In re: T.N.Â
252 N.C. App. 461
N.C. Ct. App.2017Check Treatment IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1011
Filed: 4 April 2017
Guilford County, No. 15 JT 102
IN THE MATTER OF: T.E.N.
Appeal by respondent from order entered 29 April 2016 by Judge Randle L.
Jones in Guilford County District Court. Heard in the Court of Appeals 20 March
2017.
Petitioner-appellee mother, pro se.
Robert W. Ewing for respondent-appellant father.
TYSON, Judge.
Respondent-father (“Respondent”) appeals from an order terminating his
parental rights to his child, T.E.N. We vacate the trial court’s order for lack of
jurisdiction.
I. Factual Background
In 2005, Respondent and petitioner-mother (“Petitioner”) began a relationship.
T.E.N. was born out of wedlock in May 2009 in Brick, New Jersey. Respondent and
Petitioner lived together until July or August 2009, when Petitioner moved into a
women’s shelter with T.E.N.
According to trial testimony, Petitioner obtained domestic violence protective
orders against Respondent during the course of their relationship. In September
IN RE: T.E.N.
Opinion of the Court
2009, Petitioner obtained a restraining order prohibiting contact by Respondent. The
order also provided “parenting time” or visitation for Respondent with T.E.N. These
orders were neither introduced into evidence at the termination hearing nor made
part of the record on appeal.
On 26 October 2011, Petitioner sought and received a Final Restraining Order,
barring Respondent from her residence, place of employment, and barring
Respondent from having contact with Petitioner or her friend, K.O. The order was
issued from the Ocean County Superior Court, Chancery Division, Family Part (“New
Jersey court”), and grants Petitioner temporary custody of T.E.N. On 12 February
2012, the New Jersey court issued an Amended Final Restraining Order, which
barred Respondent from being present at T.E.N.’s daycare facility. The Amended
Order provides for supervised visitation with the assistance of Respondent’s mother.
At some point in 2013, Petitioner sought permission from the New Jersey court
to relocate with T.E.N. to North Carolina. In July 2013, the New Jersey court granted
Petitioner’s request. Petitioner moved to North Carolina in August 2013.
Respondent continues to reside in New Jersey.
In October 2013, Respondent sought modification of his visitation arrangement
with T.E.N. before the New Jersey court. The court’s order, made part of the record
on appeal, indicates the court modified the visitation arrangement of a 25 July 2013
order and denied reconsideration of a 28 August 2013 court order. Pursuant to the
-2-
IN RE: T.E.N.
Opinion of the Court
October order, Respondent was allowed one weekend per month of unsupervised
visitation with his son. The parties were ordered to alternate the transportation of
T.E.N. between North Carolina and New Jersey. Petitioner was ordered to provide
the transportation for the first visit. After this initial visit, Respondent did not visit
his son again.
On 6 January 2015, Petitioner filed a petition to terminate Respondent’s
parental rights. The petition alleged as grounds to terminate that: (1) Respondent
willfully abandoned the juvenile; and (2) Petitioner had custody of the juvenile and
Respondent failed without justification to pay for the care, support, and education of
the juvenile as required by the custody agreement, for a period of one year or more
preceding the filing of the petition. See N.C. Gen. Stat. § 7B-1111(a)(4),(7) (2015).
Following a hearing, the trial court found the existence of willful abandonment on 29
April 2016 and entered an order terminating Respondent’s parental rights.
Respondent filed written notice of appeal on 12 May 2016.
III. Subject Matter Jurisdiction
In a termination of parental rights action, the trial court’s subject matter
jurisdiction is established by N.C. Gen Stat. § 7B-1101.
The court shall have exclusive original jurisdiction to hear
and determine any petition or motion relating to
termination of parental rights to any juvenile who resides
in, is found in, or is in the legal or actual custody of a county
department of social services or licensed child-placing
agency in the district at the time of filing of the petition or
-3-
IN RE: T.E.N.
Opinion of the Court
motion. The court shall have jurisdiction to terminate the
parental rights of any parent irrespective of the age of the
parent. Provided, that before exercising jurisdiction under
this Article, the court shall find that it has jurisdiction to
make a child-custody determination under the provisions
of G.S. 50A-201, 50A-203, or 50A-204. The court shall have
jurisdiction to terminate the parental rights of any parent
irrespective of the state of residence of the parent.
