{ "id": 8172392, "name": "IN THE MATTER OF: T.J.D.W., J.J.W.", "name_abbreviation": "In re T.J.D.W.", "decision_date": "2007-04-03", "docket_number": "No. COA06-1323", "first_page": "394", "last_page": "406", "citations": [ { "type": "official", "cite": "182 N.C. App. 394" } ], "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": "640 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637655 ], "weight": 2, "year": 2007, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0403-01" ] }, { "cite": "181 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375223 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc-app/181/0540-01" ] }, { "cite": "387 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "233-34" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519469 ], "year": 1990, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0057-01" ] }, { "cite": "336 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525171 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0726-01" ] }, { "cite": "576 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "413" }, { "page": "386", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190917 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/156/0409-01" ] }, { "cite": "633 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636476 ], "year": 2006, "pin_cites": [ { "page": "716", "parenthetical": "quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)" } ], "opinion_index": 1, "case_paths": [ "/se2d/633/0715-01" ] }, { "cite": "618 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633890 ], "year": 2005, "pin_cites": [ { "page": "817", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/618/0813-01" ] }, { "cite": "05 J 531", "category": "reporters:state", "reporter": "Johns.", "weight": 3, "opinion_index": 1 }, { "cite": "05 J 530", "category": "reporters:state", "reporter": "Johns.", "weight": 2, "opinion_index": 1 }, { "cite": "04 J 339", "category": "reporters:state", "reporter": "Johns.", "weight": 2, "opinion_index": 1 }, { "cite": "04 J 208", "category": "reporters:state", "reporter": "Johns.", "opinion_index": 1 }, { "cite": "598 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "150-51", "parenthetical": "Although North Carolina was the home state of the children, North Carolina did not have subject matter jurisdiction over the proceedings to terminate the mother's parental rights. Nothing in the record showed N.C. Gen. Stat. \u00a7 50A-203(1) or (2) were satisfied." }, { "page": "151" } ], "opinion_index": 1 }, { "cite": "165 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997078 ], "year": 2004, "pin_cites": [ { "page": "299-301", "parenthetical": "Although North Carolina was the home state of the children, North Carolina did not have subject matter jurisdiction over the proceedings to terminate the mother's parental rights. Nothing in the record showed N.C. Gen. Stat. \u00a7 50A-203(1) or (2" } ], "opinion_index": 1, "case_paths": [ "/nc-app/165/0294-01" ] }, { "cite": "402 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "328 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542944, 2542610, 2544147, 2542835, 2537950 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0092-01", "/nc/328/0092-03", "/nc/328/0092-04", "/nc/328/0092-02", "/nc/328/0092-05" ] }, { "cite": "396 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "335", "parenthetical": "Failure to comply with former section 50A-209 did not per se defeat subject matter jurisdiction where the trial court properly exercised jurisdiction." } ], "opinion_index": 1 }, { "cite": "100 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526843 ], "year": 1990, "pin_cites": [ { "page": "382", "parenthetical": "Failure to comply with former section 50A-209 did not per se defeat subject matter jurisdiction where the trial court properly exercised jurisdiction." } ], "opinion_index": 1, "case_paths": [ "/nc-app/100/0379-01" ] }, { "cite": "582 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "660", "parenthetical": "The purpose of this statute is to enable the trial court to determine whether subject matter jurisdiction exists in child custody matters." } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954022 ], "year": 2003, "pin_cites": [ { "page": "79", "parenthetical": "The purpose of this statute is to enable the trial court to determine whether subject matter jurisdiction exists in child custody matters." } ], "opinion_index": 1, "case_paths": [ "/nc-app/159/0075-01" ] }, { "cite": "579 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491520, 491684, 491750, 491596, 491725, 491760, 491635, 491479 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0062-01", "/nc/357/0062-03", "/nc/357/0062-04", "/nc/357/0062-08", "/nc/357/0062-06", "/nc/357/0062-02", "/nc/357/0062-07", "/nc/357/0062-05" ] }, { "cite": "573 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "235", "parenthetical": "internal citation omitted" } ], "opinion_index": 1 }, { "cite": "154 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251809 ], "year": 2002, "pin_cites": [ { "page": "700", "parenthetical": "internal citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/154/0698-01" ] }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "215" } ], "opinion_index": 1 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "pin_cites": [ { "page": "336" } ], "opinion_index": 1, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "179 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8236656 ], "year": 2006, "pin_cites": [ { "page": "385", "parenthetical": "quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/179/0383-01" ] }, { "cite": "173 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353569 ], "year": 2005, "pin_cites": [ { "page": "380-81", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/173/0375-01" ] }, { "cite": "336 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "447" } ], "opinion_index": 1 }, { "cite": "77 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525171 ], "year": 1985, "pin_cites": [ { "page": "729" } ], "opinion_index": 1, "case_paths": [ "/nc-app/77/0726-01" ] }, { "cite": "576 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "386", "parenthetical": "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.