{ "id": 4167201, "name": "IN THE MATTER OF: C.N.C.B.", "name_abbreviation": "In re C.N.C.B.", "decision_date": "2009-06-16", "docket_number": "No. COA08-1510", "first_page": "553", "last_page": "562", "citations": [ { "type": "official", "cite": "197 N.C. App. 553" } ], "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": "623 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634685 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "74" }, { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0045-01" ] }, { "cite": "660 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640930 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0058-01" ] }, { "cite": "664 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641609 ], "year": 2008, "pin_cites": [ { "page": "413", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/664/0411-01" ] }, { "cite": "175 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350019 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/175/0066-01" ] }, { "cite": "543 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442099 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0501-01" ] }, { "cite": "556 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "147 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381647 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/147/0771-01" ] }, { "cite": "439 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532226, 2529540, 2530381, 2532046, 2532029 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0236-03", "/nc/335/0236-05", "/nc/335/0236-02", "/nc/335/0236-01", "/nc/335/0236-04" ] }, { "cite": "248 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 422", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554420 ], "year": 1978, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0422-01" ] }, { "cite": "433 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "784" }, { "page": "784" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 822", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524228 ], "weight": 2, "pin_cites": [ { "page": "825" }, { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0822-01" ] }, { "cite": "342 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702241, 4703432, 4699244, 4702833, 4704275 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0377-03", "/nc/316/0377-04", "/nc/316/0377-01", "/nc/316/0377-02", "/nc/316/0377-05" ] }, { "cite": "337 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "664" }, { "page": "664" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523121 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "615" }, { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0613-01" ] }, { "cite": "431 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "879", "parenthetical": "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)" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 257", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521578 ], "year": 1993, "pin_cites": [ { "page": "259", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0257-01" ] }, { "cite": "190 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158635 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0209-01" ] }, { "cite": "133 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576229 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0732-01" ] }, { "cite": "248 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "879", "parenthetical": "citing Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963)" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555713 ], "year": 1978, "pin_cites": [ { "page": "693", "parenthetical": "citing Machine Co. v. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0691-01" ] }, { "cite": "346 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "416", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "317 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779108 ], "year": 1986, "pin_cites": [ { "page": "692", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0689-01" ] }, { "cite": "545 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685026, 684898, 684899, 685087, 684959 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0676-03", "/nc/352/0676-05", "/nc/352/0676-04", "/nc/352/0676-02", "/nc/352/0676-01" ] }, { "cite": "531 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081450 ], "year": 2000, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0703-01" ] }, { "cite": "191 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159437 ], "year": 2008, "pin_cites": [ { "page": "809", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0807-01" ] }, { "cite": "627 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635397 ], "year": 2006, "pin_cites": [ { "page": "515" } ], "opinion_index": 1, "case_paths": [ "/se2d/627/0510-01" ] }, { "cite": "623 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634685 ], "year": 2005, "pin_cites": [ { "page": "50", "parenthetical": "quoting Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999)" } ], "opinion_index": 1, "case_paths": [ "/se2d/623/0045-01" ] }, { "cite": "660 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640930 ], "weight": 8, "year": 2008, "pin_cites": [ { "page": "63", "parenthetical": "quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994), disc. review denied in part, 339 N.C. 609, 454 S.E.2d 246, aff'd in part, 341 N.C. 702, 462 S.E.2d 219 (1995)" }, { "page": "62" }, { "page": "63" }, { "page": "62" }, { "page": "63" } ], "opinion_index": 1, "case_paths": [ "/se2d/660/0058-01" ] }, { "cite": "664 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641609 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "413" }, { "page": "413" } ], "opinion_index": 1, "case_paths": [ "/se2d/664/0411-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "explaining that'one panel of this Court cannot overrule another panel" } ], "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "explaining that'one panel of this Court cannot overrule another panel" } ], "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "223 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "386" } ], "opinion_index": 1 }, { "cite": "289 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570748 ], "year": 1976, "pin_cites": [ { "page": "482" } ], "opinion_index": 1, "case_paths": [ "/nc/289/0473-01" ] }, { "cite": "324 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "28" } ], "opinion_index": 1 }, { "cite": "72 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526124 ], "year": 1984, "pin_cites": [ { "page": "24" } ], "opinion_index": 1, "case_paths": [ "/nc-app/72/0022-01" ] }, { "cite": "177 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300927 ], "year": 2006, "pin_cites": [ { "page": "89" } ], "opinion_index": 1, "case_paths": [ "/nc-app/177/0082-01" ] }, { "cite": "516 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "649" } ], "opinion_index": 1 }, { "cite": "134 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143141 ], "year": 1999, "pin_cites": [ { "page": "112" } ], "opinion_index": 1, "case_paths": [ "/nc-app/134/0110-01" ] }, { "cite": "408 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "731" } ], "opinion_index": 1 }, { "cite": "330 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510111 ], "year": 1991, "pin_cites": [ { "page": "97" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0093-01" ] }, { "cite": "462 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "341 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793212 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/341/0702-01" ] }, { "cite": "454 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "339 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557576, 2559406, 2558447, 2556790, 2556634 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/339/0609-04", "/nc/339/0609-03", "/nc/339/0609-01", "/nc/339/0609-05", "/nc/339/0609-02" ] }, { "cite": "447 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "483" } ], "opinion_index": 1 }, { "cite": "116 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523314 ], "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 1, "case_paths": [ "/nc-app/116/0250-01" ] }, { "cite": "175 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350019 ], "year": 2005, "pin_cites": [ { "page": "74", "parenthetical": "quoting Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/175/0066-01" ] }, { "cite": "190 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158635 ], "year": 2008, "pin_cites": [ { "page": "216", "parenthetical": "quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994), disc. review denied in part, 339 N.C. 609, 454 S.E.2d 246, aff'd in part, 341 N.C. 702, 462 S.E.2d 219 (1995)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/190/0209-01" ] }, { "cite": "191 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159437 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "809" }, { "page": "807" } ], "opinion_index": 1, "case_paths": [ "/nc-app/191/0807-01" ] } ], "analysis": { "cardinality": 854, "char_count": 21618, "ocr_confidence": 0.721, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47191110369755146 }, "sha256": "a680d2e325601b256eebb12a7679d6a4b489251270834579afdc5d2177f0d896", "simhash": "1:866bc46ffe1e3d62", "word_count": 3599 }, "last_updated": "2023-07-14T21:19:41.072184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STROUD concurs.", "Judge STEPHENS dissents in a separate opinion." ], "parties": [ "IN THE MATTER OF: C.N.C.B." ], "opinions": [ { "text": "JACKSON, Judge.\nRespondent-mother (\u201crespondent\u201d) appeals from an order terminating her parental rights to C.N.C.B. For the reasons stated below, we reverse and remand.\nOn 5 September 2007, the Burke County Department of Social Services (\u201cDSS\u201d) filed a petition alleging that C.N.C.B. was a neglected juvenile. DSS stated that respondent and the juvenile were residing with respondent\u2019s boyfriend, who was a registered sex offender and had a \u201clong criminal history.\u201d DSS claimed that respondent and her boyfriend had \u201cengaged in domestic violence in the juvenile\u2019s presence\u201d and both of them \u201cabuse[d] substances.\u201d DSS further alleged that respondent was \u201coften impaired by prescription medications and unable to provide appropriate care and supervision for the juvenile . ...\u201d 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.\nOn 22 May 2008, DSS filed a \u201cMotion/Petition to Terminate Parental Rights.