{ "id": 4162600, "name": "IN THE MATTER OF: C.S.B., A Minor Child", "name_abbreviation": "In re C.S.B.", "decision_date": "2008-12-02", "docket_number": "No. COA08-881", "first_page": "195", "last_page": "199", "citations": [ { "type": "official", "cite": "194 N.C. App. 195" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "year": 2006, "pin_cites": [ { "page": "790", "parenthetical": "\"Subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act[.]\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "628 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635580 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "389" }, { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0387-01" ] }, { "cite": "660 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640976 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "927", "parenthetical": "emphasis added" }, { "page": "927" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0924-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "year": 2006, "pin_cites": [ { "page": "590", "parenthetical": "\"Subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "177 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301051 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "155" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0151-01" ] }, { "cite": "607 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "702" }, { "page": "702", "parenthetical": "holding respondents waived objection to lack of proper notice by appearing with counsel and participating in termination proceeding without objection" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469558 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "355" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0350-01" ] }, { "cite": "609 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "473", "parenthetical": "\"Because DSS failed to give the statutorily required notice, prejudicial error exists and a new hearing is warranted.\"" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 245", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469403 ], "year": 2005, "pin_cites": [ { "page": "248", "parenthetical": "\"Because DSS failed to give the statutorily required notice, prejudicial error exists and a new hearing is warranted.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0245-01" ] }, { "cite": "581 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188370 ], "year": 2003, "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0522-01" ] }, { "cite": "190 N.C. App. 779", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157843 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "783", "parenthetical": "emphasis added" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0779-01" ] } ], "analysis": { "cardinality": 439, "char_count": 9357, "ocr_confidence": 0.744, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.135814095725272 }, "sha256": "f3946d2153850da30c899950599d5aea41ef1c605408de978f5f7b5ea58f1622", "simhash": "1:0ee89cc61aee3741", "word_count": 1511 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ARROWOOD concur." ], "parties": [ "IN THE MATTER OF: C.S.B., A Minor Child" ], "opinions": [ { "text": "GEER, Judge.\nRespondent mother appeals from the trial court\u2019s termination of her parental rights as to her minor child C.S.B. In her sole argument on appeal, respondent asserts that the trial court lacked subject matter jurisdiction because she was never served with the notice required by N.C. Gen. Stat. \u00a7 7B-1106.1 (2007) for motions in the cause seeking termination of parental rights. We hold, however, that respondent waived any objection to noncompliance with \u00a7 7B-1106.1 when she filed a verified response and participated in the termination proceeding. Accordingly, we affirm.\nFacts\nPetitioner Yadkin County Department of Social Services (\u201cDSS\u201d) filed juvenile petitions on 27 June 2006, alleging that respondent\u2019s three minor children, J.R.R., S.E.R., and C.S.B., were neglected juveniles in that they did not receive proper care, supervision, or discipline from respondent. The trial court entered an order on 15 August 2006 in which it found the juveniles to be neglected as defined in N.C. Gen. Stat. \u00a7 7B-101(15) (2007), granted custody of the juveniles to DSS, and ordered DSS to continue reasonable efforts toward reunification of the juveniles with respondent.\nAfter periodic review hearings, the trial court relieved DSS of further reunification efforts in an order entered 24 September 2007. DSS subsequently filed a motion in the cause on 10 December 2007, seeking termination of respondent\u2019s parental rights as to C.S.B., but not as to J.R.R. or S.E.R. Although respondent was properly served with the motion for termination of parental rights, DSS acknowledges that it failed to give respondent the notice of the motion required by N.C. Gen. Stat. \u00a7 7B-1106.1(a). Respondent filed a verified answer on 13 February 2008. The termination of parental rights hearing was conducted on 9 April 2008, and, in an order entered 8 May 2008, the trial court terminated respondent\u2019s parental rights as to C.S.B. Respondent timely appealed to this Court.\nDiscussion\nThe Juvenile Code provides two means by which proceedings to terminate an individual\u2019s parental rights may be initiated: \u201c(1) by filing a petition to initiate a new action concerning the juvenile; or (2) in a pending child abuse, neglect, or dependency proceeding in which the district court is already exercising jurisdiction over the juvenile and parent, by filing a motion to terminate pursuant to N.C. Gen. Stat. \u00a7 7B-1102.\u201d In re S.F., 190 N.C. App. 779, 783, 660 S.E.2d 924, 927 (2008) (emphasis added). When a motion is filed, as opposed to a petition, N.C. Gen. Stat. \u00a7 7B-1106.1(a) provides that the movant \u201cshall prepare a notice\u201d directed to the parents of the juvenile, any guardian of the juvenile\u2019s person, the custodian of the juvenile, the county department of social services charged with the juvenile\u2019s placement, the juvenile\u2019s guardian ad litem, and the juvenile (if 12 years of age or older at the time the motion is filed). The notice shall include the following information:\n(1) The name of the minor juvenile.\n(2) Notice that a written response to the motion must be filed with the clerk within 30 days after service of the motion and notice, or the parent\u2019s rights may be terminated.