In re M.I.W.

Decision Date27 January 2012
Docket NumberNo. 148PA11.,148PA11.
Citation722 S.E.2d 469
PartiesIn the Matter of M.I.W.
CourtNorth Carolina Supreme Court

OPINION TEXT STARTS HERE

On writ of certiorari pursuant to N.C.G.S. § 7A–32(b) of a unanimous, unpublished decision of the Court of Appeals, ––– N.C.App. ––––, 708 S.E.2d 216 (2011), affirming an order terminating parental rights entered on 11 June 2010 by Judge Resson O. Faircloth in District Court, Harnett County. Heard in the Supreme Court on 14 November 2011.

Duncan B. McCormick and E. Marshall Woodall, Lillington, for petitioner-appellee Harnett County Department of Social Services.

Robin E. Strickland, Raleigh, for respondent-appellant mother.

Ryan McKaig, Raleigh, for respondent-appellant father.Pamela Newell, Raleigh, Guardian ad Litem Appellate Counsel, on behalf of the minor child-appellee.NEWBY, Justice.

This case asks whether, under the Juvenile Code, a trial court has subject matter jurisdiction to terminate parental rights when the motion to terminate was filed while an appeal in the case was pending but the court acted on the motion only after the mandate resolving the appeal had been issued. We hold that N.C.G.S. § 7B–1003 prohibits only the exercise of jurisdiction before issuance of the mandate and that issuance of the mandate by the appellate court returns the power to exercise subject matter jurisdiction to the trial court. Because the trial court here did not exercise jurisdiction before the mandate's issuance, we affirm the decision of the Court of Appeals upholding the termination of respondents' parental rights.

Respondents are parents of a three-year-old juvenile, M.I.W., born on 16 February 2008. Respondent father was incarcerated on drug charges at the time of M.I.W.'s birth and has had very little involvement in M.I.W.'s life. Respondent father was previously incarcerated for indecent liberties with a minor and has been charged with numerous other crimes including statutory rape, contributing to the delinquency of a minor, violation of a domestic violence protective order, and assault on a female. Respondent mother has a history of drug abuse, including use of methamphetamines, and has serious mental health issues for which she has failed to follow her treatment plan. Her other three children were removed from her custody because of her drug abuse and unaddressed mental illness.

M.I.W. was initially removed from respondent mother's care in September 2008 when he was seven months old. Neighbors contacted police after seeing respondent mother drop M.I.W. several times, and they expressed concern that misuse of medication may have been responsible. M.I.W. was briefly placed with his paternal grandmother, and after she became unable to care for him, he was placed with his paternal uncle. On 15 December 2008, the Harnett County Department of Social Services (DSS) filed a juvenile petition alleging that M.I.W. was a neglected and dependent juvenile and sought an order for nonsecure custody, which the trial court promptly approved. After this filing M.I.W. remained with his uncle until 19 March 2009. On that day M.I.W. was taken to the hospital by social workers after employees at his day care center reported he arrived with bruises on his face, neck, forehead, back of the head, upper arms, and back. M.I.W. also had an open, infected wound on his ear. The physician's notes state that it looked like M.I.W.'s fingernails had been pulled out, and an examination revealed that M.I.W. was dehydrated and underweight and had two healing fractured ribs. Medical records indicate that these injuries were “diagnostic of child physical abuse” and were “not consistent with accidental injuries” but were “consistent with traumatic, abusive injures [sic].” After leaving the hospital, M.I.W. was placed in foster care, where he is currently thriving.

A disposition hearing was held on 27 March 2009, followed by permanency planning hearings on 24 April and 8 May 2009. On 8 May 2009, the trial court entered its disposition order awarding full custody of M.I.W. to petitioner DSS. The permanent plan for M.I.W. was determined to be adoption. On 10 and 11 June 2009, respondents filed separate appeals.

While respondents' appeals of the disposition order were pending, DSS filed a motion in the cause to terminate respondents' parental rights on 2 July 2009. Respondent mother moved to dismiss the motion to terminate on 29 September 2009, alleging a lack of subject matter jurisdiction, and respondent father moved for the same on 12 March 2010. During the pendency of the appeal, the trial court continued the hearing on the motion to terminate twice, noting the necessity of a continuance because of the constraints of N.C.G.S. § 7B–1003(b)(1).

The Court of Appeals affirmed the trial court's disposition order on 2 February 2010, thereby resolving the appeal, and the mandate issued on 22 February 2010. On 12 March 2010, the trial court denied respondents' motions to dismiss the termination motion, and the court held termination hearings on 12 March, 9 April, and 30 April 2010. On 11 June 2010, the trial court terminated respondents' parental rights to M.I.W.

