                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA15-754

                                    Filed: 15 December 2015

Greene County, No. 14 JA 20

IN THE MATTER OF: T.N.G.


      Appeal by respondent from order entered 16 March 2015 by Judge R. Les

Turner in Greene County District Court. Heard in the Court of Appeals on 23

November 2015.


      Baddour, Parker, Hine & Hale, P.C., by Helen S. Baddour, for petitioner-
      appellee.

      Assistant Appellate Defender J. Lee Gilliam, Esq., for respondent-appellant.

      Womble Carlyle Sandridge & Rice, LLP, by G. Criston Windham and
      Georgiana L. Yonuschot, for guardian ad litem.


      ZACHARY, Judge.


      Respondent-father appeals from an order adjudicating his daughter “Tanya”1

to be a neglected and dependent juvenile. On appeal respondent argues that the trial

court erred by assuming emergency jurisdiction over the case; that “as a matter of

due process, North Carolina does not have jurisdiction over children who are alleged

to have been neglected in other states”; that the trial court erred by adjudicating

Tanya to be a neglected and dependent child; and that the trial court erred in its



      1   To protect the juvenile’s privacy, we refer to the child by the pseudonym “Tanya.”
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dispositional order. We hold that the trial court had jurisdiction over this matter,

and that the trial court did not err by adjudicating Tanya to be neglected or in its

dispositional order, but that the trial court erred by adjudicating Tanya a dependent

juvenile.

                          I. Factual and Procedural Background

      Tanya was born in North Carolina in September 2005, and between 2005 and

2009, Tanya lived in North Carolina with either her mother Kia Collins or her

paternal grandparents, Mr. and Mrs. Harris (“her grandparents”). When Tanya

began kindergarten she lived with her mother, also in North Carolina, but continued

to visit her grandparents on weekends and during school vacations. In 2013 Tanya

started living with respondent, and in November 2013 respondent traveled to South

Carolina with Tanya. For the next few months, respondent and Tanya lived with

respondent’s half-brother, Mr. Griffin, and Mr. Griffin’s girlfriend. At some point in

2014, respondent returned to North Carolina without Tanya, and after respondent’s

departure, Mr. Griffin took Tanya to live with Mr. Griffin’s stepmother, Ms. Hunter,

in Spartanburg, South Carolina. While Tanya stayed with Ms. Hunter, she shared a

bed with two other children: a girl and a seven year old boy. The younger boy tried

to kiss Tanya and touch her private parts on several occasions, but Tanya successfully

rebuffed the child’s behavior. In May 2014, Ms. Hunter asked her mother-in-law,

Ms. Grady, if she “want[ed] a little girl.” Ms. Grady agreed to take Tanya and



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accordingly Tanya was moved again, this time to stay with Ms. Grady, also in South

Carolina. Ms. Grady was seventy-eight years old and had limited mobility. In

September 2014, Ms. Grady decided that she could no longer care for Tanya, due to

Ms. Grady’s advanced age and health limitations. Ms. Grady contacted Tanya’s

grandparents in North Carolina, who came to South Carolina in late September 2014

and removed Tanya to their home in Greene County, North Carolina.

      On 3 October 2014, Tanya’s grandparents contacted the Greene County

Department of Social Services (“DSS”) to report that they had brought Tanya from

South Carolina to Greene County, North Carolina, after their son, respondent, had

left Tanya in South Carolina. On 16 October 2014, DSS conducted a meeting that

was attended by respondent and Tanya’s grandparents, but not by Tanya’s mother.

At the meeting, respondent admitted that he had left Tanya in South Carolina and

that he was not presently employed. On 16 October 2014, DSS filed a juvenile

petition alleging that Tanya was a neglected and dependent juvenile. DSS was

awarded non-secure custody of Tanya and she was placed in the home of her

grandparents.

