In re T.J.D.W. , 182 N.C. App. 394 ( 2007 )

HUNTER, Judge.

Respondent-mother (“respondent”) appeals from an order terminating her parental rights as to her minor children, T.J.D.W. and J.J.W. After careful review, we affirm.

On 15 May 2004, New Hanover County Department of Social Services (“DSS”) received a referral from medical professionals that respondent’s twenty-three-month-old child, T.J.D.W., had received non-accidental serious bums. T.J.D.W. was transferred from Cape Fear Hospital to the University of North Carolina Hospital burn unit due to the severity of the burns. T.J.D.W. was also diagnosed as undernourished and showed evidence of two older burns and other injuries. DSS filed a juvenile petition on 20 May 2004 and alleged T.J.D.W. was abused and neglected. Respondent was criminally charged as a result of this incident.

In early August 2004, respondent gave birth to J.J.W. Upon release from the hospital, J.J.W. was immediately placed in DSS custody due to the pending allegations of abuse of T.J.D.W. On 26 August 2004, the trial court adjudicated T.J.D.W. as abused and neglected; J.J.W. was adjudicated as neglected on 30 August 2004.

DSS initiated a case plan with a goal of reunification of both children between respondent and their respective fathers. The trial court changed the case plan for T.J.D.W. from reunification to adoption following a permanency planning hearing on 17 February 2005. The trial court also modified J.J.W.’s permanent plan from reunification with respondent to adoption with a concurrent plan of reunification with J.J.W.’s father. After a permanency planning hearing on 11 August 2005, the trial court changed the permanent plan for both children to adoption and ordered DSS to pursue termination of all parental rights. On 14 November 2005, T.J.D.W.’s father relinquished his parental rights.

On 5 December 2005, respondent was found guilty by a jury of felony child abuse inflicting serious bodily injury as a result of T.J.D.W.’s bums from May 2004. Respondent was sentenced to ten to thirteen years of active imprisonment. On 30 December 2005, DSS petitioned to terminate respondent’s parental rights. A hearing on the petition was conducted on 30 May 2006, and the trial court filed an order on 20 July 2006 that terminated respondent’s parental rights to T.J.D.W. and J.J.W. The trial court amended its order on 31 July 2006 to correct a typographical error. Respondent appeals.

I.

Respondent first argues that the trial court lacked subject matter jurisdiction to enter the order in question. This argument is without merit.

Respondent argues that North Carolina courts have no subject matter jurisdiction over proceedings to assign custody or terminate parental rights as to T.J.D.W. because the courts of South Carolina entered orders concerning custody of T.J.D.W. prior to May 2004 (when proceedings began in this case) and the record reflects no evidence that statutory requirements of N.C. Gen. Stat. § 50A-203 to confer subject matter jurisdiction on North Carolina were fulfilled. That is, respondent argues that South Carolina has not relinquished jurisdiction over T.J.D.W., nor is there evidence in the record that North Carolina would be a more convenient fomm or that the child or parents do not reside in South Carolina. We disagree.

Specifically, respondent states that from June 2002 to September 2003, the child was in the custody of Florence County (South Carolina) DSS. Because it appears that South Carolina at that time exercised jurisdiction over T.J.D.W., subject matter jurisdiction remains with that state, and a North Carolina court may not thereafter terminate respondent’s parental rights because that would supersede South Carolina’s determination of custody of T.J.D.W. in violation of N.C. Gen. Stat. §§ 50A-203, -102(11) (2005) (“a court of this State may not modify a child-custody determination made by a •court of another state” except in certain circumstances, and “modify” includes an order superseding a previous determination).

However, North Carolina may issue such an order when two conditions are fulfilled: First, a North Carolina court has jurisdiction to make an initial determination under N.C. Gen. Stat. § 50A-201(a), which states that the state has such jurisdiction if it was “the home state of the child on the date of the commencement of the proceeding”; “home state” is defined as a state where the child lived with a parent “for at least six consecutive months immediately before the commencement of a child-custody proceeding.” N.C. Gen. Stat. §§ 50A-201(a)(l), -102(7) (2005). Second, “[a] court of this State . . . determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state[,]” with “presently” referring to the time of the proceeding. N.C. Gen. Stat. § 50A-203(2).

. Thus, the requirements of both statutes are fulfilled by a trial court’s determination that subject matter exists where it is supported by evidence that the child and a parent (not necessarily both parents) lived in North Carolina for the six months immediately preceding the commencement of the proceeding (20 May 2004), and that the child and both parents had left South Carolina at the time of the commencement of the proceeding. Such is the case here.

At the time of the petition, the child was in the custody of New Hanover County DSS and had been since 20 May 2004; the mother moved to North Carolina in September 2003, bringing T.J.D.W. with her, and at the date of petition was incarcerated in Raleigh, with no indication in the record that between those times she left the state. The child’s father has voluntarily terminated his rights to the child, but at any rate lived in North Carolina at the time of the initial proceeding as evidenced by the order issued on that date that shows his address in Wilmington, North Carolina. There is no evidence in the record that the father ever lived outside of North Carolina at any time relevant to this case.

