IN RE: M.M.S.W. (2018)

Respondent-father (“Father”) appeals from an order terminating his parental rights to his minor child, M.M.S.W. (“Macy”).¹ Because the trial court failed to comply with the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) in modifying a child custody determination initially rendered in South Carolina, all orders entered in North Carolina, including the order terminating Father's parental rights, must be vacated.

Factual and Procedural Background

The record reflects the following facts:

Macy was born in November 2007 in South Carolina. Her mother, who is not a party to this appeal, and Father abused controlled substances, and Father routinely took Macy to places where drugs were abused. In May 2011, the Department of Social Services in York County, South Carolina took custody of Macy. In January 2012, Macy's mother's whereabouts were unknown, Father was incarcerated, and attempts to place her with relatives had failed. The South Carolina court placed Macy with guardians, who took Macy to live with them in Gaston County, North Carolina. Macy's biological parents had no contact with the guardians or with Macy.

By March 2015, Macy's needs exceeded the capacity of her guardians, who reported that they were no longer able to continue to provide for her. The whereabouts of Macy's biological parents were unknown. The Gaston County Department of Social Services (“DSS”) filed a juvenile petition in Gaston County District Court alleging that Macy was a dependent juvenile. DSS obtained nonsecure custody of Macy that same day.

On 9 April 2015, Father was served in York County, South Carolina with a notice and summons of the nonsecure custody hearing in Gaston County, North Carolina. Father appeared in Gaston County District Court for the hearing on 14 April 2015 and requested that Macy be placed with his relatives in South Carolina. The court ordered a continuance of DSS's nonsecure custody of Macy. Because Macy did not know who her biological parents were at the time, Father agreed not to have contact with Macy until a therapist told her about him.

In September 2015, the trial court entered an order adjudicating Macy as a dependent juvenile. The order included a finding that Father's whereabouts were unknown, and that, while he was believed to be in South Carolina, DSS had been unable to make contact with him. In October 2015, the trial court entered a dispositional order directing that Macy remain in DSS custody and authorizing DSS to place her in the care of foster parents, other individuals other than parents, or in a licensed facility providing her with proper care, supervision, and discipline in a safe home. The order also directed Father to, among other things, obtain substance abuse and mental health assessments and follow all resulting recommendations, submit to random drug screens, maintain safe and appropriate housing, complete parenting classes, and practice parenting skills during visits with Macy. These orders were served on an attorney appointed by the trial court to represent Father.

In November 2015, DSS discovered that Father was incarcerated in South Carolina. Father notified DSS that he intended to appear in court, but according to DSS, Father did not comply with any of the trial court's prior directives.

After a permanency planning hearing in December 2015, the trial court entered an order in January 2016 establishing a primary permanent plan of custody with a court-approved caretaker with a secondary plan of guardianship and adoption. Father, who remained incarcerated in South Carolina, did not attend the hearing and did not contact his court-appointed counsel.

In March 2016, the trial court held a second permanency planning hearing changing the primary permanent plan to guardianship with a secondary plan of adoption. Father, who remained incarcerated, did not attend the hearing.

Father entered into a case plan with DSS in April 2016 and was later released from incarceration in June 2016. But, Father missed two more planning hearings, did not contact DSS or his attorney, and did not gain any progress on his case plan.

A sixth permanency planning hearing was held on 20 September 2016, this time with Father in attendance, and Macy was placed with her aunt in Virginia. At the time of the hearing, Father was again incarcerated—in Gaston County temporarily before being transported to South Carolina—and still had not complied with his case plan or court recommendations. Following another permanency planning hearing in December 2016—Father was not in attendance—the trial court changed the primary plan to adoption with a secondary plan of custody with a court-approved caretaker.

In March 2017, Father was released from custody but did not attend permanency planning hearings later in March, May, and June 2017. Father was then again incarcerated for violating his probation. The court, in orders following each planning hearing, found that Father never followed up on his case plans or court recommendations.

