In re C.A.C
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NO. COA12-305 NORTH CAROLINA COURT OF APPEALS Filed: 4 September 2012 IN THE MATTER OF: C.A.C. Gaston County No. 11 JT 13 Appeal by respondent-father from order entered 8 December 2011 by Judge Angela Hoyle in Gaston County District Court. Heard in the Court of Appeals 20 August 2012. Timothy T. Leach for petitioner-appellee mother. Michael E. Casterline for respondent-appellant father. HUNTER, JR., Robert N., Judge. Respondent-father appeals from an order parental rights to C.A.C., the minor child. the mother of the juvenile, failed to terminating his Because petitioner, give the statutorily required notice, we vacate the trial court s order. On terminate 18 January 2011, petitioner respondent-father s parental filed a rights. petition to Petitioner stated that she and respondent-father had been married in 2006 and divorced in 2008. Petitioner was granted custody of the juvenile by order entered 15 February 2008. Petitioner alleged -2that respondent-father had no relationship with the juvenile and had not seen the child in two years. Initially, petitioner respondent-father at attempted Neuse to serve Correctional summons was returned unserved. the summons Institution, but on the Eventually, because respondent- father s whereabouts were unknown, petitioner sought permission to serve respondent-father by publication. On 24 August 2011, the trial court entered an order permitting petitioner to serve respondent-father via publication in a newspaper circulating in Gaston County. affidavit On stating 10 that October 2011, petitioner respondent-father had been filed an served by publication by way of an advertisement inserted into The Gaston Gazette. A hearing was held on the petition to terminate respondentfather s parental rights on 16 November 2011. Respondent-father did not appear at the hearing and was represented by appointed provisional counsel. The trial court determined that grounds existed respondent-father s that it to terminate was in the best interests of parental the juvenile respondent-father s parental rights be terminated. father appeals. rights and that Respondent- -3Respondent-father first argues that the trial court lacked personal jurisdiction because petitioner failed to give proper notice. We agree. Upon the filing of a petition to terminate parental rights, N.C. Gen. Stat. § 7B-1106(a)(1) (2011) requires that a summons regarding juvenile. the proceeding Issuance of be issued to the the summons is necessary personal jurisdiction over the parents. parents to of the obtain See In Re K.J.L., 363 N.C. 343, 348, 677 S.E.2d 835, 838 (2009) ( [S]ummons-related defects implicate personal summons shall completed be jurisdiction. ). as provided established by G.S. 1A-1, Rule 4(j). 1106(a) (2011). under Service the of the procedures N.C. Gen. Stat. § 7B- However, when the whereabouts of a parent are unknown, service may be by publication in accordance with N.C. Gen. Stat. § 1A-1, Rule 4(j1). In Re Joseph Children, 122 N.C. App. 468, 471, 470 S.E.2d 539, 541 (1996). When serving a party by publication, a petitioner must also comply with the notice requirements set forth in N.C. Gen. Stat. § 7B-1106(b) (2011). Id. (citing former N.C. Gen. Stat. § 7A- 289.27 and In re Clark, 76 N.C. App. 83, 86, 332 S.E.2d 196, 199, appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985)). Here, petitioner s service by publication failed to comply with -4N.C. Gen. Stat. § 7B-1106(b)(4) (2011). N.C. Gen. Stat. § 7B- 1106(b)(4) provides that the summons must include [n]otice that if the parent is indigent and is not already represented by appointed counsel, the parent is entitled to appointed counsel, that provisional appointment of counsel has provisional been counsel appointed, shall be court at the first hearing after service[.] inserted into The Gaston Gazette and that reviewed by the the The advertisement completely omitted any reference to respondent-father s right to counsel. We note that, even with a defective summons, a court may properly obtain personal jurisdiction over a party who consents or makes a general appearance[.] S.E.2d at 837. appearance. K.J.L., 363 N.C. at 346, 677 In this case, however, respondent-father made no While respondent-father was represented by counsel, said counsel was only provisionally appointed and should have been dismissed when respondent-father failed to appear. See N.C. Gen. Stat. § 7B-1101.1(a)(1) (2011) ( At the first hearing after service upon the respondent parent, the court shall dismiss the provisional counsel if the respondent parent: (1) Does not appear at the hearing[.] ). Although the trial court failed to dismiss counsel prior to the termination hearing, the presence of provisionally appointed counsel was insufficient to -5constitute process. notice a general appearance To conclude otherwise and service and waive the defects in would defeat the purpose of requirements. Accordingly, because petitioner failed to give the statutorily required notice, the trial court s order is vacated. See In re Alexander, 158 N.C. App. 522, 526, 581 S.E.2d 466, 469 (2003) ( [W]here a movant fails to give the required notice, prejudicial error exists, and a new hearing is required. ). Vacated. Judges BRYANT and BEASLEY concur.
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