{ "id": 4154260, "name": "IN THE MATTER OF: M.I.W.", "name_abbreviation": "In re M.I.W.", "decision_date": "2012-01-27", "docket_number": "No. 148PA11", "first_page": "374", "last_page": "389", "citations": [ { "type": "official", "cite": "365 N.C. 374" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "708 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": -1 }, { "cite": "645 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638560 ], "year": 2007, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0398-01" ] }, { "cite": "641 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637819, 12637820 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/641/0302-01", "/se2d/641/0302-02" ] }, { "cite": "637 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637222, 12637223 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/637/0218-01", "/se2d/637/0218-02" ] }, { "cite": "631 S.E.2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636086 ], "weight": 2, "pin_cites": [ { "page": "23" }, { "page": "23", "parenthetical": "concluding that noticing a matter for hearing in and of itself does not \"constitute] ] the exercise of jurisdiction\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0019-01" ] }, { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "496" }, { "page": "496" }, { "page": "490" }, { "page": "553" }, { "page": "498" }, { "page": "550" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "636 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637106 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "790" }, { "page": "790", "parenthetical": "describing subject matter jurisdiction as \"the power to pass on the merits of the case\" (citation and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0787-01" ] }, { "cite": "284 S.E.2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "304 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569012 ], "year": 1981, "pin_cites": [ { "page": "430-31" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0427-01" ] }, { "cite": "471 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "359", "parenthetical": "\"The failure of a legislature to amend a statute which has been interpreted by a court is some evidence that the legislature approves of the court's interpretation.\"" } ], "opinion_index": 0 }, { "cite": "343 N.C. 459", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798839 ], "year": 1996, "pin_cites": [ { "page": "462-63", "parenthetical": "\"The failure of a legislature to amend a statute which has been interpreted by a court is some evidence that the legislature approves of the court's interpretation.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0459-01" ] }, { "cite": "183 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8203779 ], "year": 2007, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0423-01" ] }, { "cite": "2009 WL 3583819", "category": "reporters:specialty_west", "reporter": "WL", "year": 2009, "pin_cites": [ { "page": "*2", "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "687 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "year": 2009, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "361 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3746300 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0231-01" ] }, { "cite": "360 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787875, 3788325, 3786094, 3793198, 3790550, 3798232, 3795833, 3794527 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0647-07", "/nc/360/0647-01", "/nc/360/0647-05", "/nc/360/0647-02", "/nc/360/0647-04", "/nc/360/0647-06", "/nc/360/0647-03", "/nc/360/0647-08" ] }, { "cite": "178 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376345 ], "weight": 2, "pin_cites": [ { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0110-01" ] }, { "cite": "591 F.3d 698", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3508925 ], "year": 2010, "pin_cites": [ { "page": "704", "parenthetical": "\"[D]ifferent words used in the same statute should be assigned different meanings . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/591/0698-01" ] }, { "cite": "315 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527925 ], "year": 1984, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0738-01" ] }, { "cite": "407 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "822", "parenthetical": "\"[A] statute's expression of specific exceptions implies ' the exclusion of other exceptions.\" (citation omitted)" }, { "page": "927" }, { "page": "822" } ], "opinion_index": 0 }, { "cite": "329 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553418 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "732", "parenthetical": "\"[A] statute's expression of specific exceptions implies ' the exclusion of other exceptions.\" (citation omitted)" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0727-01" ] }, { "cite": "232 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "291 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558677 ], "year": 1977, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0451-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "294" }, { "page": "294", "parenthetical": "\"In matters of statutory construction, our primary task is to ensure that the purpose of the legislature ... is accomplished.\" (citation omitted)" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "656" }, { "page": "656" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "435 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "532", "parenthetical": "citing Elec. Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529130 ], "year": 1993, "pin_cites": [ { "page": "348", "parenthetical": "citing Elec. Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0345-01" ] }, { "cite": "347 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "318 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737744 ], "year": 1986, "pin_cites": [ { "page": "81-82" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0076-01" ] }, { "cite": "694 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "760", "parenthetical": "citing Shelton v. Morehead Mem'l Hosp., 318 N.C. 76, 81-82, 347 S.E.2d 824, 828 (1986)" } ], "opinion_index": 0 }, { "cite": "364 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152349 ], "year": 2010, "pin_cites": [ { "page": "187", "parenthetical": "citing Shelton v. Morehead Mem'l Hosp., 318 N.C. 76, 81-82, 347 S.E.2d 824, 828 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0184-01" ] }, { "cite": "674 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "793" }, { "page": "793, 794" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166116 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "278" }, { "page": "277, 279" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0272-01" ] }, { "cite": "2005 N.C. Sess. Laws 1455", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "550" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "83 S.E. 830", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "pin_cites": [ { "page": "830", "parenthetical": "\"[A]n appeal... operates as a stay of proceedings\" and \"the court below is without power to hear and determine questions involved in an appeal pending in the [appellate court].