{ "id": 8997078, "name": "IN THE MATTER OF N.R.M., T.F.M., Minor Juveniles", "name_abbreviation": "In re N.R.M.", "decision_date": "2004-07-06", "docket_number": "No. COA03-592", "first_page": "294", "last_page": "301", "citations": [ { "type": "official", "cite": "165 N.C. App. 294" } ], "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": "27 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "223 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614518 ], "year": 1943, "pin_cites": [ { "page": "619-20" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0617-01" ] }, { "cite": "403 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "559", "parenthetical": "citing 20 Am. Jur. 2d Courts \u00a7 78 (1965)" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 806", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525850 ], "year": 1991, "pin_cites": [ { "page": "808", "parenthetical": "citing 20 Am. Jur. 2d Courts \u00a7 78 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0806-01" ] }, { "cite": "353 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "675", "parenthetical": "citing W. Shuford, N.C. Civil Practice and Procedure \u00a7 12-6 (1981)" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169132 ], "year": 1987, "pin_cites": [ { "page": "667", "parenthetical": "citing W. Shuford, N.C. Civil Practice and Procedure \u00a7 12-6 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0666-01" ] }, { "cite": "554 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138306, 138445, 138481, 138365, 138334 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0217-02", "/nc/354/0217-03", "/nc/354/0217-01", "/nc/354/0217-04", "/nc/354/0217-05" ] }, { "cite": "547 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "130" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437004 ], "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0688-01" ] }, { "cite": "350 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "86", "parenthetical": "\"When the record clearly shows that subject matter jurisdiction is lacking, the Court will take notice and dismiss the action ex mero motu\"'" } ], "opinion_index": 0 }, { "cite": "318 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734194 ], "year": 1986, "pin_cites": [ { "page": "580", "parenthetical": "\"When the record clearly shows that subject matter jurisdiction is lacking, the Court will take notice and dismiss the action ex mero motu\"'" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0577-01" ] }, { "cite": "545 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685026, 684898, 684899, 685087, 684959 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0676-03", "/nc/352/0676-05", "/nc/352/0676-04", "/nc/352/0676-02", "/nc/352/0676-01" ] }, { "cite": "531 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081450 ], "year": 2000, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0703-01" ] }, { "cite": "576 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190917 ], "year": 2003, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0409-01" ] }, { "cite": "571 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "75", "parenthetical": "where respondent-father fails to argue certain issues on appeal from order terminating his parental rights, this Court holds \"respondent has abandoned these issues on appeal\" citing N.C.R. App. P. 10(a) and 28(a)" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 565", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250860 ], "year": 2002, "pin_cites": [ { "page": "581", "parenthetical": "where respondent-father fails to argue certain issues on appeal from order terminating his parental rights, this Court holds \"respondent has abandoned these issues on appeal\" citing N.C.R. App. P. 10(a) and 28(a)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0565-01" ] }, { "cite": "581 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "797" }, { "page": "795" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188012 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "448" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0441-01" ] } ], "analysis": { "cardinality": 681, "char_count": 16969, "ocr_confidence": 0.746, "pagerank": { "raw": 6.140590670579265e-07, "percentile": 0.9561574825404879 }, "sha256": "d3f0725c9663b4abf02b7c1b927c1b8862772e8b7dd29bc3401f29b1336cdcad", "simhash": "1:8e2902427a3b5dd4", "word_count": 2748 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "IN THE MATTER OF N.R.M., T.F.M., Minor Juveniles" ], "opinions": [ { "text": "McGEE, Judge.\nN.R.M. and T.F.M. (the children) were bom to B.M. (petitioner) and S.P. (respondent) on 5 December 1996 in Arkansas. From the time of the birth of the children until 31 July 2000, the children lived in Arkansas with different persons. From birth until 20 November 1997, they lived with petitioner; from 20 November 1997 until 16 December 1999, the children lived with respondent; and from 20 December 1999 until 31 July 2000, the children lived with their paternal grandparents. Since 1 August 2000, they have lived in North Carolina with petitioner.