Provided, that before exercising jurisdiction under this
Article regarding the parental rights of a nonresident
parent, the court shall find that it has jurisdiction to make
a child-custody determination under the provisions of G.S.
50A-201 or G.S. 50A-203, without regard to G.S. 50A-204
and that process was served on the nonresident parent
pursuant to G.S. 7B-1106.
N.C. Gen. Stat. § 7B-1101 (2015). “Subject matter jurisdiction refers to the power of
the court to deal with the kind of action in question.” Harris v. Pembaur, 84 N.C. App.
666, 667,353 S.E.2d 673
, 675 (1987).
III. Issue
Respondent contends, inter alia, the trial court did not acquire subject matter
jurisdiction over the termination proceeding under the provisions of the Uniform
Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). N.C. Gen. Stat. § 50A-
201 et. seq. We agree.
IV. Standard of Review
“Whether a court has jurisdiction is a question of law reviewable de novo on
appeal.” In re J.D., 234 N.C. App. 342, 344,759 S.E.2d 375
, 377 (2014) (citation
omitted).
-4-
IN RE: T.E.N.
Opinion of the Court
V. Analysis
Neither party contests the New Jersey court’s initial and continued child
custody determinations. Both Petitioner and Respondent referred to multiple New
Jersey court orders at the hearing. Only three of the orders issued by the New Jersey
court were admitted into evidence at the hearing and made part of the record on
appeal.
Under the UCCJEA, once a court makes an initial child custody determination,
the state in which that court is located generally has “exclusive continuing
jurisdiction over the determination.” N.C. Gen. Stat. § 50A-202(a) (2015). The
UCCJEA provides the circumstances under which the courts of a second state are
permitted to exercise jurisdiction over and modify a prior custody determination from
the original state. See N.C. Gen. Stat. §§ 50A-202, 203, 204 (2015). “Modification” is
defined as “a child-custody determination that changes, replaces, supersedes, or is
otherwise made after a previous determination concerning the same child, whether
or not it is made by the court that made the previous determination.” N.C. Gen. Stat.
§ 50A-102(11) (2015).
Under N.C. Gen. Stat. § 50A-203, a North Carolina court may not modify an
out-of-state custody determination unless two conditions are met. First, the North
Carolina court must possess jurisdiction to make an initial determination under N.C.
Gen. Stat. § 50A-201(a)(1) or N.C. Gen. Stat. § 50A-201(a)(2). N.C. Gen. Stat. § 50A-
-5-
IN RE: T.E.N.
Opinion of the Court
203. In this case, both parties agree this first condition is satisfied, as North Carolina
was “the home state of [T.E.N.] on the date of the commencement of the proceeding.”
N.C. Gen. Stat. § 50A-201(a)(1) (2015).
The second condition is met if one of the following occurs:
(1) The court of the other state determines it no longer
has exclusive, continuing jurisdiction under G.S. 50A-202
or that a court of this State would be a more convenient
forum under G.S. 50A-207; or
(2) A court of this State or a court of the other state
determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in the
other state.
N.C. Gen. Stat. § 50A-203.
Respondent continues to reside in New Jersey. The Guilford County District
Court did not gain jurisdiction over this case through N.C. Gen. Stat. § 50A-203(2),
and the district court did not purport to gain jurisdiction pursuant to this subsection.
The Termination Order does not list a specific statute as the basis to issue its order.
The court’s finding of fact seven states, “[t]he Honorable Melanie Appleby of
the New Jersey Family Court, on March 28, 2014, transferred the jurisdiction of the
custody proceedings from New Jersey to North Carolina.” The trial court apparently
concluded it could assert subject matter jurisdiction over the case pursuant to N.C.
Gen. Stat. § 50A-203(1).
-6-
IN RE: T.E.N.
Opinion of the Court
Under subsection N.C. Gen. Stat. § 50A-203(1), there are two grounds under
which the Guilford County District Court would gain jurisdiction. The first is if the
New Jersey court had determined it no longer possessed jurisdiction under section
50A-202. The applicable portion of N.C. Gen. Stat. § 50A-202 provides that a court:
which has made a child-custody determination consistent
with G.S. 50A-201 or G.S. 50A-203 has exclusive,
continuing jurisdiction over the determination until:
(1) [it] determines that . . . the child, the child’s
parents, and any person acting as a parent [no
longer] have a significant connection with [that]
State and that substantial evidence is no longer
available in [that] State concerning the child’s care,
protection, training, and personal relationships; or
(2) [it] or a court of another state determines that the
child, the child’s parents, and any person acting as a
parent do not presently reside in [the issuing state].
