In re J.D., 234 N.C. App. 342 (2014)

for order of dismissal

• G.S. 7B-1101 requires that the NC court specifically find in a termination of parental rights action involving a nonresident parent that it has subject matter jurisdiction under the UCCJEA pursuant to either an initial child custody proceeding (G.S. 50A-201) or modification jurisdiction (G.S. 50A-203).
• For modification jurisdiction pursuant to G.S. 50A-203, the initial state court’s denial of a motion to intervene is not the equivalent of that state determining it no longer has exclusive continuing jurisdiction, or that NC was a more convenient forum to hear the child custody proceeding.
• The NC court lacked subject matter jurisdiction under the UCCJEA because there was nothing in the record demonstrating that the court of the other state determined it no longer had exclusive continuing jurisdiction as required by G.S. 50A-203.
• Facts: “Josh” was born in 2006 in Indiana where he resided with both his parents.  In 2008, a custody action was filed in Indiana, and in 2009, a custody order was issued by the Indiana court.  In 2011, Josh and his mother moved to North Carolina, where they continue to reside. In August 2011, the Indiana court modified its 2009 custody order twice regarding visitation between Josh and his father, who continued to reside in Indiana. Also in 2011, Josh’s paternal grandparents filed a motion to intervene in the Indiana custody action for the sole purpose of obtaining grandparent visitation as established by Indiana statute, and the Indiana court denied the motion.  In 2012, Josh’s mother filed a petition to terminate father’s parental rights, and respondent father included in his answer a motion to dismiss for lack of subject matter jurisdiction, personal jurisdiction, and failure to state a claim upon which relief could be granted. The NC court denied the motions to dismiss concluding that the Indiana court declined continuing jurisdiction in the custody action by denying the paternal grandparents’ motion to intervene. After hearing, the NC court terminated father’s parental rights, and respondent father timely appealed.