Opinion
NO. COA11-83
08-16-2011
In re: J.S., A Minor Juvenile.
No brief filed on behalf of petitioner-appellee father. David A. Perez for respondent-appellant mother.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Moore County No. 10 JT 25
Appeal by respondent from order entered 19 November 2010 by Judge Scott C. Etheridge in Moore County District Court. Heard in the Court of Appeals 19 July 2011.
No brief filed on behalf of petitioner-appellee father.
David A. Perez for respondent-appellant mother.
HUNTER, Robert C., Judge.
Respondent-mother appeals from the trial court's order terminating her parental rights to her son, J.S. After careful review, we affirm.
Facts
Petitioner-father and respondent are the biological parents of J.S., who was born in 2002. At the time of J.S.'s birth, the couple lived in New York. The couple was never married and separated approximately one year after J.S. was born. Petitioner initiated a custody action in New York state court on 8 March 2005, and the court entered a temporary order of visitation, giving respondent weekly visitation with J.S.
In August 2005, petitioner and J.S. moved from New York to Moore County, North Carolina, where they lived with petitioner's mother until April 2006. Respondent remained in New York. On 27 October 2005, petitioner filed a petition for physical custody in the New York action. On 20 December 2005, the New York court entered a modified custody order granting the parents joint custody, but giving physical custody of J.S. to petitioner. The order gave respondent "liberal visitation" and directed that "all further proceedings be held in North Carolina."
On 10 March 2010, petitioner filed a petition to terminate respondent's parental rights ("TPR") to J.S., alleging three grounds for termination: neglect; willful abandonment; and, willful failure without justification to pay portion of cost of care for juvenile. The trial court conducted a TPR hearing on 21 October 2010. At the time of the hearing, respondent was living in Staten Island as a resident of Amethyst House, a community program facility for women recovering from drugs and alcohol, but appeared by telephone. In an order entered 19 November 2010, the trial court found the existence of willful abandonment as a ground for terminating respondent's parental rights. In the dispositional portion of the order, the court found that termination of respondent's parental rights was in the best interest of the juvenile. Respondent timely appealed to this Court.
I
In her first argument on appeal, respondent challenges the trial court's subject matter jurisdiction to adjudicate the TPR petition. "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." In re H.L.A.D., 184 N.C. App. 381, 385, 646 S.E.2d 425, 429 (2007) (internal quotation marks and citation omitted), aff'd per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). "Subject 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." Id. Our Juvenile Code confers district courts with "exclusive original jurisdiction" over TPR actions, provided that the court has jurisdiction to make a child custody determination under the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified at N.C. Gen. Stat. §§ 50A-101 through -317 (2009). N.C. Gen. Stat. § 7B-1101 (2009). Section 50A-203 of the UCCJEA applies to cases, such as this one, where a juvenile has been involved in a custody determination in another State:
Under the UCCJEA, a North Carolina court may not modify a child-custody determination made by another state unless two requirements are satisfied: (1) the North Carolina court "has jurisdiction to make an initial determination under G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2)"; and (2)(a) a court of the issuing state determines either that it "no longer has exclusive, continuing jurisdiction" under UCCJEA § 202 or that the North Carolina court would be a "more convenient forum" under UCCJEA § 207; or (b) a North Carolina court or a court of the issuing state "determines that the child, the child's parents, and any person acting as a parent do not presently reside in the [issuing] state."In re K.U.-S.G., __ N.C. App. __, __, 702 S.E.2d 103, 106 (2010) (quoting N.C. Gen. Stat. § 50A-203); see also In re T.J.D.W., 182 N.C. App. 394, 396-97, 642 S.E.2d 471, 473 (explaining that only when UCCJEA § 203's "two conditions are fulfilled" may a North Carolina court modify another state's custody determination), disc. review denied in part, 361 N.C. 568, 651 S.E.2d 562, aff'd per curiam in part, 362 N.C. 84, 653 S.E.2d 143 (2007).
With respect to section 50A-203's first prong, a state has jurisdiction to make an initial custody determination if it "is the home state of the child on the date of the commencement of the proceeding . . . ." N.C. Gen. Stat. § 50A-201(a)(1). A child's "[h]ome state" is defined as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child-custody proceeding." N.C. Gen. Stat. § 50A-102(7). It is undisputed in this case that North Carolina is the "home state" of J.S., as the juvenile and petitioner, his father, have been living in North Carolina since 2005. The first prong of section 50A-203 is thus satisfied. See In re N.R.M., 165 N.C. App. 294, 299, 598 S.E.2d 147, 150 (2004) ("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 [of § 50A-203] was satisfied.").
