In re: C.M.B. , 826 S.E.2d 810 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1002
Filed: 2 April 2019
Surry County, No. 09 JA 64
IN THE MATTER OF: C.M.B., Juvenile.
Appeal by respondent from order entered 18 June 2018 by Judge William F.
Southern, III in District Court, Surry County. Heard in the Court of Appeals 13
March 2019.
J. Clark Fischer, for appellee William Brickel (Custodian), et al.
Deputy Parent Defender Annick Lenoir-Peek for respondent-mother.
STROUD, Judge.
Respondent-mother appeals order staying proceedings and purporting to
transfer jurisdiction of this child custody proceeding under Chapter 7B to Tennessee.
We affirm.
I. Background
On 27 July 2009, DSS filed a petition alleging Jane1 was a neglected juvenile,
and on 18 September 2009 the trial court adjudicated her as neglected. In a review
hearing order, on 17 December 2009, the trial court noted Jane was “in the care of a
1 A pseudonym is used to protect the identity of the minor involved.
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Opinion of the Court
maternal great aunt [, Ms. Brickel,] the placement has gone well[,]” and Mother was
now residing in Virginia. Jane continued to do well with her aunt, as noted in the 22
April 2010 permanency planning order. On 8 July 2010, the trial court entered
another permanency planning order which found Mother was not present at the
hearing and it was not known where she was “residing.”
About six months later, on 19 January 2011, the trial court found that Jane
had been residing with the Brickels since September of 2009, placement had “gone
well and the BRICKELS have expressed a willingness and desire to continue to
provide care and placement for the child.” Mother had not been in contact with DSS,
and DSS was relieved of reunification efforts. The permanent plan for Jane was
“custody and guardianship with a relative[.]” The trial court ordered the Brickels
receive “legal and physical care, custody, and control of” Jane, appointed the Brickels
as joint guardians of Jane, “released and discharged” Mother’s attorney, and waived
future review hearings. On 6 August 2014, Mother and the Brickels entered into a
consent order agreeing Jane would remain in the custody of the Brickels, and Mother
would have visitation. The consent order noted that in late 2013 or early 2014, the
Brickels had moved to Tennessee.
A few years later, in November of 2017, the Brickels filed a motion in
Tennessee to register the North Carolina custody order and modify custody; Mother
then filed a motion in Tennessee to dismiss the Brickels’ motion. Mother also filed
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three pro se motions in North Carolina between December of 2017 and January of
2018: (1) a motion for review requesting an “emergency” revocation of the Brickels
as guardians and that she be appointed as Jane’s guardian; (2) a motion and order to
show cause claiming the Brickels had violated the custody agreement; and (3) a
motion requesting North Carolina to invoke jurisdiction as it was the “more
appropriate forum[.]” (Original in all caps.) Meanwhile, before any of Mother’s
motions in North Carolina were heard, by January of 2018, Tennessee had entered
orders assuming jurisdiction of custody and modifying Mother’s visitation. Mother
was present and testified at the hearing in Tennessee regarding its jurisdiction, and
the Tennessee court found that none of the parties nor Jane had lived in North
Carolina since 2014. The Brickels then filed a motion in North Carolina to “stay”
Mother’s pending motions or to transfer jurisdiction to Tennessee because North
Carolina was an “inconvenient forum[,]” and on 18 June 2018, the North Carolina
trial court allowed the Brickels’ motion to “stay” and “transfer” jurisdiction based on
North Carolina being an inconvenient forum. Mother appeals.
II. Interlocutory Appeal
Mother argues that we have jurisdiction to consider this appeal under North
Carolina General Statutes § 7B-1001(a)(2), which allows appeal of “[a]ny order,
including the involuntary dismissal of a petition, which in effect determines the
action and prevents a judgment from which appeal might be taken,” N.C. Gen. Stat.
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§ 7B-1001(a)(2) (2017),2 and because it is a final order. As far as North Carolina is
concerned, the order on appeal is final, since it does not leave the case open “for
further action by the trial court in order to settle and determine the entire
controversy[,]” Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381
(1950), but rather “transfers” the matter to Tennessee. We therefore have jurisdiction
to consider Mother’s appeal.
