In re K.C., ___ N.C. App. ___ (February 6, 2024)

Held: 
Vacated
  • Facts: Mother and Father appeal a neglect adjudication and disposition orders they argue are void for lack of subject matter jurisdiction. After dismissing the petitions because DSS failed to provide clear, cogent and convincing evidence of neglect, the court granted a Rule 59-60 motion filed by DSS to amend or grant relief from its ruling. The court granted the motion, reversed its order, adjudicated the children neglected, and ordered custody to DSS at disposition. Mother and father filed petitions for writ of certiorari to appeal the adjudication and dispositional orders since they argued the orders are void.
  • “A judgment is void, when there is want of jurisdiction by the court over subject matter jurisdiction of the action, and a void judgment may be disregarded and treated as a nullity everywhere. . . . A void judgment is, in legal effect, no judgment. . . . [A]ll proceedings founded upon it are worthless.” Sl. Op. at 11 (citation omitted). When the court dismissed the petitions with prejudice, it terminated its jurisdiction in the action. The court did not have subject matter jurisdiction to hear the Rule  59-60 motion and enter adjudication and disposition orders. Mother and Father’s notices of appeal from either void order are therefore ineffective.
  • G.S. 7A-32 authorizes the appellate courts to issue a writ of certiorari “in aid of its own jurisdiction . . . ” pursuant to practice and procedure provided by statute or rule of the Supreme Court, or common law where those are silent. Sl. Op. at 12 (quoting G.S. 7A-32(c)). Rule 21 of the Rules of Appellate Procedure addresses writs of certiorari; however, the supreme court has held that “the decision to issue a writ is governed solely by statute and by common law.” Sl. Op. at 12 (citation omitted).
  • Rule 21 does not apply in this case because Mother and Father seek to appeal void orders, which are not addressed in Rule 21; therefore, common law applies.
  • Appellate courts use a “two-factor test to determine whether a writ of certiorari should issue: (1) ‘if the petitioner can show merit or that error was probably committed below’ and (2) ‘if there are extraordinary circumstances to justify it,’ including ‘a showing of substantial harm.’ Sl. Op. at 12-13 (citations omitted).
  • PWC granted. Mother and Father’s argument that the trial court erred has merit because the trial court did not have jurisdiction to enter orders in the matter after dismissing the juvenile petitions, and the parties have shown extraordinary circumstances because of the substantial harm from separation of a family due to a void order and lack of finality in the juvenile case.

 

 

Category:
Abuse, Neglect, Dependency
Stage:
Appeal
Topic:
Tags:
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petition for writ of certiorari
void orders