\"" } ], "opinion_index": 0 }, { "cite": "167 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273575 ], "year": 1914, "pin_cites": [ { "page": "600", "parenthetical": "\"[A]n appeal... operates as a stay of proceedings\" and \"the court below is without power to hear and determine questions involved in an appeal pending in the [appellate court].\"" } ], "opinion_index": 0, "case_paths": [ "/nc/167/0598-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "360 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787934 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "590" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0588-01" ] }, { "cite": "677 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "837" }, { "page": "838", "parenthetical": "distinguishing between certain points at which the court has jurisdiction and actually exercising that jurisdiction" }, { "page": "838", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "363 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150875 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "345" }, { "page": "347-48" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0343-01" ] }, { "cite": "711 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "710 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "2011 WL 340537", "category": "reporters:specialty_west", "reporter": "WL", "weight": 2, "year": 2011, "pin_cites": [ { "page": "*2", "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "708 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "weight": 14, "year": 2005, "pin_cites": [ { "page": "491" }, { "page": "541" }, { "page": "490" }, { "page": "541" }, { "page": "490-91" }, { "page": "541" }, { "page": "491" }, { "page": "540" }, { "page": "490" }, { "page": "553" }, { "page": "498" }, { "page": "542" }, { "page": "491" }, { "page": "497" } ], "opinion_index": 1, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "158 L. Ed. 2d 78", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 1 }, { "cite": "124 S. Ct. 1407", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2004, "opinion_index": 1 }, { "cite": "540 U.S. 1177", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9047328, 9047396, 9047492, 9047684, 9047366, 9047653, 9047570, 9047507, 9047541, 9047734, 9047449, 9047613 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/us/540/1177-01", "/us/540/1177-03", "/us/540/1177-05", "/us/540/1177-11", "/us/540/1177-02", "/us/540/1177-10", "/us/540/1177-08", "/us/540/1177-06", "/us/540/1177-07", "/us/540/1177-12", "/us/540/1177-04", "/us/540/1177-09" ] }, { "cite": "142 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 1 }, { "cite": "264 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575017 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/nc/264/0711-01" ] }, { "cite": "581 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "45-48", "parenthetical": "describing the legislative reaction to this Court's opinion in Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965)" } ], "opinion_index": 1 }, { "cite": "357 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491651 ], "year": 2003, "pin_cites": [ { "page": "199-205", "parenthetical": "describing the legislative reaction to this Court's opinion in Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965)" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0193-01" ] }, { "cite": "665 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "451", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "362 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149743 ], "year": 2008, "pin_cites": [ { "page": "460", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/362/0457-01" ] }, { "cite": "2005 N.C. Sess. Laws 1455", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 2, "opinion_index": 1 }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "542" }, { "page": "552" } ], "opinion_index": 1, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "672 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642723 ], "weight": 5, "year": 2009, "pin_cites": [ { "parenthetical": "holding that issuance of a summons is an exercise of jurisdiction" }, { "page": "19" }, { "page": "19", "parenthetical": "\"[T]he trial court's subject matter jurisdiction was properly invoked upon the issuance of a summons.\"" } ], "opinion_index": 2, "case_paths": [ "/se2d/672/0017-01" ] }, { "cite": "363 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150783 ], "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "holding that issuance of a summons is an exercise of jurisdiction" }, { "page": "4-5" } ], "opinion_index": 2, "case_paths": [ "/nc/363/0001-01" ] }, { "cite": "158 L. Ed. 2d 78", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 2004, "opinion_index": 2 } ], "analysis": { "cardinality": 1392, "char_count": 41942, "ocr_confidence": 0.734, "pagerank": { "raw": 9.124457802161909e-08, "percentile": 0.507140377682251 }, "sha256": "3b9d1df2239ad98a9bea206be3e12e65b015ade744d7fe379eeb0a0acc1831a5", "simhash": "1:099de026776f345a", "word_count": 6827 }, "last_updated": "2023-07-14T18:57:15.030367+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion." ], "parties": [ "IN THE MATTER OF: M.I.W." ], "opinions": [ { "text": "NEWBY, Justice.\nThis case asks whether, under the Juvenile Code, a trial court has subject matter jurisdiction to terminate parental rights when the motion to terminate was filed while an appeal in the case was pending but the court acted on the motion only after the mandate resolving the appeal had been issued. We hold that N.C.G.S. \u00a7 7B-1003 prohibits only the exercise of jurisdiction before issuance of the mandate and that issuance of the mandate by the appellate court returns the power to exercise subject matter jurisdiction to the trial court. Because the trial court here did not exercise jurisdiction before the mandate\u2019s issuance, we affirm the decision of the Court of Appeals upholding the termination of respondents\u2019 parental rights.\nRespondents are parents of a three-year-old juvenile, M.I.W., bom on 16 February 2008. Respondent father was incarcerated on drug charges at the time of M.I.W.\u2019s birth and has had very little involvement in Mi.W.\u2019s life. Respondent father was previously incarcerated for indecent liberties with a minor and has been charged with numerous other crimes including statutory rape, contributing to the delinquency of a minor, violation of a domestic violence protective order, and assault on a female. Respondent mother has a history of drag abuse, including use of methamphetamines, and has serious mental health issues for which she has failed to follow her treatment plan. Her other three children were removed from her custody because of her drug abuse and unaddressed mental illness.