IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1148
Filed: 7 June 2016
Orange County, No. 14 JT 14
IN THE MATTER OF: O.D.S.
Appeal by Respondent-Father from order entered 11 August 2015 by Judge
Beverly Scarlett in District Court, Orange County. Heard in the Court of Appeals 9
May 2016.
Holcomb & Cabe, LLP, by Carol J. Holcomb and Samantha H. Cabe, for
Petitioner-Appellee Orange County Department of Social Services.
Richard Croutharmel for Respondent-Appellant Father.
Winston & Strawn LLP, by Amanda L. Groves and Kobi Kennedy Brinson, for
Guardian ad Litem.
McGEE, Chief Judge.
Respondent-Father appeals from an order terminating his parental rights as
to his minor child O.D.S. We hold the trial court did not err in terminating
Respondent-Father’s parental rights on the ground of dependency, even though the
trial court did not orally find that ground at the conclusion of the adjudication portion
of the hearing, and we affirm the trial court’s order.
The Orange County Department of Social Services (“DSS”) obtained non-
secure custody of O.D.S. and filed a petition on 25 February 2014, alleging he was a
neglected and dependent juvenile. The trial court held a hearing on 3 April 2014 and
IN RE: O.D.S.
Opinion of the Court
entered an order on 8 May 2014, in which it adjudicated O.D.S. to be a neglected
juvenile, and continued custody with DSS. By order entered 17 November 2014, the
trial court relieved DSS from having to make further reunification efforts with
Respondent-Father and set the permanent plan for O.D.S. as reunification with his
mother (“Mother”). Mother, however, failed to meet the goals of her case plan and,
by order entered 20 February 2015, the trial court relieved DSS from having to make
further reunification efforts with Mother, set the permanent plan for O.D.S. as
adoption, and ordered DSS to file motions to terminate Respondent-Father’s and
Mother’s parental rights as to O.D.S.1
DSS subsequently filed a motion to terminate Respondent-Father’s parental
rights, alleging grounds of neglect and dependency. See N.C. Gen. Stat. § 7B-
1111(a)(1), (6) (2015). The trial court held a hearing on the motion on 16 July 2015,
and entered an order on 11 August 2015 terminating Respondent-Father’s parental
rights as to O.D.S. In that order, the trial court found the existence of both grounds
alleged in the motion and concluded that termination of Respondent-Father’s
parental rights was in O.D.S.’s best interests. However, at the conclusion of the
adjudication portion of the termination hearing, the trial court stated it found that
DSS had proven neglect as a ground for terminating Respondent-Father’s parental
1 The motion to terminate the parental rights of Mother was heard at a separate hearing, and
she is not a party to this appeal
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Opinion of the Court
rights, but the trial court did not reference the ground of dependency. Respondent-
Father filed notice of appeal on 17 August 2015.
Respondent-Father argues the trial court erred in finding that the ground of
dependency existed to terminate his parental rights. Respondent-Father contends
the trial court erred because, at the conclusion of the adjudication portion of the
hearing, the trial court did not orally state it was finding dependency as a ground for
termination, but included that ground in the written order entered 11 August 2015.
We disagree.
Specifically, Respondent-Father contends that, because the trial court did not
state at the conclusion of the adjudication hearing that DSS had proven the ground
of dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), it was precluded from
finding dependency as a ground to terminate Respondent-Father’s parental rights in
its written order. We note that Respondent-Father does not make any argument
challenging the adjudication of dependency based upon a lack of evidence or
insufficient findings of fact. Respondent-Father’s argument is entirely predicated on
his contention that the trial court was precluded from including a ground in its
written order that it did not address when rendering judgment in open court.
Therefore, our review is limited to whether the trial court was precluded from basing
termination of Respondent-Father’s parental rights on the ground of dependency
when it did not state dependency as a ground for termination in open court.
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N.C. Gen. Stat. § 7B-1109 requires the trial court to do the following in
response to any adjudication hearing deciding whether grounds exist to terminate a
person’s parental rights:
The court shall take evidence, find the facts, and shall
adjudicate the existence or nonexistence of any of the
circumstances set forth in G.S. 7B-1111 which authorize the
termination of parental rights of the respondent. The
adjudicatory order shall be reduced to writing, signed, and
entered no later than 30 days following the completion of
the termination of parental rights hearing.
N.C. Gen. Stat. § 7B-1109(e) (2015). Thus, the trial court is required to address every
ground brought forth in a petition or motion to terminate a parent’s rights to his or
her child, and make a determination for every ground alleged, whether the petitioning
party has proved that ground, or failed to prove that ground. More generally, our
Supreme Court has held that Rule 52 of the North Carolina Rules of Civil Procedure
imposes three requirements on the court sitting as finder
of fact: it must (1) find the facts on all issues joined in the
pleadings; (2) declare the conclusions of law arising from
the facts found; and (3) enter judgment accordingly. The
court logically must comply with these three requirements
in the above order. Thus, under Rule 58 there can be no
valid entry of judgment absent necessary findings.
Stachlowski v. Stach, 328 N.C. 276, 285, 401 S.E.2d 638, 644 (1991) (citations
omitted) (emphasis added). We note that N.C. Gen. Stat. § 7B-1109 includes no
requirement that the trial court render its decisions in open court. See, e.g.,
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 215, 580 S.E.2d 732, 737
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(2003) (The trial court rendered judgment in open court granting summary judgment
in favor of three of four defendants, stating: “I'm going to review the documents as to
[the fourth defendant] and rule on that later.”2 The trial court then entered a written
order in which it granted summary judgment in favor of all four defendants.).
In the present case, DSS moved to terminate Respondent-Father’s parental
rights based upon the grounds of neglect, N.C. Gen. Stat. § 7B-1111(a)(1), and
dependency, N.C. Gen. Stat. § 7B-1111(a)(6). These grounds were considered at the
16 July 2015 termination hearing. The trial court was therefore required to address
both grounds, and enter findings of fact, conclusions of law, and rulings for each
ground. In what appears to have been an oversight, the trial court did not address
the ground of dependency when it rendered judgment in open court. Neither
Respondent-Father, DSS, nor O.D.S.’s guardian ad litem brought this oversight to
the attention of the trial court. However, the trial court’s written order, entered 11
August 2015, complied with the dictates of N.C. Gen. Stat. § 7B-1109(e) by making
adjudicatory determinations for both the grounds for termination that had been
brought before it.
Because many of our appellate decisions addressing these issues were based
upon rules that have since changed, it is important to note how entry of judgment
and notice of appeal from civil judgments have changed in light of revisions to Rule
2 This citation comes from the hearing transcript in Draughon.
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Opinion of the Court
58 of the North Carolina Rules of Civil Procedure, which became effective 1 October
1994 for “all judgments subject to entry on or after that date.” 1994 N.C. Sess. Laws,
Ch. 594; Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 159, 446 S.E.2d
289, 295 (1994). Prior to the 1994 amendments, judgments and orders could be
entered by the clerk simply making a notation of the orally rendered judgment. The
trial court would then, after official entry of judgment, “make a written judgment that
conform[ed] in general terms with [the] oral judgment pronounced in open court.”
Morris v. Bailey, 86 N.C. App. 378, 389, 358 S.E.2d 120, 126 (1987) (citation omitted).
Entry of judgment based upon oral rendition of judgments is no longer allowed in civil
matters; currently, judgments and orders are only “entered when [they are] reduced
to writing, signed by the judge, and filed with the clerk of court.” N.C. Gen. Stat. §
1A-1, Rule 58 (2015). The pre-1994 provisions of Rule 58 are discussed in Morris:
Defendant’s final argument is that the trial judge erred in
signing the judgment. Here, the trial court announced the
general terms of its judgment in open court. Defendant
gave oral notice of appeal in open court immediately after
the court announced its judgment.3 Five days later, the
court executed a written judgment. Defendant contends
the trial judge was not permitted to execute any written
judgment that was different in any manner from the
announcement of the judgment made in open court.
3 “Prior to 1 July 1989, notice of appeal in civil actions could be given either in writing or orally
in open court. Appellate Rule 3(a), however, was amended on 8 December 1988 to provide that an
appeal in a civil action is taken, effective for all judgments entered on or after 1 July 1989, by filing
notice of appeal with the clerk of superior court and serving copies thereof upon all other parties.”
Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683 (1990). Rule
3(a) also applies to orders. Abels v. Renfro Corp., 126 N.C. App. 800, 803-04, 486 S.E.2d 735, 737-38
(1997).
