In re: D.A.Y. , 266 N.C. App. 33 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1226
Filed: 18 June 2019
Stanly County, No. 18 JT 13
IN THE MATTER OF: D.A.Y.
Appeal by respondent-mother from order entered 4 September 2018 by Judge
John R. Nance in Stanly County District Court. Heard in the Court of Appeals 30
May 2019.
David A. Perez for petitioner-father appellee.
Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Joyce L.
Terres, for respondent-mother appellant.
TYSON, Judge.
Respondent-mother appeals from an order terminating her parental rights in
D.A.Y. (“Dylan”). See N.C. R. App. P. 42(b) (pseudonym used to protect the identity of
the child). The trial court erred in exercising jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”) and its order is vacated. This
cause is remanded for dismissal of the petition.
I. Factual Background
Petitioner and Respondent were married briefly and separated prior to Dylan’s
birth in Las Vegas, Nevada. Petitioner is Dylan’s father and is a resident of Stanly
IN RE: D.A.Y.
Opinion of the Court
County, North Carolina. Respondent is Dylan’s mother and lives in Ventura County,
California.
Petitioner filed a petition and a subsequent amended petition to terminate
Respondent’s parental rights in the Stanly County District Court on 29 March 2018
and 18 May 2018, respectively. Petitioner alleged Dylan resided with him in Stanly
County, such that “North Carolina is the home state of the child,” pursuant to “a
juvenile court order from the State of California entered as a result of a juvenile
protective services investigation filed October 18, 2013 which gave custody to
petitioner with supervised once per year visits granted to respondent.” Petitioner
further alleged “California terminated [its] jurisdiction by the terms of said order.”
The petition alleged Respondent is “a citizen and residence [sic] of Ventura County,
California,” but claimed she had temporarily “moved to Nevada in or about 2016
thereby terminating California’s jurisdiction.”
Respondent filed a written answer admitting the petition’s allegations
regarding the respective locations of the parties and the actions of the court in
California in the 2013 custody proceeding. Respondent denied many of the
substantive allegations in the petition and accused Petitioner of “withholding [Dylan]
from the Respondent” and not allowing her to communicate with her son.
After a hearing on 9 August 2018, the trial court found grounds existed to
terminate Respondent’s parental rights based upon her neglect and willful
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Opinion of the Court
abandonment of Dylan. See N.C. Gen. Stat. § 7B-1111(a)(1), (7) (2017). The court
further concluded Dylan’s best interest required terminating Respondent’s parental
rights. See N.C. Gen. Stat. § 7B-1110(a) (2017). Respondent filed timely notice of
appeal.
II. Jurisdiction
Jurisdiction lies in this Court from a final order of the district court entered 4
September 2018 pursuant to N.C. Gen. Stat. § 7B-1001(a) (2017).
III. Issue
Respondent argues the trial court lacked subject matter jurisdiction to hear
and enter orders under the UCCJEA because: (1) a court in California entered an
initial child-custody determination with regard to Dylan, see N.C. Gen. Stat. §§ 50A-
102(3)-(8), 50A-201 (2017); (2) the court in California did not determine it no longer
had jurisdiction or that North Carolina would be a more convenient forum, see N.C.
Gen. Stat. § 50A-203(1) (2017); and (3) Respondent had resided in California from the
time Petitioner filed the petition to terminate her parental rights through the date of
the termination hearing, see N.C. Gen. Stat. § 50A-203(2) (2017).
IV. Standard of Review
“The existence of subject matter jurisdiction is a matter of law and cannot be
conferred upon a court by consent. Consequently, a court’s lack of subject matter
jurisdiction is not waivable and can be raised at any time.” In re K.J.L., 363 N.C. 343,
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345-46, 677 S.E.2d 835, 837 (2009) (citations and internal quotation marks omitted).
“The question of whether a trial court has subject matter jurisdiction is a question of
law and is reviewed de novo on appeal.” In re B.L.H., 239 N.C. App. 52, 58, 767 S.E.2d
905, 909 (2015).
V. Analysis
A. Subject Matter Jurisdiction
“Jurisdiction over termination of parental rights proceedings is governed by
N.C. Gen. Stat. § 7B-1101.” In re. J.M., 249 N.C. App. 617, 619, 797 S.E.2d 305, 306
(2016). Compliance with the UCCJEA, as codified in Chapter 50A of our General
Statutes, is essential to the juvenile court’s subject matter jurisdiction under N.C.
Gen. Stat. § 7B-1101.
[B]efore 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 . . . .
N.C. Gen. Stat. § 7B-1101 (2017); see also In re J.D., 234 N.C. App. 342, 345, 759
S.E.2d 375, 378 (2014) (“pursuant to N.C. Gen. Stat. § 7B-1101 and the UCCJEA, we
must determine whether the trial court possessed subject matter jurisdiction under
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IN RE: D.A.Y.
Opinion of the Court
N.C. Gen. Stat. §§ 50A-201 or -203”).
The trial court made findings of fact in support of its assertion and conclusion
of jurisdiction:
1. That this Court has . . . subject matter jurisdiction . . . .
There is an existing custody order in favor of the petitioner,
however, California relinquished continuing, exclusive
jurisdiction when that State terminated their jurisdiction,
and when both parties and the minor child subsequently
moved from the State of California.
