In re E.X.J.
| Decision Date | 17 June 2008 |
| Docket Number | No. COA07-1235.,COA07-1235. |
| Citation | 662 S.E.2d 24 |
| Parties | In the Matter of E.X.J. and A.J.J., Minor Children. |
| Court | North Carolina Court of Appeals |
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, Marion, for petitioner-appellee.
Susan J. Hall, Fayetteville, for respondent-appellant father.
Jon W. Myers, Lexington, for respondent-appellant mother.
North Carolina Guardian ad Litem Program, by Pamela Newell Williams, Raleigh, for guardian ad litem.
Respondent mother and respondent father appeal from the trial court's judgment and order terminating their parental rights to their minor children E.X.J. ("Eddie") and A.J.J. ("Annie").1 Respondents primarily challenge the trial court's subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") to enter the initial adjudication order determining the children to be dependent. Respondents argue that Alabama, not North Carolina, was the children's "home state" at that time, and no other basis for jurisdiction in North Carolina existed. Respondents contend that since the trial court initially lacked jurisdiction, the court that entered the termination of parental rights order also lacked jurisdiction.
This appeal is controlled by In re M.B., 179 N.C.App. 572, 635 S.E.2d 8 (2006). Based on that decision, because the trial court properly exercised its emergency jurisdiction under the UCCJEA in entering the initial adjudication and because the children and respondent mother had been present in this State for two years by the time of the filing of these proceedings to terminate parental rights, M.B. requires that we hold that the trial court had subject matter jurisdiction over these proceedings. Accordingly, we affirm the trial court's order.
Respondent mother arrived in Rutherford County, North Carolina on 19 April 2005 with Eddie and Annie. The next day, she went to the Rutherford County Department of Social Services ("DSS") and reported that she was not mentally or financially able to care for her children, that she had no friends or family willing or able to care for them, and that she wanted them to be placed in foster care until she was able to care for them herself.
Respondent mother and her children had been living in Lee County, Alabama with respondent father. The minor children were born in Alabama and had lived there all their lives except for a brief period from November 2004 to February 2005 when they were in North Carolina. Respondent mother told DSS that she fled Alabama because respondent father was physically abusive toward her and the children. She stated that he consumed alcohol and used marijuana on a daily basis and would throw things at her and hit her. On one occasion, when he became angry with respondent mother, he threw Eddie against a wall; on another occasion he threw Annie out the back door after a fight with respondent mother.
Respondent mother told the social worker that she had no home, no money, no job, and no transportation. DSS offered her a place to stay at a domestic violence or homeless shelter, but she refused. DSS then obtained nonsecure custody of Eddie and Annie on 20 April 2005, and a written order was entered on 21 April 2005. On 21 April 2005, DSS filed juvenile petitions alleging that Eddie and Annie were dependant and neglected juveniles. A summons for each child was personally served on respondent mother, but the summonses mailed to respondent father in Alabama were returned "unclaimed," and the record does not indicate that he was served through any other means.
After filing the juvenile petitions, DSS contacted the Lee County, Alabama Department of Human Resources ("DHR"). DHR reported that although it had two prior reports involving the children, there was no open case on the family, but DHR would assist DSS in any way possible.
An order entered 28 April 2005 continued nonsecure custody with DSS and set the hearing on the juvenile petitions for 13 May 2005. The adjudication hearing was ultimately continued twice, with the hearing eventually being set for 26 August 2005. On 12 August 2005, notice for the 26 August 2005 adjudication hearing was mailed to respondent father in Alabama. Respondent father sent a letter to the clerk of court dated 21 August 2005 and filed 30 August 2005 stating that he was "not able to make it" to the adjudication but that he currently had a "good job and ... a place to stay" and would be getting a raise and a place of his own in the near future.
