{ "id": 8916072, "name": "IN THE MATTER OF: N. B., minor child", "name_abbreviation": "In re N. B.", "decision_date": "2004-03-02", "docket_number": "No. COA03-688", "first_page": "182", "last_page": "186", "citations": [ { "type": "official", "cite": "163 N.C. App. 182" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "448 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "337 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549352, 2550922, 2550897, 2550744, 2552156 ], "year": 1994, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0691-03", "/nc/337/0691-05", "/nc/337/0691-04", "/nc/337/0691-02", "/nc/337/0691-01" ] }, { "cite": "443 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "131", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527946 ], "year": 1994, "pin_cites": [ { "page": "697", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0693-01" ] }, { "cite": "474 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "344 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867707 ], "year": 1996, "pin_cites": [ { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0394-01" ] }, { "cite": "583 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956875 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0461-01" ] }, { "cite": "399 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "339", "parenthetical": "\"We first note that no written notice of appeal, which would divest jurisdiction from the trial court, had been filed with the clerk....\"" } ], "opinion_index": 1 }, { "cite": "101 N.C. App. 415", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527834 ], "year": 1991, "pin_cites": [ { "page": "417", "parenthetical": "\"We first note that no written notice of appeal, which would divest jurisdiction from the trial court, had been filed with the clerk....\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/101/0415-01" ] }, { "cite": "579 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "\"[0]nce a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio.\"" } ], "opinion_index": 1 }, { "cite": "357 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491616, 491810, 491436, 491885, 491438, 491569, 491772, 491391 ], "year": 2003, "pin_cites": [ { "parenthetical": "\"[0]nce a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0166-06", "/nc/357/0166-05", "/nc/357/0166-02", "/nc/357/0166-01", "/nc/357/0166-04", "/nc/357/0166-08", "/nc/357/0166-07", "/nc/357/0166-03" ] }, { "cite": "570 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "513" } ], "opinion_index": 1 }, { "cite": "153 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249896 ], "year": 2002, "pin_cites": [ { "page": "346-47" } ], "opinion_index": 1, "case_paths": [ "/nc-app/153/0342-01" ] }, { "cite": "590 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "868", "parenthetical": "\"DSS may file a [termination of parental rights] petition only if a court has given DSS custody of the juvenile.\"" } ], "opinion_index": 1 }, { "cite": "162 N.C. App. 355", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917259 ], "year": 2004, "pin_cites": [ { "page": "358", "parenthetical": "\"DSS may file a [termination of parental rights] petition only if a court has given DSS custody of the juvenile.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/162/0355-01" ] }, { "cite": "426 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "termination of parental rights order vacated for lack of subject matter jurisdiction where petition not verified" }, { "page": "445" } ], "opinion_index": 1 }, { "cite": "109 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525216 ], "year": 1993, "pin_cites": [ { "parenthetical": "termination of parental rights order vacated for lack of subject matter jurisdiction where petition not verified" } ], "opinion_index": 1, "case_paths": [ "/nc-app/109/0285-01" ] }, { "cite": "576 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "389", "parenthetical": "\"trial court erred in [entering order for non-secure custody] . . . where no petition had been filed and the trial court did not have jurisdiction over the child\"" } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190833 ], "year": 2003, "pin_cites": [ { "page": "401", "parenthetical": "\"trial court erred in [entering order for non-secure custody] . . . where no petition had been filed and the trial court did not have jurisdiction over the child\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0398-01" ] }, { "cite": "581 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "797" }, { "page": "796", "parenthetical": "emphasis supplied" } ], "opinion_index": 1 }, { "cite": "158 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188012 ], "year": 2003, "pin_cites": [ { "page": "448" } ], "opinion_index": 1, "case_paths": [ "/nc-app/158/0441-01" ] }, { "cite": "583 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "159 N.C. App. 461", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956875 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc-app/159/0461-01" ] } ], "analysis": { "cardinality": 509, "char_count": 9367, "ocr_confidence": 0.76, "pagerank": { "raw": 4.6692620258451054e-07, "percentile": 0.9278316998404154 }, "sha256": "9712567aa831de48449713571b5765226bcfc69a4cd638278ef5ec6a357f314b", "simhash": "1:a918c44a6f250472", "word_count": 1499 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEELMAN concurs.", "Judge TYSON dissents." ], "parties": [ "IN THE MATTER OF: N. B., minor child" ], "opinions": [ { "text": "HUDSON, Judge.