Opinion
No. COA09-995.
Filed April 6, 2010.
Guilford County No. 08JB772.
Appeal by juvenile from order entered 4 December 2008 by Judge Patrice A. Hinnant in Guilford County District Court and order entered 19 February 2009 by Judge Polly D. Sizemore in Guilford County District Court. Heard in the Court of Appeals 26 January 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Gail E. Dawson, for the State. Paul Y.K. Castle for the juvenile.
A.B., a juvenile, appeals from a 4 December 2008 order adjudicating him delinquent and a 19 February 2009 disposition order. After careful consideration, we affirm the orders of the trial court.
On 3 November 2008, multiple juvenile petitions were filed again A.B. A.B.'s mother was served with a juvenile summons and notice of hearing on 5 November 2008. On 13 November 2008 a hearing was held before the Honorable Lawrence McSwain. A.B's attorney, mother, father, and other members of his family were present at the hearing; however, A.B. was not present. It was determined from the court file that A.B. had not been served with the summons and petition. Upon questioning A.B.'s mother, it was determined that A.B. had been missing since the previous Monday and "didn't know of the court date." The mother stated that A.B. had been missing from home and she wanted him picked up because he was "getting . . . out of hand." The trial court subsequently issued a secure custody order on A.B. for his failure to appear. Counsel for A.B. objected to the issuance of a secure custody order based on a lack of service on A.B., but the trial court judge overruled the objection and the secured custody order was issued. On 17 November 2008, A.B. was located and placed into detention. A.B. was served with two juvenile summonses and notice of hearing and a secure custody order. On 17 November 2008, a hearing was held during which A.B. had a first appearance, waived probable cause, and was kept in detention under a new secure custody order.
On 24 November 2008, a secure custody hearing was held and the presiding district court judge ordered that A.B. continue being held in secure custody. On 4 December 2008, A.B. was adjudicated delinquent and was ordered to be held in custody until disposition on 15 January 2009, on which day he was released to his mother and ordered to remain under house arrest.
A.B. timely filed an appeal claiming that the trial court improperly denied his motion to dismiss based on lack of subject matter jurisdiction. A.B. argues that the trial court lacked subject matter jurisdiction over the case because A.B. had not been properly served with a summons and juvenile petition prior to his hearing. A.B. relies on N.C. Gen. Stat. § 7B-1806, which states: "The summons and petition shall be personally served upon the parent, the guardian, or custodian and the juvenile not less than five days prior to the date of the scheduled hearing." N.C. Gen. Stat. § 7B-1806 (2009). Because A.B. was not successfully served prior to being ordered into custody, A.B. argues that the trial court then lacked subject matter jurisdiction, which can never be waived. See In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006) ("Subject matter jurisdiction cannot be conferred upon a court by consent, waiver or estoppel[.]") (quotations and citations omitted). A.B. frames the issue on appeal as follows: Did the trial court properly deny defendant's motion to dismiss based on lack of subject matter jurisdiction on the grounds that A.B. had not been served prior to his custody hearing. For the reasons articulated below, we hold that the trial court properly denied defendant's motion to dismiss; the failure to serve A.B. did not deprive the trial court of subject matter jurisdiction.
Contrary to A.B.'s assertion, § 7B-1806 implicates personal jurisdiction, not subject matter jurisdiction. This Court recently addressed whether failure of process constitutes lack of subject matter jurisdiction or personal jurisdiction. In re J.D.L., ___ N.C. App. ___, 681 S.E.2d 485, 489 (2009); see also In re K.J.L., 363 N.C. 343, 344, 677 S.E.2d 835, 836 (2009) (holding that the lack of a proper summons implicates personal jurisdiction rather than subject matter jurisdiction). J.D.L. concerned an action to terminate the parental rights of the respondent. A summons was issued to the respondent but was returned unserved; however, the respondent was present at the hearing. Id. at ___, 681 S.E.2d at 487. The respondent argued that the order terminating her parental rights "must be vacated because the trial court lacked subject matter jurisdiction[.]" Id. at ___, 681 S.E.2d at 488. This Court explained that "even failure to legally issue a summons implicated only personal jurisdiction" and that "the summons is not the vehicle by which a court obtains subject matter jurisdiction over a case." Id. at 6, 681 S.E.2d at 488 (quotations, additional emphasis, and citations omitted). Instead, "the summons affects jurisdiction over the person rather than the subject matter; [therefore] . . . a general appearance by a civil defendant waive[s] any defect in or nonexistence of a summons." Id. at ___, 681 S.E.2d at 489 (quotations, emphasis, and citations omitted; alteration in original). Thus, the correct question in this case is whether A.B. waived personal jurisdiction, not whether the service defect deprived the trial court of subject matter jurisdiction.
The State argues that A.B. submitted himself to the jurisdiction of the trial court by making a general appearance, thereby waiving his right to service. This Court has held that "[d]elinquency proceedings under the Juvenile Code are civil in nature, and accordingly, proceedings in juvenile matters are to be governed by the Rules of Civil Procedure." In re Hodge, 153 N.C. App. 102, 105, 568 S.E.2d 878, 880 (2002) (quotations and citations omitted).
In civil cases, . . . a court may not exercise jurisdiction over a person without valid service of process. However, a person may submit himself to the jurisdiction of the court, if he makes a general appearance, even if the court has not already obtained jurisdiction over defendant by serving him with process.
. . . Our courts have applied a very liberal interpretation to the question of a general appearance and almost anything other than a challenge to personal jurisdiction or a request for an extension of time be considered a general appearance.
Id. at 105-06, 568 S.E.2d at 880 (quotations and citations omitted). Here, A.B. made several appearances before the trial court, none of which was a challenge to personal jurisdiction or a request for an extension of time. These appearances were general appearances and subjected A.B. to the jurisdiction of the trial court. Thus, by making a general appearance before the trial court, A.B. waived his right to service. Accordingly, the trial court had personal jurisdiction over A.B. and properly denied his motion to dismiss.
The orders of the trial court are affirmed.
Affirmed.
Judges JACKSON and HUNTER, JR., Robert N., concur.
Report per Rule 30(e).