In re A.G.M., 241 N.C. App. 426 (2015)

• Procedural History and Facts:

• January 2011, nonsecure custody granted to DSS after A/N/D petition filed; Mother was incarcerated

• At some point, children adjudicated neglected and dependent

• March 2012, permanent plan changed to adoption

• September 2012, mom files motion to dismiss TPR brought by DSS based on lack of subject matter jurisdiction under UCCJEA

• January 2013, DSS dismisses petition and files request for nonsecure custody pursuant to emergency temporary jurisdiction under UCCJEA; Mother is released from prison

• February 25, 2013, nonsecure custody granted to DSS under emergency temporary jurisdiction of UCCJEA

*Author’s Note: it is unclear how nonsecure custody was granted without a petition having been filed. This issue was apparently not before the COA.

• March 2013, new petition filed by DSS alleging children neglected and dependent due to DSS’s custody of the children since 2011, mother’s history of substance abuse and domestic violence, and mother’s incarceration limiting her ability to meet requirements of DSS service plan from the 2011 case.

• July 2013, mother receives DSS service agreement for the 2013 case

• October 2013, KY relinquishes its jurisdiction; service agreement sent to mother

• November 7, 2013, adjudication hearing held

• December 5, 2013, disposition and permanency planning review hearing held

• December 10, 2013, order entered adjudicating children neglected and dependent and ordering mother to engage in therapy and contact the children’s therapist

• February 4, 2014, disposition order entered with concurrent plan of adoption and reunification. Court found mother failed to comply with the service agreement and TPR should be considered due to children being in DSS custody for 31 months. DSS should make efforts to reunify and file a TPR within 60 days

• February 7, 2014 DSS filed motion to terminate mother’s rights

• May 2014, TPR hearing

• September 4, 2014 TPR order entered.

• Because NC did not have subject matter jurisdiction until February 25, 2013, when it exercised emergency temporary jurisdiction under the UCCJEA, all the previous orders are void ab initio. Respondent did not lose legal custody of her children until the nonsecure custody order was entered in February 2013. Prior to the February 2013 nonsecure custody order, neither DSS nor the court had authority to require the mother to comply with any service agreements or court orders. Evidence of her noncompliance may not be considered.

• The children were not removed until NC obtained jurisdiction and entered its adjudication order on December 10, 2013. The ground that the mother willfully left her children in a foster care placement for more than 12 months is not valid when the TPR hearing was held less than 4 months after the children were removed.