{ "id": 4174581, "name": "IN THE MATTER OF: N.E.L., a minor child", "name_abbreviation": "In re N.E.L.", "decision_date": "2010-02-16", "docket_number": "No. COA08-1573-2", "first_page": "576", "last_page": "580", "citations": [ { "type": "official", "cite": "202 N.C. App. 576" } ], "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": "677 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": -1 }, { "cite": "363 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150875 ], "year": 2009, "opinion_index": -1, "case_paths": [ "/nc/363/0343-01" ] }, { "cite": "676 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": -1 }, { "cite": "197 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167339 ], "year": 2009, "opinion_index": -1, "case_paths": [ "/nc-app/197/0395-01" ] }, { "cite": "672 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642723 ], "year": 2009, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0017-01" ] }, { "cite": "363 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150783 ], "year": 2009, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0001-01" ] }, { "cite": "681 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "89 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "593", "parenthetical": "emphasis added" }, { "page": "593", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "242 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621774 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "698", "parenthetical": "emphasis added" }, { "page": "698", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0696-01" ] }, { "cite": "94 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650639 ], "weight": 2, "year": 1886, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc/94/0167-01" ] }, { "cite": "677 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2009, "pin_cites": [ { "page": "837" }, { "page": "838" }, { "page": "837" } ], "opinion_index": 0 }, { "cite": "363 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150875 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "346" }, { "page": "348" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0343-01" ] }, { "cite": "676 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "907-08" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167339 ], "year": 2009, "pin_cites": [ { "page": "395-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0395-01" ] } ], "analysis": { "cardinality": 446, "char_count": 9346, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13683712834223152 }, "sha256": "a368b75abf3b1dbed4268d7d57860c410fb54b10cdec88693382f782fdf2380b", "simhash": "1:47afd566f67ec852", "word_count": 1537 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER, Jr., Robert N. concur." ], "parties": [ "IN THE MATTER OF: N.E.L., a minor child" ], "opinions": [ { "text": "JACKSON, Judge.\nThis case is heard on remand from the Supreme Court. The original opinion addressed the appeal of respondent-mother (\u201crespondent\u201d) from the 30 October 2007 order terminating her parental rights. That opinion provides a complete and concise recitation of the pertinent facts:\nRobeson County DSS (\u201cDSS\u201d) took custody of N.E.L. on 6 January 2005, when he was just three days old. His mother had had no prenatal care and had used drugs during her pregnancy. N.E.L. tested positive at birth for cocaine. On 10 May 2005, N.E.L. was adjudicated a neglected juvenile within the meaning of North Carolina General Statutes, section 7B-101(15).\nDSS filed a petition to terminate respondent\u2019s parental rights on 1 December 2006. A summons was issued to respondent, but it was returned unserved on 6 December 2006. That original summons has no endorsement. Neither a new summons nor an alias and pluries summons was issued. On 12 September 2007, respondent signed a document purporting to accept service of a summons and petition. No summons was issued to or served upon N.E.L., nor was any summons served upon a guardian ad litem on his behalf.\nOn 24 October 2007, the trial court held a hearing on the termination of respondent\u2019s parental rights. In its order filed 30 October 2007, the trial court made findings of fact and concluded as a matter of law that grounds existed to terminate respondent\u2019s parental rights and that it was in N.E.L.\u2019s best interests to do so. Therefore, the trial court terminated respondent\u2019s parental rights. Respondent appeals.\nIn re N.E.L., 197 N.C. App. 395, 395-96, 676 S.E.2d 907, 907-08 (2009).\nRespondent first contends that, because the summons she received was invalid, the trial court did not acquire subject matter jurisdiction in this case. We disagree.\nAccording to our Rules of Civil Procedure, \u201cPersonal service . . . must be made within 60 days after the date of the issuance of summons.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4(c) (2007). \u201cWhen any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either [an endorsement or an alias and pluries summons].\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4(d) (2007). \u201cWhen there is neither endorsement by the clerk nor issuance of alias or pluries summons within the time specified in Rule 4(d), the action is discontinued as to any defendant not theretofore served with summons within the time allowed.\u201d N.C. Gen. Stat. \u00a7 LA-1, Rule 4(e) (2007).\nOur Supreme Court has addressed whether noncompliance with North Carolina General Statutes, section 1A-1, Rule 4 (\u201cRule 4\u201d) affects a court\u2019s subject matter jurisdiction or solely personal jurisdiction over a party. See In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (2009). In neglect and dependency proceedings, a court\u2019s subject matter jurisdiction is conferred by statute. N.C. Gen. Stat. \u00a7\u00a7 7B-200, -1101 (2007). \u201c[A] court\u2019s lack of subject matter jurisdiction is not waivable and can be raised at any time.\u201d In re K.J.L., 363 N.C. at 346, 677 S.E.2d at 837 (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 12(h)(3) (2007)).\n\u201cConversely, a court\u2019s jurisdiction over a person is generally achieved through the issuance and service of a summons.