In re: M.B. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
COA No. 22-462
Filed 18 April 2023
New Hanover County, No. 20JA198
IN THE MATTER OF: M.B.
Appeal by respondent-mother from two orders entered by Judge J.H.
Corpening, II in New Hanover County District Court—the first entered on 16
February 2022 and the second entered on 14 March 2022. Heard in the Court of
Appeals 22 March 2023.
Karen F. Richards for New Hanover County Department of Social Services,
petitioner-appellee.
Parker Poe Adams & Bernstein LLP by Ashley A. Edwards for Guardian ad
Litem.
Jason R. Page for respondent-appellant-mother.
FLOOD, Judge.
Velanza Batts (“Respondent-Mother”) appeals from two orders; the first order
(the “First Order”) awarded guardianship of her minor child, Michael,1 to her sister
Leticia Batts (“Ms. Batts”), while the second order (the “Second Order”) awarded legal
custody to Ms. Batts and included findings regarding Respondent-Mother’s progress
in her case plan. After thorough review, we conclude that North Carolina was at no
1 A pseudonym has been used to protect the identity of the minor child.
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time Michael’s home state, and thus the district court lacked the jurisdiction to enter
both the First Order and the Second Order.
I. Background and Procedural History
This case involves two separate and distinct child abuse and neglect cases
involving Respondent-Mother and Michael—one in Maryland and the other in North
Carolina. In the interest of cohesion and clarity, we will recount the facts of each case
separately and in chronological order.
A. The Maryland Case
On 8 November 2013, Michael was born to Respondent-Mother and father
Tommie Moore, Jr., who died on 4 December 2014. For years, Michael and
Respondent-Mother lived together in the Washington, D.C. area. On 2 September
2018, Respondent-Mother was arrested in Washington, D.C. for driving under the
influence, resulting in Prince George’s County, Maryland’s Department of Social
Services (“Maryland DSS”) filing a Child in Need of Assistance petition. A hearing
was held, and on 30 November 2018 a Maryland court entered an order in which it
found the following:
Prince George’s County Police responded to a DUI driver on New
Hampshire Avenue; when pulled over, the mother was abrasive
and appeared under the influence. A cigarette that appeared to
be dipped in PCP and half smoked was found under her car seat,
as well as 6-7 grams of marijuana. The child was riding in the
front passenger seat even though there was a car seat in the back.
The mother was unable to answer any questions and just kept
repeating what was asked of her. She was arrested and taken to
Laurel Regional Hospital. The child had no known injuries, and
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appeared to be fine. As there was no information available on
family or anyone to care for the child, he was placed in foster care.
Based on these facts, the court concluded that, as a matter of law, Michael was
a Child in Need of Assistance, that being in Respondent-Mother’s care would be
contrary to his welfare, and that it was not possible to return Michael to the custody
of Respondent-Mother. The court ordered that Michael be placed in the care and
custody of Maryland DSS and that Respondent-Mother enter into a service
agreement with Maryland DSS.
Michael remained in the custody of Maryland DSS from 30 November 2018
until 8 January 2020, when, during a Permanency Planning hearing, the court found
that Respondent-Mother had “done everything asked of her, is stable, and has been
safely caring for [Michael] for the past 3+ months and the case should be closed.” In
light of those factual findings, the court ordered Michael be placed in the care and
custody of Respondent-Mother. Importantly, the court included the following in its
order:
ORDERED, that the interest of the court and the Prince George’s
County Department of Social Services in the above-captioned
Child in Need of Assistance matter is terminated; and it is further
...
ORDERED, that the above-captioned Child in Need of Assistance
matter is closed statistically.
The order concluded by stating that it would remain “in effect until the minor
respondent child reached the age of 18, unless revised or superseded by a court of
competent jurisdiction.”
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On 8 January 2020, the court entered its order (the “Maryland Custody
Order”), which terminated the matter, and Michael was reunited with Respondent-
Mother.
B. The North Carolina Case
On 14 October 2020, Respondent-Mother was seen intoxicated at a gas station
in Kure Beach, North Carolina. Later that evening, Kure Beach police officers
responded to a call and found that Respondent-Mother, who was highly intoxicated,
had run her truck into a fence at a beach access. Michael was sitting unsecured in
the front passenger seat, despite having an appropriate car seat available. The
officers located in the car a partially empty fifth of Crown Royal, THC, and drug
paraphernalia. Respondent-Mother was arrested for DWI, resisting arrest,
possession of marijuana, possession of drug paraphernalia, and child abuse. The
following day, on 15 October 2020, an order for nonsecure custody was entered by
Judge Corpening in New Hanover County, North Carolina. This order placed Michael
in the temporary emergency custody of New Hanover County Department of Social
Services (“North Carolina DSS”).