\nRespondent parents appeal an adjudication order finding abuse, neglect and dependency and a disposition order denying any reunification services and visits, arguing that the court considered inadmissible hearsay, prejudicially delayed entry of the order, and violated respondent parents\u2019 due process rights with a deficient transcript of proceedings. For the reasons discussed below, we dismiss respondent parents\u2019 appeal as moot.\nAfter respondents appealed the 17 October 2002 adjudication order to this Court, the trial court on 20 October 2003 entered a judgment terminating the parental rights of both respondents. In the order terminating respondents\u2019 parental rights, the trial judge specifically noted that, while she relied on some of the evidence presented at the adjudication hearing, she did not rely on the previous adjudication of abuse and neglect itself. Instead, she found two additional grounds to support termination: 1) leaving N.B. in foster care for twelve months without making reasonable progress to correct the conditions that led to her removal, and 2) failing to pay a reasonable portion of the cost of N.B.\u2019s care, although physically and financially able to do so. N.C. Gen. Stat. \u00a7 7B-llll(a)(2) and (a)(3) (2001).\nThis Court has recently addressed the very situation presented here, and held that a pending appeal of an adjudication of abuse and neglect is made moot by a subsequent termination of parental rights based on independent grounds. In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003). \u201cA case is \u2018moot\u2019 when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u201d Roberts v. Madison County Realtors Ass\u2019n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). Because courts will not determine abstract propositions of law, a case should be dismissed \u201c[w]henever during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue.\u201d Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131, disc. review denied 337 N.C. 691, 448 S.E.2d 520 (1994) (internal quotation marks omitted). Where an appellant has \u201creceived a new, independent adjudication of the neglect issue and any resolution of the issues raised on this appeal will have no practical effect on the existing controversy,\u201d the appeal should be dismissed. Stratton, 159 N.C. App. at 464, 583 S.E.2d at 325.\nWhile we acknowledge that the issues raised here could regain life were the subsequent termination of parental rights to be reversed, we are unable to distinguish this case from Stratton, and are bound to follow that decision. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court\u201d). In both cases, an adjudication of neglect was followed by the termination of parental rights, based on independent grounds following a hearing by an independent judge. Thus, because the issues regarding the 17 October 2002 order have been rendered moot by the subsequent 20 October 2003 order, according to Stratton, we dismiss respondent parents\u2019 appeal.\nDismissed.\nJudge STEELMAN concurs.\nJudge TYSON dissents.", "type": "majority", "author": "HUDSON, Judge." }, { "text": "TYSON, Judge\ndissenting.\nI. Mootness\nI respectfully dissent from the majority\u2019s decision to dismiss this appeal as moot. The trial court did not have jurisdiction over DSS\u2019s petition to terminate respondents\u2019 parental rights (\u201cTPR petition\u201d) while the adjudication and disposition order that purportedly gave DSS legal custody over the minor child is properly pending on appeal to this Court. The entry of the TPR judgment does not render this appeal moot.\nThe two petitions must be considered separately in the case at bar. The first petition (\u201cunderlying petition\u201d), from which respondents appeal, is the original petition filed by DSS alleging abuse and neglect of the minor child. The trial court entered judgment on this petition and granted DSS custody of the minor child. Following entry of that judgment and after respondents\u2019 appeal was properly taken, DSS filed and obtained judgment on the TPR petition.\nII. Jurisdiction\nThe majority\u2019s opinion dismisses this appeal as moot based on the judgment entered on DSS\u2019s TPR petition. In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (2003). The case here is distinguishable. Stratton did not address the issue of the trial court\u2019s jurisdiction to enter judgment on a TPR petition.\nThis Court may consider, ex mero motu, whether subject matter jurisdiction exists. In re McKinney, 158 N.C. App. 441, 448, 581 S.E.2d 793, 797 (2003).