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).
Assistant Appellant Defender Annick Lenoir-Peek for
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.
July 2009, the Surry County Department of Social Services
("DSS") filed a petition alleging
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
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.
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).
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.
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
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
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.)
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"). 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. "
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."
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, 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 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 ...