In re C.M.C.

IN THE SUPREME COURT OF NORTH CAROLINA

No. 109A19

Filed 27 September 2019

IN THE MATTER OF: C.M.C.

On writ of certiorari pursuant to N.C.G.S. § 7A-31-32(b) to review orders

entered on 7 December 2018 by Judge Kristina L. Earwood in District Court,

Haywood County. This matter was calendared in the Supreme Court on 11

September 2019 but determined on the record and briefs without oral argument

pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.

Jordan R. Israel for petitioner-appellee Haywood County Health and Human
Services Agency.

Alston & Bird LLP, by Sarah R. Cansler, for appellee Guardian ad Litem.

David A. Perez for respondent-appellant mother.

ERVIN, Justice.

Respondent-mother Heather C. appeals from an order entered by the trial

court terminating her parental rights in her daughter C.M.C.1 After careful

consideration of respondent-mother’s challenge to the trial court’s termination orders

1 C.M.C. will be referred to throughout the remainder of this opinion as “Caroline,”
which is a pseudonym used to protect the identity of the juvenile and for ease of reading. See
N.C. R. App. P. 42(b)(1).
 IN RE: C.M.C.

Opinion of the Court

in light of the record and the applicable law, we conclude that the trial court’s orders

should be affirmed.

On 19 September 2017, the Haywood County Health and Human Services

Agency filed a petition alleging that Caroline was an abused, neglected and

dependent juvenile. The HHSA had received a report on 29 August 2017 that

respondent-mother had given birth to Caroline in June 2017 while at home and

without medical assistance; that Caroline had not received medical care since her

birth; and that respondent-mother was using drugs. Respondent-mother and Rex C.,

Caroline’s putative father, told the social workers responsible for investigating this

report that Caroline had not received medical care because she did not have Medicaid

and the couple could not afford a doctor. According to respondent-mother and the

putative father, the couple and their family had always lived in Haywood County

except for brief stints in Florida and Georgia, that their three other children lived

with their maternal grandmother, and that neither respondent-mother nor the

putative father had any pending criminal charges or prior history of child protective

services involvement. Other information developed by the investigating social

workers revealed, however, that the other children had been removed from the

parents’ care in North Dakota as the result of abuse-related concerns; that the North

Dakota courts were about to terminate the parents’ parental rights in two of their

other children; and that the parents were being prosecuted in North Dakota for

abusing those two children.

-2-
 IN RE: C.M.C.

Opinion of the Court

On 19 September 2017, Judge Monica H. Leslie entered an order granting non-

secure custody of Caroline to the HHSA. Following the entry of the non-secure

custody order, social workers and deputies employed by the Haywood County Sheriff’s

Office went to respondent-mother’s home in order to search for Caroline. However,

neither respondent-mother, the putative father, nor Caroline were present at the

family home when the social workers and deputies arrived. On 20 September 2017,

respondent-mother, the putative father, and Caroline were found in the basement of

a family friend’s residence. At that point, Caroline was taken into HHSA custody and

admitted to the hospital and respondent-mother and the putative father were

arrested on the basis of warrants that had been issued against them in connection

with the pending North Dakota child abuse charges. A subsequent medical

examination revealed that Caroline had several fractured ribs and tested positive for

the presence of controlled substances. Following her release from the hospital,

Caroline was placed in foster care.

On 9 February 2018, the trial court entered an adjudication order finding

Caroline to be an abused, neglected and dependent juvenile and determining that

aggravating circumstances authorizing the immediate cessation of reunification

efforts consisting of “[c]hronic physical or emotional abuse,” “[t]orture,” “[c]hronic or

toxic exposure to alcohol or controlled substances that causes impairment of or

addiction in the juvenile,” and “[a]ny other act, practice, or conduct that increased the

enormity or added to the injurious consequences of the abuse or neglect” existed.

-3-
 IN RE: C.M.C.