\"" }, { "page": "386", "parenthetical": "Holding that trial court must make specific findings to support its assumption of jurisdiction in a child custody matter." } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190917 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "413", "parenthetical": "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.\"" }, { "page": "413" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0409-01" ] } ], "analysis": { "cardinality": 874, "char_count": 28339, "ocr_confidence": 0.754, "pagerank": { "raw": 3.2022648973731187e-07, "percentile": 0.8659510651007066 }, "sha256": "e4d588b0062cff8a3310c629dde8b1fc47ab038d47a4baba12d88aca532f17df", "simhash": "1:8aa9d6665beecff0", "word_count": 4599 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "IN THE MATTER OF: T.J.D.W., J.J.W." ], "opinions": [ { "text": "HUNTER, Judge.\nRespondent-mother (\u201crespondent\u201d) 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.\nOn 15 May 2004, New Hanover County Department of Social Services (\u201cDSS\u201d) received a referral from medical professionals that respondent\u2019s twenty-three-month-old child, T.J.D.W., had received non-accidental serious bums. 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.\nIn 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.\nDSS 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.\u2019s permanent plan from reunification with respondent to adoption with a concurrent plan of reunification with J.J.W.\u2019s 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.\u2019s father relinquished his parental rights.\nOn 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.\u2019s bums from May 2004. Respondent was sentenced to ten to thirteen years of active imprisonment. On 30 December 2005, DSS petitioned to terminate respondent\u2019s 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\u2019s 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 appeals.\nI.\nRespondent first argues that the trial court lacked subject matter jurisdiction to enter the order in question. This argument is without merit.\nRespondent 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. \u00a7 50A-203 to confer subject matter jurisdiction on North Carolina were fulfilled. 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 fomm or that the child or parents do not reside in South Carolina. We disagree.\nSpecifically, 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\u2019s parental rights because that would supersede South Carolina\u2019s determination of custody of T.J.D.W. in violation of N.C. Gen. Stat. \u00a7\u00a7 50A-203, -102(11) (2005) (\u201ca court of this State may not modify a child-custody determination made by a \u2022court of another state\u201d except in certain circumstances, and \u201cmodify\u201d includes an order superseding a previous determination).\nHowever, 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. \u00a7 50A-201(a), which states that the state has such jurisdiction if it was \u201cthe home state of the child on the date of the commencement of the proceeding\u201d; \u201chome state\u201d is defined as a state where the child lived with a parent \u201cfor at least six consecutive months immediately before the commencement of a child-custody proceeding.\u201d N.C. Gen. Stat. \u00a7\u00a7 50A-201(a)(l), -102(7) (2005). Second, \u201c[a] court of this State . . . determines that the child, the child\u2019s parents, and any person acting as a parent do not presently reside in the other state[,]\u201d with \u201cpresently\u201d referring to the time of the proceeding. N.C. Gen. Stat. \u00a7 50A-203(2).\n. Thus, the requirements of both statutes are fulfilled by a trial court\u2019s determination that subject matter exists where it is supported by evidence that the child and a parent (not necessarily both 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 case here.\nAt the time of the petition, the child was in the custody of New Hanover County 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\u2019s 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.\nAs 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 be the better practice); N.C. Gen. Stat. \u00a7 50A-201(a)(l) states only that certain circumstances must exist, not that the court specifically make findings to that effect, and N.C. Gen. Stat. \u00a7 50A-203(2) requires only that a court \u201cdetermine []\u201d that the relevant parties live in the state. Because the trial court asserted its jurisdiction in the order (\u201cbased upon the foregoing findings of fact, the Court CONCLUDES AS MATTERS OF LAW that this Court has Jurisdiction over the subject matter\u201d) and the evidence supports its determination regarding the above statutory requirements, the trial court properly exercised subject matter jurisdiction over this case.\nWe 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. Foley, 156 N.C. App. 409, 576 S.E.2d 383 (2003), the Court states that it is \u201ctroubled\u201d by the lack of information in the record as to the participants\u2019 residency at various times, and remanded the case to the trial court to make findings of fact \u201cbecause the record is devoid of evidence from which it may be ascertained whether or not the trial court had subject matter jurisdiction[.]