Appeal by respondent from order entered 8 February 2007 by
Judge David B. Brantley in District Court, Wayne County. Heard in
the Court of Appeals 5 November 2007.
Arnold O. Jones, II, for petitioners-appellees.
Betsy J. Wolfenden, for respondent-appellant.
WYNN, Judge.
“Failure to issue a summons deprives the trial court of
subject matter jurisdiction.”
(See footnote 1)
In this case, Respondent-father
argues that the trial court lacked subject matter jurisdiction over
the termination of parental rights proceeding where no summons was
issued to the juvenile. Because no summons was issued to the
juvenile as required by N.C. Gen. Stat. § 7B-1106(a) (2005), we
must vacate the order terminating Respondent-father's parental
rights.
K.A.D., the juvenile, was born on 12 June 2003. Shortly after
birth, the Wayne County Department of Social Services (“DSS”) took
K.A.D. into protective custody. On 24 June 2003, DSS filed apetition alleging that K.A.D. was a neglected and dependent
juvenile. K.A.D. was subsequently placed with Petitioners,
K.A.D.'s paternal grandfather and paternal step-grandmother. On 30
September 2003, the trial court dismissed the petition and returned
K.A.D. to the parents.
On 30 June 2004, Petitioners and Respondent-father filed a
complaint seeking custody against K.A.D.'s mother. On 1 July 2004,
the court entered an order granting exclusive emergency custody of
K.A.D. to Petitioners and Respondent-father, with Petitioners
having primary physical custody. On 12 July 2004, the trial court
held a temporary custody hearing. Respondent-father indicated that
he had reconciled with the child's mother, but was scheduled to
leave for military duty. The trial court granted exclusive
temporary custody of the child to Petitioners.
On 18 November 2004, Respondent-father voluntarily dismissed
his complaint against the child's mother. On 2 December 2004,
Petitioners filed a motion in the cause alleging that their claims
previously raised against the child's mother should also apply
against Respondent-father. On 18 February 2005, Petitioners were
granted sole custody of K.A.D.
On 25 July 2006, Petitioners filed a petition to terminate the
parental rights of Respondent-father and K.A.D.'s mother. On the
same day, Petitioners issued a summons to Respondent-father and
K.A.D.'s mother. On 8 September 2006, the court appointed Delaina
Boyd as guardian ad litem for K.A.D. On 8 February 2007, the trial
court terminated the parental rights of Respondent-father and themother. Respondent-father appeals.
The sole argument raised by Respondent-father on appeal is
that the trial court lacked subject matter jurisdiction over the
termination of parental rights proceeding. Respondent-father cites
Petitioners' failure to issue a summons to the juvenile, pursuant
to N.C. Gen. Stat. §7B-1106(a)(5), as the basis for his argument.
We must agree.
In reviewing a question of subject matter jurisdiction, our
standard of review is
de novo.
Raleigh Rescue Mission, Inc. v. Bd.
of Adjust. of Raleigh, 153 N.C. App. 737, 740, 571 S.E.2d 588, 590
(2002)
(defining
de novo as “consider[ing] the question anew, as if
not previously considered or decided.”). Issues of subject matter
jurisdiction may be raised for the first time on appeal.
See N.C.
R. App. P. 10(a) (2005) (stating that “any party to the appeal may
present for review . . . whether the court had jurisdiction of the
subject matter”).
Respondent-father argues that Petitioners failed to issue a
summons to K.A.D. as required by N.C. Gen. Stat. §7B-1106(a)(5).
Section 7B-1106(a) provides in pertinent part:
(a) Except as provided in G.S. 7B-1105, upon
the filing of the petition, the court shall
cause a summons to be issued. The summons
shall be directed to the following persons or
agency, not otherwise a party petitioner, who
shall be named as respondents:
(1) The parents of the juvenile;
(2) Any person who has been
judicially appointed as
guardian of the person of the
juvenile;
(3) The custodian of the juvenile
appointed by a court of
competent jurisdiction;
(4) Any county department of social
services or licensed
child-placing agency to whom a
juvenile has been released by
one parent pursuant to Part 7
of Article 3 of Chapter 48 of
the General Statutes or any
county department of social
services to whom placement
responsibility for the child
has been given by a court of
competent jurisdiction; and
(5)
The juvenile.
N.C. Gen. Stat. § 7B-1106(a) (emphasis added).
It is well settled that the “summons, not the complaint,
constitutes the exercise of the power of the State to bring the
defendant before the court.”
Childress v. Forsyth Cty. Hosp.
Auth., Inc., 70 N.C. App. 281, 285, 319 S.E.2d 329, 332 (1984)
(citation omitted),
disc. review denied, 312 N.C. 796, 325 S.E.2d
484 (1985). “The purpose of a summons is to give notice to a
person to appear at a certain place and time to answer a complaint
against him.”
Latham v. Cherry, 111 N.C. App. 871, 874, 433 S.E.2d
478, 481 (1993),
cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994).
“In order for a summons to serve as proper notification, it must be
issued and served in the manner prescribed by statute.”
Id.
Here, Petitioners issued a summons designating Respondent-
father and K.A.D.'s mother as respondents on 26 July 2006.
Accordingly, a summons was issued to Respondent-father and the
juvenile's mother. However, K.A.D. was not listed as a respondent
in the summons, as required by N.C. Gen. Stat. § 7B-1106(a), and nosummons was issued to K.A.D.
This Court has recently held that the failure to issue a
summons to the juvenile deprives the trial court of subject matter
jurisdiction.
In re C.T. & R.S., 182 N.C. App. 472, 475, 643
S.E.2d 23, 25 (2007). When a summons is not properly issued, an
order terminating parental rights must be vacated for lack of
subject matter jurisdiction.
Id. Accordingly, because the trial
court lacked subject matter jurisdiction, we must vacate the order
terminating Respondent-father's parental rights.
Vacated.
Judges ELMORE and STROUD concur.
Footnote: 1