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IN RE S.F.,

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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.


NO. COA08-197

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2008

IN THE MATTER OF:
Polk County
S.F. No. 03 J 23

Appeal by respondent from order filed 21 November 2007 by
Judge Mack Brittain in District Court, Polk County. Heard in the
Court of Appeals 5 May 2008.

Feagan Law Firm, PLLC, by Phillip R. Feagan, for Polk County
Department of Social Services, petitioner-appellee.

Pamela Newell Williams, for the guardian ad litem-appellee.

Peter Wood, for respondent-appellant.

WYNN, Judge.

“[U]pon the filing of the petition [to terminate parental
rights], the court shall cause a summons to be issued” to all those
named as respondents, including the juvenile or her court-appointed
guardian ad litem.

(See footnote 1)


Because the record before us contains no
evidence that a summons was issued to the juvenile in the instant
case, we must vacate the trial court’s order for lack of subject
matter jurisdiction.
On 20 August 2003, the Polk County Department of Social
Services (DSS) filed a juvenile petition alleging the abuse,
neglect, and dependency of minor child S.F. The petition wasprompted by a report received by DSS that S.F., three years old at
that time, had severe bruising on her face, abdomen, ears, legs,
buttocks, and down her back; the doctors who examined her
“determined that the injuries were non-accidental and consistent
with physical child abuse.” S.F. indicated that the injuries were
inflicted by her mother’s live-in boyfriend; both he and S.F.’s
mother were arrested and charged with child abuse.
S.F. remained in the nonsecure custody of DSS and foster care
until 18 January 2004, when a consent order was entered in which
her parents admitted that S.F. was an abused and neglected child.
The trial court gave DSS legal custody of the child at that time,
and her foster care placement was continued while DSS also pursued
reasonable efforts toward reunification. According to the record,
Respondent-father initially “worked hard on various components of
his Family Services Case Plan,” including conducting regular weekly
visits with S.F., securing and maintaining regular employment,
moving in with his parents to provide a more stable home situation
for S.F., paying child support, and complying with substance abuse
treatment recommendations. As a consequence of this progress, S.F.
left foster care and moved in for a trial placement with
Respondent-father and her paternal grandparents on 16 April 2004.
Respondent-father and S.F. moved into their own residence, across
the street from the paternal grandparents, in May 2004.
However, on 4 October 2004, DSS learned that Respondent-father
had been charged with criminal drug and weapon offenses and had
also tested positive for several controlled substances. S.F. wasthen moved back into the home of her paternal grandparents. At a
permanency planning hearing on 12 April 2005, the trial court
awarded guardianship of the child to her paternal grandparents and
directed DSS to cease reunification efforts with Respondent-father.
In that order, the trial court noted:
While it is heartbreaking to see the juvenile
lose the close relationship she had just
established with the Respondent Father, he has
not complied with substance abuse treatment
recommendations made in his assessment in
November 2004; he continues to test positive
to methamphetamine; and he is living with a
woman, who, due to previously documented drug
use, has had her child placed by the Court
with a relative.

According to DSS, the paternal grandmother and Respondent-father
were informed that a condition of awarding the guardianship of S.F.
to the paternal grandparents was that neither Respondent-father nor
his girlfriend be allowed unsupervised visits with S.F. until they
could provide evidence that they were no longer using drugs.
Nevertheless, on 7 July 2005, a report was received by DSS
that S.F. was staying with Respondent-father and his girlfriend,
and that both adults were using drugs. Respondent-father also
continued to test positive for methamphetamine. On 13 September
2005, the trial court held a hearing to consider these changes in
circumstances; in an order entered 4 November 2005, the trial court
terminated the paternal grandparents’ guardianship of S.F. and
returned her to DSS custody and foster care. On 10 November 2005,
S.F.’s mother relinquished her parental rights to S.F., permanently
transferring her legal and physical custody to DSS for the purpose
of adoption. The paternal grandparents appealed the termination oftheir guardianship, and Respondent-father appealed the cessation of
reunification efforts by DSS on his behalf.
The trial court conducted a permanency planning hearing on 24
October 2006 and concluded that termination of Respondent-father’s
parental rights should be pursued, pending the outcome of the
appeal filed by Respondent-father and the paternal grandparents.
This Court affirmed the trial court’s termination of the paternal
grandparents’ guardianship and the cessation of reunification
efforts by DSS with Respondent-father. In re S.F., 181 N.C. App.
149, 639 S.E.2d 454 (Jan. 2, 2007) (No. COA06-297) (unpublished).
Following a permanency planning hearing on 10 April 2007, the trial
court noted that DSS had been relieved of reunification efforts on
13 March 2006 and ordered that DSS pursue filing a petition for the
termination of Respondent-father’s parental rights. S.F. has been
in foster care with a family in South Carolina since 21 December
2005; the family has previously adopted her half-sister, who also
lives in the home.
On 23 May 2007, DSS filed a petition to terminate Respondent-
father’s parental rights in order to pursue a permanent plan of
adoption of S.F. by her current foster family. The record contains
a notice of hearing to Respondent-father and his attorney, as well
as to the guardian ad litem appointed to S.F. and her attorney
advocate. An affidavit of service by the DSS attorney likewise
indicates that a copy of the summons, notice of hearing, and
petition were mailed to and received by Respondent-father.
Following a hearing conducted on 21 August 2007 and 11 September2007, the trial court entered an order on 21 November 2007,
terminating Respondent-father’s parental rights as to S.F. From
that order, Respondent-father appeals, challenging a number of the
trial court’s findings of fact and conclusions of law.
At the outset, however, we note that DSS failed to issue a
summons to the juvenile or to her appointed guardian ad litem in
this case. Although not raised by the parties, “subject matter
jurisdiction may be raised at any time . . . by the court ex mero
motu
.” In re J.D.S., 170 N.C. App. 244, 248, 612 S.E.2d 350, 353,
cert. denied, 360 N.C. 64, 623 S.E.2d 263 (2005); N.C. R. App. P.
10(a) (2007). Significantly, the “summons, not the complaint,
constitutes the exercise of the power of the State to bring the
defendant before the court.” Childress v. Forsyth County Hosp.
Auth., Inc.
, 70 N.C. App. 281, 285, 319 S.E.2d 329, 332 (1984)
(citation omitted), disc. review denied, 312 N.C. 796, 325 S.E.2d
484 (1985).
According to statutory law, “upon the filing of the petition
[to terminate parental rights], the court shall cause a summons to
be issued. The summons shall be directed to . . . [t]he juvenile.”
N.C. Gen. Stat. § 7B-1106(a)(2005) (emphasis added). The statute
further provides an exception 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.” Id.; see
also In re J.A.P.
, ___ N.C. App. ___, ___, 659 S.E.2d 14, 16 (2008)
(“Plainly, where a guardian ad litem has been appointed for the
juvenile, the statute directs that service of the summons be madeon the guardian ad litem rather than on the juvenile.”). We have
likewise recently held that this requirement is jurisdictional,
such that “the failure to issue a summons to the juvenile deprives
the trial court of subject matter jurisdiction.” In re K.A.D., ___
N.C. App. ___, ___, 653 S.E.2d 427, 428-29 (2007). Thus, without
the proper issuance of a summons, “an order terminating parental
rights must be vacated for lack of subject matter jurisdiction.”
Id. at ___, 653 S.E.2d at 429; see also In re T.R.P., 360 N.C. 588,
590, 636 S.E.2d 787, 790 (2006) (“Subject matter jurisdiction is
the indispensable foundation upon which valid judicial decisions
rest, and in its absence a court has no power to act[.]”). As no
such summons was issued in this case, either to S.F. or to her
appointed guardian ad litem, we must vacate the trial court’s order
terminating Respondent-father’s parental rights to S.F.
Recognizing the need for permanence and stability in S.F.’s
life, and the apparent suitability of her current placement in
South Carolina, we do not reach this conclusion lightly.
