In Re Poole , 151 N.C. App. 472 ( 2002 )

TIMMONS-GOODSON, Judge,

dissenting.

Because I disagree with the majority’s conclusion that the trial court lacked jurisdiction to enter the order adjudicating Raven to be a dependent juvenile, I respectfully dissent.

Under the Juvenile Code, the district courts of North Carolina have “exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent.” N.C. Gen. Stat. § 7B-200(a) (2001). The issuance and service of process is the means by which the court obtains jurisdiction, see N.C. Gen. Stat. § 7B-401 (2001), and thus where no summons is issued, the court acquires jurisdiction over neither the parties nor the subject matter of the action. See In re Mitchell, 126 N.C. App. 432, 433, 485 S.E.2d 623, 624 (1997); In re McAllister, 14 N.C. App. 614, 616, 188 S.E.2d 723, 725 (1972). In the instant case, it is undisputed that Raven’s mother was properly served with the summons. The trial court therefore clearly had subject matter jurisdiction over the action and personal jurisdiction over the mother. See In the Matter of Arends, 88 N.C. App. 550, 554-55, 364 S.E.2d 169, 172 (1988). The trial court obtained personal jurisdiction over respondent when he appeared in court on 24 May 2000. The issue is therefore whether the trial court’s initial lack of personal jurisdiction over the juvenile’s father divests the court of its ability to enter an order adjudicating the juvenile to be dependent. I conclude that the trial court could properly enter such an order.

As the majority recognizes, it is not necessary for the trial court to have personal jurisdiction over the juvenile’s parents in order to have the authority to enter a chapter 7B adjudicatory or dispositional order in an abuse, neglect, or dependency case. The majority nevertheless concludes that, without service of a summons on both parents, the trial court is without “authority” to enter an adjudicatory or dispositional order relating to abuse, neglect, or dependency. Although it is unclear what the majority means by the term “authority,” the majority appears to base its conclusion that summons must be issued to both parents before the court can properly enter an order of adjudication on requirements set forth in the UCCJEA. The majority is mistaken in its conclusion on several grounds.

First, the requirements set forth by the UCCJEA do not divest a court of jurisdiction where, as here, no other court has any claim to jurisdiction over the action. The UCCJEA is a jurisdictional act relating to child custody proceedings. See N.C. Gen. Stat. § 50A-101 (2001). It seeks, among other goals, to “[a] void jurisdictional competition and conflict with courts of other States in matters of child custody” and to “[p]romote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child[.]” N.C. Gen. Stat. § 50A-101, Official Comment. It also seeks to “[facilitate the enforcement of custody decrees of other States.” Id. The mandates set forth in the UCCJEA, while applicable to adjudicatory hearings, see, e.g., In re Malone, 129 N.C. App. 338, 342, 498 S.E.2d 836, 838 (1998), do not divest the trial court of its authority to enter an order of adjudication under the facts of the present case. The petition for adjudication of neglect and dependency was brought pursuant to the Juvenile Code, and there is no indication in the record that any other court in any other State might have competing jurisdiction. As such, the UCCJEA simply does not control the outcome of the case at bar.

Further, the section of the UCCJEA addressing notice requirements states that “[b]efore a child-custody determination is made under this Article, notice and an opportunity to be heard in accordance with the standards of G.S. 50A-108 must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State[.]” N.C. Gen. Stat. § 50A-205(a) (2001) (emphasis added). As previously noted, the instant action was brought pursuant to the Juvenile Code, and not the UCCJEA. Under the law of this State, it is well established that “in order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them.” Arends, 88 N.C. App. at 554, 364 S.E.2d at 171; see also In re Yow, 40 N.C. App. 688, 691, 253 S.E.2d 647, 649 (holding that the trial court properly entered an order of adjudication where notice was served on only one parent), disc. review denied, 297 N.C. 610, 257 S.E.2d 223 (1979). I am unpersuaded by the majority’s conclusion that we are not bound by this established precedent. Moreover, although the UCCJEA requires that notice be given to “any parent whose parental rights have not been previously terminated,” see N.C. Gen. Stat. § 50A-205(a), the UCCJEA “does not govern the enforceability of a child-custody determination made without notice or an opportunity to be heard.” N.C. Gen. Stat. § 50A-205(b). Finally, under the UCCJEA, the trial court need not have personal jurisdiction over a party in order to make a child-custody determination. See N.C. Gen. Stat. § 50A-201(c) (2001).

Thus, because the trial court had subject matter jurisdiction over the action and personal jurisdiction over at least one of the parties, the trial court did not lack “authority” and could properly enter the order adjudicating Raven to be a dependent child. The true issue and nature of respondent’s argument, which the majority fails to address, is that of due process. See Arends, 88 N.C. App. at 555, 364 S.E.2d at 172 (noting that the failure to serve the father with notice of neglect and dependency proceedings raises the question of due process and not jurisdiction). Under section 7B-406 of the North Carolina Juvenile Code,

[i]mmediately after a petition has been filed alleging that a juvenile is abused, neglected, or dependent, the clerk shall issue a summons to the parent, guardian, custodian, or caretaker requiring them to appear for a hearing at the time and place stated in the summons. . . . Service of the summons shall be completed as provided in G.S. 7B-407 ....

N.C. Gen. Stat. § 7B-406(a) (2001). As the biological father of the juvenile in the instant case, respondent was entitled to notice of the dependency and neglect proceedings concerning his daughter. Although the petition correctly identified respondent as the father, no summons was ever issued or served on him. “[T]he giving of notice in cases involving child custody is subject to due process requirements.” Yow, 40 N.C. App. at 692, 253 S.E.2d at 650.

To determine whether the lack of notice unreasonably deprived respondent of his due process rights requires a balancing of respondent’s right to custody of his child with the State’s interest in the welfare of children, as well as Raven’s right to be protected by the State from abuse or neglect. See Arends, 88 N.C. App. at 555, 364 S.E.2d at 172. At the adjudicatory hearing, Raven’s mother stipulated to the court that she had a history of substance abuse, that she had frequently left Raven with her aunt and uncle, and that she had exposed Raven to domestic violence. Finding these matters to be true by clear and convincing evidence, the trial court concluded that Raven was a dependent juvenile and placed her in the custody of her maternal aunt and uncle, with whom she had been living since June 1995. Such a custody determination is reviewable upon the filing of a motion in the matter by any party. See N.C. Gen. Stat. § 7B-906(b) (2001). The court may, upon reviewing the matter, return custody to a parent if the court finds that it is in the best interests of the juvenile to do so. See N.C. Gen. Stat. § 7B-906(d) (2001). Three years after the court entered its order, respondent filed his motion to dismiss the order of adjudication.

Balancing the interest of the State in Raven’s welfare with that of the respondent’s right that he not be arbitrarily deprived of custody of his child, and considering Raven’s right of protection from neglect, in conjunction with the potential for placement of Raven to be returned to her father after appropriate review by the court, I would hold that petitioner’s due process rights were adequately protected. See Arends, 88 N.C. App. at 555-56, 364 S.E.2d at 172; Yow, 40 N.C. App. at 692, 253 S.E.2d at 650. I would therefore affirm the order of the trial court.