In re A.S., III, ___ N.C. App. ___ (June 17, 2026)
Held:
Dismissed
- Facts: DSS and the child’s GAL appeal from the trial court’s dismissal without prejudice of DSS’s motion to terminate Mother’s and Father’s parental rights to their child. In September of 2022, the child was adjudicated neglected and dependent. In April of 2024, DSS filed a TPR motion. In May of 2024, at a second preliminary hearing, the trial court ordered DSS to prepare a request for a special session due to the anticipated length of the TPR hearing. In July, August, and December of 2024, four orders continuing the preliminary hearings were entered stating the need for a special session, that the request for special session had been signed by the judge, and that a date for the special session had not been set. In January 2025, the trial court set the TPR hearing for February at the request of DSS, at which time a special session had still not been set. The TPR hearing was continued due to illness of mother’s counsel. Two more preliminary hearings were held in April and June 2025, and one of those was continued due to Mother’s counsel’s absence. At the June hearing, parents’ counsel motioned to dismiss DSS’s TPR motion for failure to prosecute. The trial court dismissed without prejudice the TPR motion, finding that the delay in scheduling was extremely prejudicial to parents. Father argues the appeal is interlocutory.
- An interlocutory order is made when the action is pending and does not dispose of the case but allows for the trial court to take further action that settles and determines the entire controversy. Interlocutory orders may not generally be appealed unless the trial court certifies the matter for immediate appeal pursuant to Rule 54(b) or the appellant argues that the order affects a substantial right.
- “[I]n juvenile proceedings, ‘[t]he Rules of Civil Procedure apply only when they do not conflict with the Juvenile Code and only to the extent that the Rules advance the purposes of the legislature as expressed in the Juvenile Code.’ ” Sl. Op. at 6 (citation omitted). On motion to dismiss for failure to prosecute, Rule 41(b) authorizes a trial court to specifically order that a dismissal be without prejudice and therefore not an adjudication on the merits.
- G.S. 7B-1001(a)(2) provides immediate appeal of “[a]ny order, including the involuntary dismissal of a petition, which in effect determines the action and prevents a judgment from which appeal might be taken.” Sl. Op. at 7, quoting G.S. 7B-1001(a)(2) (emphasis in original).
- The appeal is dismissed for lack of appellate jurisdiction. The order dismissing the TPR motion is interlocutory. The trial court retains jurisdiction over the child under G.S. 7B-201(a), and because the TPR motion was dismissed without prejudice, DSS may refile its motion. DSS nor the GAL argued that the order affects a substantial right. A narrow reading of G.S. 7B-1001(a)(2) under these facts serves the purpose of the Juvenile Code and the best interests of the child in preventing further delay of the proceedings.
- Concurrence: The delay is contrary to the child’s best interests and could have been easily prevented with proactivity by any number of parties in this matter. “[D]ismissing a juvenile petition without prejudice should never be used as a tool to reset timeline targets established by statute.” Concurrence at 1 (emphasis in original).
Category:
Termination of Parental RightsStage:
AppealTopic: