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In re D.A.Y.

Court of Appeals of North Carolina

June 18, 2019

IN THE MATTER OF: D.A.Y.

          Heard in the Court of Appeals 30 May 2019.

          Appeal by respondent-mother from order entered 4 September 2018 by Judge John R. Nance in Stanly County, No. 18 JT 13 District Court.

          David A. Perez for petitioner-father appellee.

          Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Joyce L. Terres, for respondent-mother appellant.

          TYSON, JUDGE

         Respondent-mother 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.

         I. Factual Background

         Petitioner 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.

         Petitioner 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."

         Respondent 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.

         After a 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.

         II. Jurisdiction

         Jurisdiction lies in this Court from a final order of the district court entered 4 September 2018 pursuant to N.C. Gen. Stat. § 7B-1001(a) (2017).

         III. Issue

         Respondent 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).

         IV. Standard of Review

         "The 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 ...


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