In re J.H.

• Decision Date: 01 December 2015
• Docket Number: No. COA15–579.,COA15–579.
• Citation: 780 S.E.2d 228,244 N.C.App. 255
• Court: North Carolina Court of Appeals
• Parties: In the Matter of J.H.

244 N.C.App. 255

780 S.E.2d 228

In the Matter of J.H.

No. COA15–579.

Court of Appeals of North Carolina.

Dec. 1, 2015.

Holcomb & Cabe, LLP, by Samantha H. Cabe, Chapel Hill, for petitioner-appellee Chatham County Department of Social Services and Poyner Spruill LLP, Charlotte, by J.M. Durnovich, for guardian ad litem.

Sydney Batch, Raleigh, for respondent-appellant.

STROUD, Judge.

Respondent-mother appeals from a permanency planning order which established a permanent plan for guardianship for her son J.H. ("James")¹ AND APPOINTED HIS MAternal grandparents as guardians. respondent-mother argues that the trial court (1) lacked jurisdiction to enter orders affecting James's custody under the Uniform Child–Custody Jurisdiction and Enforcement Act ("UCCJEA"); (2) erred in relying on written reports that had not been formally tendered and admitted into evidence; (3) failed to verify that James's grandparents understood the legal significance of guardianship and had adequate resources to care for James; (4) erred in concluding that it was impossible to return James to respondent-mother within six months and that further reunification efforts would be futile; (5) erred in concluding that it was in James's best interests for respondent-mother to have minimal visitation and entering a visitation plan that failed to set out the duration of each visitation; and (6) erred in waiving further review hearings. We vacate and remand for further proceedings. We also deny the motion to dismiss by the guardian ad litem ("GAL").

I. Background

In April 2013, James was born in North Carolina. From April 2013 to late November 2013, James and respondent-mother lived in North Carolina. Respondent-father resides in North Carolina. On 22 November 2013, respondent-mother took James with her to Texas. On 13 January 2014, after a physical altercation in Texas with her ex-husband ("Mr. J."), respondent-mother left James with Mr. J. without baby supplies. On or about 29 January 2014, a Texas court ordered that respondent-mother have temporary sole custody of James and that respondent-father have no contact with James because he had not yet established paternity.

On or about 20 February 2014, respondent-mother and James returned to North Carolina. On 7 March 2014, Chatham County Department of Social Services ("DSS") filed a juvenile petition alleging that James was neglected and dependent. DSS alleged that respondent-father had been recently charged with assaulting respondent-mother and that he "was about to hit [James but] Respondent mother [had] intervened." DSS also alleged that respondent-mother had a "long history" of untreated substance abuse as well as a history with Child Protective Services ("CPS") in Alamance County and in Texas. DSS further alleged that respondent-mother "ha[d] moved around in order to avoid CPS involvement" and had said that "she plan[ned] to leave this jurisdiction and return to Texas." On 7 March 2014, the trial court granted DSS nonsecure custody of James, and DSS placed James with his maternal grandparents, who are custodians of respondent-mother's daughter, who was born in July 2008.

On 22 May 2014, the trial court held a hearing on the petition. On 19 June 2014, the trial court adjudicated James a neglected and dependent juvenile. The trial court found that respondents had a history of domestic violence and noted that on 3 August 2013, Alamance County Department of Social Services had received a report of physical abuse, domestic violence, and improper care of James, which was later substantiated. The trial court further found that respondent-mother "has a fifteen (15) year ongoing history of substance abuse" and "has participated in treatment through [F]reedom House and other treatment facilities." The trial court also found that when a social worker had met with respondent-mother, the social worker had observed the following: "[Respondent-mother had] bruises on her face

, arm, back and stomach. She was erratic in her behavior, repeated herself several times and was unable to sit still. She described a history of violence between [her] and Respondent father." The trial court also found that James had been "born positive for barbitu[r]ates" and "was noted to have developmental delays" at the time DSS took him into nonsecure custody on 7 March 2014. Specifically, James "was not able to roll over, crawl, scoot or pull himself up, as is typical for his age."

After holding a custody review hearing on 24 July 2014, the trial court entered a custody review order on 2 September 2014 continuing James's custody with DSS and his kinship placement with his maternal grandparents and denying respondent-mother any visitation with James. After holding a hearing on 8 January 2015, the trial court entered a permanency planning order on 23 February 2015 concluding that further reunification efforts would be futile, establishing a permanent plan of guardianship for James, and appointing his maternal grandparents as his guardians. The trial court awarded respondent-mother "monthly" supervised visitation with James but waived further review hearings and relieved DSS and the GAL "of further responsibility" in the case. The trial court also found: "Since the inception of this case, Respondent mother has resided in Texas but has been back and forth between Texas and North Carolina. She reports that she lives with her ex-husband in Texas." Respondent-mother gave timely notice of appeal from the 23 February 2015 permanency planning order.