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Defendant’s contention hinges on our interpretation of the
trial court’s actions under Rule 58 of the North Carolina
Rules of Civil Procedure, N.C.G.S. Sec. 1A-1, Rule 58:
Subject to the provisions of Rule 54(b): Upon a jury
verdict that a party shall recover only a sum certain or
costs or that all relief shall be denied or upon a decision
by the judge in open court to like effect, the clerk, in the
absence of any contrary direction by the judge, shall
make a notation in his minutes of such verdict or
decision and such notation shall constitute the entry of
judgment for the purposes of these rules. The clerk
shall forthwith prepare, sign, and file the judgment
without awaiting any direction by the judge.
In other cases where judgment is rendered in open
court, the clerk shall make a notation in his minutes as
the judge may direct and such notation shall constitute
the entry of judgment for the purposes of these rules.
The judge shall approve the form of the judgment and
direct its prompt preparation and filing.
In cases where judgment is not rendered in open court,
entry of judgment for the purposes of these rules shall
be deemed complete when an order for the entry of
judgment is received by the clerk from the judge, the
judgment is filed and the clerk mails notice of its filing
to all parties. The clerk’s notation on the judgment of
the time of mailing shall be prima facie evidence of
mailing and the time thereof.
Here, the verdict was not for “only a sum certain or cost or
that all relief” be denied, but the trial judge awarded
attorney fees and relief other than damages. Although the
trial judge announced his general holdings at the end of the
trial, he did not direct the clerk to make any entry in the
record. Therefore, under the second paragraph of Rule 58,
the judgment was not entered in open court and the written
judgment of 9 June 1986 is the judgment for the purposes
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Opinion of the Court
of the Rules of Civil Procedure under the third paragraph
of Rule 58. The written judgment did not determine any
issue different from those dealt with in the judgment
announced in open court. Therefore, defendant’s oral
notice of appeal, though given in open court prior to the
entry of judgment, was effective to give notice of appeal to
the written judgment under N.C.G.S. Sec. 1-279(a).
Even if the judgment had been entered in open court, the
subsequent written judgment is not invalid. A trial court
has the authority under N.C.G.S. Sec. 1A-1, Rule 58 to
make a written judgment that conforms in general terms
with an oral judgment pronounced in open court. A trial
judge cannot be expected to enter in open court
immediately after trial the detailed findings of fact and
conclusions of law that are generally required for a final
judgment. If the written judgment conforms in general
terms with the oral entry, it is a valid judgment. A notice
of appeal entered in open court immediately after entry of
the oral judgment does not remove the authority of the trial
court to enter its written judgment which conforms
substantially with the court’s oral announcement. Here,
the written judgment conforms in general terms with the
oral announcement of the judgment in open court and
therefore, even if the judgment had been entered in open
court, the subsequent written judgment is valid.4
Morris, 86 N.C. App. at 387-89, 358 S.E.2d at 126-27 (citations omitted) (emphasis
added). Though Morris states “[i]f the written judgment conforms in general terms
4 But see Hopkins v. Hopkins, 268 N.C. 575, 576, 151 S.E.2d 11, 11-12 (1966) (“During a term
of court a judgment is said to be within the breast of the court, and it may be changed at any time. It
has been the settled rule for some time that any order or decree made was, during the term, in fieri,
and that the court during the term could vacate or modify the same.”); Stokes Co. Soil Conservation
Dist. v. Shelton, 67 N.C. App. 728, 731, 314 S.E.2d 2, 4 (1984) (trial court can “change the judgment
during the same term of court”).
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Opinion of the Court
with the oral entry, it is a valid judgment[,]” Id. at 389, 358 S.E.2d at 127, this
statement must be understood in context. The requirement that the written
judgment generally conform to the orally rendered judgment is based upon the fact
that the orally rendered judgment had already been entered and was therefore
already in effect.5 The subsequent written judgment was merely providing written
factual and legal support for the already entered oral judgment. In Morris, this Court
treated orally rendered judgments that had been entered differently than those that
had not been entered, stating:
Although the trial judge announced his general holdings at
the end of the trial, he did not direct the clerk to make any
entry in the record. Therefore, under the second paragraph
of Rule 58, the judgment was not entered in open court and
the written judgment of 9 June 1986 is the judgment for
the purposes of the Rules of Civil Procedure under the third
paragraph of Rule 58. The written judgment did not
determine any issue different from those dealt with in the
judgment announced in open court. Therefore, defendant’s
oral notice of appeal, though given in open court prior to the
entry of judgment, was effective to give notice of appeal to
the written judgment under N.C.G.S. Sec. 1-279(a).
Id. at 388-89, 358 S.E.2d at 126 (citations omitted) (emphasis added). The reason the
Morris Court emphasized that the written judgment did “not determine any issue
different from” the orally rendered judgment was that the substantial accord between
5 Once a judgment has been entered, the trial court cannot make substantial changes to that
judgment without notice to the parties and an opportunity to be heard. See N.C. Gen. Stat. § 1A-1,
Rules 59 and 60; Lee v. Lee, 167 N.C. App. 250, 254, 605 S.E.2d 222, 224-25 (2004); Scott v. Scott, 106
N.C. App. 379, 416 S.E.2d 583 (1992).
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the two is what gave effect to the oral notice of appeal, even though the notice of appeal
was given before actual entry of the judgment.
The implication is that, had the subsequent written judgment differed from
the oral judgment, the notice of appeal would not have been effective because, though
it was given after judgment had been rendered in open court, it was given before the
judgment was entered. Therefore, it could not serve to give notice of appeal from
anything in the later written judgment that differed substantially from the oral
rendering of that judgment. The further implication is that the judgment later
written and entered controlled, and the trial court was not bound by its earlier
rendered judgment. This is so because if the trial court was bound by its non-entered
orally rendered judgment, notice of appeal from that judgment would always be
effective – the trial court would simply have to insure that its entered written
judgments always conformed with their corresponding non-entered orally rendered
judgments. If this were the case, remedy for failure of the entered written order to
conform to the orally rendered order would be remand to make the written order
conform with the orally rendered order; but the validity of the notice of appeal would
not be in question. However, the issue in Morris was the validity of the notice of
appeal, not the validity of the written and entered judgment itself.
Furthermore, this Court has not generally required written entered judgments
to adhere to the prior non-entered, orally rendered judgments upon which they were
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based. “‘The announcement of judgment in open court is the mere rendering of
judgment,’ and is subject to change before ‘entry of judgment.’ ‘A judgment is entered
when it is reduced to writing, signed by the judge, and filed with the clerk of court.’”
Morris v. Southeastern Orthopedics Sports Med. & Shoulder Ctr., 199 N.C. App. 425,
433, 681 S.E.2d 840, 846 (2009) (citations omitted) (emphasis added); see also
Fayetteville Publ’g Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419, 425, 665
S.E.2d 518, 522 (2008) (“The trial judge’s comments during the hearing as to its
consideration of the entire case file, evidence and law are not controlling; the written
court order as entered is controlling.”). In fact, this Court has held that the trial court
can consider evidence presented following the oral rendering of the judgment in order
to better inform its subsequent written judgment. Morris, 199 N.C. App. at 433, 681
S.E.2d at 846 (the trial court could consider an affidavit filed after rendering of the
judgment in open court so long as it was filed before the trial court entered judgment);
Fayetteville Publ’g, 192 N.C. App. at 425-26, 665 S.E.2d at 522 (the fact that there
was only a short period of time “between hearing the motion and rendering the order
in open court” is not dispositive of whether trial court fully weighed the evidence
because the written order wasn’t entered until days later); see also Stachlowski, 328
N.C. at 282-83, 401 S.E.2d at 642-43 (“The record indicates that on 17 January 1989,
the trial court announced in open court that . . . custody would not change from
defendant to plaintiff. The court thus rendered judgment that day on the custody
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issue. There is no indication, however, that it made any direction to the clerk to enter
judgment. On the contrary, the court directed counsel for defendant to “draw the
Order.” The parties continued to negotiate visitation privileges with the express
understanding that counsel would not draw the order until the parties got ‘squared
away on . . . Christmas.’ Though the court rendered judgment as to custody on 17
January 1989, these circumstances do not establish an entry of judgment at that
time.”).
