Supreme Court - Digested Index
For the Year: 2021
Animals
Dog attack—landlord liability—prior knowledge of dangerous nature—summary judgment—A landlord was not liable for injuries caused in an attack by a dog owned by the landlord's tenants where there was no evidence that the landlord had any actual knowledge of prior attacks by the dog or otherwise knew the dog posed a danger. Although the tenants took certain precautions by keeping the dog on a chain and posting "Beware of Dog" signs, this evidence, standing alone, was not sufficient to demonstrate that the landlord had constructive notice that his tenant harbored a dog with dangerous propensities. Curlee v. Johnson, 377 N.C. 97 (2021)
Appeal and Error
Criminal law—constitutional violation—standard for determining prejudicial error—burden of proof—In a second-degree murder case arising out of an automobile wreck where the Court of Appeals held that the trial court erred by denying defendant's motion to suppress (which sought to exclude blood test results) but that–in light of defendant's high speed, reckless driving, and prior record–there remained substantial evidence to show malice to support a second-degree murder conviction and, therefore, defendant failed to show prejudicial error in the denial of the motion to suppress, the Court of Appeals erred by applying the wrong legal standard for determining prejudice and by wrongly placing the burden on defendant to show prejudice. Because a federal constitutional error occurred, the State had the burden of proving the error was harmless beyond a reasonable doubt and the case was remanded to the Court of Appeals for consideration in light of the correct standard of review. State v. Scott, 377 N.C. 199 (2021)
Preservation of issues—expert testimony—adequacy of objections—by operation of law—In a prosecution of a father and his daughter who were accused of killing the daughter's husband during an altercation, a challenge to a portion of expert testimony on bloodstain patterns (spatters which were never tested to confirm they were the victim's blood) was properly preserved for appellate review. Despite defendants' failure to object to the challenged portion, their objections to the expert's report containing the same conclusions and other portions of the expert testimony were sufficient to preserve the issue for review. Further, the issue was preserved by operation of law pursuant to N.C.G.S. § 15A-1446(d)(10) where the Court of Appeals determined that the blood spatter evidence was improperly admitted and that issue was not appealed to the Supreme Court. State v. Corbett, 376 N.C. 799 (2021)
Preservation of issues—failure to join related criminal offenses—basis for motion to dismiss—issue not raised before trial court—Defendant was not entitled to dismissal, pursuant to N.C.G.S. § 15A-926 (failure to join), of fourteen counts of felony child abuse that were brought after he successfully challenged on appeal his conviction for attempted first-degree murder. The statute did not apply because defendant had not been indicted on the additional charges at the time of his murder trial, and although he contended in this appeal that there were applicable exceptions, as stated in State v. Warren, 313 N.C. 254 (1985), he failed to properly preserve this issue by raising it before the trial court. Further, the Court of Appeals misapplied Warren by determining that it mandated rather than permitted dismissal. State v. Schalow, 379 N.C. 639 (2021)
Preservation of issues—waiver of appellate review—complex business case—distribution of punitive damages award—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), plaintiff waived appellate review of his argument that any distributions defendants receive following the LLCs' judicial dissolution should be calculated by excluding the punitive damages the LLCs received from defendants in the case, where plaintiff neither objected to the trial court's jury instructions nor proposed alternative instructions on how to distribute a punitive damages award to the LLCs. Chisum v. Campagna, 376 N.C. 680 (2021)
Review of unpreserved constitutional argument—lifetime satellite-based monitoring—no appeal filed—Rule 2—certiorari erroneously granted—After a trial court entered orders imposing lifetime satellite-based monitoring (SBM) upon defendant, and defendant neither objected at the SBM hearing nor filed a written notice of appeal of the SBM orders, the Court of Appeals' decision vacating the orders was reversed because it was error to allow defendant's petition for a writ of certiorari and to invoke Appellate Rule 2 to review defendant's unpreserved challenge to the orders. Defendant failed to demonstrate that a refusal to invoke Rule 2 would result in manifest injustice, and his petition did not show any merit where the trial court appropriately ordered lifetime SBM because of his status as an aggravated offender. State v. Ricks, 378 N.C. 737 (2021)