\nM.I.W. was initially removed from respondent mother\u2019s care in September 2008 when he was seven months old. Neighbors contacted police after seeing respondent mother drop M.I.W. several times, and they expressed concern that misuse of medication may have been responsible. M.I.W. was briefly placed with his paternal grandmother, and after she became unable to care for him, he was placed with his paternal uncle. On 15 December 2008, the Harnett County Department of Social Services (DSS) filed a juvenile petition alleging that M.I. W. was a neglected and dependent juvenile and sought an order for nonsecure custody, which the trial court promptly approved. After this filing M.I.W. remained with his uncle until 19 March 2009. On that day M.I.W. was taken to the hospital by social workers after employees at his day care center reported he arrived with bruises on his face, neck, forehead, back of the head, upper arms, and back. M.I.W. also had an open, infected wound on his ear. The physician\u2019s notes state that it looked like M.I.W.\u2019s fingernails had been pulled out, and an examination revealed that M.I.W. was dehydrated and underweight and had two healing fractured ribs. Medical records indicate that these injuries were \u201cdiagnostic of child physical abuse\u201d and were \u201cnot consistent with accidental injuries\u201d but were \u201cconsistent with traumatic, abusive injures [sic].\u201d After leaving the hospital, M.I.W. was placed in foster care, where he is currently thriving.\nA disposition hearing was held on 27 March 2009, followed by permanency planning hearings on 24 April and 8 May 2009. On 8 May 2009, the trial court entered its disposition order awarding full custody of M.I.W. to petitioner DSS. The permanent plan for M.I.W. was determined to be adoption. On 10 and 11 June 2009, respondents filed separate appeals.\nWhile respondents\u2019 appeals of the disposition order were pending, DSS filed a motion in the cause to terminate respondents\u2019 parental rights on 2 July 2009. Respondent mother moved to dismiss the motion to terminate on 29 September 2009, alleging a lack of subject matter jurisdiction, and respondent father moved for the same on 12 March 2010. During the pendency of the appeal, the trial court continued the hearing on the motion to terminate twice, noting the necessity of a continuance because of the constraints of N.C.G.S. \u00a7 7B-1003(b)(l).\nThe Court of Appeals affirmed the trial court\u2019s disposition order on 2 February 2010, thereby resolving the appeal, and the mandate issued on 22 February 2010. On 12 March 2010, the trial court denied respondents\u2019 motions to dismiss the termination motion, and the court held termination hearings on 12 March, 9 April, and 30 April 2010. On 11 June 2010, the trial court terminated respondents\u2019 parental rights to M.I.W.\nRespondent mother appealed the termination on 1 July 2010, followed by respondent father on 12 July 2010. The Court of Appeals affirmed, holding that, although the termination motion was filed by DSS during the pendency of the appeal from the disposition order, the trial court had subject matter jurisdiction over the motion. In re M.I.W., _ N.C. App. _, 708 S.E.2d 216, 2011 WL 340537, at *2 (2011) (unpublished). The court concluded: \u201cA trial court does not violate N.C. Gen. Stat. \u00a7 7B-1003 when it holds the hearing on the [motion] to terminate parental rights after this Court\u2019s mandate has issued.\u201d Id. Respondents sought review, and we allowed their petitions for writ of certiorari on the issue of subject matter jurisdiction. In re M.I.W., N.C. _, 710 S.E.2d 5 (2011); id., _ N.C. _, 711 S.E.2d 434 (2011).\nThe primary question presented is whether, under the Juvenile Code, the trial court had subject matter jurisdiction when it granted the motion to terminate respondents\u2019 parental rights. Respondents argue that N.C.G.S. \u00a7 7B-1003 removes the trial court\u2019s jurisdiction such that filing a termination of parental rights (TPR) motion while an appeal is pending is a nullity, as are subsequent actions pursuant to that motion. DSS argues that the statute prevents the trial court only from acting on a termination motion while an appeal is pending, not from acting on a motion that was filed during pendency of an appeal once the appeal has been resolved.\nAs a preliminary matter, it is crucial to understand the basis for the trial court\u2019s subject matter jurisdiction in TPR cases. \u201cIn matters arising under the Juvenile Code, the court\u2019s subject matter jurisdiction is established by statute.\u201d In re K.J.L., 363 N.C. 343, 345, 677 S.E.2d 835, 837 (2009). When subject matter jurisdiction is a statutory creation, the General Assembly can, within the bounds of the Constitution, set whatever limits it wishes on the possession or exercise of that jurisdiction, including limits on jurisdiction during a pending appeal. See In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). The General Assembly has employed that authority here in enacting N.C.G.S. \u00a7 7B-1003.\nGenerally, N.C.G.S. \u00a7 1-294 operates to stay further proceedings in the trial court upon perfection of an appeal. N.C.G.S. \u00a7 1-294 (2011) (\u201cWhen an appeal is perfected ... it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein . . . .\u201d); see also Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950); Pruett v. Charlotte Power Co., 167 N.C. 598, 600, 83 S.E. 830, 830 (1914) (\u201c[A]n appeal... operates as a stay of proceedings\u201d and \u201cthe court below is without power to hear and determine questions involved in an appeal pending in the [appellate court].\u201d). When a specific statute addresses jurisdiction during an appeal, however, that statute controls over the general rule. See In re R.T.W., 359 N.C. 539, 550, 614 S.E.2d 489, 496 (2005), superseded on other grounds by statute, Act of Aug. 23, 2005, ch. 398, sec. 12, 2005 N.C. Sess. Laws 1455, 1460-61 (amending various provisions of the Juvenile Code)).\nGiven the unique nature of the Juvenile Code, with its overarching focus on the best interest of the child, it is not suiprising that the General Assembly recognized that the needs of the child may change while legal proceedings are pending on appeal. See id. at 551, 614 S.E.2d at 496 (\u201cApplied to appeals in child custody cases, however, N.C.G.S. \u00a7 1-294 would leave trial courts powerless to modify custodial arrangements in response to changed circumstances and the child\u2019s best interests.\u201d (emphasis added)); see also In re K.L., 196 N.C. App. 272, 278, 674 S.E.2d 789, 793 (2009). Because the General Assembly enacted N.C.G.S. \u00a7 7B-1003 in recognition of the need for a modified approach in juvenile cases, that statute controls over N.C.G.S. \u00a7 1-294, and any limits placed on the possession and exercise of jurisdiction by the trial court while an appeal is pending will come from N.C.G.S. \u00a7 7B-1003, rather than the general rule. Consequently, our holding is limited to matters arising under the Juvenile Code.\nAn earlier case from this Court held that \u201ca trial court retains jurisdiction to enter an order terminating parental rights while a custody order in the same case is pending appellate review.\u201d In re R.T.W., 359 N.C. at 540, 614 S.E.2d at 490. We concluded that a trial court could hold termination hearings and enter a termination order while an appeal was pending, thereby \u201crender[ing] the pending appeal moot.\u201d Id. at 553, 614 S.E.2d at 498. In reaching that conclusion we relied on our finding that the version of N.C.G.S. \u00a7 7B-1003 then governing jurisdiction during appeals \u201cnowhere reference [d] orders terminating parental rights.\u201d Id. at 550, 614 S.E.2d at 496. The General Assembly amended N.C.G.S. \u00a7 7B-1003 in 2005, and it now states in relevant part:\nPending disposition of an appeal, unless directed otherwise by an appellate court or subsection (c) of this section applies, the trial court shall:\n(1) Continue to exercise jurisdiction and conduct hearings under this Subchapter with the exception of Article 11 of the General Statutes; and\n(2) Enter orders affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile.\nN.C.G.S. \u00a7 7B-1003(b) (2012). Article 11 of Chapter 7B of the General Statutes governs termination of parental rights, so N.C.G.S. \u00a7 7B-1003 now facially addresses that process. In light of this change, we must determine what the General Assembly meant to prohibit by referencing Article 11 of the Juvenile Code.\nWhen interpreting a statute, the Court must first look to legislative intent. In re D.S., 364 N.C. 184, 187, 694 S.E.2d 758, 760 (2010) (citing Shelton v. Morehead Mem\u2019l Hosp., 318 N.C. 76, 81-82, 347 S.E.2d 824, 828 (1986)). To determine the int\u00e9nt of the legislature, we start with the language of the statute itself. Fowler v. Valencourt, 334 N.C. 345, 348, 435 S.E.2d 530, 532 (1993) (citing Elec. Supply Co. of Durham v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)). If the language used is unambiguous, the Court will give the plain and ordinary meaning to the words in the statute. Id. (citing State ex. rel. Utils. Comm\u2019n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977)).\nHere the relevant statutory language unambiguously prohibits the trial court from doing only two things regarding termination proceedings while an appeal is pending: exercising jurisdiction and conducting hearings. See Alberti v. Mfd. Homes, Inc., 329 N.C. 727, 732, 407 S.E.2d 819, 822 (1991) (\u201c[A] statute\u2019s expression of specific exceptions implies ' the exclusion of other exceptions.\u201d (citation omitted)). Because the trial court did not conduct hearings while the appeal was pending, the only issue here is whether the trial court otherwise exercised jurisdiction during that time period.\nThe plain and ordinary meaning of \u201cexercise\u201d is \u201c[t]o make use of [or] to put into action.\u201d Black\u2019s Law Dictionary 654 (9th ed. 2009). \u201cJurisdiction,\u201d as it relates to subject matter, is defined as \u201c[a] court\u2019s power to decide a case or issue a decree.\u201d Id. at 927; see also In re T.R.P., 360 N.C. at 590, 636 S.E.2d at 790 (describing subject matter jurisdiction as \u201cthe power to pass on the merits of the case\u201d (citation and quotation marks omitted)). Taken together, then, the phrase \u201cexercise jurisdiction\u201d refers to a court\u2019s use of its power to decide the merits of a case or issue a decree. Exercising jurisdiction, in the context of the Juvenile Code, requires putting the court\u2019s jurisdiction into action by holding hearings, entering substantive orders or decrees, or making substantive decisions on the issues before it. In contrast, having jurisdiction is simply a state of being that requires, and in some cases allows, no substantive action from the court. See Jerson v. Jerson, 68 N.C. App. 738, 740, 315 S.E.2d 522, 523 (1984) (stating that in the child custody context, \u201ceven when the district court has jurisdiction ... , it has no authority to exercise its jurisdiction without making findings of fact which support the conclusion that such exercise is required in the interest of the child____\u201d (emphasis added)). By its own plain language, N.C.G.S. \u00a7 7B-1003 does not state that the trial court lacks jurisdiction over TPR proceedings during pendency of an appeal, but instead specifies that a trial court may not \u201cexercise\u201d the jurisdiction it has until the appeal is resolved and the mandate has issued.\nBy choosing to prohibit exercising jurisdiction, rather than stating that the trial court is divested of jurisdiction, the General Assembly has signaled that the subject matter jurisdiction of the trial court is not removed. See Alberti, 329 N.C. at 732, 407 S.E.2d at 822. This is consistent with other distinctions in the Juvenile Code between exercising and having jurisdiction. See, e.g., N.C.G.S. \u00a7 7B-1101 (2011) (\u201c[B]efore exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination . . . .\u201d); accord Ferrell v. Express Check Advance of SC LLC, 591 F.3d 698, 704 (4th Cir. 2010) (\u201c[D]ifferent words used in the same statute should be assigned different meanings . . . .\u201d); see also In re K.J.L., 363 N.C. at 347-48, 677 S.E.2d at 838 (distinguishing between certain points at which the court has jurisdiction and actually exercising that jurisdiction); In re T.S., 178 N.C. App. 110, 115, 631 S.E.2d 19, 23 (stating that setting a case for hearing and sending notice of the hearing to the respondent does not \u201cconstitute [ ] the exercise of jurisdiction\u201d and is distinct from actually holding the hearing, which is the exercise of jurisdiction), disc. rev. denied, 360 N.C. 647, 637 S.E.2d 218 (2006), aff\u2019dper curiam, 361 N.C. 231, 641 S.E.2d 302 (2007).\nUnder the Juvenile Code so long as a trial court does not exercise its jurisdiction until after the mandate resolving the appeal has issued, that court may act on a termination motion filed during the appeal\u2019s pendency. In this case the trial court acted within the bounds of N.C.G.S. \u00a7 7B-1003 because it did not exercise jurisdiction over the termination motion until 12 March 2010, over two weeks after the mandate issued, when it denied respondents\u2019 motions to dismiss the termination motion, held the first termination hearing, and began the process of terminating respondents\u2019 parental rights. Further, in this case the cotut did not exercise jurisdiction until after the end of the fifteen-day period in which respondents could have filed a petition for discretionary review. N.C. R. App. P. 15(b). No stay was requested or issued to prevent enforcement of the Court of Appeals\u2019 decision.