1. Attorneys--representation by out-of-state counsel--no local
counsel--no prejudicial error
There was no prejudicial error in a child custody action
where respondent was represented by Florida counsel, it could not
be determined from the record whether local counsel appeared, and
petitioners did not object. N.C.G.S. § 84-4.1.
2. Child Support, Custody, and Visitation--child support--prior
Florida custody order--North Carolina petition to terminate
parental rights--jurisdiction
A North Carolina court properly declined to invoke its
jurisdiction under N.C.G.S. § 7A-289.23 where petitioners
obtained custody of a child under a Florida order, petitioners
and the child moved to North Carolina with the approval of the
Florida court, and petitioners subsequently filed this action in
North Carolina to terminate the parental rights of the respondent
father, who resides in Florida. The trial court must first
consider whether it has jurisdiction to make a child custody
order under N.C.G.S. § 50A-3 before it can exert the “exclusive
original” jurisdiction granted in N.C.G.S. § 7A-289.23. The
trial court's jurisdiction in a termination of parental rights
case must be compatible with both the Uniform Child Custody
Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention
Act (PKPA); under the PKPA, the Florida court retains
jurisdiction because the father continues to reside in Florida. Appeal by petitioners from an order entered 25 February 1998
by Judge James T. Bowen in Lincoln County District Court. Heard
in the Court of Appeals 6 January 1999.
Short, Smith & Wilson, P.A., by Charles E. Wilson, Jr., for
petitioners-appellants.
Michael W. Johnson; and Harrington, Moore, Ward, Gilleand &
Winstead, L.L.P., by Eddie S. Winstead, III, for respondent-
appellee.
WALKER, Judge.
Petitioners, George and Cherri Punch, brought this action to
terminate the parental rights of respondent, Robert Bean, the
putative father of the minor child, Atasha Dawn Bean, who was
born 6 July 1988. The biological mother's parental rights were
terminated in 1992. The respondent father resides in Ocala,
Florida while the petitioners and the child currently reside in
Lincoln County, North Carolina. The child was declared dependent
on 15 June 1989 by order of the Circuit Court, Marion County,
Florida and placed in the custody of the Marion County, Florida
Department of Health and Rehabilitative Services (the
Department). The Department placed the child in the custody of
the petitioners on 20 December 1990 and the child has remained in
the petitioners' custody since that time. In December 1994, the
petitioners and the child moved to Lincoln County, North Carolinafrom Florida with the consent of the Department and the Circuit
Court.
By an order dated 30 January 1996, the Circuit Court in
Marion County, Florida continued the child in the long-term
custody of the petitioners:
The court hereby continues the minor child in
the long term custody of the above adult non-
relatives willing to care for the child
without the supervision of the Department. .
. . [T]he court has determined that neither
reunification, termination of parental
rights, nor adoption is currently in the best
interest of the child. . . . All parties
understand that the long-term custodial
relationship does not preclude the
possibility of the child returning to the
custody of the father at a later date.
The court retains jurisdiction over this case
and the child shall remain in the long-term
custody of George A. Punch and Cherri Punch,
. . . until the order creating the long-term
custodial relationship is modified by the
court.
Petitioners were present in Florida at the hearing from which
this order was derived on 19 January 1996. The child has not
returned to Florida since March 1995.
Petitioners filed this action on 29 April 1997 and service
was obtained upon the respondent father in Florida. The
respondent's counsel, a member of the Florida bar, moved the
trial court to allow him to appear pro hac vice, but did notassociate local counsel for the hearing in conformance with N.C.
Gen. Stat. § 84-4.1. Nevertheless, the trial court granted the
motion. On 19 June 1997, the respondent father filed a motion to
dismiss the petition on the grounds that the Circuit Court in
Florida retained jurisdiction over the child and that the trial
court here could not exercise jurisdiction consistent with the
Uniform Child Custody Jurisdiction Act (UCCJA). The trial court
granted the motion to dismiss finding that Florida retained
jurisdiction over the child.
[1]Petitioners first assign as error the trial court's
granting of the respondent's counsel's Motion to Appear Pro Hac
Vice because the attorney did not comply with N.C. Gen. Stat. §
84-4.1, which requires that local counsel be associated and
appear with the out-of-state counsel at trial.
An out-of-state attorney must comply with five requirements
contained in N.C. Gen. Stat. § 84-4.1 when filing a motion to
appear, including a requirement that local counsel be associated
who will accept service on behalf of the attorney in any related
proceeding or disciplinary action. N.C. Gen. Stat. § 84-4.1
(1995). The purpose of the statute is to allow courts a means to
control out-of-state counsel and to assure their compliance with
the duties and responsibilities of attorneys from this State.
N.C.N.B. v. Virginia Carolina Builders, 57 N.C. App. 628, 292S.E.2d 135, rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629
(1982).