There is another unusual procedural twist to this case. We note that while this
case was initiated by DSS because of an investigation of neglect, DSS is not a party
to this appeal nor did a guardian ad litem participate on behalf of Jane. The only
parties appearing or participating before the trial court and this Court are Mother
and the Brickels. But this case was never transferred as a Chapter 50 private matter;
it has remained under Chapter 7B since its inception and continues as a juvenile
matter in Tennessee.
III. Findings of Fact
Mother does not challenge any specific finding of fact, but generally argues
that the trial court erred by making findings of fact at all when no competent evidence
was presented before the trial court because the motions and documents filed by the
parties, including Mother, were unverified or uncertified and no sworn testimony was
2 Amended effective 1 January 2019. See N.C. Gen. Stat. § 7B-1001.
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presented at the hearing. Mother also contends that she did not have an opportunity
to present evidence before the trial court.
When the trial court
sits without a jury, the standard of review is whether there
was competent evidence to support the trial court’s
findings of fact and whether its conclusions of law were
proper in light of such facts. Findings of fact by the trial
court in a non-jury trial are conclusive on appeal if there is
evidence to support those findings. A trial court’s
conclusions of law, however, are reviewable de novo.’
In addition, findings of fact to which error is not
assigned are binding on this Court.
Citifinancial Mtge. Co. v. Gray, 187 N.C. App. 82, 88, 652 S.E.2d 321, 324 (2007)
(citations, quotation marks, and ellipses omitted).
First, from our review of the transcript of the hearing, Mother had the
opportunity to present evidence; she made arguments to the trial court but did not
ask to be sworn in or to make any formal offer of evidence, and thus the trial court
did not prevent her from testifying or offering other evidence. The trial court’s order
notes it had reviewed the court file, spoken with the trial judge in Tennessee, and it
took judicial notice of the orders entered in Tennessee. Almost all of the trial court’s
findings, and all of the relevant findings for this appeal, are based upon the prior
orders entered in North Carolina and Tennessee. The prior orders and Tennessee
order support the trial court’s findings regarding the procedural history of the case,
as summarized above, the residences of the parties, and that Jane and the Brickels
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had been residing in Tennessee for “approximately four(4) to five(5) years[.]” Any
findings regarding the analysis of whether North Carolina is an inconvenient forum
were unnecessary, since the trial court should not conduct such an inquiry unless it
has jurisdiction. See N.C. Gen. Stat. § 50A-207(a) (2017) (noting the inconvenient
forum analysis when “[a] court of this State . . . has jurisdiction”).
IV. Jurisdiction
Before the trial court, the main issue was North Carolina’s jurisdiction under
the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), as both
Mother’s and Brickels’s motions addressed the court’s subject matter jurisdiction.
Mother challenges the trial court’s conclusions of law, and in particular, its conclusion
that Tennessee should exercise subject matter jurisdiction under the UCCJEA.
“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. 255, 260, 780 S.E.2d 228, 233
(2015).
A. Tennessee’s Exclusive Jurisdiction
The trial court’s order concluded that it “has subject matter jurisdiction over
this action” and that “Tennessee also has appropriate subject matter jurisdiction over
this action.” This conclusion is in error because North Carolina no longer had subject
matter jurisdiction. Mother contends that “North Carolina had not released its
jurisdiction[,]” and thus North Carolina and Tennessee have concurrent jurisdiction,
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but the Tennessee order in our record includes findings of fact in accordance with
Uniform Child Custody Act for exclusive jurisdiction as it found no parties nor the
child had resided in North Carolina for many years. See generally N.C. Gen. Stat. §
50A-202(a)(2) (2017). North Carolina did not need to “release” its jurisdiction under
these facts as Tennessee properly exercised its jurisdiction to modify visitation under
Tenn. Code Ann. § 36-6-218 (2017), which is the same as North Carolina General
Statute § 50A-203.3 See generally N.C. Gen. Stat. § 50A-203 (2017); Tenn. Code Ann.
§ 36-6-218 (2017). Tennessee had authority to make this determination because none
of the parties reside in North Carolina. See N.C. Gen. Stat. § 50A-203 Uniform Law
Comment (“The modification State is not authorized to determine that the original
decree State has lost its jurisdiction. The only exception is when the child, the child’s
parents, and any person acting as a parent do not presently reside in the other State.