\nUnder N.C.G.S. \u00a7 7B-200(a)(4) (2001), the district court has \u201cexclusive, original jurisdiction over . . . [proceedings to terminate parental rights.\u201d The district court has \u201cexclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights[.]\u201d N.C.G.S. \u00a7 7B-1101 (2001) [emphasis omitted]. However, in the absence of a proper petition, the trial court has no jurisdiction to enter an order for termination of parental rights. See In re Ivey, 156 N.C. App. 398, 401, 576 S.E.2d 386, 389 (2003) (\u201ctrial court erred in [entering order for non-secure custody] . . . where no petition had been filed and the trial court did not have jurisdiction over the child\u201d); In re Triscari Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993) (termination of parental rights order vacated for lack of subject matter jurisdiction where petition not verified).\nId. at 445, 581 S.E.2d at 796 (emphasis supplied).\nIII. Who Mav File to Terminate\nN.C. Gen. Stat. \u00a7 7B-1103 sets forth who may properly file a petition to terminate parental rights. The filing of the petition invokes the district court\u2019s subject matter jurisdiction. DSS may file a TPR petition only if DSS \u201chas been given custody by a court of competent jurisdiction,\u201d or \u201cthe juvenile has been surrendered for adoption by one of the parents or by the guardian of the person of the juvenile, pursuant to G.S. 48-3-701.\u201d N.C. Gen. Stat. \u00a7 7B-1103(a)(3)-(4) (2003); see In re Miller, 162 N.C. App. 355, 358, 590 S.E.2d 864, 868 (2004) (\u201cDSS may file a [termination of parental rights] petition only if a court has given DSS custody of the juvenile.\u201d).\nHere, the trial court\u2019s TPR judgment purports to establish jurisdiction because the \u201cchild is in the legal custody of Buncombe County DSS.\u201d The underlying judgment on appeal is the sole basis for DSS having custody of the child. Respondents have assigned error to this underlying judgment placing the issues of DSS\u2019s legal custody and Respondents\u2019 parental conduct before this Court. Respondents\u2019 appeal of the underlying judgment divested DSS\u2019s authority to file the TPR petition and the trial court\u2019s power to terminate respondents\u2019 parental rights. See RPR & Assocs. v. University of N.C.-Chapel Hill, 153 N.C. App. 342, 346-47, 570 S.E.2d 510, 513 (2002), disc. rev. denied, 357 N.C. 166, 579 S.E.2d 882 (2003) (\u201c[0]nce a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio.\u201d); see also Pate v. Eastern Insulation Service of New Bern, 101 N.C. App. 415, 417, 399 S.E.2d 338, 339 (1991) (\u201cWe first note that no written notice of appeal, which would divest jurisdiction from the trial court, had been filed with the clerk....\u201d) The minor child\u2019s placement in the \u201clegal custody of Buncombe County DSS\u201d is at issue and properly before this Court.\nIV. Conclusion\nRespondents\u2019 assignments of error raise issues that challenge whether DSS properly had \u201clegal custody\u201d under N.C. Gen. Stat. \u00a7 7B-1103, a prerequisite to filing the TPR petition. DSS\u2019s \u201clegal custody\u201d of the minor child, which purportedly allowed DSS to seek termination, is challenged. Without a final determination of whether DSS properly received \u201clegal custody\u201d of the minor child, the trial court did not have jurisdiction to terminate respondents\u2019 parental rights.\nThe judgment terminating respondents\u2019 parental rights does not render appeal of the underlying judgment moot. I vote to reach the merits of this appeal. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Renae S. Alt, for Buncombe County Department of Social Services, petitioner-appellee.", "Judy N. Randolph, for Pam Gretz, Guardian ad Litem.", "M. Victoria Jayne, for respondent-appellant mother.", "Hall & Hall Attorneys at Law, P.C., by Susan P. Hall and Douglas L. Hall, for respondent-appellant father." ], "corrections": "", "head_matter": "IN THE MATTER OF: N. B., minor child\nNo. COA03-688\n(Filed 2 March 2004)\nAppeal and Error\u2014 mootness \u2014 adjudication of neglect \u2014 subsequent termination of parental rights\nAn appeal from an adjudication of abuse, neglect and dependency was moot where there was a subsequent termination of parental rights in which the judge noted that she had relied on some of the evidence from the adjudication hearing but not on the adjudication, and had found independent grounds supporting the termination.\nJudge Tyson dissenting.\nAppeal by respondent parents from judgment entered 17 October 2002 by Judge Marvin Pope in the District Court in Buncombe County. Heard in the Court of Appeals 15 January 2004.\nRenae S. Alt, for Buncombe County Department of Social Services, petitioner-appellee.\nJudy N. Randolph, for Pam Gretz, Guardian ad Litem.\nM. Victoria Jayne, for respondent-appellant mother.\nHall & Hall Attorneys at Law, P.C., by Susan P. Hall and Douglas L. Hall, for respondent-appellant father." }, "file_name": "0182-01", "first_page_order": 212, "last_page_order": 216 }