In Re: A.M.H., (04-188) 05/03/2005

NO. COA04-188

NORTH CAROLINA COURT OF APPEALS

Filed: 3 May 2005

In re A.M.H.,
    A minor child

                                                                   Cumberland County
                                No. 02 CVD 1259

On writ of certiorari to review order filed 3 March 2003 by Judge Kimbrell Kelly Tucker in Cumberland County District Court. Heard in the Court of Appeals 15 September 2004.

Bryce D. Neier for petitioner-appellees.

Rebekah W. Davis for respondent-appellant.

    BRYANT, Judge.

    April   (See footnote 1) (respondent) appeals from a termination of parental rights (TPR) order filed 3 March 2003, terminating her parental rights as to the minor child A.M.H.
    On 21 February 2002, the brother and sister-in-law of the putative father (petitioners), petitioned the district court to terminate respondent's parental rights with the stated grounds as follows:
1. That the Respondent for a continuous period of more than six months next preceding the filing of this petition has failed to pay a reasonable amount of cost of care of the minor child during which time said child has been inthe custody of Petitioners.

2. That the Respondent for a continuous period of more than six months next preceding the filing of this petition has failed to have any contact with said minor child, either by way of personal visitation, telephonic visitation or mail.

3. That the Respondent has not acknowledged birthdays, Christmas or other holidays.

    An adjudication and dispositional hearing was held on 2 October 2002 and 7 October 2002.
    The district court entered an order as to grounds for termination of parental rights finding in pertinent part:
1 1.      The minor child . . . was born on the 21^st day of August, 2000 in Columbia, South Carolina and currently resides in Fayetteville, North Carolina with Petitioners.

2 2.      Petitioners have served as the primary caregivers for the minor child since June 28, 2001. An order for the minor child was entered by this [c]ourt.

3 3.      Respondent . . . is the biological mother of the minor child. Respondent was incarcerated in the Woman's Correctional Institution, Columbia, South Carolina from the time period beginning six months into her pregnancy with the subject child, continuing through the child's birth and concluding when the minor child was at the age of approximately four and one half months.

4 4.      The biological father of the minor child, [the putative father], has consented to te Petitioners' custody of the minor child and their subsequent permanent adoption of the minor child.

5 5.      [The putative father] and [Respondent] were never married to each other.
6 6.      Two days following the birth of the minor child, Respondent directed that said child be released to the care of Jim and Diane Wells. . . .

7 7.      Jim and Diane Wells cared for the minor child in their home located in Lexington, South Carolina for approximately four and one half months. . . .

8 8.      Upon Respondent's release from the Women's Correctional Institution on January 2, 2001, she moved to Lexington, South Carolina where she resided with Jim and Diane Wells and the minor child for a period of approximately three months. During this time period, Diane Wells still served as the primary caretaker of the minor child.

9 9.      Jim and Diane Wells were instrumental in assisting Respondent in obtaining her own residence, furnishing and utilities in Lexington, South Carolina. Respondent moved from the Wells' home to her own residence where she resided with the minor child for a period of approximately two and one half weeks.

10 10.      During Easter weekend of 2001, Respondent left her residence with the minor child and relocated to Summerville, South Carolina to be near [the putative father]. In Summerville, South Carolina, Respondent and the minor child resided with a paraplegic friend named Robert Cook.

11 11.      On or about May 26, 2001, Respondent contacted Diane Wells by telephone and asked her to come and pick up the minor child. Upon arriving in Summerville, South Carolina, Mrs. Wells did receive the minor child and all her belongings from Respondent and did return with the child to her Lexington, South Carolina residence.

12 12.      Mrs. Wells and her husband continued to care for the minor child in their home but received no communication from Respondent for a period of approximatelyfive weeks.

13 13.      On or about June 26, 2001, Respondent was arrested for violation of her probation and placed in the Goodman Correctional Institution in Columbia, South Carolina.

