In re M.M.

750 S.E.2d 50, 230 N.C. App. 225, 2013 WL 5913809, 2013 N.C. App. LEXIS 1143
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 2013
DocketNo. COA13-600
StatusPublished
Cited by14 cases

This text of 750 S.E.2d 50 (In re M.M.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re M.M., 750 S.E.2d 50, 230 N.C. App. 225, 2013 WL 5913809, 2013 N.C. App. LEXIS 1143 (N.C. Ct. App. 2013).

Opinion

STROUD, Judge.

Respondent-mother appeals from a permanency planning order entered 11 February 2013 and amended by order entered 24 April 2013. We reverse and remand for further proceedings.

I. Background

This is the second appeal by respondent-mother arising out of this juvenile petition, filed on 8 August 2007. The trial court adjudicated Margo dependent by order filed 17 January 2008.1 Thereafter the court conducted several periodic review hearings. On 7 June 2011, this Court filed an opinion reversing a permanency planning order entered 21 September 2010 because the trial court failed to hear any testimony at the permanency planning hearing. In re M.M., 212 N.C. App. 420, 713 S.E.2d 790, 2011 WL 2206655 (2010) (unpublished). On remand, the trial court heard testimony and entered a “corrected” permanency planning order on 11 July 2012. Respondent-mother appealed but subsequently withdrew her appeal from that order on 10 September 2012.

On 5 December 2012, the court conducted a permanency planning hearing. The trial court entered an order on 11 February 2013 which, inter alia, (1) changed the permanent plan to guardianship; (2) awarded legal custody and guardianship to Margo’s paternal grandparents; (3) allowed Margo’s father to have unsupervised visitation with the child; (4) allowed respondent-mother to have supervised visitation for one day per month not to exceed four hours in duration; (5) allowed respondent-mother to have supervised telephone contact with the child; (6) forbade the maternal grandfather and the fiancé of respondent-mother from having contact with the child unless recommended by the child’s [227]*227therapist; and (7) transferred jurisdiction to Michigan, where the paternal grandparents reside. Respondent-mother filed timely notice of appeal.

II. Standard of Review

This Court’s review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and whether the findings support the conclusions of law. If the trial court’s findings of fact are supported by any competent evidence, they are conclusive on appeal. The trial court’s conclusions of law are reviewable de novo on appeal.

In re T.R.M., 208 N.C. App. 160,162, 702 S.E.2d 108, 110 (2010) (citation and quotation marks omitted).

III. Transfer of Jurisdiction

Respondent-mother contends the trial court erred by transferring “venue” to Michigan. The record reflects that in its original order filed on 11 February 2013, the court incorrectly used the terminology of “venue” in reference to transferring the case to Michigan. The court filed a corrected order on 24 April 2013 in which it struck through the words “transferring venue” and replaced them with the words “relinquishing jurisdiction.” The court also deleted some, but not all, other uses of the word “venue.”

A court has the authority on its own motion to correct a clerical mistake in its judgment or order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(a) (2011) as long as the correction does not substantively change the order or judgment. Spencer v. Spencer, 156 N.C. App. 1, 10-11, 575 S.E.2d 780, 786 (2003). It is clear from the transcript and the context of the order specifically identifying Michigan that the trial court intended to transfer jurisdiction to another state rather than transfer venue to another county in North Carolina. The changes do not have any substantive effect.

Respondent-mother contends that even if the court’s order is construed as declining jurisdiction based upon a determination of inconvenient forum pursuant to N.C. Gen. Stat. § 50A-207, the court’s findings of fact and conclusions of law are inadequate. We agree.

A court having jurisdiction to make a child custody determination “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances, and that a court of another state is a more appropriate forum.” N.C. Gen. Stat. [228]*228§ 50A-207(a) (2011). A child custody determination includes one made in abuse, dependency or neglect proceedings involving the child. In re Van Kooten, 126 N.C. App. 764, 768, 487 S.E.2d 160, 162-63 (1997), app. dismissed, 347 N.C. 576, 502 S.E.2d 618 (1998); N.C. Gen. Stat. § 50A-102(4) (2011). Before making a determination that this state is an inconvenient forum, the court must consider whether it is appropriate for a court of another state to exercise jurisdiction. N.C. Gen. Stat. § 50A-207(b).

In deciding whether it is appropriate for the court of another state to exercise jurisdiction, the trial court

shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this State;
(3) The distance between the court in this State and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

N.C. Gen. Stat. § 50A-207(b).

The decision to relinquish jurisdiction to another state on the basis of more convenient forum is reviewed for an abuse of discretion. Kelly v. Kelly, 77 N.C. App. 632, 635, 335 S.E.2d 780, 783 (1985). Nevertheless, where it determines that the current forum is inconvenient, the trial court must make sufficient findings of fact to demonstrate that it properly [229]*229considered the relevant factors listed in N.C. Gen. Stat. § 50A-207(b). Velasquez v. Ralls, 192 N.C. App. 505, 509, 665 S.E.2d 825, 827 (2008) (noting that findings about “[t]he factors listed in N.C.G.S. § 50A-207(b) axe necessary when the current forum is inconvenient.”).

Here, the trial court found that Margo had lived in Michigan with her paternal grandparents since 22 July 2010 and that a majority of the parties live in the State of Michigan. Although the court had previously found that respondent-mother and respondent-father had engaged in domestic violence toward one another, the trial court made no finding regarding the likelihood of such violence recurring or whether Michigan is better situated to protect the juvenile.

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Cite This Page — Counsel Stack

Bluebook (online)
750 S.E.2d 50, 230 N.C. App. 225, 2013 WL 5913809, 2013 N.C. App. LEXIS 1143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mm-ncctapp-2013.