\nThe Chancery Court of Garland County, Arkansas, entered a custody order pertaining to the children on 16 August 2000. The Arkansas court found it was in the best interest of the children to place them in the custody of petitioner. The order provided for reasonable, but restricted and supervised, visitation for respondent until respondent fulfilled conditions set forth in the order. The order stated that for respondent to be granted additional visitation, she had to provide proof that she had met the conditions set forth in the order. The order further provided that respondent had a duty to support the children.\nPetitioner filed a petition on 21 March 2002 to terminate the parental rights of respondent to the children. Respondent received the petition by certified mail on 27 July 2002. Respondent filed a pro se response on 9 August 2002 and an amended response on 23 August 2002. The amended response included lack of personal jurisdiction and lack of subject matter jurisdiction as defenses. Respondent also filed a separate motion to dismiss for lack of personal jurisdiction on 23 August 2002. The trial court orally denied the motion on 5 September 2002 and then entered a written order denying the motion on 31 October 2002. In this order, the trial court specifically concluded that \u201cNorth Carolina has jurisdiction over the subject matter and parties to this action.\u201d Respondent appeals the order denying her motion to dismiss for lack of personal jurisdiction.\nThe petition to terminate respondent\u2019s parental rights was filed in New Hanover County, North Carolina, nearly two years after the Arkansas order was entered. In his petition, petitioner asserted the following as grounds for termination:\na. The Petitioner was awarded custody of the minor children by judicial decree and the Respondent has for a period of one year or more preceding the filing of this Petition willfully failed without justification to pay for the care, support, and education of the minor children as required by the judicial decree.\nb. The Respondent has wil[l]fully abandoned the minor children for at least six consecutive months immediately preceding the filing of this Petition.\nIn the 9 August 2002 response to the petition, respondent claimed that petitioner had kept the location of the children secret \u201cfor the past year and a half.\u201d However, petitioner disputes this allegation. In the response, respondent also denied that petitioner was a fit and proper parent to have custody of the children and denied that her rights should be terminated.\nOn 26 August 2002, subsequent to the filing in North Carolina of the petition to terminate respondent\u2019s parental rights, the Circuit Court of Garland County, Arkansas, entered an order whereby petitioner was ordered to return the children to Arkansas \u201cfor a three day period within the next thirty (30) days.\u201d The purpose of this order was to allow the Arkansas court to hold a hearing on visitation for respondent. However, this order resulted from a hearing that was held on 4 December 2000, approximately twenty months before the 26 August 2002 order was entered. There is no evidence in the record indicating that petitioner complied with the 26 August 2002 order of the Arkansas court.\nRespondent argues that the trial court erred by ignoring precedent in denying respondent\u2019s motion to dismiss for lack of personal jurisdiction. However, before addressing the merits of respondent\u2019s argument, we review the issue of subject matter jurisdiction although not briefed by the parties. Our Court\u2019s authority to conduct such a review is summarized by In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003), which provides that\n[w]e recognize that a party\u2019s failure to brief a question on appeal ordinarily constitutes a waiver of the issue. See In re Faircloth, 153 N.C. App. 565, 581, 571 S.E.2d 65, 75 (2002) (where respondent-father fails to argue certain issues on appeal from order terminating his parental rights, this Court holds \u201crespondent has abandoned these issues on appeal\u201d citing N.C.R. App. P. 10(a) and 28(a)). However, regardless of whether subject matter jurisdiction is raised by the parties, this Court \u201cmay review the record to determine if subject matter jurisdiction exists in this case.\u201d Foley v. Foley, 156 N.C. App. 409, 412, 576 S.E.2d 383, 385 (2003). \u201c[A] court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero mo tu when subject matter jurisdiction is lacking.\u201d Reece v. Forga, 138 N.C. App. 703, 704, 531 S.E.2d 881, 882, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000).\nMcKinney, 158 N.C. App. at 448, 581 S.E.2d at 797. See also Lemmerman v. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 86 (1986) (\u201cWhen the record clearly shows that subject matter jurisdiction is lacking, the Court will take notice and dismiss the action ex mero motu\"').\nThe significance of subject matter jurisdiction has been recently addressed by this Court:\n\u201cSubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.\u201d Haker-Volkening v. Haker, 143 N.C. App. 688, 693, 547 S.E.2d 127, 130 (citing 1 Restatement (Second) of Judgments \u00a7 11, at 108 (1982)), disc. review denied, 354 N.C. 217, 554 S.E.2d 338 (2001). \u201cJurisdiction of the court over the subject matter of an action is the most critical aspect of the court\u2019s authority to act. 