{ "id": 12168845, "name": "IN RE J.D., a Minor Child", "name_abbreviation": "In re J.D.", "decision_date": "2014-06-17", "docket_number": "No. COA14-145", "first_page": "342", "last_page": "349", "citations": [ { "type": "official", "cite": "234 N.C. App. 342" } ], "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": "669 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642339 ], "year": 2008, "pin_cites": [ { "page": "856", "parenthetical": "explaining that New York did not lose continuing jurisdiction over custody of child for purposes of N.C. Gen. Stat. \u00a7 50A-203(2) because juvenile's mother continued to reside there" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0850-01" ] }, { "cite": "646 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638770 ], "year": 2007, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0425-01" ] }, { "cite": "721 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "254-55" } ], "opinion_index": 0 }, { "cite": "185 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551075 ], "year": 1971, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0173-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(bl)" } ], "opinion_index": 0 }, { "cite": "880 N.E.2d 1217", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8399634 ], "year": 2008, "pin_cites": [ { "page": "1221", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/ne2d/880/1217-01" ] }, { "cite": "194 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162787 ], "year": 2008, "pin_cites": [ { "page": "448", "parenthetical": "explaining that New York did not lose continuing jurisdiction over custody of child for purposes of N.C. Gen. Stat. \u00a7 50A-203(2) because juvenile's mother continued to reside there" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0439-01" ] }, { "cite": "598 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "149" }, { "page": "150" }, { "page": "150-51" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997078 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "298" }, { "page": "298" }, { "page": "300-01" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0294-01" ] }, { "cite": "702 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181222 ], "year": 2010, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0128-01" ] }, { "cite": "655 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "362 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150274 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0170-01" ] }, { "cite": "184 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185896 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0381-01" ] }, { "cite": "677 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "363 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150875 ], "year": 2009, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0343-01" ] }, { "cite": "353 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "675" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0666-01" ] } ], "analysis": { "cardinality": 679, "char_count": 17846, "ocr_confidence": 0.715, "pagerank": { "raw": 9.779386173779555e-08, "percentile": 0.5319084240046428 }, "sha256": "337677fecd7c0a06d1d5099032cbf526bd464483860fa6eead8ed0f0c882af57", "simhash": "1:9d4948063a7c1c54", "word_count": 2829 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STROUD concur." ], "parties": [ "IN RE J.D., a Minor Child" ], "opinions": [ { "text": "DAVIS, Judge.\nB.D. (\u201cRespondent\u201d) appeals from an order terminating his parental rights to his son, J.D. (\u201cJosh\u201d), who was bom in August 2006 in Indianapolis, Indiana. On appeal, Respondent argues that the trial court lacked jurisdiction to grant the petition to terminate Respondent\u2019s parental rights. After careful review, we vacate the trial court\u2019s order and remand for entry of an order dismissing the petition.\nFactual Background\nK.P. (\u201cPetitioner\u201d) is Josh\u2019s mother. At the time of Josh\u2019s birth,. Petitioner and Respondent lived together in Indiana. They separated approximately two months after Josh was bom. On or about 17 December 2008, Respondent filed an action (\u201cthe Indiana Action\u201d) in the Circuit Court of Marion County, Indiana (\u201cthe Indiana court\u201d) seeking custody of Josh. On or about 8 January 2009, the Indiana court entered a consent order establishing paternity, custody, child support, and visitation. In 2011, Petitioner moved with Josh to North Carolina, where she and Josh continue to reside.\nOn 2 August 2011, the Indiana court entered an order modifying its child custody order to permit visitation by Respondent. On 18 November 2011, the Indiana court suspended Respondent\u2019s visitation privileges. On 2 December 2011, Josh\u2019s paternal grandparents \u2014 who live in Indiana\u2014 filed a motion to intervene for the purpose of obtaining visitation rights regarding Josh. The Indiana court dismissed the grandparents\u2019 motion to intervene on 14 December 2011.