In re: C.T.T. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-585
Filed 21 March 2023
Mecklenburg County, No. 21-JT-45
IN THE MATTER OF: C.T.T.
Appeal by Respondent-Mother from Orders entered 19 October 2021 by Judge
Roy H. Wiggins in Mecklenburg County District Court. Heard in the Court of Appeals
on 21 February 2023.
Miller Bowles Cushing, PLLC, by Bethany Mulhern and Nicholas L. Cushing
for Petitioner-Appellee Father.
Deputy Parent Defender Annick Lenoir-Peek for Respondent-Appellant Mother
(allowed as substitute counsel by order filed 1 March 2023 and notice of
appearance filed 3 March 2023; Record on Appeal, Appellant’s Brief, and Reply
Brief filed by Stam Law Firm, PLLC, by R. Daniel Gibson, allowed to withdraw
as attorney of record by order filed 1 March 2023).
RIGGS, Judge.
Appellant-Mother appeals from the trial court’s Order Terminating Parental
Rights and Order Denying Motion to Dismiss the Petition for Termination of Parental
Rights to her minor child C.T.T. The trial court’s Order entered on 19 October 2021,
was adjudicated on grounds that she neglected and willfully abandoned C.T.T. for the
last nine years. She contends the trial court erred in establishing personal
jurisdiction over her due to insufficient service of process because: (1) the Original
Summons did not list her provisional counsel by name; and (2) Notice of Service by
Publication did not indicate her parental rights would be terminated if she did not
file an answer within 30 days, among other things. She alleges both methods of
IN RE: C.T.T.
Opinion of the Court
service are defective pursuant to North Carolina General Statute § 7B-1106(b)(4)
(2021). She also alleges that the trial court did not make the requisite inquiry before
releasing her provisional counsel. After careful review of the record, we hold that
Appellant-Mother was personally served with a summons that complied with
statutory requirements of notice that her parental rights were subject to termination,
so the trial court’s exercise of personal jurisdiction was proper; and the trial court
conducted a proper inquiry into Mother’s contact with her provisional counsel.
Therefore, we affirm the trial court’s orders for termination of parental rights.
Factual and Procedural Background
Appellee-Father (“Father”) and Appellant-Mother (“Mother”) are the biological
parents of C.T.T., born July 2010. Although the parties never married, C.T.T. resided
in both his parents’ care from birth until April 2012, due to Mother and Father
cohabitating throughout several different states (Texas, Hawaii, Nevada). When
C.T.T. was seven months old, Mother moved to Las Vegas with C.T.T., without
Father’s knowledge or consent. Mother informed Father she was going to visit her
family in Las Vegas with C.T.T. and stopped all communication. As a result, Father
moved from Hawaii to Nevada to be closer to C.T.T.
During the family’s time in Las Vegas, Mother’s lifestyle involved illicit drug
use and unstable housing. She also displayed harmful and neglectful behavior
towards C.T.T. On one occasion, Mother called Father to pick up C.T.T. because she
needed him to provide childcare and gave Father the address of C.T.T.’s location.
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When Father arrived at the location, it was a casino, and Mother was nowhere to be
found. Mother left then seven-month-old C.T.T. in a car seat unsupervised in a
parked car left with an unknown valet attendant. During the months of February,
March, and April 2012, a significant amount of suspicious bruising was observed on
C.T.T.’s face. When confronted, Mother stated C.T.T. received his facial injuries from
falling. Consequently, Father notified Children’s Protective Services in Nevada to
report suspected abuse, and the report was later substantiated.
In April 2012, Father moved to Greensboro, North Carolina with C.T.T. At the
time of their move, Mother’s whereabouts were unknown. In September 2012,
Mother arrived with C.T.T.’s maternal grandmother to Father’s home in North
Carolina to visit C.T.T. Mother stated she was going to visit with C.T.T. outside and
then placed C.T.T. in a car and drove away with his grandmother. Mother then drove
to Tyler, Texas with C.T.T. and rejected all telephone calls from Father. In response,
Father immediately filed for Child Custody and a Motion for Ex Parte Emergency
Child Custody. Father was later awarded permanent sole legal and sole physical
custody of C.T.T. on 10 October 2012. As of September 2012, Mother has not seen
C.T.T., has not provided any financial support, nor has she communicated with him.
On 11 February 2021, Father filed a petition to terminate Mother’s parental
rights to C.T.T. and a summons was issued the same day. On 15 February 2021,
provisional counsel was appointed to Mother and therefore, appointed counsel’s name
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was not listed on the summons issued four days earlier.1 On 9 March 2021, Father
personally served Mother via process server in Las Vegas, Nevada with the summons
and petition. On 9 April 2021, Mother’s provisional counsel was served via U.S. postal
mail. At the first pretrial status conference on 27 April 2021, Mother’s provisional
counsel moved to have service dismissed due to the current summons form not being
used. Mother was not in attendance at this status conference. The judge advised
Father to file another summons and reattempt service, because the summons form
had been updated. On 7 July 2021, at the trial court’s urging, Father moved for
service by publication because Mother’s previous home was vacant, her whereabouts
were unknown, and personal service could not be effectuated. On 9 July 2021, the
trial court entered an Order Granting Leave To Serve By Publication in response to
Father’s request for notice by publication. During the months of July and August
2021, Father ran the following publication in Las Vegas news advertisements:
In Re: [. . .], a minor juvenile. To: PAISLEY LAIS SANSONE,
Respondent. Take notice that a Petition for Termination of Parental
Rights has been filed in the above action. The nature of the relief being
sought is as follows: Termination of Parental Rights. You have 40 days
to file a Reply, which is 40 days from the first publication of this notice.
