In re H.L.A.D.

• Citation: 646 S.E.2d 425
• Decision Date: 03 July 2007
• Docket Number: No. COA07-34.,COA07-34.
• Court: Court of Appeal of North Carolina (US)
• Parties: In the Matter of H.L.A.D., Minor child.

646 S.E.2d 425

In the Matter of H.L.A.D., Minor child.

No. COA07-34.

Court of Appeals of North Carolina.

July 3, 2007.

Appeal by respondent father from order entered 14 September 2006 by Judge Thomas G. Taylor, in Gaston County District Court. Heard in the Court of Appeals 23 April 2007.

Sofie W. Hosford, Wilmington, for petitioners-appellees, James R. Helms and Crystal Helms.

Page Dolley Morgan, Gastonia, for Guardian ad Litem.

Duncan B. McCormick, Lillington, for respondent-appellant father.

STEELMAN, Judge.

When a court of this State, in an initial custody order, awards custody of a child to custodial guardians who thereafter move out of North Carolina, the courts of this State maintain exclusive, continuing jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act when the guardians file a petition, in a separate action, for the termination of parental rights.

H.D. was born in 2002 in Gaston County, North Carolina. On 27 March 2003, H.D. was found with her father, Chad D. (respondent), while he "was under the influence of marijuana[.]" Respondent "had left two loaded unsecured guns[,] a handgun and a rifle, within the reach of [one-year old H.D.]" At that time, respondent "had mental health problems" and "suffered from alcohol abuse."

On 28 March 2003, H.D. was placed in the custody of Gaston County Department of Social Services (DSS), and on 13 May 2003, the court adjudicated H.D. to be neglected and dependent. H.D. was placed with Kelly A. (mother). Thereafter, mother and respondent resumed their relationship, and mother and H.D. moved in with respondent, in violation of a court order. DSS removed H.D. from mother's custody.

On 19 August 2003, the court approved a case plan ordering that respondent "submit to random drug screens, comply with parenting training, anger management and drug and psychological evaluations." Prior to August 2003, respondent attended only two of five scheduled supervised visitations with H.D.

On 21 October 2003, the court placed H.D. in foster care with Tony and Christine Helms, relatives of H.D.'s mother, and ordered that respondent comply with the recommendations of DSS. Between October 2003 and 14 January 2004, the court found that "[mother and respondent] made minimal efforts to comply with recommendations and remedy the conditions that necessitated removal." Respondent's contact with Tony and Christine Helms was "disruptive and negative," and respondent's "repeated interference" resulted in the foster parents "surrendering [H.D.] to [DSS] rather than deal further with [respondent]."

On 14 March 2005, the District Court of Gaston County, North Carolina, entered an order, to which respondent consented, granting custody of H.D. to James R. and Crystal Helms, who were also relatives of H.D.'s mother.

On 27 June 2005, the court entered an order amending the 14 March 2005 order to require respondent to submit to "hair follicle drug tests." The court also scheduled telephonic contact between respondent and H.D.

On 31 August 2005, the court entered an order suspending visitation and finding that respondent had not submitted to drug tests as previously ordered. Respondent testified that he "had no good excuse" for not taking the required drug tests.

On 17 May 2006, respondent sought to reinstate visitation with H.D. through a motion in the cause, on grounds that he had complied with the court's 31 August 2005 order. Respondent complied with the order in that he had submitted to a hair follicle drug test, but the results of the test were positive for marijuana metabolites. On 21 June 2005, the court entered an order denying respondent visitation. After the court's order on 21 June 2005, respondent made "no effort to comply with the ordered drug tests."

In February 2006, the court entered an order finding that H.D. had been placed with James R. and Crystal Helms for more than one year and that placement was stable. The trial court found that father violated the March 2005 order by failing to take required drug tests, by interfering with the Helms' peace and quiet through unwarranted "inquiries regarding [H.D.] in an uncooperative, confrontational, and belligerent manner[,]" by refusing to stop using marijuana, and by displaying hostility toward DSS, the foster parents, and the Helms throughout the previous three years.

