                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA15-247

                                    Filed: 15 December 2015

Alexander County, Nos. 11 JT 64-65

IN THE MATTER OF: M.C. and A.C.




      Appeal by respondent-father from orders entered 1 December 2014 and 19

December 2014 by Judge L. Dale Graham in District Court, Alexander County.

Heard in the Court of Appeals 28 October 2015.


      Kimberly S. Taylor for petitioner-appellee mother.

      Blackburn & Tanner, by James E. Tanner III, for respondent-appellant father.

      No brief filed for guardian ad litem.


      STROUD, Judge.


      Respondent appeals from an adjudication order and a disposition order

terminating his parental rights to his biological child A.C. (“Amy”).1 Respondent also

appeals an adjudication order concluding that he is not the biological, legal, or

adoptive father of, and thus has no parental rights to, M.C. (“Mandy”) and a

disposition order regarding Mandy. Because the children resided in Washington



      1   Pseudonyms are used throughout to protect the identity of the children.
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                                  Opinion of the Court



state at the time of the filing of the petition for termination of parental rights, the

trial court did not have subject matter jurisdiction over the action to terminate

parental rights and, we vacate all of the orders on appeal.

                                    I. Background

      Petitioner is the biological mother of Amy and Mandy (collectively, “the

children”). Mandy was born 9 April 2002. Buddy Bentley (“Bentley”), Mandy’s

biological father, is not a party to this appeal. Petitioner and respondent were

married on 2 November 2002. Amy was born to the marriage in December 2004 and

respondent is Amy’s biological father.

      Petitioner joined the United States Army in July 2005 and arranged for the

children to live with her parents during her basic training. Beginning in December

2005, while petitioner was deployed to South Korea, the children lived with

respondent, respondent’s girlfriend, and her eleven-month-old child, Cara. On 9

February 2006, DSS in Rowan County filed two juvenile petitions with respect to

Amy, Mandy, and Cara. The Rowan County trial court entered an order adjudicating

Amy and Mandy neglected and adjudicating Cara both neglected and abused.

      Respondent appealed the Rowan County adjudication of Mandy, Amy and Cara

as neglected juveniles. This Court affirmed the neglect adjudication as to all three

children. In re C.J., M.C., and A.C., 181 N.C. App. 605, 640 S.E.2d 448 (2007)

(unpublished).



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      On 17 July 2006, while the neglect adjudication order for Mandy, Amy and

Cara was still pending on appeal before this Court, the Rowan County trial court

entered several orders granting the physical and legal custody of Mandy and Amy to

petitioner and initially granting respondent supervised visitation with both children,

and later, when petitioner and the children moved to Washington state, telephonic

visitation. Petitioner and respondent were divorced on 28 September 2006. On 4

July 2007,   petitioner married her current husband and moved to the State of

Washington with both children. Since 2007, the children have lived with petitioner

and her new husband in Washington.

      During 2009 and 2010, respondent filed several motions in Rowan County

regarding visitation and contempt, and the Rowan County court entered orders

addressing these issues. On 1 June 2010, the Rowan County court entered its final

review order and order terminating jurisdiction of the juvenile court and converting

the matter to a Chapter 50 action under N.C.G.S. § 7B-911. The court found that

respondent had been exercising his telephonic visitation with the children after

petitioner moved to Washington and that there were no changes in circumstances

since the May 2006 hearing which would support a change in custody.

      On 17 October 2011, in Alexander County, petitioner filed petitions to

terminate respondent’s parental rights to Mandy and Amy on the grounds of neglect,

dependency, and abandonment. The first paragraph in both petitions alleges that



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“the Petitioner and minor child are citizens and residents of Washington State and

have been citizens and residents of Washington State for more than six (6) months

preceding the filing of this action.” The petitions were initially returned unserved,

with a note that respondent lived in Iredell County. Nearly two years later, on 16

August, 2013, an alias and pluries summons was issued to respondent, and the

summons and petition were served on respondent on 20 August 2013. On 29 August

2013, respondent filed an answer to the petition and alleged various defenses,

including that petitioner would not permit him to exercise his telephonic visitation

as required by the Rowan County order and that he had offered to pay child support

but petitioner refused to accept it. On 4 November 2013, respondent filed a motion

to dismiss the petition to terminate his parental rights based upon a lack of

jurisdiction, alleging that the court did not have jurisdiction under the Uniform Child

Custody Jurisdiction and Enforcement Act (“UCCJEA”).