Opinion of the Court

N.C.G.S. § 7B-901(c)(1)(b), (c) (e), (f) (2017). On the same date, the trial court entered

a dispositional order placing Caroline in the custody of the HHSA, establishing a

permanent plan of adoption with a concurrent permanent plan of guardianship with

a relative or court-appointed caretaker, and relieving the HHSA from any further

responsibility for attempting to reunify Caroline with respondent-mother and the

putative father.

On 5 April 2018, the HHSA filed a petition seeking the entry of an order

terminating the parental rights of respondent-mother, the putative father, and any

unknown father in Caroline. The issues raised by the HHSA’s termination petition

came on for hearing before the trial court on 10 September 2018. At the conclusion

of the hearing, the trial court announced that the parental rights of respondent-

mother and the putative father in Caroline should be terminated, enunciated certain

findings and conclusions that it wished to have included in the trial court’s

adjudication and dispositional orders, and requested counsel for the HHSA to draft

the required written orders. On 16 October 2018, adjudication and disposition orders

signed by Judge Leslie, rather than the trial court, were filed. On 13 November 2018,

respondent-mother noted an appeal from these adjudication and dispositional orders

to the Court of Appeals.2

2 Prior to 1 January 2019, appeals noted from orders granting or denying a motion or
petition to terminate parental rights lay to the Court of Appeals rather than to this Court.
N.C.G.S. § 7B-1001(a)(6) (2017).

-4-
 IN RE: C.M.C.

Opinion of the Court

On 15 November 2018, the HHSA filed a motion pursuant to N.C. R. Civ. P.

§ 1A-1, Rule 60 (2017) seeking the entry of an order vacating the adjudication and

dispositional orders that had been filed on 16 October 2018 given that those orders

had been signed by Judge Leslie rather than by the trial court. On 30 November

2018, Judge Leslie entered an order vacating the adjudication and dispositional

orders that she had signed. On 7 December 2018, the trial court entered an

adjudication order determining that respondent-mother’s parental rights in Caroline

were subject to termination because of abuse and neglect, failure to pay support,

incapability, and abandonment, N.C.G.S. § 7B-1111(a)(1), (3), (6), (7), and that the

putative father’s parental rights in Caroline were subject to termination because of

abuse and neglect, failure to legitimate, incapability, and abandonment.3 N.C.G.S. §

7B-1111(a)(1), (5), (6), (7). In addition, the trial court entered a separate dispositional

order in which it determined that the termination of respondent-mother’s and the

putative father’s parental rights in Caroline would be in the juvenile’s best interests.4

Respondent-mother noted an appeal from the trial court’s termination orders to the

Court of Appeals. On 24 April 2019, this Court granted respondent-mother’s petition

seeking the issuance of a writ of certiorari authorizing review of the trial court’s

termination orders.

After the putative father’s paternity of Caroline had been established by means of
3

DNA testing, the HHSA dismissed its termination petition as to the unknown father.

4 The putative father has not noted an appeal from either set of termination orders
and is not a party to the proceedings before this Court.

-5-
 IN RE: C.M.C.

Opinion of the Court

In her sole challenge to the trial court’s termination orders, respondent-mother

argues that the trial court erred by entering the challenged termination orders on the

grounds that Judge Leslie lacked the authority to vacate the earlier termination

orders which she had inadvertently signed given that respondent-mother had already

noted an appeal from Judge Leslie’s earlier termination orders. We do not find

respondent-mother’s argument persuasive.

According to N.C.G.S. § 1A-1, Rule 60(b), a trial judge is entitled to grant relief

from any judgment or order that, among other things, was entered by mistake or

inadvertence, where the judgment is void, or where there is “[a]ny other reason

justifying relief from the operation of the judgment.” N.C.G.S. § 1A-1, Rule 60(b)(1),

(4), (6). A trial judge does not have jurisdiction to rule upon a motion for relief from

judgment made pursuant to N.C.G.S. § 1A-1, Rule 60(b) once an appeal has been

noted from the relevant order. Wiggins v. Bunch, 280 N.C. 106, 184 S.E.2d 879

(1971). Respondent-mother contends that, since she had already given notice of

appeal from the initial set of termination orders, Judge Leslie lacked the authority to

vacate those orders given that her action in vacating them constituted a substantive

modification of those earlier orders rather than the correction of a clerical error. The

HHSA argues, on the other hand, that, since Judge Leslie did not preside over the

termination hearing, the first set of termination orders had never been properly

entered in accordance with N.C.G.S. § 1A-1, Rule 58 (2017) and were, for that reason,

a nullity. In light of that fact, the HHSA further asserts that respondent-mother’s

-6-
 IN RE: C.M.C.

