              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1226

                                Filed: 18 June 2019

Stanly County, No. 18 JT 13

IN THE MATTER OF: D.A.Y.


      Appeal by respondent-mother from order entered 4 September 2018 by Judge

John R. Nance in Stanly County District Court. Heard in the Court of Appeals 30

May 2019.


      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
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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



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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,



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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 and is reviewed de novo on appeal.” In re B.L.H., 239 N.C. App. 52, 58, 767 S.E.2d

905, 909 (2015).

                                     V. Analysis

                           A. Subject Matter Jurisdiction

      “Jurisdiction over termination of parental rights proceedings is governed by

N.C. Gen. Stat. § 7B-1101.” In re. J.M., 249 N.C. App. 617, 619, 797 S.E.2d 305, 306

(2016). Compliance with the UCCJEA, as codified in Chapter 50A of our General

Statutes, is essential to the juvenile court’s subject matter jurisdiction under N.C.

Gen. Stat. § 7B-1101.

             [B]efore 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. Provided, that before
             exercising jurisdiction under this Article regarding the
             parental rights of a nonresident parent, the court shall find
             that it has jurisdiction to make a child-custody
             determination under the provisions of G.S. 50A-201 or G.S.
             50A-203, without regard to G.S. 50A-204 . . . .

N.C. Gen. Stat. § 7B-1101 (2017); see also In re J.D., 234 N.C. App. 342, 345, 759

S.E.2d 375, 378 (2014) (“pursuant to N.C. Gen. Stat. § 7B-1101 and the UCCJEA, we

must determine whether the trial court possessed subject matter jurisdiction under



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N.C. Gen. Stat. §§ 50A-201 or -203”).

       The trial court made findings of fact in support of its assertion and conclusion

of jurisdiction:

              1. That this Court has . . . subject matter jurisdiction . . . .
              There is an existing custody order in favor of the petitioner,
              however, California relinquished continuing, exclusive
              jurisdiction when that State terminated their jurisdiction,
              and when both parties and the minor child subsequently
              moved from the State of California.

              ....

              3. The petitioner . . . is a citizen and resident of Stanly
              County, North Carolina, and has been for more than six (6)
              months next preceding the institution of this action.
              Further, the minor child herein has also been a citizen and
              resident of the State of North Carolina, County of Stanly,
              for more than six (6) months next proceeding the
              commencement of this action.

              4. The respondent is . . . a citizen and resident of the State
              of California.

The court separately concluded that it “has . . . subject matter jurisdiction over the

. . . subject matter herein.”

       Respondent objects to the trial court’s finding that “California relinquished

continuing, exclusive jurisdiction when that State terminated [its] jurisdiction, and

when both parties and the minor child subsequently moved from the State of

California.” To the extent the trial court’s findings of fact refer to the legal effect of

actions taken by the parties or the court in California, they are reviewed de novo as



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conclusions of law. See In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 893

(2004), disc. review denied, 359 N.C. 321, 611, S.E.2d 413 (2005).          Respondent

specifically challenges the trial court’s assessment that the court in California had

“terminated [its] jurisdiction” in the custody proceeding or that North Carolina had

otherwise obtained subject matter jurisdiction under the UCCJEA.

      It is undisputed that a juvenile court in Los Angeles, California, entered a

“Custody Order—Juvenile—Final Judgment” on 18 October 2013 awarding legal and

physical custody of Dylan to Petitioner in case number CK98455, with visitation

awarded to Respondent. This order constitutes a prior child-custody determination

under the UCCJEA. See N.C. Gen. Stat. 50A-102(3) (2017). “‘Accordingly, any change

to that [California] order qualifies as a modification under the UCCJEA.’” In re N.B.,

240 N.C. App. 353, 357, 771 S.E.2d 562, 565 (2015) (quoting In re N.R.M., 165 N.C.

App. 294, 299, 598 S.E.2d 147, 150 (2004)).

