in the Court of Appeals 13 March 2019.
by respondent from order entered 18 June 2018 by Judge
William F. Southern, III in District Court, Surry County No.
09 JA 64.
Clark Fischer, for appellee William Brickel (Custodian), et
Parent Defender Annick Lenoir-Peek for respondent-mother.
appeals order staying proceedings and purporting to transfer
jurisdiction of this child custody proceeding under Chapter
7B to Tennessee. We affirm.
July 2009, DSS filed a petition alleging Jane 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."
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
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.
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),  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.
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 ...