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.
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