Phillips v. Phillips , 18 N.C. App. 65 ( 1973 )

196 S.E.2d 59 (1973) 18 N.C. App. 65

In the Matter of Janice Carol PHILLIPS and Patricia Anne Phillips.
Mary POTTS, Director, Child Welfare Division of the Mecklenburg County Department of Social Services, Petitioner,
v.
Donald Raymond PHILLIPS, Respondent.

No. 7326DC190.

Court of Appeals of North Carolina.

April 25, 1973.

Ruff, Perry, Bond, Cobb, Wade & McNair by William H. McNair, Charlotte, for petitioner appellee.

Shelley Blum, Charlotte, for respondent appellant.

VAUGHN, Judge.

It is apparent to us that the petitioner proceeded and the district court acted on the assumption that, in proceedings to terminate parental rights, service by publication may be authorized when "the court finds it is impractical to obtain personal service. . . ." The quoted language is found in G.S. § 7A-283. Petitioner argues that that section expressly provides the procedure for service of process in proceedings to terminate parental rights under G.S. § 7A-288. We do not agree. The method of determining the manner of service permitted by G.S. § 7A-283 in proceedings to adjudicate whether a child is delinquent, dependent, neglected or undisciplined is not applicable in proceedings to terminate parental rights under G.S. § 7A-288.

In cases where the court has adjudicated a child to be neglected or dependent, the court has authority to enter an order terminating parental rights with respect to such child, upon a finding of the existence of any of the several factual circumstances set out in G.S. § 7A-288. Before conducting a hearing to consider any case involving termination of parental rights under G.S. § 7A-288, the parent shall be notified by personal service of the summons and petition or "under the procedures established by Rule 4 of the Rules of Civil Procedure of chapter 1A of the North Carolina General Statutes." G.S. § 7A-288. Since there was no personal service in the case before us, the court's authority to proceed with the hearing depended upon whether service on respondent was under the procedures established by Rule 4.

Respondent's motion questioned the validity of the purported service of process. It was then incumbent upon the court to hear the evidence, find the facts and determine the validity of the service. To sustain service by publication plaintiff must show that the case is one in which service by publication is authorized and that it was made in accordance with the statutory requirements. Harrison v. Hanvey, 265 N.C. 243, 143 S.E.2d 593.

In cases where service by publication is otherwise authorized the same may be had on a natural person who: cannot after due diligence be personally served in the manner prescribed by Rule 4(j)(1); is not inhabitant of or found within the state; is concealing his personal whereabouts to avoid service of process, is a transient person, or his residence is unknown. Rule 4(j)(9). Such person's address, whereabouts, dwelling house or usual place of abode must be unknown and cannot with due diligence be ascertained, or there must be "a diligent but unsuccessful attempt to serve the party under either paragraph a or under paragraph b or under paragraphs a and b of this subsection (9)." If the post office address of the party to be served can with reasonable diligence be ascertained, a copy of the notice must be mailed to the party. "Upon completion of such service there shall be filed with the court an affidavit showing the publication and mailing in accordance with the requirements of G.S. 1-75.10(2) and the circumstances warranting the use of service by publication." Rule 4(j)(9)c. No such affidavit appears in the record before us. The record contains merely an affidavit that notice was duly published in a qualified newspaper on the dates indicated.

Neither District Judge Belk's order of 8 May 1972 reciting that it appeared to be "impractical" to obtain personal service nor the findings of fact by District Judge Griffin support the conclusion that respondent was properly before the court "by virtue of the service of process . . . in the manner prescribed by the Rules of Civil Procedure . . . ." It is manifest that petitioner failed to comply with Rule 4 as it relates to service by publication. Since service of process was not properly made, the order terminating the parental rights of respondent should have been set aside. Edwards v. Edwards, 13 N.C.App. 166, 185 S.E.2d 20.

The order from which respondent appealed is reversed and the order entered in this cause on 20 June 1972 is vacated.

Reversed.

BROCK and MORRIS, JJ., concur.