Opinion
No. 07-1039.
Filed March 4, 2008.
Buncombe County No. 06CVD2918, O3-J245.
Appeal by Defendant Charles Wells, Jr., from orders entered 26 January 2007 and 1 May 2007 by Judge Marvin P. Pope, Jr., in Buncombe County District Court. Heard in the Court of Appeals 4 February 2008.
Cecilia C. Johnson for Plaintiff-Appellee. Michael E. Casterline for Defendant-Appellant Charles Wells, Jr.
In June 2006, Rachel Isaac ("Plaintiff") filed a complaint for custody of her minor child, S.W., naming appellant Charles Wells, Jr.("Defendant"), the father of S.W., and Charles Wells, Sr., the paternal grandfather of S.W., as defendants. The matter was heard in January 2007, and an order granting the Buncombe County Department of Social Services ("DSS") custody of S.W. was entered on 26 January 2007. Defendant sought to have the order vacated, filing motions pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure. The motions were subsequently denied in an order entered 1 May 2007. From these orders, Defendant appeals.
BACKGROUND
In October 2003, when S.W. was an infant, DSS filed a juvenile petition alleging she was neglected. DSS was given nonsecure custody of S.W., and S.W. was subsequently adjudicated neglected. At a permanency planning and review hearing in October 2004, the trial court granted joint custody of S.W. to Defendant and S.W.'s paternal grandfather. In the order entered as a result of that hearing, the court concluded that:
This juvenile file should be inactive and the Buncombe County Department of Social Services, the Guardian ad Litem and the attorneys of record should be released from further responsibility in this matter.
The trial court thus ordered that the "juvenile file is hereby inactive."
In June 2006, Plaintiff filed this civil custody action. In an order filed 26 January 2007, the trial court found that both Plaintiff and Defendant had long histories of mental health problems; that Plaintiff's mental health problems were ongoing; that Defendant had an ongoing substance abuse problem and had been involved in past incidents of domestic violence; and that S.W.'s paternal grandfather had failed to provide a proper level of care for S.W. by not taking action to protect her during periods of substance abuse and violence in her father's home.
The trial court made the following relevant conclusions of law:
2. That a substantial, material change of circumstances has occurred since the entry of the Juvenile Order of November 19, 2004 in File 03 J 245 granting custody to the Defendant-Father and Defendant-Paternal Grandfather which is detrimental to the health, safety and welfare of the minor child. The Defendants are not fit, proper, suitable persons to continue custody of the minor child.
3. That the Plaintiff-Mother is not a fit, proper and suitable person to have the custody of the minor child.
4. That the minor child is a neglected child pursuant to the Chapter 7B of the North Carolina General Statutes in that the Defendants have not provided a safe environment for the minor child due to drugs, domestic violence and exposing the minor child to an unsafe environment. The minor child has lived in an environment injurious to her welfare and has not received proper care from the Defendants.
5. That it is in the best interests of the minor child that the Juvenile File 03 J [245] be immediately activated to deal with the needs of the minor child, [and to] provide a safe environment for the minor child. . . .
The trial court thus ordered that:
1. Juvenile file # 03 J [245], Buncombe County, North Carolina shall be activated immediately to deal with issues of neglect of the minor child, [S.W.] As long as the aforesaid Juvenile file is open, all hearings shall be in juvenile court concerning this minor child.
2. Custody of the minor child, [S.W.], is hereby placed with the Department of Social Services for Buncombe County, North Carolina. Placement of the minor child shall be at the discretion of the Department of Social Services for Buncombe County[;] however[,] the minor child shall not be placed in the home of the Plaintiff or the Defendants pending services being offered to the Plaintiff and the Defendants.
SUBJECT MATTER JURISDICTION
In his first assignments of error, Defendant contends that the Buncombe County District Court lacked subject matter jurisdiction to hear and enter an order in the civil custody action because the juvenile court retained jurisdiction over S.W. We disagree.
