In re B.B., 24A21

Docket Nº24A21
Citation2022 NCSC 67
Case DateJune 17, 2022
CourtUnited States State Supreme Court of North Carolina

2022-NCSC-67

IN THE MATTER OF: B.B., S.B., S.B.

No. 24A21

Supreme Court of North Carolina

June 17, 2022


Appeal pursuant to N.C. G.S. § 7B-1001(a1)(1) (2019) from an order entered on 29 October 2020 and an order entered on 23 February 2022 after remand, both by Judge Wesley W. Barkley in District Court, Burke County. Heard originally in the Supreme Court on 5 October 2021 and calendared again for argument in the Supreme Court on 10 May 2022 but determined on the record and briefs without further oral argument pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.

Amanda C. Perez for petitioner-appellee Burke County Department of Social Services.

Olabisi A. Ofunniyin and Thomas N. Griffin III for appellee Guardian ad Litem.

W. Michael Spivey for respondent-appellant mother.

BARRINGER, JUSTICE.

¶ 1 Respondent appeals from an order terminating her parental rights to three of her minor children, B.B. (Bob), S.B. (Sally) and S.B. (Susan).[1] After careful review,

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we affirm the trial court's order.

I. Background

¶ 2 On 14 September 2018, the Burke County Department of Social Services (DSS) received a Child Protective Services (CPS) report stating that respondent was incarcerated, and Bob, Sally, and Susan were living in a car with their father. The report further alleged that the father was suspected of using methamphetamine. DSS confirmed that respondent was incarcerated and met with the father at the home of his sister. The father claimed that he and the children were staying at his sister's home. The father signed a Safety Assessment in which he agreed the children would remain in his sister's home, and he would submit to a substance abuse screening within twenty-four hours. However, when a social worker returned to the home on 19 September 2018, the father had left the home and taken the children with him without providing any contact information.

¶ 3 On 21 September 2018, DSS was notified that the father brought Bob to school. Bob was wearing the same dirty and torn clothing that he had worn the previous day and stated that he had not eaten since the day before. At the end of the school day, nobody arrived to pick up Bob from school. DSS then contacted respondent, who was still incarcerated, and attempted without success to locate an appropriate alternative caregiver for the children based on information from respondent. Meanwhile, the father's sister notified DSS that the father had left Sally and Susan in her care

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without providing his contact information or making a plan of care for the children. The father's sister also refused to continue caring for the children. At the time, Bob had eight unexcused absences from school and one tardy; Sally had a scar on her torso, which she stated was a cut with a knife from her father; and Susan had a diaper rash, fever, and two red bumps on her torso. Additionally, all the children had an odor about them. DSS was unable to locate the father.

¶ 4 The same day, DSS filed a petition alleging that the juveniles were neglected and dependent and obtained non-secure custody of Bob, Sally, and Susan. On 26 September 2018, DSS filed an amended petition.

¶ 5 Meanwhile, on 24 September 2018, respondent was released from custody, but she still had pending criminal charges in four counties including a probation violation. Respondent admitted to DSS the next day that she was unable to get the juveniles regular medical care and that for the last six months she had unstable housing. Respondent also refused to submit to a drug screen; she wanted to consult her attorney first. Respondent had previously tested positive for methamphetamines in 2017 and had a history of drug use. Susan tested positive at birth in 2017 for amphetamines, cannabinoids, and methamphetamine via meconium screening.

¶ 6 Before the hearing on the petition on 10 January 2019, respondent stipulated to the foregoing facts and stipulated that she was not employed and living with friends in a home that was not appropriate for children. Based upon stipulations

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made by respondent and the father, the trial court entered an order on 24 January 2019 adjudicating Bob, Sally, and Susan as neglected and dependent juveniles. The trial court continued custody of the juveniles with DSS. The trial court also ordered respondent to comply with an out-of-home family services agreement (case plan) and granted her supervised visitation.

¶ 7 The trial court held review hearings on 7 March 2019 and 16 May 2019. The trial court entered review orders from both hearings in which it found as fact that respondent was unemployed, did not have stable housing, had not maintained consistent contact with DSS, and had not engaged in any case plan services.

¶ 8 Following a permanency-planning-review hearing held on 15 August 2019, the trial court entered an order on 5 September 2019. The trial court found as fact that respondent had recently been arrested on drug related charges in Buncombe County. The trial court again found as fact that respondent was not engaged in case plan services and had failed to maintain consistent contact with DSS. The trial court adopted a primary permanent plan of adoption with a secondary plan of reunification.

¶ 9 On 22 October 2019, DSS moved to terminate respondent's parental rights to each of the three juveniles on the grounds of neglect, willful failure to make reasonable progress, willful failure to pay for the cost of care for the juveniles, and abandonment. N.C. G.S. § 7B-1111(a)(1)-(3), (7) (2021). Following a hearing held on 4 September 2020, the trial court entered an order on 29 October 2020 in which it

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determined grounds existed to terminate respondent's parental rights pursuant to each of the grounds alleged in the motion. The trial court further concluded it was in the juveniles' best interests that respondent's parental rights be terminated. Accordingly, the trial court terminated respondent's parental rights.[2] Respondent entered a notice of appeal on 2 November 2020. On 13 November 2020, the trial court entered an amended termination order.

¶ 10 On appeal, respondent presents four arguments. First, the trial court lacked jurisdiction to enter an amended termination order because notice of appeal had already been given, and the trial court made substantive, not clerical, changes. Second, the trial court abused its discretion by denying respondent's motion to continue. Third, the trial court erred by concluding that grounds existed to terminate respondent's parental rights. Fourth, respondent received ineffective assistance of counsel.

¶ 11 On 5 October 2021, this Court heard oral arguments concerning this appeal. Thereafter, this Court issued an order in the exercise of its discretion remanding the case "so the parties may supplement the record with evidence related to the trial court's statements on the record concerning respondent-mother's motion to continue on 4 September 2020" and "for the trial court to hear respondent-mother's claim of

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ineffective assistance of counsel." In re B.B., 379 N.C. 660, 660 (2021) (order remanding case).

¶ 12 On remand, the trial court made findings of facts and conclusions of law and denied respondent's Rule 60(b) motion alleging ineffective assistance of counsel. Then, consistent with this Court's order, the parties supplemented the record on appeal and filed supplemental briefs for this Court. Thus, this appeal is now ripe for our full consideration.

II. Analysis

A. Jurisdiction

¶ 13 We first consider respondent's argument that the trial court lacked jurisdiction to enter the amended termination order after respondent had noticed her appeal because the trial court made substantive, not clerical, changes to the order. We agree that the trial court lacked jurisdiction to enter the amended termination order.

¶ 14 Generally, upon perfection of an appeal, N.C. G.S. § 1-294 "stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein." N.C. G.S. § 1-294 (2021); see also Am. Floor Mach. Co. v. Dixon, 260 N.C. 732, 735 (1963) ("As a general rule, an appeal takes a case out of the jurisdiction of the trial court."). However, "[w]hen a specific statute addresses jurisdiction during an appeal . . . that statute controls over the general rule." In re M.I.W., 365 N.C. 374, 377 (2012). This Court recognized in In re M.I.W. that the

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legislature enacted a specific statute, N.C. G.S. § 7B-1003, regarding jurisdiction during an appeal for matters arising under the Juvenile Code that controls over N.C. G.S. § 1-294. Id. at 377-78. The legislature recognized that the "needs of the child may change while legal proceedings are pending on appeal," necessitating "a modified approach" to jurisdiction during an appeal in juvenile cases. Id. at 377.

¶ 15 As relevant to this appeal, N.C. G.S. § 7B-1003(b) provides as follows:

(b) Pending disposition of an appeal, unless directed otherwise by an appellate court or subsection (c) of this section applies, the trial court shall:
(1) Continue to exercise jurisdiction and conduct hearings under this Subchapter with the exception of Article 11 of the General Statutes; and
(2) Enter orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile.

N.C. G.S. § 7B-1003(b) (2021).

¶ 16 Article 11 of the Juvenile Code is entitled and addresses termination of parental rights. N.C. G.S. § 7B-1100 to -1114 (2021). Thus, absent direction from an appellate court to the contrary," N.C. G.S. § 7B-1003(b) does not divest the court of jurisdiction in termination proceedings during an appeal but does . . . prohibit the trial court from exercising jurisdiction in termination proceedings while disposition of an appeal is pending." In re J.M., 377 N.C. 298, 2021-NCSC-48, ¶ 17.

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