In re J.D.

NO. COA14-145

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

IN RE: J.D., Mecklenburg County
No. 12 JT 471

A Minor Child

Appeal by respondent from order entered 25 November 2013 by

Judge Elizabeth T. Trosch in Mecklenburg County District Court.

Heard in the Court of Appeals 29 May 2014.

Horack, Talley, Pharr & Lowndes, PA, by Elizabeth Johnstone
James, for petitioner-appellee.

Rebekah W. Davis for respondent-appellant.

DAVIS, Judge.

B.D. (“Respondent”) appeals from an order terminating his

parental rights to his son, J.D. (“Josh”)1, who was born in

August 2006 in Indianapolis, Indiana. On appeal, Respondent

argues that the trial court lacked jurisdiction to grant the

petition to terminate Respondent’s parental rights. After

careful review, we vacate the trial court’s order and remand for

entry of an order dismissing the petition.

1
The pseudonym “Josh” is used throughout this opinion to protect
the privacy of the minor child and for ease of reading. N.C.R.
App. P. 3.1(b).
 -2-
Factual Background

K.P. (“Petitioner”) is Josh’s mother. At the time of

Josh’s birth, Petitioner and Respondent lived together in

Indiana. They separated approximately two months after Josh was

born. On or about 17 December 2008, Respondent filed an action

(“the Indiana Action”) in the Circuit Court of Marion County,

Indiana (“the Indiana court”) seeking custody of Josh. On or

about 8 January 2009, the Indiana court entered a consent order

establishing paternity, custody, child support, and visitation.

In 2011, Petitioner moved with Josh to North Carolina, where she

and Josh continue to reside.

On 2 August 2011, the Indiana court entered an order

modifying its child custody order to permit visitation by

Respondent. On 18 November 2011, the Indiana court suspended

Respondent’s visitation privileges. On 2 December 2011, Josh’s

paternal grandparents — who live in Indiana — filed a motion to

intervene for the purpose of obtaining visitation rights

regarding Josh. The Indiana court dismissed the grandparents’

motion to intervene on 14 December 2011.

On 18 July 2012, Petitioner filed a petition in Mecklenburg

County District Court seeking to terminate Respondent’s parental

rights to Josh. On 13 September 2012, in conjunction with his
 -3-
answer to the petition, Respondent filed a motion to dismiss on

the grounds of lack of subject matter jurisdiction, lack of

personal jurisdiction, and failure to state a claim upon which

relief can be granted.

On 7 November 2012, Respondent filed a motion for a

protective order pursuant to Rule 26(c) of the North Carolina

Rules of Civil Procedure seeking to be excused from answering a

set of interrogatories propounded by Petitioner until the trial

court’s jurisdiction was established. On 18 March 2013,

Petitioner filed a motion to compel Respondent to respond to the

interrogatories and also to her request for production of

documents. On 4 June 2013, a consent order was entered in which

the parties agreed to continue the pretrial conference until 26

June 2013. Respondent also agreed in this order to respond to

Petitioner’s interrogatories by 21 June 2013. The order stated

that if he failed to respond to the interrogatories by this

deadline, Petitioner would be “entitled to request that

discovery sanctions be levied against Respondent” at the

pretrial conference.

Following the pretrial conference, the trial court issued

an order on 15 July 2013 in which it concluded it had

jurisdiction over both the parties and the subject matter. In
 -4-
addition, the court sanctioned Respondent for failing to respond

to Petitioner’s first set of interrogatories by prohibiting him

(1) “from putting on evidence regarding any of the issues

contained in Petitioner’s First Set of Interrogatories”; and (2)

from “us[ing] in his defense any information that should have

(or could have) been responsive to Petitioner’s First Set of

Interrogatories . . . .”

The trial court conducted adjudication and disposition

hearings in connection with Petitioner’s petition to terminate

Respondent’s parental rights on 6 November 2013 and filed an

order on 25 November 2013 terminating his parental rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) and (7). Respondent

filed a timely notice of appeal.

Analysis

Respondent contends that the order terminating his parental

rights must be vacated because the Mecklenburg County District

Court lacked jurisdiction over the subject matter and over

Respondent’s person in that (1) the child custody action

regarding Josh originated in Indiana and the Indiana court has

retained subject matter jurisdiction; and (2) Respondent is not

a resident of North Carolina and had insufficient minimum

contacts with this State to permit the trial court’s exercise of
 -5-
personal jurisdiction over him. Petitioner argues Respondent

waived any challenge to jurisdiction by not appealing the 15

July 2013 order in which the court concluded it had both subject

matter and personal jurisdiction. Petitioner further argues

that even if the jurisdictional arguments were not waived, the

trial court did, in fact, possess subject matter and personal

jurisdiction over Respondent.

“Subject matter jurisdiction refers to the power of the

court to deal with the kind of action in question.” Harris v.

Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987).

With regard to “matters arising under the Juvenile Code, the

court’s subject matter jurisdiction is established by statute.”

