In the last two years, the North Carolina Supreme Court has published two opinions that answer questions raised about whether a North Carolina district court has personal and/or subject matter jurisdiction to terminate the parental rights of a parent who lives outside of North Carolina. Both opinions are cases of first impression. Both opinions held that the district court had personal jurisdiction over the respondent parent. One opinion held the district court also had subject matter jurisdiction in the TPR action. Both opinions affirmed the challenged TPR orders. Both opinions overturn previous court of appeals opinions on the issues raised. Here’s what you need to know. Continue Reading
Child custody jurisdiction: what happens when everyone leaves the state while the case is pending?
Suppose mother files an action for custody when North Carolina is the home state of the child and mother and father both reside in North Carolina. Temporary orders are entered in the case and a couple of years go by without a permanent order being entered. When mom requests a trial date for entry of a permanent order, dad files a motion to dismiss the case for lack of jurisdiction because mom, the child and dad all now reside in other states. No one resides in North Carolina. Should the case be dismissed?Continue Reading
A Minor’s Consent to Adoption: Where and in What Proceeding Is It Waived?
North Carolina adoption laws are codified in G.S. Chapter 48. I find it to be one of the more difficult Chapters to navigate because it consists of interrelated Articles and Parts. As you get familiar with the Chapter, the procedures and requirements become less challenging to piece together. It is imperative to know these procedures because “the law governing adoptions in North Carolina is wholly statutory.” Boseman v. Jarrell, 364 N.C. 537, 542 (2010).
Under North Carolina adoption laws, before an adoption of an unemancipated minor may be granted, certain consents must be obtained. See G.S. 48-3-601 through -603. One required consent is from the minor adoptee if they are 12 years old or older. G.S. 48-3-601(1). However, that minor’s consent may be waived when the court issues an order based upon a finding that it is not in the minor’s best interests to require their consent. G.S. 48-3-603(b)(2).
What court has jurisdiction to enter the order waiving the minor adoptee’s consent?
The question is circulating due to some recent North Carolina Supreme Court opinions involving appeals of termination of parental rights (TPR) orders. The facts of the opinions indicate the district court in the TPR action waived the juvenile’s consent to the adoption. The issue of whether the district court in a TPR proceeding has subject matter jurisdiction to waive the juvenile’s consent does not appear to have been raised before or decided by the Supreme Court. Instead, the minor’s waiver of consent is discussed by the Supreme Court in its review of the facts when analyzing a challenge to the district court’s determination that the TPR is in the juvenile’s best interests. The factual summaries in the Supreme Court TPR opinions made me sit up in my chair, take notice, and ask the questions in this post. Continue Reading
The Indian Child Welfare Act and Subject Matter Jurisdiction in Child Welfare Actions
The Indian Child Welfare Act (ICWA)* is a complex federal law that applies to abuse, neglect, or dependency (A/N/D); termination of parental rights (TPR); and adoption proceedings. One of the purposes of ICWA is to provide special protections to federally recognized Indian tribes and the tribes’ children and families. See 25 U.S.C. 1901‒1902.
Subject matter jurisdiction between tribal courts and state courts is governed by ICWA when an “Indian child” is the subject of the A/N/D, TPR, or adoption proceeding. When any of the criteria of 25 U.S.C. 1911(a) are met, the tribal court has exclusive subject matter jurisdiction. When that criteria do not exist, ICWA allows for concurrent jurisdiction between state and tribal courts. See 25 U.S.C. 1911(b), (c). The N.C. Court of Appeals (COA) recently published two opinions addressing subject matter jurisdiction under ICWA. In one case, the COA held that the N.C. court had jurisdiction in an adoption proceeding that involved two Indian children. In the other case, the COA remanded for further proceedings in the trial court in part to ensure the trial court had subject matter jurisdiction in the A/N/D action when it was uncertain whether the child was an “Indian child.”
A takeaway from these cases is that the N.C. court is not automatically divested of subject matter jurisdiction when an Indian child is the subject of the proceeding. But, how does the N.C. court know if it has subject matter jurisdiction? Continue Reading
Child Support Modification: Yes, we’re still supposed to file a motion to modify
In 2016, the court of appeals held that a voluntary support agreement that modified an existing child support order was void because neither party filed a motion to modify as required by GS 50-13.7. Catawba County ex. Rel. Rackley, 784 SE2d 620 (N.C. App. 2016). On September 29, 2017, the North Carolina Supreme Court reversed the court of appeals and held that the order was not void.
