In re J.M., ___ N.C. ___ (April 23, 2021)

Held: 
Affirmed in Part
Vacated in Part
  • Facts and procedural history: There is an underlying juvenile case to this TPR, where the son was adjudicated abused and the daughter “seriously neglected.” Father appealed, and son’s adjudication was affirmed while daughter’s adjudication was reversed and remanded due to a misapprehension of law (neglect not seriously neglected). On August 6, 2019, the children’s GAL filed motions to TPR father’s rights to both children. On August 8, 2019, the neglect petition for the daughter came back for hearing pursuant to the remand. The remand hearing was conducted in August with adjudication and disposition orders entered on November 1, 2019. Father appealed the remand orders. On the same day but after the notice of appeal was filed, the court heard the GAL’s motion to TPR father’s rights, which was granted. Father appeals the TPR orders. (The appeal regarding son involves a no-merit brief and father’s pro se brief which included a claim for ineffective assistance of counsel; the opinion held father’s arguments were meritless.)
  • In juvenile actions, the court’s subject matter jurisdiction is established by statute – the Juvenile Code. Because of the nature of juvenile cases, the legislature has provided for a modified approach for appeals of juvenile orders, which allows the trial court to continue to exercise jurisdiction while the appeal is pending with the exception of hearings to terminate parental rights. G.S. 7B-1003. Regarding TPRs, the court is not divested of subject matter jurisdiction but it is prohibiting from exercising jurisdiction in the TPR while the appeal is pending. “The ‘issuance of the mandate by the appellate court,’ upon the conclusion of the appeal, ‘returns the power to exercise subject matter jurisdiction to the trial court.’ ” Sl.Op. ¶17.
    • When the GAL filed the motion to TPR, there was no appeal pending, but when the trial court started the TPR hearing, it was after the notice to appeal was filed and the court was aware of that notice of appeal. The trial court should not have exercised jurisdiction in the TPR for daughter since his appeal of the remand orders was pending. The court acted in excess of the G.S. 7B-1003(b) statutory limits on its subject matter jurisdiction. The TPR order for daughter is void and vacated.
Category:
Termination of Parental Rights
Stage:
Subject Matter Jurisdiction
Topic:
Exercising Jurisdiction
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