In re C.M.C., ___ N.C. ___ (Sept. 27, 2019)

  • Facts: Infant was adjudicated abused, neglected, and dependent and at initial disposition, reunification efforts with both parents were ceased. At a permanency planning hearing, the court adopted a primary plan of adoption and secondary plan of guardianship. DSS filed a petition to terminate parental rights. At the end of the TPR hearing, the court rendered a decision, noting findings and conclusions, and asking DSS counsel to draft the order. The order was signed by Judge Leslie, who was not the presiding trial judge. The respondent mother appealed. Two days later, DSS filed a Rule 60 motion seeking that the orders be vacated and the trial court sign a new TPR order. The motion was granted and a new order was signed by the trial court. Respondent mother appealed the new TPR order.
  • Issue: Did the trial court lack authority to vacate the first TPR order after mother had noted an appeal of that order?
  • Rule 60(b)(4) & (6) allows the trial judge to grant relief from any order that was entered by mistake or inadvertence or any other reason justifying relief. Adopting reasoning by prior opinions published by the court of appeals, the TPR order signed by Judge Leslie was nullity because Rule 52 requires the judge presiding over a non-jury trial to (1) make findings of fact, (2) state conclusions based on the facts, and (3) enter judgment. Rule 58 provides that “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk.” Sl. op. at 7- (emphasis added by supreme court). “A party may not properly appeal from a judgment until it has been entered.” Sl. Op. at 8. Since the first TPR order was not a viable order that was entered, the appeal by respondent mother did not divest the trial court of jurisdiction to make the necessary correction.
Termination of Parental Rights
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