      On 21 October 2014, the trial court held a hearing on respondent’s motion to

dismiss the petition for lack of subject matter jurisdiction. The trial court found that

Tanya was left in South Carolina by respondent, transported back to North Carolina

by her grandparents, and that no juvenile or domestic action concerning the juvenile



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was pending in South Carolina.        The court concluded that it had temporary,

emergency jurisdiction pursuant to N.C. Gen. Stat. § 50A-204 and denied

respondent’s motion to dismiss. The court continued nonsecure custody with DSS

and placement with her grandparents. On 16 February 2015, the court conducted an

adjudication and disposition hearing. On 16 March 2015, the trial court entered an

order adjudicating Tanya as a neglected and dependent juvenile.           The court’s

disposition order continued legal custody with DSS and placement of Tanya with her

grandparents, established a plan of reunification with respondent, and directed

respondent to take certain actions. Respondent appealed.

                                       II. Jurisdiction

      Respondent argues first that the court erred by exercising emergency

jurisdiction in violation of the Uniform Child Custody Jurisdiction and Enforcement

Act (“UCCJEA”). Respondent argues that the court lacked emergency jurisdiction

because there was no evidence that Tanya had been abandoned or that there was an

emergency. We conclude that the trial court had jurisdiction under N.C. Gen. Stat. §

50A-201(a)(2) and therefore have no need to reach the issue of whether the trial court

also had emergency jurisdiction.

      The issue of a court’s 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



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jurisdiction is a question of law reviewable de novo on appeal. In re K.U., 208 N.C.

App. 128, 131, 702 S.E.2d 103, 105 (2010). Under the de novo standard of review,

this Court “considers the matter anew and freely substitutes its own judgment for

that of the [trial court].” In re Appeal of the Greens of Pine Glen Ltd. P’ship, 356 N.C.

642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v. Randolph Cty.

Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).

      “In 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). The UCCJEA is a jurisdictional statute, and its provisions must be

satisfied in order for a court to have authority to adjudicate abuse, neglect and

dependency petitions filed under the Juvenile Code. In re Brode, 151 N.C. App. 690,

692, 566 S.E.2d 858, 860 (2002). In making this determination, we are not restricted

to consideration of the jurisdictional basis cited by the trial court. Gerhauser v. Van

Bourgondien, __ N.C. App. __, __, 767 S.E.2d 378, 384 (2014) (“whether the trial court

should or should not have made any changes to the original order as to jurisdiction,

our inquiry is still the same: we must review de novo whether there was any ground

for the exercise of subject matter jurisdiction under the UCCJEA”).

      N.C. Gen. Stat. § 50A-201(a) provides in relevant part:

             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:



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               (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; [or]

               (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[.] . . .

      N.C. Gen. Stat. § 50A-102(7) defines a child’s “home state” as “the state in

which a child lived with a parent or a person acting as a parent for at least six

consecutive months immediately before the commencement of a child-custody

proceeding.”    In this case, it is undisputed that Tanya, her parents, and her

grandparents all lived in North Carolina from the time of Tanya’s birth, with the

exception of a ten month period from November 2013 through September 2014, when

Tanya and respondent were in South Carolina. “We generally determine jurisdiction

by examining the facts existing at the time of the commencement of the proceeding.”

Gerhauser, __ N.C. App. at __, 767 S.E.2d at 390. This proceeding was commenced

on 16 October 2014 with DSS’s filing of a petition alleging that Tanya was a neglected

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and dependent juvenile. At that time Tanya had been back in North Carolina for a

few weeks. In this circumstance, neither South Carolina nor North Carolina was

Tanya’s “home state,” because neither was “the State in which a child lived with a

parent or a person acting as a parent for at least six consecutive months immediately

before the commencement of a child-custody proceeding.”

      Because neither North Carolina nor South Carolina was Tanya’s home state

at the time the petition was filed, jurisdiction was not conferred on either state by the

language in N.C. Gen. Stat. § 50A-201(a)(1) granting jurisdiction to a state that is

“the home state of the child on the date of the commencement of the proceeding.” N.C.

