In re C.N.C.B.

197 N.C. App. 553
CourtCourt of Appeals of North Carolina
DecidedJune 16, 2009
DocketNo. COA08-1510
StatusPublished
Cited by6 cases

This text of 197 N.C. App. 553 (In re C.N.C.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re C.N.C.B., 197 N.C. App. 553 (N.C. Ct. App. 2009).

Opinions

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.

[555]*555On 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-llll(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-llll(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, 191 N.C. App. 807, 809, 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)). “[Questions 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 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 [556]*556argued 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 Semite 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, [557]*557cogent 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.’ ”).

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197 N.C. App. 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cncb-ncctapp-2009.