"The UCCJEA provides three options for satisfying its second requirement for jurisdiction to modify another state's custody determination." K.U.-S.G., __ N.C. App. at __, 702 S.E.2d at 107. Pertinent here, "a North Carolina court may enter an order modifying another state's custody determination if a court of the issuing state concludes that it no longer has exclusive, continuing jurisdiction under the UCCJEA." Id. at __ , 702 S.E.2d at 107; N.C. Gen. Stat. § 50A-203(1). The court of the issuing state loses "exclusive, continuing jurisdiction" under the UCCJEA if:
(1) [it] determines that . . . the child, the child's parents, and any person acting as a parent [no longer] have a significant connection with th[at] State and that substantial evidence is no longer available in th[at] State concerning the child's care, protection, training, and personal relationships; orN.C. Gen. Stat. § 50A-202(a). The official comment to N.C. Gen. Stat. § 50A-202(a)(1) "clarifies that 'the 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.'" N.R.M., 165 N.C. App. at 300, 598 S.E.2d at 151 (quoting N.C. Gen. Stat. § 50A-202 official cmt.).
(2) [it] or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in th[e] [issuing] State.
In Williams v. Walker, 185 N.C. App. 393, 648 S.E.2d 536 (2007), this Court held that an Illinois state court had relinquished jurisdiction after granting leave to transfer a motion to North Carolina and ordering: "This matter is taken off call." Id. at 403, 648 S.E.2d at 543. In Williams, we determined that this order was sufficient for the North Carolina court to find that the Illinois court had "relinquish[ed] exclusive jurisdiction over the custody of the minor child." Id. Consequently, the Williams Court concluded that "the North Carolina court possessed exclusive, continuous jurisdiction over the matter . . . ." Id.
Similarly, here, the record shows that after moving to North Carolina with J.S., petitioner filed a petition to modify custody in New York state court. As a result of that action, the New York trial court granted petitioner physical custody of J.S. and ordered that "all further proceedings be held in North Carolina." Although the New York trial court did not expressly use the term "jurisdiction" in its order, we find that the order manifests the New York court's intent to relinquish jurisdiction. The language of the order shows that the New York court approved of North Carolina courts handling "all" future issues in the matter, indicating that the New York court intended to divest itself of "further" involvement. As in Williams, by ordering that all further proceedings were to be held in a different state, the New York court essentially took the matter "off call." Id. The requirements of N.C. Gen. Stat. § 50A-203 were, consequently, satisfied and the North Carolina trial court properly determined that it had subject matter jurisdiction over this case.
II
In her second argument on appeal, respondent challenges the trial court's determination that willful abandonment existed as a ground for termination. Pursuant to N.C. Gen. Stat. § 7B-1111(a) (2009), a trial court may terminate parental rights upon a finding of one of the several grounds enumerated in the statute. On appeal, we review the trial court's order to determine "whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur . . . ." In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996).
N.C. Gen. Stat. § 7B-1111 provides that the trial court may terminate a parent's rights upon a finding that "[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion . . . ." This Court has defined abandonment as "any willful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982) (internal quotation marks omitted). "The word 'willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation." In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986).
Because petitioner filed his petition to terminate respondent's parental rights on 10 March 2010, the relevant time period for considering whether respondent "abandoned" J.S. is from 10 September 2009 through 10 March 2010. The trial court made the following findings of fact in support of this ground:
26. After moving to Moore County North Carolina in 2005 and obtaining custody of the minor child until the filing of the Petition herein, the Respondent has known how to contact the Petitioner and the minor child. Testimony revealed that the Respondent called the child a few times during 2006, sent gifts by and through her father (the child's maternal grandfather) to the minor child as well as a few cards and letters during 2006 but that since early 2007 until the filing of the Petition, the Respondent has not had any contact with the minor child. Furthermore, the Petitioner testified that the Respondent has not seen or otherwise required to have physical contact with the minor child from 2005 until the filing of the Petition.Of these findings of fact, respondent challenges findings 26, 35, 36, and 37. Therefore, we will address all of these arguments together. In finding 26, respondent challenges the statement that "the Respondent has known how to contact the Petitioner and the minor child" after petitioner moved to Moore County in 2005. In finding of fact 35, respondent argues that the following statements are not supported by the evidence: (1) "since in or about October 2005, the Respondent has not seen or otherwise requested to see the minor child" and (2) "the Respondent stopped sending cards and letters to the child from early 2007 until after the Petition had been filed against her." She also challenges several statements in finding 35 in which the court found that petitioner lived with his mother after moving to North Carolina, that respondent contacted J.S. while petitioner was living with his mother, and that petitioner's mother lived at the same address. Finally, in finding of fact 36, respondent argues that the statement "the Respondent has had the means and ability to have contact with the minor child" is not supported by the evidence. Respondent argues that the above-listed findings are not supported by the evidence because respondent did not know petitioner's address or telephone number after petitioner moved out of his mother's house.
27. Since on or before the entry of the December 20, 2005 Order, the minor child has at all times resided with the Petitioner.
28. That [] the petitioner's mother . . . has resided at the same residence for the past seven years and her phone number has remained unchanged. Since the filing of the Petition, the Respondent has sent two cards and one letter to the minor child at the home of [petitioner's mother].
. . . .
