No. 9118SC902 | N.C. Ct. App. | Oct 5, 1993
Intervenor-appellants contend that the trial court committed reversible error in denying their motion to dismiss, arguing that the Superior Court does not have jurisdiction over these adoption proceedings. They further argue that the trial court erred in setting aside the Clerk’s rescission of the interlocutory decree of adoption. We disagree with those contentions, and accordingly affirm the court’s decisions and remand for an evidentiary hearing on the best interests of the minor child.
Larry Wayne Tarlton (Duncan) was born on 15 September 1988. Since his birth, he has been kidnapped, adjudicated as a neglected child, placed in a foster home, and sent to New Jersey. The record indicates that his young life has been a continuous series of temporary measures by various adults intending to provide for his “best interests.” His natural father was in prison at the time DSS first became involved with the case; his mother was living in a shelter. The Duncans, petitioner-appellees here, kept Larry as foster parents pursuant to a contract with DSS from August 1989, after the district court determined him to be a neglected child, until May 1990, when the court found that it was in his “best interest” to live with his maternal cousins. The Puglisis, the intervenor-appellants, have had Larry in their physical custody since that time.
It is well settled in North Carolina that in any case involving the adoption of a child, “. . . the court’s paramount concern is the child’s welfare.” Oxendine v. Dept. of Social Services, 303 N.C. 699" court="N.C." date_filed="1981-08-31" href="https://app.midpage.ai/document/oxendine-v-catawba-county-department-of-social-services-1299819?utm_source=webapp" opinion_id="1299819">303 N.C. 699, 708, 281 S.E.2d 370, 376 (1981). Further, the provisions of Chapter 48 (Adoptions), Chapter 50 (Divorce and Alimony), and Chapter 50A (Uniform Child Custody Jurisdiction Act) (UCCJA), the various statutes at issue here, all have as their central focus, their “polar star”, the best interests of the minor child. See N.C.G.S. §§ 48-1(3) (1991), 50-13.1, 5043.2(a) (1987 and 1992 Supp.), and 50A-l(a)(l), (2) (1989). With that in mind, we proceed to the issues presented.
N.C. Gen. Stat. § 48-12 states, “Adoption shall be by a special proceeding before the clerk of the superior court.” The only procedure for the adoption of minors is that prescribed by G.S. Chapter 48. “A superior court judge has no jurisdiction in adoption proceedings except upon appeal from the clerk.” In re Daughtridge, 25 N.C. App. 141" court="N.C. Ct. App." date_filed="1975-03-19" href="https://app.midpage.ai/document/in-re-adoption-of-daughtridge-1371286?utm_source=webapp" opinion_id="1371286">25 N.C. App. 141, 145, 212 S.E.2d 519, 521 (1975).
It is clear that the Superior Court acquired jurisdiction at the moment the clerk transferred the case. The clerk was in fact directed by the language of G.S. § 1-273 to transfer the case to the court once issues of fact and law regarding the natural parents’ consent to the adoption, DSS’s consent to the adoption, and the pending action in New Jersey became considerations. There is no question that the applicable statutes conferred jurisdiction on the court in the adoption proceeding.
The intervenor-appellant’s right to physical custody of the child was by order from the district court. The district court gained jurisdiction over the child as a neglected child pursuant to N.C.G.S. § 7A-517(21). The district court properly terminated its jurisdiction once the adoption petition was filed. “Jurisdiction over adoption proceedings is vested solely in superior court. Thus, the district court has no jurisdiction to act once a petition for adoption is filed, and its jurisdiction is in abeyance once the petition is filed.” In re James S., 86 N.C. App. 364" court="N.C. Ct. App." date_filed="1987-07-07" href="https://app.midpage.ai/document/matter-of-james-s-1359210?utm_source=webapp" opinion_id="1359210">86 N.C. App. 364, 366, 357 S.E.2d 430, 431 (1987). Since the jurisdiction of the district court, which “undoubtedly possesses general subject matter jurisdiction over child custody disputes”, Sloop v. Friberg, 70 N.C. App. 690" court="N.C. Ct. App." date_filed="1984-10-16" href="https://app.midpage.ai/document/sloop-v-friberg-8907250?utm_source=webapp" opinion_id="8907250">70 N.C. App. 690, 693, 320 S.E.2d 921" court="N.C. Ct. App." date_filed="1984-10-16" href="https://app.midpage.ai/document/sloop-v-friberg-1254768?utm_source=webapp" opinion_id="1254768">320 S.E.2d 921, 923 (1984), had ended, and thé Supreme Court of New Jersey had held that the provisions of the UCCJA conferred only limited jurisdiction upon that court “until such time as the courts of the State of North Carolina can conduct a hearing . . .”, the only proper forum for the evidentiary hearing was the Superior Court
Finally, as to the clerk’s rescission of the interlocutory decree of adoption, we find that N.C.G.S. § 48-18 is typically dispositive, providing that “[s]uch decree shall be provisional only and may be rescinded or modified at any time prior to the final order.” However, once the superior court acquires jurisdiction, the trial judge may set aside a previous order of the clerk, without finding an abuse of discretion or error of law by the clerk. Bynum v. Fidelity Bank, 219 N.C. 109, 12 S.E.2d 898 (1941). Therefore, the trial court was within its discretion to set aside the decree without the necessity of findings of fact or conclusions of law justifying the determination.
We therefore hold for all of the above reasons that the Superior Court of Guilford County is the proper forum for disposition of this matter and affirm the decision of the trial court.
Affirmed.