N.C. Gen. Stat. § 50A-202(a).
“‘[T]he original decree State is the sole determinant of whether jurisdiction
continues. A party seeking to modify a custody determination must obtain an order
from the original decree State stating that it no longer has jurisdiction.’” In re N.R.M.,
165 N.C. App. 294, 300,598 S.E.2d 147
, 151 (2004) (quoting Official Comment to N.C.
Gen. Stat. § 50A-202).
In In re K.U-S.G., 208 N.C. App. 128,702 S.E.2d 103
(2010), a Pennsylvania
court had entered initial orders regarding the custody of two juveniles living within
the state. Prior to the petitioners’ and the juveniles’ move to North Carolina, the
-7-
IN RE: T.E.N.
Opinion of the Court
Pennsylvania court had entered orders granting legal custody of the juveniles to the
petitioners and allowing the respondent supervised visitation. Id. at 129-30,702 S.E.2d at 104
. Eventually, the petitioners filed petitions to terminate the respondent’s parental rights.Id. at 130
,702 S.E.2d at 105
. The North Carolina court
purported to terminate the respondent’s parental rights.
The North Carolina court stated “it had contacted ‘the Court of Common Pleas,
Fayette County, Juvenile Division and determined that Fayette County no longer
wished to retain jurisdiction.’” Id. at 134,702 S.E.2d at 107
. The record in the case
did not include an order from the Pennsylvania court indicating that it no longer
exercised jurisdiction. This Court held the Pennsylvania court did not lose
jurisdiction under N.C. Gen. Stat. § 50A-202(a)(1). Id.
In the present case, Petitioner testified at the termination hearing that the
New Jersey court had transferred jurisdiction to North Carolina in March 2014. No
such order was produced, introduced into evidence, or made a part of the record on
appeal. Without an order from the New Jersey court relieving itself of jurisdiction,
which all parties agree it had previously exercised, the Guilford County District Court
lacked any basis to conclude it acquired subject matter jurisdiction over the case
pursuant to N.C. Gen. Stat. § 50A-202. See In re N.R.M. at 300, 598 S.E.2d at 151
(vacating the trial court’s termination order where an Arkansas court made the initial
-8-
IN RE: T.E.N.
Opinion of the Court
child-custody determination and “there [was] no Arkansas order in the record stating
that Arkansas no longer [had] jurisdiction”).
N.C. Gen. Stat. § 50A-203(1) also allows a North Carolina court to gain
jurisdiction over a child-custody matter initiated in another state, if the other state
determined North Carolina to be a more convenient forum under N.C. Gen. Stat. §
50A-207 (2015). Nothing in the In re K.U.-S.G record showed the Pennsylvania court
had made the determination that North Carolina would be a more convenient forum
under UCCJEA § 203(1) (N.C. Gen. Stat. § 50A-203(1)). Since the district court
lacked subject matter jurisdiction under either relevant prong of the UCCJEA, this
Court vacated the North Carolina court’s termination order. In re K.U.-S.G., 208 N.C.
App. at 135, 702 S.E.2d at 108. Here, no order in the record demonstrates that the
New Jersey court ever made such a convenient forum determination.
Since neither method of obtaining jurisdiction under N.C. Gen. Stat. § 50A-
203(1) is satisfied, the Guilford County District Court erroneously determined it had
acquired subject matter jurisdiction. See id. The order of the trial court terminating
Respondent’s parental rights is vacated. In light of this ruling, it is unnecessary for
us to address Respondent’s remaining arguments on appeal.
VI. Conclusion
-9-
IN RE: T.E.N.
Opinion of the Court
The Guilford County District Court never acquired subject matter jurisdiction
to enter the order appealed from. Without any jurisdictional basis, the order
terminating Respondent’s parental rights is vacated. It is so ordered.
VACATED.
Judges BRYANT and DAVIS concur.
- 10 -