In re J.D.S.

• Decision Date: 17 May 2005
• Docket Number: No. COA04-213.,COA04-213.
• Citation: 612 S.E.2d 350
• Court: North Carolina Supreme Court
• Parties: In re J.D.S., A Minor Child.

612 S.E.2d 350

In re J.D.S., A Minor Child.

No. COA04-213.

Court of Appeals of North Carolina.

May 17, 2005.

Appeal by respondent father from order entered 8 October 2003 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 21 October 2004.

Lea, Rhine & Rosbrugh, by James W. Lea, III and Lori W. Rosbrugh, Wilmington, for petitioner appellee.

Susan J. Hall, Fayetteville, for respondent father-appellant.

Jana Lucas, Wilmington, for Guardian ad Litem.

LEVINSON, Judge.

Respondent father appeals from an order terminating his parental rights over J.D.S. We affirm.

Respondent and petitioner are the biological parents of J.D.S., born 23 July 1998. Petitioner and respondent were living together as an unmarried couple when J.D.S. was born, but later ended their relationship.

On 14 September 1999 an order was entered in Clark County, Nevada, in respondent's absence, granting petitioner sole legal and physical custody of the child. The order granted respondent supervised visitation, ordered him to pay attorney's fees, and required him to pay 18% of his income as child support.

Six weeks later, petitioner requested permission from the Nevada court to relocate to California. On or about 19 January 2000 an order was entered in Nevada allowing petitioner to relocate to California. In this order, the Nevada court reiterated that respondent should have supervised visitation "at the discretion of petitioner", pay attorneys' fees, and pay 18% of his income as child support.

On 23 March 2001, petitioner married a man who was serving as a U.S. Marine. When petitioner's husband was transferred to North Carolina, she requested permission from the Nevada Court to relocate here. She also requested that respondent's child support be changed to a specific dollar amount. On 25 April 2001, the Nevada court entered an order allowing petitioner to relocate to North Carolina with the child, and allowing respondent supervised visitation. The court also ordered respondent to pay $400.00 per month in child support, which included an amount representing an arrears schedule for unpaid child support.

Respondent neither appeared at any of the court proceedings in Nevada, nor appealed any of the Nevada state court's judgments or orders.

Petitioner and the child have resided in North Carolina since March 2001. Respondent, who lives in California, has never visited the child in North Carolina. In February, 2002, petitioner instituted an action in Onslow County, North Carolina, seeking termination of respondent's parental rights in J.D.S. Respondent filed a pro se objection to the petition and averred he was never notified regarding any of the court proceedings in Nevada. The trial court entered an order on 31 January 2003, nunc pro tunc for 28 June 2002, denying petitioner's motion and concluding:

While it is undisputed that the Respondent has not paid any child support to the Petitioner since March 1999, because the Petitioner cannot prove that the Respondent was ever served with the Clark County, Nevada action, the Court can only conclude that the Respondent, through his own testimony, has had knowledge since January 2002 of a legal obligation to pay child support for the minor child, and thus has failed to pay child support for six months rather than more than twelve as alleged by Petitioner.

In July 2002, both parties received notification of the trial court's decision not to terminate respondent's parental rights.

Respondent did not make any child support payments during the months of July, August, or September 2002. In August, respondent sent petitioner an ATM card that was to allow access to an account with approximately $90.00. Petitioner attempted to use the ATM card, but was unable to remove money from the account. On 22 November 2002, respondent mailed petitioner a check for sixty dollars ($60.00). Petitioner never cashed this check, but respondent testified at trial that he believed the check had been deposited into petitioner's account. Respondent did not send any further direct child support to petitioner, although he testified he maintains a savings account for the child. Since June 2002, respondent has called and spoken with the child numerous times and also mailed him gifts.

On 10 February 2003, petitioner filed a second petition seeking to terminate respondent's parental rights. Following a hearing on 21 July 2003, the trial court granted the petition on the grounds that respondent "willfully failed without justification to pay for the care, support and education" of the child "as required by ... [a] decree" pursuant to N.C.G.S. § 7B-1111(a)(4), and had not "[p]rovided substantial financial support or consistent care" pursuant to N.C.G.S. § 7B-1111(a)(5)d. From this order, respondent appeals.

