{ "id": 4132326, "name": "IN THE MATTER OF B.S.O., V.S.O., R.S.O., A.S.O., Y.S.O.", "name_abbreviation": "In re B.S.O.", "decision_date": "2013-02-19", "docket_number": "No. COA12-878", "first_page": "541", "last_page": "546", "citations": [ { "type": "official", "cite": "225 N.C. App. 541" } ], "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": "627 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635397 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "515" }, { "page": "151" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0510-01" ] }, { "cite": "669 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642296, 12642295 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/669/0320-02", "/se2d/669/0320-01" ] }, { "cite": "660 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640860 ], "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0255-01" ] }, { "cite": "177 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300927 ], "year": 2006, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0082-01" ] }, { "cite": "678 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "786", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167280 ], "year": 2009, "pin_cites": [ { "page": "729", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0723-01" ] }, { "cite": "362 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149262 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0674-01" ] }, { "cite": "190 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158022 ], "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0142-01" ] }, { "cite": "430 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "699", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526186 ], "year": 1993, "pin_cites": [ { "page": "637", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0633-01" ] }, { "cite": "252 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "718" } ], "opinion_index": 0 }, { "cite": "297 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566549 ], "year": 1979, "pin_cites": [ { "page": "30-31" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0028-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "270-71" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "10 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1940, "pin_cites": [ { "page": "710", "parenthetical": "citations omitted" }, { "page": "710-11", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "218 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614611 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "150", "parenthetical": "citations omitted" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0146-01" ] } ], "analysis": { "cardinality": 648, "char_count": 14232, "ocr_confidence": 0.723, "pagerank": { "raw": 6.553285487460147e-08, "percentile": 0.40171106500803716 }, "sha256": "600a7444cc6716dbf91379d3cc4969725bee32ea2fcfe617bcb59441f7ad459d", "simhash": "1:e7c94562352e85d5", "word_count": 2305 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and DILLON concur." ], "parties": [ "IN THE MATTER OF B.S.O., V.S.O., R.S.O., A.S.O., Y.S.O." ], "opinions": [ { "text": "STEPHENS, Judge.\nProcedural History\nThis appeal arises from the trial court\u2019s termination of Respondents\u2019 parental rights. Respondent-mother is the biological mother of all five children. Respondent-father AS. is the biological father of B.S.O., V.S.O., and R.S.O. The fathers of the other children are not parties to this appeal. Petitioner Mecklenburg County Department of Social Services, Youth and Family Services (\u201cYFS\u201d) first became involved with the family in February of 2006 based on reports of inappropriate discipline and domestic violence. YFS remained involved with the family over the course of the next several years. On 9 May 2011, YFS filed petitions to terminate Respondent-mother\u2019s parental rights to all five minor children, and Respondent-father A.S.\u2019s parental rights to his three biological children.\nThe termination hearing began on 5 January 2012 and concluded on 16 March 2012. At the conclusion of the hearing, the trial court orally recounted the case history and then stated:\nWell, no, the evidence does establish that it would be in the best interest to terminate parental rights, so but we\u2019ll \u2014 Just go ahead and draft that [YFS attorney], and I\u2019ll take this under advisement and continue to consider it and see exactly what the result\u2019s going to be. But the Department will have to continue her visitation with the children until I order otherwise, and reasonable efforts.\nOn 12 April 2012, Respondent-mother filed a \u201cMotion for Review,\u201d in which she alleged that new facts had arisen that impacted both the grounds for termination and the best interests of the juveniles. Specifically, the motion stated that Respondent-father, who had been deported and had not attended the prior hearings, had returned to the United States and attended the last two visits with the juveniles.\nAt a hearing on 17 April 2012, the trial court orally denied the motion, stating that it had \u201cessentially made a ruling based on the evidence that was presented\u201d at the termination hearing and thus it would be \u201cinappropriate\u201d to re-open the evidence. In its 18 April 2012 written order denying the motion, the trial court again found it had \u201cmade a ruling on the evidence presented at the time of the termination of parental rights (\u201cTPR\u201d) trial\u201d and \u201c[o]nce an order is entered the rights of the respondent parents are terminated pursuant to [N.C. Gen. Stat. \u00a7 7B-1112 (2011)].\u201d On the same date, the court entered its written order terminating Respondents\u2019 parental rights. Respondent-mother appeals from both the TPR order and the order denying her \u201cMotion for Review.