In re C.M.B., 266 N.C. App. 448 (2019)
Held:
Reversed and Remanded
- Facts and Timeline
- 2009: Neglect petition filed and child adjudicated neglected in NC
- 2011: permanent plan of guardianship achieved; mother’s attorney relieved; DSS relieved of reunification efforts; child’s GAL discharged; further review hearings waived
- 2014: upon mother’s motion to review, consent order entered addressing mother’s visitation; noted that guardians and child had moved to Tennessee; DSS continued to be relieved of reunification efforts and GAL continued to be discharged.
- Nov. 2017: guardians file motion in TN to register NC custody order and request modification of order to suspend mother’s visitation
- Dec. 2017‒Jan. 2018: mother files 3 pro se motions in NC including that NC invoke jurisdiction under the UCCJEA as the more appropriate forum
- Jan 2018:
- TN order determining TN has jurisdiction because guardians, child, and mother no longer reside in NC and grants the motion to modify limiting mother’s visitation
- Guardians file unverified motion in NC to stay mother’s pending motions or transfer jurisdiction to TN as NC is an inconvenient forum.
- 2018: NC court appoints attorney for mother, continues hearing, and determines it needs to discuss jurisdiction with TN judge; email then sent to guardians’ attorney and court clerk (not to mother and/or her counsel) that NC judge spoke with TN judge and agreed jurisdiction is in TN so no need for hearing; order entered allowing guardians’ stay and “transferring” jurisdiction to TN based on NC being an inconvenient forum. Mother appeals.
- Distinction between 7B and Chapter 50 Proceedings: Although the trial courts, mother, and guardians started treating this case as a Ch. 50 custody proceeding, it is a juvenile neglect proceeding under Ch. 7B, initiated by DSS in 2009 even though DSS has not been directly involved since 2011. The action was not transferred to a Ch. 50 custody matter under G.S. 7B-911.
- Juvenile Court’s Continuing Jurisdiction: The trial court has not terminated its jurisdiction “thus, the juvenile court’s jurisdiction continues ‘until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first.’ “ G.S. 7B-201(a). Sl. Op. at 11. “Only North Carolina can terminate its own juvenile court jurisdiction; a court in Tennessee cannot.” Id. The TN order that transferred jurisdiction from NC to TN “has no effect on North Carolina’s jurisdiction under Chapter 7B….” Sl. Op, at 17. Except for a transfer to Ch. 50 under G.S. 7B-911, “Chapter 7B does not provide an option for ‘transfer’ but instead provides for the trial court to … terminate the juvenile court jurisdiction and return the parents to their pre-petition status…” Sl. Op. at 14. If the juvenile court determines TN is a more appropriate forum under the UCCJEA, it may terminate its jurisdiction under G.S. 7B-201 to allow for TN to address the custody issues.
- UCCJEA Inconvenient Forum: G.S. 50A-207 provides for the procedures and factors a court must consider when determining whether it is an inconvenient forum. G.S. 50A-110 establishes the procedure for communications between the states’ courts. It includes a provision where the court may allow the parties to participate in the communication and if not, the court must give the parties an opportunity to present facts and legal arguments before a jurisdiction decision is made. Additionally, a record of the communication between the courts must be made and the parties must be granted access to the record. In this case, the record was the email from the NC judicial assistant, but it was only sent to the guardians’ attorney rather than simultaneously to both parties’ counsel. At a hearing that consisted of attorney arguments, unverified motions, and no sworn testimony, the court received no evidence regarding the facts of the case. Without an evidentiary hearing upon which to base findings of fact and a decision, the order determining NC is an inconvenient forum is unsupported. Remanded for an evidentiary hearing.
Category:
UCCJEAStage:
Subject Matter JurisdictionTopic: