In Re Simpson

136 S.E.2d 647 (1964)

262 N.C. 206

In the Matter of Custody of Debra Carol SIMPSON and Johnny Simpson, Minors.

No. 669.

Supreme Court of North Carolina.

June 12, 1964.

*650 D. Leon Moore, Reidsville, for petitioner appellants.

McMichael, Griffin & Rankin, Reidsville, for respondent appellee.

BOBBITT, Justice.

Our first question is whether Judge Gwyn had original jurisdiction to hear and pass upon the questions presented by the petition.

The only procedure for the adoption of minors is that prescribed by G.S. Chapter 48. "Adoption shall be by a special proceeding before the clerk of the superior court." G.S. § 48-12. A superior court judge has no jurisdiction in adoption proceedings except upon appeal from the clerk. See G.S. § 48-21 and G.S. § 48-27. There is nothing in the evidence concerning an adoption proceeding, if any, filed by petitioners except the allegation that "your petitioners are in the process of filing a Special Proceeding for the adoption of the * * * children with the Clerk of the Superior Court for Rockingham County." Clearly, Judge Gwyn had no jurisdiction to make an order relating to any adoption proceeding.

Did Judge Gwyn have original jurisdiction to determine whether custody of Debra and Johnny should be awarded to petitioners?

The petition was not filed in any pending civil action or special proceeding. It was presented directly to Judge Gwyn as Resident Judge some two months after the children had been removed to another county and placed in the custody of prospective adoptive parents in accordance with an interlocutory order in an adoption proceeding.

It does not appear that Debra and Johnny were subject to adoption until the order of January 12, 1960, in which they were adjudged abandoned children. G.S. § 48-2 (3a); G.S. § 110-28 et seq. Prior thereto, the order of March 12, 1958, made provision for immediate (temporary) custody. G.S. § 110-27.

Under G.S. § 110-21, the clerk of the superior court, in his capacity as Juvenile Judge, has exclusive jurisdiction of an abandoned child under sixteen years of age; and, "(w)hen jurisdiction has been obtained in the case of any child, unless a court order shall be issued to the contrary, or unless the child be committed to an institution supported and controlled by the State, it shall continue for the purposes of this article during the minority of the child."

It is noteworthy that the Juvenile Court, under G.S. § 110-21, has exclusive original jurisdiction of a child under sixteen years of age "whose custody is subject to controversy" in all cases except those in which the superior court is given jurisdiction by G.S. § 17-39 or G.S. § 50-13. In re Melton, 237 N.C. 386, 74 S.E.2d 926; Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906; In re Prevatt, 223 N.C. 833, 28 S.E.2d 564.

*651 By his order of January 12, 1960, the Juvenile Judge placed the custody of Debra and Johnny in the then Superintendent (now Director, see Session Laws of 1961, Chapter 186) of Public Welfare of Rockingham County and her successors in office. The record does not indicate there were any further proceedings or orders in the Juvenile Court.

Petitioners allege that the children are in the legal custody of the Director of the Department of Public Welfare of Rockingham County. It is noted that respondent denies this allegation. It is respondent's contention that the custody of Debra and Johnny was properly transferred (incident to the adoption proceedings) to the Department of Public Welfare of an unidentified county, which county, under the inter-county agreement, has assumed responsibility for supervision of the children. It is noted that one of the statutory powers and duties of a County Director of Public Welfare is "(t)o investigate cases for adoption and supervise placements for adoption." G.S. § 108-14(10).

To support their contention, petitioners cite In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818. In that case, the Domestic Relations Court, in which was vested Juvenile Court jurisdiction, made an order relating to a dependent child. Thereafter, the mother of such child made a motion before the said Domestic Relations Court for a modification of said order. The motion was contested by those who had actual custody. The matter was heard in the superior court on appeal from the order of the Domestic Relations Court.

The basis for petitioners' allegation and contention is the order entered January 12, 1960, by the Juvenile Judge. Whether, under this order, the Director of Public Welfare of Rockingham County was authorized to transfer the custody of the children to the Director of Public Welfare of another county, and if not, whether the Juvenile Court should authorize such transfer, are questions determinable in the first instance in the Juvenile Court. The superior court has jurisdiction to hear appeals from orders and judgments of the Juvenile Court. G.S. § 110-40.

In our view, Judge Gwyn did not have original jurisdiction to determine whether custody of Debra and Johnny should be awarded to petitioners.

With reference to petitioners' legal status: Petitioners are not the natural parents of Debra and Johnny. During the period petitioners had actual custody of the children, the legal right to custody was in the Director of Public Welfare of Rockingham County; and petitioners' actual custody was under authority granted by said Director pursuant to the arrangement for their care. Understandably, petitioners, on account of their long and happy association with the children, are deeply concerned for their welfare. Without passing upon petitioners' legal standing, if any, to proceed by motion in the Juvenile Court, it would be appropriate for the Juvenile Court to hear any matters brought to its attention bearing upon what occurred subsequent to its order of January 12, 1960, with reference to the custody and welfare of the children.

Although compensated to the extent indicated, it seems appropriate to say that the care and affection provided by petitioners to Debra and Johnny deserve the highest commendation.

We express no opinion as to whether the Director of Public Welfare of Rockingham County acted legally or wisely in removing the children from petitioners' custody and placing them under the supervision of the Department of Public Welfare of an unidentified county. Decision on this appeal is based solely on the ground Judge Gwyn did not have original jurisdiction to hear and pass upon the questions presented by the petition.

*652 For lack of jurisdiction, the judgment from which petitioners appeal is vacated.

Judgment vacated.

SHARP, J., took no part in the consideration or decision of this case.