"[W]hether a trial court has subject matter jurisdiction is a question of law, which is reviewable on appeal de novo." Ales v. T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455 (2004). The district court division of the General Court of Justice "has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent." N.C. Gen. Stat. § 7B-200(a) (2005). A civil custody action may not proceed while a juvenile matter is pending unless the district court consolidates the actions for hearing. N.C. Gen. Stat. § 7B-200. The court's jurisdiction over the juvenile matter "shall continue until terminated by order of the court or until the juvenile reaches the age of 18 years or is otherwise emancipated, whichever occurs first." N.C. Gen. Stat. § 7B-201(a) (2005).
Here, the Buncombe County District Court obtained jurisdiction over S.W. when DSS filed a juvenile petition in 2003 alleging she was neglected. However, by concluding in its 19 November 2004 Permanency Planning and Review Order that "[t]his juvenile file should be inactive and the Buncombe County Department of Social Services, the Guardian ad Litem and the attorneys of record should be released from further responsibility in this matter[,]" and ordering "[t]hat this juvenile file is hereby inactive[,]" the trial court terminated its jurisdiction over the juvenile matter. See In re P.L.P., 173 N.C. App. 1, 3, 618 S.E.2d 241, 243 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006) (holding that a trial court's jurisdiction over a juvenile matter ceased when it ordered that the Department of Social Services, the Guardian ad Litem, and the attorneys be "released from further responsibility in this matter" and stated "this juvenile file is hereby closed," and that DSS was required to file a new petition alleging neglect in order to initiate a juvenile action).
"The district court division is the proper division . . . for the trial of civil actions and proceedings for . . . child custody. . . ." N.C. Gen. Stat. § 7A-244 (2005). Furthermore, "[a]n action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides." N.C. Gen. Stat. § 50-13.5(f) (2005). Thus, Plaintiff, as a resident of Buncombe County, properly initiated this civil custody action in the Buncombe County District Court. Accordingly, the trial court had subject matter jurisdiction to hear and issue an order in the civil child custody action. Defendant's assignments of error challenging the court's jurisdiction are overruled.
CUSTODY ORDER
Defendant next contends the trial court lacked the authority to grant custody of S.W. to DSS. Specifically, Defendant alleges that while the "North Carolina Juvenile Code contains a provision allowing the court to divert custody in a delinquency proceeding to the local Department of Social Services[,] . . . there is no similar provision allowing the court to divert custody to a local agency in a Chapter 50 proceeding." Defendant misstates the law.
(a) An order for custody of a minor child entered pursuant to [N.C. Gen. Stat. § 50-13.2] shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, [and] the safety of the child . . . and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child.
(b) An order for custody of a minor child may grant . . . exclusive custody to one person, agency, organization, or institution. . . .
N.C. Gen. Stat. § 50-13.2 (2005).
In Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349 (1967), the plaintiff-father filed a civil custody action against the defendant-mother seeking custody of their four children. After a twoday hearing, the trial court determined that neither party was qualified, fit, and suitable to have custody of the children. The court thereupon placed the children in the custody of the Child Welfare Division of the Mecklenburg County Department of Public Welfare. On appeal, the Supreme Court affirmed the trial court's order, noting that, "[w]hile it is true that a parent, if a fit and suitable person, is entitled to the custody of his child, it is equally true that where fitness and suitability are absent he loses this right." Id. at 677, 153 S.E.2d at 351. "Where there are unusual circumstances and the best interest of the child justifies such action, a court may refuse to award custody to either the mother or father and instead award the custody of the child to grandparents or others." Id. at 677-78, 153 S.E.2d at 351 (quotation marks and citations omitted).
Here, after a three-day trial, the trial court made the following relevant findings of fact:
9. The Plaintiff-Mother suffers from mental health problems. . . . These mental health diagnoses include but are not limited to Post Traumatic Stress Syndrome or Disorder, Borderline Personality Disorder requiring the Plaintiff-Mother to receive on-going prescribed medication from her physicians, attendance at Diabolic Behavioral Training Sessions in individual and group therapy and ongoing supervision by various therapists. . . . In addition, the Plaintiff has manifested self-mutilation conduct by slashing herself with various cutlery including serrated edges, screwdrivers and knives on her arms and legs. The last cutting event occurred within the past two years . . . while in the presence of the maternal grandmother who was taking her to the hospital because the Plaintiff was suffering from a panic attack[;] the Plaintiff cut her wrist with a small screwdriver.
