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Rivera v. Matthews

Court of Appeals of North Carolina

February 5, 2019

JOSE E. RIVERA, Plaintiff,

          Heard in the Court of Appeals 17 October 2018.

          Appeal by Plaintiff from an order entered 7 June 2017 by Judge Mary H. Wells in Lee County, No. 16 CVD 493 District Court.

          THE LAW OFFICE OF ERIKA R. BALES, PLLC, by Erika R. Bales, for Plaintiff-Appellant.

          POST, 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.

          INMAN, JUDGE.

         Plaintiff-Appellant 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.


         N. M. ("Nancy")[1] 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.

         In 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.

         Following 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.

         On 25 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.

         On 28 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.

         Mother 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 ...

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