{ "id": 9082050, "name": "IN RE: CRYSTAL GAIL BRODE, STEVEN W. BRODE, MATTHEW L. BRODE, Juveniles", "name_abbreviation": "In re Brode", "decision_date": "2002-08-06", "docket_number": "No. COA01-214", "first_page": "690", "last_page": "697", "citations": [ { "type": "official", "cite": "151 N.C. App. 690" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "486 N.W.2d 486", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 5240328 ], "year": 1992, "pin_cites": [ { "page": "498", "parenthetical": "stating the power of emergency jurisdiction does not include making permanent custody determinations or modifications of another court's custody decree" } ], "opinion_index": 0, "case_paths": [ "/neb/241/0084-01" ] }, { "cite": "630 A.2d 1288", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 4850825 ], "year": 1993, "pin_cites": [ { "page": "1291", "parenthetical": "concluding that most all courts agree that emergency jurisdiction does not authorize courts to make permanent custody orders" } ], "opinion_index": 0, "case_paths": [ "/vt/160/0410-01" ] }, { "cite": "716 A.2d 717", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11703928 ], "year": 1998, "pin_cites": [ { "page": "723-24", "parenthetical": "stating that assumption of emergency jurisdiction under the UCCJA is temporary jurisdiction only and confers authority only to make temporary orders" } ], "opinion_index": 0, "case_paths": [ "/a2d/716/0717-01" ] }, { "cite": "1999 N.C. Sess. Laws 223", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "511 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "686" }, { "page": "686" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238024 ], "year": 1999, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0363-01" ] }, { "cite": "498 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1998, "pin_cites": [ { "page": "838", "parenthetical": "alteration in original" }, { "page": "839" }, { "page": "838-39" }, { "page": "839", "parenthetical": "alteration in original" }, { "page": "840", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650050 ], "year": 1998, "pin_cites": [ { "page": "342", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0338-01" ] }, { "cite": "487 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "162-63" }, { "page": "163" }, { "page": "162" }, { "page": "163" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 764", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713345 ], "year": 1997, "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0764-01" ] } ], "analysis": { "cardinality": 659, "char_count": 15583, "ocr_confidence": 0.733, "pagerank": { "raw": 3.166724410942759e-07, "percentile": 0.8636486142628392 }, "sha256": "b78f9569f9092bc411505ba1282df8fa36336f4bace8ba9a6f1c844620ff46c1", "simhash": "1:cea8ef6e3769bcf5", "word_count": 2536 }, "last_updated": "2023-07-14T16:47:19.620477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "IN RE: CRYSTAL GAIL BRODE, STEVEN W. BRODE, MATTHEW L. BRODE, Juveniles" ], "opinions": [ { "text": "BRYANT, Judge.\nSteven W. Brode was bom 19 August 1991 in the state of Texas to respondent William Harvey and Beverly Brode Owen. While other children were born to Harvey and Owen, these children are not the subject of this appeal.\nHarvey and Owen lived together in Texas as domestic partners. In 1997, Children\u2019s Protection Services of Montgomery County, Texas, filed a petition in the district court to determine the parent-child relationship between Harvey, Owen and the Brode children. By order entered 31 July 1998, the District Court of Montgomery County appointed Harvey sole managing conservator of Steven, having all the incidents of sole legal custody. By that same order, Owen was appointed as Steven\u2019s possessory conservator with visitation as agreed to by Harvey. After entry of this order, Steven resided with Harvey at Harvey\u2019s parents\u2019 home in Barcarolle, Texas.\nIn or about August 1999, Owen made an unannounced visit to Harvey\u2019s home. She falsely told Harvey\u2019s father that visitation was permitted; thereafter, she abducted Steven and never returned him to Harvey. Owen subsequently moved to Caswell County, North Carolina, bringing Steven and the other children with her. Harvey made efforts to ascertain Owen\u2019s whereabouts, including seeking assistance from Texas officials. Harvey ceased efforts to locate Owen and the children after becoming discouraged that assistance would not be forthcoming from Texas officials.\nIn August 2000, Caswell County Department of Social Services (DSS) filed a petition alleging Steven to be a neglected and dependent juvenile. The petition asserted that Steven Brode did not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; that he had been abandoned; and, that he lived in an environment injurious to his welfare. At an adjudication hearing held 25 September 2000, the trial court found Steven to be a neglected and dependent juvenile and placed Steven in DSS custody. Harvey appeals.\nRespondent-Appellant Harvey assigns as error the trial court\u2019s failure to grant full faith and credit to the Texas order granting custody of Steven Brode to respondent-appellant Harvey.\nAt the outset, this appeal requires that we examine the interplay of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the North Carolina Juvenile Code, and the Parental Kidnapping Prevention Act (PKPA).\nUCCJEA and Juvenile Code\nThe UCCJEA, formerly UCCJA, is a jurisdictional statute relating to child custody disputes and expressly includes proceedings in abuse, dependency, and/or neglect. 