In re M.W.

1

2023-NCCOA-11

IN THE MATTER OF: M.W. and M.W.

No. COA22-21

Court of Appeals of North Carolina

January 17, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 21 November 2022.

Appeal by respondent-mother from orders entered 27 April 2021 and 21 September 2021 by Judge Cheri Siler-Mack in Cumberland County District Court Nos. 20 JA 252-53.

Patrick A. Kuchyt for petitioner-appellee Cumberland County Department of Social Services.

Elon University Guardian ad Litem Appellate Advocacy Clinic, by Interim Dean Alan D. Woodlief, Jr., for guardian ad litem.

Parent Defender Wendy C. Sotolongo, by Deputy Parent Defender Annick Lenoir-Peek, for respondent-appellant mother.

Before a panel consisting of Judges ZACHARY, MURPHY, and ARROWOOD.

PER CURIAM.

¶ 1 Respondent, mother of M.W. ("Mila")^[1] and M.W ("Myles"), appeals from orders adjudicating Myles as an abused juvenile, adjudicating both Mila and Myles as neglected juveniles, and continuing custody of the children with the Cumberland County Department of Social Services ("DSS"). We affirm the trial court's adjudication of the children however, because North Carolina is not the children's home state, we reverse the adjudication order in part, vacate the disposition order, and remand for further proceedings.

I. Background

¶ 2 Prior to the initiation of the juvenile action, Mila and Myles resided with respondent in Pennsylvania. In June 2020, respondent sent Mila and Myles to visit friends and family in North and South Carolina. On 12 August 2020, both children were staying in the home of Ms. M. and her live-in boyfriend, Mr. T., in Fayetteville, North Carolina, preparing to return home to Pennsylvania. That day, Mila observed Mr. T. walk Myles into a bedroom and close the door. Mila heard banging and crying coming from inside the room before she saw Mr. T. carry out Myles, who was unconscious. When Myles began suffering seizures, Mr. T. placed Myles in a bathtub. At some point, Mila called respondent, who instructed "the adults" to call 911. When paramedics arrived, they observed bruising on Myles' head and chest. Due to the severity of his injuries, Myles was transferred from Cape Fear Valley Hospital to the UNC Hospital Pediatric Intensive Care Unit. Physicians diagnosed Myles as suffering from injuries consistent with non-accidental trauma, including a small bleed on his brain.

¶ 3 On 13 August 2020, DSS filed a juvenile petition alleging that Mila and Myles were abused and neglected juveniles and obtained nonsecure custody of the children. The trial court held nine subsequent hearings continuing nonsecure custody of the children based on the court's temporary, emergency jurisdiction under N.C. Gen. Stat. § 50A-204.

¶ 4 Following a hearing on 30 March 2021, the trial court entered an adjudication and temporary disposition order on 27 April 2021. Based on respondent's stipulation to the above facts, the court adjudicated Mila as neglected, and Myles as abused and neglected. The matter proceeded to disposition, and on 21 September 2021 the trial court entered a disposition order, in which it ordered that the children's legal and physical custody remain with DSS. In both the adjudication and disposition orders, the court concluded that North Carolina was the children's home state, as defined by N.C. Gen. Stat. § 50A-102(7), and that it had subject matter jurisdiction. Respondent timely appealed both orders.

II. Adjudication

¶ 5 Respondent first argues that the trial court lacked jurisdiction to adjudicate the children as neglected and abused because they were residents of Pennsylvania, over whom a North Carolina court could only exercise temporary emergency jurisdiction, which did not support the entry of an adjudication order. Alternatively, she argues that Ms. M. and Mr. T. did not meet the definition of "caretakers" under N.C. Gen. Stat. § 7B-101(3), and thus the trial court could not adjudicate Mila and Myles as abused or neglected.

A. Subject Matter Jurisdiction

¶ 6 "Subject matter jurisdiction is the threshold requirement for a court to hear and adjudicate a controversy brought before it." In re J.W.S., 194 N.C.App. 439, 446, 669 S.E.2d 850, 854 (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." In re H.L.A.D., 184 N.C.App. 381, 385, 646 S.E.2d 425, 429 (2007), aff'd per curiam, 362 N.C. 170, 655 S.E.2d 712 (2008). We review the question of whether a court has jurisdiction de novo. In re T.N.G., 244 N.C.App. 398, 402, 781 S.E.2d 93, 97 (2015). In making our determination, "we are not restricted to consideration of the jurisdictional basis cited by the trial court." Id.

¶ 7 Under our Juvenile Code, a district court "has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent." N.C. Gen. Stat. § 7B-200(a) (2021). "However, the jurisdictional requirements of the Uniform Child Custody Jurisdiction Enforcement Act ('UCCJEA') . . . must also be satisfied for a court to have authority to adjudicate petitions filed pursuant to our juvenile code." In re J.H., 244 N.C.App. 255, 259-60, 780 S.E.2d 228, 233 (2015) (citation omitted).

¶ 8 Under the UCCJEA, a court of this State has jurisdiction to make an initial child-custody determination only if:

(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;

(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: a. The child and the child's 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 b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;

(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

(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).

N.C. Gen. Stat. § 50A-201(a) (2021).

¶ 9 The trial court found that the children were "resid[ing] in, or were found in" North Carolina at the time DSS filed its petition, and concluded that at the time of the adjudication hearing and the disposition hearings, North Carolina was the children's home state. The court's conclusion was erroneous.

¶ 10 A child's "home state" is defined as "the state in which [the] 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[,]" including a proceeding on abuse and neglect allegations. N.C. Gen. Stat. § 50A-102(4), (7) (2021). Should a proceeding commence, it does so with "the filing of the first pleading" in the proceeding. Id. § 102(5); see, e.g., T.N.G., 244 N.C.App. at 403, 781 S.E.2d at 97.

¶ 11 Here, the child custody proceeding commenced on 13 August 2020, when DSS filed a petition alleging that the children were abused and neglected. The trial court found that Myles had been in North Carolina "since June 2020[,]" a period of, at most, ten weeks. The court's findings did not specify how long Mila had been in North Carolina, but indicated that she spent time in South Carolina while Myles was in North Carolina. The record provides no indication that either child was in North Carolina for six consecutive months preceding the filing of the juvenile petition. Therefore, North Carolina did not qualify as the home state at the commencement of the adjudication proceeding, and the trial court did not have jurisdiction to exercise initial child-custody jurisdiction based on home state status pursuant to N.C. Gen. Stat. § 50A-201(a)(1).

¶ 12 Additionally, the trial court's findings are insufficient to establish initial child custody jurisdiction under the remaining three prongs of subsection (a). See Gerhauser v. Van Bourgondien, 238 N.C.App. 275, 283, 767 S.E.2d 378, 384 (2014) (considering whether "there was any ground for the exercise of subject matter jurisdiction under the UCCJEA" regardless of the trial court's stated ground); Foley v. Foley, 156 N.C.App. 409, 412, 576 S.E.2d 383, 385 (2003) (reviewing the record for grounds to establish subject matter jurisdiction after the trial court's stated basis was determined erroneous). It was uncontested that the children resided in Pennsylvania, and we note that Pennsylvania has adopted the UCCJEA. See 23 Pa. Cons. Stat. § 5401 (2021).

¶ 13 In accordance with its obligation under N.C. Gen. Stat § 50A-209(a), DSS reported that the children had resided with respondent in Pennsylvania over the preceding five years or since birth, and that they both left Pennsylvania in June 2020 to visit family and friends. See N.C. Gen. Stat. § 50A-102(7) (allowing "[a] period of temporary absence" from a state to be counted toward the six-month period required to establish home...