In re Duncan, Jr., 262 N.C. App. 395 (2018)

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.
Abuse, Neglect, Dependency
Responsible Individuals List
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