\nThis interpretation is consistent with the central purpose of the Juvenile Code. See Elec. Supply Co., 328 N.C. at 656, 403 S.E.2d at 294 (\u201cIn matters of statutory construction, our primary task is to ensure that the purpose of the legislature ... is accomplished.\u201d (citation omitted)). Interpretations of the Code are guided by \u201cthe fundamental principle underlying North Carolina\u2019s approach to controversies involving child neglect and custody[\u2014]that the best interest of the child, is the polar star.\u201d In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984). The Code itself reflects this goal in its statement of purpose by requiring that its provisions \u201cbe interpreted and construed so as . . . [t]o provide standards . . . for ensuring that the best interests of the juvenile are of paramount consideration by the corut.\u201d N.C.G.S. \u00a7 7B-100 (2011). Our holding serves that purpose by minimizing procedural delay that interferes with addressing the needs of the child when that delay is unnecessary to protect the rights of parents.\nIn particular, our decision today is consistent with the obligations placed on DSS by the Juvenile Code. N.C.G.S. \u00a7 7B-907(e) states that whenever \u201ca proceeding to terminate the parental rights of the juvenile\u2019s parents is necessary in order to perfect the permanent plan for the juvenile,\u201d DSS shall file a proceeding \u201cto terminate parental rights within 60 calendar days from the date of the permanency planning hearing unless the court makes written findings why\u201d that cannot be accomplished. Id. \u00a7 7B-907(e) (2011). Here, because the last permanency planning hearing was held on 8 May 2009, the statute intended that DSS would file a TPR motion within sixty calendar days after that date, which it did.\nImportantly, our interpretation of N.C.G.S. \u00a7 7B-1003 does not allow form to be elevated over substance. It is undisputed that the trial court would have had jurisdiction to terminate respondents\u2019 parental rights if the motion to terminate had been filed before the notice of appeal was filed. The notice of appeal would simply prevent the trial court from exercising jurisdiction during the pendency of the appeal. Once the appeal was decided the trial court could then exercise jurisdiction. In light of this, it would be incongruous for the mere timing of the TPR filing to determine whether the trial court has subject matter jurisdiction. The language of N.C.G.S. \u00a7 7B-1003 prevents such an illogical result by suspending only the exercise \u2014 not the possession \u2014 of jurisdiction while an appeal is pending.\nWithin the statutory scheme of the Juvenile Code, the trial court did not act without subject matter jurisdiction when it granted petitioner\u2019s motion to terminate respondents\u2019 parental rights. The trial court had jurisdiction at the time it acted because N.C.G.S. \u00a7 7B-1003 did not remove its jurisdiction during the appeal of the disposition order, but only limited its exercise during that interval. Because the trial court did not exercise jurisdiction during the pendency of the appeal, but waited to do so only after the Court of Appeals\u2019 mandate issued, the trial court did not violate N.C.G.S. \u00a7 7B-1003. Accordingly, as to the issue before us on certiorari, we affirm the decision of the Court of Appeals.\nAFFIRMED.\n. Though not binding on this Court, two Court of Appeals panels have interpreted N.C.G.S. \u00a7 7B-1003 to limit the trial court\u2019s power to make substantive changes to parental rights while an appeal is pending, rather than to limit the court\u2019s possession of jurisdiction or the parties\u2019 ability to act. See In re N.F., 200 N.C. App. 617, 687 S.E.2d 710, 2009 WL 3583819, at *2 (2009) (unpublished) (holding that the trial court acted inconsistently with N.C.G.S. \u00a7 7B-1003 by holding hearings on a termination of parental rights petition not because DSS filed the petition during pendency of the appeal but because the hearings were held before the mandate issued); In re K.L., 196 N.C. App. at 277, 279, 674 S.E.2d at 793, 794 (stating that N.C.G.S. \u00a7 7B-1003 \u201csets out the trial court\u2019s authority to enter orders pending appeal\u201d and \u201cprovides] that the trial court lacks jurisdiction to conduct TPR proceedings following an appeal\u201d (emphasis added)). Similarly, in In re P.P., 183 N.C. App. 423, 426, 645 S.E.2d 398, 400 (2007), the Court of Appeals noted that N.C.G.S. \u00a7 7B-1003 would not be violated when \u201cthe hearing on the petitions [to terminate] occurred after [the Court of Appeals\u2019] mandate had issued\u201d unless the results in that hearing were contrary to the result of the Court of Appeals\u2019 mandate. Though the ultimate petition for termination was filed after the mandate issued in In re P.P., the court\u2019s statement appears to be more broadly applicable to the meaning of N.C.G.S. \u00a7 7B-1003. That the General Assembly has failed to amend N.C.G.S. \u00a7 7B-1003 to state otherwise since these interpretations were issued may be taken as further evidence that the legislature intended only to limit the exercise of jurisdiction by the trial court pending appeal. See Young v. Woodall, 343 N.C. 459, 462-63, 471 S.E.2d 357, 359 (1996) (\u201cThe failure of a legislature to amend a statute which has been interpreted by a court is some evidence that the legislature approves of the court\u2019s interpretation.\u201d).\n. The trial court did enter two orders continuing the motion to terminate until after the appeal was resolved. These nonsubstantive orders were entered only to preserve the TPR filing DSS was allowed to make until the court was able to exercise jurisdiction again. This was not an exercise of jurisdiction in violation of the statute because it had no substantive effect on respondents\u2019 parental rights, and these procedural orders are not challenged here. Cf. In re T.S., 178 N.C. App. at 115, 631 S.E.2d at 23 (concluding that noticing a matter for hearing in and of itself does not \u201cconstitute] ] the exercise of jurisdiction\u201d).\n. For the purposes of this holding, it is immaterial whether the TPR proceedings are begun by a petition, or a motion in the cause. The first requirement placed on the trial court, in the case of a TPR petition, is to issue a summons to respondents. N.C.G.S. \u00a7 7B-1106(a) (2011). We have previously stated the issuance of a summons in a juvenile case is not an exercise of jurisdiction but \u201capprises the necessary parties that the trial court\u2019s subject matter jurisdiction has been invoked [by the pleadings] and that the court intends to exercise jurisdiction over the case.