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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA07-120

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

IN THE MATTER OF:

    Z.R.G. and A.M.G.,                Wake County
    Minor Children.                No. 06 JT 562

    Appeal by petitioners from an order entered 19 December 2006 by Judge Debra Sasser in Wake County District Court. Heard in the Court of Appeals 4 June 2007.

    Horn & Vosburg, PLLC, by Ann Marie Vosburg, for petitioner- appellants.

    Mercedes O. Chut for respondent-appellee.

    BRYANT, Judge.

    J.G. and K.G.   (See footnote 1)  (petitioners) have the sole legal and physical custody of the two minor children Z.R.G. and A.M.G. pursuant to a court order dated 9 November 2004. The children have resided with them since 17 July 2004. H.G. (respondent) is the biological mother of the two children. On 27 July 2006, petitioners filed a petition to terminate respondent's parental rights to the children. On 8 August 2006, petitioners served summons on respondent. On 11 October 2006, petitioners filed a motion for appointment of a guardian ad litem for the children. On 20 November 2006 the trial court denied the motion for appointment of a guardian ad litem because respondent had not filed a response. On 29 November 2006,respondent filed a motion to dismiss the petition on the ground petitioner failed to serve summons on the two children. Petitioners responded by filing a motion for leave to amend the petition to name the juveniles as parties. The trial court heard the motions on 6 December 2006 and filed an order on 19 December 2006 granting respondent's motion to dismiss and denying petitioners' motion to amend. Petitioners appeal from this order. Petitioners have filed a separate record on appeal in each child's case but raise identical issues in each appeal.

_________________________

    Petitioners raise the issues of whether the trial court erred in: (I) dismissing the petition on the ground of lack of subject matter jurisdiction due to the lack of issuance and service of summons upon the two children; and (II) denying their motion for leave to amend the petition to name the juveniles as parties. We reject their arguments and affirm.
I

    Petitioners first contend the trial court erred by dismissing the petition on the ground of lack of subject matter jurisdiction due to the lack of issuance and service of summons upon the two children. The statute governing issuance of summons in an action to terminate parental rights is N.C. Gen. Stat. § 7B-1106. This statute 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.

    Provided, no summons need be directed to or served upon any parent who, under Chapter 48 of the General Statutes, has irrevocably relinquished the juvenile to a county department of social services or licensed child-placing agency nor to any parent who has consented to the adoption of the juvenile by the petitioner. The summons shall notify the respondents to file a written answer within 30 days after service of the summons and petition. Except that the summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed, service of the summons shall be completed as provided under the procedures established by G.S. 1A-1, Rule 4(j). But the parent of the juvenile shall not be deemed to be under a disability even though the parent is a minor.

N.C. Gen. Stat. § 7B-1106(a) (2005). This statute thus clearly provides that summons must be issued and served upon the juvenile that is the subject of the petition. This Court has recently held that the failure to issue summons in the name of a juvenile deprives the trial court of subject matter jurisdiction. In re C.T. & R.S., __ N.C. App. __, 643 S.E.2d 23 (2007); see also In re Mitchell, 126 N.C. App. 432, 433, 485 S.E.2d 623, 623 (1997) (“The dispositive issue on appeal is whether the court acquiredjurisdiction of the subject matter of this juvenile action and the persons of the respondents without the proper issuance of summons. We hold that it did not.”). An order terminating parental rights when summons is not properly issued must be vacated for lack of subject matter jurisdiction and prejudice need not be shown. In re C.T., __ N.C. App. at __, 643 S.E.2d at __.
    Notwithstanding, petitioners argue that since the juveniles are minors, the provisions of N.C. Gen. Stat. § 1A-1, Rule 4(j) govern issuance and service of summons upon them in this action. This rule provides that when the person under a disability is a minor, “process shall be served separately in any manner prescribed for service upon a natural person upon a parent or guardian having custody of the child, or if there be none, upon any other person having the care and control of the child.” N.C. Gen. Stat. § 1A-1, Rule 4(j)(2)a (2005). Petitioners submit that since they are the parents or guardians having custody of the children pursuant to an order of the court, they would in effect be serving themselves with summons and notice of their own action. While admittedly this appears to be an absurd result, it is dictated by the General Assembly in requiring issuance of summons on the juvenile and our cases interpreting N.C. Gen. Stat. § 7B-1106(a). Petitioners are not without remedy as they may file a new petition in which they may cause the issuance and service of summons upon all of the parties, including the juveniles. This assignment of error is overruled.
II
    Petitioners also contend that the court erred by denying their motion for leave to amend the petition to name the juveniles as parties. An order denying a motion for leave to amend a complaint is addressed to the discretion of the trial judge, whose decision will not be disturbed on appeal in the absence of a showing of abuse of discretion. Henry v. Deen, 310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984). To constitute an abuse of discretion, the trial court's ruling must be “so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). “If the trial court articulates a clear reason for denying the motion to amend, then our review ends.” NationsBank of North Carolina, N.A. v. Baines, 116 N.C. App. 263, 268, 447 S.E.2d 812, 815 (1994). Among acceptable reasons to deny a motion to amend are “undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice and futility of the amendment.” Coffey v. Coffey, 94 N.C. App. 717, 722, 381 S.E.2d 467, 471 (1989), disc. review improvidently allowed, 326 N.C. 586, 391 S.E.2d 40 (1990).
    Here, the trial court correctly concluded that amendment of the complaint to add the children as parties was unnecessary because a child, by operation of law, is necessarily a party to any action to terminate parental rights to the child. See N.C. Gen. Stat. § 7B-1106(a) (2005) (stating the juveniles involved in a proceeding to terminate parental rights are necessary parties to the action and must be served with a summons). The petition in this matter complied with the requirements of N.C. Gen. Stat. § 7B-1104, and any amendment would thus be unnecessary. We accordingly find no abuse of discretion. This assignment of error is overruled.
    Affirmed.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).


Footnote: 1
    Initials have been used throughout to protect the identity of the juveniles.

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