14 14.      On or about June 27, 2001, Mrs. Wells contacted Petitioners concerning the status of the minor child and the need for a family member to take responsibility for the child.

15 15.      On or about June 28, 2001, Petitioners and [the putative father] traveled to Lexington, South Carolina and received the minor child from the Wells household.

16 16.      Petitioners returned to Fayetteville, North Carolina with the minor child and her belongings. Since that date, the minor child has resided with the Petitioners.

17 17.      On July 3, 2001, Respondent contacted Petitioners by telephone at their residence in Fayetteville, North Carolina. Following this telephone call, Petitioner[-husband] and [the putative father] met with Respondent at the Goodman Correctional Institution to discuss Respondent's willingness to relinquish parental rights as to the minor child so that Petitioners could adopt the child. Respondent declined to relinquish her parental rights.

18 18.      Petitioners have not changed their residence or telephone number from July 3, 2001 through the date of this hearing.

19 19.      Respondent made no contact or communication with the minor child including sending any gifts, card, letter, or making telephone calls to the child from July 3, 2001 through the date of the filing of the petition herein.

20.    Petitioners have ample housing space and financial ability to provide for the appropriate care and maintenance of the minor child.
22.     On March 11, 2002, Respondent . . . was served with a copy of the petition and summons by certified mail at the Dorchester County Jail . . . . Respondent's maximum release on her current criminal sentence is October 19, 2004.

23.    Respondent is the biological mother of seven children. One of which is in the legal custody of Respondent's mother, one of which was adopted by friends of Respondent's, one of which was adopted by parents unknown to Respondent, one of which was adopted by foster parents, two of which are in the current legal physical custody of the South Carolina Department of Social Services and the subject minor child herein.

24.     Respondent has wilfully abandoned the minor child herein for at least six months immediately preceding the filing of this petition by not having any communication or contact with the minor child including sending any gifts, cards, letter, or making telephone calls to the child.

25.     The best interest of the minor child require that the parental rights of Respondent, [April], be terminated in this proceeding.

    Based on these finding, the district court concluded:
3.    Grounds for terminating the parental rights of Respondent . . . with respect to the minor child for failure to have contact with the minor child for the period of time and under the conditions set forth in N.C.G.S. §7B-1111(4)   (See footnote 2) areestablished by clear, cogent and convincing evidence.

4.    The [c]ourt has fully considered any and all defenses and denials asserted by Respondent.

Further concluding that it was in the minor child's best interest, the district court, through its order, thereby terminated respondent's parental rights.
This Court granted writ of certiorari to review respondent's appeal.

_________________________

The issues addressed on appeal are whether: (I) petitioners had standing to initiate a proceeding to terminate respondent's parental rights; (II) the district court had subject matter jurisdiction to terminate respondent's parental rights; (III) the district court erred in concluding that respondent wilfully abandoned the minor child; and (IV) the district court abused its discretion in terminating respondent's parental rights.

    Respondent first argues that petitioners did not have standing to initiate the termination of parental rights proceeding because the minor child had not lived with the petitioners for a continuous period of two years or more prior to the filing of the TPR petition.
    N.C. Gen. Stat. § 7B-1103(2), provides that “[a]ny person who has been judicially appointed as the guardian of the person of the juvenile” is statutorily authorized to file a TPR petition. N.C.G.S. § 7B-1103(2) (2003). Black's Law Dictionary defines a guardian as “[o]ne who has legal authority and duty to care for another's person or property, esp. because of the other's infancy.” Black's Law Dictionary 566 (Abridged 7th ed. 2000).
    In the instant case, petitioners sought temporary emergency custody of the minor child alleging the minor child had been abandoned. Petitioners were judicially appointed guardians of the minor child when a North Carolina court awarded petitioners temporary custody of the minor child on 22 August 2001. Petitioners temporary guardianship of the minor child was continued by North Carolina court orders filed 5 September 2001, and 29 October 2001; and permanent custody was awarded by North Carolina court order filed 25 January 2002. The TPR petition was filed 21 February 2002, at a time petitioners had permanent custody and guardianship of the minor child.
    Based on the clear language of N.C. Gen. Stat. § 7B-1103(2), the fact that the petitioners had permanent custody and were legal guardians of the minor child, and the fact that respondent has notchallenged whether the underlying custody orders were valid and enforceable, this assignment of error is overruled.

