STROUD, Judge.
Plaintiffs sued for custody of defendant's children and were awarded visitation. Defendant filed a motion to dismiss. The trial court denied defendant's motion to dismiss and awarded plaintiffs visitation with the children. For the following reasons, we affirm the portion of the trial court order which denied defendant's motion to dismiss, and we reverse that portion of the trial court order which awarded plaintiffs visitation with the children.
This appeal arises from a custody action between plaintiffs, the paternal grandparents of Matt and Nan
This case presents two issues regarding subject matter jurisdiction. The first issue, regarding the exclusive jurisdiction of the juvenile court, we raise sua sponte. State v. Webber, 190 N.C. App. 649, 650, 660 S.E.2d 621, 622 (2008) ("It is well-established that the issue of a court's jurisdiction over a matter may be raised at any time, even for the first time on appeal or by a court sua sponte."). The second issue, regarding the denial of defendant's motion to dismiss for plaintiffs' lack of standing, was argued by the appellant. See Estate of Apple v. Commercial Courier Express, Inc., 168 N.C. App. 175, 177, 607 S.E.2d 14, 16 ("If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim."), disc. review denied, 359 N.C. 632, 613 S.E.2d 688 (2005).
McKoy v. McKoy, ___ N.C.App. ___, ___, 689 S.E.2d 590, 592 (2010) (citations and quotation marks omitted).
While the record shows that the juvenile court obtained jurisdiction over the children and adjudicated them as dependent, it does not clearly demonstrate that the juvenile court terminated its jurisdiction. On 22 February 2008, the Brunswick County Department of Social Services filed its petition alleging abuse, neglect, and dependency. Soon thereafter, on 3 March 2008, plaintiffs filed their Chapter 50 complaint seeking custody of the children.
N.C. Gen.Stat. § 7B-201(a) (2007). Here, as the juvenile court obtained jurisdiction over the children, see N.C. Gen.Stat. 7B-200(a), the juvenile court had continuing exclusive jurisdiction unless jurisdiction was "terminated by order of the court[.]" N.C. Gen.Stat. §§ 7B-200(a), -201(a).
The record on appeal before our Court did not include any orders from the juvenile court subsequent to the 5 May 2008 adjudication order. Under these circumstances, it is appropriate for this Court to take judicial notice of the 4 August 2008 juvenile review order which was entered in the juvenile case. See In re Stratton, 159 N.C. App. 461, 462, 583 S.E.2d 323, 324 (referring to an order terminating the parental rights of the appellant by stating, "[t]his Court is entitled to take judicial notice of this recent order"), disc. review denied and appeal dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003). Thus, we must consider whether the juvenile review order is an order which terminates the jurisdiction of the juvenile court under N.C. Gen.Stat. § 7B-201(a). Unfortunately, the juvenile review order does not make the answer to this question obvious.
In the juvenile review order, the juvenile court made the following findings of fact:
The juvenile court ordered:
Although the juvenile review order continued physical custody with defendant and returned legal custody to defendant, it included a provision requiring her to continue providing "dental and medical care for the children[,]" but without setting out any details as to the actual "dental and medical care" she must provide. The juvenile review order further provided that the children "shall continue to receive speech, and occupational therapy and psychological therapy" but did not state who was to provide the therapy. By relieving DSS and the Guardian ad Litem program of responsibility as to the children and by vacating "any prior custody order" the juvenile court seems to have indicated its intent to end its involvement with the children entirely.
In In re S.T.P., this Court concluded that merely ordering that a case is closed is not sufficient to terminate jurisdiction. ___ N.C.App. ___, ___, 689 S.E.2d 223, 227 (2010). In addition, relieving the Department of Social Services of further responsibility in a case does not terminate jurisdiction of the juvenile court. See In re Baby Boy Scearce, 81 N.C. App. 531, 542, 345 S.E.2d 404, 411, disc. review denied, 318 N.C. 415, 349 S.E.2d 589 (1986). We find that this case is distinguishable from S.T.P. and Scearce as the juvenile review order here contains additional language which, upon consideration of the order as a whole, we conclude terminates jurisdiction of the juvenile court.