Upon your failure to reply, the party seeking service against you will
apply to the Court for the relief sought.
1 Indeed, as the trial court correctly noted, provisional counsel is not typically appointed
until after a petition is filed, so the name of provisional counsel could not be listed on the summons
executed at the same time as a petition.
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On 13 September 2021, Father filed the above Las Vegas publication along
with an attached Affidavit of Publication. On 1 October 2021, Mother’s provisional
counsel filed a Motion to Dismiss in response to the publication notice failing to meet
the statutory requirements of North Carolina General Statute § 7B-1106(b).
Provisional counsel argued the petition should be dismissed for insufficiency of
process. Specifically, counsel argued the following information was missing from the
publication: C.T.T.’s first name [was missing]; notice that Mother’s parental rights
may be terminated if she did not file a written answer with the clerk within 30 days
after service of the summons and petition [was missing]; and the appointed counsel
[was missing].
On 1 October 2021, the motion was heard, and the trial court concluded the
Original Summons was a legally compliant summons, although a newer version of
the summons form existed. Moreover, the issue of notice by publication was moot,
due to Mother being properly served the first time with the Original Summons. In
response, Mother’s provisional counsel argued her client was not properly served in
accordance with the statutory requirements for notice, because provisional counsel
was not listed on the summons. Father’s trial counsel argued even if service was
improper, Mother’s provisional counsel had already made a general appearance in
two status conferences in April and July 2021 and was in conversations with opposing
counsel regarding settlement talks. Mother’s provisional counsel also conceded that
she had been in contact with her client, and her client was aware of the hearing
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scheduled that day, although she was not present. Specifically, Mother told her
provisional counsel, who recounted to the trial court, that she did not have the
financial resources to travel from Las Vegas to North Carolina for the in-person
hearing. After the trial court denied Mother’s Motion for Dismissal, provisional
counsel stated, “I’m provisional counsel . . . [a]s the Court has found that mother is
properly served, that [sic] by statute, I’m out.” As a result, Mother’s provisional
counsel was dismissed by the court. Thereafter, on 19 October 2021, the trial court
entered an Order Terminating Mother’s Parental Rights and an Order Denying her
Motion to Dismiss the Termination of Parental Rights petition to C.T.T.
Standard of Review
This Court reviews a trial court’s orders for termination of parental rights to
determine if the “findings of fact are supported by clear, cogent and convincing
evidence and whether these findings, in turn, support the conclusions of law.” In re
Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984). In termination of parental
rights cases, a trial court’s conclusions of law are reviewed de novo. In re S.N., 194
N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008).
Analysis
1. Statute
Article 11 of Chapter 7B (Juvenile Code) of the North Carolina General
Statutes governs termination of parental rights proceedings. N.C. Gen. Stat. §§ 7B-
1100-1111 (2021). Section 7B-1104 sets forth two ways in which a party may
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commence termination of parental rights proceedings: either by petition or by motion.
N.C. Gen. Stat. § 7B-1104. First, section 7B-1102(a) permits state agencies such as
the Department of Social Services (“DSS”) to file a motion in district court for
termination of parental rights in pending abuse, neglect, or dependency proceedings
involving juveniles. Second, if no such pending action exists, then DSS or a parent
or guardian seeking to terminate the parental rights of another parent may file a
petition to terminate their rights. N.C. Gen. Stat. § 7B-1103. The petition or motion
must be entitled “In Re (juvenile’s last name), a minor juvenile.” N.C. Gen. Stat. §
7B-1104. The petition or motion must also allege, “[f]acts that are sufficient to
warrant a determination that one or more of the grounds for terminating parental
rights exist.” N.C. Gen. Stat. § 7B-1104(6). Absent exceptions in preliminary
proceedings for unknown parents, once a petition or motion is filed for termination of
parental rights, the trial court “shall cause a summons to be issued.” N.C. Gen. Stat.
§ 7B-1106(a). The summons must be provided to all parties named as respondents in
the case, including the minor child, the child’s parents, any appointed guardian or
custodian appointed by the court, and DSS or child placing agency. Id.
When termination of parental rights is sought, the respondent parent may file
a written answer to the claim within 30 days after service of the summons and
petition. N.C. Gen. Stat. § 7B-1106(b)(2). Absent good cause, the trial court must
hold an adjudicatory hearing within 90 days from the filing of the petition or motion
seeking termination of parental rights. N.C. Gen. Stat. § 7B-1109(a), (d). The trial
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court may terminate a respondent parent’s parental rights if the findings establish
(1) one or more grounds for termination exist, and (2) termination is in the best
interests of the child. N.C. Gen. Stat. § 7B-1110.