. . . .
11. The Plaintiff-Mother is unable at this time to care for the minor child without the assistance of Vicki Weiss, the maternal grandmother in supervising the minor child with the Plaintiff at all times. The maternal grandmother has 450 hours of family leave time from her employment . . . which she is willing to use to supervise the minor child in the custody of the Plaintiff. However this is an insufficient amount of time to adequately supervise the Plaintiff-Mother until her mental health issues are resolved based upon their continuity and longevity since 2003. . . .
12. The Defendant-Father has a long history of substance abuse and mental illness resulting in his hospitalization in Broughton Hospital on at least six in-patient and two out-patient occasions as of his 18th birthday []. At the present time the Defendant-Father is 21 years of age. . . . The Defendant-Father has used various controlled substances for multiple addictions and experimentation including but not limited to alcohol, marijuana, cocaine, LSD, XTC [sic], Jimson Week [sic], Benzodiazepines, opiates, Coricidin, gasoline, glue, methamphetamines, etc. The Defendant-Father has an on-going problem with substance abuse even though he has been hospitalized on the aforesaid occasions and attended an in-patient drug treatment program at Swain Recovery Center. One hospitalization at Broughton was a result of [a] suicide attempt by the Defendant-Father. . . . The Defendant-Father readily acknowledged relapses into the use of illegal controlled substances of marijuana and cocaine . . . in crisis situations which he is unable to handle and control.
13. When incidents of domestic violence, stress, separation or other crisis occurred, it was the response of the Defendant-Father to resort to the use of illegal controlled substances such as marijuana and cocaine to deal with the issues confronting Defendant-Father. . . . The usage of these non-prescribed controlled substances occurred during periods of time the Defendant [had] possession of the minor child in his home.
14. The Plaintiff-Mother and the Defendant-Father were never married[,] however[,] [they] lived together for a short period of time. Domestic violence occurred between the Plaintiff and the Defendant during the time they lived together. The Defendant-Father and Summer Wells were married on February 29, 2004. The marriage experienced multiple problems including drug use by the Defendant-Father on a daily basis, domestic violence and a lack of steady employment by the Defendant-Father rendering financial problems for the couple. The Defendant-Father and Summer Wells also experienced the birth of their child S[]. Summer Wells provided the care for their natural child and for the minor child [who] is the subject of this action. . . . The Defendant exclusively relied upon Summer Wells, the paternal grandmother and the paternal grandfather for child care rather than perform these duties as a Father to the minor child.
15. Incidents of domestic violence occurred multiple times between the Defendant-Father and Summer Wells which culminated twice in Chapter 50B Domestic Violence actions being instituted against the Defendant-Father by Summer Wells in Burke County. These incidents of domestic violence occurred while the two minor children were in the home of the Defendant-Father and Summer Wells. . . . The Defendant-Father has NO visitation with his minor child by Wells until he completes substance abuse assessment and completes treatment. No evidence was received by this Court that the Defendant completed treatment. . . .
16. . . . At this time the relationship between the Defendant and Ms. Wells appears to be terminated.
17. Upon separation from Summer Wells, the Defendant-Father left the former marital home and went to the home of his mother, Susan Wells, hereinafter referred to as the paternal grandmother. While living in the home of the paternal grandmother with the minor child, the Defendant-Father engaged in physical violence with the paternal grandmother. . . . [T]he paternal grandmother kicked the Defendant-Father resulting in a physical incident of violence between the grandmother and Defendant-Father. The paternal grandmother attempted to mitigate these incidents in her testimony by stating that it was her fault due to her mental illness of bi-polar disorder, that her medication was inappropriate or that she did not medicate herself properly. In any event, the minor child was again exposed to domestic violence in a home setting provided by the Defendant-Father to the child's detriment. The paternal grandfather had knowledge of the domestic violence incidents between the Defendant and the paternal grandmother.