What this Court has continually held, however, is that a notice of appeal from
a judgment rendered in open court will not vest jurisdiction in this Court until that
judgment is entered – meaning until a written judgment, generally conforming with
the judgment rendered, is filed with the appropriate clerk. Abels, 126 N.C. App. at
804-05, 486 S.E.2d at 738. The logical continuation of the reasoning of this holding
is that jurisdiction will not vest in this Court if notice of appeal is given after oral
rendering of the judgment but before entry of the judgment if the written judgment
entered does not generally comply with the judgment rendered in open court. This is
an issue of appellate jurisdiction, not a limitation on what the trial court may include
in its written order. Though it does not appear that this Court has directly addressed
this issue, it follows that an appellant must file a written notice of appeal from the
written and entered judgment, even if that appellant has already filed a written
notice of appeal from the orally rendered judgment, if the written and entered
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judgment does not generally comply with the earlier rendered judgment. However,
the present case does not include any issues related to our jurisdiction or the validity
or timeliness of the notice of appeal. Respondent-Father filed his notice of appeal
following the entry of the order terminating his parental rights, so there was no
requirement, for purposes of appellate jurisdiction, that the order entered 11 August
2015 generally conform with the order rendered in open court on 16 July 2015. See
Morris, 86 N.C. App. at 388-89, 358 S.E.2d at 126.
This is not to say there are no circumstances in which deviation from
judgments rendered in open court will constitute error. Respondent-Father relies on
this Court’s holding in In re J.C. & J.C., ___ N.C. App. ___, 783 S.E.2d 202 (2014),
which stated that “if there is a discrepancy between the written order and the oral
rendering of the order in open court as reflected by the transcript, the transcript is
considered dispositive.” Id. at, ___, 783 S.E.2d at 205. In J.C., which was an appeal
from an order that changed custody of a child under DSS supervision, the trial court
announced at the hearing that it was adopting all of the recommendations from the
Department of Social Services, except that the department would continue to
supervise visitation with the respondent-mother until it could find a replacement
supervisor, and that the visitation would be every other week at DSS’s offices. Id. at
__, 783 S.E.2d at 205. However, the trial court’s written order directly contradicted
the order rendered from the bench and directed that the respondent-mother’s
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visitation would be supervised by third parties at a visitation center, and at
respondent-mother’s expense. Id. at __, 783 S.E.2d at 205. Because this Court
concluded that the differences between the oral rendering and the written order were
substantive, we vacated the written order’s visitation provisions, and remanded for
entry of an amended order that accurately reflected the trial court’s oral disposition.
Id. at __, 783 S.E.2d at 205.
Respondent-Father, relying on J.C., argues that, because the order entered in
the matter before us did not generally comply with the order rendered in open court,
we, and the trial court, are bound by the order as rendered in open court on 16 July
2015, which did not address dependency as a ground for terminating his parental
rights. In J.C., this Court stated the following:
“[A] judgment is entered when it is reduced to writing,
signed by the judge, and filed with the clerk of court.” N.C.
Gen. Stat. § 1A–1, Rule 58 (2013). Thus, “[a]nnouncement
of judgment in open court merely constitutes ‘rendering’ of
judgment, not entry of judgment.” Abels v. Renfro Corp.,
126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997). “If the
written judgment conforms generally with the oral
judgment, the judgment is valid.” Edwards v. Taylor, 182
N.C. App. 722, 727, 643 S.E.2d 51, 54 (2007). However, if
there is a discrepancy between the written order and the
oral rendering of the order in open court as reflected by the
transcript, the transcript is considered dispositive. See
State v. Sellers, 155 N.C. App. 51, 59, 574 S.E.2d 101, 106–
07 (2002).
Id. at __, 783 S.E.2d at 205.
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However, J.C. appears to be in conflict with certain established precedents.
J.C. cites to Edwards, which in turn cites Morris, supra. As stated above, this portion
of Morris is discussing a situation when an order was entered orally in open court,
then subsequently reduced to writing and filed. Morris, 86 N.C. App. at 389, 358
S.E.2d at 127. Judgments and orders in civil cases can no longer be entered in open
court and, therefore, this portion of Morris is no longer relevant. It is true that
general conformity between the orally rendered judgment and the written judgment
entered is still relevant for determining the validity of notices of appeal filed following
oral rendering of the judgment, but before the judgment has been entered, Id. at 388-
89, 358 S.E.2d at 126, but that is not the situation before us. Further, the holding in
Edwards that “[i]f the written judgment conforms generally with the oral judgment,
the judgment is valid[,]” Edwards, 182 N.C. App. at 727, 643 S.E.2d at 54, does not
command the converse, i.e. that any written judgment that does not generally
conform with the oral judgment is necessarily invalid. Though there may be
situations when this is true, we can find no opinion in which it has been held that the
written and entered judgment must always generally conform with a prior oral
rendition of that judgment in order to be valid. However, as noted above, there are
plenary opinions in which our appellate courts have affirmed entered judgments and
orders that do not conform to the associated orally rendered judgments and orders.
