In re J.H., 244 N.C. App. 255 (2015)

Timeline:

• April 2013, child born in NC and lives in NC
• November 22, 2013, mother and child move to TX, father remains in NC
• January 29, 2014, Texas custody order, sole custody to mother, father not yet established paternity. This order is not in the court of appeals record so it is unclear if the TX court exercised temporary emergency jurisdiction, exclusive continuing jurisdiction, or acted in substantial conformity with the UCCJEA.
• February 20, 2014, mother and child return to NC
• March 7, 2014, DSS files A/N/D petition in NC, nonsecure custody granted to DSS, and child placed with maternal grandparents
• June 19, 2014, adjudication (neglected and dependent) and disposition order
• September 2, 2014, review order
• February 23, 2015 permanent planning order of guardianship to maternal grandparents and the court founds the mother resided in TX since the inception of the case
• Texas issued an initial custody order, requiring NC to have either modification jurisdiction (G.S. 50A-203) or temporary emergency jurisdiction (G.S. 50A-204).
• NC did not have modification jurisdiction because only one of the two jurisdictional requirements was met. The requirement that NC have jurisdiction to make an initial custody determination was met because NC was child’s home state six months before the A/N/D action was commenced in March, since the child lived in NC from his birth in April 2013 until November 22, 2013. The second requirement that TX determines that it no longer has exclusive continuing jurisdiction or NC would be a more convenient forum, or neither parent nor the child presently reside in TX was not met. The court found the mother resided in TX. The NC court never communicated with the TX court for the TX to determine if it had continuing exclusive jurisdiction.
• Under G.S. 50A-204, NC had temporary emergency jurisdiction to enter the nonsecure custody order because the child was present in NC and the order was necessary to protect the child who is subjected to mistreatment or abuse. However, the NC court did not communicate with the TX court or specify in the order the time period for the temporary order. The adjudication, disposition, review, and permanency planning orders are vacated.
• Remanded for the NC trial court to examine the Texas order and determine if TX exercised temporary emergency jurisdiction, exclusive continuing jurisdiction, or jurisdiction in substantial conformity with the UCCJEA when issuing its January 2014 order. Depending on the trial court’s determination of how the TX court exercised jurisdiction, the NC court must communicate with the TX court. If NC determines it does not have subject matter jurisdiction, it must dismiss the petition.