\u201d In re K.J.L., 363 N.C. at 347, 677 S.E.2d at 838 (emphasis added). Therefore, the court will not exercise jurisdiction here in violation of N.C.G.S. \u00a7 7B-1003 by issuing the summons, but will instead indicate its intention to proceed when it is able. Likewise, providing notice to the respondent when TPR proceedings are initiated by a motion in the cause does not require the court to exercise jurisdiction because N.C.G.S. \u00a7 7B-1106.1 places no burden on the court, instead requiring that notice be given by the movant. Thus, whether the TPR proceeding begins with a petition or a motion in the cause, the parties will receive notice without any exercise of jurisdiction by the trial court. Once notice has been given, all further requirements of Article 11 will be tolled until the power to exercise jurisdiction is returned to the trial court.\nIf the name or identity of the parent whose rights are to be terminated is unknown, N.C.G.S. \u00a7 7B-1105 requires the trial court to hold a hearing to identify that parent. N.C.G.S. \u00a7 7B-1003 suspends that very act while an appeal is pending, however. This Court has long recognized the principle that statutes dealing with the same subject matter must be construed in pari materia and reconciled, if possible. See, e.g., Elec. Supply Co., 328 N.C. at 656, 403 S.E.2d at 294 (citing Great S. Media, Inc. v. McDowell Cnty., 304 N.C. 427, 430-31, 284 S.E.2d 457, 461 (1981)). Applying that principle here leads us to conclude that even though N.C.G.S. \u00a7 7B-1105 requires the trial court to exercise jurisdiction by conducting a hearing within ten days after a triggering event, the time period set forth in that statute must be tolled if the statute is to be construed in conformity and reconciled with N.C.G.S. \u00a7 7B-1003. In contrast, the same analysis does not apply to the time limit mandated in N.C.G.S. \u00a7 7B-907(e) because that statute requires that the described action be taken by a party, not by the trial court. This statutory framework does not deprive the parent of notice because after the tolling period ends, the procedure set out in N.C.G.S. \u00a7 7B-1105 would be followed before terminating parental rights.", "type": "majority", "author": "NEWBY, Justice." }, { "text": "Justice EDMUNDS\ndissenting.\nI believe that the General Assembly intended to remove completely a trial court\u2019s subject matter jurisdiction over termination of parental rights (TPR) matters while an appeal in the underlying case involving the juvenile is pending, and that the pertinent statutes reflect that intent. Because the trial court here issued its order terminating respondents\u2019 parental rights in response to a TPR motion that was not filed until after respondent parents filed an appeal of the trial court\u2019s underlying custody order in the case, I would hold the TPR order is void for lack of subject matter jurisdiction and would reverse the Court of Appeals.\n\u201cWhen interpreting a statute, we ascertain the intent of the legislature, first by applying the statute\u2019s language and, if necessary, considering its legislative history and the circumstances of its enactment.\u201d Shaw v. U.S. Airways, Inc., 362 N.C. 457, 460, 665 S.E.2d 449, 451 (2008) (citations omitted). When the statutory language is ambiguous, we consider legislative history and the circumstances surrounding enactment of the statute. See id.\nThe majority argues that section 7B-1003(b) is unambiguous and its meaning plain, thereby avoiding the need to consider the relevant legislative history. From this plain meaning analysis, the majority creates an expansive notion of jurisdiction by using a dictionary definition of the word \u201cexercise\u201d to adopt a two-tier concept of subject matter jurisdiction in which a trial court may \u201chave\u201d jurisdiction to accept a motion in the cause or a petition that initiates a TPR action and to issue \u201cnon-substantive\u201d orders such as continuances, but may not \u201cexercise\u201d jurisdiction to take other actions. Thus, a trial court may acquire and have a form of dormant jurisdiction that blossoms into full jurisdiction only upon issuance of the mandate of the Court of Appeals. The majority cites no binding precedent for this notion and I can find none. I believe that this interpretation is inconsistent with the intent of the General Assembly and that the majority\u2019s dichotomy could have unforeseen and unforeseeable consequences to the jurisprudence of North Carolina.\nWhile I believe the phrase \u201cexercise jurisdiction\u201d in section 7B-1003(b) is at least arguably ambiguous, I also believe the circumstances surrounding the 2005 amendments to that statute demonstrate that the General Assembly intended to abrogate completely a trial court\u2019s jurisdiction over TPR matters during the pendency of an appeal, thus resolving any ambiguities. Prior to the amendments, this Court faced a similar question relating to child custody. In re R.T.W., 359 N.C. 539, 542, 614 S.E.2d 489, 491 (2005). In R.T.W., the trial court had entered a custody review order that the respondent parent appealed to the Court of Appeals.. Id. at 541, 614 S.E.2d at 490. While the appeal of the custody review order was pending, the county DSS moved to terminate the respondent\u2019s parental rights and the trial court entered a termination order before the Court of Appeals issued its decision. Id. at 541, 614 S.E.2d at 490-91. The Court of Appeals vacated the termination order, ruling that the trial court lacked jurisdiction to terminate parental rights while the appeal of the custody review order was pending. Id. at 541, 614 S.E.2d at 491.\nThis Court reversed. Id. at 540, 614 S.E.2d at 490. After reviewing the statutes then in effect, this Court stated that \u201cwe hold a trial court retains jurisdiction to terminate parental rights during the pendency of a custody order appeal in the same case,\u201d id. at 553, 614 S.E.2d at 498, and, more broadly, that \u201c[w]e hold the pending appeal of a custody order does not deprive a trial court of jurisdiction over termination proceedings,\u201d id. at 542, 614 S.E.2d at 491. Our opinion was issued on 1 July 2005.\nThe General Assembly\u2019s reaction was swift and its intent plain. Effective 1 October 2005, the General Assembly amended Article 10 (Modification and Enforcement of Dispositional Orders; Appeals) and Article 11 (Termination of Parental Rights) of Chapter 7B to revoke a trial court\u2019s jurisdiction over TPR matters generally during the pendency of an appeal. Act of Aug. 23, 2005, ch. 398, 2005 N.C. Sess. Laws 1455. Before the amendments, Articles 10 and 11 contained their own sections governing a trial court\u2019s continuing power to act regarding dispositional orders (Article 10) and TPR matters (Article 11) while appeals of those matters were pending in the appellate division. N.C.G.S. \u00a7\u00a7 7B-1003, -1101, -1113 (2003). If the legislature simply wanted to deny a trial court the power to \u201cexercise jurisdiction\u201d to terminate parental rights during the pendency of an appeal, as the majority suggests, it could have accomplished this result easily by amending the relevant sections of Articles 10 and 11. Instead, the General Assembly repealed section 7B-1113 outright while modifying the jurisdictional section in Article 10, section 7B-1003, to provide that, while a trial court could continue to exercise jurisdiction and hold hearings in matters concerning abuse, neglect, and dependency during the pendency of an appeal, the court was prohibited from taking action under Article 11. Id. \u00a7 7B-1003 (2009).