\u201d .The sole ground alleged by DSS for termination of respondent\u2019s 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).\nA hearing was held on the petition to terminate respondent\u2019s 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\u2019s parental rights. The trial court further concluded that it was in the juvenile\u2019s best interest that respondent\u2019s parental rights be terminated. Therefore, her parental rights were terminated by order filed 15 October 2008, nunc pro tunc 9 October 2008. Respondent appeals.\nAfter 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 \u201cCorrected Order\u201d on 27 October 2008, purportedly correcting \u201cclerical mistakes and errors arising from oversight or omission.\u201d Although respondent\u2019s 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.\nWe note that \u201c[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[.]\u201d 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)). \u201c[Questions of subject matter jurisdiction may properly be raised at any point, even in the Supreme Court.\u201d 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).\n\u201c[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[.]\u201d 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 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\u2019s 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\u2019s exercise of its powers when it does not have subject matter jurisdiction to do so.\nRule 60 of the North Carolina Rules of Civil Procedure provides a limited exception to a trial court\u2019s lack of jurisdiction once notice of appeal has been filed:\nClerical 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.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 60(a) (2007). \u201cWhile 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.\u201d 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)). \u201cA change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order.\u201d 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).\nWe 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\u2019s oral rendering of judgment. Cf. Mason, 190 N.C. App. at 215, 660 S.E.2d at 62 (\u201cThe court amended one finding of fact and one conclusion of law to add that it was making its findings \u2018by clear, cogent and convincing evidence\u2019. . . [noting] that the court had articulated the proper standard \u2018on the record on several occasions, but inadvertently omitted it from its Order.\u2019 \u201d). That finding includes the phrase that respondent \u201ccontinues to lack an appropriate alternative child care arrangement for the minor child,\u201d a finding that was essential to the trial court\u2019s final determination.\nA trial court may terminate parental rights upon a finding\n[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.\nN.C. Gen. Stat. \u00a7 7B-llll(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).\nThis Court routinely has vacated orders that were improperly \u201ccorrected\u201d pursuant to Rule 60(a). See Pratt v. Staton, 147 N.C. App. 771, 556 S.E.2d 621 (2001); S.C. Dep\u2019t 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.\nThe dissenting opinion states that respondent did not assign error to any of the trial court\u2019s findings of fact or conclusions of law; therefore, the trial court\u2019s 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) \u2014 cited by the dissent \u2014 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. \u201cAn assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made[.]\u201d N.C. R. App. P. 10(c)(1) (2007). Respondent\u2019s assignment of error sufficiently directs our attention to the conclusion of law that she was incapable of providing proper care and supervision to her child, that the incapability was likely to continue for the foreseeable future, and that she lacked appropriate alternative child care arrangements.\nThe 15 October 2008 order contains no finding of fact that respondent lacks an appropriate alternative child care arrangement. Section 7B-llll(a)(6) requires that in addition to a parent having a condition which renders her unable or unavailable to. parent the juvenile, the parent also must have no appropriate alternative child care arrangement in order to terminate parental rights. Absent such a finding of fact, the order does not support the conclusion of law that sufficient grounds exist pursuant to section 7B-llll(a)(6) to terminate respondent\u2019s parental rights. Accordingly, the order must be reversed.\nTherefore, we remand the matter to the trial court for further proceedings, if necessary, to make appropriate findings of fact reflecting the trial court\u2019s intended decision.\nBecause we resolve the matter on preliminary grounds, we do not address respondent\u2019s arguments on the merits.\nReversed and remanded.\nJudge STROUD concurs.\nJudge STEPHENS dissents in a separate opinion.", "type": "majority", "author": "JACKSON, Judge." }, { "text": "STEPHENS, Judge,\ndissenting.\nFor the following reasons, I must respectfully dissent from the opinion of the majority in this case.