Gen. Stat. § 50A-201(a)(1) also establishes jurisdiction for a state that “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[.]” Although South Carolina was Tanya’s home state “within six

months before the commencement of the proceeding” and Tanya was absent from

South Carolina when the petition was filed, no “parent or person acting as a parent”

was living in South Carolina when the petition was filed. As a result, neither North

Carolina nor South Carolina had jurisdiction under N.C. Gen. Stat. § 50A-201(a)(1).

      N.C. Gen. Stat. § 50A-201(a)(2) confers jurisdiction to a state if “[a] court of

another state does not have jurisdiction under subdivision (1) . . . and:

                    a. The child and the child’s parents, or the child and
                    at least one parent or a person acting as a parent,


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                      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[.]

       In this case neither North Carolina nor South Carolina was Tanya’s home state

and the evidence is undisputed that (1) Tanya, her parents, and her grandparents

(who were “acting as” parents) all were living in North Carolina, and (2) substantial

evidence was available in North Carolina concerning Tanya’s “care, protection,

training and personal relationships.”

                If there is no home state, N.C. Gen. Stat. § 50A-201(a)(2)
                then directs that “a court of this State has jurisdiction to
                make an initial child-custody determination” where [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. This jurisdiction is normally
                referred to as ‘significant connection’ jurisdiction.

Gerhauser, __ N.C. App. at __, 767 S.E.2d at 390. We conclude that the trial court

had jurisdiction under N.C. Gen. Stat. § 50A-201(a)(2). Having reached this

conclusion, we have no need to address the parties’ arguments concerning emergency

jurisdiction.

                      III. Evidence of Events Occurring in South Carolina

       Respondent argues next that his state and federal right to due process was

violated by Tanya’s adjudication as neglected based on evidence of events that

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occurred in South Carolina, because respondent had no power to subpoena witnesses

from South Carolina. In addition, respondent contends that it is “fundamentally

unfair for a parent who is within the normative standards of parental fitness in

another State . . . to be deprived of his fundamental liberty interest in his child by the

courts of North Carolina because the acts committed in the other State were

considered [to] be below the normative standards of fitness in North Carolina.” We

disagree.

      Respondent bases his appellate argument on an alleged violation of his right

to due process under the North Carolina and United States Constitutions.

Respondent did not raise this issue before the trial court, or make any argument

concerning his constitutional right to due process.        “[I]t is well settled that a

constitutional issue not raised in the lower court will not be considered for the first

time on appeal. We therefore decline to address this issue.” In re S.C.R., 198 N.C.

App. 525, 530, 679 S.E.2d 905, 908 (citing State v. Benson, 323 N.C. 318, 321-22, 372

S.E.2d 517, 519 (1988)), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).

      Respondent also asserts that it is “fundamentally unfair” for Tanya to be

adjudicated neglected based on events that occurred in South Carolina, on the

grounds that his “parental fitness” was “within the normative standards” of South

Carolina, but his actions are “considered to be below the normative standards of

fitness in North Carolina.” Assuming, arguendo, that two states could have differing



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“normative standards” of “parental fitness” as related to neglect of children,

respondent fails to identify any differing “normative standards” relevant to the

present case. It is undisputed that after respondent left Tanya in South Carolina,

she was shifted among various adults whose relationship to the child was

increasingly attenuated. Eventually, Tanya was sent to live with a seventy-eight

year old woman who was respondent’s half-brother’s stepmother’s mother-in-law. We

discern no “normative standard” that would make such a haphazard arrangement

acceptable in either North Carolina or South Carolina. This argument is without

merit.

                               IV. Adjudication of Neglect

         Respondent next contends that the court erred by concluding that Tanya was

a neglected juvenile. We disagree.

         N.C. Gen. Stat. § 7B-101(15) defines a “neglected juvenile” in relevant part as

a “juvenile who does not receive proper care, supervision, or discipline from the

juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned . . .

or who lives in an environment injurious to the juvenile’s welfare[.]” “This Court has

‘required that there be some physical, mental, or emotional impairment of the

juvenile or a substantial risk of such impairment as a consequence of the failure to

provide proper care, supervision, or discipline’ in order to adjudicate a juvenile

neglected.” In re C.M., 198 N.C. App. 53, 63, 678 S.E.2d 794, 800 (2009) (quoting In



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re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations omitted), and

citing In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).

