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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: T.J.D.W., J.J.W.
Filed: 3 April 2007
1. Termination of Parental Rights_jurisdiction_existing South Carolina order_North
The trial court had the subject matter jurisdiction to terminate the parental rights of a
child who had been in the custody of a South Carolina social services department, but who had
been brought to North Carolina with her mother before this action. Although the trial court did
not make any findings on this evidence, the relevant statutes do not require a finding; N.C.G.S. §
50A-201(a)(1) states only that certain circumstances must exist.
2. Termination of Parental Rights_jurisdiction_child resident in North Carolina
The trial court properly asserted subject matter jurisdiction over a child who was taken
into custody by DSS in North Carolina immediately after she was born and who thereafter
remained in foster care in North Carolina. The child had no contact with any other state and no
other state ever asserted jurisdiction over her for any custody proceeding.
3. Termination of Parental Rights_grounds_one sibling burned_the other present in
The trial court did not err by terminating parental rights as to two siblings where the
respondent-mother was convicted of felonious child abuse inflicting serious bodily injury after
one child received second-degree burns and was hospitalized nearly a month. As for the other
sibling, parental rights can be terminated where the parent committed a felony assault that
resulted in serious bodily injury to another child of the parent or another child residing in the
Judge TYSON dissenting.
Appeal by respondent-mother from an order entered 20 July 2006
and an amended order entered 31 July 2006 by Judge Shelly S. Holt
in New Hanover County District Court. Heard in the Court of
Appeals 12 March 2007.
Dean W. Hollandsworth for petitioner-appellee New Hanover
County Department of Social Services.
Regina Floyd-Davis and Elizabeth Boone for appellee Guardian
Rebecca Haddock for respondent-appellee father.
Richard Croutharmel for respondent-appellant mother.
Respondent-mother (respondent) appeals from an order
terminating her parental rights as to her minor children, T.J.D.W.
and J.J.W. After careful review, we affirm.
On 15 May 2004, New Hanover County Department of Social
Services (DSS) received a referral from medical professionals
that respondent's twenty-three-month-old child, T.J.D.W., had
received non-accidental serious burns. T.J.D.W. was transferred
from Cape Fear Hospital to the University of North Carolina
Hospital burn unit due to the severity of the burns. T.J.D.W. was
also diagnosed as undernourished and showed evidence of two older
burns and other injuries. DSS filed a juvenile petition on 20 May
2004 and alleged T.J.D.W. was abused and neglected. Respondent was
criminally charged as a result of this incident.
In early August 2004, respondent gave birth to J.J.W. Upon
release from the hospital, J.J.W. was immediately placed in DSS
custody due to the pending allegations of abuse of T.J.D.W. On 26
August 2004, the trial court adjudicated T.J.D.W. as abused and
neglected; J.J.W. was adjudicated as neglected on 30 August 2004.
DSS initiated a case plan with a goal of reunification of both
children between respondent and their respective fathers. The
trial court changed the case plan for T.J.D.W. from reunification
to adoption following a permanency planning hearing on 17 February
2005. The trial court also modified J.J.W.'s permanent plan from
reunification with respondent to adoption with a concurrent plan ofreunification with J.J.W.'s father. After a permanency planning
hearing on 11 August 2005, the trial court changed the permanent
plan for both children to adoption and ordered DSS to pursue
termination of all parental rights. On 14 November 2005,
T.J.D.W.'s father relinquished his parental rights.
On 5 December 2005, respondent was found guilty by a jury of
felony child abuse inflicting serious bodily injury as a result of
T.J.D.W.'s burns from May 2004. Respondent was sentenced to ten to
thirteen years of active imprisonment. On 30 December 2005, DSS
petitioned to terminate respondent's parental rights. A hearing on
the petition was conducted on 30 May 2006, and the trial court
filed an order on 20 July 2006 that terminated respondent's
parental rights to T.J.D.W. and J.J.W. The trial court amended its
order on 31 July 2006 to correct a typographical error. Respondent
 Respondent first argues that the trial court lacked
subject matter jurisdiction to enter the order in question. This
argument is without merit.