On 5 September 2017, DSS filed a petition to terminate Father's parental rights, alleging abandonment and willful failure to make reasonable progress as grounds to terminate, pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(2), and (7). Father was served with the petition while an inmate in the Morrison Correctional Institution in North Carolina. A hearing on the petition was held on 13 February 2018 and Father, who was still incarcerated, did not appear at the hearing. The court entered a 27 February 2018 order terminating Father's parental rights based on both grounds alleged in the petition.

On 13 March 2018, Father filed a letter with the trial court stating he had not been notified of the termination hearing until the day of the hearing and requested that further proceedings be stayed until his release from incarceration. Upon receipt of this letter, the trial court made appellate entries. Father has filed a petition for writ of certiorari in this Court requesting review of his case in recognition of the fact that his letter may not be construed as a notice of appeal and did not comply with the procedural requirements for giving notice of appeal. N.C. R. App. P. 3(d), (e) (2018). In our discretion, we allow the petition for writ of certiorari to review the trial court's termination order.²

Analysis

I. Preservation of Appeal

Father contends that all of the orders entered in this case are void for lack of subject matter jurisdiction. This Court has previously held that a parent's jurisdictional claim is properly before this Court despite failure to appeal because “the trial court's subject-matter jurisdiction may be challenged at any stage of the proceedings.” In re J.H., 244 N.C. App. 255, 259, 780 S.E.2d 228, 233 (2015) (emphasis in original) (quoting In re K.U.-S.G., 208 N.C. App. 128, 131, 702 S.E.2d 103, 105 (2010) ); see also Jenkins v. Piedmont Aviation Servs., 147 N.C. App. 419, 425, 557 S.E.2d 104, 108 (2001) (“A lack of jurisdiction or power in the court entering a judgment always avoids the judgment, and a void judgment may be attacked whenever and wherever it is asserted, without any special plea.” (quotation marks and citation omitted) ), disc. review denied, 356 N.C. 303, 570 S.E.2d 724 (2002). Thus, Father's challenge to the trial court's jurisdiction is properly before this Court.

II. Standard of Review

The jurisdictional requirements of the UCCJEA must be satisfied for a court to have authority to adjudicate abuse, neglect, and dependency petitions filed pursuant to our Juvenile Code, ․ even though the Juvenile Code provides that the district courts of North Carolina have exclusive, original jurisdiction over any case involving a juvenile who is alleged to be ․ abused neglected, or dependent.

In re Brode, 151 N.C. App. 690, 692, 566 S.E.2d 858, 860 (2002) (internal quotation marks and citations omitted). “Whether the trial court has jurisdiction under the UCCJEA is a question of law subject to de novo review.” In re J.H., 244 N.C. App. at 260, 780 S.E.2d at 233.

III. Subject Matter Jurisdiction

Father contends that the trial court had no jurisdiction because it failed to comply with the UCCJEA in modifying a child custody determination initially rendered in South Carolina. We agree.

Based on the record in this case and concessions of the parties involved, the South Carolina court's awarding guardianship was the initial determination regarding custody of Macy. See N.C. Gen. Stat. § 50A-102(8) (2017) (defining “[i]nitial determination” as “the first child-custody determination concerning a particular child”). Under the UCCJEA, once a court of one state makes an initial child-custody determination, that state ordinarily has “exclusive, continuing jurisdiction over the determination.” N.C. Gen. Stat. § 50A-202(a) (2017). The UCCJEA allows the court of a second state to exercise jurisdiction over and modify a prior custody determination from the original state under certain statutorily-defined circumstances. N.C. Gen. Stat. §§ 50A-202, -203, -204 (2017). “Modification” is defined as “a child-custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.” N.C. Gen. Stat. § 50A-102(11) (2017).

