In re: A.R.B.

• Court: Court of Appeals of North Carolina
• Decided: June 6, 2023
• Docket: 22-694
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-694

Filed 06 June 2023

Henderson County, No. 20 JT 172

IN THE MATTER OF: A.R.B.

Appeal by Respondent-Father from Order filed 6 June 2022 by Judge Emily

Cowan in Henderson County District Court. Heard in the Court of Appeals 26 April

2023.

Vitrano Law Offices, PLLC, by Sean P. Vitrano, for Respondent-Appellant Father.

Emily Sutton Dezio, for Petitioner-Appellee Mother.

STADING, Judge.

Respondent-Father (“Father”) appeals from the trial court’s Amended Order

terminating his parental rights to his child based on willful abandonment and

neglect. Father argues (1) that the trial court abused its discretion in granting a Rule

60(a) motion to amend the Original Order terminating his parental rights and (2) in

the alternative, that there is no clear, cogent, and convincing evidence to support the

trial court’s findings that Father willfully abandoned his child. For the reasons set

forth below, we vacate and remand the Order of the trial court with instructions

consistent with this Opinion. IN RE A.R.B.

Opinion of the Court

I. Background

“Adam,”1 born 23 April 2018, is the child of Petitioner-Mother, Miranda

Burlseon (“Mother”), and Father, Brandon Ezequiel Johnson. At the time of Adam’s

birth, Mother was seventeen years old, and Father was nineteen years old. The

parties were never married. Since his birth, Adam resided exclusively with Mother.

On 26 June 2018, Father initiated a custody action in Henderson County,

requesting custody of Adam and child support. Mother counterclaimed for the same.

In April 2019, the court awarded joint legal custody of Adam to both parties, with

Adam living primarily with Mother, and Father receiving supervised visitation that

would eventually progress to unsupervised visits. The court determined Father “had

issues with [m]arijuana use” and ordered him to complete “a 12-panel hair follicle

drug test by May 13, 2019 and to present the results of said test to [Mother]’s attorney

of record.”

In August 2018, when Adam was four months old, Mother began a relationship

with Kemper Henderson. Throughout Adam’s early years, Henderson was very

involved in Adam’s daily care. Mother and Henderson married on 10 October 2020

and moved to South Carolina with Adam.

In May 2019, Father attended three, two-hour-long, supervised visits with

Adam at Mother’s home. According to Mother, Father, and Henderson, the visits

1 Adam is a pseudonym to protect the identity of the minor child. See N.C. R. App. P. 42.

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went well, and all parties were cordial and friendly with one another. On May 17,

2019, Father delivered a box of diapers and wipes to Mother and visited with Adam.

After this visit, Father ceased communication with Mother and failed to attend other

scheduled visitations. On 3 June 2019, Mother filed a “Motion to Show Cause and a

Motion to Modify Custody based upon [Father]’s failure to contact the minor child,

nor to produce the court-ordered drug test results.” The matter was noticed for

hearing but was never heard and removed from the district court’s calendar on 14

May 2020.

On 21 June 2019, Father contacted Mother, stating he completed his follicle

drug test. Mother questioned his lack of contact and failure to attend visits. Father

stated Mother’s attorney contacted him and told him that he could not visit Adam

until he completed his drug test. Mother claims her attorney did not contact Father.

Father admits this was the last time he attempted to contact Mother and that he has

not seen Adam since May 2019.

On 7 December 2020, Mother petitioned for termination of Father’s parental

rights. After he was served, Father filed a pro-se answer on 5 February 2021 and an

additional answer through appointed counsel on 24 March 2021. The district court

appointed a Guardian ad Litem (“GAL”), but the court dismissed the first GAL for

failure to complete services, thereby delaying the hearing. The court appointed

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Christopher Reed to be Adam’s GAL. On 16 February 2022, with both parties

present, the district court held a hearing on the petition.2

The court heard testimony from Father and Mother, as well as Andrea Straton,

Adam’s maternal grandmother, and Cindy Frickel, Father’s family friend. The court

also considered the GAL report, filed on 16 February 2022. The report detailed the

GAL’s interactions with Mother, Father, and Adam, noting that while Father loves

Adam, Father “admits and recognizes that since he has not seen [Adam] since May

2019, he currently had no bond with his son, and his son would not recognize him as

his father.” The GAL’s report concluded that it was in Adam’s best interest that

Father’s parental rights be terminated to allow for Adam’s adoption by Henderson.