\u201d Id. (citing Peoples v. Norwood, 94 N.C. 167, 172 (1886)). \u201cDeficiencies regarding the manner in which a court obtains jurisdiction over a party, including those relating to a summons, are waivable and must be raised in a timely manner.\u201d Id. (citing N.C. Gen. Stat. \u00a7 1A-1, Rule 12(h)(1) (2007)). Our Supreme Court has emphasized that \u201c[b]ecause the summons affects jurisdiction over the person rather than the subject matter, this Court has held that a general appearance by a civil defendant \u2018waive[s] any defect in or nonexistence of a summons.\u2019 \u201d Id. at 347, 677 S.E.2d at 837 (quoting Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 593 (1955) (emphasis added)). Based upon the foregoing, our Supreme Court \u201cappear[s] to have rejected the application of Rule 4(e) of the North Carolina Rules of Civil Procedure in all cases under the Juvenile Code.\u201d In re J.D.L.,-N.C. App.-,-, 681 S.E.2d 485, 489 (2009).\nHere, respondent clearly received improper service pursuant to Rule 4. A valid summons was issued on 1 December 2006, but respondent could not be located in order to be served. Nothing in the record shows the existence of any alias or pluries summons, endorsement, or other extension, nor does it show the existence of a new summons. Respondent finally purported to accept service of the original summons on 12 September 2007 \u2014 285 days after the summons was issued. Notwithstanding this clear violation of Rule 4, respondent filed an answer to the petition to terminate her parental rights and failed to object to the court\u2019s jurisdiction over her, thereby waiving any challenge she may have had to personal jurisdiction. She also appeared, presented evidence, and was represented by counsel at the 24 October 2007 hearing. Based upon our Supreme Court precedent that \u201cthe summons affects jurisdiction over the person rather than the subject matter,\u201d id., and respondent\u2019s participation in the case without raising the issue of personal jurisdiction, we hold that the trial court did not err in exercising jurisdiction over respondent in this action.\nRespondent\u2019s second argument, which we did not address in the original opinion, is that the trial court lacked subject matter jurisdiction because neither N.E.L. nor his guardian ad litem (\u201cGAL\u201d) was issued or received a summons. We disagree.\nNorth Carolina General Statutes, section 7B-1106(a) provides\nupon the filing of the petition, the court shall cause a summons to be issued. The summons shall be directed to ... :\n(2) Any person who has been judicially appointed as guardian of the person of the juvenile.\n(3) The custodian of the juvenile appointed by a court of competent jurisdiction.\nN.C. Gen. Stat. \u00a7 7B-1106(a) (2007). As noted, supra, our Supreme Court has held that \u201c[bjecause the purpose of the summons is to obtain jurisdiction over the parties to an action and not over the subject matter, summons-related defects implicate personal jurisdiction and not subject matter jurisdiction.\u201d In re K.J.L., 363 N.C. at 348, 677 S.E.2d at 838. Furthermore, in a case similar to the case sub judice, the Supreme Court emphasized that\n[i]t is inconsequential to the trial court\u2019s 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.\nIn re J.T., 363 N.C. 1, 4, 672 S.E.2d 17, 19 (2009). \u201c[A] general appearance by a civil defendant \u2018waive [s] any defect in or nonexistence of a summons.\u2019 \u201d In re K.J.L., 363 N.C. at 347, 677 S.E.2d at 837 (quoting Dellinger v. Bollinger, 242 N.C. 696, 698, 89 S.E.2d 592, 593 (1955) (emphasis added)).\nIn the instant case, neither N.E.L. nor his GAL was issued or received a summons. Nonetheless, the GAL fully participated in the termination of parental rights hearing by filing a report and by appearing, via counsel, at the 24 October 2007 hearing. Accordingly, we hold that the GAL waived any objection she may have had to the trial court\u2019s exercise of personal jurisdiction over the juvenile.\nWe hold that both respondent and N.E.L., through his GAL, waived any challenge they may have had to the trial court\u2019s exercise of jurisdiction by appearing in person or by representative at the 24 October 2007 hearing.\nAffirmed.\nJudges WYNN and HUNTER, Jr., Robert N. concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "No brief, for Robeson County Department of Social Services, petitioner-appellee.", "North Carolina Administrative Office of the Courts, by Associate Legal Counsel Pamela Newell Williams, for Guardian ad Litem.", "Robin E. Strickland, for respondent-appellant mother." ], "corrections": "", "head_matter": "IN THE MATTER OF: N.E.L., a minor child\nNo. COA08-1573-2\n(Filed 16 February 2010)\n1. Jurisdiction\u2014 personal \u2014 termination of parental rights\u2014 improper service \u2014 answer and appearance\nThe trial court did not err by exercising jurisdiction over respondent in a termination of parental rights action where respondent clearly received improper service but filed an answer without objecting to jurisdiction, appeared at the hearing, presented evidence, and was represented by counsel.\n2. Termination of Parental Rights\u2014 jurisdiction \u2014 no summons issued to child or guardian ad litem\nThe trial court had personal jurisdiction in a termination of parental rights case where neither the child nor his guardian ad litem (G.A.L.) was issued or received a summons. The purpose of the summons is to obtain jurisdiction over the parties rather than the subject matter and the G.A.L. fully participated in the hearing.\nOn remand to the Court of Appeals from an order of the Supreme Court of North Carolina remanding the decision in In re N.E.L., 197 N.C. App. 395, 676 S.E.2d 907 (2009), for reconsideration in light of In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (2009). Appeal by respondent from an order entered 30 October 2007 by Judge J. Stanley Carmical in Robeson County District Court. Originally heard in the Court of Appeals 5 May 2009.\nNo brief, for Robeson County Department of Social Services, petitioner-appellee.\nNorth Carolina Administrative Office of the Courts, by Associate Legal Counsel Pamela Newell Williams, for Guardian ad Litem.\nRobin E. Strickland, for respondent-appellant mother." }, "file_name": "0576-01", "first_page_order": 604, "last_page_order": 608 }