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.\u201d Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987) (citing W. Shuford, N.C. Civil Practice and Procedure \u00a7 12-6 (1981)). Moreover, a court\u2019s inherent authority does not allow it to act where it would otherwise lack jurisdiction. \u201cCourts have the inherent power to do only those things which are reasonably necessary for the administration of justice within the scope of their jurisdiction. In re Transportation of Juveniles, 102 N.C. App. 806, 808, 403 S.E.2d 557, 559 (1991) (citing 20 Am. Jur. 2d Courts \u00a7 78 (1965)). \u201c[T]he inherent powers of a court do not increase its jurisdiction but are limited to such powers as are essential to the existence of the court and necessary to the orderly and efficient exercise of its jurisdiction.\u201d Hopkins v. Barnhardt, 223 N.C. 617, 619-20, 27 S.E.2d 644, 646 (1943).\nMcKinney, 158 N.C. App. at 443, 581 S.E.2d at 795.\nN.C. Gen. Stat. \u00a7 7B-1101 (2003) provides that a\ncourt 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, 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 or motion.\nThe statute further states that \u201cbefore exercising 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-201, 50A-203, or 50A-204.\u201d Id.\nIn this case, the children were located in New Hanover County when the petition for termination was 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. \u00a7 7B-1101 indicates, jurisdictional provisions under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (N.C. Gen. Stat. \u00a7 50A-101 et seq.) (2003)) must be satisfied. We note that the definition of a \u201c[c]hild-cus-tody proceeding\u201d under the UCCJEA specifically includes a proceeding for termination of parental rights. N.C. Gen. Stat. \u00a7 50A-102(4).\nThe UCCJEA provisions referenced above include N.C. Gen. Stat. \u00a7\u00a7 50A-201, 50A-203, and 50A-204. The first provision, N.C. Gen. Stat. \u00a7 50A-201, addresses jurisdiction for initial child-custody determinations. The phrase \u201c[i]nitial determination\u201d is defined as \u201cthe first child-custody determination concerning a particular child.\u201d N.C. Gen. Stat. \u00a7 50A-102(8). In the present case before our Court, the custody issues have already been addressed by an Arkansas court. The initial determination provision is therefore not relevant. Similarly, N.C. Gen. Stat. \u00a7 50A-204 is not applicable because it provides North Carolina with temporary emergency jurisdiction \u201cif the child is present in [North Carolina] and the child has been abandoned or it is necessary in an emergency to protect the child[.]\u201d N.C. Gen. Stat. \u00a7 50A-204(a). In the present case, the children have not been abandoned within the meaning of the UCCJEA and there is no indication that the children are in need of protection. Accordingly, this emergency jurisdiction provision is not relevant.\nThus, the remaining provision, N.C. Gen. Stat. \u00a7 50A-203, is the provision which must be satisfied for a North Carolina court to have jurisdiction to terminate respondent\u2019s parental rights. This statute outlines the requirements for a North Carolina court to have jurisdiction to modify a child-custody determination. Under the UCCJEA, \u201c[modification\u201d is defined as \u201ca 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.\u201d N.C. Gen. Stat. \u00a7 50A-102(11).\nIn this case, a custody order was entered by the Arkansas court on 16 August 2000 granting custody to petitioner and visitation to respondent. Thus, at the time of the petition to terminate respondent\u2019s parental rights, there was an existing order from another state pertaining to the children at issue. Accordingly, any change to that Arkansas order qualifies as a modification under the UCCJEA.\nUnder the applicable modification provision, N.C. Gen. Stat. \u00a7 50A-203, a North Carolina court cannot modify a child-custody determination made by another state unless two requirements are met. The first requirement is that the North Carolina court must have jurisdiction to make an initial determination under N.C. Gen. Stat. \u00a7 50A-201(a)(l) or (a)(2). Subsection (a)(1) provides for jurisdiction if North Carolina is the \u201chome state of the child on the date of the commencement of the proceeding[.]\u201d N.C. Gen. Stat. \u00a7 50A-201(a)(l). \u201cHome state\u201d is defined as \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 50A-102(7). In this case, the children had been living in New Hanover County since 1 August 2000, and the petition was filed 21 March 2002. Thus, the home state requirement was satisfied.\nHowever, in order for a North Carolina court to modify a custody determination of another state, a second requirement must also be met. This requirement is that either\n(1) [t]he 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\n(2) [a] court of this State or a court of the other state determines that the child, the child\u2019s parents, and any person acting as a parent do not presently reside in the other state.