\n(3) Notice that any attorney appointed previously to represent the parent in the abuse, neglect, or dependency proceeding will continue to represent the parents unless otherwise ordered by the court.\n(4) Notice that if the parent is indigent, the parent is entitled to appointed counsel and if the parent is not already represented by appointed counsel the parent may contact the clerk immediately to request counsel.\n(5) Notice that the date, time, and place of hearing will be mailed by the moving party upon filing of the response or 30 days from the date of service if no response is filed.\n(6) Notice of the purpose of the hearing and notice that the parents may attend the termination hearing.\nN.C. Gen. Stat. \u00a7 7B-1106.1(b).\nRespondent contends that DSS\u2019 failure to serve her with the notice required by N.C. Gen. Stat. \u00a7 7B-1106.1 deprived the trial court of subject matter jurisdiction. This Court has previously held that \u201cwhere a movant fails to give the required notice [under N.C. Gen. Stat. \u00a7 7B-1106.1], prejudicial error exists, and a new hearing is required.\u201d In re Alexander, 158 N.C. App. 522, 526, 581 S.E.2d 466, 469 (2003). See also In re D.A., Q.A., & T.A., 169 N.C. App. 245, 248, 609 S.E.2d 471, 473 (2005) (\u201cBecause DSS failed to give the statutorily required notice, prejudicial error exists and a new hearing is warranted.\u201d). Nevertheless, this Court has also held that a party entitled to notice under \u00a7 7B-1106.1 \u201cwaives that notice by attending the hearing of the motion and participating in it without objecting to the lack thereof.\u201d In re B.M., M.M., An.M., & Al.M., 168 N.C. App. 350, 355, 607 S.E.2d 698, 702 (2005); accord In re J.S.L., 177 N.C. App. 151, 155, 628 S.E.2d 387, 389 (2006).\n\u25a0 In this case, after respondent and her trial counsel were served with the termination of parental rights motion, respondent signed and filed a verified reply to the motion. In her verified reply, respondent asserted two affirmative defenses and moved to dismiss DSS\u2019 motion, without objecting to the lack of proper notice under N.C. Gen. Stat. \u00a7 7B-1106.1. Respondent was not present at the termination of parental rights hearing, but her trial counsel explained to the trial court that respondent knew of the hearing and intended to be there, but was having \u201ctransportation problems.\u201d R\u00e9spondent\u2019s counsel did not raise any objection to the lack of proper notice under N.C. Gen. Stat. \u00a7 7B-1106.1 at any point during the hearing and fully participated in the proceeding.\nBy responding to DSS\u2019 motion in a verified reply and participating, through counsel, in the termination proceeding, respondent waived any objection to the lack of proper notice under N.C. Gen. Stat. \u00a7 7B-1106.1. See J.S.L., 177 N.C. App. at 155, 628 S.E.2d at 389 (finding waiver of objection to adequate notice under N.C. Gen. Stat. \u00a7 7B-1106.1 where respondent mother appeared with counsel at termination hearing and failed to object to any lack of notice); B.M., 168 N.C. App. at 356, 607 S.E.2d at 702 (holding respondents waived objection to lack of proper notice by appearing with counsel and participating in termination proceeding without objection). Respondent, therefore, failed to preserve for appellate review her objection to lack of adequate notice. See N.C.R. App. P. 10(b)(1).\nRespondent argues that the waiver cases are distinguishable from this appeal because she has argued that the lack of notice under N.C. Gen. Stat. \u00a7 7B-1106.1 deprives the trial court of subject matter jurisdiction, an argument not specifically addressed in the prior opinions. We disagree. The failure to provide proper notice under N.C. Gen. Stat. \u00a7 7B-1106.1 cannot affect the trial court\u2019s subject matter jurisdiction \u201cbecause the court has already acquired subject matter jurisdiction over the juvenile and parents because of the ongoing proceedings ____\u201d S.F., 190 N.C. App. at 783, 660 S.E.2d at 927.\nNeither Alexander nor D.A., the authority relied upon by respondent, held that the failure to comply with the statutory requirements of N.C. Gen. Stat. \u00a7 7B-1106.1 deprives the trial court of subject matter jurisdiction. In both Alexander and D.A., we remanded for rehearing. If, as respondent contends, failure to comply with the notice requirements of N.C. Gen. Stat. \u00a7 7B-1106.1 divested the trial court of subject matter jurisdiction, this Court would have been required to dismiss the termination of parental rights action without further proceedings. See In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (\u201cSubject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act[.]\u201d). Thus, the fact that we remanded the cases to the trial court for rehearing on the termination of parental rights motions necessarily means that DSS\u2019 failure to give respondent proper notice under N.C. Gen. Stat. \u00a7 7B-1106.1 did not deprive the court of subject matter jurisdiction.\nIn sum, while DSS violated N.C. Gen. Stat. \u00a7 7B-1106.1, respondent waived any objection to that violation by failing to raise the issue below and by participating in the termination of parental rights proceedings. Since respondent presents no other argument for reversal, we affirm the decision below.\nAffirmed.\nJudges HUNTER and ARROWOOD concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "J. Gregory Matthews for petitioner-appellee.", "Jon W. Myers for respondent-appellant.", "Trade M. Jordan for Guardian ad Litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: C.S.B., A Minor Child\nNo. COA08-881\n(Filed 2 December 2008)\nTermination of Parental Rights\u2014 lack of notice \u2014 motion in the cause \u2014 waiver\nThe trial court did not lack subject matter jurisdiction even though respondent mother was never served with the notice required by N.C.G.S. \u00a7 7B-1106.1 for motions in the cause seeking termination of parental rights because respondent waived any objection to noncompliance with. N.C.G.S. \u00a7 7B-1106.1 when she filed a verified response, without objecting to the lack of proper notice, and participated in the termination proceeding.\nAppeal by respondent from order entered 8 May 2008 by Judge David V. Byrd in Yadkin County District Court. Heard in the Court of Appeals 24 November 2008.\nJ. Gregory Matthews for petitioner-appellee.\nJon W. Myers for respondent-appellant.\nTrade M. Jordan for Guardian ad Litem." }, "file_name": "0195-01", "first_page_order": 227, "last_page_order": 231 }