In re E.D.H., 381 N.C. 395 (2022)

There is a dissent
by Hudson, J. joined by Earls, J. and Morgan, J.
  • Facts: At the conclusion of the adjudication hearing, the judge found grounds existed and moved to disposition. At the end of the disposition, the judge took the matters under advisement. An in-chambers conference with the attorneys was later held. The judge retired. Weeks later, a TPR order was entered that was signed by a substitute judge. The order states “Findings of fact, conclusions of law, and decretal announced in chambers on the 28th day of August by the Honorable [judge] . . . [a]dministratively and ministerial[l]y signed by the Chief District Court Judge on this [date].” 381 N.C. at 397. Respondents appeal, challenging the validity of the order.
  • Interpreting the Rules of Civil Procedure is a statutory interpretation that is reviewed de novo.
  • Rule 52 requires the court hearing an action without a jury to find the facts, state the conclusions, and direct the entry of judgment. Rule 63 authorizes the chief district court judge to act as a substitute judge when by reason of retirement the judge who heard the hearing is unable to perform their duties, including entering a judgment.  If the substitute judge cannot perform those duties because they did not preside at the hearing, the judge may grant a new hearing. “[A] substitute judge cannot find facts or state conclusions of law in a matter over which he or she did not preside.” 381 N.C. at 399.
  • “[T]he presumption of regularity applies to the specific action of a Chief Judge signing and entering an order with findings of fact and conclusions made by a retired judge….” The party challenging the order has the burden of proving it was improperly entered and overcoming the presumption of regularity. Respondent would have to show that the chief judge violated Rules 52 and 63 by signing the order when not knowing whether the presiding judge made findings of fact and conclusions of law that were included in the order. Respondent did not meet their burden as the in chambers conference was held off the record and respondent did not include off-the-record evidence in the record on appeal as allowed for by App. Rule 9(c)(1). The finding that the judge who presided over the hearing made findings of fact and conclusions of law is unchallenged and, therefore, binding.
  • Dissent: The presumption of regularity should not apply. There should be a de novo review of whether the chief judge’s actions were ministerial or judicial, which is a conclusion of law. The finding in the order was challenged and is not binding since the entire appeal challenges this fact. Remedy should be to vacate and remand.
Termination of Parental Rights
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