Respondent argues that North Carolina courts have no subject
matter jurisdiction over proceedings to assign custody or terminate
parental rights as to T.J.D.W. because the courts of South Carolina
entered orders concerning custody of T.J.D.W. prior to May 2004
(when proceedings began in this case) and the record reflects no
evidence that statutory requirements of N.C. Gen. Stat. . 50A-203
to confer subject matter jurisdiction on North Carolina werefulfilled. That is, respondent argues that South Carolina has not
relinquished jurisdiction over T.J.D.W., nor is there evidence in
the record that North Carolina would be a more convenient forum or
that the child or parents do not reside in South Carolina. We
Specifically, respondent states that from June 2002 to
September 2003, the child was in the custody of Florence County
(South Carolina) DSS. Because it appears that South Carolina at
that time exercised jurisdiction over T.J.D.W., subject matter
jurisdiction remains with that state, and a North Carolina court
may not thereafter terminate respondent's parental rights because
that would supersede South Carolina's determination of custody of
T.J.D.W. in violation of N.C. Gen. Stat. .. 50A-203, -102(11)
(2005) (a court of this State may not modify a child-custody
determination made by a court of another state except in certain
circumstances, and modify includes an order superseding a
However, North Carolina may
issue such an order when two
conditions are fulfilled: First, a North Carolina court has
jurisdiction to make an initial determination under N.C. Gen. Stat.
. 50A-201(a), which states that the state has such jurisdiction if
it was the home state of the child on the date of the commencement
of the proceeding; home state is defined as a state where the
child lived with a parent for at least six consecutive months
immediately before the commencement of a child-custody proceeding.
N.C. Gen. Stat. .. 50A-201(a)(1), -102(7) (2005). Second, [a]court of this State . . . determines that the child, the child's
parents, and any person acting as a parent do not presently reside
in the other state[,] with presently referring to the time of
the proceeding. N.C. Gen. Stat. . 50A-203(2).
Thus, the requirements of both statutes are fulfilled by a
trial court's determination that subject matter exists where it is
supported by evidence that the child and a parent (not necessarily
parents) lived in North Carolina for the six months
immediately preceding the commencement of the proceeding (20 May
2004), and that the child and both parents had left South Carolina
at the time of the commencement of the proceeding. Such is the
At the time of the petition, the child was in the custody of
New Hanover Count DSS and had been since 20 May 2004; the mother
moved to North Carolina in September 2003, bringing T.J.D.W. with
her, and at the date of petition was incarcerated in Raleigh, with
no indication in the record that between those times she left the
state. The child's father has voluntarily terminated his rights to
the child, but at any rate lived in North Carolina at the time of
the initial proceeding as evidenced by the order issued on that
date that shows his address in Wilmington, North Carolina. There
is no evidence in the record that the father ever lived outside of
North Carolina at any time relevant to this case.
As respondent points out in her brief, the trial court did not
make any findings of fact on this evidence. However, the relevant
statutes do not require a finding of fact (although this would bethe better practice); N.C. Gen. Stat. . 50A-201(a)(1) states only
that certain circumstances must exist, not that the court
specifically make findings to that effect, and N.C. Gen. Stat. .
50A-203(2) requires only that a court determine that the
relevant parties live in the state. Because the trial court
asserted its jurisdiction in the order ( based upon the foregoing
findings of fact, the Court CONCLUDES AS MATTERS OF LAW that this
Court has Jurisdiction over the subject matter
) and the evidence
supports its determination regarding the above statutory
requirements, the trial court properly exercised subject matter
jurisdiction over this case.
We find the two cases cited by the dissent unpersuasive. The
dissent uses the cases to support its conclusion that, because the
trial court did not make the specific findings of fact required by
these cases to support its assumption of jurisdiction, that
assumption was invalid. However, in the first case, Foley v.