Nevertheless, given the number of cases that have recently relied
on and discussed K.A.D. and this jurisdictional requirement, we
write further to outline the reasoning supporting this decision.
While the best interest of S.F. and other juveniles in neglect,
abuse, and dependency proceedings is our “polar star,” see In re
Montgomery
, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984), these
cases likewise concern the fundamental right of a parent “’to make
decisions concerning the care, custody, and control’ of his or her
child[] under the Due Process Clause of the Fourteenth Amendment tothe United States Constitution.” Adams v. Tessener, 354 N.C. 57,
60, 550 S.E.2d 499, 501 (2001) (quoting Troxel v. Granville, 530
U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000)). In light of the due
process concerns related to terminating this fundamental right of
Respondent-father, the requirement of a summons must be treated as
a jurisdictional prerequisite, as specified by the General
Assembly, rather than a mere procedural formality. See, e.g.,
T.R.P., 360 N.C. at 591, 636 S.E.2d at 791 (“[A] review of the
Juvenile Code reveals that . . . verification of the petition in an
abuse, neglect, or dependency action as required by N.C.G.S. § 7B-
403 is a vital link in the chain of proceedings carefully designed
to protect children at risk on one hand while avoiding undue
interference with family rights on the other.”).
Indeed, we observe that the General Assembly has established
by statute two means by which proceedings to terminate an
individual’s parental rights may be initiated: (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. § 7B-1102. If the latter means is employed, the
General Assembly has provided that the movant “shall prepare a
notice” directed to the parents of the juvenile, the guardians, the
custodian, the county department of social services charged with
the juvenile’s placement, the juvenile’s guardian ad litem, and the
juvenile if twelve years or older at the time the motion is filed. N.C. Gen. Stat. § 7B-1106.1. Thus, because the court has already
acquired subject matter jurisdiction over the juvenile and parents
because of the ongoing proceedings, a new summons is not necessary;
rather, mere notice of the hearing is sufficient.
By contrast, when a petition to terminate is filed, the
petition initiates an entirely new action before the court, rather
than simply continuing a long process begun with the petition
alleging abuse, neglect, or dependency. As such, the General
Assembly has required that a summons “shall” be issued and directed
to the parents, the guardians, the custodian, the county department
of social services charged with the juvenile’s placement, the
juvenile’s guardian ad litem, and the juvenile. Id. § 7B-1106.
Unlike the notice requirement in the case of a motion, there is no
age restriction on directing the summons to the juvenile; that is,
the statute directs that any juvenile who is the subject of a
petition to terminate parental rights must receive a summons. Id.;
see also In re I.D.G., ___ N.C. App. ___, ___, 655 S.E.2d 858, 859-
60 (2008) (noting that in many instances DSS has the option to file
a motion to terminate, requiring only a notice of hearing, or a
petition to terminate, which requires the issuance of a summons to
the juvenile).
In a case such as the one at bar, where the juvenile has been
in the custody of DSS for an extended period of time, DSS has the
option to use either of these means to begin proceedings to
terminate the parental rights of the juvenile’s parents. However,
as noted by our Supreme Court, “[t]he inherent power of thegovernment to act through its agencies and subdivisions . . . is
subject to restraint in order to preserve and maintain a proper
balance between the State’s interest in protecting children from
mistreatment and the right of parents to rear their children
without undue government interference.” T.R.P., 360 N.C. at 598,
636 S.E.2d at 794. Thus, in a proceeding implicating a fundamental
right, due process demands that DSS abide by the statutory
provisions established by our General Assembly for a court to
acquire subject matter jurisdiction over the matter. As with the
requirement to verify the petition, the issuance of a summons to
each of the parties named in the statute “is a minimally burdensome
limitation on government action[.]” Id., 636 S.E.2d at 795. If, in
some instances, the requirement is overly burdensome, then DSS may
elect to file a motion rather than a petition, thereby avoiding the
necessity of issuing a summons to the juvenile.
In the instant case, because we vacate the trial court’s order
terminating Respondent-father’s parental rights for lack of subject
matter jurisdiction, “[t]he legal status of the juvenile and the
custodial rights of the parties shall revert to the status they
were before the juvenile petition was filed[.]” N.C. Gen. Stat. §
7B-201. We note that DSS is then free to file a motion or a new
petition to terminate Respondent-father’s parental rights to S.F.,
with the statutory requirements attendant to whichever means DSS
elects to employ.
Vacated.
Judges McCULLOUGH and BRYANT concur.


Footnote: 1

N.C. Gen. Stat. § 7B-1106(a) (2005).

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