In Re: K.Q.N. & D.N. Mecklenburg County
Nos. 05-JT-199, 200
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., and Office of the Guardian ad Litem, by Jeannie Brown,
for petitioner-appellee, Mecklenburg County Youth and Family
Services.
Katharine Chester for respondent-appellant.
CALABRIA, Judge.
L.C. (“respondent-mother”) appeals from an order of the trial
court terminating her parental rights to K.Q.N. and D.N.
(collectively “the minor children”) on the grounds that the minor
children were neglected. We vacate the order of the trial court.
On 4 March 2005, the Mecklenburg County Youth and Family
Services (“YFS”) filed separate petitions to terminate respondent-
mother's parental rights to the minor children. Two summonses with
two separate file numbers and two different addresses entitled
Summons in Proceeding for Termination of Parental Rights were
issued. The names of both respondent-mother and R.N. (“the
father”), who did not file a notice of appeal, were included in
both summonses. On 17 March 2005, the sheriff served the father. The sheriff attempted to personally serve respondent-mother on
several occasions, however, each attempt failed. On 5 August 2005,
the Associate County Attorney (“Mr. Yeager”) filed an affidavit and
an Addendum to the Petition to Terminate Parental Rights. In the
addendum, Mr. Yeager stated the reason for the addendum was the
failure to locate the respondent-mother. Finally, respondent-
mother was served by publication in the Mecklenburg Times and Mr.
Yeager filed an affidavit stating that a notice of service by
publication was published once a week for three successive weeks.
Prior to service by publication, no endorsement, alias summons, or
pluries summons was obtained for the respondent-mother's 4 March
2005 summonses.
On 7 November 2005, although neither parent was present at the
hearing, the court proceeded since the father had proper notice and
respondent-mother was served by publication. The trial court
terminated the parental rights of both parents. The termination
order stated that respondent-mother was not present at the
termination hearing and that the motion to withdraw made by
respondent-mother's counsel was granted. Respondent-mother appeals
from the order of the trial court terminating her parental rights
to the minor children. The father is not a party to the instant
appeal.
As an initial matter, petitioner has filed with this Court a
motion to strike respondent-mother's assignment of error number 15
and the portion of respondent-mother's brief that corresponds to
the assignment of error. Assignment of error number 15 challenges“[t]he trial court's order terminating the parental rights of
Respondent-mother, on the grounds that service of process was
improper, pursuant to R.4 of the N.C. Rules of Civil Procedure.”
Petitioner argues that this assignment of error was not included in
the proposed record on appeal and therefore should not be a part of
the record on appeal filed with this Court. Further, petitioner
asserts the argument contained in the brief purportedly based on
this assignment of error - lack of subject matter jurisdiction - is
the same as the proposed assignment of error that was included in
respondent-mother's motion to amend the record and was denied by
this Court. The proposed assignment of error reads as follows:
“The trial court's order terminating the respondent-mother's
parental rights, on the grounds that the trial court lacked subject
matter jurisdiction.” Because the assignment of error was not
included in the proposed record on appeal and because the argument
in the brief does not relate to service of process, but rather the
issue of subject matter jurisdiction, we grant petitioner's motion
to strike.
Although we grant petitioner's motion to strike, we elect,
through our inherent power, to review the issue of subject matter
jurisdiction. “A court has inherent power to inquire into, and
determine, whether it has jurisdiction and to dismiss an action ex
mero motu when subject matter jurisdiction is lacking.” In re
N.R.M., T.F.M., 165 N.C. App. 294, 297, 598 S.E.2d 147, 149 (2004)
(internal quotations omitted). In addition, even if the question
of subject matter jurisdiction is not properly raised by theparties, “this Court may review the record to determine if subject
matter jurisdiction exists in this case.” Id. (internal quotations
omitted).
The significance of subject matter jurisdiction has been
addressed by this Court:
Subject matter jurisdiction involves the
authority of a court to adjudicate the type of
controversy presented by the action before it.
Jurisdiction of the court over the subject
matter of an action is the most critical
aspect of the court's authority to act.
Subject matter jurisdiction refers to the
power of the court to deal with the kind of
action in question[, and] ... is conferred
upon the courts by either the North Carolina
Constitution or by statute. Moreover, a
court's inherent authority does not allow it
to act where it would otherwise lack
jurisdiction. Courts have the inherent power
to do only those things which are reasonably
necessary for the administration of justice
within the scope of their jurisdiction. [T]he
inherent powers of a court do not increase its
jurisdiction but are limited to such powers as
are essential to the existence of the court
and necessary to the orderly and efficient
exercise of its jurisdiction.