\u201d Id. 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\u2019s reference to the lower.court\u2019s \u201cproper findings of fact\u201d concerns not a finding that North Carolina was the child\u2019s home 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\u2019s 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\u2019s assertion of jurisdiction; as outlined above, it provides ample evidence as to the whereabouts at the relevant times of all participants.\nBefore proceeding to respondent\u2019s other arguments, we note that while the order at issue terminated respondent\u2019s 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 \u201cchildren,\u201d 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\nJ.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.\u2019s home state (one of the bases for subject matter jurisdiction per section 50A-201(a)(l)), interstate transfer of jurisdiction was not an issue here, and the trial court properly asserted subject matter jurisdiction over the child.\nII.\nWe next consider respondent\u2019s 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 without merit.\nN.C. Gen. Stat. \u00a7 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\u2019s 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\u2019s removal; the children are dependent within the meaning of N.C. Gen. Stat. \u00a7 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. \u00a7 7B-llll(a)(l), (2), (6), (7), (8).\nOne of these grounds, that respondent \u201cha[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[,]\u201d 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. \u00a7 7B-llll(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\u2019s order would no longer be valid.\nHowever, this Court has since affirmed respondent\u2019s 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\u2019s parental rights as to T.J.D.W.\nFurther, N.C. Gen. Stat. \u00a7 7B-llll(a)(8) states that parental rights can be terminated where the parent \u201cha[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[.]\u201d Id. (emphasis added). Therefore, the trial court\u2019s further conclusion that this conviction provided a proper basis for terminating respondent\u2019s rights as to J.J.W. was also correct.\nBecause we find that the trial court properly asserted jurisdiction over both children and based its termination of respondent\u2019s rights as to both children on proper statutory grounds, we affirm the trial court\u2019s order. In light of our holding, we do not address respondent\u2019s remaining assignments of error.\nAffirmed.\nJudge McCULLOUGH concurs.\nJudge TYSON dissents in a separate opinion.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion erroneously concludes the trial court properly exercised subject matter jurisdiction over the parties. I disagree and vote to vacate the trial court\u2019s order. I respectfully dissent.\nI. Standard of Review\nThis Court has stated:\nA 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. \u00a7 7B-llll(a) exists. The standard for appellate review is whether the trial court\u2019s 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. \u00a7 7B-llll(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 disposi-tional stage is whether the trial court abused its discretion in terminating parental rights.\nIn re C.C., J.C., 173 N.C. App. 375, 380-81, 618 S.E.2d 813, 817 (2005) (internal quotations and citations omitted). \u201cThe trial court\u2019s \u2018conclusions of law are reviewable de novo on appeal.\u2019 \u201d 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)). \u201c[T]he issue of subject matter jurisdiction may be raised at any time, even on appeal.\u201d 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).\nII. Subject Matter Jurisdiction\nRespondent 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.\u2019s case; and (4) no evidence exists in the record from which the trial court could have determined it had subject matter jurisdiction. I agree.\nA 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 and Enforcement Act (\u201cUCCJEA\u201d), N.C. Gen. Stat. \u00a7\u00a7 50A-201, 50A-203, and 50A-204, before exercising jurisdiction to terminate parental rights. N.C. Gen. Stat. \u00a7 7B-1101 (2005).\nA. N.C. Gen. Stat. \u00a7 50A-201\nN.C. Gen. Stat. \u00a7 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 circumstances:\n(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;\n(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:\na. The child and the child\u2019s 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\nb. Substantial evidence is available in this State concerning the child\u2019s care, protection, training, and personal relationships;\n(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\n(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).\nN.G. Gen. Stat. \u00a7 50A-201(a).\nIn Subsection (a)(1), \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) (2005).\nHere, both DSS and the guardian ad litem argue sufficient record evidence exists to support North Carolina\u2019s exercise of subject matter jurisdiction over T.J.D.W.\u2019s case at the time the termination petition was filed. However, the trial court\u2019s 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.\nThe 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 \u201cthe appropriate date for home state determination is the date of the commencement of the proceeding, not the date the order is entered.