                               NO. COA14-145

                    NORTH CAROLINA COURT OF APPEALS

                            Filed:   17 June 2014


IN RE: J.D.,                            Mecklenburg County
                                        No. 12 JT 471

A Minor Child




    Appeal by respondent from order entered 25 November 2013 by

Judge Elizabeth T. Trosch in Mecklenburg County District Court.

Heard in the Court of Appeals 29 May 2014.

    Horack, Talley, Pharr & Lowndes, PA, by Elizabeth Johnstone
    James, for petitioner-appellee.

    Rebekah W. Davis for respondent-appellant.


    DAVIS, Judge.


    B.D. (“Respondent”) appeals from an order terminating his

parental rights to his son, J.D. (“Josh”)1, who was born in

August 2006 in Indianapolis, Indiana.          On appeal, Respondent

argues that the trial court lacked jurisdiction to grant the

petition   to   terminate    Respondent’s   parental   rights.   After

careful review, we vacate the trial court’s order and remand for

entry of an order dismissing the petition.

1
  The pseudonym “Josh” is used throughout this opinion to protect
the privacy of the minor child and for ease of reading. N.C.R.
App. P. 3.1(b).
                                          -2-
                               Factual Background

     K.P.      (“Petitioner”)       is    Josh’s   mother.      At     the    time    of

Josh’s     birth,     Petitioner     and       Respondent     lived    together       in

Indiana.       They separated approximately two months after Josh was

born.     On or about 17 December 2008, Respondent filed an action

(“the Indiana Action”) in the Circuit Court of Marion County,

Indiana (“the Indiana court”) seeking custody of Josh.                            On or

about 8 January 2009, the Indiana court entered a consent order

establishing paternity, custody, child support, and visitation.

In 2011, Petitioner moved with Josh to North Carolina, where she

and Josh continue to reside.

     On    2    August      2011,   the    Indiana    court    entered       an    order

modifying      its    child    custody     order     to   permit      visitation      by

Respondent.       On 18 November 2011, the Indiana court suspended

Respondent’s visitation privileges.                On 2 December 2011, Josh’s

paternal grandparents — who live in Indiana — filed a motion to

intervene       for   the     purpose     of    obtaining     visitation          rights

regarding Josh.          The Indiana court dismissed the grandparents’

motion to intervene on 14 December 2011.

     On 18 July 2012, Petitioner filed a petition in Mecklenburg

County District Court seeking to terminate Respondent’s parental

rights to Josh.          On 13 September 2012, in conjunction with his
                                          -3-
answer to the petition, Respondent filed a motion to dismiss on

the grounds of lack of subject matter jurisdiction, lack of

personal jurisdiction, and failure to state a claim upon which

relief can be granted.

     On   7    November     2012,       Respondent       filed    a    motion    for     a

protective order pursuant to Rule 26(c) of the North Carolina

Rules of Civil Procedure seeking to be excused from answering a

set of interrogatories propounded by Petitioner until the trial

court’s      jurisdiction    was    established.            On    18    March        2013,

Petitioner filed a motion to compel Respondent to respond to the

interrogatories      and    also    to     her    request       for    production       of

documents.      On 4 June 2013, a consent order was entered in which

the parties agreed to continue the pretrial conference until 26

June 2013.      Respondent also agreed in this order to respond to

Petitioner’s interrogatories by 21 June 2013.                     The order stated

that if he failed to respond to the interrogatories by this

deadline,      Petitioner       would     be     “entitled       to    request        that

discovery      sanctions    be     levied        against    Respondent”         at    the

pretrial conference.

     Following the pretrial conference, the trial court issued

an   order     on   15   July    2013     in     which     it    concluded      it    had

jurisdiction over both the parties and the subject matter.                              In
                                           -4-
addition, the court sanctioned Respondent for failing to respond

to Petitioner’s first set of interrogatories by prohibiting him

(1)   “from    putting      on     evidence      regarding      any    of   the    issues

contained in Petitioner’s First Set of Interrogatories”; and (2)

from “us[ing] in his defense any information that should have

(or could have) been responsive to Petitioner’s First Set of

Interrogatories . . . .”

