In re Duncan, Jr., 262 N.C. App. 395 (2018)
Held:
Dismissed in part
Affirmed in Part
- Facts: After DSS determined the petitioner was a caretaker who abused a juvenile, it provided notice to the petitioner that it intended to place him on the state’s Responsible Individuals List (RIL). Petitioner requested a judicial review. He also filed a motion to dismiss/deny asserting that he is not a caretaker and a motion for jury trial. A December order denied the motion to deny/dismiss, and a January order denied the motion for a jury trial. Petitioner appeals both orders. DSS filed a motion to dismiss the appeal, arguing both orders were interlocutory and not immediately appealable.
- Motion to Dismiss: There is no right of immediate appeal to an interlocutory order denying a NC Rule of Civil Procedure 12(b)(1) or a 12(b)(6) motion to dismiss. The trial court’s denial of the motion to dismiss did not include a determination of whether petitioner was a caretaker. Petitioner is not precluded from making the argument that he is not a caretaker at the hearing for judicial review.
- Motion for Jury Trial: Although an interlocutory order, the denial of the petitioner’s motion for jury trial affects a substantial right that could be lost without immediate review. G.S. 7B-323(b) does not provide for a statutory right to a jury trial in a judicial review of a RIL placement proceeding. Like a termination of parental rights action, the judicial review of a RIL placement proceeding did not exist at common law and is therefore not subject to a constitutional right to a jury trial. Although petitioner did not preserve for appellate review the argument that the DSS action to place an individual on the RIL is similar to a common law defamation action, the court of appeals determined the argument would fail. The trial court did not err in denying the motion for jury trial.
Category:
Abuse, Neglect, DependencyStage:
Responsible Individuals ListTopic:
Hearing