Handout 1 - School of Government - University of North Carolina at ...
Handout 1 - School of Government - University of North Carolina at ...
Handout 1 - School of Government - University of North Carolina at ...
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a. Although N.C. was not the children’s home st<strong>at</strong>e when the underlying petition was filed, it was<br />
clear from the record th<strong>at</strong> N.C. had jurisdiction to enter the nonsecure custody order pursuant to<br />
the temporary emergency custody provisions <strong>of</strong> the UCCJEA.<br />
b. If jurisdiction is clear from the record, the trial court is not required to make specific findings <strong>of</strong><br />
fact to support a conclusion th<strong>at</strong> it has jurisdiction, although doing so is the better practice.<br />
c. Because no action was ever filed in Alabama, the temporary emergency order remained in effect<br />
and the N.C. court had jurisdiction when it gave DSS custody.<br />
2. Because the children and mother had been in N.C. more than two years when the termin<strong>at</strong>ion action<br />
was filed and no action had been initi<strong>at</strong>ed in Alabama, N.C. had become the children’s home st<strong>at</strong>e<br />
and the N.C. court had jurisdiction to termin<strong>at</strong>e parental rights.<br />
3. The fact th<strong>at</strong> the f<strong>at</strong>her was never served with a summons in the underlying case did not deprive the<br />
court <strong>of</strong> subject m<strong>at</strong>ter jurisdiction in the termin<strong>at</strong>ion action.<br />
a. In an abuse, neglect, or dependency case failure to serve one <strong>of</strong> the parents, if the other is<br />
properly served, does not deprive the court <strong>of</strong> subject m<strong>at</strong>ter jurisdiction. In re Poole, 151 N.C.<br />
App. 472, 568 S.E.2d 200 (2002), (Timmons-Goodson, J., dissenting), adopted per curiam, 357<br />
N.C. 151, 579 S.E.2d 248 (2003).<br />
b. “Motions in the cause and original petitions for termin<strong>at</strong>ion <strong>of</strong> parental rights may be sustained<br />
irrespective <strong>of</strong> earlier juvenile court activity,” citing In re O.C., 171, N.C. App. 457, 615 S.E.2d<br />
391 (2005).<br />
Service <strong>of</strong> Motion and Notice<br />
In an action to termin<strong>at</strong>e parental rights initi<strong>at</strong>ed by motion in a pending case, DSS’s failure to serve<br />
respondent with notice was error; however,<br />
1. th<strong>at</strong> failure did not deprive the court <strong>of</strong> subject m<strong>at</strong>ter jurisdiction, and<br />
2. respondent waived any objection by filing a response and particip<strong>at</strong>ing in the hearing.<br />
In re C.S.B., ___ N.C. App. ___, 669 S.E.2d 15 (12/2/08).<br />
http://www.aoc.st<strong>at</strong>e.nc.us/www/public/coa/opinions/2008/080881-1.htm<br />
Facts: DSS initi<strong>at</strong>ed a termin<strong>at</strong>ion proceeding by filing a motion in the pending neglect proceeding. DSS<br />
served respondent and her <strong>at</strong>torney with the motion, but not the notice required by G.S. 7B-1106.1.<br />
Respondent filed a response to the motion and particip<strong>at</strong>ed in the hearing through her <strong>at</strong>torney, without<br />
objecting to the sufficiency <strong>of</strong> notice. The court termin<strong>at</strong>ed respondent’s rights.<br />
Held: Affirmed.<br />
1. Failure to serve the required notice on respondent did not affect the trial court’s subject m<strong>at</strong>ter<br />
jurisdiction, because the court had already acquired jurisdiction in the underlying proceeding.<br />
2. Respondent did not preserve for appeal any objection to the lack <strong>of</strong> notice, because she filed a<br />
response and particip<strong>at</strong>ed in the hearing without raising the issue.<br />
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