, 156 N.C. App. 409, 576 S.E.2d 383 (2003), the Court states
that it is troubled by the lack of information in the record
to the participants' residency at various times, and remanded the
case to the trial court to make findings of fact because the
record is devoid of evidence from which it may be ascertained
whether or not the trial court had subject matter jurisdiction[.]
. at 413, 576 S.E.2d at 386 (emphasis added). In the second
case, Brewington v. Serrato
, 77 N.C. App. 726, 336 S.E.2d 444
(1985), the Court's reference to the lower court's proper findings
of fact concerns not a finding that North Carolina was the child'shome state, but rather findings as to various biographical facts
about the participants. Id
. at 732, 336 S.E.2d at 448. The trial
court in this case found that respondent had received custody of
her older child in September 2003, at which point by respondent's
own admission she was living in North Carolina. The record in this
case does not present the same troubling lack of evidence and
findings that would preclude the trial court's assertion of
jurisdiction; as outlined above, it provides ample evidence as to
the whereabouts at the relevant times of all participants.
 Before proceeding to respondent's other arguments, we note
that while the order at issue terminated respondent's rights as to
both T.J.D.W. and J.J.W. and her brief and arguments sometimes
refer to her rights as to her children, the only child named in
the brief is T.J.D.W. However, because respondent appeals from an
order terminating her rights as to both children, we briefly
consider here subject matter jurisdiction as to J.J.W.
J.J.W. was born on 5 August 2004 in Wilmington, North
Carolina, was immediately taken into custody by New Hanover County
(North Carolina) DSS, and has remained in foster care in the state
ever since. She has had no contact with any other state, nor has
any other state ever asserted jurisdiction over her for any custody
proceeding. Because North Carolina is unquestionably J.J.W.'s home
state (one of the bases for subject matter jurisdiction per section
50A-201(a)(1)), interstate transfer of jurisdiction was not an
issue here, and the trial court properly asserted subject matter
jurisdiction over the child.
 We next consider respondent's contention that the trial
court erred in concluding that grounds existed to terminate her
rights as to T.J.D.W. and J.J.W. We find this argument to be
N.C. Gen. Stat. § 7B-1111 (2005) sets out the statutory
grounds for terminating parental rights. A finding of any one of
the separately enumerated grounds is sufficient to support a
termination. In re Taylor
, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). Here, the trial court found that the grounds
established by clear, cogent, and convincing evidence for
terminating respondent's rights were: The child T.J.D.W. was
abused and neglected; the child J.J.W. was neglected; respondent
willfully abandoned the children for six consecutive months
preceding the filing of the petition; respondent left the children
in foster care for more than twelve months without showing that
reasonable progress had been made to correct the conditions that
led to the children's removal; the children are dependent within
the meaning of N.C. Gen. Stat. . 7B-101; and respondent committed
and was convicted of a felony assault resulting in serious bodily
injury to T.J.D.W. N.C. Gen. Stat. . 7B-1111(a)(1), (2), (6), (7),
One of these grounds, that respondent ha[d] committed a
felony assault that results in serious bodily injury to the child,
another child of the parent, or other child residing in the
home[,] stems from the incident described above where T.J.D.W.received second-degree burns and was hospitalized for almost a
month as a result. N.C. Gen. Stat. . 7B-1111(a)(8). Respondent
was convicted of felonious child abuse inflicting serious bodily
injury as a result of the incident, and the trial court made a
finding of fact in its order to that effect. Respondent argues
that because that conviction was on appeal with this Court, it
could not be used as grounds for terminating her parental rights,
because were the conviction to be overturned, the relevant finding
and conclusion in the trial court's order would no longer be valid.
However, this Court has since affirmed respondent's conviction
for this crime. State v. Wilson
, 181 N.C. App. 540, 640 S.E.2d 403
(2007). As such, it is a valid ground on which to terminate
respondent's parental rights as to T.J.D.W.
Further, N.C. Gen. Stat. . 7B-1111(a)(8) states that parental
rights can be terminated where the parent ha[d] committed a felony
assault that results in serious bodily injury to the child, another
child of the parent, or other child residing in the home
(emphasis added). Therefore, the trial court's further conclusion
that this conviction provided a proper basis for terminating
respondent's rights as to J.J.W. was also correct.