From 15 October 2020 until 1 December 2020, Michael was placed in a foster
home in Wilmington, North Carolina. Respondent-Mother testified that during this
time, she was staying at a hotel and would bring a scooter to get around Wilmington.
North Carolina DSS worked on finding a kinship placement for Michael and
eventually approved placement with Michael’s maternal cousins, Keith and Darlene
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Leake in Greensboro, North Carolina. On 1 December 2020, Michael was moved to
Greensboro and, around that time, Respondent-Mother reports that she moved back
to Washington, D.C.
On 8 March 2021, a dispositional hearing was held in New Hanover County
with Judge Corpening presiding. At the hearing, both the Guardian ad Litem (the
“GAL”) and the social worker presented their reports to the court. The GAL’s report
stated that Respondent-Mother “attended all of the scheduled visits when they were
in Wilmington and continues to make a weekly drive to Guilford County from
Washington, DC to spend time with [Michael]. She visits [Michael] each day of her
two to three day visits.” The social worker’s report stated, “[Respondent-Mother] is
currently residing in Washington, D.C. If [Michael] is placed in Maryland, this will
present [Respondent-Mother] with the opportunity to engage in more frequent
visitations with [Michael].” Additionally, the social worker noted in her report that
Respondent-Mother “has a North Carolina Driver’s License and her car is currently
registered in North Carolina.”
Following the hearing, Judge Corpening entered an Order on Adjudication and
Disposition which contained the following findings of fact by clear and convincing
evidence:
13. That Respondent-Mother has made building a rapport with
her difficult due to presenting as manipulative, confrontational,
and dishonest with the Department, Guardian ad Litem, and
collateral contacts. There has been some confusion as to where
Respondent-Mother resides. Respondent-Mother has reported
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that while the Juvenile was placed in Wilmington, N.C. she was
residing in Halifax County, N.C. Now that the Juvenile is placed
with family in Greensboro, N.C., she has moved back to
Washington, D.C. Respondent-Mother reported that she obtained
her previous full-time position back at the fitness center, but has
not provided the Department with the name of her employer. The
Department has been unable to verify her employment and
income.
On 19 May 2021, Mr. and Mrs. Leake reported to North Carolina DSS that
they were no longer willing to supervise visitation with Respondent-Mother because
she continued to show up unannounced, was disrespectful, would tell Michael he did
not have to listen to them, and would not accept when they said they were not
available for a visit or phone call. Due to the tenuous relations between Respondent-
Mother and the Leake family, North Carolina DSS began exploring alternative
kinship placements.
During the 9 June 2021 hearing, Judge Corpening made the following findings
of fact by sufficient and competent evidence:
15. That Respondent-Mother’s permanent address is in
Washington, D.C. and she reports that she stays with a relative
when she visits the Juvenile in Guilford County, North Carolina.
19. That the Department is requesting placement with the
Maternal Aunt. It would put [Michael] closer to home, allow
family placement that he already has a relationship with, and
would allow Respondent-Mother to enroll and continue to
participate in her services once the Department is no longer
involved with the family. (emphasis added).
22. That the current placement is appropriate and in the
Juvenile’s best interest but placement with Maternal Aunt is
more appropriate at this time due to the conflict between the
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Leakes and Respondent-Mother as well as the distance between
[Michael’s] placement and his permanent home. (emphasis
added).
Based upon those findings of fact, the court concluded that “[North Carolina
DSS] has authorization to place [Michael] in Maryland with Maternal Aunt, Ms.
Batts, immediately.” On 10 June 2021, Michael was moved from the kinship
placement with the Leakes in Guilford County, North Carolina to a different kinship
placement with Ms. Batts in Prince George’s County, Maryland.
Once back in Maryland, Michael continued to have visitations with
Respondent-Mother, supervised by Ms. Batts. After an incident on 3 July 2021,
however, the relationship between Respondent-Mother and Ms. Batts deteriorated,
and Ms. Batts told North Carolina DSS that she was no longer willing to supervise
visitations.
Social worker Samantha Muse described this incident in a report to the court
filed on 30 August 2021, stating:
On July 3, 2021, [Ms. Batts] reported that [Respondent-
Mother] came over to her home to have a visitation with
[Michael]. [Respondent-Mother] reported she was leaving for the
day and said her goodbyes to [Michael]. It is reported that at
approximately 10:00 PM, [Respondent-Mother] could be heard
screaming for [Michael] from outside. [Respondent-Mother] was
climbing the building to [Ms. Batts’] balcony and was able to make
it to the balcony and inside the apartment. [Respondent-Mother]
was escorted out of the door by Mr. Pinkey and was informed that
she could no longer have visitations at their home.