This is important. Among other things, this decision means that if a court accepts a consent order for modification and the requirements of GS 50-13.7 have not been met, the consent order nevertheless is valid and enforceable. However, GS 50-13.7 still requires that a motion be filed and that the court conclude there has been a substantial change in circumstances before modifying a child support or a child custody order can be modified. The failure to comply with the statute is legal error that will support reversal by the court of appeals if there is a direct appeal.
Which County DSS Files the A/N/D Petition: That Is the Jurisdictional Question!
*SINCE THIS POST WAS PUBLISHED, THE N.C. SUPREME COURT REVERSED AND REMANDED THE COURT OF APPEALS DECISION DISCUSSED BELOW. A new blog post discussing the NC Supreme Court decision can be read here.
Earlier this year, the North Carolina Court of Appeals published In re A.P., 800 S.E.2d 77 (2017), which held that the county DSS that had an open child protective case did not have standing to file a neglect and dependency petition. As a result, the district court did not have subject matter jurisdiction to hear the action, and the adjudication and disposition orders were vacated. Since In re A.P. was decided, there are lots of questions about when a county DSS has standing to file an abuse, neglect, or dependency (A/N/D) petition and what happens in conflict of interest cases requiring a case to be transferred to a different county DSS. Continue Reading
In the Matter of T.K.: Does a Student’s Use of Profanity in the Hallway Constitute Disorderly Conduct at School?
Update: On June 5, 2017, the NC Supreme Court allowed the state’s motion for a temporary stay of the Court of Appeals’ opinion in T.K., which indicates that further appellate review is possible. Pursuant to NC Rules of Appellate Procedure 15(b) and 32(b), the state has until June 20, 2017, to file a petition for discretionary review of the Court of Appeals’ opinion.Continue Reading
Show Me the Statute: The Office and Judicial Authority of the Clerk of Superior Court
I often get asked what I do here at the School of Government. My work focuses on the areas of law where clerks of superior court exercise judicial authority. This response often elicits confusion – especially for people who work outside the NC court system. The next question is inevitably – clerks are judges? Well, the short answer is yes. In addition to carrying out the more traditional roles of a courthouse clerk, such as record-keeper, administrator, comptroller, and supervisor, the clerks of superior court of North Carolina also serve as judicial officials. This is unique to North Carolina. I am not aware of any other state where clerks carry out such a significant, if any, judicial role. So just who is the clerk of superior court and what are the areas of the clerk’s judicial authority? I thought I’d use this post to go over some of the highlights. Continue Reading
It’s Complicated: Venue vs Jurisdiction in A/N/D and TPR Actions
Within North Carolina, the appropriate location of a district court where an abuse neglect or dependency (A/N/D) action is filed is a matter of venue. GS 7B-400. And the appropriate location of the district court where a termination of parental rights (TPR) action is filed is a matter of jurisdiction. GS 7B-1101. Why are they different? Because the statutes governing A/N/D and TPR proceedings have different requirements and impose different limitations on the parties and the court.
The General Assembly has the power to “fix and circumscribe the jurisdiction of the courts,” which can require certain procedures. In re T.R.P., 360 N.C. 588, 590 (2006). A/N/D and TPR cases are statutory in nature and set forth specific requirements that must be followed. Id. In an A/N/D or TPR action, the first place to look is the Juvenile Code (GS Chapter 7B) because it establishes both the procedures and substantive law for these types of juvenile proceedings. See GS 7B-100; -1100. Continue Reading
Courts, Church Disputes, and the First Amendment
Just like other organizations, churches can sue and be sued. Much of the time religious doctrine is not relevant to the dispute, such as when a contractor does a shoddy job building the sanctuary, when the church’s neighbor contests a boundary, or when the church’s van gets into a collision. But sometimes disputes can hinge on, or at least involve, the organization’s beliefs, principles, creeds, or canons. Usually that happens in internal disagreements—actions among the church and its members, officers, directors, or leaders; or between an individual assembly and the larger organizing body. In such cases, the authority of secular courts to decide the outcome is sharply limited by the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution.
Analyzing a church’s internal property dispute, the U.S. Supreme Court stated decades ago that
[F]irst Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.
Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).
When such conflicts arise in North Carolina civil actions, our courts must ask the following: May the court resolve the dispute using only neutral principles of law? If so, the First Amendment does not prohibit the court from exercising jurisdiction. If, instead, deciding the issue would entangle the court in ecclesiastical matters, the court must decline to intervene. See Harris v. Matthews, 361 N.C. 265, 274 (2007). “The dispositive question is whether resolution of the legal claim requires the court to determine or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490, 494 (1998).
North Carolina’s appellate courts have not, of course, had the opportunity to subject every type of internal church dispute to this test. But there are plenty of examples of how it applies—many quite recent—and these are some of the key conclusions: Continue Reading