Appeal by respondent father from order filed 21 January 1999
by Judge Edward A. Pone in Cumberland County District Court. Heard
in the Court of Appeals 23 April 2002.
Staff Attorneys John F. Campbell and David Kennedy for
petitioner-appellee Cumberland County Department of Social
Services.
Hatley & Stone, P.A., by Michael A. Stone, for respondent-
appellant Wesley Turner, Jr.
Deborah Koenig for guardian ad litem.
HUNTER, Judge.
Wesley Turner, Jr. (“respondent”) appeals an adjudication and
disposition order entered 21 January 1999 adjudicating his daughter
Shanta Shaw (“Shanta”) a neglected juvenile and awarding custody to
Thelma Mae Boney (“Ms. Boney”). We reverse and remand.
On 14 April 1998, the Cumberland County Department of Social
Services (“petitioner”) filed a petition alleging that Shanta was
an abused and neglected juvenile.
(See footnote 1)
The petition states that
respondent's last known address at the time was “6519 Acus Court,
Fayetteville, NC.” A summons was issued to and personally served(along with the petition) upon Shanta's mother. Although a summons
was issued in respondent's name, the trial court found that his
“whereabouts [were] unknown” and, pursuant to N.C. Gen. Stat. § 7B-
407 (2001), directed service be had on him “through publication.”
Before service by publication was attempted, the trial court
entered a temporary order on 22 May 1998 granting nonsecure custody
to Ms. Boney. Following service by publication in “The
Fayetteville Observer” on 6 June, 13 June, and 20 June 1998,
petitioner filed an “Affidavit of Service by Publication” in the
Cumberland County Clerk's office on 8 July 1998 stating that
respondent's “address, whereabouts, dwelling house or usual place
of abode . . . [was] unknown, and [could not] with due diligence be
ascertained” and that respondent “is a transient person with no
permanent residence.”
On 11 January 1999, the abuse and neglect petition was heard
before the trial court. At this time, the trial court found that
Shanta's mother and respondent had been properly served with
process. Shanta's mother was in court and represented by counsel.
Respondent was not in court and was not represented by counsel.
Shanta's mother stipulated to a finding of neglect, and, based upon
that stipulation (and without hearing any evidence), the trial
court, in an order entered 21 January 1999, adjudicated Shanta a
neglected juvenile and awarded custody of Shanta to Ms. Boney.
Petitioner voluntarily dismissed the abuse allegation.
On 8 February 2001, respondent appeared in court at a
permanency planning review hearing and orally challenged (1) thevalidity of his service by publication, and (2) the validity of the
adjudication of neglect on the grounds that respondent was not
present at the hearing. The trial court apparently treated
respondent's argument as tantamount to a motion to set aside the
adjudication and denied the motion. Respondent appeals.
On appeal, the issues are: (1) whether the service of process
upon respondent was proper; and (2) whether the trial court erred
by entering a neglect adjudication based upon the mother's
stipulation of neglect without conducting an evidentiary hearing.
I.
Service by publication is a permitted method of service of
process where a party “cannot with due diligence be served by
personal delivery, registered or certified mail, or . . . pursuant
to 26 U.S.C. § 7502(f)(2).” N.C. Gen. Stat. § 1A-1, Rule 4(j1)
(2001) (“Rule 4(j1)”). Rule 4(j1) requires that “[u]pon completion
of such service there shall be filed with the court an affidavit
showing . . . the circumstances warranting the use of service by
publication.”
Id.
In
County of Wayne ex rel. Williams v. Whitley, 72 N.C. App.
155, 323 S.E.2d 458 (1984)
, the plaintiff filed an affidavit
stating only that the defendant had been served by publication
according to the statute, but not setting forth any circumstances
warranting the use of service by publication as expressly required
by Rule 4(j1).
Id. at
157, 323 S.E.2d at 460. Thus, the Court
held that “the affidavit does not state the circumstances
warranting the use of service by publication as required by Rule 4. The affidavit does not allege any facts showing that the defendant
with due diligence could not be personally served.”
Id. at 160-61,
323 S.E.2d at 463. The
Whitley Court did not augment the
requirements under Rule 4(j1); rather, the Court simply held that
Rule 4(j1) requires more than the mere conclusory assertion that
service has been accomplished through publication.
Here, petitioner attempted to serve a summons and notice of
hearing upon respondent at his last known address in Fayetteville.
The summons was received by the Sheriff in Cumberland County on 18
April 1998 and was returned on 28 May 1998 with the Sheriff's
certification that respondent could not be found by a diligent
effort. Upon completion of service of process by publication,
petitioner filed an “Affidavit of Service by Publication” stating:
“That service by publication was necessary because: The address,
whereabouts, dwelling house or usual place of abode of the
Respondent is unknown, and cannot with due diligence be
ascertained; [and because t]he Respondent is a transient person
with no permanent residence.” The trial court found that all
parties to the action had been properly served. We hold that
petitioner satisfied Rule 4(j1) because, unlike the affidavit in
Whitley, the affidavit here sets forth “the circumstances
warranting the use of service by publication,” which is all that is
required by Rule 4(j1). We further note that respondent has not
included in the record or his brief any indication as to his
whereabouts during the time in question, or any argument as to how
petitioner could have located him using due diligence.
II.
In addition to challenging the service of process, respondent
challenges the trial court's authority to enter an adjudication of
neglect without an evidentiary hearing. Section 7B-802 of our
General Statutes requires an adjudicatory hearing to determine the
existence or nonexistence of the conditions alleged in a petition.
