Leonard, In re

• Decision Date: 15 October 1985
• Docket Number: No. 8519DC43,8519DC43
• Citation: 335 S.E.2d 73,77 N.C.App. 439
• Court: North Carolina Court of Appeals
• Parties: In re LEONARD, a minor child.

Page 73

335 S.E.2d 73

77 N.C.App. 439

In re LEONARD, a minor child.

No. 8519DC43.

Court of Appeals of North Carolina.

Oct. 15, 1985.

Beck, O'Briant and O'Briant by Lillian B. O'Briant, Asheboro, for petitioner-appellee.

Central Carolina Legal Services, Inc. by Stanley B. Sprague, Greensboro, for respondent-appellant.

WELLS, Judge.

The sole issue before this Court is interpretation of the termination of parental rights jurisdictional statute, N.C.Gen.Stat. § 7A-289.23 (Cum.Supp.1983). The pertinent language follows:

The district court shall have exclusive original jurisdiction to hear and determine any petition relating to termination of parental rights to any child 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....

Respondent contends that, since the mother left with the child for Ohio four days before the petition was filed, the child was not "residing in" or "found in" the district "at the time of filing" and therefore the petition should fail for lack of subject matter jurisdiction. We agree and vacate.

A statute must be construed as it is written unless a literal interpretation leads to an absurd result. [Citations omitted.] When the language is clear and unambiguous the courts must give the statute its plain and definite meaning. We are powerless to interpolate, or superimpose, provisions or limitations not contained therein. [Citations omitted.]

Piland v. Piland, 24 N.C.App. 653, 211 S.E.2d 844, cert. denied, 286 N.C. 723, 213 S.E.2d 723 (1975). See also Evans v. Roberson 333 S.E.2d 228 (N.C.1985). The legislature chose to use the phrases "resides in" and "is found in" and upon these phrases we must base our interpretation. "Residence" and "domicile" have been held to be synonymous; but generally "residence" indicates the person's actual place of abode, whether permanent or temporary, and "domicile" indicates the person's permanent home to which, when absent, he intends to return. Residence is a prerequisite to establishing a domicile, and not vice versa. See Hall v. Board of Elections, 280 N.C. 600, 187 S.E.2d 52 (1972). Therefore, it is simpler to establish a change of residence than a change of domicile. We hold that, by moving to Ohio, petitioner's actions were effective to change Michael's residence to one outside the court's jurisdiction.

Usually, words of a statute will be given their natural, approved and recognized meaning. Black v. Littlejohn, 312 N.C. 626, 325 S.E.2d 469 (1985). A person is said to be "found" within a state for purposes of service of process when actually present therein. Black's Law Dictionary 590-91 (5th ed. 1979). It seems clear that at the time this action was instituted, Michael was not to be found in North Carolina; therefore, the court below did not have subject-matter jurisdiction to determine respondent's parental rights based on the statutory criteria.

Petitioner contends that the codified legislative intent of Article 24B (Termination of Parental Rights) should serve to expand our reading of the statutes therein.

This Article shall not be used to circumvent the provisions of Chapter 50A, The Uniform Child Custody Jurisdiction Act.

N.C.Gen.Stat. § 7A-289.22(4)(1981). Before determining parental rights, the court must find under G.S. § 50A-3 that it has jurisdiction to make a child custody determination. G.S. § 7A-289.23. The court concluded that it would have jurisdiction to determine Michael Leonard's...