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NO. COA08-576 NORTH CAROLINA COURT OF APPEALS Filed: IN THE MATTER OF: J.W.S., A Minor Child. Carteret County No. 06 JA 51 16 December 2008

Appeal by Respondent from order entered 7 February 2008 by Judge Jerry Waddell in Carteret County District Court. the Court of Appeals 15 September 2008. Heard in

Court of Appeals
Debra Gilmore for Petitioner-Appellee Department of Social Services. The Diener Law Office, Respondent-Appellant. P.A., by Carteret Marc K. Haggard,

County for

Pamela Newell Williams for Respondent-Appellee Guardian ad Litem.

Slip Opinion

STEPHENS, Judge. Respondent, the biological father of J.W.S. ("the juvenile"), appeals from order entered 7 February 2008 denying his motion to set aside a juvenile adjudication order entered 2 April 2007 wherein the trial court adjudicated the juvenile neglected and dependent. County The overriding issue on appeal is whether the Carteret Court ("trial court") had subject matter

District

jurisdiction to enter the adjudication order.

For the reasons

stated herein, we conclude the trial court lacked subject matter jurisdiction to enter the adjudication order. Accordingly, we

reverse the order of the trial court denying Respondent's motion to set aside the 2 April 2007 adjudication order.

-2I. Facts On 4 January 2000, the Family Court of Allegany County, New York ("New York court") entered an order granting the juvenile's biological mother temporary custody of the juvenile "pending the criminal court action" whereupon "either party [could then]

petition for custody."

Sometime during 2001 or 2002, Respondent

moved with the juvenile to North Carolina and lived in Onslow County, North Carolina, until at least mid-December 2005. On 19 January 2006, Respondent filed a complaint in Onslow County District Court for divorce from the juvenile's mother and for custody of the juvenile. divorce custody. On 10 April 2006, Respondent signed a one-year lease for an apartment in Emerald Isle, North Carolina. During April of 2006, but "reserved for The district court granted the determination" the issue of

later

Respondent lived in this apartment with Wayne and Tracey Eggers. On 20 April 2006, the Eggers went to the Emerald Isle police station and reported to Lieutenant James Reese that Respondent had assaulted the juvenile. Lieutenant Reese contacted the Carteret

County Department of Social Services ("DSS" or "Petitioner") and relayed the information concerning the possible assault on the juvenile. That evening, Lieutenant Reese responded to a call from

the Eggers who alleged that Respondent was threatening them. Lieutenant Reese went to the apartment and subsequently arrested Respondent for communicating threats. A DSS social worker also

went to the apartment that night and, after interviewing the

-3Eggers, believed the juvenile to be abused, neglected, and

dependent. The trial court, via an after-hours magistrate, authorized Petitioner to take nonsecure custody of the juvenile on 20 April 2006 based on allegations of abuse, neglect, and dependency

contained in a juvenile petition filed by DSS on 21 April 2006.1 Nonsecure custody was maintained with Petitioner by order entered 24 April 2006. April 2006. Petitioner filed a second juvenile petition on 25

Subsequent nonsecure custody orders maintaining the

juvenile in Petitioner's custody were entered 28 April and 19 May 2006. While in the custody of Petitioner over the course of these

proceedings, the juvenile has been placed in a series of treatment facilities including the John Umstead Hospital in Butner, North Carolina, the Yahweh Center in Wilmington, North Carolina, Holly Hill Hospital in Raleigh, North Carolina, the Pines Residential Treatment Center in Norfolk, Virginia, and therapeutic foster homes in North Carolina. On 24 May 2006, Respondent filed a pro se motion in the United States District Court for the Eastern District of North Carolina, seeking to remove the proceeding to federal court and claiming to be a permanent resident of Texas. The trial court stayed the On 26 May

proceeding pending the outcome of the federal action.

2006, the United States District Court entered an order wherein the The nonsecure custody order was signed by Jerry Guthrie, Judge's designee, by telephonic approval at 11:25 p.m. on 20 April 2006. The juvenile petition alleging the juvenile to be abused, neglected, and dependent was filed with the court the following morning after the court opened for business.
1

-4court determined that it did not have original jurisdiction over the matter and remanded the case to the District Court of Carteret County. By order entered 26 May 2006, the trial court continued

nonsecure custody of the juvenile with Petitioner. On 15 August 2006, Respondent filed an answer and moved to dismiss the petitions for failure to state a claim, lack of personal jurisdiction, and lack of subject matter jurisdiction. Respondent's motion to dismiss these two petitions was heard on 22 September 2006, and the trial court denied the motion by order entered 16 November 2006. Petitioner filed a third juvenile petition on 16 August 2006. On 23 October 2006, Respondent filed three responses and motions to dismiss the petition for failure to state a claim, lack of personal jurisdiction, and lack of subject matter jurisdiction wherein Respondent claimed that he and the juvenile had been residents of Texas since February 2006. On 31 October 2006, Petitioner filed a

response opposing Respondent's motions to dismiss, contending the trial court had temporary emergency jurisdiction pursuant to N.C. Gen. Stat.

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