II. UCCJEA Jurisdiction

A. Preservation

Respondent-mother contends that the trial court lacked subject matter jurisdiction under the UCCJEA. See N.C. Gen. Stat. ch. 50A, art. 2 (2013). Having failed to appeal from the 7 March 2014 order for nonsecure custody, the 19 June 2014 adjudication and disposition order, and the 2 September 2014 custody review order, respondent-mother now argues that the issue of subject matter jurisdiction may be raised at any time and that lack of such jurisdiction makes void all of the trial court's orders although she "concedes that it is arguable the trial court had the authority to exercise emergency jurisdiction and grant nonsecure custody of James to DSS[.]" The GAL responds that respondent-mother's failure to appeal from the 19 June 2014 adjudication and disposition order bars her from now challenging the trial court's jurisdiction.

"It is axiomatic that a trial court must have subject matter jurisdiction over a case to act in that case." In re S.D.A., R.G.A., V.P.M., & J.L.M., 170 N.C.App. 354, 355, 612 S.E.2d 362, 363 (2005). "Subject matter jurisdiction cannot be conferred by consent or waiver" by the parties. In re H.L.A.D., 184 N.C.App. 381, 385, 646 S.E.2d 425, 429 (2007), aff'd per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). "When a court decides a matter without the court's having jurisdiction, then the whole proceeding is null and void, i.e., as if it had never happened. Thus the trial court's subject-matter jurisdiction may be challenged at any stage of the proceedings, even for the first time on appeal." In re K.U.–S.G., D.L.L.G., & P.T.D.G., 208 N.C.App. 128, 131, 702 S.E.2d 103, 105 (2010) (emphasis added and citation and quotation marks omitted). "When the trial court never obtains subject matter jurisdiction over the case, all of its orders are void ab initio. " In re A.G.M., ––– N.C.App. ––––, ––––, 773 S.E.2d 123, 129 (2015) (quotation marks and brackets omitted). We therefore conclude that respondent-mother's jurisdictional claim is properly before this Court.

B. Standard of Review

The North Carolina Juvenile Code grants our district courts "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent." N.C. Gen.Stat. § 7B–200(a) (2011). However, the jurisdictional requirements of the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA") and the Parental Kidnapping Prevention Act ("PKPA") must also be satisfied for a court to have authority to adjudicate petitions filed pursuant to our juvenile code.

In re E.J., 225 N.C.App. 333, 336, 738 S.E.2d 204, 206 (2013). Whether the trial court has jurisdiction under the UCCJEA is a question of law subject to de novo review. See K.U.–S.G., D.L.L.G., & P.T.D.G., 208 N.C.App. at 131, 702 S.E.2d at 105.

C. Analysis

We preliminarily note that the juvenile petition, as included in the record on appeal, lacked the information required by N.C. Gen.Stat. §§ 7B–402(b), 50A–209(a) regarding "the places where the child has lived during the last five years" and DSS's knowledge "of any proceeding that could affect the current proceeding[.]" See N.C. Gen.Stat. §§ 7B–402(b), 50A–209(a) (2013). Typically, DSS satisfies this statutory obligation by filing an "Affidavit as to Status of Minor Child" form, listing the addresses of the juvenile and his caretakers "during the past five (5) years" and providing "information about a [ny] custody proceeding ... that is pending in a court of this or another state and could affect this proceeding." Form AOC–CV–609 (revised July 2011) (Portion of original in all caps). Here, DSS even alleged: "The information required by G.S. 50A–209 is set out in the Affidavit As To Status Of Minor Child (AOC–CV–609), which is attached hereto and incorporated herein by reference." (Portion of original in bold.) But no such affidavit appears in the record, even though the petition listed respondent-mother's address as a motel in Siler City, North Carolina and included allegations that "Respondent mother has a CPS history in Alamance County and in the state of Texas[,]" that "Child Protective Services in Texas reports that Respondent mother did not comply with service recommendations for ... supervised visitation[,]" and that "Respondent mother has said that she plans to leave this jurisdiction and return to Texas."² "It was the continuing duty of DSS to make reasonable efforts to insure that there were no proceedings in another state that...