18. The Defendant-Paternal Grandfather has had a sporadic relationship with the minor child ranging from having the child for six to eight consecutive weeks to not seeing the child for weeks at a time. . . . The Defendant-Paternal Grandfather failed to provide a level of care for the minor child in several instances including but not limited to the incidents of domestic violence between the Defendant-Father and Summer Wells, the domestic violence between the paternal grandmother and the Defendant-Father. In addition, the Defendant-PGF has had knowledge of the drug usage of the Defendant . . . but yet the Defendant-PGF has not taken the minor child from the Defendant, the paternal grandmother or other caretaker as a responsible custodial parent of a child should do to protect this minor child.
. . . .
20. The minor child is living in conditions in the homes of the Defendant-Father that amount to neglect of the minor child. The Plaintiff-Mother is unable due to her mental condition to provide proper, adequate care or exercise custodial control over the minor child. The Defendant-PGF has not exercised the parental concern and control to adequately protect the minor child from these conditions affecting the safety and health of the minor child.
These findings of fact are uncontested, and, thus, are binding on appeal. In re Beasley, 147 N.C. App. 399, 555 S.E.2d 643 (2001). These findings of fact amply support the trial court's legal conclusions that Plaintiff, Defendant, and S.W.'s paternal grandfather were not "fit, proper, suitable persons" to have the custody of S.W. Thus, pursuant to N.C. Gen. Stat. § 50-13.2 and Wilson, the court had the authority to decline to award custody to either Plaintiff or Defendant and to instead award custody to another party. "Under these conditions there was no course left open to the [trial court] except to place [S.W.] in the hands of some responsible person or agency." Wilson, 269 N.C. at 679, 153 S.E.2d at 351. However, based on these facts, the trial court failed to make the requisite legal conclusion as to what custody determination was in the best interest of S.W. The legal conclusion that "it is in the best interest [] of the minor child that the Juvenile File 03 J [245] be immediately activated to deal with the needs of the minor child," is not legally sufficient to support the order granting custody of S.W. to DSS.
Because the trial court's jurisdiction in juvenile matter 03 J 245 was terminated on 19 November 2004, that juvenile file could not be "activated." In order to properly initiate a new juvenile action, a juvenile petition would have to have been filed and the procedures set out in N.C. Gen. Stat. § 7B-400 would have to have been followed. A juvenile action must be commenced in the district in which the juvenile resides or is present, and if it is not, it must be transferred to the district where the juvenile resides. N.C. Gen. Stat. § 7B-400 (2005).
Here, Defendant, S.W.'s paternal grandfather, and S.W. all resided in Burke County. Therefore, a juvenile petition would have to have been filed in Burke County or filed in Buncombe County and transferred to Burke County. In re S.W., ___ N.C. ___, 654 S.E.2d 831 (2008) (unpublished).
Furthermore, although "[a]ny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child," N.C. Gen. Stat. § 50-13.1(a) (2005), and the trial court "shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child[,]" N.C. Gen. Stat. § 50-13.2(a), these statutes do not give the trial court the authority to grant the custody of a minor child to a party who is not properly before the court. In re Branch, 16 N.C. App. 413, 192S.E.2d 43 (1972). As DSS was not a party to the original civil custody action, it is proper and advisable for DSS to be made a party to the original action to the end that DSS will be subject to the orders of the court. See, e.g., In re Edwards, 25 N.C. App. 608, 611, 214 S.E.2d 215, 217 (1975) ("[W]here the court awarded custody of the child to [a party] who is not a party to the proceeding, we think the proceeding should be remanded with directions that the trial court issue the necessary notices and orders to make [that party] a party to this action to the end that the court has effective jurisdiction over her person."); Branch, 16 N.C. App. at 415, 192 S.E.2d at 45 ("In awarding custody to a person who is not a party to the action or proceeding, it would be proper and advisable for that person to be made a party to the action or proceeding to the end that such party would be subject to orders of the court.").
Therefore, although the trial court had the statutory authority to grant DSS custody of S.W. in this civil custody action, we remand this cause with instructions that the trial court make any additional findings of fact and conclusions of law necessary to support an award of custody that would be in the best interest of S.W.; enter such order or orders joining DSS or any other necessary parties to this action; and enter such civil custody order that, in the opinion of the trial court, best promotes the interest and welfare of S.W.
Affirmed in part and Remanded with instructions.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).