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J.C. cites a criminal case, Sellers, for the proposition that “if there is a
discrepancy between the written order and the oral rendering of the order in open
court as reflected by the transcript, the transcript is considered dispositive.” J.C., __
N.C. App. at __, 783 S.E.2d at 205. J.C. bases this statement on the following analysis
in Sellers:
Defendant asserts the trial court erred in failing to make
the requisite finding that the aggravating factors
outweighed the mitigating factors before sentencing
defendant to an aggravated term for assault with a firearm
on Officer Denny. The transcript reveals the trial court
stated, “[t]he Court finds that the factors, factors in
aggravation outweigh the factors in mitigation, and that an
aggravated sentence is justified in the judgments to be
entered.” The form, however, leaves unchecked this
important finding. From the transcript and the aggravated
sentence imposed, it is clear that the court intended to have
this box checked. Clerical errors are properly addressed
with correction upon remand because of the importance
that the records “‘speak the truth.’” Accordingly, upon
remand the trial court should correct the clerical error
when it enters a new judgment.
Sellers, 155 N.C. App. at 59, 574 S.E.2d at 106-07 (citation omitted). This holding in
Sellers stands for the proposition that, when it is apparent from the transcript that a
clerical error has been committed on the written order, remand is appropriate so that
the trial court can correct the clerical error. Sellers does not stand for the proposition
that the trial court is always bound by its pronouncements in open court.
As discussed above, prior opinions of this Court have made clear that, as a
general proposition, the written and entered order or judgment controls over an oral
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rendition of that order or judgment. See, e.g., Fayetteville Publ'g, 192 N.C. App. at
425-26, 665 S.E.2d at 522. One panel of this Court cannot overrule a prior panel of
this Court, or our Supreme Court. In the Matter of Appeal from Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989). To the extent that J.C. is in conflict with
prior holdings of this Court, or our Supreme Court, we are bound by the prior
holdings.
Assuming arguendo J.C. is not in conflict with prior opinions, we believe it is
limited to the facts in that case. In J.C.,
the trial court made two statements [in open court] which
constituted [the oral rendering of its] order regarding
visitation: “I’m going to adopt the recommendations put
for[th] by the Department with the exception that DSS will
supervise until they can find a replacement[,]” and “I’m
adopting every recommendation [by DSS] with the
exception of the visitation will be at Social Services every
other week.” Nonetheless, in its written order, the trial
court directly contradicted the order it rendered from the
bench, instead adopting DSS’s recommendation by
ordering that respondent’s visitation would continue to be
at a visitation center at respondent’s expense.
J.C., __ N.C. App. at __, 783 S.E.2d at 205. In the present case, the trial court did
not directly contradict itself. Instead, the trial court was silent on the ground of
dependency at the end of the trial, apparently unaware of its omission. Neither
Respondent-Father nor any other party alerted the trial court to the omission. No
order or judgment had been entered at that time and, therefore, no party was bound
by the judgment. The judgment entered, by filing of the written order terminating
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Respondent-Father’s parental rights, included both grounds for termination argued
at trial, neglect and dependency. Respondent-Father properly noticed appeal from
this entered judgment. On these facts, we hold that the trial court was not bound by
its oversight in rendering judgment, and that the written order, subsequently
entered, controls.
We further note that were we to find error in the trial court’s omission in
rendering judgment in open court, the remedy would be to remand for the trial court
to make findings of fact and conclusions of law and determine whether DSS proved
the ground of dependency. This, of course, the trial court has already done. This
Court has decided that, when the trial court has failed to find any specific N.C. Gen.