\nBy Order entered 15 October 2008, the trial court terminated Respondent\u2019s parental rights. On 24 October 2008, Respondent filed a notice of appeal \u201cto the Decision to Terminate her Parental Rights . . . Order entered October 15, 2008[.]\u201d On 27 October 2008, the trial court entered a corrected order, noting that \u201c[pjursuant to Rule 60(a) of the Rules of Civil Procedure, this order corrects several clerical mistakes and errors arising from oversight or omission contained in an order entered on October 9, 2008; signed on October 15, 2008; and filed on October 15, 2008.\u201d The record on appeal contains no notice of appeal from the 27 October corrected order. The sole notice of appeal included in the record on' appeal references only the 15 October order.\n\u201cAny party entitled by law to appeal from a judgment or order . . . rendered in a civil action or special proceeding may take appeal by filing notice of appeal....\u201d N.C. R. App. P. 3(a). Such notice of appeal \u201cshall designate the judgment or order from which appeal is taken[.]\u201d N.C. R. App. P. 3(d). The record on appeal in civil.actions and special proceedings shall contain \u201ca copy of the notice of appeal[.]\u201d N.C. R. App. P. 9(a)(l)(i). Appellate review \u201cis solely upon the record on appeal, the verbatim transcript of proceedings, . . . and any items filed . . . pursuant to Rule 9(c) and 9(d).\u201d N.C. R. App. P. 9(a). \u201c \u2018Without proper notice of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.\u2019 \u201d Mason v. Dwinnell, 190 N.C. App. 209, 216, 660 S.E.2d 58, 63 (2008) (quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994), disc. review denied in part, 339 N.C. 609, 454 S.E.2d 246, aff\u2019d in part, 341 N.C. 702, 462 S.E.2d 219 (1995)). \u201c[T]his Court has the power and the duty to determine issues of jurisdiction ex mero motu . . . .\u201d In re Will of Harts, 191 N.C. App. 807, 809, 664 S.E.2d 411, 413 (2008).\nIn Mason v. Dwinnell, the trial court entered a permanent custody order on 1 June 2006. On 21 June 2006, Dwinnell filed a notice of appeal from the 1 June 2006 order. On 24 July 2006, the trial court entered an order amending its 1 June 2006 permanent custody order \u201cto correct \u2018a clerical error in the facts and conclusions.\u2019 \u201d Id. at 215, 660 S.E.2d at 62. The trial court amended one finding of fact and one conclusion of law to add that it was making its findings \u201c \u2018by clear, cogent and convincing evidence.\u2019 \u201d Id. The amended order noted that the trial court had articulated the proper standard \u201c \u2018on the record on several occasions, but inadvertently omitted it from its Order.\u2019 \u201d Id.\nOn appeal to this Court, Dwinnell argued, inter alia, that the trial court improperly entered its 24 July 2006 order amending its 1 June 2006 permanent custody order. This Court noted that since Dwinnell\u2019s notice of appeal, filed 21 June 2006, was filed prior to the entry of the 24 July 2006 amended order, the notice of appeal could not have referenced that subsequent order. \u201cDwinnell was, therefore, required to file another notice of appeal regarding that [amended] order.\u201d Id. Since the record on appeal contained no notice of appeal from the 24 July 2006 order, this Court had \u201cno jurisdiction to review the 24 July 2006 order.\u201d Id. at 215, 660 S.E.2d at 63.\nThe same result must be reached in this case. Since Respondent\u2019s notice of appeal, filed 24 October 2008, was filed prior to the entry of the 27 October 2008 corrected order, the notice of appeal could not have referenced that subsequent order. Respondent was, therefore, required to file another notice of appeal regarding the corrected order. See id. at 215, 660 S.E.2d at 62. Since the record on appeal contains no notice of appeal from the 27 October 2008 corrected order, in accordance with Mason, this Court has no jurisdiction to review the 27 October 2008 corrected order. See id. at 215, 660 S.E.2d at 63.\nWhile the majority correctly notes that \u201c[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,\u201d Will of Harts, 191 N.C. App. at 807, 664 S.E.2d at 413, the majority then analyzes the substance of the 27 October 2008 corrected order from which Respondent did not appeal, and holds that the corrected order must be vacated \u201c[b]ecause the trial court was without jurisdiction pursuant to Rule 60(a) to add the omitted finding of fact[.]\u201d However, in accordance with Mason, this Court has no jurisdiction to review the corrected order to determine if the trial court exceeded its authority by adding the omitted finding of fact.\nI thus turn to Respondent\u2019s appeal from the original order. Respondent first argues that the trial court erred in terminating Respondent\u2019s parental rights because there was insufficient competent evidence to support the findings of fact and conclusions of law.\nThe record on appeal must contain \u201cassignments of error set out in the manner provided in Rule 10[.]\u201d N.C. R. App. P. 9(a)(l)(k). \u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appealf,]\u201d N.C. R. App. P. 10(a), and argued in an appellant\u2019s brief. See N.C. R. App. P. 28(b)(6) (\u201cAssignments of error not set out in appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\n\u201cWhere no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.