\nIn addition, section 7B-1003(b)(2) preserves a trial court\u2019s ability to issue orders related to a juvenile\u2019s custody or placement so long as the order is in the juvenile\u2019s best interests, an authority trial courts already had prior to the 2005 amendments. While the 2005 amendments prevent trial courts from exercising their Article 11 jurisdiction during an appeal, the provisions of section 7B-1003(b)(2) ensure that a trial court can still issue orders related to the safety and best interests of the child even when acting under Article 11. By including subdivision (b)(2) in section 7B-1003, the General Assembly thus made allowance for this Court\u2019s concern in R.T.W. that divesting a trial court of jurisdiction would allow a parent to file serial appeals and stymie the statutory provisions which protect the best interests of the child. See In re R.T.W., 359 N.C. at 552, 614 S.E.2d at 497.\nIn my view, the General Assembly\u2019s wholesale reworking of the applicable statutes, undertaken in response to our holding in R.T.W., manifests an intent to remove in all respects a trial court\u2019s jurisdiction over TPR matters during the pendency of an appeal. Not only is this reading of section 7B-1003(b) consistent with the language of the statute and the events surrounding its modification, it acknowledges the General Assembly\u2019s prerogative to amend statutes in response to decisions of this Court. See, e.g., Rosero v. Blake, 357 N.C. 193, 199-205, 581 S.E.2d 41, 45-48 (2003) (describing the legislative reaction to this Court\u2019s opinion in Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965)), cert. denied, 540 U.S. 1177, 124 S. Ct. 1407, 158 L. Ed. 2d 78 (2004).\nThe implications of the majority\u2019s analysis are uncertain, and many unanswered questions remain in the field of juvenile law. For example, the majority opinion suggests that notice may be issued upon the filing of a TPR petition or motion in the cause while an appeal is pending. Will notice have to be reissued once the appellate court issues its mandate? If a respondent loses the appeal of a custody order in the Court of Appeals in a split decision and appeals as a matter of right to this Court, will the TPR action proceed in the trial court in the interval after the Court of Appeals issues its mandate and before the notice of appeal of right is filed? What \u201cnonsubstantive\u201d orders can the trial court issue during the pendency of the appeal, and what \u201csubstantive\u201d orders are forbidden?\nIn contrast, I believe that an interpretation of the statute to the effect that a trial court\u2019s subject matter jurisdiction could not be invoked during the pendency of an appeal would be consistent with the intent of the General Assembly while avoiding the uncertainties raised by the majority\u2019s holding. Indeed, the only purported glitch in such an interpretation, noted by petitioners in their briefs, is resolved in the statutes. Petitioners contend that a complete removal of jurisdiction from a trial court during the pendency of an appeal would force a DSS to ignore the requirement in section 7B-907(e) that the DSS director file a TPR petition within sixty days of a permanency planning hearing if termination is part of the permanent plan. However, section 7B-907(e) also allows a trial court to extend the sixty-day time period after it makes written findings explaining the delay. In such a case, the DSS director need only request that the trial court issue a written finding that, because of the pending appeal, the petition cannot be filed within the sixty days required by section 7B-907(e). The trial court\u2019s action then falls outside the jurisdictional scope of Article 11 and thus is permitted by section 7B-1003.\nFinally, while the majority limits its holding to matters arising under the Juvenile Code, I fear that its view of bifurcated jurisdiction may bleed into discussions of jurisdiction outside the context of TPR proceedings.\nThis case has lingered and I do not doubt the need for a rapid resolution. Nevertheless, this Court should not tinker unnecessarily with the mechanism of subject matter jurisdiction, nor should we disregard the unmistakable intent of the General Assembly. I respectfully dissent.\nChief Justice PARKER and Justice TIMMONS-GOODSON join in this dissenting opinion.", "type": "dissent", "author": "Justice EDMUNDS" }, { "text": "Justice TIMMONS-GOODSON\ndissenting.\nI agree fully with Justice Edmunds\u2019s well-reasoned dissent. I write separately out of concern that the majority rewrites several significant provisions of the Juvenile Code in an attempt to reconcile its interpretation of section 7B-1003. In so doing the majority raises more questions than it answers and does nothing to expedite termination proceedings in the best interest of the child.\nThe majority goes to great lengths to justify its conclusion that by using the phrase \u201cexercise jurisdiction\u201d in N.C.G.S. \u00a7 7B-1003, the legislature unambiguously intended to create a two-tier notion of subject matter jurisdiction. In that statute the legislature prohibited the trial court from \u201cexercising jurisdiction\u201d over termination of parental rights (\u201cTPR\u201d) cases during pendency of an appeal of a custody order. N.C.G.S. \u00a7 7B-1003 (2011). This novel notion of subject matter jurisdiction, which Justice Edmunds aptly critiques, conflicts with several statutes. For example, under our General Statutes, upon the filing of a TPR motion or petition pending appeal of a custody order, the respondent must file an answer within thirty days, id. \u00a7\u00a7 7B-1106, -1106.1 (2011), and the trial court must hold a TPR hearing within ninety days, id. \u00a7 7B-1109(a) (2011). Under the majority\u2019s view, how can the trial court hold TPR hearings within ninety days of the filing of a TPR motion or petition during pendency of an appeal when section 7B 1003(b) expressly prohibits the holding of hearings during that time? Further, how will a parent know that the Department of Social Services (\u201cDSS\u201d) has filed a petition to terminate parental rights when the trial court cannot exercise its jurisdiction by issuing a summons to the parent? In re J. T., 363 N.C. 1, 672 S.E.2d 17 (2009) (holding that issuance of a summons is an exercise of jurisdiction).\nIn an attempt to resolve these and other questions \u2014 questions that arise only because of the majority\u2019s interpretation of section 7B-1003\u2014 the majority rewrites several essential statutes. Buried in the fine print of footnote three, the majority makes the extraordinary assertion that by using the word \u201cexercise\u201d in section 7B 1003, the legislature intended that \u201call further requirements of Article 11 will be tolled until the power to exercise jurisdiction is returned to the trial court.