As respondent points out in her brief, the trial court did not make any findings of fact on this evidence. However, the relevant statutes do not require a finding of fact (although this would be the better practice); N.C. Gen. Stat. § 50A-201(a)(l) states only that certain circumstances must exist, not that the court specifically make findings to that effect, and N.C. Gen. Stat. § 50A-203(2) requires only that a court “determine []” that the relevant parties live in the state. Because the trial court asserted its jurisdiction in the order (“based upon the foregoing findings of fact, the Court CONCLUDES AS MATTERS OF LAW that this Court has Jurisdiction over the subject matter”) and the evidence supports its determination regarding the above statutory requirements, the trial court properly exercised subject matter jurisdiction over this case.

We find the two cases cited by the dissent unpersuasive. The dissent uses the cases to support its conclusion that, because the trial court did not make the specific findings of fact required by these cases to support its assumption of jurisdiction, that assumption was invalid. However, in the first case, Foley v. Foley, 156 N.C. App. 409, 576 S.E.2d 383 (2003), the Court states that it is “troubled” by the lack of information in the record as to the participants’ residency at various times, and remanded the case to the trial court to make findings of fact “because the record is devoid of evidence from which it may be ascertained whether or not the trial court had subject matter jurisdiction[.]” Id. at 413, 576 S.E.2d at 386 (emphasis added). In the second case, Brewington v. Serrato, 77 N.C. App. 726, 336 S.E.2d 444 (1985), the Court’s reference to the lower.court’s “proper findings of fact” concerns not a finding that North Carolina was the child’s home state, but rather findings as to various biographical facts about the participants. Id. at 732, 336 S.E.2d at 448. The trial court in this case found that respondent had received custody of her older child in September 2003, at which point by respondent’s own admission she was living in North Carolina. The record in this case does not present the same troubling lack of evidence and findings that would preclude the trial court’s assertion of jurisdiction; as outlined above, it provides ample evidence as to the whereabouts at the relevant times of all participants.

Before proceeding to respondent’s other arguments, we note that while the order at issue terminated respondent’s rights as to both T.J.D.W. and J.J.W. and her brief and arguments sometimes refer to her rights as to her “children,” the only child named in the brief is T.J.D.W. However, because respondent appeals from an order terminating her rights as to both children, we briefly consider here subject matter jurisdiction as to J.J.W

J.J.W. was born on 5 August 2004 in Wilmington, North Carolina, was immediately taken into custody by New Hanover County (North Carolina) DSS, and has remained in foster care in the state ever since. She has had no contact with any other state, nor has any other state ever asserted jurisdiction over her for any custody proceeding. Because North Carolina is unquestionably J.J.W.’s home state (one of the bases for subject matter jurisdiction per section 50A-201(a)(l)), interstate transfer of jurisdiction was not an issue here, and the trial court properly asserted subject matter jurisdiction over the child.

II.

We next consider respondent’s contention that the trial court erred in concluding that grounds existed to terminate her rights as to T.J.D.W and J.J.W. We find this argument to be without merit.

N.C. Gen. Stat. § 7B-1111 (2005) sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). Here, the trial court found that the grounds established by clear, cogent, and convincing evidence for terminating respondent’s rights were: The child T.J.D.W. was abused and neglected; the child J.J.W. was neglected; respondent willfully abandoned the children for six consecutive months preceding the filing of the petition; respondent left the .children in foster care for more than twelve months without showing that reasonable progress had been made to correct the conditions that led to the children’s removal; the children are dependent within the meaning of N.C. Gen. Stat. § 7B-101; and respondent committed and- was convicted of a felony assault resulting in serious bodily injury to T.J.D.W. N.C. Gen. Stat. § 7B-llll(a)(l), (2), (6), (7), (8).

One of these grounds, that respondent “ha[d] committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home[,]” stems from the incident described above where T.J.D.W. received second-degree burns and was hospitalized for almost a month as a result. N.C. Gen. Stat. § 7B-llll(a)(8). Respondent was convicted of felonious child, abuse inflicting serious bodily injury as a result of the incident, and the trial court made a finding of fact in its order to that effect. Respondent argues that because that conviction was on appeal with this Court, it could not be used as grounds for terminating her parental rights, because were the conviction to be overturned, the relevant finding and conclusion in the trial court’s order would no longer be valid.

However, this Court has since affirmed respondent’s conviction for this crime. State v. Wilson, 181 N.C. App. 540, 640 S.E.2d 403 (2007). As such, it is a valid ground on which to terminate respondent’s parental rights as to T.J.D.W.

Further, N.C. Gen. Stat. § 7B-llll(a)(8) states that parental rights can be terminated where the parent “ha[d] committed a felony assault that results in serious bodily injury to the child, another child, of the parent, or other child residing in the home[.]” Id. (emphasis added). Therefore, the trial court’s further conclusion that this conviction provided a proper basis for terminating respondent’s rights as to J.J.W. was also correct.

Because we find that the trial court properly asserted jurisdiction over both children and based its termination of respondent’s rights as to both children on proper statutory grounds, we affirm the trial court’s order. In light of our holding, we do not address respondent’s remaining assignments of error.

Affirmed.

Judge McCULLOUGH concurs. Judge TYSON dissents in a separate opinion.