In S.T.P., the trial court noted that in the order which "closed" the case that
S.T.P. at ___, 689 S.E.2d at 227 (citation and quotation marks omitted). In contrast to S.T.P., the juvenile review order returned defendant herein to her status prior to the filing of the petition, as she kept physical custody and regained legal custody of the children. In Scearce, the order which relieved the Department of Social Services of responsibility as to the juvenile also
Scearce at 542, 345 S.E.2d at 411. In Scearce, although DSS ceased its involvement with the case, the order anticipated
Because the juvenile review order herein placed the children in both the physical and legal custody of defendant, ended involvement of both DSS and the Guardian ad Litem program, and included no provisions requiring ongoing supervision or court involvement, we conclude that the order terminated the jurisdiction of the juvenile court over the children as contemplated by N.C. Gen.Stat. § 7B-201(a). Accordingly, the trial court had subject matter jurisdiction to consider plaintiffs' custody claim as the juvenile matter had been terminated; however, we stress the need for the parties to include sufficient documentation in the record to demonstrate subject matter jurisdiction and the need for the juvenile courts to be mindful of the requirements of N.C. Gen.Stat. § 7B-201(a) when terminating juvenile court jurisdiction.
Defendant first argues that "the trial court erred in denying her motion to dismiss... for lack of standing." (Original in all caps.) At this point, we should make a distinction which has not been clearly made in many cases: Although it is axiomatic in custody disputes between parents that "[v]isitation privileges are but a lesser degree of custody[,]" Clark v. Clark, 294 N.C. 554, 575-76, 243 S.E.2d 129, 142 (1978), when a grandparent is seeking visitation with grandchildren, a claim for visitation may be distinct from a claim for custody and standing requirements differ for each claim. See Perdue v. Fuqua, 195 N.C. App. 583, 586, 673 S.E.2d 145, 148 (2009) ("[O]ur Courts have distinguished grandparents' standing to seek visitation from grandparents' standing to seek custody. In order for a grandparent to initiate a proceeding for visitation, there must be an ongoing custody proceeding and the child's family must not be an intact family.... In contrast, a grandparent initiating a proceeding for custody must allege unfitness of a parent due to neglect or abandonment."). There are four statutes under which grandparents can bring a cause of action for custody or visitation. See Penland v. Harris, 135 N.C. App. 359, 361, 520 S.E.2d 105, 106 (1999). While plaintiffs clearly requested custody and not visitation in their complaint, they did not clearly state the statutory basis of their claim.
The first of the four statutes under which a grandparent, or "[a]ny parent, relative, or other person" may seek custody is N.C. Gen.Stat. § 50-13.1(a) which provides that
N.C. Gen.Stat. § 50-13.1(a) (2007). "When grandparents initiate custody [as opposed to visitation] lawsuits under G.S. § 50-13.1(a),... the grandparent must show that the parent is unfit or has taken action inconsistent with her parental status in order to gain custody of the child." Eakett v. Eakett, 157 N.C. App. 550, 553, 579 S.E.2d 486, 489 (2003); see also Perdue at 586, 673 S.E.2d at 148 (2009) ("Despite the statute's, [N.C. Gen. Stat. § 50-13.1(a)], broad language, our Courts have distinguished grandparents' standing to seek visitation from grandparents' standing to seek custody. In order for a grandparent to initiate a proceeding for visitation, there must be an ongoing custody proceeding and the child's family must not be an intact family.... In contrast, a grandparent initiating a proceeding for custody must allege unfitness of a parent due to neglect or abandonment." (emphasis added)). Here, plaintiffs alleged that defendant had acted inconsistently with her parental status and was unfit in that she neglected the children. Therefore, plaintiffs had standing to bring a custody action pursuant to N.C. Gen.Stat. § 50-13.1(a). See Eakett at 553, 579 S.E.2d at 489.
The second statute under which grandparents may seek visitation is N.C. Gen.Stat. § 50-13.2(b1) which provides that "[a]n order for custody of a minor child may provide visitation rights for any grandparent
The final two statutes for custody or visitation, N.C.Gen.Stat. §§ 50-13.2A and -13.5(j), are inapplicable as this case does not involve adoption or a motion for a change of custody based upon a change in circumstances. See Penland at 361, 520 S.E.2d at 107 ("G.S. § 50-13.5(j) permits a grandparent to petition for custody or visitation due to changed circumstances in those actions where custody has previously been determined. . . . G.S. § 50-13.2A, permits a biological grandparent to institute an action for visitation rights where the minor child has been adopted by a step-parent or relative of the child, and a substantial relationship exists between the grandparents and the child.").
Defendant contends that plaintiffs did not have standing because "they have not made any allegations regarding the nature of their relationship with the minor children and that the absence of any such allegations bars them from bringing a claim for custody of the children" pursuant to Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891 (1998). However, defendant's reliance on Ellison is misplaced. Ellison involved a plaintiff, Ms. Ellison, who sued for custody of the child of Mr. Ramos, Ms. Ellison's former "`intimate companion[.]'" Ellison at 390-91, 502 S.E.2d at 892. Here, as distinguished from Ellison, the plaintiffs are biologically related to the children whose custody is being litigated. Furthermore, Ellison specifically limits its holding by
Ellison at 395, 502 S.E.2d at 894-95 (emphasis added).