      On 5 February 2014, the Alexander County court entered an order denying

respondent’s motion to dismiss. The trial court found that the Rowan County court

had issued its first order regarding custody of the minor children in 2006. Although

the County court had issued an order in June 2010 terminating jurisdiction, it had

only terminated jurisdiction of the juvenile court and had converted the matter to a

Chapter 50 case under N.C.G.S. § 7B-911(b). The Alexander County court concluded

that North Carolina had “exclusive continuing subject matter jurisdiction” under



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                                  Opinion of the Court



UCCJEA, since respondent continued to reside in North Carolina.

      On 17 September 2014, respondent filed an amended answer to the petition,

in which he alleged that he had filed an acknowledgement of paternity of Mandy on

1 July 2004 in Iredell County. He also acknowledged that he was not Mandy’s

biological father but denied that this fact would be a basis for termination of his

parental rights.

      On 1 December 2014, the trial court entered an order terminating the parental

rights of Bentley, Mandy’s biological father, and on the same day, the court entered

another order which found that respondent is not “the biological, legal, or adoptive

father of the minor child [Mandy]” and concluded that “the respondent has no

parental right to the minor child [Mandy]” and decreed that “Respondent has no

standing to contest a petition for termination of his parental rights to [Mandy] . . .

and any objection to termination by this Respondent is dismissed with prejudice.”

The court also entered adjudication and disposition orders as to Amy.          On 19

December 2014, the trial court terminated respondent’s parental rights to Amy on

the grounds of neglect, failure to pay a reasonable portion of her cost of care, and

abandonment. Respondent filed notices of appeal from all four orders.

                           II. Subject Matter Jurisdiction

      Respondent argues that the trial court lacked jurisdiction to enter its orders

terminating respondent’s parental rights to Amy and concluding he had no parental



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rights to Mandy. Respondent argues that the Rowan County court had jurisdiction

over custody under the UCCJEA but that “the Alexander County court was not

statutorily authorized to exercise such jurisdiction.” Although respondent’s proposed

legal basis for the absence of jurisdiction is incorrect, he is correct that the trial court

did not have subject matter jurisdiction over termination of parental rights. Even

though respondent did not argue the correct statutory basis for the lack of subject

matter jurisdiction, “[i]t is well-established that the issue of a court’s jurisdiction over

a matter may be raised at any time, even for the first time on appeal or by a court

sua sponte.” State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008).

       We review the issue of subject matter jurisdiction de novo:

              Whether a trial court has subject-matter jurisdiction is a
              question of law, reviewed de novo on appeal. Subject-
              matter jurisdiction involves the authority of a court to
              adjudicate the type of controversy presented by the action
              before it. Subject-matter jurisdiction derives from the law
              that organizes a court and cannot be conferred on a court
              by action of the parties or assumed by a court except as
              provided by that law. When a court decides a matter
              without the court’s having jurisdiction, then the whole
              proceeding is null and void, i.e., as if it had never happened.
              Thus the trial court’s subject-matter jurisdiction may be
              challenged at any stage of the proceedings.

Rodriguez v. Rodriguez, 211 N.C. App. 267, 270, 710 S.E.2d 235, 238 (2011) (citation

omitted).

       Respondent’s argument is based upon the UCCJEA, which addresses the

jurisdiction of a particular state to enter orders regarding child custody; it does not


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                                     Opinion of the Court



address which county or district within a state has jurisdiction. But North Carolina

has a specific statute which governs subject matter jurisdiction over cases involving

termination of parental rights. The relevant portion of N.C.G.S. § 7B-1101, which is

entitled “Jurisdiction,” provides that:

              The court shall have exclusive original jurisdiction to hear
              and determine any petition or motion relating to
              termination of parental rights to any juvenile who resides
              in, is found in, or is in the legal or actual custody of a county
              department of social services or licensed child-placing
              agency in the district at the time of filing of the petition or
              motion. The court shall have jurisdiction to terminate the
              parental rights of any parent irrespective of the age of the
              parent. Provided, that before exercising jurisdiction under
              this Article, the court shall find that it has jurisdiction to
              make a child-custody determination under the provisions
              of G.S. 50A-201, 50A-203, or 50A-204. The court shall have
              jurisdiction to terminate the parental rights of any parent
              irrespective of the state of residence of the parent.