Ultimately, the court found that Father had abandoned and neglected Adam, and it

was in Adam’s best interest that Father’s parental rights be terminated. The court

entered the order terminating Father’s rights on 25 February 2022 and Father

entered a notice of appeal on 28 February 2022.

On 27 May 2022, Mother filed a Rule 60(a) motion, requesting “the court to

amend the February 25, 2022 Order terminating the parental rights to clearly state

the standard of review for which she made her findings of fact relating to the grounds

to terminate.” On 9 June 2022, the court held a hearing and determined that the

2 A record of this proceeding, and another held on 9 June 2022, was made with an electronic recording device that subsequently malfunctioned. The assigned transcriptionist was unable to prepare a verbatim transcript, so the parties stipulated to the inclusion of summaries of the proceedings in narrative form. See N.C. R. App. P. 9(c)(1).

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language of the Order could be “made clearer to ensure that the standard of review

used by the court applies not only to the best interests but also that there were

grounds to terminate [Father]’s parental rights.” Father’s counsel objected to the

change, but ultimately, the court entered an Amended Order terminating Father’s

parental rights. Father timely filed a notice of appeal from the Amended Order and

Order granting the Rule 60(a) motion.

II. Jurisdiction

This Court has jurisdiction over Father’s appeal from the Amended Order

terminating his parental rights pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) and 7B-

1001(a)(7) (2023).

III. Analysis

Father presents two issues on appeal: (1) whether the trial court abused its

discretion in granting the Rule 60(a) motion to make a substantive, rather than

clerical, change to the Termination of Parent Rights (“TPR”) Order; and (2) if this

Court finds the trial court did not abuse its discretion, whether there is clear, cogent,

and convincing evidence to support the trial court’s determination that grounds

existed to terminate Father’s parental rights. We first examine whether the court

properly granted the Rule 60(a) motion.

A. Comparison of the Orders

We pay due deference to the principle that parents have fundamental,

substantive rights under the United States Constitution that are embodied in North

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Carolina General Statutes and reinforced by precedential case law. In Santosky v.

Kramer, the United States Supreme Court held that “[b]efore a State may sever

completely and irrevocably the rights of parents in their natural child, due process

requires that the State support its allegations by at least clear and convincing

evidence.” 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982). The Juvenile Code

in North Carolina “provides for a two-step process for the termination of parental

rights—an adjudicatory stage and a dispositional stage.” In re K.N., 373 N.C. 274,

277-78, 837 S.E.2d 861, 864-865 (2020) (citing N.C. Gen. Stat. §§ 7B-1109, -1110

(2017)). During the first or adjudicatory stage, the petitioner bears the burden of

proving by “clear, cogent, and convincing evidence” the existence of one or more

grounds for termination pursuant to subsection 7B-1111(a) of the General Statutes

of North Carolina. N.C. Gen. Stat. § 7B-1109(e), (f) (emphasis added). Next, if a trial

court finds that a ground for termination exists, it proceeds to the second or

dispositional stage, at which it must “determine whether terminating the parent’s

rights is in the juvenile’s best interest.” N.C. Gen. Stat. § 7B-1110(a).

In the trial court’s Original Order, the only recitation of a standard of proof

was found in paragraph 26, in reference to the dispositional stage, which read: “[t]hat

there is clear and convincing evidence that it is in the best interests of the minor child

that the Father’s parental rights be terminated.” In considering Mother’s 60(a)

motion, the trial court recognized the deficiency in granting the Order and ultimately

determined “it is best practice to grant this Motion and be clear upon the standard

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used at the hearing to terminate Respondent’s parental rights.” The amended portion

reads as follows:

THAT FURTHER, that Petitioner[-Mother] has produced the following clear, convincing and cogent evidence to support termination of the parental rights and that it is in the child’s best interest to do so;

....

24. Based on the foregoing, the Petitioner[-Mother] has established grounds for termination of the parental rights of the Respondent[-Father] by clear, cogent, and convincing evidence. That Respondent[-Father], as a natural parent of the juvenile, has willfully abandoned the juvenile for at least six (6) consecutive months immediately preceding the filing of this Petition for Termination of Parental Rights, pursuant to the provisions of N.C. Gen. Stat. § 7B- 1111(a)(7).

25. Based upon the foregoing, the Petitioner[-Mother] has established grounds for termination of the parental rights of the Respondent[-Father] by clear, cogent, and convincing evidence. That Respondent[-Father], as a natural parent of the juvenile, has neglected, pursuant to the provisions of N.C. Gen. Stat. § 7B-1111(a)(1) by:

a. Abandoning the juvenile,

b. Failing to provide the proper care, supervision or discipline for the juvenile, and

c. Showing a lack of parental concern for the juvenile.

26. Based upon the totality of the evidence and by the clear, cogent and convincing standard of law, termination of the Respondent[-Father]’s parental rights is in the best interest and welfare of the juvenile.

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A comparison of the two Orders reveals, inter alia, that the modifications were an

intentional addition to include the constitutionally permissible standard of proof.

B. Substantive Versus Clerical Changes

This Court reviews a trial court’s decision to amend an order after a Rule 60(a)

motion for abuse of discretion. In re Estate of Meetze, 272 N.C. App. 475, 479, 847

S.E.2d 220, 224 (2020). Rule 60(a) of North Carolina’s Rules of Civil Procedure states:

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 order. 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.G.S. § 1A-1, Rule 60(a) (2022). “Clerical mistakes” are those that do not alter the

court’s reasoning or determination in ruling on an order. In re J.K.P., 238 N.C. App.

334, 343, 767 S.E.2d 119, 124 (2014). “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.” In re C.N.C.B., 197 N.C. App.

553, 556, 678 S.E.2d 240, 242 (2009) (citations omitted). Thus, a trial court abuses

its discretion if the correction “alters the effect of the original order.” In re Meetze,

272 N.C. App. at 479, 847 S.E.2d at 224. We are now tasked with determining

whether the trial court’s initial omission and subsequent addition of the correct

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standard was a clerical mistake or a substantive modification constituting an abuse

of discretion.

The existing body of case law contemplating whether a trial court is divested

of jurisdiction pursuant to Rule 60(a) does not speak directly to the primary issue in

this case. Available precedent considering whether a trial court exceeded the bounds

of a clerical mistake and trod onto the territory of a substantive modification has

considered alterations in findings of fact that change the result of an order. See, e.g.,

In re B.B., 381 N.C. 343, 873 S.E.2d 589 (2022). Father cites several cases in support

of his argument in which granting a Rule 60(a) motion to amend an order was found

to be a substantive alteration. In re B.L.H., 376 N.C. 118, 852 S.E.2d 91 (2020); In re

M.R.F., 378 N.C. 638, 862 S.E.2d 758 (2021); Hinson v. Hinson, 78 N.C. App. 613, 337

S.E.2d 663 (1985); In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240 (2009); In re

J.C., 380 N.C. 738, 869 S.E.2d 682 (2022). However, in these cases, our State

Supreme Court addressed whether excluding the standard of proof from the written

order is reversible error—distinguished from our present case which considers

whether the addition of the standard of proof is a substantive modification under a

Rule 60(a) amendment.

In one such case, the Court held that “a trial court does not reversibly err by

failing to explicitly state the statutorily-mandated standard of proof in the written

termination order if . . . the trial court explicitly states the proper standard of proof

in open court at the termination hearing.” In re B.L.H. 376 N.C. at 120–21, 852

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S.E.2d at 95 (2020). In another matter, the Court considered a scenario in which the

trial court did not make an announcement either in its written order or in open court

about the standard of proof that it applied to make findings of fact. In re M.R.F., 378

N.C. at 643, 862 S.E.2d at 762 (2021). The Court held “[i]n light of not only the failure

of the trial court to announce the standard of proof which it was applying to its

findings of fact but also due to petitioner’s failure to present sufficient evidence to

support any of the alleged grounds for the termination of the parental rights of

respondent-father, we are compelled to simply, without remand, reverse the trial

court’s order.” Id. at 642–643, 862 S.E.2d 758, 762–763 (emphasis original). More

recently, the Court determined that employing the wrong standard of proof requires

a reviewing court to set aside a termination of parental rights order. In re J.C., 380

N.C. at 744, 689 S.E.2d at 687 (2022). Though these cases address the insufficiency

of orders and are not a factual analysis of a modification under Rule 60(a), they speak

directly to the importance of the trial court memorializing its employment of the

correct standard of proof during the proceedings in this context.

