IN THE MATTER OF: J.L.P., Gates County
Juvenile No. 05 J 17
Attorney General Roy Cooper, by Assistant Attorney General
Ebony J. Pittman, for the State.
Russell J. Hollers, III for Respondent-Appellant.
Juvenile J.L.P. was adjudicated delinquent for assault on a
person under twelve years of age and assault with a deadly weapon,
upon evidence that he shot an eleven-year-old boy with a BB gun on
5 July 2005, and threatened a second boy with a knife on 22 August
2005. The district court entered a Level I disposition and placed
Juvenile on probation.
On appeal, Juvenile argues the district court lacked subject matter jurisdiction to hear the delinquency petition charging him with assault with a deadly weapon because no summons was issued. Because we find Juvenile waived objection to the sufficiency of process under N.C. Gen. Stat. § 1A-1, Rule 12(h), this claim is without merit.
Initially, we note that the Juvenile Code vests the districtcourt with "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be delinquent." N.C. Gen. Stat. § 7B-1601(a) (2005); see also N.C. Gen. Stat. § 7B-1501(4) (2005) (defining court as "[t]he district court division of the General Court of Justice"). Moreover, "this Court has held that delinquency proceedings under the Juvenile Code are governed by the Rules of Civil Procedure." In re: D.S.B., __ N.C. App. __, 634 S.E.2d 633, 634 (2006) (citing In re Bullabough, 89 N.C. App. 171, 179, 365 S.E.2d 642, 646 (1988)).
Under N.C. Gen. Stat. § 1A-1, Rule 12(h)(1) (2005), "[a] defense of lack of jurisdiction over the person, . . . insufficiency of process, or insufficiency of service of process is waived" if it is not raised in a timely manner in the trial court. "Our Supreme Court has held that a general appearance of a party in an action gives the court jurisdiction over the appearing party even though no service of a summons is shown." In re Howell, 161 N.C. App. 650, 655, 589 S.E.2d 157, 160 (2003) (citing Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 358-59 (1956)). In Howell, the respondent in a termination of parental rights proceeding argued on appeal that "the trial court had no jurisdiction over her or the termination hearing[,]" because no summons had been issued and she had not been served with the termination petition. Id. at 655, 589 S.E.2d at 160 (emphasis added). We held that the respondent's claims were waived, inasmuch as she made a general appearance at the district court proceeding without objecting or otherwise raising the issue of lack of process: [The] [r]espondent failed to object, by motion or otherwise under Rule 12 of the North Carolina Rules of Civil Procedure, to either a lack of personal jurisdiction over her or insufficiency of process . . . . [The] [r]espondent made a general appearance at the adjudicatory hearing and at the dispositional hearing. [The] [r]espondent waived these issues as defenses.
Id. (emphasis added).
In his brief on appeal, Juvenile cites our decision in In re Mitchell, 126 N.C. App. 432, 434, 485 S.E.2d 623, 624 (1997), in which the district court was held to lack jurisdiction over a juvenile petition filed against the respondent parents for neglect. In Mitchell, the district court denied the respondents' motion to dismiss the petition for lack of issuance of a summons. Reversing the district court, we explained:
In a juvenile action, the petition is the pleading; the summons is the process. The issuance and service of process is the means by which the court obtains jurisdiction. Where no summons is issued the court acquires jurisdiction over neither the persons nor the subject matter of the action.
Id. at 433, 485 S.E.2d at 624 (citations omitted). "Because no summons ha[d] ever been issued," we concluded that "the court did not acquire jurisdiction, and [the] respondents' motion to dismiss [the neglect petition] should have been allowed." Id. at 434, 485 S.E.2d at 624.
We find Mitchell clearly distinguishable from both the case before us and from Howell, in that the respondents in Mitchell moved to dismiss the petition in district court based on the lack of a summons. Id. at 433, 485 S.E.2d at 623. Indeed, we noted inMitchell that the "respondents cannot be held to have voluntarily submitted to the jurisdiction of the court by their appearance at the initial hearing, since they timely raised the issue of insufficiency of process at that hearing by their oral motion to dismiss." Mitchell, 126 N.C. App. at 434, 485 S.E.2d at 624. In the present case, Juvenile made no such motion.
Juvenile and his parents were present at the delinquency hearing. Through counsel, Juvenile acknowledged his receipt of the delinquency petition and raised no objection to the lack of a summons. Pursuant to N.C.G.S. § 1A-1, Rule 12(h)(1), we hold that Juvenile waived the issue of the lack of process by his general appearance at, and participation in, the adjudicatory and dispositional hearings. See Howell, 161 N.C. App. at 655, 589 S.E.2d at 160. Thus, we overrule this assignment of error.
The record on appeal includes an additional assignment of error not addressed by Juvenile in his brief to this Court. We deem the assignment of error to be abandoned. N.C.R. App. P. 28(b)(6).
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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