Opinion
No. 08-185.
Filed 17 June 2008. This case not for publication.
Carteret County No. 06 JA 51
Appeal by respondent-mother from order entered 12 December 2007 by Judge Jerry Waddell in Carteret County District Court. Heard in the Court of Appeals 21 May 2008.
Carteret County Department of Social Services, by Debra Gilmore, for petitioner-appellee. Winifred H. Dillon, for respondent-mother appellant. N.C. Administrative Office of the Courts, by Pamela Newell Williams, for guardian ad litem.
S.A.B.S. ("respondent") appeals from order entered, which denied her motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure. We affirm.
I. Background
On 20 April 2006, Carteret County Department of Social Services ("DSS") obtained a nonsecure custody order for J.W.S., took custody of J.W.S. the following day, and filed a juvenile petition, which alleged J.W.S. was abused, neglected, and dependent based on actions by J.W.S.'s father. A summons was issued to respondent at her address in New York. The summons was never served. On 24 April 2006, the trial court continued nonsecure custody of J.W.S. with DSS. On 25 April 2006, DSS filed another juvenile petition and alleged J.W.S. was abused, neglected, and dependent based on actions by both respondent and J.W.S.'s father. A summons was again issued to respondent at her address in New York. The summons was served by certified mail on 1 May 2006.
On 19 May 2006, the trial court held a continued nonsecure custody hearing and filed its order on 22 February 2007. The trial court found that respondent had "requested court appointed counsel and the Public Defender's office was appointed to represent her." The trial court continued nonsecure custody of J.W.S. with DSS.
On 16 August 2006, DSS filed a third juvenile petition and alleged J.W.S. was neglected and dependent based on actions by J.W.S.'s father. The three juvenile petitions were adjudicated on 26 January and 9 March 2007. Respondent was represented by counsel, who was present at both adjudication hearings. The trial court adjudicated J.W.S. to be a neglected and dependent juvenile, continued custody with DSS, and ordered that the matter proceed to a combined dispositional and permanency planning hearing on 4 May 2007.
On 4 May 2007, the trial court held a dispositional and permanency planning hearing. Respondent was again represented by counsel. The permanent plan was changed to reunification with J.W.S's father with a concurrent plan of adoption. This plan was later changed to adoption only on 13 July 2007. Respondent's appointed counsel was present. On 21 August 2007, DSS moved to terminate both respondent's and J.W.S.'s father's parental rights. Notice of the motion to terminate was served on respondent on 29 August 2007. On 21 September 2007, respondent's appointed counsel moved for an extension of time to answer or otherwise plead. On 10 October 2007, respondent filed a motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure.
The trial court heard respondent's motion to dismiss on 5 November 2007 and denied respondent's motion on 12 December 2007. Respondent appeals.
II. Issue
Respondent argues the trial court erred when it denied her motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure.
III. Guardian ad Litem Motion to Dismiss Appeal
On 6 March 2008, the Guardian ad Litem moved to dismiss respondent's appeal as interlocutory. The Guardian ad Litem argued because respondent appealed the denial of a motion to dismiss, her appeal was interlocutory and should be dismissed. We disagree.
Respondent's motion to dismiss was made pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure and based upon insufficient minimum contacts. N.C. Gen. Stat. § 1-277(b) (2007) states, " [a]ny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause." (Emphasis supplied). Our Supreme Court has held "that the right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen. Stat. § 1-277(b)], is limited to rulings on `minimum contacts' questions, the subject matter of Rule 12(b)(2)." Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982).
Consistent with N.C. Gen. Stat. § 1-277(b) and our Supreme Court's reasoning in Love, the Guardian ad Litem's motion to dismiss respondent's appeal is denied. 305 N.C. at 581, 291 S.E.2d at 146.
IV. Personal Jurisdiction
Respondent argues the trial court erred when it denied her "motion to dismiss for lack of personal jurisdiction because respondent lacks minimum contacts with the State of North Carolina such that exercising jurisdiction over her would violate due process." We disagree.
A. Standard of Review
"The standard of review of an order determining personal jurisdiction is whether the findings are supported by competent evidence in the record; if so, this Court must affirm the order." Better Business Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995). "If the presumed findings of fact are supported by competent evidence, they are conclusive on appeal despite evidence to the contrary." Cameron-Brown Co. v. Daves, 83 N.C. App. 281, 285, 350 S.E.2d 111, 114 (1986).
B. Analysis
We review precedents over a non-resident respondent challenging in personam jurisdiction in North Carolina. "[A] defendant who makes a general appearance without objection waives the issue of insufficiency of service of process and submits to the personal jurisdiction of the court." In re A.J.M., 177 N.C. App. 745, 752, 630 S.E.2d 33, 37 (2006) (citing N.C. Gen. Stat. § 1-75.7 (2005)). "[A]ny act which constitutes a general appearance obviates the necessity of service of summons and waives the right to challenge the court's exercise of personal jurisdiction over the party making the general appearance." In re A.B.D., 173 N.C. App. 77, 83, 617 S.E.2d 707, 712 (2005) (quoting Lynch v. Lynch, 302 N.C. 189, 197, 274 S.E.2d 212, 219 (1981)). "[A] general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person." In re Blalock, 233 N.C. 493, 504, 64 S.E.2d 848, 856 (1951) (citation omitted).
Here, respondent was served with the second DSS petition and specifically requested that North Carolina counsel be appointed. Counsel was appointed and appeared on her behalf at least nine times prior to the 5 November 2007 hearing on respondent's Rule 12(b)(2) motion to dismiss. At no time prior to the filing of her motion to dismiss did respondent or her counsel raise the issue of personal jurisdiction or file a motion to enter a limited appearance to contest jurisdiction. Without such motion or other limiting circumstances, respondent's counsel's prior appearances constituted general appearances on behalf of respondent. Williams v. Williams, 46 N.C. App. 787, 789, 266 S.E.2d 25, 27 (1980).
Having found that defendant has made a general appearance through his attorney, we note that, after a defendant has submitted himself to the jurisdiction of the court by conduct constituting a general appearance, he may not assert the defense that the court has no jurisdiction over his person either by motion or answer under Rule 12(b).
Id. at 789-90, 266 S.E.2d 25, 28 (internal quotation omitted). The trial court properly denied respondent's motion to dismiss. This assignment of error is overruled.
V. Conclusion
Respondent was properly served and specifically requested North Carolina counsel to be appointed to represent her. The trial court granted respondent's request, and her appointed counsel made numerous general appearances without any limitations, and submitted respondent to the personal jurisdiction of the court. In re A.J.M., 177 N.C. App. at 752, 630 S.E.2d at 37. The trial court properly denied respondent's motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure. The order appealed from is affirmed.
Affirmed.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).