App. at 655, 589 S.E.2d at 160. Howell addressed the two issues raised by the respondent mother together, stating that they were "similar." Id. Howell inquired only into the trial court's jurisdiction over the person of the defendant and determined that the respondent mother had waived the defense of lack of personal jurisdiction by filing an answer without raising the defense and by making a general appearance. Id. at 656, 589 S.E.2d at 160.

However, Howell did not inquire into the jurisdiction of the trial court over the subject matter of the action, which cannot be waived. See T.B., 177 N.C.App. at 791, 629 S.E.2d at 896. While failure to serve a properly issued summons is a matter of personal jurisdiction, A.B.D., 173 N.C.App. at 83-84, 617 S.E.2d at 712, failure to issue a summons is a matter of subject matter jurisdiction, Mitchell, 126 N.C.App. at 433, 485 S.E.2d at 624; County of Wayne, 72 N.C.App. at 157, 323 S.E.2d at 461; see also A.B.D., 173 N.C.App. at 86, 617 S.E.2d at 713. Therefore we believe Howell was controlled by Mitchell and Wayne County and that the Howell court should have also inquired into the trial court's subject matter jurisdiction. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").

We therefore conclude that the case sub judice is controlled by Mitchell rather than by Howell and that we must inquire into the trial court's subject matter jurisdiction. The purported summonses to the parents in the neglect and dependency proceedings sub judice were not signed and dated by the clerk of court, or a deputy or assistant clerk of court. When a summons is not signed by one of those individuals it has not been legally issued. N.C. Gen.Stat. § 7B-406(a); see also N.C. Gen.Stat. § 1A-1, Rule 4(b). Without a legally issued summons, the trial court did not have jurisdiction over the subject matter of the neglect and dependency proceeding.² Mitchell, 126 N.C.App. at 433, 485 S.E.2d at 624. Because we conclude that the trial court lacked subject matter jurisdiction, we accordingly vacate the order of the trial court adjudicating the juvenile as neglected. Vacating the adjudication order also requires that we vacate the termination order, because the adjudication order was essential to the trial court's subject matter jurisdiction in the proceeding to terminate respondent's parental rights. N.C. Gen.Stat. § 7B-1110(a) (2007) ("After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest."); In re C.W., 182 N.C.App. 214, 218, 641 S.E.2d 725, 729 (2007) ("If the court finds at least one ground [for termination] to exist, then the proceeding continues to disposition phase.").

*272B. Summons to Juvenile in a Termination Proceeding

Even if the trial court had subject matter jurisdiction over the neglect and dependency action, as the dissent would hold, the trial court still did not have subject matter jurisdiction over the action for termination of parental rights. N.C. Gen.Stat. § 1106(a)(5) requires that a summons be issued to the juvenile in actions to terminate parental rights. We recognize that there is a split of authority in prior cases from this court, as some hold that a summons must be issued to the juvenile for the court to have subject matter jurisdiction, see In re C.T. & R.S., 182 N.C.App. 472, 643 S.E.2d 23 (2007); In re K.A.D., 187 N.C.App. 502, 653 S.E.2d 427 (2007); see also In re N.C.H., ___ N.C.App. ___, ___, 665 S.E.2d 812, 815-17 (2008) (Stroud, J., dissenting) (discussing and attempting to reconcile some of this Court's prior decisions regarding the issuance of a summons to the juvenile), while others hold that as long as a summons is served upon or accepted by the guardian ad litem for the juvenile, the court does have subject matter jurisdiction. N.C.H., ___ N.C.App. at ___, 665 S.E.2d at 813; In re S.D.J., ___ N.C.App. ___, 665 S.E.2d 818. Even if we were to accept as settled law the proposition that service on the guardian ad litem would cure the failure to issue a summons to the juvenile, no case has held that the trial court has subject matter jurisdiction in a termination of parental rights case where, as here, no summons was issued to the juvenile and no summons was served upon or accepted by the guardian ad litem for the juvenile. Accordingly, even if respondent could have waived any objection to the jurisdictional defect caused by the failure of the clerk of court, an assistant clerk or a deputy clerk to sign the neglect and dependency summonses, we conclude that the trial court did not have subject matter jurisdiction to terminate respondent's parental rights.

III. Conclusion

For the foregoing reasons, we vacate the order terminating respondent's parental rights.

VACATED.

Judge McGEE concurs.

Judge HUNTER dissents in a separate opinion.

Footnotes

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N.C. Gen.Stat. § 7B-406(a) does not state a specific time for issuance of the summons but only that it shall be issued "[i]mmediately after a petition has been filed[.]" If there is any substantive difference between Section 7B-406(a) and Rule 4(a), it is not relevant in the case sub judice, as no summons was ever issued at any time after the filing of the petition.

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This case can also be distinguished from those in which a summons was issued, but not served for some extended period of time. A summons, once issued, dies a relatively slow death, and its life can be extended repeatedly. N.C. Gen.Stat. § 1A-1, Rule 4(e); see also Bryson v. Cort, ___ N.C.App. ___, ___, 668 S.E.2d 84, 89 (2008) (holding that the action "commenced" under Rule 4 on the date of an alias and pluries summons issued after the previous summons had expired, not on the date of filing the complaint approximately 16 months earlier). However, in this case, the summons was never born. DSS could have had summonses issued at any point in time, in which case the action would have been deemed to have commenced on the date of the issuance of the summons, but this was not done. In re D.B., 186 N.C.App. 556, 559-60, 652 S.E.2d 56, 58-59 (2007), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008).