      “The allegations in a petition alleging that a juvenile is abused, neglected, or

dependent shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-

805 (2013). “ ‘The role of this Court in reviewing a trial court’s adjudication of neglect

and abuse is to determine (1) whether the findings of fact are supported by clear and

convincing evidence, and (2) whether the legal conclusions are supported by the

findings of fact[.]’ ‘If such evidence exists, the findings of the trial court are binding

on appeal, even if the evidence would support a finding to the contrary.’ ” In Re

S.C.R., 217 N.C. App. 166, 168, 718 S.E.2d 709, 711 (2011) (quoting In Re T.H.T., 185

N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) (internal quotation omitted), aff'd as

modified, 362 N.C. 446, 665 S.E.2d 54 (2008)).

      In this case, respondent asserts that the facts found by the trial court do not

support its conclusion of law that Tanya is a neglected juvenile. The trial court’s

findings included the following:

             2. That the juvenile is in the custody of [DSS] and has been
             placed with Charles and Velma Harris.

             3. That the Court has talked with the juvenile in chambers
             with the consent of the father, the Guardian ad Litem and
             the petitioner.

                                           ...




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             5. That the mother of the juvenile has taken no part in this
             matter.

                                          ...

             9. That the juvenile has been sexually abused on at least
             5 occasions and was sleeping in the bed with a male.

             10. That in South Carolina the father of the juvenile left
             the juvenile with “Grandma Shirley” and “Grandma
             Mamie” and when the juvenile was at “Grandma Shirley’s”
             house she slept in the same bed as a 7 year old boy.

             11. That the juvenile was left in the house of the uncle and
             the juvenile saw the uncle using marijuana in her presence
             and had seen the father using marijuana also.

                                          ...

             13. That the father went to North Carolina while the
             juvenile was in South Carolina.

             14. That the father would, on occasion, fall asleep on the
             couch and could not be awakened.

                                          ...

             16. That the juvenile has had a switch used on her bottom.

      Respondent’s challenge to the evidentiary support for these findings is limited

to his argument that the evidence does not support the trial court’s characterization

of Tanya’s interactions with her younger cousin as “sexual abuse.” The evidence

showed that while Tanya stayed with Ms. Hunter, Tanya shared a bed with two other

children, including her younger seven year old male cousin. Tanya’s cousin tried on

five occasions to kiss Tanya or touch her private parts, but Tanya was able to rebuff


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the child’s behavior.     Regardless of whether these incidents between two young

children rise to the level of “sexual abuse,” we conclude that this circumstance is

significant evidence that Tanya “d[id] not receive proper care [or] supervision[.]” We

further determine that the trial court’s findings support a conclusion that Tanya was

a “juvenile who does not receive proper care, supervision, or discipline from the

juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned . . .

or who lives in an environment injurious to the juvenile’s welfare[.]” In addition, we

conclude that the trial court’s findings that, inter alia, Tanya had been present when

adults used marijuana, had to sleep with a boy who behaved inappropriately, and

was passed from one adult to another without any determination by respondent that

Tanya’s successive caretakers were fit guardians, establishes that Tanya was at a

“substantial risk of harm or impairment.” We conclude that the trial court did not

err by adjudicating Tanya a neglected juvenile and that respondent’s arguments on

this issue lack merit.

                         V. Adjudication of Tanya as a Dependent Child

      Respondent next contends that the court erred by adjudicating Tanya a

dependent juvenile. A juvenile is dependent if his “parent, guardian, or custodian is

unable to provide for the juvenile’s care or supervision and lacks an appropriate

alternative child care arrangement.” N.C. Gen. Stat. § 7B-101(9) (2013). “Under this

definition, the trial court must address both (1) the parent’s ability to provide care or



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supervision, and (2) the availability to the parent of alternative child care

arrangements.” In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).

