in the Court of Appeals 30 May 2019.
by respondent-mother from order entered 4 September 2018 by
Judge John R. Nance in Stanly County, No. 18 JT 13 District
A. Perez for petitioner-father appellee.
Defender Wendy C. Sotolongo, by Assistant Parent Defender
Joyce L. Terres, for respondent-mother appellant.
appeals from an order terminating her parental rights in
D.A.Y. ("Dylan"). See N.C. R. App. P.
42(b) (pseudonym used to protect the identity of the child).
The trial court erred in exercising jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act
("UCCJEA") and its order is vacated. This cause is
remanded for dismissal of the petition.
and Respondent were married briefly and separated prior to
Dylan's birth in Las Vegas, Nevada. Petitioner is
Dylan's father and is a resident of Stanly County, North
Carolina. Respondent is Dylan's mother and lives in
Ventura County, California.
filed a petition and a subsequent amended petition to
terminate Respondent's parental rights in the Stanly
County District Court on 29 March 2018 and 18 May 2018,
respectively. Petitioner alleged Dylan resided with him in
Stanly County, such that "North Carolina is the home
state of the child," pursuant to "a juvenile court
order from the State of California entered as a result of a
juvenile protective services investigation filed October 18,
2013 which gave custody to petitioner with supervised once
per year visits granted to respondent." Petitioner
further alleged "California terminated [its]
jurisdiction by the terms of said order." The petition
alleged Respondent is "a citizen and residence [sic] of
Ventura County, California," but claimed she had
temporarily "moved to Nevada in or about 2016 thereby
terminating California's jurisdiction."
filed a written answer admitting the petition's
allegations regarding the respective locations of the parties
and the actions of the court in California in the 2013
custody proceeding. Respondent denied many of the substantive
allegations in the petition and accused Petitioner of
"withholding [Dylan] from the Respondent" and not
allowing her to communicate with her son.
hearing on 9 August 2018, the trial court found grounds
existed to terminate Respondent's parental rights based
upon her neglect and willful abandonment of Dylan.
See N.C. Gen. Stat. § 7B-1111(a)(1), (7)
(2017). The court further concluded Dylan's best interest
required terminating Respondent's parental rights.
See N.C. Gen. Stat. § 7B-1110(a) (2017).
Respondent filed timely notice of appeal.
lies in this Court from a final order of the district court
entered 4 September 2018 pursuant to N.C. Gen. Stat. §
argues the trial court lacked subject matter jurisdiction to
hear and enter orders under the UCCJEA because: (1) a court
in California entered an initial child-custody determination
with regard to Dylan, see N.C. Gen. Stat.
§§ 50A-102(3)-(8), 50A-201 (2017); (2) the court in
California did not determine it no longer had jurisdiction or
that North Carolina would be a more convenient forum,
see N.C. Gen. Stat. § 50A-203(1) (2017); and
(3) Respondent had resided in California from the time
Petitioner filed the petition to terminate her parental
rights through the date of the termination hearing,
see N.C. Gen. Stat. § 50A-203(2) (2017).
Standard of Review
existence of subject matter jurisdiction is a matter of law
and cannot be conferred upon a court by consent.
Consequently, a court's lack of subject matter
jurisdiction is not waivable and can be raised at any
time." In re K.J.L., 363 N.C. 343, 345-46, 677
S.E.2d 835, 837 (2009) (citations and internal quotation
marks omitted). "The question of whether a trial court
has subject matter jurisdiction is a question of law ...