\nN.C. Gen. Stat. \u00a7 50A-203. Under subsection (1), there are two means whereby North Carolina would obtain jurisdiction. The first manner is if the Arkansas court determined it no longer had jurisdiction under N.C.G.S. \u00a7 50A-202. This statute provides that a court\nwhich has made a child-custody determination consistent with [the UCCJEA] has exclusive, continuing jurisdiction over the determination until:\n(1) [it] determines that. . . the child, the child\u2019s parents, and any person acting as a parent [no longer have] a significant connection with this State and that substantial evidence is no longer available in this State concerning the child\u2019s care, protection, training, and personal relationship; or\n(2) [it] or a court of another state determines that the child, the child\u2019s parents, and any person acting as a parent do not presently reside in this State.\nN.C. Gen. Stat. \u00a7 50A-202. The official comment to this statute clarifies that \u201cthe original decree State is the sole determinant of whether jurisdiction continues. A party seeking to modify a custody determination must obtain an order from the original decree State stating that it no longer has jurisdiction.\u201d Official Comment to N.C.G.S. \u00a7 50A-202.\nIn the case before our Court, there is no Arkansas order in the record stating that Arkansas no longer has jurisdiction. In fact, as recently as 26 August 2002, after the termination petition and both responses to the petition had been filed, an Arkansas court entered an order directing petitioner to return the children to Arkansas so that a hearing could be held regarding visitation for respondent. Although this order concerned a hearing which had been held on 4 December 2000, it clearly indicated that Arkansas was not declining to exercise jurisdiction. Further, we note that at the time of the petition, respondent resided in Arkansas so Arkansas did not lose continuing jurisdiction based on N.C. Gen. Stat. \u00a7 50A-202(a)(2).\nA second option under N.C. Gen. Stat. \u00a7 50A-203(1) that would relinquish jurisdiction from Arkansas to North Carolina is if the Arkansas court determined that a North Carolina court would be a more convenient forum under N.C. Gen. Stat. \u00a7 50A-207. Again, there is nothing in the record showing that Arkansas made such a determination. Accordingly, neither method of obtaining jurisdiction under N.C. Gen. Stat. \u00a7 50A-203(1) is satisfied.\nThe final option for North Carolina to obtain jurisdiction is contained in N.C. Gen. Stat. \u00a7 50A-203(2). This section allows jurisdiction if either the issuing state or the state attempting to modify the order determines that the child, the child\u2019s parents, and any person acting as a parent have left the issuing state. In the case before this Court, at the time of the petition, the record shows respondent was residing in Arkansas. Because respondent continued to live in Arkansas, subsection (2) was not satisfied even though petitioner and the children had left Arkansas and moved to North Carolina. Accordingly, pursuant to the UCCJEA, the trial court lacked subject matter jurisdiction to hear a petition for termination of respondent\u2019s parental rights. Although North Carolina qualifies as the home state of the children, the second requirement for modification jurisdiction is not met. Thus, the trial court lacked subject matter jurisdiction to enter the order.\nFor the reasons stated, the order of the trial court must be vacated and this case remanded to the New Hanover County District Court for entry of an order dismissing petitioner\u2019s action.\nBecause we resolve this appeal on the basis of lack of subject matter jurisdiction, we do not address the merits of respondent\u2019s argument.\nVacated and remanded.\nJudges WYNN and TYSON concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Lea, Rhine & Associates, by Lori W. Rosbrugh, for petitioner-appellee.", "Jeffrey Evan Noecker for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF N.R.M., T.F.M., Minor Juveniles\nNo. COA03-592\n(Filed 6 July 2004)\nTermination of Parental Rights; Child Support, Custody, and Visitation\u2014 Arkansas custody order \u2014 N.C. termination petition \u2014 subject matter jurisdiction\nA petition to terminate a mother\u2019s parental rights in North Carolina, filed by the father, should have been dismissed for lack of subject matter jurisdiction where respondent was in Arkansas, which had issued an earlier custody order, the children were in North Carolina, and the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply. Custody issues have already been addressed by the Arkansas court, the UCCJEA emergency jurisdiction provision is not relevant, there was no order from Arkansas stating that Arkansas no longer has jurisdiction or that North Carolina would be a more convenient forum, and one of the parties continued to live in Arkansas.\nAppeal by respondent from order entered 31 October 2002 by Judge J.H. Corpening, II in District Court, New Hanover County. Heard in the Court of Appeals 3 February 2004.\nLea, Rhine & Associates, by Lori W. Rosbrugh, for petitioner-appellee.\nJeffrey Evan Noecker for respondent-appellant." }, "file_name": "0294-01", "first_page_order": 326, "last_page_order": 333 }