\nOn 18 July 2012, Petitioner filed a petition in Mecklenburg County District Court seeking to terminate Respondent\u2019s parental rights to Josh. On 13 September 2012, in conjunction with his answer to the petition, Respondent filed a motion to dismiss on the grounds of lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted.\nOn 7 November 2012, Respondent filed a motion for a protective order pursuant to Rule 26(c) of the North Carolina Rules of Civil Procedure seeking to be excused from answering a set of interrogatories propounded by Petitioner until the trial court\u2019s jurisdiction was established. On 18 March 2013, Petitioner filed amotion to compel Respondent to respond to the interrogatories and also to her request for production of documents. On 4 June 2013, a consent order was entered in which the parties agreed to continue the pretrial conference until 26 June 2013. Respondent also agreed in this order to respond to Petitioner\u2019s interrogatories by 21 June 2013. The order stated that if he failed to respond to the interrogatories by this deadline, Petitioner would be \u201centitled to request that discovery sanctions be levied against Respondent\u201d at the pretrial conference.\nFollowing the pretrial conference, the trial court issued an order on 15 July 2013 in which it concluded it had jurisdiction over both the parties and the subject matter. In addition, the court sanctioned Respondent for failing to respond to Petitioner\u2019s first set of interrogatories by prohibiting him (1) \u201cfrom putting on evidence regarding any of the issues contained in Petitioner\u2019s First Set of Interrogatories\u201d; and (2) from \u201cus[ing] in his defense any information that should have (or could have) been responsive to Petitioner\u2019s First Set of Interrogatories ....\u201d\nThe trial court conducted adjudication and disposition hearings in connection with Petitioner\u2019s petition to terminate Respondent\u2019s parental rights on 6 November 2013 and filed an order on 25 November 2013 terminating his parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(6) and (7). Respondent filed a timely notice of appeal.\nAnalysis\nRespondent contends that the order terminating his parental rights must be vacated because the Mecklenburg County District Court lacked jurisdiction over the subject matter and over Respondent\u2019s person in that (1) the child custody action regarding Josh originated in Indiana and the Indiana court has retained subject matter jurisdiction; and (2) Respondent is not a resident of North Carolina and had insufficient minimum contacts with this State to permit the trial court\u2019s exercise of personal jurisdiction over him. Petitioner argues Respondent waived any challenge to jurisdiction by not appealing the 15 July 2013 order in which the court concluded it had both subject matter and personal jurisdiction. Petitioner further argues that even if the jurisdictional arguments were not waived, the trial court did, in fact, possess subject matter and personal jurisdiction over Respondent.\n\u201cSubject matter jurisdiction refers to the power of the court to deal with the kind of action in question.\u201d Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987). With regard to \u201cmatters arising under the Juvenile Code, the court\u2019s subject matter jurisdiction is established by statute.\u201d In re K.J.L., 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009). \u201cSubject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal.\u201d In re H.L.A.D., 184 N.C. App. 381, 385, 646 S.E.2d 425, 429 (2007), aff\u2019d per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). Whether a court has jurisdiction is a question of law reviewable de novo on appeal. In re K.U.-S.G., 208 N.C. App. 128, 131, 702 S.E.2d 103, 105 (2010).\nThe jurisdictional statute that governs actions to terminate parental rights is N.C. Gen. Stat. \u00a7 7B-1101, which provides as follows:\nThe court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, 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. The court shall have jurisdiction to terminate the parental rights of any parent irrespective of the age of the parent. Provided, that before exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204. The court shall have jurisdiction to terminate the parental rights of any parent irrespective of the state of residence of the parent. Provided, that before exercising jurisdiction under this Article regarding the parental rights of a nonresident parent, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201 or G.S. 50A-203, without regard to G.S. 50A-204 and that process was served on the nonresident parent pursuant to G.S. 7B-1106.\nN.C. Gen. Stat. \u00a7 7B-1101 (2013) (emphasis added).