      Modification of another state’s child-custody determination is governed by

N.C. Gen. Stat. § 50A-203 (2017), which provides in pertinent part:

             a court of this State may not modify a child-custody
             determination made by a court of another state unless a
             court of this State has jurisdiction to make an initial
             determination under G.S. 50A-201(a)(1) or G.S. 50A-
             201(a)(2) and:

             (1) The court of the other state determines it no longer has
             exclusive, continuing jurisdiction under G.S. 50A-202 or
             that a court of this State would be a more convenient forum
             under G.S. 50A-207; or


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             (2) A court of this State or a court of the other state
             determines that the child, the child’s parents, and any
             person acting as a parent do not presently reside in the
             other state.

N.C. Gen. Stat. § 50A-203(1)-(2) (emphasis supplied).

      We agree with Petitioner the district court in North Carolina could have

asserted “jurisdiction to make an initial [custody] determination” under N.C. Gen.

Stat. § 50A-201(a) based upon Petitioner and Dylan having resided in Stanly County

since 2016. N.C. Gen. Stat. § 50A-203. However, neither of the alternative bases exist

for the court in North Carolina to assert jurisdiction to modify or terminate the

California court’s 2013 initial custody determination under N.C. Gen. Stat. § 50A-

203(1) or N.C. Gen. Stat. § 50-203(2).

      With regard to N.C. Gen. Stat. § 50A-203(1), “[t]he court of the other state,”

i.e., California, did not “determine[] it no longer has exclusive, continuing

jurisdiction” or that “a court of this State would be a more convenient forum.” The

California court’s 18 October 2013 custody order provides as follows:

             9.    As of the date below, the juvenile court
                   a. has terminated jurisdiction over [Dylan]; requests
                   for any modifications of these orders must be
                   brought in the family court case in which these
                   orders are filed under Welfare and Institutions Code
                   section 302(d) or 726.5(c).

                   ....

             13.   The clerk of the juvenile court . . . must transmit this


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                    order within 10 calendar days to the clerk of the
                    court of any county in which a custody proceeding
                    involving the child is pending or, if no such case
                    exists, to the clerk of the court of the county in which
                    the parent given custody resides. The clerk of the
                    receiving court must, immediately upon receipt of
                    this order, file the order in the pending case or, if no
                    such case exists, open a file without a filing fee and
                    assign a case number.

             14.    The clerk of the receiving court must send by first-
                    class mail an endorsed filed copy of this order,
                    showing the case number of the receiving court to:
                    ....

                    b. Father (name and address): Desa Lagorio . . .
                    Northridge, CA 91234 [order erroneously records
                    Respondent’s name and address as that of
                    Petitioner’s, then a resident of South Carolina]

      Although the California juvenile court terminated its own jurisdiction, it did so

for the purpose of transferring custody jurisdiction to the California family court. See

Cal. Welf. & Inst. Code § 726.5(d) (2016); cf. also N.C. Gen. Stat. § 7B-911(a)-(b) (2017)

(authorizing juvenile court, upon awarding custody to a parent, to terminate its own

jurisdiction and direct the clerk of court to enter a civil custody order under Chapter

50 of the North Carolina General Statutes). The trial court in Stanly County properly

noted the nature of the California court’s directive at the outset of the termination

hearing:

             THE COURT: . . . Looking at a custody Order out of the
             state of California. By the terms of that custody Order it
             appears entered October 18th, 2013. It says as of the date
             below which is the same date October 18th, that the juvenile


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             Court has terminated jurisdiction over the . . . child[] we’re
             concerned here with. Uhm, does that, certainly it appears
             that it terminates jurisdiction in the juvenile Court but I’m
             not so sure whether that terminates California’s
             jurisdiction as such.

(Emphasis supplied).

      The trial court proceeded with the hearing based on the parties’ agreement

that North Carolina was Dylan’s home state and Respondent’s waiver of objection “as

far as submitting to the personal jurisdiction of the Court.”

      Because the UCCJEA governs the court’s subject matter jurisdiction, we

conclude the court entering the order under review did not possess subject matter

jurisdiction under N.C. Gen. Stat. § 50A-203(1) based upon Respondent’s waiver.

Moreover, the record before this Court contains no determination by a court in

California that “it no longer has exclusive, continuing jurisdiction” as is required by

N.C. Gen Stat. § 50-203(1).