While case law highlights the significance of substantiating the use of the

correct standard of proof, well-founded principles of statutory construction provide

additional guidance. “The principal goal of statutory construction is to accomplish

the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517

(2001) (internal citation omitted). “It is well settled that where the language of a

statute is clear and unambiguous, there is no room for judicial construction and the

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courts must construe the statute using its plain meaning.” In re Estate of Lunsford,

359 N.C. 382, 391–92, 610 S.E.2d 366, 372 (2005) (internal citation omitted). “If the

statutory language is clear and unambiguous, the court eschews statutory

construction in favor of giving the words their plain and definite meaning.” State v.

Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (citation omitted). Black’s Law

Dictionary defines a “clerical error” as “an error resulting from a minor mistake or

inadvertence. . . .” Clerical error, Black’s Law Dictionary (7th ed. 2002). Such an

error as the omission of the proper standard of proof can hardly fall within the realm

of a clerical error or mistake.

In the matter presently before our Court, due to a malfunction of the electronic

recording device, we are without an original transcript from the proceedings and left

only with a “narrative of the proceedings,” the Original Order, and the Amended

Order. Thus, it is impossible for this Court to determine whether the trial court

announced the correct standard of proof in open court. The timeline and sequence of

events in this matter is also noteworthy. The adjudicatory hearing on termination

was held on 16 February 2022 and the Order of Termination was entered on 25

February 2022. On 28 February 2022, Father filed his notice of appeal. It was not

until 27 May 2022 that Mother filed a Rule 60(a) motion that highlighted the

deficiencies in the Original Order. Then, on 9 June 2022, the trial court granted

Mother’s motion pursuant to Rule 60(a) and entered the Amended Order.

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In the Original Order, a single reference of an imprecise, albeit acceptable

articulation of the standard of proof is present in the findings of fact, which states

there is “clear and convincing evidence that it is in the best interests of the minor

child that the Father’s parental rights be terminated.” See In re Montgomery, 311

N.C. 101, 109, 316 S.E.2d 246, 252 (1984) (“It is well established that ‘clear and

convincing’ and ‘clear, cogent, and convincing’ describe the same evidentiary

standard”). Still, a comparison of the Original and Amended Orders shows that the

Original Order is deficient in that “[t]he burden in such proceedings shall be upon the

petitioner or movant and all findings of fact shall be based on clear, cogent, and

convincing evidence.” N.C. Gen. Stat. § 7B-1109 (emphasis added). Here, in contrast

to the Amended Order, the Original Order fails to assert the proper standard of proof

for any findings beyond the “best interests of the minor child.” Moreover, an

application of available Rule 60(a) case law invites us to determine whether the

additional language “alters the effect of the original order.” Buncombe Cnty ex rel.

Andres v. Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993). The Original

Order has no legal effect, while the Amended Order is legally sufficient to terminate

parental rights. Absent proper employment of the appropriate standard of proof by

the trial court in either the written Order or the record of the proceedings, any

subsequent addition including this standard of proof was substantive and an abuse

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In addition to challenging the propriety of the Rule 60(a) motion, Father

challenges the trial court’s factual findings, as well as its conclusion that his

abandonment of Adam was willful. We do not reach the merits of these particular

arguments because we conclude the trial court’s Order is invalid.

IV. Conclusion

It is not lost on this Court that the differences between the two Orders are

technical. Nonetheless, considering timeless legal principles and the fundamental

rights at stake, we find the modifications were substantive rather than clerical in

nature and divested the trial court of jurisdiction to make such changes pursuant to

Rule 60(a). Accordingly, it was an abuse of discretion to grant Mother’s Rule 60(a)

motion to amend the Original Order terminating Father’s rights. Therefore, we

vacate the trial court’s Amended Order terminating Father’s parental rights and

remand to apply the proper standard of proof. On remand, the trial court may

consider additional evidence or hear further arguments if necessary.

VACATED AND REMANDED.

Judges HAMPSON and CARPENTER concur.

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