In re E.D.H., 207A21

Docket Nº207A21
Citation2022 NCSC 70
Case DateJune 17, 2022
CourtUnited States State Supreme Court of North Carolina



No. 207A21

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 15 February 2021 by Chief District Court Judge David V. Byrd in District Court, Wilkes County. Heard in the Supreme Court on 24 May 2022 in session in the Old Burke County Courthouse in the City of Morganton pursuant to N.C. G.S. § 7A-10(a).

Erika Leigh Hamby for petitioner-appellee Wilkes County Department of Social Services.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Mitchell Armbruster, for appellee Guardian ad Litem.

Peter Wood for respondent-appellant mother.


¶ 1 Respondent appeals from an order terminating her parental rights to her minor child E.D.H. (Emily).[1] According to respondent, the trial court committed prejudicial error when Chief District Court Judge David V. Byrd signed the termination order after Judge Jeanie R. Houston, who had presided over the hearing,


retired. After careful review, we hold that that termination order was properly entered pursuant to Rules 52 and 63 of the North Carolina Rules of Civil Procedure. Accordingly, we affirm the trial court's order terminating respondent's parental rights.

I. Factual and Procedural Background

¶ 2 The Wilkes County Department of Social Services (DSS) first got involved with Emily's family in September of 2017 due to allegations of domestic violence that resulted in Emily's father being charged with and later convicted of child abuse.[2] In February of 2018, DSS investigated a report of domestic violence occurring between the two parents while Emily was present and discovered that Emily's lower back was bruised significantly. Neither parent could nor would identify the source of the bruising. As a result, DSS requested a safety placement for Emily and, after the parents were unable to provide one, obtained nonsecure custody of Emily. Emily was subsequently adjudicated an abused and neglected juvenile.

¶ 3 DSS developed a case plan to address the conditions that led to Emily's removal, particularly respondent's mental health and mental stability. Respondent's mental health diagnoses included schizoaffective disorder, substance abuse disorder cannabis, mood disorder, bipolar II disorder, and post-traumatic stress disorder.


Respondent initially participated in therapy, but her participation appeared to have ceased during the six months prior to the termination hearing. During the pendency of the case, respondent voluntarily committed herself on two separate occasions. Additionally, respondent's interactions with the social worker prior to the termination hearing did not display stable mental health.

¶ 4 Another objective of respondent's case plan was remedying her history of domestic violence. A domestic violence assessment scored respondent as high risk. Respondent did not complete a program to address this risk until two years after the assessment and over seven months after DSS filed the termination petition. Respondent also had a history of separating from and getting back together with Emily's father. At one point, respondent testified that she was separating from Emily's father and never going back due to his abuse of her, but then later that week, respondent reported she was back in a relationship with him. Respondent also blamed a failed drug screen on Emily's father, alleging that he had forcibly injected her with methamphetamine.

¶ 5 At the time of the termination hearing, respondent resided in an unapproved placement. Additionally, none of the potential alternative placements respondent provided DSS were willing or appropriate placements for Emily. Prior to this case, respondent's parental rights had been involuntarily terminated to three other children.


¶ 6 DSS petitioned to terminate respondent's parental rights in Emily based on dependency, N.C. G.S. § 7B-1111(a)(6), and on the basis of having had her parental rights to another child involuntarily terminated by a court of competent jurisdiction and respondent lacking the ability or willingness to establish a safe home, N.C. G.S. § 7B-1111(a)(9). A hearing on the petition to terminate respondent's parental rights in Emily was conducted on 25 August 2020 before Judge Houston. Respondent was present and represented by counsel.

¶ 7 After the presentation of evidence and arguments of counsel as to adjudication, Judge Houston found that grounds alleged for termination as to respondent existed and proceeded to the dispositional phase. Following the presentation of evidence and arguments of counsel as to disposition, Judge Houston took the matter under advisement and scheduled an in-chambers conference with the attorneys for the following Thursday, 27 August 2020.

¶ 8 Judge Houston retired from office on 31 December 2020. On 15 February 2021, an order was entered terminating respondent's parental rights in Emily based on an adjudication of grounds under N.C. G.S. § 7B-1111(a)(6) and (9) and a dispositional determination that it was in Emily's best interests to terminate respondent's parental rights. The order states: "Findings of fact, conclusions of law, and decretal announced in chambers on the 28th day of August 2020 by the Honorable Jeanie R. Houston


. . . [a]dministratively and ministerial[l]y signed by the Chief District Court Judge this the 15th day of Feb[ruary], 2021." Respondent appealed.

II. Analysis

¶ 9 On appeal, respondent does not contest the trial court's adjudication that grounds existed to terminate her parental rights pursuant to N.C. G.S. § 7B-1111(a)(6) and (9), nor does respondent challenge the trial court's determination that terminating her parental rights was in Emily's best interests. Instead, respondent's only argument is that the order was a nullity pursuant to Rules 52 and 63 of the North Carolina Rules of Civil Procedure because Chief Judge Byrd signed the order without presiding over the hearing.

A. Standard of Review

¶ 10 The North Carolina Rules of Civil Procedure are part of the General Statutes. See N.C. G.S. § 1A-1 (2021). Accordingly, interpreting the Rules of Civil Procedure is a matter of statutory interpretation. See Lemons v. Old Hickory Council, Boy Scouts of Am., Inc., 322 N.C. 271, 272, 276 (1988). "A question of statutory interpretation is ultimately a question of law for the courts." Brown v. Flowe, 349 N.C. 520, 523 (1998). We review conclusions of law de novo. In re C.B.C., 373 N.C. 16, 19 (2019).

¶ 11 In contrast, "[a] trial court's finding of fact that is supported by clear, cogent, and convincing evidence is deemed conclusive even if the record contains evidence that would support a contrary finding." In re B.O.A., 372 N.C. 372, 379 (2019).


Further, "[f]indings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal." In re T.N.H., 372 N.C. 403, 407 (2019).

B. Validity of the Order

¶ 12 The only issue before this Court is whether the termination order was properly entered pursuant to Rules 52 and 63 of the North Carolina Rules of Civil Procedure. Rule 52 provides that "[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment." N.C. G.S. § 1A-1, Rule 52(a)(1). Rule 63 provides that

[i]f by reason of . . . retirement . . . a judge before whom an action has been tried or a hearing has been held is unable to perform the duties to be performed by the court under these rules after a verdict is returned or a trial or hearing is otherwise concluded, then those duties, including entry of judgment, may be performed[ ]
. . . .
. . . [i]n actions in the district court, by the chief judge of the district . . . .

N.C. G.S. § 1A-1, Rule 63. However, "[i]f the substituted judge is satisfied that he or she cannot perform those duties because the judge did not preside at the trial or hearing or for any other reason, the judge may, in the judge's discretion, grant a new trial or hearing." N.C. G.S. § 1A-1, Rule 63.


¶ 13 One of "the duties to be performed by the court under these rules," N.C. G.S. § 1A-1, Rule 63, is finding the facts, stating the conclusions of law, and directing the entry of judgment pursuant to Rule 52. Thus, this Court has interpreted Rules 52 and 63 together to provide that a substitute judge cannot find facts or state conclusions of law in a matter over which he or she did not preside. See In re C.M.C., 373 N.C. 24, 28 (2019). Conversely, and respondent concedes, if Judge Houston made the findings of fact and conclusions of law that appear in the order before retiring and Chief Judge Byrd did nothing more than put his signature on the order and enter it ministerially, the order is valid.

¶ 14 Respondent argues that the order is a nullity because the record is silent on whether the order was properly entered in accordance with Rules 52 and 63. However, in making this argument, respondent fails to recognize that she bears the burden of proving the order was improperly entered, due to the presumption of regularity. As this Court has long recognized,

[i]t is, as a general rule presumed that a public official properly and regularly discharges his duties, or performs acts required by law, in accordance with the law and the authority conferred on him, and that he will not do any act contrary to his official duty or omit to do anything which such duty may require.

Huntley v. Potter, 255 N.C. 619, 628 (1961) (cleaned up). Thus, the burden is "on the party challenging the validity of public officials' actions to overcome this presumption


by competent and substantial evidence." Leete v. County of Warren, 341 N.C. 116, 119 (1995); see also Huntley, 255 N.C. at 628.

¶ 15...

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