Because we find that the trial court properly asserted
jurisdiction over both children and based its termination of
respondent's rights as to both children on proper statutory
grounds, we affirm the trial court's order. In light of our
holding, we do not address respondent's remaining assignments of
Judge McCULLOUGH concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge, dissenting.
The majority's opinion erroneously concludes the trial court
properly exercised subject matter jurisdiction over the parties.
I disagree and vote to vacate the trial court's order. I
I. Standard of Review
This Court has stated:
A proceeding to terminate parental rights is a
two step process with an adjudicatory stage
and a dispositional stage. A different
standard of review applies to each stage. In
the adjudicatory stage, the burden is on the
petitioner to prove by clear, cogent, and
convincing evidence that one of the grounds
for termination of parental rights set forth
in N.C. Gen. Stat. § 7B-1111(a) exists. The
standard for appellate review is whether the
trial court's findings of fact are supported
by clear, cogent, and convincing evidence and
whether those findings of fact support its
conclusions of law. Clear, cogent, and
convincing describes an evidentiary standard
[that is] stricter than a preponderance of the
evidence, but less stringent than proof beyond
a reasonable doubt. If the petitioner meets
its burden of proving at least one ground for
termination of parental rights exists under
N.C. Gen. Stat. § 7B-1111(a), the court
proceeds to the dispositional phase and
determines whether termination of parental
rights is in the best interests of the child.
The standard of review of the dispositional
stage is whether the trial court abused its
discretion in terminating parental rights.In re C.C., J.C., 173 N.C. App. 375, 380-81, 618 S.E.2d 813, 817
(2005) (internal quotations and citations omitted). The trial
court's 'conclusions of law are reviewable de novo on appeal.' In
re D.M.M. & K.G.M., 179 N.C. App. 383, 385, 633 S.E.2d 715, 716
(2006) (quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124
N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)). [T]he issue of
subject matter jurisdiction may be raised at any time, even on
appeal. Huntley v. Howard Lisk Co., 154 N.C. App. 698, 700, 573
S.E.2d 233, 235 (2002) (internal citation omitted), disc. rev.
denied, 357 N.C. 62, 579 S.E.2d 389 (2003).
II. Subject Matter Jurisdiction
Respondent argues North Carolina possessed no subject matter
jurisdiction over T.J.D.W. because a South Carolina court had
entered a custody order relating to T.J.D.W. prior to the North
Carolina court purportedly assumed jurisdiction over T.J.D.W. in
May 2004. Respondent asserts: (1) both she and T.J.D.W. had lived
in South Carolina; (2) from 14 June 2002 to 9 September 2003,
T.J.D.W. was in the custody of the Florence County Department of
Social Services; (3) the trial court failed to make the statutorily
mandated findings and conclusions to exercise subject matter
jurisdiction over T.J.D.W.'s case; and (4) no evidence exists in
the record from which the trial court could have determined it had
subject matter jurisdiction. I agree.
A trial court is statutorily required to find and conclude
that it possesses jurisdiction to make a child custody
determination under the Uniform Child Custody Jurisdiction andEnforcement Act (UCCJEA), N.C. Gen. Stat. §§ 50A-201, 50A-203,
and 50A-204, before exercising jurisdiction to terminate parental
rights. N.C. Gen. Stat. § 7B-1101 (2005).
A. N.C. Gen. Stat. § 50A-201
N.C. Gen. Stat. § 50A-201 (2005) provides the exclusive means
under which a North Carolina court can establish and assert
jurisdiction for making a child custody determination. This
statute provides that jurisdiction exists under the following
(1) This State is the home state of the child
on the date of the commencement of the
proceeding, or was the home state of the child
within six months before the commencement of
the proceeding, and the child is absent from
this State but a parent or person acting as a
parent continues to live in this State;
(2) A court of another state does not have
jurisdiction under subdivision (1), or a court
of the home state of the child has declined to
exercise jurisdiction on the ground that this
State is the more appropriate forum under G.S.
