In re S.E.T., 375 N.C. 665 (2020)
Held:
Vacated
- Facts: This is a TPR initiated by petitioner-mother against respondent father. A summons was issued but was returned by the sheriff as unserved with a notation that respondent had no address located within the county and that respondent was not at the address provided and had been banned from that address. Petitioner sought an order for service by publication, which was granted. Notice of service by publication was made. Respondent did not answer or appear at the hearing, and the TPR was granted. Father appealed, arguing the order was void as the court did not have personal jurisdiction over him due to the failure to comply with Rule 4(j1) of the Rules of Civil Procedure.
- “A defect in service of process by publication is jurisdictional, rending any judgment or order obtained thereby void.” Sl.Op. at 6. Here, the court had no personal jurisdiction over respondent.
- Service by publication in a TPR must comply with both the provisions of G.S. 7B-1106 (which requires court findings and approval before publication) and G.S. 1A-1, Rule 4(j1). The statutory requirements for service by publication is strictly construed.
- Rule 4(j1) requires that after service is completed an affidavit be filed with the court that contains information specified in the rule including the circumstances warranting service by publication. A failure to file the affidavit that complies with the requirements of Rule 4(j1) is reversible error. The affidavit executed by the publisher does not satisfy the Rule 4(j1) requirements as it did not address the circumstances warranting service by publication. The G.S. 7B-1106 motion for publication that was signed by petitioner’s attorney under Rule 11 does not satisfy the affidavit requirement of Rule 4 (j1). Documents not under oath are not affidavits.
Category:
Termination of Parental RightsStage:
Personal JurisdictionTopic:
Publication