....
3. The petitioner . . . is a citizen and resident of Stanly
County, North Carolina, and has been for more than six (6)
months next preceding the institution of this action.
Further, the minor child herein has also been a citizen and
resident of the State of North Carolina, County of Stanly,
for more than six (6) months next proceeding the
commencement of this action.
4. The respondent is . . . a citizen and resident of the State
of California.
The court separately concluded that it “has . . . subject matter jurisdiction over the
. . . subject matter herein.”
Respondent objects to the trial court’s finding that “California relinquished
continuing, exclusive jurisdiction when that State terminated [its] jurisdiction, and
when both parties and the minor child subsequently moved from the State of
California.” To the extent the trial court’s findings of fact refer to the legal effect of
actions taken by the parties or the court in California, they are reviewed de novo as
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conclusions of law. See In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 893
(2004), disc. review denied, 359 N.C. 321, 611, S.E.2d 413 (2005). Respondent
specifically challenges the trial court’s assessment that the court in California had
“terminated [its] jurisdiction” in the custody proceeding or that North Carolina had
otherwise obtained subject matter jurisdiction under the UCCJEA.
It is undisputed that a juvenile court in Los Angeles, California, entered a
“Custody Order—Juvenile—Final Judgment” on 18 October 2013 awarding legal and
physical custody of Dylan to Petitioner in case number CK98455, with visitation
awarded to Respondent. This order constitutes a prior child-custody determination
under the UCCJEA. See N.C. Gen. Stat. 50A-102(3) (2017). “‘Accordingly, any change
to that [California] order qualifies as a modification under the UCCJEA.’” In re N.B.,
240 N.C. App. 353, 357, 771 S.E.2d 562, 565 (2015) (quoting In re N.R.M., 165 N.C.
App. 294, 299, 598 S.E.2d 147, 150 (2004)).
Modification of another state’s child-custody determination is governed by
N.C. Gen. Stat. § 50A-203 (2017), which provides in pertinent part:
a court of this State may not modify a child-custody
determination made by a court of another state unless a
court of this State has jurisdiction to make an initial
determination under G.S. 50A-201(a)(1) or G.S. 50A-
201(a)(2) and:
(1) The court of the other state determines it no longer has
exclusive, continuing jurisdiction under G.S. 50A-202 or
that a court of this State would be a more convenient forum
under G.S. 50A-207; or
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Opinion of the Court
(2) A court of this State or a court of the other state
determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in the
other state.
N.C. Gen. Stat. § 50A-203(1)-(2) (emphasis supplied).
We agree with Petitioner the district court in North Carolina could have
asserted “jurisdiction to make an initial [custody] determination” under N.C. Gen.
Stat. § 50A-201(a) based upon Petitioner and Dylan having resided in Stanly County
since 2016. N.C. Gen. Stat. § 50A-203. However, neither of the alternative bases exist
for the court in North Carolina to assert jurisdiction to modify or terminate the
California court’s 2013 initial custody determination under N.C. Gen. Stat. § 50A-
203(1) or N.C. Gen. Stat. § 50-203(2).
With regard to N.C. Gen. Stat. § 50A-203(1), “[t]he court of the other state,”
i.e., California, did not “determine[] it no longer has exclusive, continuing
jurisdiction” or that “a court of this State would be a more convenient forum.” The
California court’s 18 October 2013 custody order provides as follows:
9. As of the date below, the juvenile court
a. has terminated jurisdiction over [Dylan]; requests
for any modifications of these orders must be
brought in the family court case in which these
orders are filed under Welfare and Institutions Code
section 302(d) or 726.5(c).
....
13. The clerk of the juvenile court . . . must transmit this
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order within 10 calendar days to the clerk of the
court of any county in which a custody proceeding
involving the child is pending or, if no such case
exists, to the clerk of the court of the county in which
the parent given custody resides. The clerk of the
receiving court must, immediately upon receipt of
this order, file the order in the pending case or, if no
such case exists, open a file without a filing fee and
assign a case number.
14. The clerk of the receiving court must send by first-
class mail an endorsed filed copy of this order,
showing the case number of the receiving court to:
....
b. Father (name and address): Desa Lagorio . . .
Northridge, CA 91234 [order erroneously records
Respondent’s name and address as that of
Petitioner’s, then a resident of South Carolina]
Although the California juvenile court terminated its own jurisdiction, it did so
for the purpose of transferring custody jurisdiction to the California family court. See
Cal. Welf. & Inst. Code § 726.5(d) (2016); cf. also N.C. Gen. Stat. § 7B-911(a)-(b) (2017)
(authorizing juvenile court, upon awarding custody to a parent, to terminate its own
jurisdiction and direct the clerk of court to enter a civil custody order under Chapter
50 of the North Carolina General Statutes). The trial court in Stanly County properly
noted the nature of the California court’s directive at the outset of the termination
hearing:
THE COURT: . . . Looking at a custody Order out of the
state of California. By the terms of that custody Order it
appears entered October 18th, 2013. It says as of the date
below which is the same date October 18th, that the juvenile
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Court has terminated jurisdiction over the . . . child[] we’re
concerned here with. Uhm, does that, certainly it appears
that it terminates jurisdiction in the juvenile Court but I’m
not so sure whether that terminates California’s
jurisdiction as such.
