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
Katharine Chester for respondent-appellant.
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.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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