\u201d\nThe consequences of this broad declaration are significant. First, the majority tolls the thirty-day answer periods required by sections 7B-1106 and 1106.1 until issuance of the Court of Appeals\u2019 mandate. Second, the majority tolls the requirement of section 7B-1109(a) that the trial court conduct a TPR hearing within ninety days of a TPR filing. Third, the majority tolls the requirement of section 7B-1105 that the trial court hold a hearing within ten days to determine the name or identity of a parent whose rights are to be terminated. The legislature gives no indication that it intended the requirements of these four statutes to be tolled. Moreover, if the legislature desired the sweeping result that \u201call... requirements of Article 11\u201d be tolled until issuance of the Court of Appeals\u2019 mandate, the legislature would have said so expressly. It is the role of the legislative branch, not the judicial branch, to revise statutes.\nThe majority opinion raises additional questions about elements critical to the administration of fair and orderly termination proceedings. The majority asserts in footnote three that a summons is not an exercise of jurisdiction and in doing so ignores our holding to the contrary just two years ago. In re J. T., 363 N.C. at 4-5, 672 S.E.2d at 19. In In re J.T., authored by Justice Newby, we determined that the issuance of a summons constitutes an invocation of subject matter jurisdiction in TPR cases. Id. at 4, 672 S.E.2d at 19 (\u201c[T]he trial court\u2019s subject matter jurisdiction was properly invoked upon the issuance of a summons.\u201d). Short of reversing In re J.T., I do not see how the majority could contend that issuance of a summons is anything other than an exercise of jurisdiction. At a minimum, the majority must address In re J.T.\nAnother unanswered question is how, once the Court of Appeals\u2019 mandate has issued, a parent is to be informed that the tolled thirty-day response clock has restarted. No provision of the Juvenile Code speaks to this situation because it was created today by the majority. Surely a parent\u2019s due process rights ensure that she will receive some sort of notice informing her that she can file an answer. If this notice comes in the form of a post-mandate summons, then does the response clock start upon issuance of the mandate or upon delivery of that summons? Further, if a post-mandate summons is to be issued, what information must it contain?\nThe foregoing problems and uncertainty created by the majority\u2019s holding underscore the importance of leaving for the legislature the task of revising interlaced statutes that comprise a holistic statutory framework. This is not the role of the judicial branch.\nIronically, the holding of the majority does not ensure that TPR hearings will occur sooner after resolution of a custody appeal than if the Court had held that a TPR filing does exercise the jurisdiction of the trial court. Under the majority view, a hearing will occur no sooner than thirty days after issuance of the Court of Appeals\u2019 mandate because of respondent\u2019s thirty-day answer period. N.C.G.S. \u00a7\u00a7 7B 1106, -1106.1. Under my view \u2014 that a TPR filing invokes the trial court\u2019s jurisdiction and is not permitted until issuance of the Court of Appeals\u2019 mandate\u2014 the hearing timeline is the same. DSS could file its TPR petition or motion on the day the mandate issues and the trial court could schedule a hearing for when the thirty-day response period ends. Thus, the majority\u2019s view does not benefit the juvenile by shortening the duration of the TPR process.\nIn my view, section 7B-1003 prohibits the filing of a TPR motion or petition during pendency of a custody appeal. Once the Court of Appeals\u2019 mandate for the custody appeal issues, all of the statutory timelines proceed as written, without modification. Section 7B-907(e) requires DSS to file a petition within sixty days \u201cfrom the date of the permanency planning hearing,\u201d but carves out an exception: the trial court can \u201cmake[ ] written findings why the petition cannot be filed within 60 days.\u201d Id. \u00a7 7B-907(e) (2011). Thus, if a custody order is appealed, the legislature allows the trial court to issue a written order exempting DSS from the sixty-day requirement. The trial court would then specify that DSS must file its TPR petition or motion within sixty days of issuance of the mandate. Id. This interpretation of section 7B-1003 is consistent with the existing provisions of the Juvenile Code and thus is preferable to the majority\u2019s view. Unlike today\u2019s holding, my view requires no judicial exercise of the legislative pen and maintains the current balance of protecting parental and juvenile rights. At the same time, it serves the best interests of the child.", "type": "dissent", "author": "Justice TIMMONS-GOODSON" } ], "attorneys": [ "Duncan B. McCormick and E. Marshall Woodall for petitionerappellee Harnett County Department of Social Services.", "Robin E. Strickland for respondent-appellant mother.", "Ryan McKaig for respondent-appellant father.", "Pamela Newell, Guardian ad Litem Appellate Counsel, on behalf of the minor child-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: M.I.W.\nNo. 148PA11\n(Filed 27 January 2012)\nAppeal and Error\u2014 juvenile matters \u2014 jurisdiction pending appeal\nIn a holding limited to the Juvenile Code, the trial court had subject matter jurisdiction to terminate parental rights where the motion to terminate was filed while an appeal was pending from a disposition giving custody to DSS, but the trial court acted on the motion to terminate only after the mandate resolving the appeal had been issued. N.C.G.S. \u00a7 7B-1003 prohibited only the exercise of jurisdiction before the mandate; issuance of the mandate by the appellate court returned the power to exercise subject matter jurisdiction to the trial court.\nJustice EDMUNDS dissenting.\nChief Justice Parker and Justice TIMMONS-GOODSON join in this dissenting opinion.\nJustice TIMMONS-GOODSON dissenting.\nOn writ of certiorari pursuant to N.C.G.S. \u00a7 7A-32(b) of a unanimous, unpublished decision of the Court of Appeals, \u2014 N.C. App. -, 708 S.E.2d 216 (2011), affirming an order terminating parental rights entered on 11 June 2010 by Judge Resso\u00f1 O. Faircloth in District Court, Harnett County. Heard in the Supreme Court on 14 November 2011.\nDuncan B. McCormick and E. Marshall Woodall for petitionerappellee Harnett County Department of Social Services.\nRobin E. Strickland for respondent-appellant mother.\nRyan McKaig for respondent-appellant father.\nPamela Newell, Guardian ad Litem Appellate Counsel, on behalf of the minor child-appellee." }, "file_name": "0374-01", "first_page_order": 412, "last_page_order": 427 }