In re K.J.L.¸ 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009).

“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). Whether a court has

jurisdiction is a question of law reviewable de novo on appeal.

In re K.U.-S.G., 208 N.C. App. 128, 131, 702 S.E.2d 103, 105

(2010).
 -6-
The jurisdictional statute that governs actions to

terminate parental rights is N.C. Gen. Stat. § 7B-1101, which

provides as follows:

The court shall have exclusive original
jurisdiction to hear and determine any
petition or motion relating to termination
of parental rights to any juvenile who
resides in, is found in, or is in the legal
or actual custody of a county department of
social services or licensed child-placing
agency in the district at the time of filing
of the petition or motion. The court shall
have jurisdiction to terminate the parental
rights of any parent irrespective of the age
of the parent. Provided, that before
exercising jurisdiction under this Article,
the court shall find that it has
jurisdiction to make a child-custody
determination under the provisions of G.S.
50A-201, 50A-203, or 50A-204. The court
shall have jurisdiction to terminate the
parental rights of any parent irrespective
of the state of residence of the parent.
Provided, that before exercising
jurisdiction under this Article regarding
the parental rights of a nonresident parent,
the court shall find that it has
jurisdiction to make a child-custody
determination under the provisions of G.S.
50A-201 or G.S. 50A-203, without regard to
G.S. 50A-204 and that process was served on
the nonresident parent pursuant to G.S. 7B-
1106.

N.C. Gen. Stat. § 7B-1101 (2013) (emphasis added).

The above-referenced statutes listed in N.C. Gen. Stat. §

7B-1101 are all provisions of the Uniform Child Custody

Jurisdiction and Enforcement Act (“UCCJEA”), which defines a
 -7-
“child-custody determination” as “a judgment, decree, or other

order of a court providing for the legal custody, physical

custody, or visitation with respect to a child.” N.C. Gen.

Stat. § 50A-102(3) (2013). The jurisdictional requirements of

the UCCJEA apply to proceedings for the termination of parental

rights. In re N.R.M., 165 N.C. App. 294, 298, 598 S.E.2d 147,

149 (2004).

Because this action sought the termination of nonresident

Respondent’s parental rights, N.C. Gen. Stat. § 50A-204 — which

confers upon a court of this State temporary emergency

jurisdiction if the child is within this State and has been

abandoned or the exercise of jurisdiction is necessary to

protect the child from mistreatment or abuse — could not provide

the trial court with subject matter jurisdiction in this case.

See N.C. Gen. Stat. § 7B-1101 (“[B]efore exercising jurisdiction

. . . regarding the parental rights of a nonresident parent, the

court shall find that it has jurisdiction to make a child-

custody determination under the provisions of G.S. 50A-201 or

G.S. 50A-203, without regard to G.S. 50A-204 . . . .” (emphasis

added)).
 -8-
Thus, pursuant to N.C. Gen. Stat. § 7B-1101 and the UCCJEA,

we must determine whether the trial court possessed subject

matter jurisdiction under N.C. Gen. Stat. §§ 50A-201 or -203.

N.C. Gen. Stat. § 50A-201 provides:

(a) Except as otherwise provided in G.S.
50A-204, 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;
 -9-

(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).

(b) Subsection (a) is the exclusive
jurisdictional basis for making a child-
custody determination by a court of this
State.

(c) Physical presence of, or personal
jurisdiction over, a party or a child is not
necessary or sufficient to make a child-
custody determination.

N.C. Gen. Stat. § 50A-201 (2013) (emphasis added).

In the present case, because the initial child custody

determination was made by the Indiana court, N.C. Gen. Stat. §

50A-201 is inapplicable. See N.R.M., 165 N.C. App. at 298, 598

S.E.2d at 150 (concluding that N.C. Gen. Stat. § 50A-201 could

not confer subject matter jurisdiction upon North Carolina court

because initial custody determination had been made in

Arkansas).

Thus, the only basis by which the trial court could have

conceivably obtained subject matter jurisdiction was through
 -10-
N.C. Gen. Stat. § 50A-203. N.C. Gen. Stat. § 50A-203 provides

that a court of this State may not modify a child custody

determination of a court of another state

unless a court of this State has
jurisdiction to make an initial
determination under G.S. 50A-201(a)(1) or
G.S. 50A-201(a)(2) and:

(1) The court of the other state
determines it no longer has exclusive,
continuing jurisdiction under G.S. 50A-
202 or that a court of this State would
be a more convenient forum under G.S.
50A-207; or

(2) A court of this State or a court of
the other state determines that the
child, the child's parents, and any
person acting as a parent do not
presently reside in the other state.

N.C. Gen. Stat. § 50A-203.

Therefore, either of two events would have had to occur in

order for the trial court to have actually acquired subject

matter jurisdiction in this action based on N.C. Gen. Stat. §

50A-203: (1) a determination by the Indiana court that it no

longer had exclusive, continuing jurisdiction or that a North

Carolina court would be a more convenient forum; or (2) a

determination by either court that neither Josh nor Petitioner

nor Respondent presently lived in Indiana. N.R.M., 165 N.C.

