In re O.D.S., 247 N.C. App. 711 (2016)

  • Facts: A county department filed a petition to terminate respondent father’s parental rights alleging two grounds: neglect and dependency. At the conclusion of the adjudicatory portion of the hearing, the court made an oral statement that the county department proved neglect existed but the court failed to address the ground of dependency in an apparent omission.  At disposition, the court found that the termination of respondent father’s parental rights was in the child’s best interests.  In its written order, the court included both alleged grounds (neglect and dependency) existed. Respondent father appealed arguing that the court’s written order had to conform with its oral rendition, which addressed neglect only.
  • The trial court was not precluded from basing its termination of parental rights on the ground of dependency when that ground was not addressed in the court’s oral rendition of grounds made in open court. Looking to G.S. 7B-1109 and G.S. 1A-1, Rule 52, a trial court is required to enter a judgment that includes findings of fact, conclusions of law, and a determination of the existence or nonexistence of every ground alleged in a petition or motion to terminate parental rights. Neither statute requires the court to make an oral rendition of its judgment.
  • Since Rule 58 of the NC Rules of Civil Procedure was amended in 1994, an entry of a judgment requires that the order be (1) in writing, (2) signed by the judge, and (3) filed with the clerk. The written order, and not the oral rendition, is what controls. Citing Morris v. Southeastern Orthopedics Sports Med. & Shoulder Ctr., 199 N.C. App. 425, 433 (2009), a trial court’s announcement of a judgment in open court is “the mere rendering of judgment, and is subject to change before ‘entry of judgment,’ [and]… the trial court can consider evidence presented following the oral rendering of the judgment in order to better inform its subsequent written judgment.“
  • Prior to this 1994 amendment, an order could be entered, and therefore, in effect when the clerk made a notation of the oral rendition made in open court. After that official entry, a written judgment that conformed with the terms of the oral rendition would follow. An entry of a judgment based on an oral rendition has not been permitted in civil actions since the 1994 amendment to Rule 58.  Previous opinions that relied on the pre-1994 version of Rule 58 are not controlling when determining what must be included in a written order.
  • Previous opinions holding that a notice of appeal of an oral rendition of a judgment does not vest jurisdiction with the appellate court until a written judgment conforming with the oral rendition is entered pursuant to Rule 58 is an issue of appellate jurisdiction and does not limit what a court may include in its written order. For appellate purposes, if the written judgment does not conform with the oral rendition, the appellant must file a written notice of appeal of the written judgment even if an written notice of appeal was filed after the oral judgment was rendered.
Termination of Parental Rights
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