\u201d)\nDSS\u2019s 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 \u201cif reasonably ascertainable, ... as to the child\u2019s 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.\u201d N.C. Gen. Stat. \u00a7 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.).\nThis Court has held that the failure to file this affidavit may not defeat the trial court\u2019s 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).\nEven without the statutorily mandated affidavit, the trial court failed to make any of the required findings or conclusions concerning whether North Carolina\u2019s exercise of subject matter jurisdiction was appropriate in T.J.D.W.\u2019s 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 only summarily 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.\nWhile 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 \u201chome state\u201d provision for the proper assertion of initial jurisdiction under N.C. Gen. Stat. \u00a7 50A-201(a).\nHowever, this Court\u2019s 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 \u201conly 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.\u201d\nThis finding of fact requires compliance with N.C. Gen. Stat. \u00a7 50A-203 in order for a North Carolina court to assert jurisdiction to modify the child custody determination of another state.\nB. N.C. Gen. Stat. \u00a7 50A-203\nUnder the UCCJEA, \u201c[m]odification\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). The findings and conclusions of law show that a South Carolina court had entered a custody order with respect to T.J.D.W.\nA North Carolina court can only assert subject matter jurisdiction after a \u201cdetermination\u201d upon findings of fact and conclusions of law under N.C. Gen. Stat. \u00a7 50A-203 that one of the following conditions is satisfied:\n(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\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 (emphasis supplied). The majority\u2019s opinion wholly fails to address the trial court\u2019s failure to make the statutory determination required by N.C. Gen. Stat. \u00a7 50A-203. This \u201cdetermination\u201d can only be made by a finding of fact and conclusion of law showing compliance with the statute.\nA state\u2019s assertion of jurisdiction in a child custody case is also governed by the Federal Parental Kidnapping Prevention Act (\u201cPKPA\u201d). 28 U.S.C. \u00a7 1738A. Under the PKPA, 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). \u2022\nNeither the trial court\u2019s 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. \u00a7 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 \u201cthe child\u2019s parents, and any person acting as a parent do not presently reside in the other state.\u201d N.C. Gen. Stat. \u00a7 50A-203.\nThe trial court did not possess subject matter jurisdiction over the proceedings to terminate respondent\u2019s 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 matter jurisdiction over the proceedings to terminate the mother\u2019s parental rights. Nothing in the record showed N.C. Gen. Stat. \u00a7 50A-203(1) or (2) were satisfied.). In the absence of any findings or conclusions to satisfy the statute, the trial court\u2019s order terminating a respondent\u2019s parental rights \u201cmust be vacated and this case remanded . . . for entry of an order dismissing [DSS\u2019s] action.\u201d Id. at 301, 598 S.E.2d at 151.\nIII. Conclusion\nThe 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. \u00a7 50A-203 when the 20 May 2004 juvenile petition was filed. The trial court\u2019s 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\u2019s petition. Id.\nThe trial court\u2019s adjudication of J.J.W. as neglected (No. 04 J 339), as well as the ultimate termination of respondent\u2019s parental rights with respect to both juveniles (Nos. 05 J 530 and 05 J 531), were solely based on the trial court\u2019s initial adjudication of T.J.D.W. as abused and neglected. I vote to vacate the trial court\u2019s order and remand for entry of an order dismissing DSS\u2019s action. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge," } ], "attorneys": [ "Dean W. Hollandsworth for petitioner-appellee New Hanover County Department of Social Services.", "Regina Floyd-Davis and Elizabeth Boone for appellee Guardian ad Litem.", "Rebecca Haddock for respondent-appellee father.", "Richard Croutharmel for respondent-appellant mother." ], "corrections": "", "head_matter": "IN THE MATTER OF: T.J.D.W., J.J.W.\nNo. COA06-1323\n(Filed 3 April 2007)\n1. Termination of Parental Rights\u2014 jurisdiction \u2014 existing South Carolina order \u2014 North Carolina residence \u2014 findings\nThe trial court had 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. \u00a7 50A-201(a)(l) states only that certain circumstances must exist.\n2. Termination of Parental Rights\u2014 jurisdiction \u2014 child resident in North Carolina\nThe trial court properly asserted subject matter jurisdiction over a child who was taken into custody by DSS in North Carolina immediately after she was bom 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.\n3. Termination of Parental Rights\u2014 grounds \u2014 one sibling burned \u2014 the other present in the house\nThe 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 bums 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 home.\nJudge Tyson dissenting.\nAppeal 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.\nDean W. Hollandsworth for petitioner-appellee New Hanover County Department of Social Services.\nRegina Floyd-Davis and Elizabeth Boone for appellee Guardian ad Litem.\nRebecca Haddock for respondent-appellee father.\nRichard Croutharmel for respondent-appellant mother." }, "file_name": "0394-01", "first_page_order": 426, "last_page_order": 438 }