Rule 2—untimely pro se brief—termination of parental rights—In a termination of parental rights case, the Supreme Court exercised its authority under Appellate Rule 2 to consider a father's untimely pro se brief where his counsel filed a no-merit brief but failed to inform him of the exact deadline for submitting a pro se brief. In re J.M., 377 N.C. 298 (2021)
Termination of parental rights hearing—testimony excluded—no offer of proof made—In a termination of parental rights matter in which respondent-father's two-year-old son was placed with the child's maternal grandfather, respondent failed to make an offer of proof, as required by Evidence Rule 103(a)(2), to preserve for appeal his argument that the trial court erred by excluding respondent's testimony about the grandfather's allegedly inappropriate behaviors. Even if respondent had made an offer of proof, the trial court had wide discretion to consider which evidence, including hearsay, was relevant during disposition. Moreover, the same trial judge presided over the case since the beginning and previously heard concerns about the grandfather and determined they were without merit. In re M.Y.P., 378 N.C. 667 (2021)
Assault
Multiple charges—distinct interruption—beating—The State presented sufficient evidence that defendant committed two assaults where defendant beat his girlfriend in a trailer and then beat her in her car. The distinct interruption between the assault in the trailer and the assault in the car–when defendant ordered the victim to clean the bloody bed and help pack the car–allowed the reasonable conclusion that there were two distinct assaults. However, one of defendant's three assault convictions was vacated because there was insufficient evidence of two distinct assaults occurring in the trailer, where the beating in the trailer was one continuous assault, and different injuries or different methods of attack alone are insufficient evidence of multiple assaults. State v. Dew, 379 N.C. 64 (2021)
Attorneys
Sanctions—notice and opportunity to be heard—evidentiary support—receivership—The trial court's order denying a court-appointed receiver's request for authorization to pay an attorney's fees for work done for the receivership, when construed as an order imposing sanctions against the attorney for failure to obey a previous order dictating how invoices should be submitted to the court, was legally deficient where the trial court failed to provide notice and an opportunity to be heard to the attorney being sanctioned, and where the order's finding that the attorney had disobeyed the prior order was unsupported by the evidence. Bandy v. A Perfect Fit For You, Inc., 379 N.C. 1 (2021)
Child Abuse, Dependency, and Neglect
Adjudication of dependency—sibling died from suspected abuse—sufficiency of findings—The trial court properly adjudicated a child dependent upon sufficient evidence and findings that multiple experts reviewed the parents' explanation of the cause of fatal injuries to a sibling in the home and concluded the attributed cause could not have resulted in the injuries sustained by the sibling; that, because all the potential caregivers named by the parents believed the sibling died by accidental means, they could not provide a safe home for the child; and that respondent-mother herself could not care for the child based on her denial that the sibling died from abuse. In re A.W., 377 N.C. 238 (2021)
Adjudication of neglect—sibling died from suspected abuse—evidence and findings—The trial court properly adjudicated a child neglected upon sufficient evidence and findings that, after a sibling died in the home of suspected abuse, the parents coordinated their stories, provided an implausible explanation regarding the cause of the sibling's injuries, and planned to deceive the court about the nature of their relationship and to conceal the true cause of the sibling's injuries. The findings supported the court's determination that respondent-mother's home was an injurious environment where the child was at substantial risk of impairment. In re A.W., 377 N.C. 238 (2021)
Permanency planning hearing—ceasing reunification efforts—required findings—The trial court's permanency planning order ceasing reunification efforts with respondent-mother was supported by its unchallenged findings of fact, made in accordance with the requirements of N.C.G.S. § 7B-906.2(d), which detailed respondent's lack of progress in securing stable housing and transportation, abstaining from alcohol use, attending visitation regularly, and demonstrating her participation in substance abuse treatment and domestic violence counseling. In re H.A.J., 377 N.C. 43 (2021)
Permanency planning hearing—change in DSS recommendation—due process argument—notice—A respondent-mother was not materially prejudiced by the trial court's failure to continue a permanency planning review hearing after a department of social services and guardian ad litem requested a change to the permanent plan to cease reunification. Although respondent argued her due process rights were violated because she was not given sufficient notice of a new recommendation, respondent was necessarily on notice that the permanent plan could change at the hearing designated to review that plan, there was no requirement that she be given advance notice of a changed recommendation, and she failed to show how a continuance would have altered the result of the hearing. In re H.A.J., 377 N.C. 43 (2021)