In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003)
(internal quotations and citations omitted).
N.C. Gen. Stat. § 7B-1101 (2005) provides:
The court shall have exclusive original
jurisdiction to hear and determine any
petition or motion relating to termination of
parental rights to any juvenile who resides
in, is found in, or is in the legal or actual
custody of a county department of social
services or licensed child-placing agency in
the district at the time of filing of the
petition or motion.
Id. Thus, a court has exclusive jurisdiction to hear petitions
relating to termination of parental rights. However, “jurisdictionis dependent upon the existence of a valid motion, complaint,
petition, or other valid pleading.” McKinney, 158 N.C. App. at
443, 581 S.E.2d at 795. “[A] trial court's general jurisdiction
over the type of proceeding or over the parties does not confer
jurisdiction over the specific action.” Id. at 447, 581 S.E.2d at
797 (quotations omitted). “Thus, before a court may act there must
be some appropriate application invoking the judicial power of the
court with respect to the matter in question.” In re A.B.D., 173
N.C. App. 77, 86, 617 S.E.2d 707, 713 (2005).
The rules of civil procedure apply to proceedings for
termination of parental rights. Under Rule 4 of the North Carolina
Rules of Civil Procedure, “personal service must be made within 60
days after the issuance of the summons.” N.C. Gen. Stat. § 1A-1,
Rule 4(c)(2005). This Court recently discussed the application of
Rule 4 in proceedings for termination of parental rights:
The summons must be served within [sixty] days
after the date of the issuance of the summons.
G.S. 1A-1, Rule 4(c). However, the failure to
make service within the time allowed does not
invalidate the summons. The action may
continue to exist as to the unserved defendant
by two methods. First, within ninety days
after the issuance of the summons or the date
of the last prior endorsement, the plaintiff
may secure an endorsement upon the original
summons for an extension of time within which
to complete service of process. Secondly, the
plaintiff may sue out an alias or pluries
summons at any time within ninety days after
the date of issue of the last preceding
summons in the chain of summonses or within
ninety days of the last prior endorsement.
G.S. 1A-1, Rule 4(d)(1) and (2). Thus, a
summons that is not served within the
[sixty]-day period becomes dormant and cannot
effect service over the defendant, but may be
revived by either of these two methods.
A.B.D., 173 N.C. App. at 85, 617 S.E.2d at 712 (quoting County of
Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 157-58, 323
S.E.2d 458, 461 (1984)).
“The consequence of not obtaining an endorsement, extension,
or alias/pluries summons within ninety days after the issuance of
the summons is the discontinuation of the action.” A.B.D., 173
N.C. App. at 85, 617 S.E.2d at 713. “If a party fails to use
either method to extend time for service, the suit is discontinued,
and treated as if it had never been filed.” Id. at 86, 617 S.E.2d
at 713 (quoting Johnson v. City of Raleigh, 98 N.C. App. 147, 148-
49, 389 S.E.2d 849, 851 (1990)). “[W]here an action has not been
filed, a trial court necessarily lacks subject matter
jurisdiction.” A.B.D., 173 N.C. App. at 86, 617 S.E.2d at 713.
Here, service of process took place 178 days after the
summonses were issued. In order to prevent the action from being
discontinued, petitioner could have obtained an alias and pluries
summons or could have obtained an extension on the original
summons. We note that petitioner included a copy of an endorsement
on the summons in its objection to respondent-mother's motion to
amend and made an alternative motion to amend the record to include
a copy of the endorsement on the summons. We grant petitioner's
alternative motion and deem the record amended to include a copy of
the endorsement. However, petitioner failed to obtain the
endorsement within the ninety-day period provided by N.C. Gen.
Stat. § 1A-1, Rule 4(d)(1) (2005). Therefore, the amount of timefor service of the summons was not extended and the action against
respondent was discontinued.
Because petitioner failed to obtain an endorsement, extension
or alias and pluries summons within ninety days after the summonses
were issued, the court should have treated respondent-mother's
termination of parental rights action as if it had never been
filed. Thus, the trial court did not have subject matter
jurisdiction over the termination of parental rights proceeding as
to the respondent-mother and the order of the trial court is
vacated.
Vacated.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***