On July 4, 2021, [Ms. Batts] reported that [Respondent-
Mother] came back to her house. Mr. Pinkey and [Respondent-
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Mother] got into a physical altercation because he would not let
her come into his home. It was reported that they were fighting
with a hammer. [Ms. Batts] reported that she intervened and was
able to get the hammer. [Ms. Batts] reported that her sister
appeared to be under the influence.
On 3 February 2022, New Hanover County District Court held a permanency
planning hearing to evaluate the placement of Michael with Ms. Batts in Prince
George’s County, Maryland. That hearing resulted in two orders—the First Order,
entered on 16 February 2022, awarded Ms. Batts guardianship of Michael, and the
Second Order, entered 14 March 2022, made further findings of fact regarding
Respondent-Mother’s progress in her case plan. Following the permanency planning
hearing, Judge Corpening entered the Second Order, which was filed on 14 March
2022. In it the court made the following finding of fact by clear, cogent and convincing
evidence:
16. . . . [Respondent-Mother] has lived in Washington, D.C., for
the last three years and currently resides in a two-bedroom
apartment. Respondent-Mother has been having unsupervised
visits and overnights since the Juvenile was placed in Maryland
with Maternal Aunt. Respondent-Mother is employed at U.S.
Fitness as a lifeguard. She has been employed there since August
of 2018 and is paid twelve dollars an hour.
The court expressed great concern with the frequency of the unsupervised
visits between Respondent-Mother and Michael. North Carolina DSS learned of
these visits in January 2022 and “immediately educated [Ms. Batts] about why this
could not occur and asked for the unsupervised visits and overnights to stop.” The
court noted in its findings of fact,
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51. That due to the distance, the denied ICPC, and the lack of
information provided by the Maternal Aunt and Respondent-
Mother about visitations, [North Carolina DSS] is conflicted. If
this had occurred in North Carolina, [North Carolina DSS] would
have requested that the Juvenile return to a foster care
placement to resolve the issues. To do so at this time though,
would remove the Juvenile from a relative placement with
consistent visitation, . . . and [North Carolina DSS] does not find
that in the best interest of the child, in a state where no one
continues to reside.
(emphasis added).
Following the entry of the Second Order on 14 March 2022, Respondent-
Mother timely filed a notice of appeal that referred only to the Second Order.
Subsequently, Respondent-Mother was appointed Appellate Counsel. Counsel for
Respondent-Mother filed a petition for writ of certiorari on 11 July 2022, asking this
Court to review the First Order in addition to the Second Order under a theory that
both orders were based on the same underlying facts.
II. Jurisdiction
As an initial matter, this Court will address Respondent-Mother’s petition for
a writ of certiorari to review the First Order. In a juvenile matter, final orders of a
lower court may be appealed directly to this Court when that order changes the legal
custody of a juvenile. N.C. Gen. Stat. § 7B-1001(a)(4) (2021). Further, the North
Carolina Rules of Appellate Procedure permit a writ of certiorari to be issued in this
Court’s discretion “when the right to prosecute an appeal has been lost by failure to
take timely action[.]” N.C.R. App. P. 21(a)(1). Finally, this Court has previously
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noted the “importance of issues involving the relations between parents and their
children” as a factor when considering a petition for writ of certiorari in juvenile
cases. In re K.C., 199 N.C. App. 557, 558, 681 S.E.2d 559, 561 (2009) (in which this
Court permitted the review of an adjudication order and disposition order, despite
the initial notice of appeal failing to reference the disposition order).
Here, the First Order and the Second Order both resulted from the same 3
February 2022 permanency planning hearing. In the First Order, which was entered
one month prior to the Second Order, Judge Corpening noted that “due to the
confidential nature of the files and proceedings of the Juvenile Court this separate
order is necessary to authorize [Ms. Batts] to act on behalf of the above-named
Juvenile and as such, has the full force and effect of the original Court Order upon
which it is based.” Respondent-Mother timely filed an appeal from the Second Order
and requested an appointment of counsel for her appeal. While Respondent-Mother’s
notice of appeal failed to include mention of the First Order, the facts in the Record
clearly show that both orders were based on the same underlying facts. Because the
legal custody of a juvenile hangs in the balance, this Court grants Respondent-
Mother’s petition for writ of certiorari and proceeds on the merits. See K.C. 199 N.C.
App. At 558, 681 S.E.2d at 561.