In this case, the trial court allowed counsel's motion;
however, we are unable to determine from the record whether local
counsel appeared as petitioners did not object. See N.C.R. App.
P. 10(b)(1). Petitioners now contend the trial court erred by
failing to enforce compliance with the statute. Nevertheless,
assuming the trial court erred by failing to enforce compliance,
we decline to find prejudicial error such that the order should
be set aside.
[2]Petitioners contend the trial court erred in dismissing
their petition on the grounds that it did not have jurisdiction
to hear the case. They argue that the trial court has original
jurisdiction over a petition to terminate parental rights
pursuant to N.C. Gen. Stat. § 7A-289.23 in all cases where the
child resides in or is found in the district.
N.C. Gen. Stat. § 7A-289.23 provides for jurisdiction over
termination of parental rights actions:
The district court shall have exclusive
original jurisdiction to hear and determine
any petition relating to termination of
parental rights to any child who resides in,
is found in, or is in the legal or actual
custody of a county department of social
services or licensed child-placing agency in
the district at the time of filing of the
petition. . . . Provided that, beforeexercising jurisdiction under this Article
the court shall find that it would have
jurisdiction to make a child custody
determination under the provisions of G.S.
50A-3. . . .
N.C. Gen. Stat. § 7A-289.23 (1995)(emphasis added). This
provision requires a two-part process in which the trial court
must first consider whether it has jurisdiction to make a child
custody order under N.C. Gen. Stat. § 50A-3 before it can exert
the “exclusive original” jurisdiction granted in N.C. Gen. Stat.
§ 7A-289.23. In re Leonard, 77 N.C. App. 439, 335 S.E.2d 73
(1985). Thus, the district court may assert its jurisdiction
only if to do so would be compatible with the UCCJA, which is
codified in N.C. Gen. Stat. Ch. 50A. The UCCJA governs “custody
proceedings” where multiple states are involved and its purpose
is to prevent forum shopping for the convenience of competing
parents to the detriment of the interest of the child. Holland
v. Holland, 56 N.C. App. 96, 286 S.E.2d 895 (1982).
Our State's jurisdiction is governed by both the UCCJA and
the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A
(1980). Beck v. Beck, 123 N.C. App. 629, 473 S.E.2d 789 (1996).
The PKPA has established the national policy with regard to
custody jurisdiction, and to the extent a state custody statute
conflicts with the PKPA, the federal statute controls. Id.;
Gasser v. Sperry, 93 N.C. App. 72, 376 S.E.2d 478 (1989); SeeThompson v. Thompson, 484 U.S. 174, 98 L. Ed. 2d 512 (1988). The
trial court's jurisdiction in a termination of parental rights
case must be compatible with both the UCCJA and the PKPA.
The UCCJA establishes four routes by which a trial court may
assert its jurisdiction: (1) if this is the child's “home state,”
or (2) if there is a “significant connection” between the child
and this State, or (3) if the child is physically present and
there is an emergency, or (4) if no other state would have
jurisdiction or another state has declined jurisdiction and found
that this State would be a more appropriate forum. N.C. Gen.
Stat. § 50A-3 (1984). The UCCJA only requires a trial court to
decline to exercise jurisdiction when it is notified that a
custody proceeding is ongoing in another jurisdiction. See N.C.
Gen. Stat. § 50A-6 (1984). However, the PKPA imposes an
additional limitation to the circumstances in which a trial court
may assert its jurisdiction:
(d) The jurisdiction of a court of a State
which has made a child custody determination
consistently with the provisions of this
section continues as long as the requirement
of subsection (c)(1) of this section
continues to be met and such State remains
the residence of the child or any contestant.
28 U.S.C. § 1738A(d)(1980)(emphasis added). Subsection (c)(1)
mandates that the trial court making the original determinationhave proper jurisdiction under its own laws. Thus, so long as
the original trial court had proper jurisdiction under its own
laws and the child or any contestant continues to reside in that
state, it retains jurisdiction.
In this case, Florida has adopted the UCCJA, so the
jurisdiction of the Florida court was dependent on whether it was
the child's home state at the time of the original dependency
declaration in 1990. See Fla. Stat. Ann. §§ 39.013, 61.1308
(West 1998). Although the petitioners and the child have now
resided in Lincoln County, North Carolina since 1994, the
putative father, a contestant in this case, continues to reside
in Florida, the State which originally granted custody to the
petitioners and which has continued to assert its jurisdiction
over this case. Under the PKPA, because the father continues to
reside in Florida, the Florida court retains jurisdiction and the
trial court properly declined to invoke its jurisdiction under
N.C. Gen. Stat. § 7A-289.23.
For these reasons, the order of the trial court dismissing
the petition is
Affirmed.
Judges LEWIS and TIMMONS-GOODSON concur.
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