In re A.L.I. ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-31
No. 266A21
Filed 18 March 2022
IN THE MATTER OF: A.L.I.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) (2019) from an order entered on
9 June 2021 by Judge William F. Brooks in District Court, Wilkes County. This
matter was calendared for argument in the Supreme Court on 18 February 2022 but
determined on the record and briefs without oral argument pursuant to Rule 30(f) of
the North Carolina Rules of Appellate Procedure.
Mary McCullers Reece for respondent-appellant father.
No brief filed by petitioner-appellee mother.
No brief filed by Guardian ad Litem.
NEWBY, Chief Justice.
¶1 Respondent, the father of A.L.I. (Amy), appeals from the trial court’s order
terminating his parental rights.1 After careful review, we affirm.
¶2 Amy was born on 29 July 2013 to petitioner-mother and respondent. Though
petitioner and respondent never married, they lived together with Amy for
1 A pseudonym is used in this opinion to protect the juvenile’s identity and for ease of
reading.
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approximately two years. On 2 August 2016, petitioner took out a domestic violence
protective order in Mecklenburg County, which lasted one year. Respondent then
filed a custody action in Cabarrus County. While the custody action was pending,
respondent took Amy and fled the state. At that time, respondent had an outstanding
order for his arrest due to his failure to appear and serve jail time for a conviction of
felony second-degree burglary. After respondent refused to return to the state with
Amy, a child custody order was entered in Cabarrus County on 11 April 2017,
granting petitioner exclusive care, control, and custody of Amy. Respondent was
arrested in New York on or about 28 April 2017 and remained incarcerated in New
York for the remainder of the trial court proceedings. After respondent’s arrest,
petitioner picked up Amy in New York in May of 2017. Since then, Amy has remained
with petitioner.
¶3 Petitioner filed a petition to terminate respondent’s parental rights to Amy on
17 April 2020. The trial court held a pretrial hearing on 30 April 2021 where
petitioner’s counsel stated that respondent “was served with a summons and the
petition on May the 8th, 2020 via personal service at Bare Hill Correctional Facility
in New York State.” During the proceedings, respondent wrote several letters to the
trial court, was represented by counsel, and fully participated in the hearings
remotely. Following a hearing on 30 April 2021, in which respondent participated
remotely and his counsel in person, the trial court entered an order on 9 June 2021
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concluding that grounds existed to terminate respondent’s parental rights based upon
neglect and willful abandonment.2 See N.C.G.S. § 7B-1111(a)(1), (7) (2021).
¶4 The only argument presented on appeal, which is here raised for the first time,
is that the trial court did not have subject matter jurisdiction to terminate
respondent’s parental rights. According to respondent, since he is a nonresident,
N.C.G.S. §§ 7B-1101 and 7B-1106 (2021) require that he be served with a summons
in order to confer subject matter jurisdiction upon the trial court.3 In respondent’s
view the requirement in N.C.G.S. § 7B-1101 that “before exercising jurisdiction under
this Article regarding the parental rights of a nonresident parent, the court shall find
. . . that process was served on the nonresident parent” pertains to the trial court’s
exercise of subject matter jurisdiction rather than personal jurisdiction. N.C.G.S.
§ 7B-1101. Respondent contends that since there is no evidence in the record to
support a finding that respondent was served with a summons, the trial court lacked
subject matter jurisdiction to terminate his parental rights. Thus, the question
presented in this appeal is whether the statutory language refers to personal
jurisdiction or subject matter jurisdiction. Directed by our prior decisions, we
2 In that order, the trial court found that “[respondent] was personally served at Bare
Hill with the summons and petition in this action on May 8, 2020.” Nonetheless, for purposes
of this opinion, we assume that respondent was not properly served with the summons.
3Respondent relies upon an unpublished opinion from the Court of Appeals. See In re
P.D., No. COA16-1317, 2017 WL 3255343 (N.C. Ct. App. Aug. 1, 2017) (unpublished).
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determine the language relates to personal jurisdiction.
¶5 Pursuant to the broad language of N.C.G.S. § 7B-1101, a trial court has
“exclusive original jurisdiction to hear and determine any petition or motion relating
to termination of parental rights to any juvenile who . . . is found in . . . the district
at the time of filing of the petition or motion.” Id. “Because litigants cannot consent
to jurisdiction not authorized by law, they may challenge ‘jurisdiction over the subject
matter . . . at any stage of the proceedings, even after judgment.’ ” In re T.R.P., 360
N.C. 588, 595, 636 S.E.2d 787, 793 (2006) (alteration in original) (quoting Pulley v.
Pulley, 255 N.C. 423, 429, 121 S.E.2d 876, 880 (1961)). Thus, “[a]rguments regarding
subject matter jurisdiction may even be raised for the first time before this Court.”
Id. Arguments of insufficient service of process, however, “are defenses that implicate
personal jurisdiction and thus can be waived by the parties.” In re J.T., 363 N.C. 1,
4, 672 S.E.2d 17, 19 (2009); see N.C.G.S. § 1A-1, Rule 12(h)(1) (2021) (“A defense of
. . . insufficiency of service of process is waived . . . if it is neither made by motion
under this rule nor included in a responsive pleading or an amendment thereof . . . .”).
