Opinion
No. 07-589.
Filed February 5, 2008.
Wake County No. 05 JT 650.
Appeal by respondent-mother from judgment entered 13 February 2007 by Judge Monica Bousman in District Court, Wake County. Heard in the Court of Appeals 13 November 2007.
Corinne G. Russell, for petitioner-appellee Wake County Human Services. Womble Carlyle Sandridge Rice, by Andrew L. Fitzgerald, for Guardian ad Litem.
Peter Wood, for respondent-appellant mother.
A court may not modify a child-custody determination made by a court of another state unless it "has jurisdiction to make an initial determination" and "the court of the other state determines it no longer has exclusive, continuing jurisdiction." Here, Respondent-mother argues that the trial court lacked subject matter jurisdiction over a termination of parental rights hearing because South Carolina had exclusive, continuing jurisdiction. Because the record contains orders demonstrating South Carolina's intent to terminate its jurisdiction over the children, we affirm. On 12 October 2005, JEJ, BMJ, and TLJ were placed in the custody of Wake County Human Services. The children currently reside in Wake County. The children's parents were married and are now separated. The father's current address is unknown and he did not appear at the termination of parental rights hearing.
N.C. Gen. Stat. § 50A-203 (2005).
The children have been the subject of numerous investigations by children's protective services dating from 1994 in various counties in North Carolina and South Carolina. All were placed in foster care in 2001, Respondent-mother placed two of the children in a voluntary mental health residential home in 2005, and the third child has been in foster care three times. The recurring conditions that have led to social services interventions include domestic violence between the parents, alcohol and drug abuse by the parents, unstable and unsafe living conditions, improper supervision, physical abuse of the children, dirty living conditions, and sexual abuse of one of the children.
On 30 November 2005, the children were adjudicated neglected and dependent. The trial court ordered that for reunification to occur, Respondent-mother's plan would include a substance abuse assessment, random drug testing, mental health treatment, maintaining employment, parenting classes, and supervised visitation. After the three-month review hearing, on 16 March 2006, the court noted Respondent-mother's progress and concluded that the best plan of care was reunification. However, on 15 September 2006, after the permanency planning hearing, the court noted that Respondent-mother: "continues to display in appropriate behaviors," had not obtained stable housing or employment, had not addressed her substance abuse issues, and was "unable to provide for the children emotionally or meet their needs." The court concluded that the best plan for the children was adoption and ordered that reunification efforts be ceased.
On 13 December 2006, Wake County Human Services moved to terminate the parental rights of the children's father and Respondent-mother. The hearing to terminate parental rights began on 24 January 2007. During the final arguments following the grounds phase of the termination hearing, the attorney for the Guardian ad Litem asked the court to determine whether the state of South Carolina still had jurisdiction over the children based on previous custody actions. In light of the possible jurisdiction issue, the court decided to move on to the best interest phase, but "reserve[d] ruling on anything until we can get a copy of South Carolina orders or the appropriate phone calls can be made to the South Carolina judicial authorities." The court also indicated that it wanted the attorneys present for the telephone call to the South Carolina courts.
The termination hearing reconvened on 6 February 2007. The court recited for the record its findings resulting from the phone calls to South Carolina judicial authorities. The trial court stated that although South Carolina had jurisdiction over all three children in 2001 and over TLJ in 2005, South Carolina courts had ordered the cases closed on 4 December 2001 and 14 April 2005 respectively, and had no authority to modify those orders. The trial court concluded that North Carolina had jurisdiction over the children and terminated the parental rights of the father and Respondent-mother by order entered 13 February 2007.
On appeal, Respondent-mother contends that the trial court (I) lacked subject matter jurisdiction over the proceeding; (II) improperly questioned a witness outside the presence of the parties and acted as a witness by testifying in court; and (III) erroneously terminated her parental rights.
I.
Respondent-mother first argues that the trial court erred by conducting the termination of parental rights hearing because it lacked subject matter jurisdiction over the three children. We disagree.
In reviewing a question of subject matter jurisdiction, our standard of review is de novo. Raleigh Rescue Mission, Inc. v. Bd. of Adjust. of Raleigh, 153 N.C. App. 737, 740, 571 S.E.2d 588, 590 (2002). "Subject matter jurisdiction is conferred upon the courts by either the North Carolina Constitution or by statute." Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987). Section 7B-1101 of our General Statutes addresses jurisdiction in a termination of parental rights proceeding and provides that:
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 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. 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.