      The     trial   court      conducted       adjudication         and   disposition

hearings in connection with Petitioner’s petition to terminate

Respondent’s parental rights on 6 November 2013 and filed an

order   on    25   November        2013    terminating         his    parental    rights

pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) and (7).                           Respondent

filed a timely notice of appeal.

                                      Analysis

      Respondent contends that the order terminating his parental

rights must be vacated because the Mecklenburg County District

Court   lacked     jurisdiction        over      the    subject       matter    and   over

Respondent’s       person     in    that    (1)        the    child    custody    action

regarding Josh originated in Indiana and the Indiana court has

retained subject matter jurisdiction; and (2) Respondent is not

a   resident     of   North      Carolina     and       had    insufficient       minimum

contacts with this State to permit the trial court’s exercise of
                                      -5-
personal jurisdiction over him.             Petitioner argues Respondent

waived any challenge to jurisdiction by not appealing the 15

July 2013 order in which the court concluded it had both subject

matter    and   personal   jurisdiction.        Petitioner   further   argues

that even if the jurisdictional arguments were not waived, the

trial court did, in fact, possess subject matter and personal

jurisdiction over Respondent.

       “Subject matter jurisdiction refers to the power of the

court to deal with the kind of action in question.”               Harris v.

Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987).

With regard to “matters arising under the Juvenile Code, the

court’s subject matter jurisdiction is established by statute.”

In re K.J.L.¸ 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009).

“Subject matter jurisdiction cannot be conferred by consent or

waiver, and the issue          of subject matter jurisdiction may be

raised for the first time on appeal.”            In re H.L.A.D., 184 N.C.

App. 381, 385, 646 S.E.2d 425, 429 (2007), aff’d per curiam, 362

N.C.     170,   655   S.E.2d    712   (2008).      Whether    a   court   has

jurisdiction is a question of law reviewable de novo on appeal.

In re K.U.-S.G., 208 N.C. App. 128, 131, 702 S.E.2d 103, 105

(2010).
                                    -6-
    The    jurisdictional     statute      that     governs     actions       to

terminate parental rights is N.C. Gen. Stat. § 7B-1101, which

provides as follows:

          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.
          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 and that process was served on
          the nonresident parent pursuant to G.S. 7B-
          1106.

N.C. Gen. Stat. § 7B-1101 (2013) (emphasis added).

    The above-referenced statutes listed in N.C. Gen. Stat. §

7B-1101   are   all    provisions   of    the     Uniform     Child   Custody

Jurisdiction    and   Enforcement   Act   (“UCCJEA”),       which   defines    a
                                           -7-
“child-custody determination” as “a judgment, decree, or other

order   of    a    court    providing      for    the   legal   custody,      physical

custody, or visitation with respect to a child.”                             N.C. Gen.

Stat. § 50A-102(3) (2013).                The jurisdictional requirements of

the UCCJEA apply to proceedings for the termination of parental

rights.      In re N.R.M., 165 N.C. App. 294, 298, 598 S.E.2d 147,

149 (2004).

    Because this action sought the termination of nonresident

Respondent’s parental rights, N.C. Gen. Stat. § 50A-204 — which

confers      upon     a    court    of     this     State   temporary        emergency

jurisdiction if the child is within this State and has been

abandoned     or     the   exercise       of     jurisdiction    is    necessary    to

protect the child from mistreatment or abuse — could not provide

the trial court with subject matter jurisdiction in this case.

See N.C. Gen. Stat. § 7B-1101 (“[B]efore exercising jurisdiction

. . . 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 . . . .”                        (emphasis

added)).
                                    -8-
      Thus, pursuant to N.C. Gen. Stat. § 7B-1101 and the UCCJEA,

we   must   determine   whether   the   trial   court   possessed   subject

matter jurisdiction under N.C. Gen. Stat. §§ 50A-201 or -203.

      N.C. Gen. Stat. § 50A-201 provides:

            (a) Except as otherwise provided in G.S.
            50A-204,   a   court  of   this State has
            jurisdiction to make an initial child-
            custody determination only if:

                 (1) This State is the home state of the
                 child on the date of the commencement
                 of the proceeding, or was the home
                 state of the child within six months
                 before   the    commencement   of   the
                 proceeding, and the child is absent
                 from this State but a parent or person
                 acting as a parent continues to live in
                 this State;

                 (2) A court of another state does not
                 have   jurisdiction  under   subdivision
                 (1), or a court of the home state of
                 the child has declined to exercise
                 jurisdiction on the ground that this
                 State is the more appropriate forum
                 under G.S. 50A-207 or G.S.50A-208, and:

                        a.   The child and the child's
                             parents, or the child and at
                             least one parent or a person
                             acting as a parent, have a
                             significant   connection with
                             this State other than mere
                             physical presence; and

                        b.   Substantial      evidence       is
                             available    in    this      State
                             concerning the child's       care,
                             protection,     training,      and
                             personal relationships;
                                     -9-


                  (3) All   courts   having    jurisdiction
                  under subdivision (1) or (2) have
                  declined to exercise jurisdiction on
                  the ground that a court of this State
                  is   the  more   appropriate   forum   to
                  determine the custody of the child
                  under G.S. 50A-207 or G.S. 50A-208; or

                  (4) No court of any other state would
                  have jurisdiction under the criteria
                  specified in subdivision (1), (2), or
                  (3).

           (b) Subsection   (a)  is   the  exclusive
           jurisdictional basis for making a child-
           custody determination by a court of this
           State.

           (c) Physical   presence   of,  or   personal
           jurisdiction over, a party or a child is not
           necessary or sufficient to make a child-
           custody determination.

N.C. Gen. Stat. § 50A-201 (2013) (emphasis added).

    In    the   present    case,   because    the   initial    child    custody

determination was made by the Indiana court, N.C. Gen. Stat. §

50A-201 is inapplicable.        See N.R.M., 165 N.C. App. at 298, 598

S.E.2d at 150 (concluding that N.C. Gen. Stat. § 50A-201 could

not confer subject matter jurisdiction upon North Carolina court

because   initial     custody      determination     had      been     made   in

Arkansas).

    Thus, the only basis by which the trial court could have

conceivably     obtained   subject   matter    jurisdiction      was    through
                                         -10-
N.C. Gen. Stat. § 50A-203.               N.C. Gen. Stat. § 50A-203 provides

that   a   court    of   this    State    may   not   modify   a   child     custody

determination of 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

                    (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.

       Therefore, either of two events would have had to occur in

order for the trial court to have actually                     acquired      subject

matter jurisdiction in this action based on N.C. Gen. Stat. §

50A-203:     (1) a determination by the Indiana court that it no

longer had exclusive, continuing jurisdiction or that a North

Carolina    court    would      be   a   more   convenient     forum;   or    (2)   a

determination by either court that neither Josh nor Petitioner

nor Respondent presently lived in Indiana.                     N.R.M., 165 N.C.

App. at 300-01, 598 S.E.2d at 150-51.
                                           -11-
       The latter prong clearly does not provide subject matter

jurisdiction in this case because Respondent continues to reside

in Indiana.         See In re J.W.S., 194 N.C. App. 439, 448, 669

S.E.2d 850, 856 (2008) (explaining that New York did not lose

continuing jurisdiction over custody of child for purposes of

N.C. Gen. Stat. § 50A-203(2) because juvenile’s mother continued

to reside there).

       Consequently, the first prong of N.C. Gen. Stat. § 50A-203

is the only possible basis for the existence of jurisdiction in

North Carolina.        In its order terminating Respondent’s parental

rights, the trial court concluded that — for purposes of N.C.

Gen.    Stat.   §    50A-203(1)       —    the    Indiana     court   had   declined

jurisdiction over the custody of Josh by dismissing the motion

to     intervene    filed     by    Josh’s        paternal     grandparents.        We

disagree.