(Emphasis supplied).
The trial court proceeded with the hearing based on the parties’ agreement
that North Carolina was Dylan’s home state and Respondent’s waiver of objection “as
far as submitting to the personal jurisdiction of the Court.”
Because the UCCJEA governs the court’s subject matter jurisdiction, we
conclude the court entering the order under review did not possess subject matter
jurisdiction under N.C. Gen. Stat. § 50A-203(1) based upon Respondent’s waiver.
Moreover, the record before this Court contains no determination by a court in
California that “it no longer has exclusive, continuing jurisdiction” as is required by
N.C. Gen Stat. § 50-203(1).
With regard to N.C. Gen. Stat. § 50A-203(2), neither the court in California nor
the court at the hearing made a finding that Respondent “do[es] not presently reside
in [California].” N.C. Gen. Stat. § 50A-203(2). Petitioner alleged, Respondent
admitted, and the trial court found that Respondent “is a citizen and resident of the
State of California.”
Respondent was served with the petition and summons by certified mail at her
home address in Simi Valley, California. Petitioner concedes Respondent was
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Opinion of the Court
residing in California at the time he had initiated the termination proceeding in
March 2018. The trial court acquired no jurisdiction to modify the California court’s
child-custody determination under N.C. Gen. Stat. § 50A-203(2) when that court had
not terminated jurisdiction.
B. Relocation to Another State
Petitioner contends Respondent’s act of moving to Nevada for two years had
the effect of ending the California court’s “exclusive, continuing jurisdiction” over
Dylan’s custody, notwithstanding the undisputed fact that Respondent had returned
to and was a resident of California prior to the filing and service of the petition to
terminate her parental rights. Petitioner points to the Official Commentary for N.C.
Gen. Stat. § 50-202, which states as follows:
Continuing jurisdiction is lost when the child, the child’s
parents, and any person acting as a parent no longer reside
in the original decree State. . . . [U]nless a modification
proceeding has been commenced, when the child, the
parents, and all persons acting as parents physically leave
the State to live elsewhere, the exclusive, continuing
jurisdiction ceases.
....
Exclusive, continuing jurisdiction is not reestablished if,
after the child, the parents, and all persons acting as
parents leave the State, the non-custodial parent returns.
N.C. Gen. Stat. § 50A-202, Official Comment (2017); see also Cal. Fam. Code § 3422(a)
(2017).
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Opinion of the Court
Presuming arguendo the court in California lost exclusive, continuing
jurisdiction when Respondent temporarily relocated from California to Nevada, this
occurrence did not confer jurisdiction upon the district court in North Carolina to
modify the initial custody determination which was entered in California. Subsection
50A-203(1) requires a finding by the court in California that it no longer has
continuing, exclusive jurisdiction, a finding that is not in evidence in the record or in
the order appealed from.
C. Parental Kidnapping Prevention Act
Petitioner also asserts California’s court lost continuing jurisdiction under the
provisions of the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C.A. §
1738A(d) (2019), and notes the PKPA controls over state custody law, where the two
statutes are in conflict. In re Bean, 132 N.C. App. 363, 366, 511 S.E.2d 683, 686 (1999).
Because we presume the court in California lost continuing, exclusive jurisdiction
under the UCCJEA when Respondent temporarily moved out of the state, we observe
no conflict between the relevant state law and the PKPA on this issue.
Alternatively, N.C. Gen. Stat. § 50A-203(2) requires a finding by either the
court in California or in North Carolina that Respondent does not “presently reside[]”
in California, which is directly contrary to the parties’ stipulations, the evidence and
the trial court’s finding. Cf. In re T.J.D.W., 182 N.C. App. 394, 397, 642 S.E.2d 471,
473 (finding jurisdictional requirement in N.C. Gen. Stat. § 50A-203(2) satisfied by
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evidence that “both parents had left South Carolina at the time of the commencement
of the [North Carolina termination] proceeding”), aff’d per curiam, 362 N.C. 84, 653
S.E.2d 143 (2007).
VI. Conclusion
The trial court lacked subject matter jurisdiction under either N.C. Gen. Stat.
§ 7B-203(1) or (2) to modify the California court’s child-custody determination.
“‘When a court decides a matter without the court’s having jurisdiction, then the
whole proceeding is null and void, i.e., as if it had never happened.’” In re K.U.-S.G.,
208 N.C. App. 128, 131, 702 S.E.2d 103, 105 (2010) (quoting Hopkins v. Hopkins, 8
N.C. App. 162, 169, 174 S.E.2d 103, 108 (1970)).
The order terminating Respondent’s parental rights is vacated. See id. at 135,
702 S.E.2d at 108. This cause is remanded for dismissal of the petition for lack of
subject matter jurisdiction. It is so ordered.
VACATED.
Judges DILLON and BERGER concur.
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