On 4 April 2006, James R. and Crystal Helms filed a petition in a separate action pursuant to N.C. Gen.Stat. § 7B-1103(a)(2), to terminate respondent and mother's parental rights.

On 14 September 2006, the court entered an order terminating respondent and mother's parental rights, concluding pursuant to N.C. Gen.Stat. § 7B-1111(a)(2), that they had willfully left H.D. in placement outside the home for more than twelve months without reasonable progress, and that it was in H.D.'s best interests to terminate respondent's parental rights.

From this order, respondent appeals. Mother did not appeal the order of termination.

I: Subject Matter Jurisdiction

In his first argument, respondent contends that the trial court lacked subject matter jurisdiction to enter the order terminating his parental rights, because H.D. and her custodial guardians resided in Alabama when the petition for termination was filed. We disagree.

"Subject matter jurisdiction refers to the power of the court to deal with the kind of action in question . . . . [and] is conferred upon the courts by either the North Carolina Constitution or by statute." Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987). Subject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal. See In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006). "The determination of subject matter jurisdiction is a question of law and this Court has the `power to inquire into, and determine, whether it has jurisdiction and to dismiss an action . . . when subject matter jurisdiction is lacking.'" In re J.B., 164 N.C.App. 394, 398, 595 S.E.2d 794, 797 (2004).

N.C. Gen.Stat. § 7B-1101 (2005), states that "[t]he 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 motion." Id. (emphasis added). N.C. Gen. Stat. § 7B-1101 also requires 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[,]" which are jurisdictional provisions under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA). See In re N.R.M., T.F.M., 165 N.C.App. 294, 298, 598 S.E.2d 147, 149 (2004); N.C. Gen. Stat. § 50A-101 et seq. (2005).

"[W]hen a prior custody order exists, a court cannot ignore the provisions of the UCCJEA and the [Parental Kidnapping Prevention Act]." In re Brode, 151 N.C.App. 690, 695, 566 S.E.2d 858, 861 (2002). The first provision under the UCCJEA, N.C. Gen.Stat. § 50A-201, addresses jurisdiction for initial child-custody determinations. The phrase "initial determination" is defined as "the first child-custody determination concerning a particular child." N.C. Gen.Stat. § 50A-102(8). We note that the definition of a "child-custody proceeding" under the UCCJEA specifically includes a proceeding for neglect, abuse, dependency or termination of parental rights. N.C. Gen.Stat. § 50A-102(4).

Once a court of this State has made an initial child-custody determination, the UCCJEA provides for "exclusive, continuing jurisdiction" pursuant to N.C. Gen.Stat. § 50A-202 (2005), which mandates that:

(a) Except as otherwise provided in G.S. 50A-204, a court of this State 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) A court of this State determines that neither the child, the child's parents, and any person acting as a parent do not have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or

(2) A court of this State 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 this State.

(b) A court of this State which has made a child-custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under G.S. 50A-201.

N.C. Gen.Stat. § 50A-202 (2005). This section of the UCCJEA is consistent with In re Baby Boy Scearce, in which this Court held that "[o]nce jurisdiction of the court attaches to a child custody matter, it exists for all time until the cause is fully and completely determined." In re Baby Boy Scearce, 81 N.C.App. 531, 538-39, 345 S.E.2d 404, 409 (1986) (citations omitted). Further, N.C. Gen.Stat. § 7B-201 provides: "[w]hen the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first." Id.

Importantly, we note the distinction between the "exclusive, original jurisdiction" of N.C. Gen.Stat. § 7B-1101, and the "exclusive, continuing jurisdiction" of the UCCJEA. Blacks Law Dictionary, 869 (8th ed.2004), defines "exclusive jurisdiction" to mean "[a] court's power to adjudicate an action or class of actions to the exclusion of all other courts[.]" Further, "original jurisdiction" means "[a] court's power to hear and decide a matter before any...