In re N.T.U., COA14–89.

• Decision Date: 01 July 2014
• Docket Number: No. COA14–89.,COA14–89.
• Court: North Carolina Court of Appeals
• Parties: In the Matter of N.T.U., Minor Child.

760 S.E.2d 49

In the Matter of N.T.U., Minor Child.

No. COA14–89.

Court of Appeals of North Carolina.

July 1, 2014.

Appeal by respondent from judgment entered 25 September 2013 by Judge Ward D. Scott in Buncombe County District Court. Heard in the Court of Appeals 11 June 2014.

Hanna Frost Honeycutt, Newland for petitioner-appellee, Buncombe County Department of Social Services.

Amanda Armstrong for guardian ad litem.

Jeffrey L. Miller for respondent-appellant.

DAVIS, Judge.

N.U. (“Respondent”) appeals from the trial court's termination of her parental rights as to her son N.T.U. (“Nathan”).¹ On appeal, Respondent argues that (1) the trial court lacked subject matter jurisdiction to terminate her parental rights as to Nathan; and (2) there was insufficient evidence to support either of the trial court's bases for terminating her parental rights. After careful review, we affirm.

Factual Background

Nathan was born to Respondent and Z.R.² in September of 2010 in Greenville, South Carolina. Nathan lived in South Carolina with Respondent until 21 September 2011.

On 21 September 2011, the Buncombe County Department of Social Services (“DSS”) received a Child Protective Services report alleging that officers of the Asheville Police Department had arrested Respondent in connection with a bank robbery and homicide that had occurred in South Carolina earlier that day. Respondent was apprehended by law enforcement officers at a motel in Asheville. Nathan, who was one year old at the time, was with Respondent at the motel. Respondent was taken to the Buncombe County Jail.

The following day, DSS filed a juvenile petition alleging that Nathan was a neglected and dependent juvenile and obtained nonsecure custody of Nathan that same day. On 27 September 2011, a seven-day hearing was held on the nonsecure custody order. Following the hearing, the trial court entered an order on 14 October 2011 continuing nonsecure custody with DSS. In its 14 October 2011 order and in a subsequent order entered 29 November 2011 continuing nonsecure custody with DSS, the trial court acknowledged that South Carolina was Nathan's home state but that the Buncombe County District Court had “temporary emergency jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act” (“UCCJEA”).

On 1 December 2011, the trial court held an adjudication hearing and, with the consent of Respondent, adjudicated Nathan to be a neglected and dependent juvenile. In its order, the trial court once again found that although South Carolina was Nathan's home state, the trial court had temporary emergency jurisdiction under the UCCJEA. The trial court ordered that Nathan remain in the custody of DSS.

The trial court conducted permanency planning review hearings during the course of the next year. By order entered 16 October 2012, the court set a permanent plan of guardianship with a concurrent plan of adoption for Nathan. On 12 April 2013, DSS filed a petition to terminate Respondent's parental rights as to Nathan. The termination of parental rights hearing was held on 24 July and 14 August 2013, and on 25 September 2013, the trial court entered an order terminating Respondent's parental rights on the grounds of neglect and incapacity to provide proper care and supervision. Respondent filed a timely notice of appeal.

Analysis

I. Subject Matter Jurisdiction

Respondent first contends the Buncombe County District Court lacked subject matter jurisdiction to terminate her parental rights. We disagree.

“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). The issue of subject matter jurisdiction may be raised for the first time on appeal. 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). Whether a court possesses jurisdiction is a question of law reviewable de novo on appeal. In re K.U.-S. G., 208 N.C.App. 128, 131, 702 S.E.2d 103, 105 (2010).

“In matters arising under the Juvenile Code, the court's subject matter jurisdiction is established by statute.” In re K.J.L., 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009). The jurisdictional statute governing actions to terminate parental rights is N.C. Gen.Stat. § 7B–1101, which provides as follows:

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. 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 (2013) (emphasis added).

The above-referenced statutes listed in N.C. Gen.Stat. § 7B–1101 are all provisions of the UCCJEA, which defines a “child-custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” N.C. Gen.Stat. § 50A–102(3) (2013). The jurisdictional requirements of the UCCJEA apply to proceedings for the termination of parental rights. In re N.R.M., 165 N.C.App. 294, 298, 598 S.E.2d 147, 149 (2004). Pursuant to N.C. Gen.Stat. § 7B–1101, the trial court must have jurisdiction to make a child-custody determination under the provisions of N.C. Gen.Stat. § 50A–201 or N.C. Gen.Stat. § 50A–203 in order to terminate the parental rights of a nonresident parent. SeeN.C. Gen.Stat. § 7B–1101; K.U.-S.G., 208 N.C.App. at 132, 702 S.E.2d at 106.

N.C. Gen.Stat. § 50A–203 pertains only to the modification of a custody order previously entered by another state. In the present case, no other state has ever entered a custody order as to Nathan and, therefore, N.C. Gen.Stat. § 50A–203 does not apply here. Accordingly, we must determine whether the trial court had jurisdiction to terminate Respondent's rights pursuant to N.C. Gen.Stat. § 50A–201.

N.C. Gen.Stat. § 50A–201 provides:

(a) Except as otherwise provided in G.S. 50A–204, a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) This State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under G.S. 50A–207 or G.S. 50A–208, and:

a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;

(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under G.S. 50A–207 or G.S. 50A–208; or

(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

N.C. Gen.Stat. § 50A–201 (2013).

Respondent contends that the trial court could not have properly exercised jurisdiction to terminate her parental rights pursuant to N.C. Gen.Stat. § 50A–201 because it never actually possessed any jurisdiction over the custody of Nathan. We disagree.

The trial court noted that it was exercising temporary emergency jurisdiction over Nathan pursuant to N.C. Gen.Stat. § 50A–204(a) when it first entered the initial nonsecure custody orders. N.C. Gen.Stat. § 50A–204 allows a North Carolina court to exercise temporary emergency jurisdiction “if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.” N.C. Gen.Stat. § 50A–204(a) (2013).

Respondent argues that the trial court acted without proper temporary emergency jurisdiction because it failed to make findings that Nathan was abandoned or that it was necessary to exercise jurisdiction to protect Nathan from mistreatment or abuse. However, we have previously held that the statutory bases for jurisdiction set forth in the UCCJEA do not require a trial court to make specific findings of fact regarding jurisdiction and that N.C. Gen.Stat. § 50A–204 “states only that certain circumstances must exist, not that the court [must] specifically make findings to that effect....” In re...