Opinion of the Court

notice of appeal from the initial termination orders did not have the effect of divesting

the District Court, Henderson County, of the authority to enter further orders in this

case.

The Court of Appeals decided issues similar to the question before us in this

case in In re Whisnant, 71 N.C. App. 439, 442, 322 S.E.2d 434, 435 (1984) and In re

Savage, 163 N.C. App. 195, 198, 592 S.E.2d 610, 611 (2004), in both of which the

orders terminating the parents’ parental rights were vacated because they had been

signed by a judge other than the individual who had presided over the termination

hearing. According to the Court of Appeals, “an order terminating parental rights

was a ‘nullity’ when signed by a judge other than the one who presided over the

hearing,” In re Savage, 163 N.C. App. at 197, 592 S.E.2d at 611 (quoting In re

Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435), with this result stemming from

the fact that N.C.G.S. § 1A-1, Rule 52 “requires a judge presiding over a non-jury trial

to (1) make findings of fact, (2) state conclusions of law arising on the facts found, and

(3) enter judgment accordingly.” In re Savage, 163 N.C. App. at 197, 592 S.E.2d at

611 (citing In re Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435). Since we believe

that the reasoning adopted by the Court of Appeals in these cases was sound, we

conclude that the initial termination orders signed by Judge Leslie were, as the

HHSA contends, a nullity.

In further confirmation of the appropriateness of this result, we note that

N.C.G.S. § 1A-1, Rule 58 provides that “a judgment is entered when it is reduced to

-7-
 IN RE: C.M.C.

Opinion of the Court

writing, signed by the judge, and filed with the clerk of court.” N.C.G.S. § 1A-1, Rule

58 (emphasis added). According to well-established North Carolina law, a party may

not properly appeal from a judgment until it has been entered. See Logan v. Harris,

90 N.C. 7, 8 (1884); see also N.C. R. App. P. 3(c)1) (noting that appeals must be filed

“within thirty days after entry of judgment” (emphasis added)). Thus, we conclude

that the initial termination orders signed by Judge Leslie were a nullity for this

reason as well.

In view of the fact that no viable adjudication and termination orders were

actually entered on 16 October 2018, the appeal that respondent-mother noted from

those orders did not have the effect of divesting the District Court, Henderson

County, of the authority to enter further orders in this case, including the entry of

additional orders correcting the error worked by Judge Leslie’s decision to sign orders

in a termination of parental rights case in which she had not presided over the

adjudication and dispositional hearing. Cf. Veazey v. City of Durham, 231 N.C. 357,

367, 57 S.E.2d 377, 385 (1950) (stating, in discussing a statutory predecessor to the

Rule of Civil Procedure, that, “ ‘when an appeal is taken as in this case from an

interlocutory order from which no appeal is allowed by The Code [of Civil Procedure

of 1868], which is not upon any matter of law and which affects no substantial right

of the parties, it is the duty of the Judge to proceed as if no such appeal had been

taken’ ” (quoting Carleton v. Byers, 71 N.C. 331, 335 (1874))). For this reason, Judge

Leslie did not err by vacating the initial set of termination orders that she signed in

-8-
 IN RE: C.M.C.

Opinion of the Court

this case and the trial court did not err by entering the set of termination orders

which respondent-mother has sought to challenge before this Court. As a result, since

the trial court had the authority to enter the challenged orders terminating

respondent-mother’s parental rights in Caroline and since respondent-mother has

not advanced any other challenges to the validity of the trial court’s termination

orders, those orders are affirmed.

AFFIRMED.

-9-