Matter of C.N.C.B.

• Decision Date: 16 June 2009
• Docket Number: No. COA08-1510.,COA08-1510.
• Citation: 678 S.E.2d 240
• Parties: In the Matter of C.N.C.B.
• Court: North Carolina Court of Appeals

678 S.E.2d 240

In the Matter of C.N.C.B.

No. COA08-1510.

Court of Appeals of North Carolina.

June 16, 2009.

Appeal by respondent from an order entered 15 October 2008, nunc pro tunc 9 October 2008, by Judge L. Suzanne Owsley in

Burke County District Court. Heard in the Court of Appeals 13 April 2009.

Stephen M. Schoeberle, Morganton, for petitioner-appellee Burke County Department of Social Services.

Ellis & Winters, LLP, by Alexander M. Pearce, Raleigh, for guardian ad litem.

Patricia Kay Gibbons, Raleigh, for respondent-appellant.

JACKSON, Judge.

Respondent-mother ("respondent") appeals from an order terminating her parental rights to C.N.C.B. For the reasons stated below, we reverse and remand.

On 5 September 2007, the Burke County Department of Social Services ("DSS") filed a petition alleging that C.N.C.B. was a neglected juvenile. DSS stated that respondent and the juvenile were residing with respondent's boyfriend, who was a registered sex offender and had a "long criminal history." DSS claimed that respondent and her boyfriend had "engaged in domestic violence in the juvenile's presence" and both of them "abuse[d] substances." DSS further alleged that respondent was "often impaired by prescription medications and unable to provide appropriate care and supervision for the juvenile. ..." As an example of its last allegation, DSS claimed that: (1) on 17 July 2007, respondent passed out and the juvenile had access to vicodin tablets; and (2) on 5 August 2007, respondent passed out and the juvenile failed to receive diaper changes. DSS assumed custody by non-secure custody order. On 4 October 2007, C.N.C.B. was adjudicated a dependent juvenile.

On 22 May 2008, DSS filed a "Motion/Petition to Terminate Parental Rights." The sole ground alleged by DSS for termination of respondent's parental rights was that respondent was incapable of providing for the proper care and supervision of the juvenile, such that C.N.C.B. was a dependent juvenile within the meaning of North Carolina General Statutes, section 7B-101(9), and there was a reasonable probability that such incapability would continue for the foreseeable future, pursuant to North Carolina General Statutes, section 7B-1111(a)(6).

A hearing was held on the petition to terminate respondent's parental rights on 9 October 2008. The trial court concluded that grounds existed pursuant to North Carolina General Statutes, section 7B-1111(a)(6) to terminate respondent's parental rights. The trial court further concluded that it was in the juvenile's best interest that respondent's parental rights be terminated. Therefore, her parental rights were terminated by order filed 15 October 2008, nunc pro tunc 9 October 2008. Respondent appeals.

After respondent filed her notice of appeal on 24 October 2008, but prior to the docketing of the appeal with this Court, the trial court filed a "Corrected Order" on 27 October 2008, purportedly correcting "clerical mistakes and errors arising from oversight or omission." Although respondent's assignments of error reference the original order respondent, DSS, and the guardian ad litem all cite to this corrected order as though it were the order from which the appeal was taken and make their arguments referencing the order accordingly.

We note that "[s]ubject matter jurisdiction may not be waived, and this Court has the power and the duty to determine issues of jurisdiction ex mero motu[.]" In re Will of Harts, ___ N.C.App. ___, ___, 664 S.E.2d 411, 413 (2008) (emphasis added) (citing Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. rev. denied, 352 N.C. 676, 545 S.E.2d 428 (2000)). "[Q]uestions of subject matter jurisdiction may properly be raised at any point, even in the Supreme Court." Forsyth Co. Bd. of Social Services v. Div. of Social Services, 317 N.C. 689, 692, 346 S.E.2d 414, 416 (1986) (citations omitted).

