The majority's opinion holds a second summons, issued and served without a new verified petition or complaint being filed or with a court order issued and attached to allow a delayed filing, revives and reinvokes the court's subject matter jurisdiction to decide allegations contained in a discontinued and void petition. I disagree. The original summons and verified petition was not served on respondents within sixty days and no extension by endorsement or alias and pluries summons was issued by the Clerk of Superior Court. That action was discontinued and the trial court lost jurisdiction over the proceedings based upon the original petition. I vote to vacate the trial court's order terminating respondents' parental rights for lack of subject matter jurisdiction. I respectfully dissent.
I. Standard of Review
"[A] court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking." Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. rev. denied, 352 N.C. 676, 545 S.E.2d 428 (2000). "The question of subject matter jurisdiction may properly be raised for the first time on appeal." Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 421, 248 S.E.2d 567, 571 (1978), disc. rev. denied, 296 N.C. 583, 254 S.E.2d 32 (1979).
II. Jurisdiction
Termination of parental rights proceedings are governed by the North Carolina Rules of Civil Procedure. In re Bullabough, 89 N.C.App. 171, 179, 365 S.E.2d 642, 646 (1988). The majority's opinion correctly states N.C. Gen.Stat. § 7B-1101 (2005) grants the district court exclusive original jurisdiction over matters regarding the termination of parental rights. In juvenile actions, DSS filing a verified petition invokes the court's subject matter jurisdiction. In re Triscari Children, 109 N.C.App. 285, 288, 426 S.E.2d 435, 437 (1993).
Rule 4 of the North Carolina Rules of Civil Procedure governs process and the service of that process. N.C. Gen.Stat. § 1A-1, Rule 4 (2005). "A defect in service of process is jurisdictional, rendering any judgment or order obtained thereby void." In re Shermer, 156 N.C.App. 281, 291, 576 S.E.2d 403, 410 (2003) (citations and quotations omitted). At a minimum, due process requires notice of the pendency of an action and the opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865, 873 (1950).
A. Rule 3 and Rule 4
Rule 4 requires a summons to be issued within five days of filing the complaint or verified petition. N.C. Gen.Stat. § 1A-1, Rule 4(a) (2005). If a summons is issued without a complaint or verified petition attached, the party must make an "application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days." N.C. Gen. Stat. § 1A-1, Rule 3(a)(1) (2005). The court must then "make[ ] an order stating the nature and purpose of the action and granting the requested permission." N.C. Gen.Stat. § 1A-1, Rule 3(a)(2) (2005). "The summons and the court's order shall be served in accordance with the provisions of Rule 4." N.C. Gen.Stat. § 1A-1, Rule 3(a) (2005) (emphasis supplied).
The summons and petition must be served upon the opposing party within sixty days of its issuance. N.C. Gen.Stat. § 1A-1, Rule 4(c) (2005). If the summons is not served on the parties within sixty days, "Rule 4(d) permits the action to be continued, so as to relate back to the date of issue of the original summons, by an endorsement from the clerk or issuance of an alias or pluries summons within ninety days of the issuance of the last preceding summons." Lemons v. Old Hickory Council, Boy Scouts, Inc., 322 N.C. 271, 275, 367 S.E.2d 655, 657 (1988). DSS neither obtained an endorsement nor sought issuance of an alias or pluries summons in this case.
"Rule 4(e) specifically provides that where there is neither endorsement nor issuance of alias or pluries summons within ninety days after issuance of the last preceding summons, the action is discontinued as to any defendant *62not served within the time allowed and [is] treated as if it had never been filed." Dozier v. Crandall, 105 N.C.App. 74, 78, 411 S.E.2d 635, 638 (emphasis supplied) (citing Johnson v. City of Raleigh, 98 N.C.App. 147, 148-49, 389 S.E.2d 849, 851, disc. rev. denied, 327 N.C. 140, 394 S.E.2d 176 (1990)), disc. rev. denied, 332 N.C. 480, 420 S.E.2d 826 (1992). "[W]here an action has not been filed, a trial court necessarily lacks subject matter jurisdiction." In re A.B.D., 173 N.C.App. 77, 86, 617 S.E.2d 707, 713 (2005).