A North Carolina court may modify a child-custody determination of another state if two requirements are met. First, the North Carolina court must have jurisdiction to make an initial determination under N.C. Gen. Stat. §§ 50A-201(a)(1) or (2). N.C. Gen. Stat. § 50A-203. A trial court has jurisdiction to make an initial determination under Section 50A-201(a)(1) if North Carolina was “the home state of the child on the date of the commencement of the proceeding.” N.C. Gen. Stat. § 50A-201(a)(1). A child's “[h]ome state” is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” N.C. Gen. Stat. § 50A-102(7) (2017). “ ‘Commencement’ means the filing of the first pleading in a proceeding.” N.C. Gen. Stat. § 50A-102(5) (2017). Father acknowledges that the trial court would have had jurisdiction to make an initial determination under Section 50A-201(a)(1) given that Macy had lived with her guardians in North Carolina for four years before the petition was filed in North Carolina. As a result, the first requirement for modification of an out-of-state child-custody determination was satisfied in this case.

The second requirement for modification of South Carolina's child-custody determination would be satisfied in either of the following circumstances:

(1) The [South Carolina] court ․ determines it no longer has exclusive, continuing jurisdiction under G.S. 50A-202 or that a court of [North Carolina] would be a more convenient forum under G.S. 50A-207; or

(2) A court of [North Carolina] or a court of [South Carolina] determines that the child, the child's parents, and any person acting as a parent do not presently reside in [South Carolina].

N.C. Gen. Stat. § 50A-203.

There is nothing in the record showing that a South Carolina court determined that it no longer had exclusive jurisdiction or that North Carolina would be a more convenient forum. We therefore must address whether the trial court had jurisdiction over the case, pursuant to Section 50A-203(2), based on the residence of Macy and her parents, including Father.

The trial court would have jurisdiction under this subsection if a North Carolina court or a South Carolina court “determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state, with ‘presently’ referring to the time of the [commencement of the] proceeding.” In re T.J.D.W., 182 N.C. App. 394, 397, 642 S.E.2d 471, 473 (internal quotation marks, citation, and alteration omitted), aff'd per curiam, 362 N.C. 84, 653 S.E.2d 143 (2007). This subsection does not require a court to make findings of fact that neither the child nor his parents resided in the initial custody determination state at the time of the proceeding, “although this would be the better practice.” Id. at 397, 642 S.E.2d at 473. Rather, the trial court properly exercises subject matter jurisdiction over the case if it “assert[s] its jurisdiction in the order ․ and the evidence supports its determination regarding [the requirements of Section 50A-203(2) ].” Id. at 397, 642 S.E.2d at 473.

Here, the trial court's initial nonsecure custody order entered in March 2015 lists Father's address as “Possibly Clover[,] SC.” And there is no evidence in the record to show that Father or the mother resided outside of South Carolina at that time. The summons accompanying DSS's petition listed a South Carolina address for Father, and the return notice on the summons shows that it was served upon Father by a deputy sheriff in York County, South Carolina.

In its order terminating Father's parental rights, the trial court did find that it “ha[d] jurisdiction to hear and determine the matters set forth in the Petition relating to termination of parental rights pursuant to N.C.G.S. 7B-1101.” But given that the record fails to show that Father resided outside South Carolina, the trial court did not have jurisdiction to modify the South Carolina child-custody determination pursuant to Section 50A-203(2).

V. Temporary Emergency Jurisdiction

The trial court could have exercised emergency jurisdiction to temporarily modify a custody order of another state pursuant to N.C. Gen. Stat. § 50A-204. North Carolina “has 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) (2017). In the juvenile petition, DSS noted that it received a report that Macy “was being hit by her brother, the adult son of the guardians, and [she] does have a mark above her eye.” DSS noted that “[t]he Guardians have reported that they are no longer willing, or able, to continue to provide care for the above named juvenile” and that “the guardians do not want to participate in placement because it means the child would return to their home.” DSS further noted that the parents’ whereabouts were unknown. Assuming that the allegations of abuse, the guardians’ unwillingness to continue to provide care for Macy, and the lack of an alternative arrangement for her care were sufficient to give the trial court temporary emergency jurisdiction, the trial court still failed to exercise temporary emergency jurisdiction because it did not fully comply with Section 50A-204.