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 abuse, neglect, and dependency 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 \u201c \u2018exclusive, original jurisdiction over any case involving a juvenile who is alleged to be . . . abused, neglected, or dependent.\u2019 \u201d In re Malone, 129 N.C. App. 338, 342, 498 S.E.2d 836, 838 (1998) (alteration in original) (citation omitted). See also In re Van Kooten at 768, 487 S.E.2d at 162.\nPrior to the 1999 revisions to the UCCJEA, a district court in North Carolina could 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\u2019s parents had a significant connection with this State; (3) the child was physically present in this State and it was necessary in an emergency 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 (citing N.C.G.S. \u00a7 50A-3(a) (1989)). 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). In 1999, the emergency jurisdiction provision (N.C.G.S. \u00a7 50A-3(a)) was moved to a new and separate section, N.C.G.S. \u00a7 50A-204. See 1999 N.C. Sess. Laws 223, s. 15.\nUnder N.C.G.S. \u00a7 50A-204(a), temporary emergency jurisdiction may be invoked by a court if a \u201cchild is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.\u201d N.C.G.S. \u00a7 50A-204(a) (2001). The statute further provides in N.C.G.S. \u00a7 50A-204(c)-(d):\n(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.\n(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.\nN.C.G.S. \u00a7 50A-204(c)-(d) (2001).\nWhen 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 Nadeau v. Nadeau, 716 A.2d 717, 723-24 (R.I. 1998) (stating that assumption of emergency jurisdiction under the UCCJA is temporary jurisdiction only and confers authority only to make temporary orders); In re A.L.H., 630 A.2d 1288, 1291 (Vt. 1993) (concluding that most all courts agree that emergency jurisdiction does not authorize courts to make permanent custody orders); In re Interest of L.W., 486 N.W.2d 486, 498 (Neb. 1992) (stating the power of emergency jurisdiction does not include making permanent custody determinations or modifications of another court\u2019s custody decree).\nPKPA\nOur State\u2019s 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\u2019s 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 \u201cevery State shall enforce . . . and shall not modify . . . any custody determination or visitation determination made ... by a court of another State.\u201d 28 U.S.C.A. \u00a7 1738A(a) (2002). The act further provides that \u201c[t]he 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.\u201d 28 U.S.C.A. \u00a7 1738A(d) (2002). Modifications of another state\u2019s custody determination may only be made if the modifying state \u201chas 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.\u201d 28 U.S.C.A. \u00a7 1738A(f) (1994) (emphasis added). 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.\n\u201c \u2018Although the PKPA does not include within its definition section any reference to neglect, abuse, or dependency proceedings,\u2019 \u201d our court has previously held that the PKPA does apply \u201c \u2018to all interstate custody proceedings affecting a prior custody award by a different State, including [abuse,] neglect and dependency proceedings.\u2019 \u201d In re Malone at 342, 498 S.E.2d at 839 (alteration in original) (citations omitted).\nWe note that the trial court order in the instant case is silent as to the basis for its jurisdiction to adjudicate this case. The petition filed by DSS alleges that Steven Brode is a neglected and dependent juvenile. It appears that the court proceeded under the general jurisdiction of the Juvenile Code; however, when a prior custody order exists, a court cannot ignore the provisions of the UCCJEA and the PKPA.\nThe order of the trial court does state that in placing the juveniles in the protection of social services \u201cDSS was precluded from making reasonable efforts [to return juveniles to their parents] due to the threat of immediate harm to said juveniles; that the failure to make such reasonable efforts was reasonable under the circumstances, and to do otherwise would have been contrary to the health, safety and welfare of said juveniles.\u201d Even in the absence of explicit language that the trial court invoked the emergency jurisdictional parameters of N.C.G.S. \u00a7 50A-204, we find that the language used by the court indicated an immediate need necessitating protection of the juveniles; therefore, the trial court was within its power to invoke the exercise of emergency jurisdiction to protect the children and we find that further evaluation of the order will proceed under this determination.\nAs noted in our discussion above, when a trial court invokes emergency jurisdiction under the UCCJEA, such jurisdiction is only temporary in nature and does not empower the trial court to enter a permanent custody order. Further, when it is discovered that a previous child custody determination has been made by another court, the provisions of N.C.G.S. \u00a7 50A-204(c)-(d), and the PKPA, set the parameters for addressing any custody determination. We find that the order entered by the trial court in the instant case does not comply with our statutory framework.\nFirst, the order entered by the trial court is not a temporary order as required by N.C.G.S. \u00a7 50A-204(a). The heading of the judgment is titled \u201cOrder\u201d and the directives are noted to be \u201cOrdered, Adjudged and Decreed.