We thus conclude that plaintiffs had standing to proceed in an action for custody pursuant to N.C. Gen.Stat. § 50-13.1(a) as they alleged they are the grandparents of the children and that defendant had acted inconsistently with her parental status and was unfit because she had neglected the children.
Defendant next contends that "the trial court erred by concluding as a matter of law that the defendant acted inconsistently with her parental rights in that its conclusion is not adequately supported by its findings of fact." (Original in all caps.) "Whether . . . conduct constitutes conduct inconsistent with the parents' protected status presents a question of law and, thus, is reviewable de novo [.]" Speagle v. Seitz, 141 N.C. App. 534, 536, 541 S.E.2d 188, 190 (2000) (citation and quotation marks omitted), reversed on other grounds, 354 N.C. 525, 557 S.E.2d 83 (2001), cert. denied, 536 U.S. 923, 122 S.Ct. 2589, 153 L.Ed.2d 778 (2002).
Parents have a fundamental right "to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49, 57 (2000). As long as a parent maintains his or her paramount interest, "a custody dispute with a nonparent regarding those children may not be determined by the application of the `best interest of the child' standard." Boseman v. Jarrell, 364 N.C. 537, 549, 704 S.E.2d 494, 503 (2010) (citation omitted). However, the paramount status of parents may be lost "in one of two ways: (1) by a finding of unfitness of the natural parent, or (2) where the natural parent's conduct is inconsistent with his or her constitutionally protected status." David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753 (2005).
While "[u]nfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy[,]" other behavior can also rise to this level which must be considered on a case-by-case basis. Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997).
Mason v. Dwinnell, 190 N.C. App. 209, 228, 660 S.E.2d 58, 70 (2008) (quotation marks omitted).
Accordingly, relevant to the case-by-case determination to be made here are defendant's "volitional acts" involved in the placement of her children with DSS. Id. In fact, "the specific question to be answered in cases such as this one is: `Did the legal parent act inconsistently with her fundamental right to custody, care, and control of her child and her right to make decisions concerning the care, custody, and control of that child?'" Estroff v. Chatterjee, 190 N.C. App. 61, 69 660 S.E.2d 73, 78 (2008). "[I]n answering this question, it is appropriate to consider the legal parent's intentions regarding the relationship between his or her child and the third party during the time that relationship was being formed and perpetuated." Id.
Id. at 70, 660 S.E.2d at 78-79. However, our Supreme Court has "recognize[d] that there are circumstances where the responsibility of a parent to act in the best interest of his or her child would require a temporary relinquishment of custody[.]" Price at 83, 484 S.E.2d at 537.
Yet in this case, defendant did not voluntarily choose to cede any parental authority to another party; DSS filed a juvenile petition
As the trial court also found, the children were returned to the physical custody of defendant in July 2008.
While the trial court properly considered the juvenile court's adjudication order, a finding that defendant's children had been adjudicated dependent in an earlier proceeding is not alone sufficient to establish that defendant has acted in a manner inconsistent with her parental status. See In re A.P., 179 N.C. App. 425, 427-28, 634 S.E.2d 561, 563 (2006) (noting that although the trial court "is permitted to receive into evidence and rely on prior court orders . . . [it] cannot abrogate its duty as the finder of ultimate facts and instead rely wholly on . . . previous orders"), reversed per curiam on other grounds, 361 N.C. 344, 643 S.E.2d 588 (2007). The trial court's findings of fact fail to indicate that defendant has voluntarily engaged in conduct that would trigger the forfeiture of her protected status; rather, they suggest quite the opposite. Specifically, the trial court noted that the dependency adjudication was based on defendant's inability to provide care based on emotional issues arising from her "relocation to North Carolina, the untimely traumatic death of the children's father, and some emotional issues related to physical abuse she received at her husband's hands." While at the time the juvenile petition was filed there were allegations of bruising on one of the children, neither the trial court's order nor the juvenile adjudication order made any findings of abuse or neglect. The trial court also found that following the juvenile adjudication order, defendant enrolled in private counseling, "has attempted to comply with the temporary orders" involved in this action, and has not "exposed [n]or is a danger to the children[.]"