A trial court must do the following to exercise temporary emergency jurisdiction:

(c) If there is a previous child-custody determination that is entitled to be enforced under this Article, ․ any order issued by a court of this State under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under G.S. 50A-201 through G.S. 50A-203. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

(d) A court of this State which has been asked to make a child-custody determination under this section, upon being informed that ․ a child-custody determination has been made by[ ] a court of a state having jurisdiction under G.S. 50A-201 through G.S. 50A-203 shall immediately communicate with the other court․

N.C. Gen. Stat. § 50A-204(c), (d) (2017) (emphasis added).

In the present case, DSS noted in its initial juvenile petition that the guardians “were granted guardianship of [Macy] by a court in South Carolina in January, 2012.” Furthermore, in its 9 June 2015 order on the need for continued nonsecure custody, the trial court acknowledged that guardianship of Macy had been awarded by a South Carolina court in January 2012. Despite being informed at the outset of the case that a prior child-custody determination was made in South Carolina, the trial court never specified a period of time in any of its orders for DSS to seek an order from the South Carolina court, nor is there evidence in the record that the trial court ever communicated with the South Carolina court. “Where jurisdiction is statutory and the Legislature requires the Court to exercise its jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects the Court to certain limitations, an act of the Court beyond these limits is in excess of its jurisdiction.” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006) (internal quotation marks and citation omitted). Because the trial court failed to comply with the requirements of Section 50A-204, temporary emergency jurisdiction did not exist.

VI. DSS's Standing to File Petition to Terminate

Finally, Father is correct that DSS lacked standing to petition the trial court to terminate his parental rights. Section 7B-1103(a) provides that a “county department of social services” may petition for termination of parental rights when “custody of the juvenile has been given [to the department] by a court of competent jurisdiction” or when “the juvenile has been surrendered [to the department] for adoption by one of the parents.” N.C. Gen. Stat. §§ 7B-1103(a)(3), (4) (2017). As previously mentioned, the record does not show that the North Carolina court had jurisdiction to award custody to DSS at any point prior to DSS filing its petition to terminate.

While the mother did eventually relinquish her parental rights, this did not occur until 19 January 2018, after DSS's petition to terminate Father's parental rights was filed on 5 September 2017. See Quesinberry v. Quesinberry, 196 N.C. App. 118, 123, 674 S.E.2d 775, 778 (2009) (“Our courts have repeatedly held that standing is measured at the time the pleadings are filed.”). Even assuming the trial court gained jurisdiction to modify South Carolina's child-custody determination, the trial court still lacked jurisdiction to rule upon the petition to terminate Father's parental rights because DSS lacked standing to file the petition prior to the mother's surrendering of her parental rights. See In re Miller, 162 N.C. App. 355, 358, 590 S.E.2d 864, 866 (2004) (“A North Carolina court has subject matter jurisdiction only if the petitioner or plaintiff has standing.”).

VII. Conclusion

“ ‘A universal principle as old as the law is that the proceedings of a court without jurisdiction of the subject matter are a nullity.’ ” In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (quoting Burgess v. Gibbs, 262 N.C. 462, 465, 137 S.E.2d 806, 808 (1964) ). Because the trial court's orders relating to Macy's custody were entered in the absence of jurisdiction, and therefore void, those orders are hereby vacated. As a result of our decision, we need not review Father's remaining argument on appeal.

VACATED.

Report per Rule 30(e).

FOOTNOTES

1.   A pseudonym is used to protect the identity of the juvenile and for ease of reading. The mother is not a party to this appeal.

2.   DSS's motion to dismiss the appeal is denied.

INMAN, Judge.

Judges BRYANT and DIETZ concur.