Opinion
No. COA14–781–2.
02-17-2015
In the Matter of R.D.L.
No brief filed for petitioner-appellee. Richard Croutharmel for father, Respondent-appellant.
No brief filed for petitioner-appellee.
Richard Croutharmel for father, Respondent-appellant.
DILLON, Judge.
Respondent-father appeals from the trial court's order terminating his parental rights to the minor child, Ryan . On 31 December 2014, we filed an opinion holding that the trial court had jurisdiction to consider the petition to terminate Respondent-father's parental rights and affirmed the termination of Respondent-father's parental rights to Ryan based on willful abandonment. Respondent-father filed a petition for rehearing, which we allowed. Upon reexamination, we vacate the trial court's order based on lack of jurisdiction.
A pseudonym.
I. Background
On 9 August 2010, Robeson County Department of Social Services (“DSS”) filed a juvenile petition alleging Ryan was neglected. On that same date, DSS obtained nonsecure custody of Ryan. By order entered 29 October 2010, Ryan was adjudicated neglected. At disposition, the trial court concluded that it was in Ryan's best interest to remain in DSS's custody with placement in a licensed foster home.
The matter came on for a permanency planning hearing on 10 August 2011. The trial court changed the permanent plan to adoption. On 7 October 2011, DSS filed a petition to terminate Respondent-father's and the mother's parental rights. Following a hearing on 14 December 2011, the trial court entered an order on 24 January 2012 terminating the mother's parental rights, but not Respondent-father's.
The case came on for review on 11 January 2012. On 26 January 2012, the trial court entered an order awarding legal guardianship of Ryan to his caretakers, Pamela and Keith (“the Petitioners”). On 26 March 2013, the Petitioners filed in Robeson County District Court a petition to terminate Respondent-father's parental rights. They alleged grounds existed to terminate parental rights on the basis that Respondent-father “willfully abandoned the child for at least six (6) consecutive months immediately preceding the filing of [the] petition” and that Respondent-father “has not paid child support ever.” On 4 March 2014, the trial court entered an order terminating Respondent-father's parental rights. Respondent-father appeals.
Pseudonyms.
II. Analysis
On appeal, Respondent-father argues that the trial court (1) did not have subject matter jurisdiction to terminate his parental rights; (2) erred in concluding that grounds existed to terminate his parental rights based on willful abandonment; and (3) erred in terminating his parental rights based on non-payment of financial support. We find the issue of jurisdiction dispositive.
A. Jurisdiction
Respondent-father argues the trial court lacked subject matter jurisdiction to terminate his parental rights because the petition was filed in Robeson County and Ryan resided in Scotland County, was not found in Robeson County, and was not in the custody of the Robeson County DSS or a Robeson County child-placing agency at the time the petition to terminate parental rights was filed.
“We review issues relating to subject matter jurisdiction de novo.”State v. Oates, 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012). Section 7B–1101, entitled “Jurisdiction” provides:
The 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 legalor actual custody of a county department of social services or licensed child-placing agency in the districtat the time of filing of the petition or motion....
N.C. Gen.Stat. § 7B–1101 (2013) (emphasis added).
Robeson County and Scotland County are in different judicial districts. SeeN.C. Gen.Stat. § 7A–133 (2013). Here, all of the evidence in the record indicates that Ryan resided with petitioners in Scotland County at the time the petition to terminate Respondent-father's parental rights was filed in Robeson County District Court. Moreover, there is no evidence that Ryan was found in Robeson County or in custody with a child-placing agency in Robeson County at the time the petition was filed.
As to DSS custody, attached to the 7 October 2011 petition filed by DSS was a 29 August 2011 permanency planning review order stating that Ryan was “currently in the legal care, custody and control of [the Robeson County DSS] ... pursuant to a nonsecure custody Order entered August 11, 2010.” Also, included in the record is the 9 August 2010 non-secure custody order awarding custody of Ryan to the Robeson County DSS.
However, in the 26 January 2012 order awarding legal guardianship of Ryan to the Petitioners, the trial court also released DSS and the guardian ad Litem“from further responsibility in this proceeding” and waived further review hearings. The trial court further concluded that it was in the best interest of Ryan to change the permanent plan from adoption to guardianship with Petitioners. Even though it did not state that Petitioners had “custody” of Ryan, the trial court concluded that Petitioners “shall have the authority to arrange and sign for any medical, dental, psychiatric, psychological, other health care treatment or evaluation, enrollment in school, making educational decisions, enlisting in the armed forces or marriage that is deemed to be in the best interest of the child [Ryan].”
This conclusion reflects the duties of a guardian in N.C. Gen.Stat. § 7B–600(a) (2013), which states that upon appointment by a trial court, the guardian
shall operate under the supervision of the court[;] ... have the care, custody,and control of the juvenile or may arrange a suitable placement for the juvenile and may represent the juvenile in legal actions before any court [;] ... may consent to certain actions on the part of the juvenile in place of the parent including (i) marriage, (ii) enlisting in the Armed Forces of the United States, and (iii) enrollment in school[;] ... may also consent to any necessary remedial, psychological, medical, or surgical treatment for the juvenile[;] [and this] ... authority of the guardian shall continue until the guardianship is terminated by court order, until the juvenile is emancipated pursuant to Article 35 of Subchapter IV of this Chapter, or until the juvenile reaches the age of majority.
Even though a guardianship is subject to Court review, it cannot be terminated if it was found to be in the best interest of the child and the permanent plan was changed to guardianship unless “(i) the court finds that the relationship between the guardian and the juvenile is no longer in the juvenile's best interest, (ii) the guardian is unfit, (iii) the guardian has neglected a guardian's duties, or (iv) the guardian is unwilling or unable to continue assuming a guardian's duties.” N.C. Gen.Stat. § 7B–600(b). Here, the trial court found that it was in Ryan's best interest and the permanent plan was changed to guardianship with Petitioners.
Here, the 26 January 2012 order removed DSS from custody and granted “custody [,]” see id.,meaning legal custody of Ryan to Petitioners, as it released DSS and the guardian ad Litemfrom responsibility in the case and concluded that it was in Ryan's best interest to change the permanent plan to guardianship. Therefore, at the time the Petitioners filed their petition to terminate Respondent-father's parental rights on 26 March 2013, Ryan was not residing in Robeson County, found in Robeson County, in legal custody of a licensed child-placing agency in Robeson County, or in the legal custody of Robeson County DSS. SeeN.C. Gen.Stat. § 7B–1101.
B. Conclusion
As this case failed to meet the requirements of N.C. Gen.Stat. § 7B–1101, the Robeson County District Court lacked jurisdiction to hear the termination of parental rights petition. Thus, we vacate the order terminating Respondent-father's parental rights.
Respondent-father also raised in the alternative arguments challenging the finding of fact and conclusions of law supporting termination of his parental rights. As we determined that the trial court did not have jurisdiction to enter the order, we need not address these arguments.
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VACATED.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).
Opinion
Appeal by Respondent-father from order entered 4 March 2014 by Judge J. Stanley Carmical in Robeson County District Court. Heard in the Court of Appeals 25 November 2014 and Opinion filed 31 December 2014. Petition for Rehearing allowed 27 January 2015.