In other words, a court of the modification State can determine that all parties have
moved away from the original State.” (emphasis added)).
Mother participated in the hearing in Tennessee and does not dispute that
she lives in Virginia and that none of the parties remain in North Carolina. Based
on our record, it appears that Tennessee exercised jurisdiction in accord with the
UCCJEA. If Mother believes Tennessee failed to comply with proper procedures
3 In Tennessee, the case remains a juvenile matter, not a private custody case. The Tennessee court
appointed a guardian ad litem for Jane, “Court Appointed Special Advocates” (“CASA”) was appointed
for the Brickels, and CASA of Virginia or the like was appointed to work with Mother.
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under the UCCJEA, that would need to be addressed in Tennessee by a review of the
Tennessee order which took exclusive jurisdiction.
B. Emergency Revocation
While the trial court order rules upon the Brickels’ motion to stay based upon
“inconvenient forum[,]” their motion to stay was in response to Mother’s motions. The
Brickels requested a stay of Mother’s motions or transfer of the motions to Tennessee.
To address the Brickels’ motion, the trial court necessarily had to consider Mother’s
motions, and the trial court notes this in its first finding of fact: “The issues before
the Court are . . . [Mother’s] motions for a review, removal of guardian, and emergency
revocation.” Mother’s first motion was to modify custody based on “[e]mergency”
circumstances; Mother’s second motion depended on the first as it claimed the custody
agreement had been violated; and Mother’s third motion was regarding jurisdiction
which also had to be addressed since Mother’s first two motions could be considered
only if the trial court had jurisdiction and the Brickels’s motion itself raised the issue
of jurisdiction.
Even if a state would not otherwise have jurisdiction to make a child custody
determination, it may have “temporary emergency jurisdiction” to make a
determination:
(a) A court of this State 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
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sibling or parent of the child, is subjected to or threatened
with mistreatment or abuse.
N.C. Gen. Stat. § 50A-204(a) (2017) (emphasis added).
Mother alleged the need for an emergency order based upon allegations that
Jane had been cutting herself; that the Brickels allowed Jane “to go where
aggressiveness is shown to both Brickels[’] and Mother; that Jane was “severely
depressed” and anxious, but her motions also alleged that Jane was residing in
Tennessee. There was no indication that Jane was “present in this State” at any
relevant time for the trial court to exercise temporary emergency jurisdiction under
the UCCJEA. Id. Although it may not have been necessary, since Jane was not
“present in this state[,]” the trial court followed the procedures set out by the
UCCJEA in communicating with the court in Tennessee based upon the allegations
of potential harm to Jane:
[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 proceeding has been
commenced in, or 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. A court of this State
which is exercising jurisdiction pursuant to G.S. 50A-201
through G.S. 50A-203, upon being informed that a child-
custody proceeding has been commenced in, or a child-
custody determination has been made by, a court of
another state under a statute similar to this section shall
immediately communicate with the court of that state to
resolve the emergency, protect the safety of the parties and
the child, and determine a period for the duration of the
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temporary order.
N.C. Gen. Stat. § 50A-204(d) (2017). Finding of fact 10 notes that the trial court
contacted the court in Tennessee, and both judges agreed the case should proceed in
Tennessee.4 Therefore, the trial court “stayed” Mother’s motions and purported to
“transfer” the case to Tennessee, although actually there was no need to “stay” any
proceedings in North Carolina, since North Carolina has no jurisdiction to rule upon
any pending motions, and Tennessee had already assumed jurisdiction under the
UCCJEA. Although the trial court’s order is based upon the wrong rationale, the
result is correct. See generally Hughey v. Cloninger, 297 N.C. 86, 95-96, 253 S.E.2d
898, 903-04 (1979) (affirming where a lower court, this Court, “reached the right
result but for the wrong reason”).
V. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Judges INMAN and ZACHARY concur.
4Mother also contends that the trial court did not conduct or document its communication with the
Tennessee court correctly, but since North Carolina had no jurisdiction and Jane was not present in
North Carolina, we need not address this argument.
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