\u201d Respondent-father appeals from the TPR order.\nDiscussion\nOn appeal, Respondents each argue that the trial court (1) abused its discretion by denying Respondent-mother\u2019s motion for review seeking to re-open the evidence, (2) erred in finding grounds for termination, and (3) erred in concluding that termination of their parental rights was in the juveniles\u2019 best interests. We reverse and remand.\nRespondents first contend the trial court abused its discretion by denying the motion for review, because it mistakenly believed it had entered an order terminating parental rights at the conclusion of the termination hearing. We agree.\nA trial court has the discretion to \u201cre-open the case and admit additional testimony after the conclusion of the evidence and even after argument of counsel.\u201d Miller v. Greenwood, 218 N.C. 146, 150, 10 S.E.2d 708, 710 (1940) (citations omitted). A trial court may even re-open the evidence weeks after holding the original hearing, Wade v. Wade, 72 N.C. App. 372, 384, 325 S.E.2d 260, 270-71, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985), or, \u201c[w]hen the ends of justice require[.] even after the jury has retired.\u201d Miller, 218 N.C. at 150, 10 S.E.2d at 710-11 (citation omitted).\nIt is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\nWhite v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citations omitted). Further, \u201c[w]hen the exercise of a discretionary power of the court is refused on the ground that the matter is not one in which the court is permitted to act, the ruling of the court is reviewable.\u201d State v. Ford, 297 N.C. 28, 30-31, 252 S.E.2d 717, 718 (1979). \u201cWhere a trial court, under a misapprehension of the law, has failed to exercise its discretion regarding a discretionary matter, that failure amounts to error which requires reversal and remand.\u201d Robinson v. General Mills Rest., 110 N.C. App. 633, 637, 430 S.E.2d 696, 699 (1993) (citation omitted).\nHere, its statements in open court and in the TPR order make clear that the trial court denied Respondent-mother\u2019s motion to reopen the evidence on the basis that it had already entered an order terminating Respondents\u2019 parental rights before the motion was filed. Accordingly, we must determine whether the court entered a termination order at the conclusion of the termination hearing. After careful review, we conclude that it did not.\n\u201cAn order terminating the parental rights completely and permanently terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship[.]\u201d N.C. Gen. Stat. \u00a7 7B-1112 (2011). In a proceeding to terminate parental rights, the trial court first \u201cshall 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 N.C. Gen. Stat. \u00a7 7B-1109(e) (2011). The second step of the process, \u201c[a]fter an adjudication that one or more grounds for terminating a parent\u2019s rights exist[,]\u201d is to determine whether termination would be in the \u201cbest interests of the juvenile[.]\u201d N.C. Gen. Stat. \u00a7 7B-1110 (2011) (emphasis added).\nChapter 7B does not define \u201centry\u201d of a termination of parental rights order, but does require that both adjudicatory and best interest orders in termination matters be \u201creduced to writing, signed, and entered, no later than 30 days following the completion of the termination of parental rights hearing.\u201d N.C. Gen. Stat. \u00a7\u00a7 7B-1109(e),-1110(a) (2011) (emphasis added). The plain language of these statutes establishes that a TPR order must be in written form to be \u201centered.\u201d Id. In addition, \u201c[t]he Rules of Civil Procedure will . . . apply to fill procedural gaps where Chapter 7B requires, but does not identify, a specific procedure to be used in termination cases.\u201d In re B.L.H., 190 N.C. App. 142, 146, 660 S.E.2d 255, 257 (citations omitted), affirmed per curiam, 362 N.C. 674, 669 S.E.2d 320 (2008). The Rules of Civil Procedure specifically provide that \u201ca judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.\u201d N.C.R. Civ. P. 58 (emphasis added).\nFurther, section (a)(1) of Rule 52 of the North Carolina Rules of Civil Procedure provides: \u201c \u2018In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u2019 Rule 52 applies to termination of parental rights orders.\u201d In re T.P., 197 N.C. App. 723, 729, 678 S.E.2d 781, 786 (2009) (emphasis added).\nHere, toward the end of the termination hearing on 16 March 2012, the trial court made a number of remarks that suggested it could find certain grounds for termination. The court also instructed the YFS attorney to include certain findings of fact in the \u201cproposed order\u201d he was told to draft. The court even appears to have started to determine that termination would be in the children\u2019s best interests. However, the court then stopped and took the matter under advisement instead:\nAll right, I\u2019m not going to dictate this, but Mr. Smith [the YFS attorney] go ahead and prepare a proposed order making the findings of fact that concern the history of this case including the prior referrals that were made with respect to the family and the lack of supervision, what the case plan in this case has been, what efforts both parents have made to complete the plan.\nWell, anyway, all right. So, as far as the Court is concerned, I think the evidence \u2014 Well, no, the evidence does establish that it would be in the best interest to terminate parental rights, so but we\u2019ll\u25a0 \u2014 Just go ahead and draft that Mr. Smith, and I\u2019ll take this under advisement and continue to consider it and see exactly what the result\u2019s going to be. But the Department will have to continue her visitation with the children until I order otherwise, and reasonable efforts.