App. at 300-01, 598 S.E.2d at 150-51.
 -11-
The latter prong clearly does not provide subject matter

jurisdiction in this case because Respondent continues to reside

in Indiana. See In re J.W.S., 194 N.C. App. 439, 448, 669

S.E.2d 850, 856 (2008) (explaining that New York did not lose

continuing jurisdiction over custody of child for purposes of

N.C. Gen. Stat. § 50A-203(2) because juvenile’s mother continued

to reside there).

Consequently, the first prong of N.C. Gen. Stat. § 50A-203

is the only possible basis for the existence of jurisdiction in

North Carolina. In its order terminating Respondent’s parental

rights, the trial court concluded that — for purposes of N.C.

Gen. Stat. § 50A-203(1) — the Indiana court had declined

jurisdiction over the custody of Josh by dismissing the motion

to intervene filed by Josh’s paternal grandparents. We

disagree.

The order of the Indiana court dismissing the grandparents’

motion consisted of three paragraphs. The first paragraph

identified the motion before the court and the parties present

at the hearing. The second and third paragraphs read as

follows:

The Court having considered the matters
before it and after argument finds that
Mother’s Motion to Dismiss must be Granted.
Pursuant to I.C. § 31-17-5-4 et seq., a
 -12-
Petition for Grandparent Visitation must be
filed in a circuit, superior or probate
court of the county in which the child
resides for all cases filed pursuant to I.C.
§ 31-17-5-1(a)(3). It is undisputed that
the minor child resides in Mecklenburg
County, North Carolina, not Marion County,
Indiana. Therefore, Marion County, Indiana
is not the proper venue for this matter.

Intervenor’s Request for Grandparent
Visitation is hereby dismissed without
prejudice.

The order dismissing the grandparents’ motion to intervene

was based upon Indiana’s Grandparent Visitation Act, I.C. 31-17-

5-1 et seq., which provides for grandparents to seek visitation

rights in certain limited situations. The Indiana Court of

Appeals has stated that “the Grandparent Visitation Act

contemplates only occasional, temporary visitation that does not

substantially infringe on a parent’s fundamental right to

control the upbringing, education, and religious training of

their children.” Hoeing v. Williams, 880 N.E.2d 1217, 1221

(Ind. Ct. App. 2008) (citation and quotation marks omitted).

North Carolina does not have any statutory provision for an

independent action for grandparents’ visitation analogous to

Indiana’s statute, although a grandparent can be granted

visitation in the context of a custody case between the parents

in some circumstances. See N.C. Gen. Stat. § 50-13.2(b1).
 -13-
It is clear that the order dismissing the grandparents’

motion to intervene and request for grandparent visitation was

based solely upon Indiana’s venue statute, which requires that

an action for grandparent visitation be filed in the county in

which the child resides. See I.C. § 31-17-5-4 (“A grandparent

seeking visitation rights shall file a petition requesting

reasonable visitation rights . . . in a circuit, superior or

probate court of the county in which the child resides . . .

.”). Specifically, the Indiana court concluded that “Marion

County, Indiana is not the proper venue for this matter.” Venue

is designated by statute, and “[i]t has been well settled in

this State for many years that venue is not jurisdictional . . .

.” Shaw v. Stiles, 13 N.C. App. 173, 176, 185 S.E.2d 268, 269

(1971). In addition, the Indiana order simply dismissed the

grandparents’ motion “without prejudice,” without any mention of

relinquishing jurisdiction of the custody matter.

Accordingly, we hold that the trial court erred in

concluding that the Indiana court relinquished jurisdiction to

North Carolina’s courts by entering the order in the Indiana

Action dismissing the paternal grandparents’ motion for

visitation rights. Nothing in the record evidences a

determination by the Indiana court that it no longer had
 -14-
exclusive, continuing jurisdiction over Josh’s case or that a

North Carolina court would be a more convenient forum. Because

the trial court lacked subject matter jurisdiction, we vacate

the trial court’s order terminating Respondent’s parental rights

and remand for entry of an order dismissing the petition. See

In re J.A.P., ___ N.C. App. ___, ___, 721 S.E.2d 253, 254-55

(2012) (vacating termination of parental rights order and

remanding for entry of order dismissing petition in light of

absence of evidence that New Jersey had determined that it “no

longer ha[d] exclusive, continuing jurisdiction or that a court

of this State [North Carolina] would be a more convenient forum”

(internal quotation marks omitted)).2

Conclusion

For the reasons stated above, we vacate the trial court’s

order terminating Respondent’s parental rights and remand for

entry of an order dismissing the petition.

VACATED AND REMANDED.

Judges CALABRIA and STROUD concur.

2
Because we hold that the trial court did not possess subject
matter jurisdiction, we need not address Respondent’s argument
that the court also lacked personal jurisdiction over him.