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In re C.M.B.

Court of Appeals of North Carolina

April 2, 2019

IN THE MATTER OF: C.M.B., Juvenile.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by respondent from order entered 18 June 2018 by Judge William F. Southern, III in District Court, Surry County No. 09 JA 64.

          J. Clark Fischer, for appellee William Brickel (Custodian), et al.

          Deputy Parent Defender Annick Lenoir-Peek for respondent-mother.

          STROUD, JUDGE.

         Respondent-mother appeals order staying proceedings and purporting to transfer jurisdiction of this child custody proceeding under Chapter 7B to Tennessee. We affirm.

         I. Background

         On 27 July 2009, DSS filed a petition alleging Jane[1] was a neglected juvenile, and on 18 September 2009 the trial court adjudicated her as neglected. In a review hearing order, on 17 December 2009, the trial court noted Jane was "in the care of a maternal great aunt [, Ms. Brickel, ] the placement has gone well[, ]" and Mother was now residing in Virginia. Jane continued to do well with her aunt, as noted in the 22 April 2010 permanency planning order. On 8 July 2010, the trial court entered another permanency planning order which found Mother was not present at the hearing and it was not known where she was "residing."

         About six months later, on 19 January 2011, the trial court found that Jane had been residing with the Brickels since September of 2009, placement had "gone well and the BRICKELS have expressed a willingness and desire to continue to provide care and placement for the child." Mother had not been in contact with DSS, and DSS was relieved of reunification efforts. The permanent plan for Jane was "custody and guardianship with a relative[.]" The trial court ordered the Brickels receive "legal and physical care, custody, and control of" Jane, appointed the Brickels as joint guardians of Jane, "released and discharged" Mother's attorney, and waived future review hearings. On 6 August 2014, Mother and the Brickels entered into a consent order agreeing Jane would remain in the custody of the Brickels, and Mother would have visitation. The consent order noted that in late 2013 or early 2014, the Brickels had moved to Tennessee.

         A few years later, in November of 2017, the Brickels filed a motion in Tennessee to register the North Carolina custody order and modify custody; Mother then filed a motion in Tennessee to dismiss the Brickels' motion. Mother also filed three pro se motions in North Carolina between December of 2017 and January of 2018: (1) a motion for review requesting an "emergency" revocation of the Brickels as guardians and that she be appointed as Jane's guardian; (2) a motion and order to show cause claiming the Brickels had violated the custody agreement; and (3) a motion requesting North Carolina to invoke jurisdiction as it was the "more appropriate forum[.]" (Original in all caps.) Meanwhile, before any of Mother's motions in North Carolina were heard, by January of 2018, Tennessee had entered orders assuming jurisdiction of custody and modifying Mother's visitation. Mother was present and testified at the hearing in Tennessee regarding its jurisdiction, and the Tennessee court found that none of the parties nor Jane had lived in North Carolina since 2014. The Brickels then filed a motion in North Carolina to "stay" Mother's pending motions or to transfer jurisdiction to Tennessee because North Carolina was an "inconvenient forum[, ]" and on 18 June 2018, the North Carolina trial court allowed the Brickels' motion to "stay" and "transfer" jurisdiction based on North Carolina being an inconvenient forum. Mother appeals.

         II. Interlocutory Appeal

         Mother argues that we have jurisdiction to consider this appeal under North Carolina General Statutes § 7B-1001(a)(2), which allows appeal of "[a]ny order, including the involuntary dismissal of a petition, which in effect determines the action and prevents a judgment from which appeal might be taken," N.C. Gen. Stat. § 7B-1001(a)(2) (2017), [2] and because it is a final order. As far as North Carolina is concerned, the order on appeal is final, since it does not leave the case open "for further action by the trial court in order to settle and determine the entire controversy[, ]" Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950), but rather "transfers" the matter to Tennessee. We therefore have jurisdiction to consider Mother's appeal.

         There is another unusual procedural twist to this case. We note that while this case was initiated by DSS because of an investigation of neglect, DSS is not a party to this appeal nor did a guardian ad litem participate on behalf of Jane. The only parties appearing or participating before the trial court and this Court are Mother and the Brickels. But this case was never transferred as a Chapter 50 ...

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