\u201d Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Furthermore, \u201c \u2018[t]he appellant must assign error to each conclusion it believes is not supported by the evidence. N.C. R. App. P. 10. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts.\u2019 \u201d In re J.A.A., 175 N.C. App. 66, 74, 623 S.E.2d 45, 50 (2005) (quoting Fran\u2019s Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999)).\nIn this case, Respondent did not assign as error any of the trial court\u2019s findings of fact or conclusions of law. Accordingly, the trial court\u2019s findings of fact and conclusions of law are binding on this Court. In re S.N.H., 177 N.C. App. 82, 89, 627 S.E.2d 510, 515 (2006). Furthermore, while Respondent contends in her brief that Findings of Fact numbers 11, 12, and 13 in the corrected order are not supported by competent evidence, as explained supra, the corrected order is not properly before us. Accordingly, I would overrule Respondent\u2019s first argument.\nBy Respondent\u2019s second argument, Respondent contends that the trial court abused its discretion in denying Respondent\u2019s motion to continue when Respondent was not present at the commencement of the termination hearing.\n\u201cA continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 40(b) (2007). \u201cA motion to continue is addressed to the court\u2019s sound discretion and will not be disturbed on appeal in the absence of abuse of discretion.\u201d Doby v. Lowder, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984).\nHere, the motion to terminate Respondent\u2019s parental rights was filed on 22 May 2008. The hearing on the motion was originally scheduled for 17 July 2008. However, as the child\u2019s father had not yet been served personally or via certified mail, the trial court, with Respondent present, continued the matter to 11 September 2008 and allowed petitioner to serve the child\u2019s father via publication. On 11 September 2008, the trial court noted that service by publication had commenced on 21 August 2008 and, therefore, the requisite 40 days for the father\u2019s response had not yet elapsed. The trial court, with Respondent present, thus continued the matter to 9 October 2008. On 9 October 2008, Respondent was not present in court. Counsel for Respondent moved for a continuance due to Respondent\u2019s absence, stating, \u201cI have had contact with my client. She contacted the office, I guess this morning, and it was my understanding she was going to be here. I don\u2019t know if something happened or \u2014 [.]\u201d The trial court denied counsel\u2019s motion.\nAs \u201c[c]ontinuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it[,]\u201d Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976), the trial court did not abuse its discretion in denying Respondent\u2019s motion where Respondent failed to show good cause for granting the continuance. I likewise would overrule this argument.\nFor the foregoing reasons, I would affirm the order of the trial court terminating Respondent\u2019s parental rights.\n. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (explaining that'one panel of this Court cannot overrule another panel).\n. Notably, Respondent does not argue that the trial court\u2019s findings of fact, as contained in the order from which Respondent appealed, are inadequate to support the trial court\u2019s conclusion of law that grounds exist to terminate Respondent\u2019s parental rights for dependency under N.C. Gen. Stat. \u00a7 7B-llll(a)(6).", "type": "dissent", "author": "STEPHENS, Judge," } ], "attorneys": [ "Stephen M. Schoeberle, for petitioner-appellee Burke County Department of Social Services.", "Ellis & Winters, LLP, by Alexander M. Pearce, for guardian ad litem.", "Patricia Kay Gibbons, for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: C.N.C.B.\nNo. COA08-1510\n(Filed 16 June 2009)\nTermination of Parental Rights\u2014 jurisdiction \u2014 improper use of Rule 60 for addition of omitted finding of fact in corrected order\nThe trial court lacked jurisdiction in a termination of parental rights case when it added an omitted finding of fact in a corrected order under N.C.G.S. \u00a7 1A-1, Rule 60(a), the corrected order is vacated, and the matter is remanded to the trial court for further proceedings if necessary to make appropriate findings of fact reflecting the trial court\u2019s intended decision, because: (1) 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; and (2) the trial court relied upon a single ground to terminate parental rights, and the presence or absence of the finding of fact that respondent lacked an appropriate alternative child care arrangement altered the effect of the order.\nJudge STEPHENS dissenting in separate opinion.\nAppeal 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.\nStephen M. Schoeberle, for petitioner-appellee Burke County Department of Social Services.\nEllis & Winters, LLP, by Alexander M. Pearce, for guardian ad litem.\nPatricia Kay Gibbons, for respondent-appellant." }, "file_name": "0553-01", "first_page_order": 583, "last_page_order": 592 }