50A-207 or G.S. 50A-208, and:
a. The child and the child's
parents, or the child and at least
one parent or a person acting as a
parent, have a significant
connection with this State other
than mere physical presence; and
b. Substantial evidence is available
in this State concerning the child's
care, protection, training, and
(3) All courts having jurisdiction under
subdivision (1) or (2) have declined to
exercise jurisdiction on the ground that a
court of this State is the more appropriate
forum to determine the custody of the child
under G.S. 50A-207 or G.S. 50A-208; or
(4) No court of any other state would have
jurisdiction under the criteria specified in
subdivision (1), (2), or (3).
N.C. Gen. Stat. § 50A-201(a).
In Subsection (a)(1), home state is defined 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. §
Here, both DSS and the guardian ad litem argue sufficient
record evidence exists to support North Carolina's exercise of
subject matter jurisdiction over T.J.D.W.'s case at the time the
termination petition was filed. However, the trial court's
assertion of jurisdiction over T.J.D.W. occurred, not on the date
that the termination petition was filed, but on 20 May 2004, the
date that DSS filed the first juvenile petition regarding T.J.D.W.
The relevant date for a determination of whether the trial
court had subject matter jurisdiction over T.J.D.W. is 20 May 2004.
See Foley v. Foley, 156 N.C. App. 409, 413, 576 S.E.2d 383, 386
(2003) (Holding that the appropriate date for home state
determination is the date of the commencement of the proceeding,
not the date the order is entered.)
DSS's petition also failed to include the statutorily required
affidavit asserting the facts required for the trial court to
exercise subject matter jurisdiction. A party filing a petition in
cases involving child custody, including termination of parental
rights actions, is statutorily mandated to provide, under oath,either in the first pleading or in an attached affidavit,
information if reasonably ascertainable, . . . as to the child's
present address or whereabouts, the places where the child has
lived during the last five years, and the names and present
addresses of the persons with whom the child has lived during that
period. N.C. Gen. Stat. § 50A-209; see In re Clark, 159 N.C. App.
75, 79, 582 S.E.2d 657, 660 (2003) (The purpose of this statute is
to enable the trial court to determine whether subject matter
jurisdiction exists in child custody matters.).
This Court has held that the failure to file this affidavit
may not defeat the trial court's exercise of jurisdiction where the
exercise of jurisdiction is otherwise proper. See Pheasant v.
McKibben, 100 N.C. App. 379, 382, 396 S.E.2d 333, 335 (1990)
(Failure to comply with former section 50A-209 did not per se
defeat subject matter jurisdiction where the trial court properly
exercised jurisdiction.), disc. rev. denied, 328 N.C. 92, 402
S.E.2d 417 (1991).
Even without the statutorily mandated affidavit, the trial
court failed to make any of the required findings or conclusions
concerning whether North Carolina's exercise of subject matter
jurisdiction was appropriate in T.J.D.W.'s case. See Foley, 156
N.C. App. at 413, 576 S.E.2d at 386 (Holding that trial court must
make specific findings to support its assumption of jurisdiction in
a child custody matter.) (citing Brewington v. Serrato, 77 N.C.
App. 726, 729, 336 S.E.2d 444, 447 (1985)). In its order
adjudicating T.J.D.W. as abused and neglected, the trial court onlysummarily concluded that it has jurisdiction over the parties and
made no further required findings of fact or conclusions to assert
subject matter jurisdiction or other findings of fact or
conclusions from which this Court can determine that the applicable
statutory requirements for subject matter jurisdiction are met.
While the record as developed at the time of the initial
juvenile petition does not support a finding of subject matter
jurisdiction, the record contains an affidavit filed by DSS
concurrently with the termination petition on 30 December 2005
tending to show that T.J.D.W. resided with respondent in North
Carolina for approximately eight months prior to the filing of the
initial juvenile petition on 20 May 2004. This information was not
before the trial court upon its initial assumption of jurisdiction
over T.J.D.W. The record, as a whole, may support a finding and
conclusion that subject matter jurisdiction is proper under the
home state provision for the proper assertion of initial
jurisdiction under N.C. Gen. Stat. § 50A-201(a).