    Respondent next argues that the district court did not have subject matter jurisdiction to hear the TPR petition because there existed a prior custody determination awarding respondent custody of the minor child.
    The UCCJEA is a jurisdictional statute relating to child custody disputes. See In re Van Kooten, 126 N.C. App. 764, 768, 487 S.E.2d 160, 162-63 (1997). The jurisdictional requirements of the UCCJEA must be satisfied for a court to have authority to adjudicate petitions filed pursuant to our Juvenile Code, see id. at 764, 487 S.E.2d at 163, even though the Juvenile Code provides that the district courts of North Carolina have “'exclusive, original jurisdiction over any case involving a juvenile,'” In re Malone, 129 N.C. App. 338, 342, 498 S.E.2d 836, 838 (1998), including cases where a petition has been filed to terminate a parent's parental rights. See generally In re N.R.M., 165 N.C. App. 294, 598 S.E.2d 147 (2004); In re J.B., 164 N.C. App. 394, 595 S.E.2d 794 (2004).
    A district court in North Carolina can exercise jurisdiction under the UCCJEA to make child custody determinations if: (1) this State was the home state of the child; (2) it was in the best interest of the child because the child and the child's parents had a significant connection with this State; (3) the child was physically present in this State and it was necessary in anemergency to protect the child because the child had been subjected to or threatened with mistreatment or abuse; or (4) it appeared that no other state would have jurisdiction or another state had declined to exercise jurisdiction. See In re Malone at 343, 498 S.E.2d at 839; see also In re Van Kooten at 769, 487 S.E.2d at 163; In re Bean, 132 N.C. App. 363, 366, 511 S.E.2d 683, 686 (1999).
    Under N.C. Gen. Stat. § 50A-204(a), temporary emergency jurisdiction may be invoked by a court if a “child is present in this State and the child has been abandoned.” N.C.G.S. § 50A-204(a) (2003). The statute further provides in N.C. Gen. Stat. § 50A-204(c)-(d):
(c) If there is a previous child-custody determination that is entitled to be enforced under this Article, . . . any order issued by a court of this State under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction . . . . The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

(d) 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 determination has been made by, a court of [another] state . . . shall immediately communicate with the other court.

N.C.G.S. § 50A-204(c)-(d) (2003). When a court invokes emergency jurisdiction, any orders entered shall be temporary protective orders only. In re Malone at 343, 498 S.E.2d at 839; see also In re Brode, 151 N.C. App. 690, 693, 566 S.E.2d 858, 860 (2002).