III. Issues
The issues before this Court are whether the district court: (1) had the requisite
subject matter jurisdiction to enter the First Order and Second Order, (2) reached
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conclusions that were supported by competent evidence, and (3) erred when it granted
guardianship to Ms. Batts. We find the jurisdictional issue is dispositive of all three.
IV. Analysis
On appeal, Respondent-Mother argues the First and Second Orders should be
vacated because the district court lacked subject matter jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”), as
Maryland is Michael’s home state, and the Maryland Custody Order was a previous
child-custody determination. Conversely, North Carolina DSS argues that North
Carolina became Michael’s home state when its temporary emergency jurisdiction
“‘morphed’ into a final determination on continued subject matter jurisdiction” under
N.C. Gen. Stat. § 50A-204(b). We agree with Respondent-Mother.
A. Standard of Review
“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).
B. The UCCJEA
Article Two of the UCCJEA has been adopted into North Carolina’s General
Statutes in an attempt to “avoid jurisdictional competition and conflict with the
courts of other States in matters of child custody. . . .” N.C. Gen. Stat. § 50A-101(1)
cmt. (2021). The jurisdictional requirements of the UCCJEA, therefore, must be met
before a court of this State takes any action pertaining to custody determinations.
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N.C. Gen. Stat. §§ 50A-201, 203, 204. If a court of this State lacks the jurisdiction to
decide on a matter, “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)).
C. Home State Jurisdiction
The UCCJEA defines home state 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). N.C. Gen. Stat. Section 50A-102(5) defines “commencement” for purposes of
the UCCJEA as “the filing of the first pleading in a proceeding.” Id. § 50A-102(5); In
re J.H., 244 N.C. App. 255, 264, 780 S.E.2d 228, 236 (2015).
In the instant case, a de novo review of the record shows that Maryland was
the home state of both Respondent-Mother and Michael. See id. at 260, 780 S.E.2d
at 233. The uncontroverted evidence in the Record shows that from his birth on 8
November 2013 until 14 October 2020, Michael lived his entire life in Washington,
D.C. and the surrounding suburbs of Maryland. Michael and Respondent-Mother
lived in Maryland for at least six months prior to North Carolina DSS taking Michael
into temporary emergency custody; further, Michael and Respondent-Mother lived in
Maryland for at least six months prior to Maryland DSS taking Michael into custody
in September 2018. Perhaps most pointedly, there are several instances throughout
the Record where the district court refers to Maryland as Michael’s home. For
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example, the district court stated that placement with Ms. Batts in Maryland would
“put [Michael] closer to home” and that placement with Ms. Batts would be more
appropriate due to “the distance between [Michael’s] placement and his permanent
home.” (emphasis added). These facts tend to show that, regardless of whether the
Maryland Custody Order should be considered an initial custody determination
under N.C. Gen. Stat. Section 201, Michael and Respondent-Mother lived in
Maryland for at least six months prior to the commencement of either the Maryland
or North Carolina cases. For those reasons, we hold Maryland is Michael’s home
state under the UCCJEA.
D. Initial Child-Custody Determination
The UCCJEA defines an “initial determination” as “the first child-custody
determination concerning a particular child.” N.C. Gen. Stat. § 50A-102(8). A child-
custody determination is defined as “a judgment, decree or other order of a court
providing for the legal custody, physical custody, or visitation with respect to a child.”
N.C. Gen. Stat. § 50A-102(3); see also id. cmt. (noting that a child-custody
determination under the UCCJEA “encompasses any judgment, decree, or other order
which provides for the custody of, or visitation with, a child[.]”) (emphasis added). If
there exists a home state, then that state is entitled to make initial child-custody
determinations. N.C. Gen. Stat. § 50A-201(a)(1).
As concluded above, Maryland is Michael’s home state and therefore possessed
the jurisdiction to make an initial child-custody determination. Further, the
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Maryland Custody Order is properly considered an initial child-custody
determination because it provided that Michael be returned to the full legal and
physical custody of Respondent-Mother. See N.C. Gen. Stat. § 50A-201(a)(1).
E. Maryland’s Exclusive, Continuing Jurisdiction
North Carolina DSS argues that the Maryland Custody Order cannot properly
be considered an initial child-custody determination because the clear language of
the order stated the matter was “terminated” which, in turn, “terminated” Maryland’s
jurisdiction over Michael and Respondent-Mother. We disagree.
A child’s home state retains
‘exclusive, continuing jurisdiction over the determination’ until
either (1) there is no longer a significant relationship between any
of the parties and the state, and there is no longer any substantial
evidence available in the state ‘concerning the child’s care,
protection, training, and personal relationships,’ or (2) none of the
parties reside in the state.
Hamdan v. Freitekh, 271 N.C. App. 383, 387, 844 S.E.2d 338, 341 (2020) (citing N.C.