35. The Court finds as a fact that the Respondent abandoned the minor child pursuant to [N.C. Gen. Stat. § 7B-
1111(a)(7)]. More specifically, since in or about October, 2005, the Respondent has not seen or otherwise requested to see the minor child; telephone or other contact ceased during the 2006 calendar year and that the Respondent stopped sending cards and letters to the child from early 2007 until after the Petition had been filed against her. In addition, the Court finds that the Petitioner lived with his mother [] after moving to North Carolina and that the Respondent has contacted the minor child as described above, by utilizing the phone number and address of [petitioner's mother]. That as of the hearing of this matter, [petitioner's mother] continues to reside at the same address.
36. At all times relevant hereto, the Respondent has had the means and ability to have contact with the minor child and to provide the child with the natural love, affection, interaction and emotional support that the child needs from a parent, but she has failed to do so.
37. The Court finds by clear, cogent and convincing evidence that the Respondent has inexplicably turned her back on the child. The Respondent has shown a complete lack of any parental concern for her child. The Court finds by clear, cogent and convincing evidence that the Respondent's lack of emotional support and physical contact with her own child is unconscionable and, therefore, finds as a matter of law that grounds exist to terminate her parental rights.
We disagree with respondent's contentions. While petitioner was living with his mother, respondent sent J.S. cards and letters and therefore had the family's contact information. Respondent also called J.S. on the telephone a few times in 2006. However, she had not visited him in person since 2005; nor has she requested visitation with J.S. since the move to North Carolina. Respondent's limited contact with J.S. eventually stopped in 2006 or 2007. Regardless of whether petitioner moved out, it was respondent who stopped contacting J.S. She did send J.S. a few letters and cards to his grandmother's house in 2010, but did so only after the TPR petition was filed. Furthermore, respondent's resumed contact in 2010 shows that she indeed knew how to contact petitioner's mother and, by extension, petitioner or J.S. Therefore, we conclude that these findings of fact are supported by clear, cogent, and convincing evidence.
Next, respondent challenges finding of fact 37. She contends that the evidence does not show that she "turned her back on her children" or had a "complete lack of any parental concern for her child." While some of the language in this finding might be overreaching, we cannot say that the finding is in error. The record establishes that respondent has not seen J.S. since 2005 and had little contact with J.S. in the three years preceding the filing of the petition to terminate her parental rights. Although petitioner moved out of his mother's house in 2006, the evidence demonstrates that respondent stopped making any effort around the same time. Therefore, we conclude that clear, cogent, and convincing evidence supports finding 37.
Respondent further claims that several findings are in error or do not support the conclusions of law because her actions we not willful. She claims that her lack of contact with J.S. was not deliberate and instead resulted from alienation by petitioner. However, petitioner plainly admitted that he did not attempt to contact respondent or give her his new contact information. Therefore, we presume that the trial court, as finder of fact, weighed this evidence in making the findings of fact detailed in the order. And, it was within the trial court's discretion to conclude that this evidence did not negate the evidence establishing willful abandonment during the relevant time period.
Respondent also contends that her father had "vicarious" contact with J.S. and that her father's contact with J.S. should be imputed to her. She further argues that petitioner cut off contact between J.S. and respondent's father, making any effort to contact J.S. futile. We reject respondent's argument. Her father's limited contact with the juvenile does not exempt respondent from her parental obligations. Therefore, we find respondent's father's contact with J.S. does not negate the conclusion that she willfully abandoned her child.
We conclude that the findings of fact are supported by clear, cogent, and convincing evidence. The trial court's findings of fact demonstrate that respondent had no contact with J.S. during the relevant time period, despite having the ability to maintain some level of contact with her son. See In re M.D., __ N.C. App. __, __, 682 S.E.2d 780, 785 (2009) (holding that a father had willfully abandoned his children because he had not visited, spoken to, or sent any cards or gifts to them for several years despite having the ability to do so). Therefore, we conclude that the findings of fact support the trial court's conclusion that respondent willfully abandoned J.S.
Lastly, respondent challenges finding of fact 39, as well as the first sentence in finding 35, on the grounds that these two findings are actually conclusions of law. "A 'conclusion of law' is the court's statement of the law which is determinative of the matter at issue between the parties." In re Hughes, 74 N.C. App. 751, 759-60, 330 S.E.2d 213, 219 (1985). As both findings state that respondent willfully abandoned the juvenile, we agree that these findings are determinative of the issue between the parties and therefore are conclusions of law. However, we are permitted to consider an improperly classified finding of fact with challenged conclusions of law. See In re T.H.T., 185 N.C. App. 337, 345, 648 S.E.2d 519, 525 (2007). We have already concluded that the findings of fact support the conclusion that grounds exist to terminate respondent's parental rights based on willful abandonment. Therefore, we also conclude that findings of fact 35 and 39 are supported by the trial court's findings of fact. Accordingly, we affirm the trial court's order terminating respondent's parental rights to J.S.
Affirmed.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).