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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: D.R.S., W.J.S., Minor Children
Filed: 2 January 2007
1. Termination of Parental Rights_personal service at permanency hearing_summons
The trial court had subject matter jurisdiction to terminate parental rights where the action
began with a petition alleging neglect and dependency; the motion for termination was filed more
than two years later, so that petitioner was required to serve the motion pursuant to N.C.G.S. §
1A-1, Rule 4; and the motion for termination and the notice were personally served on
respondent at a permanency planning hearing. A summons is not required.
2. Appeal and Error_preservation of issues--service of process_not raised before
An issue regarding service of process in a termination of parental rights hearing was
waived where there was no objection at trial.
3. Appeal and Error_preservation of issues--defenses_not raised below_waiver
Defenses of collateral estoppel and res judicata were waived in a termination of parental
rights case where they were raised for the first time on appeal.
Appeal by respondent-mother from judgment entered 9 August
2005 by Judge C. Thomas Edwards in Caldwell County District Court.
Heard in the Court of Appeals 2 November 2006.
Caldwell County Department of Social Services, by Lauren
Vaughan, for petitioner-appellee.
Michael E. Casterline, for respondent-mother.
Michael D. Correll, for respondent-father.
Womble Carlyle Sandridge and Rice, by G. Wriston Marshburn,
Jr., for Guardian ad Litem.
Respondent, the mother of the minor children W.J.S. and D.R.S.
appeals from an order terminating her parental rights in the
children. We affirm. On 24 March 2000 the petitioner, Caldwell County Department of
Social Services (DSS), filed petitions alleging that W.J.S.,
D.R.S., and another juvenile were neglected and dependent. On 26
April 2000 the children were adjudicated dependent, and placed in
the custody of petitioner. On 17 June 2002 petitioner filed a
petition to terminate respondent's parental rights in the minor
children. After a hearing the trial court on 12 May 2004 entered
an order finding that grounds existed for termination of parental
rights, but that termination was not in the best interests of the
children. On 14 December 2004 petitioner filed a motion in the
cause seeking termination of parental rights. The petitioner
personally served the motion and accompanying notice on respondent
at a permanency planning hearing. Following a hearing on the
termination of parental rights motion, the trial court on 9 August
2005 entered an order on termination. From this order respondent
 Respondent argues that petitioner failed to follow the
requirements of N.C. Gen. Stat. § 7B-1102 and § 7B-1106.1 and that,
as a result, the trial court lacked subject matter jurisdiction
over the termination of parental rights proceeding. We disagree.
At issue is the trial court's subject matter jurisdiction.
Jurisdiction is '[t]he legal power and authority of a court to
make a decision that binds the parties to any matter properly
brought before it.' In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d
787, __ (2006) (quoting Black's Law Dictionary 856 (7th ed. 1999)). 'Subject matter jurisdiction cannot be conferred upon a court by
consent, waiver or estoppel, and therefore failure to . . . object
to the jurisdiction is immaterial.' In re T.R.P., id. (quoting In
re Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967)).
Moreover, a court's inherent authority does not allow it to act
where it would otherwise lack jurisdiction. In re McKinney, 158
N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003).
Under N.C.G.S. § 7B-405 [(2005)], an 'action is commenced by
the filing of a petition in the clerk's office[.]' In re P.L.P.,
173 N.C. App. 1, 6, 618 S.E.2d 241, 245 (2005). In the instant
case, the action was commenced in April 2000 when DSS filed a
petition alleging neglect and dependency. The motion for
termination of parental rights was not filed until more than two
years after the original action in the case, bringing into play
certain provisions of N.C. Gen. Stat. § 7B-1102 (2005):
(a) When the district court is exercising
jurisdiction over a juvenile . . . [an] agency
specified in G.S. 7B-1103(a) may file in that
proceeding a motion for termination of the
(b) A motion pursuant to subsection (a) of this
section and the notice required by G.S.
7B-1106.1 shall be served in accordance with
G.S. 1A-1, Rule 5(b), except:
(1) Service must be in accordance with G.S.