DSS filed a verified petition to terminate respondents' parental rights on 4 October 2004. Pursuant to Rule 4(a), a summons was issued to respondent-mother and respondent-father on 7 October 2004. The original summons and verified petition were not served on either of respondents and the Sheriff returned the process as unserved. Neither an endorsement of the original summons nor an alias or pluries summons was issued by the Clerk of Superior Court within ninety days after issuance of the original summons. N.C. Gen.Stat. § 1A-1, Rule 4(e) (2005). The original verified petition to terminate the parental rights of both respondents was "discontinued and [is] treated as it was never filed." Dozier, 105 N.C.App. at 78, 411 S.E.2d at 638; see Snead v. Foxx, 329 N.C. 669, 673, 406 S.E.2d 829, 832 (1991) (When Rule 4 has not been complied with, it provides for discontinuance of the action.). A second summons was issued and served upon respondent-mother on 18 October 2004 and upon respondent-father on 26 and 31 January 2005.
The majority's opinion correctly states "even where a summons is not yet dormant, the issuance of a new summons without reference to the original summons discontinues the original action and initiates a new one." The majority's opinion purports to hold the issuance of the second summons without DSS filing a new verified petition reinvoked subject matter jurisdiction on 18 October 2004 over respondent-mother and on 31 January over respondent-father. I disagree.
Rule 3 of the North Carolina Rules of Civil Procedure states, "a civil action is commenced by filing a complaint with the court." N.C. Gen.Stat. § 1A-1, Rule 3. Similarly, in juvenile actions, the filing of a verified petition establishes the district court's subject matter jurisdiction. In re Triscari Children, 109 N.C.App. at 288, 426 S.E.2d at 437. Here, the second summons was served upon respondent-mother and respondent-father without DSS attaching a court order granting a delayed filing of the petition required by Rule 3(a) or filing a new verified petition to terminate respondents' parental rights as is required by N.C. Gen.Stat. § 7B-1104.
The second summons failed to relate back to the original verified petition because the original petition is deemed "discontinued and treated as it was never filed." Dozier, 105 N.C.App. at 78, 411 S.E.2d at 638. Without a valid verified petition or court order allowing delayed filing, the trial court did not acquire subject matter jurisdiction to enter its order terminating respondents' parental rights. N.C. Gen.Stat. § 7B-1104; N.C. Gen.Stat. § 1A-1, Rule 3. The trial court's order is "void" and must be vacated. Shermer, 156 N.C.App. at 291, 576 S.E.2d at 410.
III. Conclusion
Non-compliance with Rule 3 and Rule 4 divests the trial court of subject matter jurisdiction and renders its order "void." Id. at 291, 576 S.E.2d at 410. In the present case, DSS did not comply with either Rule 3 or Rule 4.
The original summons and verified petition was not served upon respondents within sixty days of its issuance pursuant to Rule 4(c). The termination proceedings were "discontinued" and the original verified petition is "treated as it was never filed." Dozier, 105 N.C.App. at 78, 411 S.E.2d at 638.
DSS failed to obtain an extension by endorsement or to have an alias and pluries summons issued "to revive [the] discontinued action." Byrd v. Trustees of Watts Hospital, Inc., 29 N.C.App. 564, 569, 225 S.E.2d 329, 332 (1976).
The second summons issued and served upon respondents "commenced a new action on the date of its issuance." Stokes v. Wilson and Redding Law Firm, 72 N.C.App. 107, 111, 323 S.E.2d 470, 474 (1984), disc. rev. denied, 313 N.C. 612, 332 S.E.2d 83 (1985).
*63No new verified petition or court order granting delayed filing was attached to the second summons as is statutorily required to invoke the jurisdiction of the district court. N.C. Gen.Stat. § 7B-1104; N.C. Gen.Stat. § 1A-1, Rule 3.
The majority's opinion holds serious consequences for all civil actions beyond the facts and circumstances of this case, as it would overlook violations of Rule 3 and Rule 4 of the North Carolina Rules of Civil Procedure and disregards the absence of subject matter jurisdiction. No new verified petition or court order granting a delayed filing was attached to the summons before us. The trial court was without subject matter jurisdiction when it entered its order terminating respondents' parental rights.
In the absence of subject matter jurisdiction, the trial court's order is void and should be vacated. I vote to vacate the trial court's order terminating respondents' parental rights. I respectfully dissent.