Our State's jurisdiction over child custody matters is also governed by the PKPA. See In re Bean at 366, 511 S.E.2d at 686.The PKPA represents Congress's attempt to create a uniform standard among the states in their exercise of jurisdiction over interstate custody disputes. See In re Malone at 342, 498 S.E.2d at 838-39. The PKPA provides that “every State shall enforce . . . and shall not modify . . . any custody determination or visitation determination made . . . by a court of another State.” 28 U.S.C.A. § 1738A(a) (2002). The act further provides that “the jurisdiction of a court of a State which has made a child custody determination or visitation determination . . . continues as long as . . . such State remains the residence of the child or of any contestant.” 28 U.S.C.A. § 1738A(d) (2002). Modifications of another state's custody determination may only be made if the modifying state “has jurisdiction to make such a child custody determination; and [] the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” 28 U.S.C.A. § 1738A(f) (1994). To the extent a state custody statute conflicts with the PKPA, the federal statute controls. In re Bean at 366, 511 S.E.2d at 686. Further, our Court has previously held that the PKPA does apply “'to all interstate custody proceedings affecting a prior custody award by a different State.'” In re Malone at 342, 498 S.E.2d at 839 (citation omitted).
We note that the district court order in the instant case is silent as to the basis for its jurisdiction to adjudicate this case. The record does indicate, however, that the State of South Carolina entered a temporary custody order awarding respondentcustody of the minor child on 25 May 2001. This temporary custody order expired on 25 November 2001 with no further proceedings or custody determinations occurring. At the time the TPR petition was filed 21 February 2002, and when the matter was heard on 2 October 2002 and 7 October 2002, the South Carolina temporary custody order was no longer in effect, thereby, North Carolina was not precluded pursuant to the UCCJEA and PKPA from making a TPR and permanent custody determination. This assignment of error is overruled.

Respondent argues that the district court erred in concluding grounds existed to terminate her parental rights in that she willfully abandoned the minor child for a period of six months preceding the filing of the TPR petition.

We review the district court's judgment to determine “whether the court's 'findings of fact are based upon clear, cogent and convincing evidence' and whether the 'findings support the conclusions of law.'” In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (quoting In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996)).
In the case at bar, the district court found and concluded that respondent willfully abandoned the minor child as set forth in section 7B-1111(a)(7) of the North Carolina General Statutes. Under this section willful abandonment is defined as follows: “The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion.” N.C.G.S. § 7B-1111(a)(7) (2003). “Abandonment impliesconduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child.” In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). “The word willful encompasses more than an intention to do a thing; there must also be purpose and deliberation.” Id. The finding of whether a parent has willfully abandoned his child is a question of fact to be determined from the evidence. Id.

In the instant case, Diane Wells testified as follows: She was a member of a prison ministry and was respondent's sponsor for one year. Respondent, who was pregnant with the minor child at that time, and the Wells signed and entered into a temporary custody agreement specifying that the Wells would become the minor child's caretakers once the child was born. Respondent was released from prison on 2 January 2001 and moved in with the Wells and the minor child. Before Respondent secured a job at McDonald's, she cared for the minor child while the Wells were at work and got up at night when the child cried.
In March 2001, respondent moved into her own home with the minor child. Approximately, two-and-one-half weeks later, respondent left her home and moved to Dorchester County, South Carolina with the putative father. While in Dorchester County, respondent called the Wells and gave them a phone number where she could be reached. Mrs. Wells further testified:
And so the end of May, around the 26th or the 27th of May of 2001 we called [respondent] and asked her if we could come and see [the minor child] for a visit. And she said we could. And I asked her then could we bring the baby back with us and let her stay with us for two weeks. And she said, yeah, we could. So when we got there to get [the minor child] in Dorchester, she had all of [the minor child's] clothes packed, she had her basinet, she had her playpen, she had her highchair; she even had her birth certificate in her diaper bag.

. . .

. . . And she told us that they had been evicted from the apartment, they were going to have to be moving. And at that time she did not know were they were going but she would call me when she found a place that her and [her friend - not the putative father] would be . . . . We never heard nothing. She fell off the face of the earth for five weeks.