Gen. Stat. § 50A-202(a)(1)–(2)).
According to North Carolina DSS’s own brief, “the Maryland Courts were clear
that the [Maryland Custody Order] remained in effect until the minor respondent
child reached the age of eighteen[.]” The Record also clearly shows that both Michael
and Respondent-Mother have a significant relationship with Maryland and that
substantial evidence relating to their custody matter can be found within the state.
Michael has lived all but nine months of his life in Maryland. The district court made
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findings of fact supported by clear, cogent, and convincing evidence that Michael
currently lives in a kinship placement in Maryland; for the past three years
Respondent-Mother has lived in a two-bedroom apartment in Washington, D.C.; and
Respondent-Mother has worked as a lifeguard at a fitness center in Washington, D.C.
since August 2018. All of these facts, taken together, point to the same conclusion:
Maryland has exclusive, continuing jurisdiction over the parties because Michael and
Respondent-Mother have lived there, continue to live there, and significant evidence
about their case exists there.
F. North Carolina’s Temporary Emergency Jurisdiction
North Carolina DSS argues that the conditions set out in N.C. Gen. Stat. §
50A-204(b) were met and thus, North Carolina’s temporary emergency jurisdiction
“morphed” into a final determination of jurisdiction, making North Carolina
Michael’s new home state. We disagree.
North Carolina may exercise “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 . . . is subjected to or threatened with
mistreatment or abuse.” N.C. Gen. Stat. § 50A-204(a). Once in temporary emergency
custody, a determination as to whether a previous child-custody determination exists
must be made. See generally N.C. Gen. Stat. §50A-204. Under section 50A-204(b), if
no previous child-custody determination had been made, then a child-custody
determination made under temporary emergency jurisdiction “becomes a final
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determination . . . and this State becomes the home state of the child.” N.C. Gen.
Stat. § 50A-204(b). If, however, a previous child-custody determination had been
made, then sections 50A-204(c)–(d) instruct North Carolina courts to specify the
duration of its jurisdiction in its order and communicate with the court of the child’s
home state to resolve the emergency. N.C. Gen. Stat. § 50A-204(c)–(d).
There is no disputing the emergent circumstances under which Michael came
into the temporary emergency custody of North Carolina DSS. Respondent-Mother’s
belligerence in Kure Beach on 14 October 2020 undoubtedly warranted intervention
to protect Michael, and North Carolina DSS appropriately exercised temporary
emergency jurisdiction. See N.C. Gen. Stat. § 50A-204. It is North Carolina DSS’s
contention, however, that the Maryland Custody Order was not a previous child-
custody determination and therefore Maryland did not have jurisdiction over the
parties. North Carolina DSS further argues that, in the absence of a previous child-
custody determination, this State’s temporary emergency jurisdiction “morphed” into
a final determination and North Carolina became Michael’s home state. See N.C.
Gen. Stat. § 50A-204(b). As we concluded above, the Maryland Custody Order is a
previous child-custody determination, and therefore section 50A-204(b) is neither
controlling nor relevant to Michael’s case. Instead, under sections 50A-204(c)–(d),
the district court had an affirmative duty to follow the parameters set forth for
addressing further custody determinations when a child is taken into temporary
emergency jurisdiction in our state and a previous custody determination had been
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made by another state. See N.C. Gen. Stat. § 50A-204(c)–(d); see also In re Brode, 151
N.C. App. 690, 695–96, 566 S.E.2d 858, 862 (2002) (holding that, after being noticed
of a prior custody order and upon entry of a temporary custody order, the trial court
should have immediately contacted the state in which the prior custody order was
entered to determine their willingness to assume jurisdiction.).
There is no evidence in the Record showing North Carolina and Maryland
courts communicated to resolve the emergency, or to determine a period of the
duration of the temporary order. See N.C. Gen. Stat. § 50A-204(c)–(d). The facts do
show, however, that the district court knew North Carolina DSS had been in contact
with Maryland DSS on several occasions. Additionally, both the Maryland Custody
Order and history of Maryland DSS’s case was admitted into evidence by the district
court. These facts lead this Court to conclude that the district court over-extended
its temporary emergency jurisdiction, despite knowledge of a previous child-custody
determination having been made.
V. Conclusion
The district court lacked the jurisdiction to enter both the First Order and the
Second Order, as Maryland has jurisdiction over both Respondent-Mother and
Michael; therefore, we vacate both the First Order and Second Order and remand to
the district court for proceedings consistent with this opinion.
VACATED AND REMANDED.
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Opinion of the Court
Judges TYSON and GRIFFIN concur.
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