      With regard to N.C. Gen. Stat. § 50A-203(2), neither the court in California nor

the court at the hearing made a finding that Respondent “do[es] not presently reside

in [California].” N.C. Gen. Stat. § 50A-203(2).          Petitioner alleged, Respondent

admitted, and the trial court found that Respondent “is a citizen and resident of the

State of California.”

      Respondent was served with the petition and summons by certified mail at her

home address in Simi Valley, California.        Petitioner concedes Respondent was



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residing in California at the time he had initiated the termination proceeding in

March 2018. The trial court acquired no jurisdiction to modify the California court’s

child-custody determination under N.C. Gen. Stat. § 50A-203(2) when that court had

not terminated jurisdiction.

                           B. Relocation to Another State

      Petitioner contends Respondent’s act of moving to Nevada for two years had

the effect of ending the California court’s “exclusive, continuing jurisdiction” over

Dylan’s custody, notwithstanding the undisputed fact that Respondent had returned

to and was a resident of California prior to the filing and service of the petition to

terminate her parental rights. Petitioner points to the Official Commentary for N.C.

Gen. Stat. § 50-202, which states as follows:

             Continuing jurisdiction is lost when the child, the child’s
             parents, and any person acting as a parent no longer reside
             in the original decree State. . . . [U]nless a modification
             proceeding has been commenced, when the child, the
             parents, and all persons acting as parents physically leave
             the State to live elsewhere, the exclusive, continuing
             jurisdiction ceases.

             ....

             Exclusive, continuing jurisdiction is not reestablished if,
             after the child, the parents, and all persons acting as
             parents leave the State, the non-custodial parent returns.


N.C. Gen. Stat. § 50A-202, Official Comment (2017); see also Cal. Fam. Code § 3422(a)

(2017).


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      Presuming arguendo the court in California lost exclusive, continuing

jurisdiction when Respondent temporarily relocated from California to Nevada, this

occurrence did not confer jurisdiction upon the district court in North Carolina to

modify the initial custody determination which was entered in California. Subsection

50A-203(1) requires a finding by the court in California that it no longer has

continuing, exclusive jurisdiction, a finding that is not in evidence in the record or in

the order appealed from.

                       C. Parental Kidnapping Prevention Act

      Petitioner also asserts California’s court lost continuing jurisdiction under the

provisions of the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C.A. §

1738A(d) (2019), and notes the PKPA controls over state custody law, where the two

statutes are in conflict. In re Bean, 132 N.C. App. 363, 366, 511 S.E.2d 683, 686 (1999).

Because we presume the court in California lost continuing, exclusive jurisdiction

under the UCCJEA when Respondent temporarily moved out of the state, we observe

no conflict between the relevant state law and the PKPA on this issue.

      Alternatively, N.C. Gen. Stat. § 50A-203(2) requires a finding by either the

court in California or in North Carolina that Respondent does not “presently reside[]”

in California, which is directly contrary to the parties’ stipulations, the evidence and

the trial court’s finding. Cf. In re T.J.D.W., 182 N.C. App. 394, 397, 642 S.E.2d 471,

473 (finding jurisdictional requirement in N.C. Gen. Stat. § 50A-203(2) satisfied by



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evidence that “both parents had left South Carolina at the time of the commencement

of the [North Carolina termination] proceeding”), aff’d per curiam, 362 N.C. 84, 653

S.E.2d 143 (2007).

                                    VI. Conclusion

      The trial court lacked subject matter jurisdiction under either N.C. Gen. Stat.

§ 7B-203(1) or (2) to modify the California court’s child-custody determination.

“‘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.’” In re K.U.-S.G.,

208 N.C. App. 128, 131, 702 S.E.2d 103, 105 (2010) (quoting Hopkins v. Hopkins, 8

N.C. App. 162, 169, 174 S.E.2d 103, 108 (1970)).

      The order terminating Respondent’s parental rights is vacated. See id. at 135,

702 S.E.2d at 108. This cause is remanded for dismissal of the petition for lack of

subject matter jurisdiction. It is so ordered.

      VACATED.

      Judges DILLON and BERGER concur.




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