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A termination of parental rights was vacated where there were questions of fundamental
fairness raised by issues concerning service and a hearing which lasted only twenty minutes at
which no counsel was present for the mother. Her arrival in the courtroom after the completion
of the hearing does not constitute a waiver of notice.
Buncombe County Department of Social Services, by
Danya
Ledford Vanhook, for petitioner-appellee.
Michael N. Tousey, for guardian ad litem Sharon Bares.
Thomas B. Kakassy, P.A., by Thomas B. Kakassy, for respondent-
mother.
WYNN, Judge.
“When the State moves to destroy weakened familial bonds, it
must provide the parents with fundamentally fair procedures,”
(See footnote 1)
which in North Carolina has been achieved in part through statutory
provisions that ensure a parent's right to counsel and right to
adequate notice of such proceedings.
(See footnote 2)
Here, we find that theproceedings below, culminating in the termination of Respondent-
mother's parental rights as to the minor child K.N., failed to
provide the procedures necessary to ensure fairness to the rights
of Respondent-mother. We, therefore, vacate the order of
termination.
On 28 December 2004, the Buncombe County Department of Social
Services (DSS) filed a petition alleging that the minor child,
K.N., was an abused and neglected child due to the negative effects
of Respondent-mother's substance abuse. DSS assumed custody of
K.N. by nonsecure custody order. On 18 March 2005, K.N. was
adjudicated an abused and neglected child.
On 18 October 2005, DSS
filed a petition
to terminate Respondent-mother's parental rights,
alleging Respondent-mother
had neglected K.N. pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1) (2005)
.
A hearing was held on the petition to terminate Respondent-
mother's parental rights on 26 May 2006.
At the call of the case,
Respondent-mother was not present, although a local lawyer who was
in the courtroom was allowed to withdraw as Respondent-mother's
attorney after telling the trial court that she had not heard from
or had any response from Respondent-mother. Before the proceedings
began, the DSS attorney stated his understanding that DSS had
completed service on Respondent-mother but that no answer had been
filed; the trial court also noted the lack of a responsive pleading
or communication from Respondent-mother in the file.
The hearing then continued, consisting of the testimony of a
single witness, the DSS case worker assigned to monitor K.N. Thetrial court
concluded that grounds existed pursuant to
N.C. Gen.
Stat. §
1111(a)(1) to terminate Respondent-mother's parental
rights, and that such termination
was in K.N.'s
best interest. A
few moments after the conclusion of the approximately twenty-minute
hearing, Respondent-mother entered the courtroom and learned that
her parental rights had been terminated. She asked if she could
appeal anything that day, and the trial court suggested she seek
out the local lawyer who had earlier been allowed to withdraw from
the hearing.
After Respondent-mother returned to the courtroom with the
lawyer, the trial court clarified that the lawyer had not, in fact,
been appointed as Respondent-mother's counsel for the termination
hearing but had instead served only as her counsel in the
underlying abuse and neglect adjudication proceeding. The trial
court then reappointed the lawyer to serve as Respondent-mother's
counsel and advise her as to the appeals process. He also asked
Respondent-mother to provide the court with a valid address so she
could receive a copy of the judgment when it was entered.
The judgment terminating Respondent-mother's parental rights
as to K.N. was entered on 23 June 2006. She now appeals that
judgment, arguing (I) the trial court erred in relieving
Respondent-mother's attorney when the case was called for trial and
then in conducting the trial when her attorney had just been
discharged; (II) the trial court erred in conducting the hearing
when Respondent-mother had not been properly noticed; and, (III)
the trial court's judgment is void for lack of jurisdiction. Because we find the issue of notice to be determinative of the
outcome in this case, we address only the second of these
arguments, namely, that the record fails to show that Respondent-
mother was properly noticed.
North Carolina General Statute § 7B-1106 provides that, “upon
the filing of the [termination] petition, the court shall cause a
summons to be issued. . . . [which] shall be directed to . . .
[t]he parents of the juvenile . . . as provided under the
procedures established by G.S. 1A-1, Rule 4(j).” That Rule
outlines the proper procedures for service of process on
individuals, including by delivering a copy of the summons to the
individual herself, by leaving a copy with “some person of suitable
age and discretion” residing at the individual's home, or by
mailing a copy to the individual, using signature confirmation
provided by the United States Postal Service. N.C. Gen. Stat. §
1A-1, Rule 4(j)(1) (2005). Proof of service is then shown by an
affidavit filed by the serving party, as well as the return or
delivery receipt or signature confirmation, which “raises a
presumption that the person who received the mail . . . was an
agent of the addressee . . . or was a person of suitable age and
discretion residing in the addressee's dwelling house.” N.C. Gen.
Stat. § 1A-1, Rule 4(j2) (2005).
Nevertheless, regardless of these technical requirements, a
parent may waive the defenses of lack of personal jurisdiction or
insufficiency of service of process by making a general appearance
or by filing an answer, response, or motion without raising thedefense. N.C. Gen. Stat. § 1A-1, Rule 12 (2005); In re B.M., 168
N.C. App. 350, 355, 607 S.E.2d 698, 702 (2005) (“[A] party who is
entitled to notice of a hearing waives that notice by attending the
hearing of the motion and participating in it without objecting to
lack thereof.”); In re J.W.J., 165 N.C. App. 696, 698-99, 599
S.E.2d 101, 102-03 (2004).
Here, Respondent-mother did not participate in this case in
any meaningful way; indeed, her arrival at the courtroom after the
conclusion of the hearing does not constitute a waiver of notice.
