Appeal by respondent from orders entered 8 July 2005 by Judge
Jerry F. Waddell in Carteret County District Court. Heard in the
Court of Appeals 14 September 2006.
Andrew A. Lassiter for petitioner-appellee.
Annick Lenoir-Peek for respondent-appellant.
LEVINSON, Judge.
Respondent, the mother of the minor children R.A.H., Jr., and
T.S.H., appeals from orders terminating her parental rights in the
children. We vacate the orders.
Respondent and the petitioner, who is the father of the minor
children, were married in 1989 and divorced in 1995. The minor
children, R.A.H., Jr., and T.S.H., were born during their marriage.
The parents lived in Iowa during their separation and divorce, and
in April 1995 the district court of Warren County, Iowa, entered a
Decree of Dissolution of Marriage. The Court awarded the parents
joint custody, with primary physical custody given to respondent
and visitation rights to petitioner. On 15 July 1995 respondent
shot petitioner, and shot and killed petitioner's girlfriend.
Respondent was convicted of willful injury and first degree murder,and was sentenced to life imprisonment without possibility of
parole.
In 1996 petitioner filed a pleading in the Iowa court, seeking
to terminate respondent's parental rights. He later took a
voluntary dismissal, and on 8 April 1997 the district court of
Warren County, Iowa, entered a consent order modifying the terms of
the original custody order. Recognizing respondent's incarceration
as a substantial change of circumstances, petitioner was awarded
sole legal and physical custody of both children. Respondent was
given visitation rights at the prison, and retained the right to
educational and medical information about the children.
Respondent's parents, who live in Iowa, were also given visitation
rights.
Petitioner remarried in 1999, and in May 2000 he stopped the
children's visitation. Respondent and her mother filed motions to
have petitioner held in contempt for failure to comply with the
1997 order, and petitioner filed another motion to terminate
respondent's visitation rights. Following a hearing on all
motions, the Warren County court on 1 February 2002 entered an
order that (1) dismissed petitioner's motion to terminate or
suspend respondent's visitation rights; (2) granted petitioner's
motion to terminate respondent's mother's visitation rights; and
(3) held petitioner in contempt of court for failure to comply with
the visitation provisions of the 1997 custody order.
In 2003 petitioner moved to Carteret County, North Carolina
with his wife and the minor children. In June 2003 petitionerfiled another motion in Iowa, again seeking modification of the
parties' custody rights. The matter was heard in October 2003, and
on 3 December 2003 the Warren County, Iowa, district court entered
an order changing the schedule of respondent's visitation rights to
visits during the children's summer vacation from school, and
telephone visitation. Petitioner was also ordered to keep
respondent informed of changes in the children's medical or
educational situation.
Five months after the entry of this order, the petitioner on
20 April 2004 filed petitions for termination of parental rights in
Carteret County, North Carolina. Petitioner alleged neglect,
abandonment, and inability to care for the children as grounds for
termination. In August 2004 counsel was appointed for respondent
on the termination of parental rights petitions. Before the
appointment of counsel, respondent either mailed petitioner or
filed several pro se motions seeking dismissal of the petitions,
enforcement of the Iowa court order, or change of venue. Her
motions set out the history of the district court rulings in Iowa,
and attached the relevant orders.
The hearing on the termination of parental rights petitions
commenced on 22 April 2005, and was completed on 25 May 2005. On
8 July 2005 the trial court entered orders terminating respondent's
parental rights in the minor children. From this order respondent
timely appeals.
Respondent argues on appeal that the trial court lacked
subject matter jurisdiction over the proceedings for termination of
parental rights. We agree.
Subject matter jurisdiction “refers to the power of the court
to deal with the kind of action in question,” and “is conferred
upon the courts by either the North Carolina Constitution or by
statute.”
Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d
673, 675 (1987) (citation omitted).
“'Subject matter jurisdiction
cannot be conferred upon a court by consent, waiver or estoppel,
and failure to demur or object to the jurisdiction is immaterial.'”
Stark v. Ratashara, __ N.C. App. __, __, 628 S.E.2d 471, 473
disc.
review denied, 360 N.C. 536, 633 S.E.2d 826 (2006) (citation
omitted
). “The issue of subject matter jurisdiction may be
considered by the court at any time, and may be raised for the
first time on appeal. 'This Court recognizes its duty to insure
subject matter jurisdiction exists prior to considering an
appeal.'”
In re T.B., __ N.C. App. __, __, 629 S.E.2d 895, 896-97
(2006) (quoting
In the Matter of E.T.S., __ N.C. App. __, __, 623
S.E.2d 300, 302 (2005)) (internal citation omitted).
N.C. Gen. Stat. § 7B-1101 (2005), governs subject matter
jurisdiction over termination of parental rights proceedings, and
provides generally that the court “shall have exclusive original
jurisdiction to hear and determine any petition or motion relating
to termination of parental rights to any juvenile who resides in .
. . the district at the time of filing of the petition or motion.”
In the instant case, it is undisputed that the children were livingin Carteret County when the petitions were filed. “Thus, the
general requirement that the children reside in or be found in the
district where the petition is filed is fulfilled. However, the
inquiry does not end at this stage. Rather, as N.C. Gen. Stat. §
7B-1101 indicates, jurisdictional provisions under the Uniform
Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (N.C. Gen.
Stat. § 50A-101
et seq.) [(2005)]) must be satisfied.”
In re
N.R.M.,
T.F.M., 165 N.C. App. 294, 298, 598 S.E.2d 147, 149 (2004).
In this regard, N.C. Gen. Stat. § 7B-1101 states that “before
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.” In the
instant case, the trial court failed to make any findings
addressing jurisdiction under the above statutes. In addition, our
review of the statutory bases for subject matter jurisdiction
reveals that none are applicable to the facts of this case.
N.C. Gen. Stat. § 50A-201 (2005), addresses subject matter
jurisdiction over “an initial child-custody determination,” defined
by statute as “the first child-custody determination concerning a
particular child.” N.C. Gen. Stat. § 50A-102(8) (2005). In the
case
sub judice, the initial custody determination was made by the
court in Warren County, Iowa, making § 50A-201 inapplicable. N.C.
Gen. Stat. § 50A-204 (2005), “Temporary emergency jurisdiction,” is
likewise inapplicable to the facts of this case.
The remaining possible basis for jurisdiction is N.C. Gen.
Stat. § 50A-203 (2005), which provides in relevant part that: Except as otherwise provided in G.S. 50A-204,
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
(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.
(emphasis added).
In the instant case, the record establishes that all previous
orders addressing child custody were entered by the district court
in Iowa. Nothing in the record indicates that Iowa relinquished
jurisdiction, or was even asked to do so. Accordingly, we conclude
that the North Carolina court lacked subject matter jurisdiction
over the termination of parental rights proceeding, and that these
orders for termination of parental rights must be vacated.
Vacated.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
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