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

Reversed and Remanded
  • Procedural History and Facts:
    • January 2011, nonsecure custody granted to DSS after A/N/D petition filed (mother was incarcerated).
    • Children adjudicated neglected and dependent
    • March 2012, permanent plan changed to adoption
    • TPR petition filed by DSS, and in September 2012, motion to dismiss is filed by mother based on lack of subject matter jurisdiction due to Kentucky having exclusive continuing 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 and another 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 with void orders may not be considered.
  • It is unclear under what authority the court ordered the respondent mother to participate in therapy in an adjudication order. G.S. 7B-904 authorizes a court to order a parent to participate in therapy in a dispositional or subsequent order. The legal authority to act on an order occurs when it is entered, and the mother was not bound by the conditions of any orders prior to the entry of the first disposition order on February 4, 2014. A TPR that is initiated 3 days later is an insufficient amount of time to determine if respondent willfully abandoned her children. In addition, a TPR hearing that is held 3 months after the disposition is an insufficient period of time for a court to determine if the children are at risk of a repetition of neglect in order to terminate parental rights on the ground of neglect. 
Termination of Parental Rights
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