Francis v. Durham County Department of Social Services

255 S.E.2d 263 (1979) 41 N.C. App. 444

Charles H. FRANCIS, Jr., and wife, Carolyn F. Francis
v.
DURHAM COUNTY DEPARTMENT OF SOCIAL SERVICES.

No. 7814DC717.

Court of Appeals of North Carolina.

June 5, 1979.

Mount, White, King, Hutson, Walker & Carden by E. Lawson Moore and William O. King, Durham, for appellees.

Lester W. Owen, Durham, and James W. Swindell for Durham County Department of Social Services, defendant-appellant.

PARKER, Judge.

Appellant, the Durham County Department of Social Services, first contends that the district court did not have jurisdiction over the subject matter of this action and that its motion to dismiss made under G.S. 1A-1, Rule 12(b)(1) should have been allowed. We do not agree.

This is a civil action for custody of a minor child. The child was physically present in this State and the court obtained personal jurisdiction over the defendant agency, which had actual control and custody of the child when this action was commenced. Either of these factors would vest jurisdiction in the courts of this State to determine custody of the child. See G.S. 50-13.5(c)(2). "The district court division is the proper division . . . for the trial of civil actions and proceedings for . . child custody." G.S. 7A-244. The procedure in actions for custody or support of minor children is prescribed in G.S. 50-13.5. Subsection (h) of that statute provides that "[w]hen a district court having jurisdiction of the matter shall have been established, actions or proceedings for custody and support of minor children shall be heard without a jury by the judge of such district court and may be heard at any time." We hold that by virtue of these statutes the district court had jurisdiction over the subject matter of this action.

We find no merit in appellant's contention that, the child having been placed by its mother with the appellant and the mother having signed a general consent for his adoption, the provisions of G.S. Ch. 48 governing adoptions apply so as to vest subject matter jurisdiction over all matters pertaining to the child's custody exclusively in the clerk of superior court or in the superior court itself. G.S. 48-12(a) provides that "[a]doption shall be by a special proceeding before the clerk of superior court," but here no proceeding for the adoption of the child had been filed when this action was instituted. Plaintiffs' informal oral request made to the Department that their grandchild be placed with them for adoption, which request the Department denied, did not amount to the institution of an adoption proceeding. All that had happened here prior to the institution of the present custody action is that the mother had surrendered the child to the defendant Department and had signed a general consent for his adoption. The effect of this was to give legal custody of the child to the Department "unless otherwise ordered by a court of competent jurisdiction." G.S. 48-9.1(1). Here, a court of competent jurisdiction has otherwise ordered. Appellant's first assignment of error is overruled.

Appellant next contends that the court erred in failing to grant it a "protective order based upon confidentiality of records as set out in G.S. 48-25." Subsection (c) of the cited statute is as follows:

(c) No director of social services or any employee of a social services department nor a duly licensed child-placing agency or any of its employees, officers, directors or trustees shall be required to disclose any information, written or verbal, relating to any child or to its natural, legal or adoptive parents, acquired in the contemplation of an adoption of the child, except by order of the clerk of the superior court of original jurisdiction of the adoption, approved by order of a judge of that court, upon motion and after due notice of hearing thereupon given to the director of social services or child-placing agency; provided, however, that every director of social services and child-placing agency shall make to the court all reports required under the provisions of G.S. 48-16 and 48-19.

The record on appeal does not reveal exactly what type of "protective order" was requested by the appellant and does not even clearly reveal that the district court, after being presented with a proper motion by defendant for any such order, refused to grant it. Indeed, in this regard appellant's brief contains the statement that "[t]he offer made by the District Court to provide the defendant a protective order was of no avail because the District Court is without jurisdiction to grant such an order as denoted in G.S. Sec. 48-25 quoted above." Appellant may not now justly complain if the district court failed to enter an order which appellant contends it had no power to grant. Whatever may be the situation in that regard, it is manifest that appellant was not prejudiced by the absence of any "protective order." Neither the director nor any employee of the Durham County Department of Social Services was required in this action to disclose any information of the type referred to in G.S. 48-25.

We have examined appellant's remaining contentions set forth in its brief and find them without merit. Our review of this case has been made more difficult by appellant's failure to comply with the directive of Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure that "[e]ach exception shall be set out immediately following the record of judicial action to which it is addressed and shall identify the action, without any statement of grounds or argumentation, by any clear means of reference." In the record on appeal the appellant referred to exceptions under its assignments of error but such exceptions do not otherwise appear in the record. For failure to comply with the Rules of Appellate Procedure this appeal would have been subject to dismissal. Rule 25, N.C. Rules of Appellate Procedure. Nevertheless, we have elected not to dismiss this appeal in order that we may pass upon the jurisdictional question which appellant sought to raise.

Finally, we take note of the reason stated in defendant Department's letter as to why it was unable to consider plaintiffs' request to have their grandchild placed with them for adoption. The stated reason was that it was "because of the position of the mother and, as N.C. law gives the parent the right to make this decision." It is apparent from this that the Department was acting under a misapprehension of the law when it refused to consider plaintiffs' request. No provision of law gives the right to decide who may and who may not be considered as adoptive parents to a natural parent who has given to a director of social services an irrevocable general consent for the adoption of his child.

The order appealed from is

Affirmed.

MITCHELL and HARRY C. MARTIN, JJ., concur.