"[A] trial court's general jurisdiction over the type of proceeding or over the parties does not confer jurisdiction over the specific action." In re A.B.D., 173 N.C.App. 77, 86, 617 S.E.2d 707, 714 (2005) (quotation and citation omitted). Indeed, "before a court may act there must be some appropriate application invoking the judicial power of the court with respect to the matter in question." Id. (quotation and citations omitted). Because I find that DSS has failed to show that an "appropriate application invoking the judicial power of the court," namely a summons, was issued in this matter, I conclude that the trial court lacked the subject matter jurisdiction to hear this case. I would therefore vacate the trial court's order.
North Carolina General Statute § 7B-401 states that "[t]he pleading in an abuse, neglect, or dependency action is the petition. The process in an abuse, neglect, or dependency action is the summons." N.C. Gen. Stat. § 7B-401 (2005). This Court has held that when no summons is issued, the trial court does not acquire subject matter jurisdiction, and the underlying order must be vacated. See In re Mitchell, 126 N.C.App. 432, 433, 485 S.E.2d 623, 624 (1997) (vacating the trial court's order and holding that "[w]here no summons is issued the court *809acquires jurisdiction over neither the persons nor the subject matter of the jurisdiction."). Nevertheless, "any act which constitutes a general appearance obviates the necessity of service of summons and waives the right to challenge the court's exercise of personal jurisdiction over the party making the general appearance." A.B.D., 173 N.C.App. at 83, 617 S.E.2d at 712 (quotation and citation omitted) (emphasis added). Significantly, however, "[a] court cannot undertake to adjudicate a controversy on its own motion; rather, it can adjudicate a controversy only when a party presents the controversy to it[.]" Id. at 87, 617 S.E.2d at 714 (quotation and citation omitted) (emphasis added).
In the A.B.D. case, this Court held that a "termination of parental rights action should have been treated as if it had never been filed" because a summons had lost its vitality. Id. at 86-87, 617 S.E.2d at 713-14 (quotation and citation omitted). The petitioner in that case had issued a summons but failed to serve the summons on the respondent within the required thirty days, and further failed to obtain an endorsement, extension, or alias/pluries summons that would have kept the summons from becoming dormant. Id. at 84-86, 617 S.E.2d at 712-13. We therefore concluded that the failure to extend the original summons meant that "the termination of parental action should have been treated as if it had never been filed[,]" and, relevant to the instant case, "where an action has not been filed, a trial court necessarily lacks subject matter jurisdiction." Id. at 86, 617 S.E.2d at 713.
I find the A.B.D. case to be controlling here. Where, in A.B.D., a summons had merely lost its vitality, here the court file and record show no summons was ever issued at all.7 Indeed, during the 24 June 2005 review hearing, and in its Order on Need for Continued Nonsecure Custody, the trial court noted that no summons had been issued to Respondents. Despite this notice of a lack of summons, DSS moved forward with its case, and the record fails to indicate when, or whether, a summons was ever issued. Without a summons, the trial court had no subject matter jurisdiction over this specific matter, even if it has general jurisdiction to hear juvenile cases.
Moreover, although the majority correctly notes that Respondents appeared at several of the hearings at the trial court level, and had representation through both counsel and guardians ad litem, those appearances waived personal jurisdiction only, not the subject matter jurisdiction of the court. North Carolina General Statute § 1-75.7 states that "[a] court of this State having jurisdiction of the subject matter may, without serving a summons upon him, exercise jurisdiction in an action over a person: (1) Who makes a general appearance in an action[.]". N.C. Gen.Stat. § 1-75.7 (2005) (emphasis added). Thus, a trial court must first acquire subject matter jurisdiction over a specific matter before it can determine that it has personal jurisdiction by virtue of a waiver through general appearance.
Our cases have largely dealt with the issue of personal jurisdiction in such matters, not subject matter jurisdiction, and have occasionally conflated the two. See, e.g., In re A.J.M., 177 N.C.App. 745, 751-52, 630 S.E.2d 33, 37 (2006) (finding that respondent had waived the right to challenge insufficiency of service of process and lack of personal jurisdiction by making a general appearance); In re Howell, 161 N.C.App. 650, 655-56, 589 S.E.2d 157, 160 (2003) (finding that trial court gained jurisdiction over the respondent through her waiver and general appearances);
*810Mitchell, 126 N.C.App. at 434, 485 S.E.2d at 624 (vacating order adjudicating juvenile neglected because no summons was issued so trial court did not have subject matter jurisdiction nor personal jurisdiction because respondent objected to insufficiency of service of process at initial hearing); In re J.L.P., ___ N.C.App. ___, 640 S.E.2d 446 (2007) (finding that juvenile had waived defense of insufficiency of process by making general appearance and not objecting at hearing, but making no statement as to subject matter jurisdiction even though no summons issued); In re A.W.M., 176 N.C.App. 766, 627 S.E.2d 351 (2006) (finding that respondent had waived issue of insufficiency of process by "fully participating in all proceedings of the trial court without raising the issue" but making no specific statement as to subject matter jurisdiction even though no summons was issued), disc. review denied, 361 N.C. 219, 642 S.E.2d 241 (2007).
Nevertheless, given the uncertain history of the copy of the summons in this case, I conclude that the court file and record lack evidence that the summons was issued in a timely manner. I would therefore vacate the order of the trial court for lack of subject matter jurisdiction in this matter. The purpose of a summons to confer subject matter jurisdiction on a trial court, and the requisite distinction between the ability to waive personal jurisdiction but not subject matter jurisdiction, are questions fundamental to our judicial system. Accordingly, I respectfully dissent from the majority opinion.
---------------
Here, although DSS has offered an affidavit from the Clerk stating that she issued a summons in this case, and has attached a copy of that summons to their Motion to Amend the Record on Appeal, the copy provided has no time or date stamp showing that it was actually issued or filed in a timely manner. This copy therefore does not meet the requirements of our appellate rules and, as such, cannot be included in the record on appeal.
---------------