Rodriguez v. Rodriguez

710 S.E.2d 235, 211 N.C. App. 267, 2011 N.C. App. LEXIS 736
CourtCourt of Appeals of North Carolina
DecidedApril 19, 2011
DocketCOA10-690
StatusPublished
Cited by22 cases

This text of 710 S.E.2d 235 (Rodriguez v. Rodriguez) 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
Rodriguez v. Rodriguez, 710 S.E.2d 235, 211 N.C. App. 267, 2011 N.C. App. LEXIS 736 (N.C. Ct. App. 2011).

Opinions

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 [269]*269visitation 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.

I. Background

This appeal arises from a custody action between plaintiffs, the paternal grandparents of Matt and Nan1 (“the children”), and defendant, the children’s mother. The children’s father died in February 2007. In February 2008, the Brunswick County Department of Social Services (“DSS”) filed a petition alleging the children were abused, neglected, and dependent, and the children were removed from defendant’s legal and physical custody. On 3 March 2008, plaintiffs initiated this Chapter 50 action seeking custody of the children; plaintiffs did not intervene in the pending juvenile matter.2 In April 2008, the juvenile court adjudicated the children dependent, but not abused or neglected. In July 2008, the children were returned to the physical custody of defendant by the juvenile court. In November 2009, defendant filed an answer and a motion to dismiss the custody action filed by plaintiffs. On 18 February 2010, nunc pro tunc 14 January 2010, the trial court denied defendant’s motion to dismiss and determined that “defendant ha[d] acted inconsistently with her constitutionally protected status as a parent. . ., and it is in the best interests of the minor children that their primary placement be with her, with secondary custody in the form of visitational [sic] privileges to the Plaintiffs[.]” Defendant appeals.

II. Subject Matter Jurisdiction

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 [270]*270(“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. 631, 613 S.E.2d 688 (2005).

Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal. Subject-matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. Subject-matter jurisdiction derives from the law that organizes a court and cannot be conferred on a court by action of the parties or assumed by a court except as provided by that law. When a court decides a matter without the court’s having jurisdiction, then the whole proceeding is null and void, i.e., as if it had never happened. Thus the trial court’s subject-matter jurisdiction may be challenged at any stage of the proceedings.

McKoy v. McKoy, — N.C. App.-,-, 689 S.E.2d 590, 592 (2010) (citations and quotation marks omitted).

A. Juvenile Court Jurisdiction

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.3 Thus, the juvenile court obtained jurisdiction over the minor children before the filing of plaintiffs’ complaint. See N.C. Gen. Stat. § 7B-200(a) (2007) (“The court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent.”). N.C. Gen. Stat. § 7B-201(a) provides:

When the court obtains jurisdiction over a juvenile, jurisdiction 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) (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).

[271]*271The 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:

5. That it is in the best interest of the minor children that they continue in the physical custody of their mother, Michelle Rodriguez, and that legal custody be returned to her.
. 6. That continued involvement by either the Department of Social Services or the Guardian ad Litem is unnecessary.

The juvenile court ordered:

1. That the juveniles are continued in the physical custody of their mother, Michelle Rodriguez, and legal custody is returned to her as well. Ms. Rodriguez shall continue to provide dental and medical care for the children. They shall continue to receive speech, and occupational therapy and psychological therapy.
2. That any prior custody order placing the minor children with the Department of Social Services is vacated.
3. That the Department of Social Services and the Guardian ad Litem program are relieved of any further involvement in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
710 S.E.2d 235, 211 N.C. App. 267, 2011 N.C. App. LEXIS 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-rodriguez-ncctapp-2011.