       The order of the Indiana court dismissing the grandparents’

motion     consisted   of     three       paragraphs.        The   first    paragraph

identified the motion before the court and the parties present

at   the   hearing.         The    second    and     third    paragraphs     read   as

follows:

                  The Court having considered                 the matters
             before it and after argument                     finds that
             Mother’s Motion to Dismiss must                 be Granted.
             Pursuant to I.C. § 31-17-5-4                    et seq., a
                                           -12-
            Petition for Grandparent Visitation must be
            filed in a circuit, superior or probate
            court of the county in which the child
            resides for all cases filed pursuant to I.C.
            § 31-17-5-1(a)(3).    It is undisputed that
            the minor child resides in Mecklenburg
            County, North Carolina, not Marion County,
            Indiana. Therefore, Marion County, Indiana
            is not the proper venue for this matter.

                 Intervenor’s Request for Grandparent
            Visitation   is  hereby  dismissed without
            prejudice.

    The order dismissing the grandparents’ motion to intervene

was based upon Indiana’s Grandparent Visitation Act, I.C. 31-17-

5-1 et seq., which provides for grandparents to seek visitation

rights in certain limited situations.                     The Indiana Court of

Appeals     has     stated     that     “the      Grandparent    Visitation         Act

contemplates only occasional, temporary visitation that does not

substantially       infringe      on   a     parent’s     fundamental       right    to

control   the     upbringing,      education,       and   religious    training      of

their children.”           Hoeing v. Williams,            880 N.E.2d    1217, 1221

(Ind. Ct. App. 2008) (citation and quotation marks omitted).

North Carolina does not have any statutory provision for an

independent       action   for    grandparents’        visitation     analogous      to

Indiana’s     statute,       although       a     grandparent   can    be     granted

visitation in the context of a custody case between the parents

in some circumstances.           See N.C. Gen. Stat. § 50-13.2(b1).
                                        -13-
       It is clear that the order dismissing the grandparents’

motion to intervene and request for grandparent visitation was

based solely upon Indiana’s venue statute, which requires that

an action for grandparent visitation be filed in the county in

which the child resides.              See I.C. § 31-17-5-4 (“A grandparent

seeking    visitation    rights        shall    file       a   petition      requesting

reasonable visitation rights . . . in a circuit, superior or

probate court of the county in which the child resides . . .

.”).      Specifically, the Indiana court concluded that “Marion

County, Indiana is not the proper venue for this matter.”                           Venue

is designated by statute, and “[i]t has been well settled in

this State for many years that venue is not jurisdictional . . .

.”     Shaw v. Stiles, 13 N.C. App. 173, 176, 185 S.E.2d 268, 269

(1971).      In addition, the Indiana order simply dismissed the

grandparents’ motion “without prejudice,” without any mention of

relinquishing jurisdiction of the custody matter.

       Accordingly,     we     hold     that    the     trial        court    erred     in

concluding that the Indiana court relinquished jurisdiction to

North Carolina’s courts by entering the order in the Indiana

Action     dismissing        the     paternal       grandparents’          motion      for

visitation     rights.             Nothing     in    the       record      evidences     a

determination    by     the    Indiana       court     that     it    no     longer    had
                                   -14-
exclusive, continuing jurisdiction over Josh’s case or that a

North Carolina court would be a more convenient forum.           Because

the trial court lacked subject matter jurisdiction, we vacate

the trial court’s order terminating Respondent’s parental rights

and remand for entry of an order dismissing the petition.             See

In re J.A.P., ___ N.C. App. ___, ___, 721 S.E.2d 253, 254-55

(2012)   (vacating   termination    of    parental   rights   order   and

remanding for entry of order dismissing petition in light of

absence of evidence that New Jersey had determined that it “no

longer ha[d] exclusive, continuing jurisdiction or that a court

of this State [North Carolina] would be a more convenient forum”

(internal quotation marks omitted)).2

                             Conclusion

     For the reasons stated above, we vacate the trial court’s

order terminating Respondent’s parental rights and remand for

entry of an order dismissing the petition.

     VACATED AND REMANDED.

     Judges CALABRIA and STROUD concur.




2
  Because we hold that the trial court did not possess subject
matter jurisdiction, we need not address Respondent’s argument
that the court also lacked personal jurisdiction over him.