1A-1, Rule 4, if . . . c. Two years has
elapsed since the date of the original action.
N.C. Gen. Stat. § 7B-1102(a)(b)(1)c (2005). Thus, petitioner was
required to serve the motion for termination of parental rights and
the notice required by N.C. Gen. Stat. § 7B-1106 pursuant to theprocedures set out in N.C. G. S. § 1A-1, Rule 4 (2005). In this
regard, Rule 4 provides in pertinent part that:
(c) . . . Personal service . . . as prescribed by
Rule 4(j)(1) a and b must be made [after] . .
. issuance of summons. When a summons has
been served . . . it shall be returned
immediately to the clerk who issued it, with
notation thereon of its service.
(j) . . . In any action commenced in a court of
this State . . . the manner of service of
process within or without the State shall be
(1) Natural Person. . . . [U]pon a natural person
by one of the following:
(a) By delivering a copy of the summons and of the
complaint to the natural person or by leaving
copies thereof at the defendant's dwelling
house or usual place of abode with some person
of suitable age and discretion then residing
In the instant case, it is uncontradicted that both the motion
for termination of parental rights and the notice were personally
served on respondent at a permanency planning hearing. Under G. S.
§ 1A-1, Rule 4(j)(1)(a), personal service is an acceptable means of
Further, respondent does not argue that the content of either
the motion or notice was inadequate. Rather, she argues that
petitioner was required to issue a summons instead of a notice, and
that the failure to issue a summons stripped the court of
jurisdiction. However, G.S. § 7B-1102(b) merely directs the
petitioner to serve the motion and notice pursuant to Rule 4, and
nowhere suggests that petitioner must issue a summons instead of orin addition to these documents. We conclude that the statute does
not require that a summons be issued.
 Respondent also asserts that, inasmuch as petitioner
failed to issue a summons, it necessarily failed to properly
document the service of the nonexistent summons, in that petitioner
did not file a return of service with the clerk. Even assuming,
arguendo, that respondent thereby preserved the issue of the return
of service of the motion and notice, respondent waived the issue of
service of process by failing to object at the trial level. In
the instant case, respondents made no objection at trial regarding
any lack of notice of the proceeding. Furthermore, they were
represented by counsel and participated in the termination of
parental rights hearing. Respondents have waived their right to
now object to the adequacy of notice. This assignment of error is
without merit. In re B.M., M.M., An.M, & Al.M., 168 N.C. App.
350, 356, 607 S.E.2d 698, 702 (2005). This assignment of error is
 Respondent argues next that the proceedings for
termination of parental rights were barred by principles of
collateral estoppel and res judicata
. However, respondent raises
the defenses of collateral estoppel and res judicata
for the first
time on appeal, and thus failed to properly preserve the issue.
N.C. Gen. Stat. § 1A-1, Rule 8(c) (2005) provides in pertinent
part that [i]n pleading to a preceding pleading, a party shall set
forth affirmatively . . . estoppel, . . . res judicata
, . . . andany other matter constituting an avoidance or affirmative defense.
Rule 8(c). Failure to plead an affirmative defense ordinarily
results in waiver of the defense. . . . [Respondent] neither pled
nor tried the case on this theory[.] . . . Accordingly, she cannot
now present it on appeal. Ward v. Beaton
, 141 N.C. App. 44, 49,
539 S.E.2d 30, 34 (2000) (citing Nationwide Mut. Insur. Co. v.
, 67 N.C. App. 1, 6, 312 S.E.2d 656, 660 (1984)); see also
N.C.R. App. P. 10(b)(1) (to preserve a question for appellate
review, a party must have presented to the trial court a timely
request, objection or motion, stating the specific grounds for the
ruling the party desired the court to make . . . [and] obtain[ed]
a ruling upon the party's request, objection or motion.). This
assignment of error is overruled.
For the reasons discussed above, we conclude that the order
for termination of parental rights should be
Judges GEER and JACKSON concur.
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