“Findings of fact addressing both prongs must be made before a juvenile may be

adjudicated as dependent, and the court’s failure to make these findings will result

in reversal of the [trial] court.” In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d 644, 648

(2007) (citation omitted).

      In this case, the parties agreed that the trial court’s decision on adjudication

would be based solely on the content of the trial court’s conversations with Tanya in

chambers. Therefore, neither petitioner nor respondent presented evidence. There

is no indication in the record that Tanya attempted to provide the trial court with

information about respondent’s ability to care for her, or that she would have been

competent to do so. We agree with respondent that the order contains no findings to

support the trial court’s conclusion that respondent is unable to provide for the care

or supervision of Tanya. We therefore reverse the adjudication that Tanya is a

dependent juvenile.

                                  VI. Dispositional Order

      Respondent lastly maintains that the court exceeded its dispositional authority

by ordering respondent to maintain stable employment and to obtain a domestic

violence offender assessment and follow recommendations of the assessment. We

disagree.



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      N.C. Gen. Stat. § 7B-901 provides that the “dispositional hearing may be

informal and the court may consider written reports or other evidence concerning the

needs of the juvenile. . . . The court may consider any evidence, including hearsay

evidence as defined in G.S. 8C-1, Rule 801[.]” “We review a dispositional order only

for abuse of discretion. ‘An abuse of discretion occurs when the trial court’s ruling is

so arbitrary that it could not have been the result of a reasoned decision.’ ” In re B.W.,

190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008) (quoting In re Robinson, 151 N.C.

App. 733, 737, 567 S.E.2d 227, 229 (2002) (quoting White v. White, 312 N.C. 770, 777,

324 S.E.2d 829, 833 (1985)).

      Nonetheless, the trial court’s authority over the parents of a juvenile who is

adjudicated as neglected is limited by N.C. Gen. Stat. § 7B-904, which provides that:

             (d1) At the dispositional hearing . . . the court may order
             the parent . . . to do any of the following: . . . (3) Take
             appropriate steps to remedy conditions in the home that
             led to or contributed to the juvenile’s adjudication or to the
             court’s decision to remove custody of the juvenile from the
             parent[.]

For a court to properly exercise the authority permitted by this provision, there must

be a nexus between the step ordered by the court and a condition that is found or

alleged to have led to or contributed to the adjudication. In re H.H, ___ N.C. App. __,

___ , 767 S.E.2d 347, 353 (2014). In H.H., we noted that the “[r]espondent-mother's

inability to properly care for the juveniles may well be due to employment, financial,

and/or housing concerns,” but held that the trial court erred by ordering the mother


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to maintain stable housing and employment where “the petitions did not allege and

the district court did not find as fact that these issues led to the juveniles’ removal

from Respondent-mother’s custody or formed the basis for their adjudications.” Id.

The present case is distinguishable from H.H., in that the addendum to the petition

states in pertinent part that:

               [Respondent] acknowledged that he left [Tanya] with
               Mamie Grady in South Carolina and did not bring her back
               to North Carolina when he came back here. [Respondent]
               reports that he is unemployed and unable to care for
               [Tanya] at this time. [Respondent] stated that he and his
               wife have reunited, information [that Respondent’s]
               parents dispute, but [DSS] has concerns of their admitted
               domestic violence history. To ensure the safety and well-
               being of [Tanya, DSS] is requesting non-secure custody of
               [Tanya] and that she be allowed to remain in the home of
               [her grandparents.] (Emphasis added.)

The record evidence establishes a nexus between the circumstances that led to

Tanya’s removal from respondent’s custody and the trial court’s dispositional order

directing respondent to maintain stable employment, to obtain a domestic violence

assessment, and to cooperate with any recommendations. Accordingly, this argument

lacks merit.

      For the reasons discussed above, we conclude that the trial court’s adjudication

and disposition orders should be

      AFFIRMED IN PART, REVERSED IN PART.

      Judges McCULLOUGH and INMAN concur.



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