    Mrs. Wells received, from the putative father's current wife, an address where respondent was living. According to Mrs. Wells, this trailer appeared to be a crack house. The friend with whom respondent had been previously residing with came out of the trailer and said he did not know where respondent was.
    Around eleven o'clock at night, respondent called the Wells cursing at Mrs. Wells and asking why did they bring the minor child to the trailer without letting her know they were coming. Mrs. Wells then testified: “And I said, you are her mother; I should not have to have permission to bring this baby to see you, and if you would have wanted to see her that bad, you should have been there.” Mrs. Wells hung up on respondent, however, respondent immediately called back. Respondent said she and the putative father would be at the Wells' home the next day to pick up the minor child. However, Mrs. Wells testified that they did not come. That was the last time Mrs. Wells heard from respondent until respondent went tojail.
    While respondent was in jail, Mrs. Wells contacted the Department of Social Services (DSS) to get assistance because her temporary custody of the minor child expired upon respondent's release from prison. DSS told Mrs. Wells that she needed to get a family member involved.
    Mrs. Wells testified that it was June 2001 when respondent went to jail for ten days and then back to jail for probation violation. During this time, respondent did not contact the Wells to check on the status of the minor child, nor did she come to retrieve the minor child after she was released from her ten day stay in jail. “The next time [Mrs. Wells] heard from [respondent] was after she had gotten out of jail and then she realized that [petitioners] had [the minor child] and she called, cursing [Mrs. Wells] out again.” Respondent did not ask for petitioners' address nor phone number.
     Petitioner-wife testified as to the following: Mrs. Wells “called and begged us to please come and take care of the baby, bring [the minor child] to our home so that DSS would not come and take the child.” At the time petitioners took the minor child to North Carolina (approximately June 2001) they did not know where respondent was located, but one or two days later, petitioner- husband and the putative father learned that respondent was in jail. After the petitioner-husband “went down to the jail,” he called the jail and left a message for respondent to call. “When she called, he accepted that collect call and he talked to her atthat time, telling her, well, we don't know how long you're going to be in jail; we need you to sign something giving us guardianship.” Respondent never called the petitioners after respondent got out of jail in June 2001, never sent any letters or cards nor support for the minor child.
    Petitioner-wife testified respondent had not called after being put in jail this last time, and she never sent letters prior to 23 August 2002. Petitioner-wife further testified that from August 2001 until February 2002, they had not refused to accept any collect calls from respondent, and there were no messages from respondent left on their answering machine. Petitioner-husband testified as follows: Respondent did not call the petitioners from approximately July 2001 until March 2002, nor did she send a Christmas present for the minor child. The last call respondent made to petitioners was on 14 July 2001.

We hold that the evidence and findings (See footnote 3) in this case support the conclusion that respondent willfully abandoned the minor child.

    Lastly, respondent argues the district court abused its discretion in terminating respondent's parental rights.
    If a district court finds grounds upon which to terminate parental rights, the district court “shall issue an order terminating the parental rights . . . unless the [district] courtshall further determine that the best interests of the juvenile require the rights of the parent not be terminated.” N.C.G.S. § 7B-1110(a) (2003). In this case, the district court properly found grounds for terminating respondent's parental rights.
    The district court heard extensive testimony of events and circumstances both prior to and after the removal of the minor child, and made specific findings of fact regarding those events and circumstances. Based on this record, because the district court properly determined grounds supporting the termination of parental rights existed, it did not abuse its discretion in concluding it was in the child's best interests to terminate those parental rights. See In re Guynn, 113 N.C. App. 114, 120, 437 S.E.2d 532, 536 (1993) (stating the district court's conclusion to terminate parental rights after finding grounds to do so is reviewed for abuse of discretion). Accordingly, the district court did not err in terminating respondent's parental rights.
    Affirmed.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

Footnote: 1

Initials have been used throughout to protect the identity of the juvenile.

Footnote: 2

N.C. Gen. Stat. § 7B-1111(a)(4) states:

One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year ormore next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement.

N.C.G.S. § 7B-1111(a)(4) (2003).

Based on the district court's finding/conclusion that respondent wilfully abandoned the minor child, it appears the written order reflects a typographical error in that respondent's parental rights were, in fact, terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) and not N.C. Gen. Stat. § 7B-1111(a)(4).

Footnote: 3

Respondent specifically argued that findings of fact # 8, 11, 12, 18, 19, 24, and 25 were not supported by the evidence. Based on the evidence discussed above, we conclude these findings were supported by competent evidence in the record.

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