\u201d The order is void of any language to indicate that it is temporary in nature. Second, the trial court had notice of the existence of a prior custody decree awarding Harvey custody of Steven Brode. The custody order entered in Texas outlines the rights and duties of a sole managing conservator, which appear to encompass those duties that would award sole legal custody of the juvenile.\nPursuant to N.C.G.S. \u00a7 50A-204(d), after having notice of the prior custody order, and upon entry of a temporary custody order, the trial court should have immediately contacted the Texas court to determine their willingness to assume jurisdiction. \u201cWhile the trial court in this state did have emergency jurisdiction to enter the temporary . . . order, at the point in which the order was entered \u2018the trial court was required to defer any further proceedings in the matter pending a response from [Texas] as to whether that state was willing to assume jurisdiction to resolve the issues of [neglect and dependency].\u2019 \u201d In re Malone at 344, 498 S.E.2d at 840 (citation omitted).\nLikewise, with respect to the parameters of the PKPA, we noted above that the act precludes states from modifying child custody orders of other states unless the court of the other State no longer has jurisdiction, or it has declined to exercise its jurisdiction. The trial court\u2019s order is inconsistent with the requirements of the PKPA. The order does not defer adjudication on the merits pending notice from Texas concerning whether it will exercise jurisdiction in the matter.\nIn light of the foregoing, we vacate the judgment of the trial court. On remand, the trial court is directed to contact the Texas court to determine whether that court desires to exercise jurisdiction in this matter. Should the Texas court decline to exercise jurisdiction, the trial court may then proceed on the merits of the DSS petition and issue a final custody determination.\nVACATED and REMANDED for findings consistent with this opinion and dictates of the UCCJEA and PKPA.\nJudges McGEE and HUNTER concur.\n. Harvey and Owen are the parents of Crystal G. Brode, bom 24 May 1990. Owen is also the mother of Matthew L. Brode, bom 31 January 1994. Harvey is not the father of Matthew L. Brode.\n. Adopted by North Carolina and codified in Chapter 50A of the North Carolina General Statutes.\n. Chapter 7B of the North Carolina General Statutes.\n. 28 U.S.C.A. \u00a7 1738A. We note that on one instance we cite to the 1994 hard bound version of \u00a7 1738A. Section 1738A has since been amended. See 28 U.S.C.A. \u00a7 1738A (West Supp. 2002).\n. Specifically, the petition asserts that Steven Brode is neglected in that he'(l) \u201cdoes not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker;\u201d (2) \u201chas been abandoned;\u201d and (3) \u201clives in an environment injurious to the juvenile\u2019s welfare.\u201d\nThe petition asserts that he is dependant in that he \u201cneeds assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile\u2019s care or supervision.\u201d\n. According to the custody order, a sole managing conservator has the following rights and duties:\n(1) the right to have physical possession and to direct the moral and religious training of the child;\n(2) the duty of care, control, protection, and reasonable discipline of the child;\n(3) the duty to provide the child with clothing, food, shelter, education, and medical, psychological, and dental care;\n(4) the right to consent for the child to medical, psychiatric, psychological, dental, and surgical treatment;\n(5) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;\n(6) the right to the services and earnings of the child;\n(7) the right to consent to marriage and to enlistment in the armed forces of the United States;\n(8) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;\n(9) the right to act as an agent of the child in relation to the child\u2019s estate if the child\u2019s action is required by a state, the United States, or a foreign government; and\n(10) the right to establish the primary residence of the child and to make decisions regarding the child\u2019s education.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Farmer & Watlington, LLP, by Stuart N. Watlington, for petitioner-appellee Caswell County Department of Social Services.", "David G. Powell for respondent-appellant William Harvey." ], "corrections": "", "head_matter": "IN RE: CRYSTAL GAIL BRODE, STEVEN W. BRODE, MATTHEW L. BRODE, Juveniles\nNo. COA01-214\n(Filed 6 August 2002)\nChild Support, Custody, and Visitation\u2014 custody \u2014 foreign judgment \u2014 emergency jurisdiction\nAlthough the trial court in this state had emergency jurisdiction to enter a temporary order in a child custody case, the trial court\u2019s order is vacated because: (1) the trial court\u2019s order is not temporary as required by N.C.G.S. \u00a7 50A-204(a); (2) the trial court had notice of the existence of a prior custody decree from Texas awarding respondent father custody of the minor child; and (3) the trial court was required by the Parental Kidnapping Prevention Act to defer any further proceedings in the matter pending a response from Texas as to whether that state was willing to assume jurisdiction to resolve the issues of neglect and dependency.\nAppeal by respondent from order entered 16 November 2000 nunc pro tunc 25 September 2000, by the Honorable Pattie S. Harrison in Caswell County District Court. Heard in the Court of Appeals 6 December 2001.\nFarmer & Watlington, LLP, by Stuart N. Watlington, for petitioner-appellee Caswell County Department of Social Services.\nDavid G. Powell for respondent-appellant William Harvey." }, "file_name": "0690-01", "first_page_order": 720, "last_page_order": 727 }