\nThe above-referenced statutes listed in N.C. Gen. Stat. \u00a7 7B-1101 are all provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (\u201cUCCJEA\u201d), which defines a \u201cchild-custody determination\u201d as \u201ca judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.\u201d N.C. Gen. Stat. \u00a7 50A-102(3) (2013). The jurisdictional requirements of the UCCJEA apply to proceedings for the termination of parental rights. In re N.R.M., 165 N.C. App. 294, 298, 598 S.E.2d 147, 149 (2004).\nBecause this action sought the termination of nonresident Respondent\u2019s parental rights, N.C. Gen. Stat. \u00a7 50A-204 \u2014 which confers upon a court of this State temporary emergency jurisdiction if the child is within this State and has been abandoned or the exercise of jurisdiction is necessary to protect the child from mistreatment or abuse \u2014 could not provide the trial court with subject matter jurisdiction in this case. See N.C. Gen. Stat. \u00a7 7B-1101 (\u201c[B]efore exercising jurisdiction . . . regarding the parental rights of a nonresident parent, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201 or G.S. 50A-203, without regard to G.S. 50A-204 ....\u201d (emphasis added)).\nThus, pursuant to N.C. Gen. Stat. \u00a7 7B-1101 and the UCCJEA, we must determine whether the trial court possessed subject matter jurisdiction under N.C. Gen. Stat. \u00a7\u00a7 50A-201 or -203.\nN.C. Gen. Stat. \u00a7 50A-201 provides:\n(a) Except as otherwise provided in G.S. 50A-204, a court of this State has jurisdiction to make an initial child-custody determination only if:\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. 60A-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).\n(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this State.\n(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.\nN.C. Gen. Stat. \u00a7 50A-201 (2013) (emphasis added).\nIn the present case, because the initial child custody determination was made by the Indiana court, N.C. Gen. Stat. \u00a7 50A-201 is inapplicable. See N.R.M., 165 N.C. App. at 298, 598 S.E.2d at 150 (concluding that N.C. Gen. Stat. \u00a7 50A-201 could not confer subject matter jurisdiction upon North Carolina court because initial custody determination had been made in Arkansas).\nThus, the only basis by which the trial court could have conceivably obtained subject matter jurisdiction was through N.C. Gen. Stat. \u00a7 50A-203. N.C. Gen. Stat. \u00a7 50A-203 provides that a court of this State may not modify a child custody determination of a court of another state\nunless a court of this State has jurisdiction to make an initial determination under G.S. 50A-201(a)(l) or G.S. 50A-201(a)(2) and:\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.\nTherefore, either of two events would have had to occur in order for the trial court to have actually acquired subject matter jurisdiction in this action based on N.C. Gen. Stat. \u00a7 50A-203: (1) a determination by the Indiana court that it no longer had exclusive, continuing jurisdiction or that a North Carolina court would be a more convenient forum; or (2) a determination by either court that neither Josh nor Petitioner nor Respondent presently lived in Indiana. N.R.M., 165 N.C. App. at 300-01, 598 S.E.2d at 150-51.\nThe latter prong clearly does not provide subject matter jurisdiction in this case because Respondent continues to reside in Indiana. See In re J.W.S., 194 N.C. App. 439, 448, 669 S.E.2d 850, 856 (2008) (explaining that New York did not lose continuing jurisdiction over custody of child for purposes of N.C. Gen. Stat. \u00a7 50A-203(2) because juvenile\u2019s mother continued to reside there).\nConsequently, the first prong of N.C. Gen. Stat. \u00a7 50A-203 is the only possible basis for the existence of jurisdiction in North Carolina. In its order terminating Respondent\u2019s parental rights, the trial court concluded that \u2014 for purposes of N.C. Gen. Stat. \u00a7 50A-203(1) \u2014 the Indiana court had declined jurisdiction over the custody of Josh by dismissing the motion to intervene filed by Josh\u2019s paternal grandparents. We disagree.\nThe order of the Indiana court dismissing the grandparents\u2019 motion consisted of three paragraphs. The first paragraph identified the motion before the court and the parties present at the hearing. The second and third paragraphs read as follows:\nThe Court having considered the matters before it and after argument finds that Mother\u2019s Motion to Dismiss must be Granted. Pursuant to I.C. \u00a7 31-17-5-4 et seq., a Petition for Grandparent Visitation must be filed in a circuit, superior or probate court of the county in which the child resides for all cases filed pursuant to I.C. \u00a7 31-17-5-l(a)(3). It is undisputed that the minor child resides in Mecklenburg County, North Carolina, not Marion County, Indiana. Therefore, Marion County, Indiana is not the proper venue for this matter.\nIntervenor\u2019s Request for Grandparent Visitation is hereby dismissed without prejudice.