Respondent mother appealed the termination on 1 July 2010, followed by respondent father on 12 July 2010. The Court of Appeals affirmed, holding that, although the termination motion was filed by DSS during the pendency of the appeal from the disposition order, the trial court had subject matter jurisdiction over the motion. In re M.I.W., ––– N.C.App. ––––, 708 S.E.2d 216, 2011 WL 340537, at *2 (2011) (unpublished). The court concluded: “A trial court does not violate N.C. Gen.Stat. § 7B–1003 when it holds the hearing on the [motion] to terminate parental rights after this Court's mandate has issued.” Id. Respondents sought review, and we allowed their petitions for writ of certiorari on the issue of subject matter jurisdiction. In re M.I.W., ––– N.C. ––––, 710 S.E.2d 5 (2011); id., ––– N.C. ––––, 711 S.E.2d 434 (2011).

The primary question presented is whether, under the Juvenile Code, the trial court had subject matter jurisdiction when it granted the motion to terminate respondents' parental rights. Respondents argue that N.C.G.S. § 7B–1003 removes the trial court's jurisdiction such that filing a termination of parental rights (TPR) motion while an appeal is pending is a nullity, as are subsequent actions pursuant to that motion. DSS argues that the statute prevents the trial court only from acting on a termination motion while an appeal is pending, not from acting on a motion that was filed during pendency of an appeal once the appeal has been resolved.

As a preliminary matter, it is crucial to understand the basis for the trial court's subject matter jurisdiction in TPR cases. “In matters arising under the Juvenile Code, the court's subject matter jurisdiction is established by statute.” In re K.J.L., 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009). When subject matter jurisdiction is a statutory creation, the General Assembly can, within the bounds of the Constitution, set whatever limits it wishes on the possession or exercise of that jurisdiction, including limits on jurisdiction during a pending appeal. See In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). The General Assembly has employed that authority here in enacting N.C.G.S. § 7B–1003.

Generally, N.C.G.S. § 1–294 operates to stay further proceedings in the trial court upon perfection of an appeal. N.C.G.S. § 1–294 (2011) (“When an appeal is perfected ... it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein ....”); see also Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950); Pruett v. Charlotte Power Co., 167 N.C. 598, 600, 83 S.E. 830, 830 (1914) ([A]n appeal ... operates as a stay of proceedings” and “the court below is without power to hear and determine questions involved in an appeal pending in the [appellate court].”). When a specific statute addresses jurisdiction during an appeal, however, that statute controls over the general rule. See In re R.T.W., 359 N.C. 539, 550, 614 S.E.2d 489, 496 (2005), superseded on other grounds by statute, Act of Aug. 23, 2005, ch. 398, sec. 12, 2005 N.C. Sess. Laws 1455, 1460–61 (amending various provisions of the Juvenile Code).

Given the unique nature of the Juvenile Code, with its overarching focus on the best interest of the child, it is not surprising that the General Assembly recognized that the needs of the child may change while legal proceedings are pending on appeal. See id. at 551, 614 S.E.2d at 496 (“Applied to appeals in child custody cases, however, N.C.G.S. § 1–294 would leave trial courts powerless to modify custodial arrangements in response to changed circumstances and the child's best interests. (emphasis added)); see also In re K.L., 196 N.C.App. 272, 278, 674 S.E.2d 789, 793 (2009). Because the General Assembly enacted N.C.G.S. § 7B–1003 in recognition of the need for a modified approach in juvenile cases, that statute controls over N.C.G.S. § 1–294, and any limits placed on the possession and exercise of jurisdiction by the trial court while an appeal is pending will come from N.C.G.S. § 7B–1003, rather than the general rule. Consequently, our holding is limited to matters arising under the Juvenile Code.

An earlier case from this Court held that “a trial court retains jurisdiction to enter an order terminating parental rights while a custody order in the same case is pending appellate review.” In re R.T.W., 359 N.C. at 540, 614 S.E.2d at 490. We concluded that a trial court could hold termination hearings and enter a termination order while an appeal was pending, thereby “render[ing] the pending appeal moot.” Id. at 553, 614 S.E.2d at 498. In reaching that conclusion we relied on our finding that the version of N.C.G.S. § 7B–1003 then governing jurisdiction during appeals “nowhere reference[d] orders terminating parental rights.” Id. at 550, 614...

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