In re K.S., 274 N.C. App. 358 (2020)

Stay granted
allowed 2/5/21
Reversed and Remanded
  • Facts and Procedural History: This is an appeal by the juvenile’s guardians of a permanency planning order that terminates their guardianship and focuses on the district court’s lack of compliance with a prior appeal and the mandate resulting from it. That prior opinion is In re M.N., 260 N.C. App. 203 (2018).
    • K.S. was born in 2007 and was adjudicated neglected and abused later that year. In 2009, permanency was achieved when maternal grandparents were appointed as guardians. Further review hearings in the action were waived.
    • In 2016, DSS filed a second petition alleging K.S. was neglected and dependent based on the guardians having drug-related charges. In 2017, K.S. was adjudicated neglected and in a dispositional order, the guardianship of K.S. was terminated. The guardians, who are named as parties, appealed.
    • On appeal, the adjudication and disposition were reversed due to insufficient findings of fact and a lack of evidence to support the findings of fact that K.S. was neglected. The case was remanded “for further proceedings ‘not inconsistent with th[e] opinion.’ ” Sl. Op. at 5.
    • On the day the appellate opinion was filed, DSS filed a motion for review/permanency planning hearing to terminate the grandparents’ guardianship due to the guardians’ substance use and criminal charges. The guardians filed a motion raising res judicata and estoppel as affirmative defenses.
    • The district court conducted a hearing to address the appellate mandate and “provided DSS with the option of addressing the matter on remand for further findings of fact as to the adjudication of Kaitlyn as a neglected juvenile or, alternatively, proceeding with its motion for review.” Sl.Op. at 5-6. A permanency planning hearing was held on DSS’s motion for review as the trial court concluded DSS “elected to proceed with the motion for review/permanency planning hearing” and purported to dismiss the second petition which had been the subject of the previous appeal. After hearing, the court terminated the guardianship. The guardians appealed raising as one issue that the district court lacked subject matter jurisdiction at a permanency planning hearing to terminate their guardianship based on the remand from the previous appeal and as another issue that the district court’s proceedings on remand were inconsistent with the appellate mandate.
  • Subject matter jurisdiction to terminate the guardianship: Under G.S. 7B-200 and -201, the district court retained jurisdiction over K.S. under the first petition as it did not enter an order terminating its jurisdiction and K.S. has not turned 18 or been otherwise emancipated. Jurisdiction over that first action did not terminate when the second petition (2016) was purportedly dismissed after the appellate remand. The district court retains subject matter jurisdiction in the first action.
  • Compliance with the Remand: “ ‘The general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure.’ ” Sl.Op. at 10. The 2018 reverse and remand “for further proceedings ‘not inconsistent with th[e] opinion’ ” mandate required “DSS to provide sufficient evidence to adjudicate Kaitlyn neglected (as alleged in the Second Petition) by showing harm or risk of harm.” Sl.Op at 13. By conducting a permanency planning hearing in the first action without first conducting a new adjudicatory in the 2016 action was reversible error. The matter is remanded for the district court to comply with the previous mandate to make findings as to whether there was harm or risk of harm to K.S. and make the appropriate conclusions of law. “Thereafter, the parties may proceed as permitted under law while taking into consideration this Court’s previous holdings.” Sl.Op. at 15.
Abuse, Neglect, Dependency
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