Because the hearing had been completed, her failure to object to
lack of notice or to raise the issue at that time has no bearing on
the substance of her claims. We therefore turn to the question of
whether Respondent-mother received proper notice of the termination
proceedings.
The record before us shows that DSS mailed a summons to
Respondent-mother at a post office box in Leicester, North
Carolina, on 18 October 2005, notifying her about the petition to
terminate her parental rights. However, the summons contains no
information as to how DSS ensured that Respondent-mother received
it. The record contains an additional summons, dated 27 October
2005, with a different address for Respondent-mother in Marshall,
North Carolina, but again, there is no indication of how service
was made. According to the trial court and DSS, Respondent-mother
filed no answer or responsive pleading to either summons about the
petition.
On 3 November 2005,
DSS filed an affidavit of service,swearing that a copy of the summons and petition had been sent
certified mail, return receipt requested, to Respondent-mother at
the same Marshall, North Carolina address on 1 November 2005. A
copy of the certified mail receipt was attached, signed by an
individual named Hershel Jenkins. This name appears nowhere else
in the record. DSS also provided certificates of service of notice
of the first termination hearing, scheduled for 22 February 2006
and then postponed, and the one at issue in this case, scheduled
for “the trial term of May 22nd, 2006.” Both of these contained the
Marshall, North Carolina address for Respondent-mother;
additionally, both state that service was made by mailing a copy of
the summons to “the attorney or attorneys for said parties.” The
specific date and time of the 26 May 2006 hearing was not included
in that notice, but the DSS social worker testified at the hearing
that she had spoken to Respondent-mother's brother and left a
message with him for Respondent-mother as to when the hearing was
scheduled.
In its brief to this Court, DSS contends that Respondent-
mother's appearance at the hearing, albeit after its conclusion,
shows that she had notice of its time and date and was simply
tardy. We are not persuaded. Respondent-mother arrived after the
conclusion of the hearing; the length of time after its conclusion
is immaterial. Although true that the affidavit of service and
signed return receipt of 1 November 2005 “raises a presumption that
the person who received the mail . . . was an agent of the
addressee . . . or was a person of suitable age and discretionresiding in the addressee's dwelling house,” N.C. Gen. Stat. § 1A-
1, Rule 4(j2), we point in particular to the final phrase of this
provision, namely, “residing in the addressee's dwelling house.”
There is no evidence that the Marshall address where Hershel
Jenkins signed for the summons was indeed Respondent-mother's
dwelling house or that she had ever responded to any mail sent
there. Indeed, when asked to provide her address to the trial
court, she gave an address entirely different than that which DSS
had been using for service of process. Moreover, according to the
record, the two notices of the scheduled termination hearings were
purportedly mailed to Respondent-mother's attorney, when the trial
court stated on the record that, as of the hearing date, no
attorney had in fact been appointed for her for the termination
proceedings.
This Court has previously held that
[A] defendant who seeks to rebut the
presumption of regular service generally must
present evidence that service of process
failed to accomplish its goal of providing
defendant with notice of the suit, rather than
simply questioning the identity, role, or
authority of the person who signed for
delivery of the summons.
Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 493, 586 S.E.2d
791, 797 (2003).
We find that the discrepancy between the address
used by DSS and that given by Respondent-mother to the trial court,
as well as
Respondent-mother's failure to appear or respond in any
way in the termination proceedings, serves to rebut the presumption
of valid service, which is further weakened by the lack of
information or evidence as to the identity of Hershel Jenkins. Cf.In Re Estate of Cox,
36 N.C. App. 582, 585, 244 S.E.2d 733, 735
(1978) (finding valid service when the mail was addressed to the
defendant “in care of” the individual who signed the return
receipt).
We note too the unique procedural posture of this case, in
light of Respondent-mother's appearance in the courtroom after the
conclusion of the hearing. Although this Court has previously
found that a return receipt and a respondent's filed petition
showed sufficient compliance to raise a rebuttable presumption of
valid service, see In re Williams, 149 N.C. App. 951, 959, 563
S.E.2d 202, 206 (2002), nothing was filed by Respondent-mother in
this case. Moreover, we held in Williams that the respondent had
failed to rebut the presumption because he had not shown that he
never received the summons and complaint. Here, however, because
the hearing had already concluded by the time Respondent-mother
arrived, she had no opportunity to present evidence or argument
that she had not received the summons or petition. She has done so
in her appeal, however, which was her first opportunity to argue
lack of service of process.
We are reminded of the United States Supreme Court's caution
that
The fundamental liberty interest of natural
parents in the care, custody, and management
of their child does not evaporate simply
because they have not been model parents or
have lost temporary custody of their child to
the State. . . . If anything, persons faced
with forced dissolution of their parental
rights have a more critical need for
procedural protections than do those resisting
state intervention into ongoing familyaffairs. When the State moves to destroy
weakened familial bonds, it must provide the
parents with fundamentally fair procedures.
Santosky v. Kramer, 455 U.S. 745, 753-54, 71 L. Ed. 2d 599, 606
(1982)
; see also In re Murphy, 105 N.C. App. 651, 653, 414 S.E.2d
396, 397-98, aff'd per curiam, 332 N.C. 663, 422 S.E.2d 577 (1992).
In sum, we hold that the issues as to valid service, as well
as a hearing lasting only twenty minutes with no counsel present
for Respondent-mother, raise questions as to the fundamental
fairness of the procedures that led to the termination of
Respondent-mother's parental rights. Accordingly, we vacate the
order of termination.
Vacated.
Chief Judge MARTIN and Judge McGEE concur.
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