However, this Court's inquiry does not end there. The
undisputed record also shows that T.J.D.W. was previously in the
custody of South Carolina DSS and that a South Carolina court had,
at least in some capacity, assumed jurisdiction over the custody of
T.J.D.W. prior to 20 May 2004. In its adjudication order, the
trial court found that T.J.D.W. had only been in the legal custody
of Respondent-Mother since September, 2003 after removal by a South
Carolina DSS since her birth due to being cocaine positive. This finding of fact requires compliance with N.C. Gen. Stat.
§ 50A-203 in order for a North Carolina court to assert
jurisdiction to modify the child custody determination of another
B. N.C. Gen. Stat. § 50A-203
Under the UCCJEA, [m]odification is defined as a
child-custody determination that changes, replaces, supersedes, or
is otherwise made after a previous determination concerning the
same child, whether or not it is made by the court that made the
previous determination. N.C. Gen. Stat. § 50A-102(11). The
findings and conclusions of law show that a South Carolina court
had entered a custody order with respect to T.J.D.W.
A North Carolina court can only assert subject matter
jurisdiction after a determination upon findings of fact and
conclusions of law under N.C. Gen. Stat. § 50A-203 that one of the
following conditions is satisfied:
(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
N.C. Gen. Stat. § 50A-203 (emphasis supplied). The majority's
opinion wholly fails to address the trial court's failure to make
the statutory determination required by N.C. Gen. Stat. § 50A-203. This determination can only be made by a finding of fact and
conclusion of law showing compliance with the statute.
A state's assertion of jurisdiction in a child custody case is
also governed by the Federal Parental Kidnapping Prevention Act
(PKPA). 28 U.S.C. § 1738A. Under the PKPA, 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).
Neither the trial court's findings of fact nor the evidence in
the record supports an assumption of jurisdiction by a North
Carolina court under the criteria required by N.C. Gen. Stat. §
50A-203. The record contains no order from a South Carolina court
stating that South Carolina relinquished jurisdiction. No evidence
tends to show that a South Carolina court determined that a North
Carolina court would be a more convenient forum. No findings of
fact were made by the trial court, or is there competent evidence
in the record, to support any finding or conclusion that the
child's parents, and any person acting as a parent do not presently
reside in the other state. N.C. Gen. Stat. § 50A-203.
The trial court did not possess subject matter jurisdiction
over the proceedings to terminate respondent's parental rights.
See In re N.R.M., T.F.M., 165 N.C. App. 294, 299-301, 598 S.E.2d
147, 150-51 (2004) (Although North Carolina was the home state of
the children, North Carolina did not have subject matterjurisdiction over the proceedings to terminate the mother's
parental rights. Nothing in the record showed N.C. Gen. Stat. §
50A-203(1) or (2) were satisfied.). In the absence of any findings
or conclusions to satisfy the statute, the trial court's order
terminating a respondent's parental rights must be vacated and
this case remanded . . . for entry of an order dismissing [DSS's]
action. Id. at 301, 598 S.E.2d at 151.
The trial court failed to make statutory mandated findings of
fact and conclusions of law for North Carolina to assert subject
matter jurisdiction under N.C. Gen. Stat. § 50A-203 when the 20 May
2004 juvenile petition was filed. The trial court's orders in Nos.
04 J 208, 04 J 339, 05 J 530, and 05 J 531 must be vacated and this
matter remanded for entry of an order dismissing DSS's petition.
The trial court's adjudication of J.J.W. as neglected (No. 04
J 339), as well as the ultimate termination of respondent's
parental rights with respect to both juveniles (Nos. 05 J 530 and
05 J 531), were solely based on the trial court's initial
adjudication of T.J.D.W. as abused and neglected. I vote to
the trial court's order and remand for entry of an order dismissing
I respectfully dissent.
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