Stat. § 7B-1111 ground for terminating a respondent’s parental rights, it will not
dismiss the action, it will vacate the erroneous judgment and remand to the trial
court, to either amend its order to demonstrate that it correctly found a ground for
termination pursuant to N.C. Gen. Stat. § 7B-1111, or take other appropriate action
to insure the matter was properly decided. See, e.g., In re T.M.H., 186 N.C. App. 451,
456, 652 S.E.2d 1, 3 (2007) (“We vacate the order and remand the matter to the trial
court with instructions . . ., if appropriate, to articulate conclusions of law that include
the grounds under N.C.G.S. § 7B–1111(a) which form the basis for termination. The
trial court may, in its discretion, receive additional evidence on remand.”); In re
D.R.B., 182 N.C. App. 733, 738-39, 643 S.E.2d 77, 81 (2007) (this Court vacated a
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judgment that failed to articulate the specific grounds for termination and remanded
for the trial court to make the appropriate findings and conclusions); see also In re
T.B., C.P., & I.P., 203 N.C. App. 497, 509, 692 S.E.2d 182, 190 (2010) (In adjudication
hearing trial court adjudicated children dependent, but failed to adjudicate whether
children were neglected as alleged in petition. This Court remanded for
determination of the neglect allegation).
In the present case, the trial court found that DSS had proven the two grounds
alleged in its motion to terminate, neglect and dependency. Even assuming arguendo
it was error for the trial court to fail to announce in open court that it would rule in
favor of DSS on the ground of dependency, our remedy would be to remand to the
trial court to give it the opportunity to provide findings and conclusions in support of
terminating Respondent-Father’s parental rights on the ground of dependency,
assuming that was the trial court’s intention. Because there is already a judgment,
written and entered on 11 August 2015, in which the trial court ruled that the ground
of dependency had been proven, remand would be an unnecessary delay, and a waste
of judicial resources. We hold that the trial court was not precluded from finding
dependency as a ground for terminating Respondent-Father’s parental rights even
though it did not include that ground when it rendered the judgment in open court.
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IN RE: O.D.S.
Opinion of the Court
We now address dependency as a basis for the trial court’s decision to
terminate Respondent-Father’s parental rights. The trial court concluded in its 11
August 2015 order:
Grounds exist to terminate Respondent[s] parental rights
under N.C.G.S. § 7[B-]1111(6) in that Respondent [ ] is
incapable of providing for the proper care and supervision
of the juvenile, such that the juvenile is a dependent
juvenile within the meaning of G.S. 7B-101; there is a
reasonable probability that such incapability will continue
for the foreseeable future; and Respondent lacks an
appropriate alternative childcare arrangement.
We find no evidence that the ground of dependency had been dismissed, and note that
Respondent-Father’s counsel put on evidence in an attempt to rebut the allegation
that Respondent-Father lacked an appropriate alternative caregiver. The trial court
was thus statutorily required to determine the existence or non-existence of the
ground of dependency because it was alleged in the motion to terminate Respondent-
Father’s parental rights. N.C. Gen. Stat. § 7B-1109(e).
Respondent-Father does not otherwise challenge the trial court’s conclusion
that termination of his parental rights was appropriate based upon the ground of
dependency, and does not challenge the court’s conclusion that termination of
Respondent-Father’s parental rights was in O.D.S.’s best interests. Because
Respondent-Father does not argue on appeal that the trial court’s findings of fact and
conclusions of law do not support its determination that termination of his parental
rights was proper based upon N.C. Gen. Stat. § 7B-1111(a)(6), we hold that this
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IN RE: O.D.S.
Opinion of the Court
ground supports the trial court’s decision to terminate Respondent-Father’s parental
rights. Thus, we need not address Respondent-Father’s arguments regarding the
ground of neglect, see In re N.T.U., ___ N.C. App. ___, ___, 760 S.E.2d 49, 57 (“In
termination of parental rights proceedings, the trial court’s ‘finding of any one of the
. . . enumerated grounds is sufficient to support a termination.’”), disc. review denied,
___ N.C. ___, 763 S.E.2d 517 (2014), and we affirm the trial court’s order terminating
Respondent-Father’s parental rights to O.D.S.
AFFIRMED.
Judges BRYANT and STROUD concur.
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In re: O.D.S.Â
Court: Court of Appeals of North Carolina
Date filed: 2016-06-07
Citations: 786 S.E.2d 410, 247 N.C. App. 711
Copy CitationsCombined Opinion