N.C. Gen. Stat. § 7B-802 (2001);
see Thrift v. Buncombe County DSS,
137 N.C. App. 559, 562, 528 S.E.2d 394, 396 (2000). That statute
further mandates that “[i]n the adjudicatory hearing, the court
shall protect the rights of the juvenile and the juvenile's parent
to assure due process of law.” N.C. Gen. Stat. § 7B-802. In an
adjudicatory hearing to determine abuse, neglect, or dependency,
the petitioner must prove the allegations “by clear and convincing
evidence.” N.C. Gen. Stat. § 7B-805 (2001).
An adjudication of abuse, neglect or dependency in the absence
of an adjudicatory hearing is permitted only in very limited
circumstances.
Nothing in this Article precludes the
court from entering a consent order or
judgment on a petition for abuse, neglect, or
dependency when all parties are present, the
juvenile is represented by counsel, and all
other parties are either represented by
counsel or have waived counsel, and sufficient
findings of fact are made by the court.
N.C. Gen. Stat. § 7B-902 (2001). Aside from a consent order or
judgment under these circumstances, “a default judgment or judgment
on the pleadings is inappropriate in a proceeding involving
termination of parental rights, [and] is equally inappropriate in
an adjudication of neglect.”
Thrift, 137 N.C. App. at 563, 528S.E.2d at 396 (noting that adjudication of neglect constitutes
grounds for terminating parental rights and is frequently the basis
for a termination proceeding). This Court in
Thrift explained why
an adjudicatory hearing is generally required in this context: “As
the link between a parent and child is a fundamental right worthy
of the highest degree of scrutiny, the trial court must fulfill all
procedural requirements in the course of its duty to determine
whether allegations of neglect are supported by clear and
convincing evidence.”
Id. (citation omitted).
In the absence of respondent's presence, the consent of
Shanta's mother to the adjudication of neglect in this case was
insufficient to dispense with the requirement of an adjudicatory
hearing. “According to the mandates of [N.C. Gen. Stat. § 7B-902],
all parties must be present in order for the trial court to enter
a consent judgment. In the case at bar, respondent was not present
and, as such, no valid consent judgment could be entered.”
Id. at
563, 528 S.E.2d at 397.
For the reasons stated herein, although we hold that service
of process was proper based on Rule 4(j1), we hold that the trial
court erred in finding the allegations of neglect contained in the
petition were proven by clear and convincing evidence. The
judgment of the trial court is therefore reversed and the matter is
remanded for an adjudicatory hearing.
Reversed and remanded.
Judge TIMMONS-GOODSON concurs.
Judge GREENE dissents in a separate opinion.
===============================
GREENE, Judge, dissenting.
As I disagree with the majority regarding the validity of
service of process by publication on respondent, I dissent. While
I do agree with the majority as to part II of its opinion, I do not
reach this issue in my analysis.
The pertinent issues in this case are whether: (I)
petitioner's 8 July 1998 affidavit is sufficient to support service
by publication on respondent; and if not, (II) the trial court has
the authority to enter a neglect adjudication when a summons has
not been served upon one of the parents of a juvenile alleged to be
neglected.
I
Service by publication is a permitted method of service of
process if the whereabouts of the party sought to be served are
unknown and that party “cannot with due diligence be served by
personal delivery, registered or certified mail, or . . . pursuant
to 26 U.S.C. § 7502(f)(2).” N.C.G.S. § 1A-1, Rule 4(j1) (2001).
Furthermore, upon completion of the newspaper publication, “there
shall be filed with the [trial] court an affidavit showing . . .
the circumstances warranting the use of service by publication, and
information, if any, regarding the location of the party served.”
(See footnote 2)
Id. Strictly construed,
see Sink v. Easter, 284 N.C. 555, 560, 202S.E.2d 138, 142 (1974) (service by publication statute must be
strictly construed), the statute requires the affidavit to “
set
forth the steps taken, although unsuccessful, to locate [the
respondent],” 1 G. Gray Wilson,
North Carolina Civil Procedure § 4-
22, at 69 (2d ed. 1995);
see County of Wayne ex rel. Williams v.
Whitley, 72 N.C. App. 155, 161, 323 S.E.2d 458, 463 (1984)
(affidavit must include “facts showing that the defendant with due
diligence could not be personally served”).
In this case, the 8 July 1998 post-publication affidavit filed
by petitioner asserts “service by publication was necessary”
because respondent's “address, whereabouts, dwelling house or usual
place of abode . . . [was] unknown, and [could not] with due
diligence be ascertained” and because he “[was] a transient person
with no permanent residence.” These assertions are nothing more
than ultimate facts; they do not reveal the steps taken by
petitioner to locate and personally serve respondent; and they are
insufficient as a matter of law to support service by publication
on respondent.
(See footnote 3)
II
Petitioner argues in the alternative that the orders entered
by the trial court are nonetheless valid because service on one
parent is sufficient to vest the trial court with the authority toproceed with the neglect adjudication and disposition of a
juvenile, and in this case, personal service was had on the mother.
For the reasons given in
In re Poole, --- N.C. App. ---, --- S.E.2d
---, COA01-871 (July 16, 2002), I disagree. Service of process on
the mother in this neglect proceeding, without service on
respondent, Shanta's father, is insufficient to vest authority in
the trial court to enter an adjudication of neglect or any
dispositional order based on that adjudication. Accordingly, the
21 January 1999 adjudication and disposition order and any
subsequent dispositional orders should be vacated as they relate to
Shanta.
Footnote: 1