In re: J.H.Â
244 N.C. App. 255
| N.C. Ct. App. | 2015Background
- James (born Apr 2013 in NC) lived with mother in NC until Nov 2013; mother took him to Texas 22 Nov 2013 and returned to NC 20 Feb 2014. DSS obtained nonsecure custody 7 Mar 2014 and placed James with maternal grandparents.
- A Texas court issued an order in Jan 2014 (mother temporary sole custody; father no contact) that was known to DSS and the NC trial court but is not in the appellate record.
- NC juvenile court adjudicated James neglected/dependent (Jun 2014), denied mother visitation (Sep 2014 custody review), and on 23 Feb 2015 entered a permanency plan of guardianship awarding guardianship to maternal grandparents, limited monthly supervised visitation to mother, and waived further review hearings.
- Mother appealed, arguing (inter alia) lack of UCCJEA jurisdiction, improper reliance on unadmitted written reports, failure to verify grandparents’ understanding/resources, error in finding reunification impossible within six months and futile, inadequate visitation specification, and improper waiver of review hearings.
- Court of Appeals: vacated the June 2014 adjudication/disposition, Sept 2014 custody review, and Feb 2015 permanency orders and remanded for further proceedings because the record lacks the Texas order and the trial court did not satisfy UCCJEA procedures for modification or temporary jurisdiction for the later orders.
Issues
| Issue | Mother’s Argument | DSS/GAL’s Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction under UCCJEA (modification of Texas order) | NC court lacked jurisdiction because a Texas initial custody determination existed and NC did not obtain the required Texas court determination or statutory communications | Trial court had emergency/nonsecure custody authority and record sufficiently showed Texas order; appeal should be dismissed for incomplete record | Vacated subsequent NC orders and remanded: trial court had temporary emergency jurisdiction to enter the initial 7 Mar 2014 nonsecure custody order, but lacked proper modification jurisdiction for later orders absent compliance with UCCJEA or a Texas court determination; remand required to obtain/assess the Texas order and communicate with Texas court as required |
| Use of written reports not formally admitted at permanency hearing | Trial court improperly relied on DSS/GAL/psych reports that were not formally tendered or admitted | Permanency hearings may be informal and the court may consider written reports; mother failed to object at hearing | Waiver: mother did not object at hearing; court may consider written reports in permanency proceedings and Rule 10 waiver bars appellate review |
| Verification that proposed guardians understood guardianship & had adequate resources | Trial court failed to verify grandparents’ understanding and financial/resources adequacy as required by statutes | Grandparents had successfully cared for James for months; trial court’s findings suffice | Reversed on this point: trial court must have competent evidence and make an independent determination that the guardians understand legal significance and have adequate resources before awarding guardianship; remand to develop such findings |
| Conclusion that return to mother within 6 months is impossible | Mother argued her sobriety/treatment progress supports continued reunification efforts and return within a reasonable time | Court found long addiction history, recent inpatient/outpatient treatment, domestic violence history, and child’s developmental delays tied to neglect | Held: Findings (mother’s long addiction history, only recent treatment, domestic violence, child’s needs and improvements in placement, and psychologist’s recommendation for 9 months’ sobriety) support conclusion that return within 6 months would be contrary to child’s best interests; court should reassess on remand when jurisdictional issues resolved |
| Finding that further reunification efforts would be futile | Mother contended recent compliance and clean time made further reunification appropriate | DSS/GAL relied on history and expert recommendation requiring sustained recovery before reunification | Court’s conclusion could be supported by the findings, but on remand court must reassess in light of current facts and make adequate findings supporting any determination of futility |
| Visitation order (monthly supervised visits but duration unspecified) | Visitation plan is defective because it fails to specify duration of each visit as required by statute | Trial court intended minimal supervised monthly visitation at grandparents’ location | Vacated/Remand: trial court must specify frequency, minimum length, and supervision in any visitation order per statute |
| Waiver of further six-month review hearings | Trial court improperly waived further review though statutory prerequisites (e.g., child in placement ≥1 year) were not met | GAL/DSS argued waiver may be appropriate given permanency plan | Vacated/Remand: trial court failed to make the required findings (including 1-year placement) and cannot waive reviews absent clear, cogent, convincing findings per statute |
Key Cases Cited
- In re S.D.A., R.G.A., V.P.M., & J.L.M., 170 N.C. App. 354 (recognizes trial court must have subject-matter jurisdiction in juvenile cases)
- In re H.L.A.D., 184 N.C. App. 381 (subject-matter jurisdiction cannot be conferred by consent; UCCJEA/PkPA constraints)
- In re K.U.-S.G., D.L.L.G., & P.T.D.G., 208 N.C. App. 128 (UCCJEA modification prerequisites explained)
- Davis v. Davis, 53 N.C. App. 531 (trial court must inquire about interstate jurisdiction when parties/children appear to reside in another state)
- In re E.X.J. & A.J.J., 191 N.C. App. 34 (temporary emergency jurisdiction may permit initial nonsecure custody but later orders require attention to UCCJEA home-state analysis)
- In re J.W.S., 194 N.C. App. 439 (trial court must communicate with original-state court when temporary emergency jurisdiction is invoked)
- In re B.G., 197 N.C. App. 570 (to award custody to nonparent, court must find parent unfit or acted inconsistently with parental status)
- In re P.A., N.C. App. (772 S.E.2d 240) (trial court must have competent evidence the proposed guardian has adequate resources and understands responsibilities)