2. Summons and Notice
In addition to service requirements, the statutory content of section 7B-1106
is required in the summons for termination of parental rights. N.C. Gen. Stat. § 7B-
1106(a)-(b). When respondent parents receive notice by publication, the publication
must also comply with the notice requirements under subsection 7B-1106(b)(4). In re
C.A.C., 222 N.C. App. 687, 688, 731 S.E.2d 544, 545 (2012). Subsection 7B-1106(b)(4),
provides: “[N]otice that if the parent is indigent and is not already represented by
appointed counsel, the parent is entitled to appointed counsel, that provisional
counsel has been appointed and that the appointment of the provisional counsel will
be reviewed by the court at the first hearing after service.” If a respondent parent
does not appear at the first hearing after service, the “court shall dismiss the
provisional counsel.” N.C. Gen. Stat. § 7B-1101.1(a)(1).
3. Personal Jurisdiction
A trial court’s jurisdiction over a person is generally achieved through the
issuance and service of a summons. In re K.J.L., 363 N.C. 343, 346, 677 S.E.2d 835,
837 (2009). Subsection 7B-1106(a2), requires provisional counsel to receive notice
through issuance of the summons and complaint when a petition alleges “a juvenile
is abused, neglected, or dependent.” N.C. Gen. Stat. § 7B-602 (2021). However, there
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is no statutory requirement that the attorney’s name must be listed on the summons
form–the statutory requirement, outside of the content of the summons, is simply
that provisional counsel be served with the petition and summons. N.C. Gen. Stat. §
§ 7B-1106(a2) and 7B-602 (collectively establish).
In this case, Mother was personally served on 9 March 2021 with the summons
and petition. On 9 April 2021, provisional counsel was served via U.S. postal mail
and attended the first pretrial status conference on 27 April 2021. The statutory
requirements contained in subsection 7B-1106(b)(4) do not require that provisional
counsel be listed by name. Rather, the statute requires that notice be provided: to
appointed counsel; that the parent is entitled to appointed counsel; that provisional
counsel has been appointed–and that review of the appointment of provisional
counsel will occur at the first hearing after service. N.C. Gen. Stat. §§ 7B-1106(a2),
(b)(4) and 7B-602. Between 9 March 2021 and 9 April 2021, before the first hearing,
all of these requirements were satisfied. First, our review of the Original Summons,
issued on 11 February 2021, confirms the trial court’s conclusion that all statutorily
required information was contained in that Summons. N.C. Gen. Stat. § 7B-
1106(b)(4). Provisional counsel’s name was not listed on the summons, but
provisional counsel was served on 9 April 2021, which is all that the statute requires:
the statute does not require provisional counsel’s name be listed on the summons.
N.C. Gen. Stat. § 7B-1106(a2). With the issuance of a legally compliant summons,
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the court established personal jurisdiction over Mother when that summons, and
petition was personally served upon her on 9 March 2021.
Furthermore, Mother was notified she was entitled to a lawyer to represent
her in the termination of parental rights proceedings regarding C.T.T., and she was
in communication with that appointed lawyer. Although notice by publication was
defective, this issue is moot since the Original Summons was found to be, and we
agree was, legally compliant.
As to the remaining issues raised in Mother’s brief, because we found she was
properly served with the Original Summons, we do not need to reach the second and
third issues raised in her appeal. As it relates to the fourth issue, we agree that the
trial court was required to make some inquiry into counsel’s efforts to contact Mother
before releasing her as provisional counsel. In re D.E.G., 228 N.C. App. 381, 386–
387, 747 S.E.2d 280, 284 (2013). Here, that was satisfied because the record
demonstrates competent evidence of the following: Mother was personally served
with the summons and petition, so she learned of the proceedings directly.
Provisional counsel indicated to the trial court on 1 October 2021 that she was in
communications with Mother about what was going on in the proceedings; was in
settlement talks with opposing counsel; and was aware Mother would not be present
at the last hearing due to financial constraints. Finally, the trial court explicitly
inquired of provisional counsel at the adjudication hearing as to the status of
communications with Mother, and provisional counsel answered. The purpose of the
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appointment of provisional counsel is to ensure a respondent parent’s rights are
adequately protected for termination proceedings. Id. And at the adjudication
hearing, the trial court must consider whether provisional counsel must be retained
or released, should the respondent parent fail to appear. N.C. Gen. Stat. §§ 7B-
1108.1(a)(1) and 7B-1101(a)(1). On this record, the trial court made the requisite
inquiry into the communication and overtures effectuated, that determined counsel
made adequate efforts to make the respondent parent aware of their rights in the
termination proceedings, before releasing provisional counsel when a parent is not
present.
Conclusion
For the foregoing reasons, we affirm the 2021 Order Terminating Parental
Rights and Order Denying Motion to Dismiss Petition for Termination of Parental
Rights by the trial court.
AFFIRMED.
Judges ZACHARY and FLOOD concur.
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