In re A.J.C., ___ N.C. App. ___, 817 S.E.2d 475 (2018)

Held: 
Vacated
  • Facts: DSS filed a petition to terminate respondent father’s parental rights after the trial court in an underlying neglect and dependency action ordered it to do so after the concurrent permanent plan was changed to adoption as primary and reunification as secondary. Respondent father’s attorney in the underlying neglect and dependency proceeding was permitted to withdraw, and a new provisional attorney was appointed to father. DSS was unable to personally serve father and published a notice in the newspaper for 3 consecutive weeks. Father did not appear at the TPR hearing, and his provisional counsel was released.  DSS informed the court that it unsuccessfully attempted to find father and make personal service and so served by publication. The TPR was granted, and father appeals, arguing lack of personal jurisdiction based on improper service by publication.
  • When a TPR petition is filed, issuance of a summons and service of that summons under Rule 4 of the Rules of Civil Procedure is required for the court to acquire personal jurisdiction over the respondent, unless the respondent consents to personal jurisdiction or makes a general appearance.
  • When a parent’s whereabouts are unknown, service may be made by publication under Rule 4(j1). Rule 4(j1) requires that after service by publication is complete, an affidavit is filed with the court showing the publication, circumstances warranting publication, and information (if any) about the location of the party who was served. Failure to file the affidavit is reversible error. The affidavit by DSS only shows where and when the publication was run and fails to meet the other requirements of Rule 4(j1), specifically it lacked information about DSS’s diligent attempts to locate father. There was no evidence at the hearing of DSS’s compliance with Rule 4(j1).
  • The father did not consent to personal jurisdiction or make a general appearance in the action. A general appearance requires the respondent to have been an “actor in the cause” and participated in some way in the action. Sl. Op. at 9 (citations omitted). Father’s provisional counsel’s notification to the court of father’s absence is not a general appearance.
  • Without personal jurisdiction, a judgment against that party is void.
  • Author’s Note: This opinion does not address the legislative change to G.S. 7B-1106(a) addressing service by publication in a TPR, effective October 1, 2017. Before service may be made by publication, the court must (1) find the respondent cannot be personally served despite diligent efforts made by the petitioner and (2) approve the form of the notice.
Category:
Termination of Parental Rights
Stage:
Personal Jurisdiction
Topic:
Publication
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