In re S.W., ___ N.C. App. ___ (March 19, 2025)
Held:
Affirmed
- Facts: Petitioner is the guardian of the child at issue. In an underlying juvenile proceeding in Cumberland County, the child was adjudicated dependent and Petitioner was appointed the child’s guardian. The Cumberland trial court waived further review hearings and retained jurisdiction. Petitioner filed to terminate the parental rights (TPR) of both parents in Brunswick County where the child resided with Petitioner. Mother and the GAL filed a motion to dismiss the TPR petition arguing Brunswick County lacked subject matter jurisdiction because the Cumberland County court had exclusive, original jurisdiction and it was a prior pending action. The GAL also filed a motion to transfer venue to Cumberland County. After holding a hearing, the Brunswick court denied each motion. The GAL appeals arguing (1) the trial court erred in denying the motions to dismiss the Petition and hold the matter in abeyance, and (2) the trial court abused its discretion in failing to transfer venue from Brunswick to Cumberland County.
- There is no right to immediate appeal from interlocutory orders. The trial court’s order denying the GAL’s motion to dismiss the petition for lack of subject matter jurisdiction is interlocutory and not subject to appellate review. The court of appeals treated the record and the GAL’s brief as a petition for writ of certiorari with respect to the jurisdiction issue and granted the writ.
- Appellate courts review a motion to dismiss de novo to determine whether “the allegations in the complaint are sufficient to state a claim upon which relief may be granted.” Sl. Op. at 7 (citation omitted). “Whether a court has subject matter jurisdiction is a question of law, reviewed de novo on appeal.” Sl. Op. at 8 (citation omitted).
- The trial court has exclusive, original jurisdiction over any case involving a child who is alleged to be abused, neglected, or dependent and such jurisdiction continues until terminated by court order or until the juvenile reaches majority or is emancipated, whichever occurs first. G.S. 7B-200(a), 7B-201(a). Separately, a trial court has “exclusive, original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in . . . the district at the time of filing of the petition or motion.” G.S. 7B-1101. The jurisdictional requirements for TPRs are distinct and “although the Juvenile Code permits [the] petitioners to seek termination in the same district court that is simultaneously adjudicating an underlying abuse, neglect, or dependency petition, the statutory language does not mandate filing in a single court.” Sl. Op. at 9 (citation omitted). As long as the requirements of G.S. 7B-1101 are met, a district court in one county has jurisdiction even if there is an underlying abuse, neglect, or dependency action pending in another county. If a TPR petition had been filed in Cumberland County, the requirements of G.S. 7B-1101 would have to be established for Cumberland County to have jurisdiction over the TPR because “jurisdiction does not continue from the underlying juvenile proceeding to a subsequent termination proceeding.” Sl. Op. at 10 (citation omitted).
- The Brunswick County court had exclusive, original jurisdiction over the TPR matter. The requirements of G.S. 7B-1101 were met as the child was residing in Brunswick County at the time the TPR petition was filed. The underlying matter governing the child’s dependency adjudication and guardianship is irrelevant for jurisdictional purposes. The court rejected the GAL’s argument that the Cumberland court was required to terminate its jurisdiction in order for the TPR to proceed. The GAL cited to the court’s holding in a Chapter 50 civil custody case, McMillian v. McMillian, 267 N.C. App. 537 (2019), where the custody proceedings were automatically stayed when the trial court retained jurisdiction under Chapter 7B. Here, the underlying juvenile proceedings do not have the affect of staying the TPR action, as would be the case for a Chapter 50 action under G.S. 50-13.1 and McMillian.
- “[W]here a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action.” Sl. Op. at 12 (citation omitted). The central determination for purposes of abatement by reason of the pendency of the prior action is whether “the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded[.]” Sl. Op. at 13 (citation omitted). Here, there is no basis for the application of the prior action doctrine. The subject matter, issues, and relief demanded are distinct. The underlying dependency action concerns the child’s guardianship and their appointment, while the TPR action involves and seeks to terminate all parental rights as to the child.
- Appellate courts review a trial court’s determination of whether to transfer venue for an abuse of discretion. G.S. 7B-900.1(a) allows for the court to transfer venue to a different county at any time after adjudication if it finds that the forum is inconvenient, transfer is in the best interests of the juvenile, and the rights of the parties are not prejudiced by the change in venue. G.S. 1-83 allows for a change in venue “[w]hen the conveniences of witnesses and the ends of justice would be promoted by the change.” Therefore, an abuse of discretion occurs when justice demands the change of venue or a “failure to grant the change of venue will deny the movant a fair trial.” Sl. Op. at 15 (citation omitted).
- The trial court did not abuse its discretion in denying the GAL’s motion to transfer venue. There is no showing that justice demanded a change of venue or that a failure to grant a change of venue would deny the GAL a fair trial. Travel concerns between the counties is insufficient. Findings that the child lived in Brunswick County for at least two years prior to the petition and all of the witnesses resided in Brunswick County support the trial court’s denial of the motion to transfer. The trial court was not required to make any findings under G.S. 7B-900.1 or G.S. 1-83. The findings under G.S. 7B-900.1 are only required if the trial court decides to transfer venue, not when denying a motion to transfer venue. Similarly, G.S. 1-83 does not provide for what the trial court must consider when denying a motion to transfer venue.
Category:
Termination of Parental RightsStage:
Subject Matter JurisdictionTopic:
G.S. 7B Jurisdiction