Summary
holding that failure to issue and serve summons on respondent father did not divest court of subject matter jurisdiction to find child dependent when summons was issued and served on mother
Summary of this case from In re E.X.J. and A.J.JOpinion
No. COA01-871
Filed 16 July 2002
Juveniles — dependency adjudication — summons to both parents required
An order adjudicating a child dependent and awarding custody to her aunt and uncle was vacated where a summons was not issued to nor served on the father. Earlier cases holding that it was not necessary to serve a dependency petition on both parents were based on a statute which has now been changed. Moreover, the Uniform Child Custody Jurisdiction and Enforcement Act applies to all child custody determinations arising out of child custody proceedings and requires notice to both parents.
Judge Timmons-Goodson dissenting.
Appeal by respondent father from order entered 30 April 1997 by Judge John S. Hair, Jr. in Cumberland County District Court. Heard in the Court of Appeals 23 April 2002.
Staff Attorney John F. Campbell for petitioner-appellee, Cumberland County Department of Social Services.
Hatley Stone, P.A., by Michael A. Stone, for respondent-appellant, Bernard Poole. Deborah Koenig, Attorney Advocate, for guardian ad litem.
Bernard Poole (Respondent) appeals an adjudication and disposition order entered 30 April 1997 adjudicating his daughter Raven Poole (Raven) dependent and awarding legal and physical custody of Raven to her maternal aunt and uncle, Jamesetta and Dwight Nixon (collectively, the Nixons).
In a petition dated 7 October 1996, the Cumberland County Department of Social Services (Petitioner) alleged Raven to be a dependent and neglected juvenile. The petition named the mother and Respondent as the "parent/guardian/custodian/caretaker(s)." The petition stated the mother's address but listed Respondent's address as "unknown." A summons was not issued to Respondent; thus he was never served with a summons and a copy of the petition, personally or by publication. The trial court entered a temporary nonsecure order dated 20 December 1996 granting legal and physical custody of Raven to the Nixons. Thereafter, on 30 April 1997, the trial court entered an order adjudicating Raven to be a dependent juvenile and awarded legal and physical custody to the Nixons.
On 2 May 2000, Respondent filed a motion to dismiss the dependency adjudication/disposition due to "lack of . . . valid service of process." This motion was denied by the trial court in an order filed 30 November 2000.
The dispositive issue is whether the issuance and service of a summons on each parent is a prerequisite to the trial court's authority to enter an adjudicatory and dispositional order addressing the abuse, neglect, or dependency of a juvenile.
A trial court has the authority to enter an adjudicatory and dispositional order in a chapter 7B abuse, neglect, or dependency case only if it has subject matter jurisdiction under sections 7B-200(a) and 50A-201 and notice has been provided pursuant to sections 7B-407 and 50A-205(a). N.C.G.S. §§ 7B-200(a), 7B-407, 50A-201 (2001); N.C.G.S. § 50A-205(a) (2001) (notice must be given to both parents unless a parent's parental rights have been previously terminated); see N.C.G.S. § 50A-102(4) (2001) (the Uniform Child-Custody Jurisdiction and Enforcement Act (the UCCJEA) applies to proceedings for abuse, neglect, and dependency); In Re Van Kooten, 126 N.C. App. 764, 768, 487 S.E.2d 160, 162-63 (1997) (the "jurisdictional requirements of the [UCCJEA] must . . . be satisfied for the district court to have jurisdiction to adjudicate abuse, neglect, and dependency petitions"); Copeland v. Copeland, 68 N.C. App. 276, 278, 314 S.E.2d 297, 299 (1984); see also In re Mitchell, 126 N.C. App. 432, 433, 485 S.E.2d 623, 624 (1997). While it is not necessary for the trial court to satisfy all the elements of personal jurisdiction in order to have the authority to enter a chapter 7B adjudicatory or dispositional order in an abuse, neglect, or dependency case, see Harris v. Harris, 104 N.C. App. 574, 577-79, 410 S.E.2d 527, 529-30 (1991) (personal jurisdiction requires compliance with the applicable long-arm statute, notice, and minimum contacts); Shingledecker v. Shingledecker, 103 N.C. App. 783, 785, 407 S.E.2d 589, 591 (1991) ("personal jurisdiction over . . . nonresident is not required under the [UCCJEA]"), service of a summons on both parents is required. Indeed, sections 7B-406 and 7B-407 require the summons be issued to and served on both parents of a juvenile alleged to be abused, neglected, or dependent unless a parent's parental rights have been previously terminated. N.C.G.S. §§ 7B-406, -407 (2001) (issuance of a summons to and service on "the parent" required); see N.C.G.S. § 7B-101 (2001) ("[t]he singular includes the plural"); N.C.G.S. § 50A-205(a) (2001).
Service of summons on the parents, however, is not necessary in order for the trial court to have authority to enter temporary nonsecure custody orders for the emergency protection of a juvenile. See N.C.G.S. §§ 7B-502, -506(h) (2001); Hart v. Hart, 74 N.C. App. 1, 6, 327 S.E.2d 631, 635 (1985) (if the jurisdictional requirements of the UCCJEA are met, the trial court may enter an ex parte order for temporary custody prior to service of process or actual notice).
We acknowledge this Court has previously stated that "`it is not necessary to serve [a dependency] petition on both parents, but only on one of them.'" In the Matter of Arends, 88 N.C. App. 550, 554, 364 S.E.2d 169, 171 (1988) (quoting In re Yow, 40 N.C. App. 688, 691, 253 S.E.2d 647, 649, disc. review denied, 297 N.C. 610, 257 S.E.2d 223 (1979)). This Court's holding in Yow, however, is based on a statute which provided that the summons must be served upon "the parents or either of them." N.C.G.S. § 7A-283 (1969) (amended 1979). As the legislature has changed the statute on which Yow relied, we are not bound by the holding of that case or Arends, which relied on Yow. In any event, as noted above, the UCCJEA now applies to abuse, neglect, and dependency actions under chapter 7B; and it requires notice to both parents.
The dissent disagrees with the UCCJEA's applicability to intrastate matters. We disagree. The UCCJEA applies to all child-custody determinations arising out of child-custody proceedings. See N.C.G.S. § 50A-102(3)-(4) (2001). The statutory definition of child-custody proceedings includes proceedings for neglect, abuse and dependency and makes no reference that these proceedings are limited to interstate matters. See N.C.G.S. § 50A-102(4). Accordingly, as stated by Professor Homer H. Clark, Jr., there is "no authority for [the dissent's position] in the Act." Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 12.5 n. 73 (2d ed. 1988); see also Van Kooten, 126 N.C. App. at 768, 487 S.E.2d at 162-63. We further note the practical necessity of compliance with the UCCJEA as the official comment to section 50A-205 states that "[a]n order is entitled to interstate enforcement and nonmodification under this Act only if there has been notice and an opportunity to be heard" pursuant to this Act. N.C.G.S. § 50A-205 official commentary. In any event, the record seems to indicate Respondent was a resident of New York at the time the dependency/neglect petition was filed, thus making this an interstate matter.
In this case, there is no dispute that Respondent is the father of Raven and that, although he was listed as the father in the petition, a summons was not issued to or served on him. Thus, the trial court did not have the authority to enter the 30 April 1997 order adjudicating Raven to be a dependent juvenile and granting permanent custody to the Nixons. Accordingly, the 30 April 1997 order and any subsequent dispositional orders are vacated.
Vacated and remanded.
Judge HUNTER concurs.
Judge TIMMONS-GOODSON dissents.