\n(Emphasis added). Although the court orally summarized some of the evidence presented regarding the alleged grounds for termination, and suggested the existence of some grounds for termination, the court explicitly stated that the question of whether termination would be in the children\u2019s best interests would be taken \u201cunder advisement and [the court would] continue to consider it and see exactly what the result[ was] going to be.\u201d Thus, at the conclusion of the termination hearing, the trial court had plainly not yet made the best interests determination required to terminate parental rights. See N.C. Gen. Stat. \u00a7 7B-1110. Accordingly, the court cannot have terminated Respondent\u2019s parental rights. That nothing had been reduced to writing or filed with the clerk of court is beside the point. Not only had the trial court failed to enter an order terminating parental rights, it had not even made a ruling on the question. Indeed, the court ordered YFS to continue visitation and reasonable efforts toward reunification which it could not have done had Respondent-mother\u2019s parental rights been terminated.\nRespondent-mother filed her motion for review on 12 April 2012. On 17 April 2012, the trial court heard and orally denied the motion. The TPR order was not entered until the following day, 18 April 2012, the same date on which the order denying Respondent-mother\u2019s motion was entered, At the time the court orally denied Respondent-mother\u2019s motion, the court had not determined that termination was in the children\u2019s best interests, let alone (1) reduced its findings of fact, conclusions of law, and best interests determination to writing; (2) signed a written order; or (3) filed it with the clerk of court. As a result, the trial court had not entered a TPR order and had not terminated Respondents\u2019 parental rights.\nWe conclude the court\u2019s denial of the motion to re-open the evidence was based on a misapprehension that prevented the court from properly exercising its discretion. Accordingly, we reverse the orders terminating Respondents\u2019 parental rights and denying Respondent-mother\u2019s motion for review. We remand the matter to the trial court for proper consideration of Respondent-mother\u2019s motion. Because we reverse the TPR order, we need not address Respondents\u2019 remaining arguments.\nReversed and remanded.\nJudges STROUD and DILLON concur.\n. A permanency planning hearing was held on 15 March 2012.\n. Although the proceeding here was not a jury trial, this point is mentioned to emphasize the expansive time frame for which additional evidence may be received.\n. These remarks appear to have been in whole or in large part regarding Respondent-mother\u2019s parental rights. When asked by the YFS attorney, \u201cAnd as to the fathers?\u201d, the trial court responded, \u201cWell, the fathers, you know \u2014 I don\u2019t know.\u201d The court went on to make some remarks that could be construed as suggesting the presence of grounds which would justify termination, but never spoke about the children\u2019s best interests as regards determination of the rights of any of the fathers.\n. In In re S.N.H., 177 N.C. App. 82, 89, 627 S.E.2d 510, 515 (2006), this Court held \u201cthe trial court did not err in directing petitioner\u2019s counsel to draft the termination order\u201d based on the trial judge\u2019s clear statement \u201cthat he \u2018[found] by clear and convincing evidence that the . . . grounds enumerated in the petition justify termination of parental rights of [respondent] to these . . . children[.]\u201d Id. at 88, 627 S.E.2d at 151. Although, as here, it is appropriate for a trial court to direct \u201ccounsel for petitioner to draft an order terminating respondent\u2019s parental rights,\u201d such directions are proper when the trial judge \u201cenumerate[s] specific findings of fact to be included in the order.\u201d Id. at 89, 627 S.E.2d at 151. However, all of this assumes that the trial court has already made a termination ruling which had not yet occurred here.\n. The file stamp indicates that the TPR order was entered one minute prior to entry of the order denying Respondent-mother\u2019s motion.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Senior Associate Attorney Twyla Hottingsworth-Richardson for Petitioner Mecklenburg County Department of Social Services, Youth and Family Services.", "Assistant Appellate Defender Joyce L. Terres for Respondent-mother.", "Rebekah W. Davis for Respondent-father.", "Smith Moore Leatherwood LLP, by Carrie A. Hanger, for Guardian ad Litem." ], "corrections": "", "head_matter": "IN THE MATTER OF B.S.O., V.S.O., R.S.O., A.S.O., Y.S.O.\nNo. COA12-878\nFiled 19 February 2013\nTermination of Parental Rights \u2014 denial of motion for review\u2014 misapprehension preventing court from exercising discretion\nThe trial court abused its discretion by denying respondent mother\u2019s motion for review based on the court\u2019s mistaken belief that it had entered an order terminating parental rights at the conclusion of the termination hearing. The court\u2019s denial of the motion to re-open the evidence was based on a misapprehension that prevented the court from properly exercising its discretion.\nAppeal by Respondent-parents from order entered 18 April 2012 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 31 January 2013.\nSenior Associate Attorney Twyla Hottingsworth-Richardson for Petitioner Mecklenburg County Department of Social Services, Youth and Family Services.\nAssistant Appellate Defender Joyce L. Terres for Respondent-mother.\nRebekah W. Davis for Respondent-father.\nSmith Moore Leatherwood LLP, by Carrie A. Hanger, for Guardian ad Litem." }, "file_name": "0541-01", "first_page_order": 551, "last_page_order": 556 }