¶6 In cases arising under the Juvenile Code as with other civil matters,
deficiencies in the issuance or service of a summons affect a trial court’s jurisdiction
over the parties to an action and not over the subject matter of the case. See In re
K.J.L., 363 N.C. 343, 348, 677 S.E.2d 835, 838 (2009). In In re K.J.L., Davidson
County Department of Social Services (DSS) filed a juvenile petition alleging that the
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juvenile was neglected and dependent, but a summons was never issued. Id. at 344–
45, 677 S.E.2d at 836–37. Nonetheless, both parents stipulated that the juvenile was
neglected, and the trial court entered an order to that effect. Id. at 344, 677 S.E.2d at
836. DSS then filed a petition to terminate both parents’ parental rights, and a
summons was properly issued and served. Id. The respondent-mother participated in
the TPR hearing without objecting to the trial court’s jurisdiction, and the trial court
entered an order terminating her parental rights.4 Id. The respondent-mother
appealed, and the Court of Appeals concluded that the trial court lacked subject
matter jurisdiction to terminate the respondent-mother’s parental rights because a
summons was never issued in the neglect and dependency proceeding. Id. at 344–45,
677 S.E.2d at 836.
¶7 We reversed the decision of the Court of Appeals. Id. at 348, 677 S.E.2d at 838.
In doing so, we explained that “the summons is not the vehicle by which a court
obtains subject matter jurisdiction over a case, and failure to follow the preferred
procedures with respect to the summons does not deprive the court of subject matter
jurisdiction.” Id. at 346, 677 S.E.2d at 837. We further noted that “[b]ecause the
summons affects jurisdiction over the person rather than the subject matter, . . . a
general appearance by a [respondent-parent] ‘waive[s] any defect in or nonexistence
4 The respondent-father did not respond to the TPR petition and failed to appear at
the hearing. In re K.J.L., 363 N.C. at 344, 677 S.E.2d at 836. The trial court’s order also
terminated the respondent-father’s parental right, but he did not appeal. Id.IN RE A.L.I.
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of a summons.’ ” Id. at 347, 677 S.E.2d at 837 (emphasis and fourth alteration in
original) (quoting Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 593 (1955)).
Therefore, we concluded that “[a]ny deficiencies in the issuance and service of the
summonses in the neglect and TPR proceedings at issue in this case did not affect the
trial court’s subject matter jurisdiction, and any defenses implicating personal
jurisdiction were waived by the parties.” Id. at 348, 677 S.E.2d at 838.
¶8 Similarly, in In re J.T., we addressed various issues regarding the issuance
and service of a summons in a TPR action. In re J.T., 363 N.C. at 2, 672 S.E.2d at 17.
There a summons was issued, but it failed to name the juveniles as respondents and
was never served upon the juveniles through a GAL. Id. at 3, 672 S.E.2d at 18. We
explained that
[i]t is inconsequential to the trial court’s subject matter
jurisdiction that no summons named any of the three
juveniles as respondent and that no summons was ever
served on the juveniles or their GAL. These errors are
examples of insufficiency of process and insufficiency of
service of process, respectively, both of which are defenses
that implicate personal jurisdiction and thus can be waived
by the parties. The full participation of the juveniles’ GAL
and the attorney advocate throughout the TPR
proceedings, without objection to the trial court’s exercise
of personal jurisdiction over the juveniles, constituted a
general appearance and served to waive any such
objections that might have been made.
Id. at 4–5, 672 S.E.2d at 19 (citations omitted) (citing N.C.G.S. § 1A-1, Rule 12(h)(1)
(2007); Harmon v. Harmon, 245 N.C. 83, 86, 95 S.E.2d 355, 359 (1956)). In other
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words, the arguments about deficiencies in the summons and insufficient service
were waived when not presented to the trial court. Id. Therefore, we concluded that
“the trial court’s subject matter jurisdiction was properly invoked.” Id. at 4, 672
S.E.2d at 19.
¶9 A parent’s status as a nonresident does not alter the fact that arguments of
insufficient service of a summons pertain to personal jurisdiction rather than subject
matter jurisdiction. See In re K.J.L., 363 N.C. at 346, 677 S.E.2d at 837; N.C.G.S.
§ 1A-1, Rule 12(h)(1). Reading N.C.G.S. § 7B-1101 in conjunction with Rule 12(h)(1)
and our prior decisions, it is clear that if a nonresident respondent-parent
participates in the TPR proceedings without raising an objection to the trial court
exercising personal jurisdiction, then he waives any argument of insufficient service
of process. See In re J.T., 363 N.C. at 4, 672 S.E.2d at 19; In re K.J.L., 363 N.C. at
348, 677 S.E.2d at 838. Here respondent fully participated in the proceedings and
was represented by counsel. Respondent personally wrote several letters to the trial
court and was present at the hearings via speakerphone. Since respondent appeared
in the proceeding without preserving his objection to the trial court’s exercise of
personal jurisdiction over him, his argument regarding insufficient service of process
is waived.
¶ 10 Regardless of a respondent-parent’s residency status, the issuance and service
of a summons do not affect a trial court’s subject matter jurisdiction in a TPR action.
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Opinion of the Court
Here the trial court’s subject matter jurisdiction was properly invoked. Since the
alleged summons-related deficiencies implicate personal jurisdiction not subject
matter jurisdiction, respondent waived his insufficient service argument by
participating in the proceedings without objecting. Therefore, we affirm the trial
court’s 9 June 2021 order terminating respondent’s parental rights.
AFFIRMED.