The issues presented on appeal are: (1) whether the trial court had subject matter jurisdiction over the termination proceeding; (2) whether the trial court properly concluded that respondent had "willfully failed without justification to pay for the care, support, and education" of the child pursuant to N.C.G.S. § 7B-1111(a)(4) (2003), and had not "[p]rovided substantial financial support or consistent care with respect to" the child pursuant to N.C.G.S. § 7B-1111(a)(5)d (2003); and (3) whether the trial court abused its discretion by concluding that termination of parental rights was in the child's best interests.

Respondent first argues that the trial court lacked subject matter jurisdiction over the termination of parental rights proceeding. We disagree.

Although this issue was not presented to the trial court, subject matter jurisdiction may be raised at any time by the parties or by the court ex mero motu. See N.C.R.App. P. 10(a) ("[U]pon any appeal duly taken from a final judgment any party ... may present for review ... whether the court had jurisdiction of the subject matter[.]"); see also In re N.R.M., 165 N.C.App. 294, 297, 598 S.E.2d 147, 149 (2004) ("[R]egardless of whether subject matter jurisdiction is raised by the parties, this Court may review the record to determine if subject matter jurisdiction exists[.]") (citation and internal quotation marks omitted).

Jurisdiction over termination of parental rights proceedings is governed by N.C.G.S. § 7B-1101 (2003), which provides:

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 motion.... Provided, that before exercising jurisdiction under this Article, the court shall find that it would have jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204.

Respondent does not contest that these requirements were met. He contends, however, the trial court lacked subject matter jurisdiction because petitioner failed to comply with a different statute, N.C.G.S. § 7B-1104(7) (2003), which requires a petition to terminate parental rights to state that it "has not been filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act."

Respondent is correct that the petition in the instant case does not include a statement that complies with the requirement of G.S. § 7B-1104(7). However, as regards a petitioner's violation of G.S. § 7B-1104(7), this Court has held:

[W]e find no authority that compelled dismissal of the action solely because petitioner failed to include this statement of fact in the petition. While it is a better practice to include the factual statement as stated in the statute, under the facts in this case we find that respondent has failed to demonstrate that she was prejudiced as a result of the omission.

In re Humphrey, 156 N.C.App. 533, 539, 577 S.E.2d 421, 426 (2003). As in Humphrey, respondent has failed to demonstrate any prejudice arising from petitioner's omission.

Respondent also challenges the trial court's subject matter jurisdiction on the grounds that petitioner failed to file an affidavit stating the child's address and location, as required under N.C.G.S. § 50A-209 (2003). While petitioner did not file such an affidavit, we disagree the trial court was deprived of jurisdiction as a result: "Although it remains the better practice to require compliance with section 50A-209, failure to file this affidavit does not, by itself, divest the trial court of jurisdiction." In re Clark, 159 N.C.App. 75, 79, 582 S.E.2d 657, 660 (2003); (citing Pheasant v. McKibben, 100 N.C.App. 379, 382, 396 S.E.2d 333, 335 (1990) (failure to comply with former section 50A-9 did not defeat otherwise proper subject matter jurisdiction)). Moreover, the trial court's findings and conclusions regarding jurisdiction are supported by the record. This assignment of error is overruled.

In his second and third assignments of error, respondent contends the trial court erred by concluding (1) that he "willfully failed without justification to pay for the care, support, and education" of the child pursuant to N.C.G.S. § 7B-1111(a)(4) (2003), and (2) that he has not "[p]rovided substantial financial support or consistent care with respect to the juvenile" pursuant to N.C.G.S. § 7B-1111(a)(5)d (2003). We disagree.

"An order terminating parental rights will be upheld if there is clear, cogent, and convincing evidence to support the findings of fact and those findings of fact support the trial court's conclusions of law." In re Clark, 159 N.C.App. at 83, 582 S.E.2d at 662 (citation omitted).

Preliminarily, we note that to preserve the issue of the sufficiency of evidence to support the findings of fact, the respondent must comply with N.C.R.App. P. 10(c)(1), which provides in pertinent part:

Each...