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.
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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.
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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).
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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.
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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
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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
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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
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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.
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