N.C. Gen. Stat. § 7B-1101 (2005).
Section 50A-203 of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) applies in cases where a child has been involved in a custody proceeding in another state. N.C. Gen. Stat. § 50A-203 (2005). Section 50A-203 states:
[A] court of this State may not modify a child-custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under G.S. 50A-201(a)(1) or G.S. 50A-201(a)(2) and:
(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
(2) A court of this State or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
Id.
For a North Carolina court to exercise jurisdiction under N.C. Gen. Stat. § 50A-203, two conditions must be fulfilled. First, North Carolina must have "jurisdiction to make an initial determination." Id. A state has jurisdiction to make an initial child-custody determination only if it is "the home state of the child on the date of the commencement of the proceeding," or "[a] court of another state does not have jurisdiction." Id. § 50A-201(a). "Home 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." Id. § 50A-102. Second, the court of the other state must determine that "it no longer has exclusive, continuing jurisdiction. . . ." Id. § 50A-203(1).
In this case, the termination of parental rights proceeding commenced on 13 December 2006. It is undisputed that North Carolina was the children's home state on that date, thus satisfying the first condition of section 50A-203. However, Respondent-mother argues that the second condition of section 50A-203 was not satisfied because South Carolina had exclusive, continuing jurisdiction over the three children. We disagree.
The record shows that the last action in South Carolina involving the three children was addressed by an Order on Judicial Review filed on 4 December 2001. In that order, the South Carolina trial court noted that "the children were returned to the parents in August and the parents have continued to work on the treatment plan." The court then ordered "[t]hat this case be closed." The last South Carolina action involving TLJ was addressed by an order filed 14 April 2005. In that order, the trial court noted that since the removal of TLJ from the home, her father had been incarcerated and Respondent-mother returned to North Carolina. The trial court ordered that TLJ be returned to the custody of her mother, that Wake County Department of Social Services continue to monitor the case, and that the South Carolina Department of Social Services close the case, without further order of the court, upon the receipt of the case by Wake County, North Carolina. Accordingly, the orders in the record demonstrate South Carolina's intent to terminate its jurisdiction over the children, particularly the 14 April 2005 order in which the trial court ordered the Wake County Department of Social Services to monitor the case.
TLJ is identified in the 14 April 2005 order as "TJ."
In addition to the orders in the record, the trial court further confirmed that South Carolina no longer retained jurisdiction by calling the South Carolina courts, pursuant to the UCCJEA, regarding the 4 December 2001 and 14 April 2005 orders. The record and the trial court's actions pursuant to the UCCJEA confirm that South Carolina did not have exclusive, continuing jurisdiction over the children. Accordingly, we cannot conclude that the trial court erred in finding that North Carolina had subject matter jurisdiction.
Respondent-mother also argues that the trial court erred by conducting the adjudication hearing when the South Carolina orders were not attached to the petition, in violation of section 7B-1104(5) of our General Statutes. N.C. Gen. Stat. § 7B-1104(5) (2005) (stating that "[t]he name and address of any person or agency to whom custody of the juvenile has been given by a court . . . and a copy of the custody order shall be attached to the petition or motion"). We reject Respondent-mother's argument, as the South Carolina orders were not custody orders and Respondent-mother did not attempt to show prejudice. See In re H.L.A.D., ________ N.C. App. ___, ___, 646 S.E.2d 425, 433 (2007) (overruling the argument that the court lacked subject matter jurisdiction where respondent was unable to demonstrate any prejudice arising from petitioners' failure to attach the custody order to the petition).
II.
Respondent-mother next argues that by making telephone calls to South Carolina court officials, the trial court erred by questioning a witness outside the presence of the parties and acting as a witness by testifying in court. We disagree.
The UCCJEA provides that "[a] court of this State may communicate with a court in another state concerning a proceeding arising under this Article." N.C. Gen. Stat. § 50A-110(a) (2005). The UCCJEA also allows the parties to participate in the communication, and if they are unable to participate, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made. Id. § 50A-110(b). Additionally, the UCCJEA requires a record of the communication be made. Id. § 50A-110(d).
