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In re C.M.B.

Court of Appeals of North Carolina

August 6, 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).

          Assistant Appellant Defender Annick Lenoir-Peek for respondent-mother.

          STROUD, JUDGE.

         Respondent-mother appeals an order staying proceedings and transferring jurisdiction of this juvenile proceeding under Chapter 7B to Tennessee. Because the trial court failed to hold an evidentiary hearing before entering the order on appeal, we reverse and remand for a new hearing and entry of an order consistent with this opinion.

         I. Background

         On 27 July 2009, the Surry County Department of Social Services ("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. Neither DSS nor a guardian ad litem participated in entry of the Consent Order. Mother and the Brickels agreed Jane would remain in the custody of the Brickels, and Mother would have visitation. The order noted that "[t]he current action is a review hearing" initiated by Mother's "Motion for Review" filed on 11 February 2014. The consent order noted that in late 2013 or early 2014, the Brickels had moved to Tennessee. The order included these findings of fact:

13. The parties also stipulate that this consent order resolves all issues that are currently pending between the parties and, upon entry of this consent order, that there are no other outstanding issues concerning the child's placement and welfare in this action.
14. DSS has been released from reunification efforts in this action. (See Permanency Planning Order, Paragraph No. 8, dated January 19, 2011).
15. DSS has also been relieved of any further responsibility in this matter. (See Permanency Planning Order, Paragraph No. 18, dated January 19, 201[1]).
16. The guardian ad litem has been discharged in this action. (See Permanency Planning Order, Paragraph No. 18, dated January 19, 2011).
17. Because DSS and the GAL have been released/discharged, these agency's attorneys' consent to this consent order is unnecessary.

         The order decreed that "the child shall continue to remain in the custody of" the Brickels. It then set forth a detailed visitation schedule for Mother on weekends, holidays, and during the summer school recess; it also made provisions for the transfer of physical custody "at a location that is exactly one-half (1/2) of the distance between Harrimon, Tennessee and Dobson, North Carolina." In addition, the order decreed:

4. DSS is continued to be relieved of reunification and of any responsibility in this action.
5. The GAL is continued to be discharged in this action.
6. This consent order is a final order and it disposes of all outstanding issues in this action.
7. Attorney Marion Boone is hereby released and discharged and attorney Jody P. Mitchell is hereby released and discharged.

         A few years later, in November of 2017, the Brickels filed a motion in Tennessee to register the North Carolina custody order under "T.C.A. 36-6-229" and in the same motion requested modification of the North Carolina order by suspending Mother's visitation. "T.C.A. 36-6-229" provides, "A child-custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state[.]" Tenn. Code Ann. § 36-6-229 (2017). T.C.A. § 36-6-229 allows for registration of child custody orders from another state and is part of Tennessee's Uniform Child-Custody Jurisdiction and Enforcement Act ("UCCJEA"). See id. Registration of the North Carolina custody order in Tennessee allowed for enforcement of the order in Tennessee, but not modification; registration of the order alone does not confer jurisdiction under the UCCJEA. See Tenn. Code Ann. § 36-6-230(b) (2017) ("A court of this state shall recognize and enforce, but may not modify, except in accordance with this part, a registered child-custody determination of a court of another state.") Yet the Brickels' motion also requested modification of the North Carolina order, based upon these allegations:

d. Upon information and belief, the home of . . . [Mother] is not suitable for visits with the minor child.
e. That the minor child is schedule[d] to visit with . . . [Mother] at the beginning of Winter Break and Petitioner seeks that this visit be suspended pending a full hearing on this matter.

         Mother then filed a pro se motion in Tennessee to dismiss the Brickels' motions. 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.)

         The Tennessee court heard the Brickels' motions to register and modify the custody order on 13 December 2017. Mother was present and testified at the hearing in Tennessee. By order entered 12 January 2018, the Tennessee court entered an "ORDER OF TRANSFER TO COURT HAVING JURISDICTION UNDER TCA § 36-6-216 and 229" ("Order of Transfer").[2] The Tennessee "Order of Transfer" found that the minor child and Brickels had lived in Tennessee since 2014 and Mother resided in Virginia. Based upon the findings that neither the child not nor any parties had resided in North Carolina since 2014, the Tennessee court ordered "that this Court is the proper forum to have jurisdiction regarding the minor child, . . . and jurisdiction is hereby transferred." A handwritten notation at the bottom of the order states, "Court directs Ms. Hogg to forward a copy of this order to the Court in Surry County, N.C. "

         By order entered on 18 January 2018, the Tennessee court granted the Brickel's motion to modify visitation, modifying Mother's visitation to allow her only limited supervised visitation in Tennessee. The order notes it is based upon several statutes, including Tenn. Code Ann. § 36-6-216, "Initial custody determination; jurisdiction[;]" -218, "Child-custody determination in another state; modification[;]" and -219, which provides for "[t]emporary emergency jurisdiction" to enter an order if "necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." T.C.A. §§ 36-6-216, -218, -219. But from the findings of fact in the order, it does not appear Tennessee was exercising emergency jurisdiction, as there are no findings of an emergency. Instead, the Tennessee court found only "[t]hat based upon the evidence and testimony presented, there has been a substantial change of circumstances sufficient to temporarily modify the terms of the prior Consent Order."

         On 29 January 2018, the Brickels filed an unverified motion in North Carolina to "stay" Mother's pending motions or to transfer jurisdiction to Tennessee because North Carolina was an "inconvenient forum" under North Carolina General Statute § 50A-207. The Tennessee orders were attached as exhibits to this motion. The trial court in North Carolina began holding a hearing on the pending motions by the Brickels and Mother on 1 February 2018. The Brickels were represented by counsel, and Mother appeared pro se. The trial court heard arguments from the Brickels' counsel and from Mother. The trial court then inquired if Mother would like court-appointed counsel, and she requested court-appointed counsel. The trial court then announced that "[i]n reviewing [the Tennessee] order, I believe he has made his order very clear about transferring jurisdiction to himself, but I believe I need to discuss that with him before I make any further order in this Surry County matter." The trial court then set the next court date, for completion of the hearing, for 1 March 2018.

         On 1 March 2018, Mother's newly-appointed counsel and the Brickels' counsel appeared, and the trial court noted that he had not yet been able to discuss the case with the judge in Tennessee and continued the case to 5 April 2018. On 2 March 2018, the trial court entered an order continuing the completion of the hearing to 5 April 2018 "for communication between Surry County and Tennessee to take place." (Original in all caps.) But the trial court never resumed the hearing which started on 1 February 2018. Instead, on 15 March 2018, a District Court Judicial Assistant for the Surry County District Court sent an email to the Brickels' counsel[3] stating that "Judge Southern has spoken with Judge Humphries in TN and agreed jurisdiction is in Tennessee. Judge Southern request[s] that you prepare an order and notify all parties there will be no need to appear on 4/5/18." On 18 ...

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