The only additional findings of fact which could be construed as casting a negative light on defendant include: since her husband's death defendant and the children have lived in four different locations; defendant, at least once, had a "verbal disagreement" with plaintiffs' daughter which resulted in the police being called, and "[d]efendant is high-strung, easily angered and tends to allow her voice to rise as she becomes angry." But these additional findings of fact are not sufficient to show that defendant acted inconsistently with her status as a parent or that she is unfit as a parent. See Rhodes v. Henderson, 14 N.C. App. 404, 408, 188 S.E.2d 565, 567 (1972) (determining that use of profane vulgar language and frequent moving were not sufficient findings of fact to conclude that a parent should not have custody of his/her children). Therefore, where there are no further findings addressing defendant's intentions or acts affecting the parent-child relationship, see Estroff at 69-70, 660 S.E.2d at 78-79, and there is no finding that defendant is unfit, see David N. at 307, 608 S.E.2d at 753, the trial court erred in concluding that defendant had acted inconsistently with her parental status.
Defendant's next two arguments are regarding the trial court's award of visitation to the grandparents. As we have concluded that defendant did not act inconsistently with her status as a parent, and the trial court did not make a finding that defendant was unfit, there was no basis for the trial court to grant visitation to the plaintiffs. See generally Troxel at 66, 120 S.Ct. 2054, 147 L.Ed.2d at 57.
We conclude that plaintiffs had standing to bring a custody action regarding the children, but that the trial court erred in awarding plaintiffs visitation. Accordingly, we affirm the portion of the trial court order which denied defendant's motion to dismiss, and we reverse that portion of the trial court order which awarded plaintiffs visitation with the children.
AFFIRMED IN PART; REVERSED IN PART.
Judge BEASLEY concurs.
Judge BRYANT concurs in part and dissents in part in separate opinion.
BRYANT, Judge, concurring in part, dissenting in part.
I first note that the majority begins their analysis by addressing, sua sponte, whether the juvenile court terminated its exclusive jurisdiction by order of the court pursuant to N.C. Gen.Stat. § 7B-200(a) and 201(a). While the majority "stress[es] the need for the parties to include sufficient documentation in the record to demonstrate subject matter jurisdiction and the need for the juvenile courts to be mindful of the requirements of N.C. Gen.Stat. § 7B-201(a) when terminating juvenile court jurisdiction[,]" it concludes that the 4 August 2008 juvenile review order appropriately "terminated the jurisdiction of the juvenile court over the children as contemplated by N.C. Gen.Stat. § 7B-201(a)." Because this issue is not raised on appeal by either party and because this analysis does not affect the outcome of the appeal, I do not agree that it was necessary to address this issue sua sponte.
I concur with the portion of the majority opinion affirming the trial court's order that plaintiff grandparents had standing by noting that plaintiffs demonstrated a sufficient relationship with and interest in the children to proceed in an action for custody pursuant to N.C. Gen.Stat. 50-13.1(a). Accordingly, I agree with the majority that the trial court properly denied defendant's motion to dismiss plaintiffs' complaint for lack of standing.
However, as I disagree with the majority's conclusion that the trial court's findings of fact were not sufficient to address defendant's intentions or acts affecting the parent-child relationship, and therefore, the trial court erred in concluding that defendant acted inconsistently with her protected parental status, I respectfully dissent.
"In a child custody case, the trial court's findings of fact are binding on this Court if they are supported by competent evidence." Davis v. McMillian, 152 N.C. App. 53, 58, 567 S.E.2d 159, 162 (2002) (citation omitted). "[A] trial court's determination that a parent's conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence." Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) (citation omitted). However,
Id.
Being mindful of the trial court's superior position to observe the parties involved, a
In addition, "conduct inconsistent with the parent's protected status, which need not rise to the statutory level warranting termination of parental rights . . . would result in application of the `best interest of the child' test[.]" Speagle v. Seitz, 354 N.C. 525, 531, 557 S.E.2d 83, 86 (2001). In the case before us, the trial court found that defendant "ha[d] acted inconsistently with her constitutionally protected status as a parent[.]" Particularly, the court also found
Because there was competent evidence in the record, namely the previous adjudication and the trial court's independent observation of defendant's continued emotional issues, I believe that the trial court's findings of fact adequately support its conclusion that defendant acted inconsistently with her protected parental status. Accordingly, I believe the trial court's findings are conclusive on appeal and that there is no error. Such findings and conclusions do not give plaintiffs superior rights over these children, but it does allow plaintiffs, as paternal grandparents, to have visitation with their grandchildren. Therefore, I respectfully concur in part and dissent in part.
