JOSE E. RIVERA, Plaintiff,
RICKY L. MATTHEWS and wife JO MATTHEWS, and LEE COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants.
in the Court of Appeals 17 October 2018.
by Plaintiff from an order entered 7 June 2017 by Judge Mary
H. Wells in Lee County, No. 16 CVD 493 District Court.
LAW OFFICE OF ERIKA R. BALES, PLLC, by Erika R. Bales, for
FOUSHEE & PATTON, P.A., by Kristy Gaines Patton, for
Defendants-Appellees Ricky L. and Jo Matthews.
Elizabeth Myrick Boone for Defendant-Appellee Lee County
Department of Social Services.
Jose E. Rivera ("Plaintiff") appeals from an order
dismissing his complaint for custody of his maternal
grandchild under Sections 50-13.1 and 50A-101 of the North
Carolina General Statutes. In dismissing the complaint, the
trial court held that, due to an unabated pre-existing child
custody action between the child's paternal grandparents,
Defendants-Appellees Ricky L. and Jo Matthews (the
"Matthews"), and Plaintiff's now-deceased
daughter ("Mother"), it lacked subject matter
jurisdiction to proceed. After careful review, we affirm the
order of the trial court.
FACTUAL AND PROCEDURAL HISTORY
("Nancy") was born out of wedlock to Mother and R.
M. ("Father") in 2007. On 5 June 2015, Mother found
Father dead in the family home. Seven-year-old Nancy was at
the home at the time the body was discovered. Law enforcement
searched the home and discovered copious amounts and
varieties of illegal drugs and associated paraphernalia.
Mother was then arrested on one drug-related misdemeanor and
four drug-related felony charges. The Matthews arrived at the
home that same day, and Mother implored them to take care of
Nancy. Nancy has stayed in the Matthews' care ever since.
investigating Father's death, law enforcement and the Lee
County Department of Social Services ("DSS,"
together with the Matthews as "Defendants")
interviewed Nancy. She told them that Mother injected and
snorted drugs in her presence, she had seen used needles and
blood in her bathroom, she frequently had to fix her own
meals due to Mother's incapacitation from drug usage, and
she often missed school. On at least one occasion, Nancy
recounted, she had stepped on a used needle littering the
floor of the home.
their son's death and Nancy's disclosure, the
Matthews filed a complaint and motion for domestic violence
protective order against Mother under Section 50B-1 of our
General Statutes on 9 June 2015. The trial court awarded
temporary custody of Nancy to the Matthews by ex
parte order later that morning.
June 2015, Mother was charged with first-degree murder in the
death of Father and misdemeanor child abuse of Nancy. The
Matthews filed a complaint for child custody against Mother
the following day (the "Custody Action"), and the
trial court immediately entered an ex parte
temporary custody order. Mother and the Matthews appeared for
a hearing to review the ex parte temporary custody
order the following week and, on 12 August 2015, the trial
court entered a temporary custody order continuing
Nancy's placement with the Matthews. In that order, the
trial court concluded from the evidence and factual findings
that Mother "is not a fit and proper person to exercise
the care, custody and control of the minor child and has
taken such actions that are inconsistent with her
constitutionally protected rights as the minor child's
natural parent." It also concluded that the Matthews
were fit to care for Nancy and that it would be in her best
interest to be placed in their sole and exclusive legal
custody. The trial court dissolved the ex parte
order, decreed that the Matthews have "temporary sole
and exclusive legal and physical care, custody and
control" over Nancy, and ordered that Mother have no
contact with Nancy until further order of the court.
September 2015, Plaintiff filed a complaint and motion in the
Custody Action seeking visitation; that claim was
subsequently denied and dismissed by the trial court, and
Plaintiff did not appeal that decision. The record on appeal
reveals no further action in the Custody Action following the
dismissal of Plaintiff's complaint and motion.
died on 3 June 2016. On 16 June 2016, Plaintiff, Nancy's
maternal grandfather, filed a complaint against the Matthews
in a new, separate action seeking full custody of Nancy
pursuant to Sections 50-13.1 and 50A-101 of our General
Statutes. Although Plaintiff acknowledged the existence of
the Custody Action, he alleged that it terminated upon
Mother's death. The complaint also named DSS as a
defendant, asserting that ...