In re M.L.C., 289 N.C. App. 313 (2023)
Held:
Affirmed
- Facts: The juvenile was adjudicated dependent. Later, DSS filed a TPR petition. No summons was issued, but a Notice of Motion seeking TPR and a Notice of the TPR hearing listing March 26-27, 2022 were served on mother by sheriff. On the 2nd noticed date, mother’s attorney was present and advised the court that mother had appeared the day before (the first noticed hearing date) and was advised to return the next day. Mother was not present on the next day, and her attorney moved to continue the hearing. The court denied the continuance. No objection about service was made. The court held the TPR hearing and granted the TPR. Mother appealed. Mother raises lack of personal jurisdiction and ineffective assistance of counsel.
- Personal jurisdiction is obtained through service of process or by the party’s voluntary appearance or consent. Under Civ. Pro. Rule 12(h)(1), when a party does not raise the defense of lack of personal jurisdiction by motion or in a responsive pleading, it is waived. “[S]ummons- related defects implicate personal jurisdiction.” Sl.op.4 (citation omitted). “[A]ny form of general appearance ‘waives all defects and irregularities in the process and gives the court jurisdiction of the answering party even though there may have been no service of summons.” Id. (citations omitted). A court may obtain personal jurisdiction over a party even without a summons when that party consents or makes a general appearance, which can include appearing at the hearing without making an objection. “[L]itigants often choose to waive the defense of defective services when they had actual notice of the action and when the inevitable and immediate response of the opposing party will be to re-serve the process.” Sl.Op.5 (citation omitted). Trial counsel appeared at the hearing and did not make an objection and at the hearing, he cross-examined the witness and elicited testimony that was beneficial to mother. This is more than a cursory appearance but was a general appearance that waived any objection to personal jurisdiction.
- In a TPR, court-appointed counsel must provide effective assistance. A successful ineffective assistance of counsel claim must show the counselor performance was deficient and that deficiency was so serious that it deprived the party of a fair hearing. To prove the deprivation of a fair hearing, the party must prove there is a reasonable probability that there would have been a different result but for the counsel’s errors. Mother is unable to prove this standard and counsel’s performance was not deficient.
Category:
Termination of Parental RightsStage:
Personal JurisdictionTopic: