In re K.L.

• Decision Date: 07 April 2009
• Docket Number: No. COA08-1353.,COA08-1353.
• Citation: 674 S.E.2d 789
• Parties: In the Matter of K.L.
• Court: North Carolina Court of Appeals

674 S.E.2d 789

In the Matter of K.L.

No. COA08-1353.

Court of Appeals of North Carolina.

April 7, 2009.

On writ of certiorari to review the order entered 23 April 2008 by Judge Wayne L. Michael in Davidson County District Court. Heard in the Court of Appeals 11 March 2009.

Charles E. Frye, III, Lexington, for petitioner-appellee.

Robert W. Ewing, Clemmons, for respondent-appellant.

Laura B. Beck, Lexington, for guardian ad litem.

GEER, Judge.

Respondent mother appeals from an order of the trial court granting a motion by the Davidson County Department of Social Services ("DSS") to amend the summons in an abuse, neglect, and dependency proceeding. Respondent's parental rights have been terminated in a separate order ("TPR order") that is currently on appeal. In that appeal, respondent has argued that the TPR order should be vacated because the clerk of court failed to sign the summons in the abuse, neglect, and dependency proceeding. During the pendency of that appeal, DSS filed a motion in the trial court to amend the summons. Under N.C. Gen.Stat. § 7B-1003(c) (2007), however, when a party has appealed an order terminating parental rights that arose out of a petition to terminate parental rights, the trial court has no authority — even in the underlying abuse, neglect, and dependency action — to enter any orders other than ones affecting the custody and/or placement of the juvenile. As a result, we agree with respondent that the trial court had no jurisdiction to enter an order allowing DSS to amend the summons while the appeal of the TPR order was pending. We, therefore, vacate the trial court's order.

Facts

On 28 March 2006, DSS filed a petition alleging that K.L. ("Kim") was a neglected and dependent juvenile in file no. 06 J 71.¹ On 8 September 2006, the trial court entered orders in file no. 06 J 71 adjudicating Kim neglected and directing that she remain in DSS custody. On 12 April 2007, DSS filed a petition to terminate respondent's parental rights in file no. 06 JT 71. On 15 January 2008, the trial court entered an order terminating respondent's parental rights in file no. 06 JT 71.

On 31 January 2008, respondent gave notice of appeal from the TPR order. On 22 February 2008, respondent served on DSS a copy of the proposed record on appeal. In the proposed record on appeal, respondent included an assignment of error contending that the trial court did not acquire jurisdiction over the underlying juvenile case, file no. 06 J 71, in which Kim was adjudicated neglected because the summons was not signed, and therefore not issued, by the clerk of court.

On 4 March 2008, DSS filed a motion in the underlying juvenile case, file no. 06 J 71, to amend the summons under N.C.R. Civ. P. 4(i). Attached to DSS' motion was the affidavit of Deputy Clerk of Superior Court Kimla Kirkman explaining that she had filled in the summons to be served on respondent by assigning a file number and adding the name of the attorney assigned to represent respondent and the date and time set for the hearing. Ms. Kirkman stated that "due to an oversight, [she] inadvertently failed to sign" the summons. DSS asked "that the Court enter an order directing the Deputy Clerk to sign the Juvenile Summons and Notice of Hearing and to allow the amendment of such Juvenile Summons."

On 7 March 2008, respondent filed a motion to set aside the judgment in file no. 06 J 71 on the ground that the summons was not signed. On 23 April 2008, the trial court entered an order allowing DSS' motion to amend the summons. The trial court determined that respondent's motion to set aside the judgment had been rendered moot and, therefore, dismissed that motion.

Respondent gave notice of appeal from the 23 April 2008 order on 7 May 2008. On 18 September 2008, this Court dismissed the appeal, but, on 2 October 2008, allowed respondent's petition for writ of certiorari.

Discussion

We first note that only the 23 April 2008 order allowing the motion to amend the summons in file no. 06 J 71 is before this panel. On 19 August 2008, another panel of this Court vacated the trial court's TPR order for lack of subject matter jurisdiction on the ground that, "because no valid summonses issued, the trial court did not have jurisdiction over the underlying juvenile file, and it lacked jurisdiction to terminate respondent's parental rights." See In re K.J.L., ___ N.C.App. ___, ___, 665 S.E.2d 504, 505 (2008). On 22 September 2008, the guardian ad litem filed a petition for rehearing that was allowed on 30 September 2008. On 16 December 2008, the panel issued a new opinion replacing the 19 August 2008 opinion. See In re K.J.L., ___ N.C.App. ___, 670 S.E.2d 269 (2008). The Court again vacated the TPR order for lack of jurisdiction based on the defective summons in the underlying juvenile action. Id. at ___, 670 S.E.2d at 270. Judge Robert C. Hunter dissented. DSS and the guardian ad litem filed a notice of appeal to the Supreme Court based on that dissent on 9 January 2009.

Although respondent devotes a significant portion of her brief to the question whether the trial court lacked jurisdiction over the underlying juvenile file in 06 J 71 because of the defective summons, that issue was presented in the first appeal and is currently pending before the Supreme Court. We need not decide whether the lack of jurisdiction found in the first appeal precluded the trial court from entering the 23 April 2008 order amending the summons under N.C.R. Civ. P. 4(i) because we have concluded that the trial court lacked jurisdiction under N.C. Gen.Stat. § 7B-1003(c).

As a general rule, a perfected appeal "stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from." N.C. Gen. Stat. § 1-294 (2007). Our Supreme Court has observed that this general rule "is true unless a specific statute addresses the matter in question." In re R.T.W., 359 N.C. 539, 550, 614 S.E.2d 489, 496 (2005). In the context of abuse, neglect, and dependency proceedings and termination of parental rights proceedings (governed by Subchapter I of Chapter 7B of the General Statutes), our General Assembly has, in N.C. Gen.Stat. § 7B-1003, enacted a specific statute addressing the authority of trial courts pending appeals. R.T.W., 359 N.C. at 550, 614 S.E.2d at 496. See also In re Huber, 57 N.C.App. 453, 459, 291 S.E.2d 916, 920 ("Although N.C.G.S. 1-294 states the general rule regarding jurisdiction of the trial court pending appeal, it is not controlling here [in juvenile cases], where there is a specific statute addressing the matter in question."), appeal dismissed and disc. review denied, 306 N.C. 557, 294 S.E.2d 223 (1982).

The current version of N.C. Gen.Stat. § 7B-1003 provides:

(a) During an appeal of an order entered under this Subchapter, the trial court may enforce the order unless the trial court or an appellate court orders a stay.

(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.

(c) Pending disposition of an appeal of an order entered under Article 11 of this Chapter where the petition for termination of parental rights was not filed as a motion in a juvenile matter initiated under Article 4 of this Chapter, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile. Upon the affirmation of the order of adjudication or disposition of the court in a juvenile case by the Court of Appeals, or by the Supreme Court in the event of an appeal, the court shall have authority to modify or alter its original order of adjudication or disposition as the court finds to be in the best interests of the juvenile to reflect any adjustment made by the juvenile or change in circumstances during the period of time the case on appeal was pending, provided that if the modifying order be entered ex parte, the court shall give notice to interested parties to show cause, if there be any, within 10 days thereafter, as to why the modifying order should be vacated or altered.

The parties to this appeal disagree on the proper construction of this statute in determining whether the trial court had jurisdiction to enter its order allowing amendment of the summons.

Resolving this dispute requires us to determine the intent of the General Assembly as to the authority of trial courts to enter orders while appeals under Subchapter I of Chapter 7B of the General Statutes are pending. See Ridge Cmty. Investors, Inc. v. Berry, 293 N.C. 688, 695, 239 S.E.2d 566, 570 (1977) ("In interpreting statutes, the primary duty of this Court is to ascertain and effectuate the intent of the Legislature."). As our Supreme Court has recently observed, "[w]hen interpreting a statute, we ascertain the intent of the legislature, first by applying the statute's language and, if necessary, considering its legislative history and the circumstances of its enactment." Shaw v. U.S. Airways, Inc., 362 N.C. 457, 460, 665 S.E.2d 449, 451 (2008).

The circumstances surrounding the enactment of N.C. Gen.Stat. § 7B-1003 are important to an understanding of the General Assembly's intent. The statute was substantially amended in 2005. See 2005 N.C. Sess. Laws ch. 398, § 12. Prior to that amendment, appeals from TPR orders and dispositions pending those appeals were specifically addressed in N.C. Gen.Stat. § 7B-1113 (2003), which fell within Article 11 of Subchapter I, the article addressing the termination of...