In re K.N., 381 N.C. 823 (2022)

Vacated and Remanded
  • Facts: This is the second appeal of a TPR order. In the first appeal, the order was vacated and remanded so the court could make sufficient findings of fact to support the conclusion that the TPR ground existed. In the remand, the trial court had discretion to determine whether to take additional evidence. The judge who originally heard the TPR died prior to the remand. The chief district court judge acted as the substitute judge under Rule 63 of the Rules of Civil Procedure. A new TPR order was entered based on the substitute judge reviewing the record, trial transcripts, and proposed findings of fact submitted by the parties. No new evidence was taken. The order included new more detailed findings of fact to support the conclusion that the TPR ground was proved. Father appealed, arguing the order was void as the substitute judge did not have the authority to make new findings of fact under Rule 52 of the Rules of Civil Procedure.
  • Statutory interpretation is a question of law that is reviewed de novo. Rules 52 and 63 impose statutory mandates, and when a court acts contrary to a statutory mandate and a defendant is prejudiced by it, the issue is preserved for appeal even if an objection is not made at trial. Defendant was prejudiced by the fact finder not holding a hearing to have personal knowledge of the facts made.
  • 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 death 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 who did not preside over the matter lacks the power to find facts or state conclusions of law.” 381 N.C. at 829. Here, the substitute judge did not hold a hearing and acted contrary to Rules 52 and 63, such that the order is a nullity. Additionally, the order on the first appeal was vacated making it a nullity. By finding facts and making conclusions of law without hearing evidence, the substitute judge “engaged in distinctly judicial and not ministerial action.” 381 N.C. at 830. With the original order vacated, the substitute judge should have ordered a new hearing.
Termination of Parental Rights
Click on a term below for additional case summaries tagged with the same term.