Here, the trial court discussed with the parties the need to contact South Carolina judicial authorities before ruling on the case. The trial court also stated that it wanted all attorneys present for the telephone calls. When the court reconvened on 6 February 2007, it began by stating for the record the information obtained by calling the South Carolina courts. Regarding the 4 December 2001 order, the court stated that Judge Bob Armstrong in Kershaw County, South Carolina, found that "South Carolina had no authorization to modify these orders," and therefore "did not have exclusive continuing jurisdiction pursuant to the UCCJEA." In regards to the 14 April 2005 order, the trial court stated that Judge Henry Woods of York County, South Carolina, determined that "South Carolina cannot modify that order . . . [and] no longer had exclusive continuing jurisdiction."
After the trial judge summarized her discussions with the South Carolina judges for the record, the parties neither objected nor presented evidence to the contrary. Because the trial court acted properly pursuant to the UCCJEA, we hold that it did not commit error by contacting South Carolina officials.
III.
Respondent-mother also argues that the trial court erred by terminating her parental rights.
"Once the judge determines grounds for termination exist, the case enters the dispositional stage. At this stage, the court makes a discretionary determination whether termination of parental rights is in the children's best interest." In re Roberson, 97 N.C. App. 277, 282, 387 S.E.2d 668, 670-71 (1990). "We review the trial court's decision to terminate parental rights for abuse of discretion." In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). Where no objection is made to a finding of fact, the finding is presumed to be supported by competent evidence and is binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Here, Respondent-mother did not object to the findings of fact regarding the grounds for the trial court's termination of her parental rights. Additionally, she did not object to the following findings of fact:13. That the circumstances which caused the children to be placed in foster care on October 12, 2005, were:
a. That Johnson County DSS had reports on this family dating back to 1997 which included drug use by the parents. The allegations concern injurious environment by the parents, inappropriate discipline by the father, substance abuse by the mother and domestic violence between the parents.
17. That the mother has not paid any child support despite having had employment.
19. That the mother has had sporadic housing. The mother has lived in various residential places, including but not limited to, a trailer park, substance abuse treatment facilities, and the current place which she has resided since ? November of 2006. The mother is currently at risk of losing her housing, in that she has not paid her rent in approximately one month. The mother intends to be "caught up" on her rent upon receiving her next check from her employer.
20. That the mother has not successfully completed a substance abuse treatment program. . . .
21. That the mother refused to get a hair sample test on January 11, 2007 and January 16, 2007.
24. That the mother continues to exercise poor judgment as it relates to her parenting. The mother is known to show favoritism to the child BMJ by giving her money and cell phones . . . despite being told by the social worker and the therapist that she was not to give anything to the child.
25. That the mother attends monthly team meetings, but she is very argumentative with the therapist as well as with the social worker. At times, she verbally attacks individuals in the meeting. . . .
Because Respondent-mother did not object to these findings, they are binding on appeal. Id. The unchallenged findings of fact demonstrate that Respondent-mother failed to correct many of the circumstances that led to her children's removal.
Although Respondent-mother admits that she "was not a good mother," she argues that because "the children were not adoptable," her parental rights should not have been terminated. We are not persuaded.
In determining whether the termination of parental rights is in the juvenile's best interest, a court shall consider the following: the juvenile's age, the likelihood of adoption, whether the termination of parental rights will aid in the accomplishment of the permanent plan, the bond between the juvenile and the parent, the quality of the relationship between the juvenile and the proposed adoptive placement, and any relevant consideration. N.C. Gen. Stat. § 7B-1110(a) (2005).
Here, the trial court adequately considered the factors required by section 7B-1110(a). Although the trial court recognized that because the children were 10, 12, and 15, it may be difficult to find homes for them, it also found in unchallenged findings of fact that TLJ had blossomed in her current foster placement, JEJ was adamant that his parents cannot provide for him, and Wake County Human Services will work with BMJ to stabilize her behaviors and prepare her for adoption. Because Respondent-mother failed to correct many of the circumstances that led to her children's removal and the trial court adequately considered the required factors, we cannot conclude that the trial court abused its discretion by terminating Respondent-mother's parental rights.
Affirmed.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).