In re A.R.B., 289 N.C. App. 119 (2023)
Held:
Vacated and Remanded
- Facts: Mother filed a petition to terminate father’s parental rights. After a hearing, the court granted the TPR. In its order, the court stated that there is clear and convincing evidence that the TPR is in the child’s best interests. Father appealed. Mother then filed a Rule 60(a) motion to address that the standard of clear and convincing evidence was applied to the grounds phase. The court determined it was good practice to grant the motion and clarify that it applied clear, cogent, and convincing evidence standard. An amended order was entered specifying that clear, cogent, and convincing evidence supporting the grounds. Father appealed the amended order.
- Rule 60(a) is used to correct clerical mistakes resulting from an oversight or omission. The mistakes may be corrected during the pendency of an appeal before the appeal is docketed in the appellate division.
- The court may correct clerical mistakes, not make substantive modifications. A clerical mistake is one “that does not alter the court’s reasoning or determination in ruling on an order.” Sl.Op. 8. If the court alters the effect of the order, it is an abuse of discretion.
- Case law has established that correcting a standard of proof is reversible error. In this case, the standard of proof was added. Past opinions have held that not announcing or writing the standard of proof of clear, cogent, and convincing evidence to the TPR grounds is reversible error. These opinion “speak directly to the importance of the trial memorializing its employment of the correct standard of proof during the proceedings in this context.” Sl.Op. 10. The plain language of the statute refers to “clerical error,” which “Black’s Law Dictionary defines… as ‘an error resulting from a minor mistake or inadvertence…’ ” Sl.Op. 11. The recording device malfunctioned so it is impossible to know if the court announced the proper standard it was applying. Based on a comparison of the original and amended orders, the addition of the clear, cogent, and convincing evidence standard to the grounds “alters the effect of the original order.” Thus, the addition of the language was a substantive modification and, therefore, an abuse of discretion.
Category:
Termination of Parental RightsStage:
AppealTopic:
Clerical Mistake