{ "id": 8998998, "name": "IN THE MATTER OF: J.N.S., A Minor Child", "name_abbreviation": "In re J.N.S.", "decision_date": "2004-07-20", "docket_number": "No. COA03-1097", "first_page": "536", "last_page": "539", "citations": [ { "type": "official", "cite": "165 N.C. App. 536" } ], "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": "576 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190412 ], "year": 2003, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0281-01" ] }, { "cite": "291 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "186", "parenthetical": "affirming trial court's ruling, \"that all previous orders in the case were binding... as to what those orders found to exist when they were entered\"" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521956 ], "year": 1982, "pin_cites": [ { "page": "69", "parenthetical": "affirming trial court's ruling, \"that all previous orders in the case were binding... as to what those orders found to exist when they were entered\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0063-01" ] }, { "cite": "360 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "461", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358098 ], "year": 1987, "pin_cites": [ { "page": "194-95", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0189-01" ] }, { "cite": "457 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790214 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0356-01" ] }, { "cite": "445 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "606", "parenthetical": "\"it is not the function of the trial court to make findings of fact and conclusions of law on a motion for summary judgment\"" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 528", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135278 ], "year": 1994, "pin_cites": [ { "page": "531", "parenthetical": "\"it is not the function of the trial court to make findings of fact and conclusions of law on a motion for summary judgment\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0528-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334", "parenthetical": "an appeal is interlocutory \"if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy\"" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "733", "parenthetical": "an appeal is interlocutory \"if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] } ], "analysis": { "cardinality": 420, "char_count": 6976, "ocr_confidence": 0.728, "pagerank": { "raw": 1.320269096523361e-07, "percentile": 0.6264008056068133 }, "sha256": "900144d4a795671cb8a6def90ad48e9bdd40f5f75f7e96f2738daa10791d2b5a", "simhash": "1:3be3d603465bf8e4", "word_count": 1137 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "IN THE MATTER OF: J.N.S., A Minor Child" ], "opinions": [ { "text": "BRYANT, Judge.\nC.T.J.B. (respondent) appeals an order filed 4 June 2003 denying her motion for partial summary judgment. On 26 November 2002, the Catawba County Department of Social Services (petitioner) filed a petition to terminate respondent\u2019s parental rights over her minor son (the child). The petition alleged respondent had: (1) neglected the child and (2) willfully left him in foster care for more than twelve months without showing to the satisfaction of the trial court that reasonable progress under the circumstances had been made in correcting the conditions that led to the child\u2019s removal. The petition further stated that \u201ca [c]ourt [o]rder [had previously been] entered on or about the 5th day of April 2000, upon which the minor child was found to be [a] dependent child.\u201d The 5 April 2000 order, which indicated that respondent had consented to an adjudication of the child as dependent, was attached to the petition.\nOn 12 March 2003, respondent filed a motion for partial summary judgment, contending:\n1. That a consent order for Consolidated Order of Adjudication and Disposition was entered on April 5, 2000.\n2. That the order was a \u201csettlement and consent\u201d which was \u201cbased upon the verified [p]etition\u201d filed in the action.\n3. That the [pjetition contained certain allegations of neglect that also serve as a portion of the petition filed to terminate parental rights which is pending.\n4. That the prior adjudication resolved the issues raised in the prior petition and [petitioner is bound by res judicata or collateral estoppel on these issues which were necessarily resolved in the April 5, 2000[] Consolidation Order of Adjudication and Disposition.\nIn its 4 June 2003 order, the trial court denied respondent\u2019s motion for partial summary judgment on the basis that \u201cthe cases are sufficiently different so that collateral estoppel and res judicata do not apply.\u201d\nThe dispositive issue is whether summary judgment is proper in a termination of parental rights proceeding.\nWe first note that respondent\u2019s appeal from the denial of a motion for partial summary judgment is interlocutory. See N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995) (an appeal is interlocutory \u201cif it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy\u201d). Assuming no substantial right was implicated, we nevertheless grant certiorari in order to address the merits of respondent\u2019s appeal. N.C.R. App. P. 21(a)(1).\nIn her brief to this Court, respondent contends the trial court erred in denying her motion because the doctrines of collateral estoppel and res judicata operate to bar relitigation of the issue of neglect. We disagree. Apart from the fact that the 5 April 2000 consent order served only as an adjudication on the issue of dependency, not neglect, and with respect to dependency was only binding as to the time frame of that order, respondent\u2019s motion for summary judgment incorporates a greater fundamental error that demands this Court\u2019s attention.\nChapter 7B of the North Carolina General Statutes contains absolutely no provision allowing for the use of a summary judgment motion in a juvenile proceeding. In fact, the provisions of Chapter 7B implicitly prohibit such use by imposing on the trial court the duty to hear the evidence and make findings of fact on the allegations contained in the juvenile petition. N.C.G.S. \u00a7 7B-1109(e) (2003) (\u201c[t]he court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent\u201d). This duty is incompatible with the law on summary judgment, which rests on the non-existence of genuine issues of fact prior to a hearing on the merits. See N.C.G.S. \u00a7 1A-1, Rule 56(c) (2003) (a motion for summary judgment will be granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law\u201d); McArdle Corp. v. Patterson, 115 N.C. App. 528, 531, 445 S.E.2d 604, 606 (1994) (\u201cit is not the function of the trial court to make findings of fact and conclusions of law on a motion for summary judgment\u201d), aff\u2019d, 340 N.C. 356, 457 S.E.2d 596 (1995). Summary judgment on the existence of grounds for termination of parental rights listed in N.C. Gen. Stat. \u00a7 7B-1111 is therefore contrary to the procedural mandate set forth in our juvenile code. As the trial court lacked authority to grant summary judgment in this case, respondent\u2019s motion was properly denied.\nAffirmed.\nJudges ELMORE and GEER concur.\n. A prior adjudication of neglect, abuse, or dependency is only \u201cbinding in [a] later proceeding on the facts regarding abuse[, dependency, or] neglect which were found to exist at the time it was entered.\" In re Wheeler, 87 N.C. App. 189, 194-95, 360 S.E.2d 458, 461 (1987) (emphasis added); In re Wilkerson, 57 N.C. App. 63, 69, 291 S.E.2d 182, 186 (1982) (affirming trial court\u2019s ruling, \u201cthat all previous orders in the case were binding... as to what those orders found to exist when they were entered\u201d). In determining whether grounds exist to terminate parental rights, this Court has held: \u201cAlthough prior adjudications of neglect may be admitted and considered by the trial court, they will rarely be sufficient, standing alone, to support a termination of parental rights, since the petition must establish that neglect exists at the time of hearing.\u201d In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003).", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "J. David Abemethy for petitioner-appellee Catawba County Department of Social Services.", "Wesley E. Starnes for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: J.N.S., A Minor Child\nNo. COA03-1097\n(Filed 20 July 2004)\n1. Termination of Parental Rights\u2014 prior dependency adjudication \u2014 allegations of neglect \u2014 not binding\nIn a termination of parental rights proceeding, a prior adjudication that the child was dependent was an adjudication only of dependency, despite allegations of neglect, and was binding only for the time frame of that order.\n2. Termination of Parental Rights\u2014 summary judgment \u2014 not allowed\nThe General Statutes contain no provision allowing use of summary judgment in a juvenile proceeding. Moreover, the requirement in N.C.G.S. \u00a7 7B-1109(e) that the court take evidence and make findings in a termination of parental rights proceeding is incompatible with summary judgment.\nAppeal by respondent from order filed 4 June 2003 by Judge Robert M. Brady in Catawba County District Court. Heard in the Court of Appeals 28 April 2004.\nJ. David Abemethy for petitioner-appellee Catawba County Department of Social Services.\nWesley E. Starnes for respondent-appellant.\n. The caption has been altered to show only the juvenile\u2019s initials. Similarly, respondent\u2019s name has been reduced to initials to protect the juvenile\u2019s identity." }, "file_name": "0536-01", "first_page_order": 568, "last_page_order": 571 }