Matter of NCL

365 S.E.2d 213 (1988)

In the Matter of N.C.L., a Juvenile.

No. 873DC803.

Court of Appeals of North Carolina.

March 1, 1988.

*214 David A. Leech, Greenville, for respondent-appellant.

Everett, Everett, Warren & Harper by Ryal W. Tayloe, Edward J. Harper, II, and Scott W. Warren, Greenville, for petitioner-appellee.

SMITH, Judge.

Respondent assigns as error the district court's denial of his motion requesting visitation with the minor child, N.C.L., and information regarding potential adoptive homes. He contends that as guardian ad litem he is entitled to the requested information to determine any possible abuse of discretion on the part of DSS and that the district court retained jurisdiction pursuant to G.S. 7A-659(f) to consider the merits of his motion. We agree.

The duty of a guardian ad litem in a juvenile case is to see that the child's interests and needs are being met. This duty extends to involvement in the placement of juveniles for adoption. In re Wilkinson v. Riffel, 72 N.C.App. 220, 324 S.E.2d 31 (1985). The guardian is empowered under G.S. 7A-659(f) to request information about and be consulted concerning the adoption selection process. This includes confidential adoption information regarding adoptive parents. Id. G.S. 7A-586 specifically provides that "the judge may grant the guardian ad litem the authority to demand information or reports whether or not confidential that may in the guardian ad litem's opinion be relevant to the case." (emphasis added) It was respondent's duty and right to inquire into DSS's handling of N.C.L.'s adoption, and it was within the district court's jurisdiction to order DSS to turn over the requested information, despite its confidential nature.

*215 Petitioner contends that the district court's jurisdiction ended the moment the notice of the filing of an adoption petition was received on 31 March 1987. We disagree. The district court, in this case, did have jurisdiction to entertain respondent's 25 March motion. It is generally held that once jurisdiction of a court attaches, it exists until the cause is fully determined and is not ousted by subsequent events. In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied, 442 U.S. 929, 99 S. Ct. 2859, 61 L. Ed. 2d 297 (1979). This is true even if the subsequent event would have prevented jurisdiction from attaching at the outset. Id. Jurisdiction in this case attached on 25 March, five days prior to the receipt of notice of the adoption petition. The subsequent notice did nothing to prevent the district court from entertaining the motion. Our Supreme Court has noted:

Jurisdiction is not a light bulb which can be turned off or on during the course of the trial. Once a court acquires jurisdiction over an action it retains jurisdiction over that action throughout the proceeding.... If the converse of this were true, it would be within the power of the defendant to preserve or destroy jurisdiction of the court at his own whim.

In re Peoples, 296 N.C. at 146, 250 S.E.2d at 911 (quoting Silver Surprize, Inc. v. Sunshine Mining Co., 74 Wash. 2d 519, 523, 445 P.2d 334, 336-37 (1968)). Upon a showing by respondent that the requested information is relevant to this case, the district court is still empowered to order DSS to release the information to respondent.

Petitioner next contends that once the petition for adoption was filed, the guardian ad litem's responsibility ended and that any further intervention would be intrusive and burdensome. To support this contention, it relies on our recent holding in In re James S., 86 N.C.App. 364, 357 S.E.2d 430 (1987), that a guardian ad litem has no further responsibility once an adoption petition has been filed. This reliance is misplaced. That court stated that "[a]bsent any responsibilities or duties to perform the guardian ad litem is superfluous to an adoption proceeding." Id. at 366, 357 S.E.2d at 431. (emphasis added) Yet the court also held that one of the guardian ad litem's responsibilities was to "raise any issue of the agency's abuse of discretion within ten days after [he] receives written notice of the filing of the adoption petition." Id., 357 S.E.2d at 431. The facts in James S. reveal that the guardian ad litem requested the adoption information four months after the adoption petition had been filed. In the case at bar, the guardian ad litem first made a motion to the court for information five days before receiving written notice that an adoption petition had been filed. It is clear that the guardian in this case still had a responsibility and a duty, pursuant to G.S. 7A-659(f), at the time he received notice of the adoption petition to raise any issue of abuse of discretion. It was, however, a responsibility which could not be fulfilled without the information to which he was entitled.

It being our conclusion that the guardian ad litem's responsibility to the child is intact for that ten-day period for the purpose of raising any issue of abuse of discretion, the question then becomes where such issue should be raised. G.S. 7A-659(f) is silent on this point. However, G.S. 48-12 provides that adoption proceedings shall be before the clerk of superior court. Thus, it is our view that any motion alleging abuse of discretion in the adoption process should be filed with the clerk of superior court within the ten-day period provided for in G.S. 7A-659(f). We would note that under G.S. 48-12 it is virtually within the adoptive parents' discretion where to file the adoption petition. It could be in any one of the one hundred North Carolina counties or out of the state. Additionally, G.S. 48-14 provides that the adoptive child's original name need not be set forth in the petition. Without the requested information, the guardian ad litem would be totally unaware of the proper tribunal in which to assert any issues of abuse of discretion and would thus be denied the opportunity to fulfill his responsibility.

The lower court's order allowing petitioner's motion to dismiss respondent as guardian ad litem is reversed. Likewise, the *216 order denying respondent's motion is reversed. On remand, the district court has jurisdiction only for the purposes set forth in G.S. 7A-586. The granting of respondent's motion may be necessary for the guardian ad litem to make determinations that the child's best interests and needs are being met and that DSS has not abused its discretion in the adoption selection process. G.S. 7A-586 and 7A-659(f). This would enable the guardian ad litem to make an informed decision as to whether he might attempt further action in the adoption proceeding.

This court is aware that the ten-day period after the filing of the adoption petition in which respondent could have raised any issue of abuse of discretion has passed. However, this fact does not preclude the district court from entertaining respondent's motion, which was filed prior to the petition for adoption. It is a factor to be taken into account when the district court considers the merits of respondent's request. We therefore remand this case to the district court with instructions to enter such orders as are in accord with this opinion.

Reversed and Remanded.

HEDRICK, C.J., and J. BECTON, J., concur.