N.C.G.S. § 7B-1101 (2013) (emphasis added).

       Our courts have long recognized the statutory jurisdictional requirement that

the juvenile must reside in or be found in the district in which the petition is filed, or

must be in the legal or actual custody of the department of social services or a licensed

child-placing agency at the time of the filing of the petition to terminate parental

rights. See In re D.D.J., 177 N.C. App. 441, 442-43, 628 S.E.2d 808, 810 (2006) (“In

other words, there are three sets of circumstances in which the court has jurisdiction

to hear a petition to terminate parental rights: (1) if the juvenile resides in the district

at the time the petition is filed; (2) if the juvenile is found in the district at the time


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the petition is filed; or (3) if the juvenile is in the legal or actual custody of a county

department of social services or licensed child-placing agency in the district at the

time the petition is filed.” (emphasis in original)). In In re Leonard, this Court

addressed the interplay between the Uniform Child Custody Jurisdiction Act2 and

the statute granting jurisdiction over termination of parental rights.                      See In re

Leonard, 77 N.C. App. 439, 441, 335 S.E.2d 73, 74 (1985). In Leonard, the petitioner-

mother left the state of North Carolina on 10 June 1984 to move to Ohio to join her

new husband and took the parties’ son with her. Id. Four days later, she filed a

petition in Randolph County to terminate the father’s parental rights. Id. Because

the child resided in Ohio on the date of the filing of the termination petition, this

Court vacated the termination order for lack of subject matter jurisdiction under

N.C.G.S. § 7A-289.23.3 Id. at 441, 335 S.E.2d at 74. The Leonard court noted that

the court must have jurisdiction under both the UCCJEA and this jurisdictional

statute to have the power to adjudicate termination of parental rights.

                 Before determining parental rights, the court must find
                 under G.S. § 50A–3 that it has jurisdiction to make a child
                 custody determination. G.S. § 7A–289.23. The court
                 concluded that it would have jurisdiction to determine
                 Michael Leonard’s custody under G.S. § 50A–3 and this
                 conclusion has not been contested. While a determination
                 of jurisdiction over child custody matters will precede a

       2 The UCCJA was later renamed the Uniform Child-Custody Jurisdiction and Enforcement
Act and recodified as N.C.G.S. Chapter 50A, Article 2. The relevant provisions for the purposes of this
case have not been changed.

       3   N.C.G.S. § 7A-289.23 was later recodified and is now N.C.G.S. § 7B-1101, the current statute.

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             determination of jurisdiction over parental rights, it does
             not supplant the parental rights proceedings. The language
             of the statute is that it shall not be “used to circumvent”
             Chapter 50A, not that it shall “be in conformity with”
             Chapter 50A.

             The result in this case is not absurd, but it is nonetheless
             unfortunate.

Id.

      In this case, the very first allegation in the petitions to terminate parental

rights is that the children “are citizens and residents of Washington State.” This fact

alone establishes the lack of subject matter jurisdiction for termination of parental

rights. Respondent’s answers admitted this allegation and all of the evidence and

prior orders entered in Rowan County confirm its truth. Both children have resided

in Washington state with petitioner since 2007; they did not reside in and were not

found in Alexander County when the petition was filed on 17 October 2011. The

children have never been in the legal or actual custody of the Alexander County

Department of Social Services or any child-placing agency.     The Alexander County

court did not have subject matter jurisdiction over the petition for termination of

parental rights under N.C.G.S. § 7B-1101, and the orders on appeal must be vacated.

                                   III. Conclusion

      Because we must vacate the four orders on appeal, both the adjudication and

disposition orders as to Amy and Mandy, for lack of subject matter jurisdiction, we

need not address the other issues raised by respondent’s brief.


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VACATED.

Judges CALABRIA and DAVIS concur.




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