\nThe order dismissing the grandparents\u2019 motion to intervene was based upon Indiana\u2019s Grandparent Visitation Act, I.C. 31-17-5-1 et seq., which provides for grandparents to seek visitation rights in certain limited situations. The Indiana Court of Appeals has stated that \u201cthe Grandparent Visitation Act contemplates only occasional, temporary visitation that does not substantially infringe on a parent\u2019s fundamental right to control the upbringing, education, and religious training of their children.\u201d Hoeing v. Williams, 880 N.E.2d 1217, 1221 (Ind. Ct. App. 2008) (citation and quotation marks omitted). North Carolina does not have any statutory provision for an independent action for grandparents\u2019 visitation analogous to Indiana\u2019s statute, although a grandparent can be granted visitation in the context of a custody case between the parents in some circumstances. See N.C. Gen. Stat. \u00a7 50-13.2(bl).\nIt is clear that the order dismissing the grandparents\u2019 motion to intervene and request for grandparent visitation was based solely upon Indiana\u2019s venue statute, which requires that an action for grandparent visitation be filed in the county in which the child resides. See I.C. \u00a7 31-17-5-4 (\u201cA grandparent seeking visitation rights shall file a petition requesting reasonable visitation rights ... in a circuit, superior or probate court of the county in which the child resides \u2014\u201d). Specifically, the Indiana court concluded that \u201cMarion County, Indiana is not the proper venue for this matter.\u201d Venue is designated by statute, and \u201c[i]t has been well settled in this State for many years that venue is not jurisdictional ....\u201d Shaw v. Stiles, 13 N.C. App. 173, 176, 185 S.E.2d 268, 269 (1971). In addition, the Indiana order simply dismissed the grandparents\u2019 motion \u201cwithout prejudice,\u201d without any mention of relinquishing jurisdiction of the custody matter.\nAccordingly, we hold that the trial court erred in concluding that the Indiana court relinquished jurisdiction to North Carolina\u2019s courts by entering the order in the Indiana Action dismissing the paternal grandparents\u2019 motion for visitation rights. Nothing in the record evidences a determination by the Indiana court that it no longer had exclusive, continuing jurisdiction over Josh\u2019s case or that a North Carolina court would be a more convenient forum. Because the trial court lacked subject matter jurisdiction, we vacate the trial court\u2019s order terminating Respondent\u2019s parental rights and remand for entry of an order dismissing the petition. See In re J.A.P., _ N.C. App. _, _, 721 S.E.2d 253, 254-55 (2012) (vacating termination of parental rights order and remanding for entry of order dismissing petition in light of absence of evidence that New Jersey had determined that it \u201cno longer ha[d] exclusive, continuing jurisdiction or that a court of this State [North Carolina] would be a more convenient forum\u201d (internal quotation marks omitted)).\nConclusion\nFor the reasons stated above, we vacate the trial court\u2019s order terminating Respondent\u2019s parental rights and remand for entry of an order dismissing the petition.\nVACATED AND REMANDED.\nJudges CALABRIA and STROUD concur.\n. The pseudonym \u201cJosh\u201d is used throughout this opinion to protect the privacy of the minor child and for ease of reading. N.C.R. App. R 3.1(b).\n. Because we hold that the trial court did not possess subject matter jurisdiction, we need not address Respondent\u2019s argument that the court also lacked personal jurisdiction over him.", "type": "majority", "author": "DAVIS, Judge." } ], "attorneys": [ "Horack, Talley, Pharr & Lowndes, PA, by Elizabeth Johnstone James, for petitioner-appellee.", "Rebekah W. Davis for respondent-appellant." ], "corrections": "", "head_matter": "IN RE J.D., a Minor Child\nNo. COA14-145\nFiled 17 June 2014\nTermination of Parental Rights\u2014subject matter jurisdiction \u2014venue\nThe trial court lacked subject matter jurisdiction to terminate respondent\u2019s parental rights to his child. The trial court erred in concluding that the Indiana court relinquished jurisdiction to North Carolina\u2019s courts by entering an order in Indiana dismissing the paternal grandparents\u2019 motion for visitation rights. Furthermore, nothing in the record evidenced a determination by the Indiana court that it no longer had exclusive, continuing jurisdiction over the minor child\u2019s case or that a North Carolina court would be a more convenient forum.\nAppeal by respondent from order entered 25 November 2013 by Judge Elizabeth T. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 29 May 2014.\nHorack, Talley, Pharr & Lowndes, PA, by Elizabeth Johnstone James, for petitioner-appellee.\nRebekah W. Davis for respondent-appellant." }, "file_name": "0342-01", "first_page_order": 352, "last_page_order": 359 }