"[T]he general rule has been that a timely notice of appeal removes jurisdiction from the trial court and places it in the appellate court[.]" Parrish v. Cole, 38 N.C.App. 691, 693, 248 S.E.2d 878, 879 (1978) (citing American Floor Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963)). In the instant case, we hold that we must vacate the corrected order for the following reasons. We stress that no party has argued that the trial court lacked subject matter jurisdiction to enter the 27 October 2008 corrected order. Unlike in Mason v. Dwinnell, 190 N.C.App. 209, 660 S.E.2d 58 (2008), cited in the dissenting opinion, here, all parties have proceeded as though the corrected order was valid. We do not address the merits of respondent's appeal pursuant to the corrected order; we address it for the sole purpose of determining subject matter jurisdiction. We cannot turn a blind eye to a trial court's exercise of its powers when it does not have subject matter jurisdiction to do so.

Rule 60 of the North Carolina Rules of Civil Procedure provides a limited exception to a trial court's lack of jurisdiction once notice of appeal has been filed:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate division, and thereafter while the appeal is pending may be so corrected with leave of the appellate division.

N.C. Gen.Stat. § 1A-1, Rule 60(a) (2007). "While Rule 60 allows the trial court to correct clerical mistakes in its order, it does not grant the trial court the authority to make substantive modifications to an entered judgment." Food Service Specialists v. Atlas Restaurant Management, 111 N.C.App. 257, 259, 431 S.E.2d 878, 879 (1993) (citing Hinson v. Hinson, 78 N.C.App. 613, 615, 337 S.E.2d 663, 664 (1985), disc. rev. denied, 316 N.C. 377, 342 S.E.2d 895 (1986)). "A change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order." Buncombe County ex rel. Andres v. Newburn, 111 N.C.App. 822, 825, 433 S.E.2d 782, 784 (citing Schultz and Assoc. v. Ingram, 38 N.C.App. 422, 427, 248 S.E.2d 345, 349 (1978)), disc. rev. denied, 335 N.C. 236, 439 S.E.2d 143 (1993).

We have carefully compared the corrected order to the original order and the transcript of the rendering of judgment in open court. The comparison has revealed, inter alia, that the corrected order contains a finding of fact that was neither in the original order nor in the trial court's oral rendering of judgment. Cf. Mason, 190 N.C.App. at 215, 660 S.E.2d at 62 ("The court amended one finding of fact and one conclusion of law to add that it was making its findings `by clear, cogent and convincing evidence' ... [noting] that the court had articulated the proper standard `on the record on several occasions, but inadvertently omitted it from its Order.'"). That finding includes the phrase that respondent "continues to lack an appropriate alternative child care arrangement for the minor child," a finding that was essential to the trial court's final determination.

A trial court may terminate parental rights upon a finding

[t]hat the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.

N.C. Gen.Stat. § 7B-1111(a)(6) (2007) (emphasis added). When, as here, the trial court relies upon a single ground to terminate parental rights, the presence or absence of a required finding of fact must be substantive within the scope of that order. The presence or absence of the finding of fact that respondent lacked an appropriate alternative child care arrangement altered the effect of the order. The presence of the finding supports termination of parental rights, and in contrast, its absence would have precluded termination of parental rights. Therefore, the change was substantive and precluded by Rule 60(a).

This Court routinely has vacated orders that were improperly "corrected" pursuant to Rule 60(a). See Pratt v. Staton, 147 N.C.App. 771, 556 S.E.2d 621 (2001); S.C. Dep't of Soc. Servs. v. Hamlett, 142 N.C.App. 501, 543 S.E.2d 189 (2001); Buncombe County ex rel. Andres v. Newburn, 111 N.C.App. 822, 825, 433 S.E.2d 782, 784 (1993); Hinson v. Hinson, 78 N.C.App. 613, 615, 337 S.E.2d 663, 664 (1985), disc. rev. denied, 316 N.C. 377, 342 S.E.2d 895 (1986). Because the trial court was without jurisdiction pursuant to Rule 60(a) to add the omitted finding of fact, the corrected order must be vacated. Accordingly, we must look to the original order to reach our decision, as that was the order from which respondent, in fact, appealed.

The dissenting opinion states that respondent did not assign error to any of the trial court's findings of fact or conclusions of law; therefore, the trial court's conclusions of law are binding. However, in In re J.A.A. & S.A.A., 175 N.C.App. 66, 623 S.E.2d 45 (2005)—cited by the dissent—the respondent had challenged only one of three grounds for termination. By failing to challenge the other two, she indicated her assent to them. Id. at 74, 623 S.E.2d at 50. Here, there is only one ground for termination, stated in one conclusion of law. "An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made[.]" N.C. R.App. P. 10...