The adjudication hearing was held as scheduled on 26 August 2005. Respondent mother admitted the allegations of dependancy as set forth in the juvenile petitions and stipulated that Eddie and Annie were dependant juveniles. She also stipulated that it was in the best interests of her minor children that DSS retain custody. Based on these stipulations, the court, in an order entered 11 October 2005, adjudicated Eddie and Annie as dependant and determined that it was in their best interests to remain in DSS custody.
After a review hearing was held on 24 February 2006, the court entered an order on 21 March 2006 again concluding that it was in the children's best interests to remain in the foster homes provided by DSS. Permanency planning hearings were conducted on 10 April 2006 and again on 25 September 2006. In an order entered 6 October 2006, the court ceased reunification efforts and changed the permanent plan to adoption for both children.
On 6 and 14 December 2006, DSS filed motions in the cause to terminate respondents' parental rights as to Eddie and Annie. On 23 April 2007, at the direction of the court, apparently based on DSS' failure to serve respondent father with a summons and the petition in the initial adjudication proceeding, DSS filed an amended motion to terminate respondent mother's parental rights and a separate petition to terminate respondent father's parental rights. Respondent mother was properly served with the amended motion, while summonses were issued and served in connection with the petition on respondent father and the guardian ad litem for the children.
The trial court conducted the termination of parental rights hearing on 24 July 2007. At the close of DSS' evidence, respondents moved to dismiss the motion and petition on the ground that the court lacked subject matter jurisdiction. The court denied the motion, as well as respondent father's motion to dismiss for lack of personal jurisdiction based on the fact that he had not been served in the initial adjudication proceeding.
In its 31 July 2007 judgment and order, the trial court determined that grounds existed to terminate respondent mother's parental rights as to both children under N.C. Gen. Stat. § 7B-1111(a)(2) and (3) (2007). The court found grounds for terminating respondent father's parental rights under N.C. Gen. Stat. § 7B-1111(a)(5). The court then determined that it was in the children's best interests to terminate respondents' parental rights and ordered DSS to proceed with plans for adoption. Respondents timely appealed from the court's 31 July 2007 judgment and order.
Respondents first argue that DSS lacked standing to pursue termination of their parental rights because DSS had not been granted custody of the children by a court of competent jurisdiction. Under N.C. Gen.Stat. § 7B-1103(a)(3) (2007), a petition or motion to terminate the parental rights of a parent may be filed by a "county department of social services ... to whom custody of the juvenile has been given by a court of competent jurisdiction." If DSS does not lawfully have custody of the children, then it lacks standing to file a petition or motion to terminate parental rights, and the trial court, as a result, lacks subject matter jurisdiction. In re Miller, 162 N.C.App. 355, 358, 590 S.E.2d 864, 866 (2004).
We note that the 28 April 2005 nonsecure custody order — a form document — stated that "North Carolina is the home state of the named juvenile(s)." It is, however, undisputed that at the time of the filing of the juvenile petition in this action, North Carolina was not the children's "home state," as defined by the UCCJEA, N.C. Gen.Stat. § 50A-201(a)(1) (2007). Nevertheless, a trial court is entitled to assert "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, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." N.C. Gen.Stat. § 50A-204(a) (2007).
Although the initial 21 April 2005 nonsecure custody order did not assert a basis for jurisdiction, and the 28 April 2005 order continuing custody contained boilerplate language regarding "home state" jurisdiction, the trial court, in its 11 October 2005 initial adjudication, found with respect to jurisdiction:
The mother moved to North Carolina from Alabama with her two children. She alleges that her move was to flee an abusive relationship with the father of the children. Upon arrival in Rutherford County, NC the mother contacted Rutherford County DSS to advise that she had no means to care for the children. Rutherford County DSS has worked closely with the mother to procure employment, housing, medical treatment for the children and mental health treatment for the mother. The mother was recently hospitalized following a suicide attempt. She is no longer employed and lacks housing, and thus the present ability to care for her children.
Similarly, in the termination of parental rights order on appeal, the court found in pertinent part, with respect to jurisdiction:
On April 19, 2005, the respondent mother, together with the children's maternal grandmother, came to Rutherford County...
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