In re A.L.L., 254 N.C. App. 252 (2017)

  • Timeline and Facts
    • Sept. 2013: Michigan custody order awards sole custody to mother
    • “Shortly after” Michigan order, mother and children move to NC
    • Oct. 2013: father files motion to modify custody order in MI
    • April 2014: Michigan order modifies custody regarding visitation in NC
    • Sept. 2014: DSS files petition in NC alleging abuse, neglect, and dependency;nonsecure custody granted
    • Nov. 2014: NC and MI judges talk; MI will relinquish jurisdiction; adjudicatory hearing in NC continued to allow time to obtain an order from MI relinquishing jurisdiction
    • Dec. 2014: order from MI relinquishing jurisdiction to NC;  the pre-adjudication, adjudication, and disposition hearing held; mother was present; father was not yet served but provisional counsel for father was present
    • Jan. 2015: adjudication order entered
    • Sept. 2015: DSS locates father in MI; attorney appointed to represent him
    • March 2016: DSS files petition to terminate mother’s and father’s parental rights
    • April 2016: respondent mother and father served with TPR petitions
    • Aug. 2016: hearing on TPRs
    • Nov. 2016: NC orders terminating parental rights of both parents; father appeals claiming lack of subject matter jurisdiction under the UCCJEA
  • The UCCJEA applies to A/N/D actions. The court had temporary emergency jurisdiction to enter nonsecure custody orders as the criteria of G.S. 50A-204(a) were satisfied. The court is not required to make findings of fact to exercise temporary emergency jurisdiction. But, it is required to communicate with another state after it learns that there is a custody determination that was made in that other state [and a parent continues to reside in that other state].
  • The NC court has subject matter jurisdiction to proceed with the action if the criteria for modification jurisdiction under G.S. 50A-203 is satisfied.
    • NC was the children’s home state. A court determines home state jurisdiction based on the physical location of a child and their parent. The children and their mother lived in NC for more than a year before the hearing on the pre-adjudication, adjudication, and disposition.
    • The Michigan court determined NC was a more convenient forum. There was a facially valid order from Michigan ceding jurisdiction to NC. The NC court is not required to collaterally review a facially valid order from another state before exercising modification jurisdiction.
  • Father argues that he was denied due process under the UCCJEA for not receiving notice of and a meaningful opportunity to participate in the jurisdictional decision. His argument is misplaced. The Michigan court as the original decree state is the sole determinant of whether it will relinquish jurisdiction, and any alleged due process denial occurred in Michigan, not NC. In regard to other due process arguments, the lack of service on a respondent in an earlier proceeding does not defeat valid service and notice provided in the TPR action.
Subject Matter Jurisdiction
Modification Jurisdiction
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