Permanency planning order—findings and conclusion—sufficiency of evidence—The trial court's permanency planning order granting guardianship of the minor child to her maternal grandmother was affirmed where clear and convincing evidence supported the challenged findings of fact regarding respondent-father's lack of suitable and safe housing, substance abuse, and domestic violence. In turn, those findings supported the trial court's conclusion that respondent acted inconsistently with his constitutionally protected status as a parent. In re I.K., 377 N.C. 417 (2021)
Permanent plan—ceasing reunification efforts—notice—sufficiency of findings—In a consolidated adjudication and disposition and termination of parental rights proceeding, respondent-mother necessarily had sufficient notice that the permanent plan would be under review. The trial court's order ceasing reunification efforts between respondent-mother and her child was supported by sufficient evidence and findings that respondent-mother worked with respondent-father to conceal the cause of injuries sustained by a sibling in the home (which led to the sibling's death), that respondent-mother refused to acknowledge the sibling suffered abuse, and that the parents' proposed alternative placements were inappropriate because none of the potential caregivers believed the sibling was abused. In re A.W., 377 N.C. 238 (2021)
Permanent plan—ceasing reunification efforts—statutory requirements—sufficiency of findings—The trial court did not err by eliminating reunification from the permanent plan for three children where, although the court's order did not use the precise language found in N.C.G.S. § 7B-906.1 and 7B-906.2, its findings–which detailed the parents' lack of progress and minimal engagement with their case plans–addressed the substance of those statutes and supported its determination that the return of the children to their parents would be contrary to the children's health, safety, and general welfare and that there were no realistic prospects for reunification. With regard to the father, additional findings contained in the orders terminating the parents' rights to their children cured any deficiency in the permanency planning order. In re A.P.W., 378 N.C. 405 (2021)
Cities and Towns
City's authority to levy fees—session law amending city's charter—plain language analysis—In a case involving a challenge by residential subdivision developers (plaintiffs) to defendant-city's authority to levy water and wastewater connection fees for services to be furnished, the plain language of a session law amending the city's charter–which superseded prior session laws that had given a city board the authority to assess fees and charges for services and facilities to be furnished–stated that all powers of the board "shall become powers and duties of the City." This language was unambiguous and transferred the powers held by the board (including the authority to levy water and sewer fees for services to be furnished) to the city, and the simultaneous dissolution of the board by the same session law did not affect the transfer of the board's powers. Therefore, the trial court properly granted summary judgment to the city where there was no genuine issue of material fact regarding the city's authority to charge the challenged fees. JVC Enters., LLC v. City of Concord, 376 N.C. 782 (2021)
Class Actions
As superior form of adjudication—abuse of discretion analysis—In a class action lawsuit brought by former tenants of defendant's residential apartments alleging violations of the North Carolina Residential Rental Agreements Act and the North Carolina Debt Collection Act (NCDCA), where defendant sent letters to defaulting tenants threatening to collect eviction and complaint-filing fees before having filed a summary ejectment complaint, the trial court did not abuse its discretion in determining that a class action was superior to other adjudication methods. The court properly determined that statutory damages could be measured using objective, class-wide criteria (based on the tenants' common deprivation of rights under the NCDCA), and the court reasonably found that class members could be identified by administrative means. Further, any differences in statutory damages or attorneys' fees between the class members would not be "inextricably tied" to the alleged class-wide injury and, therefore, would not render the class action form inapt. McMillan v. Blue Ridge Cos., Inc., 379 N.C. 488 (2021)
Class certification—common injury—North Carolina Debt Collection Act—apartment tenants threatened with collection letters—In a class action lawsuit where former tenants of defendant's residential apartments alleged violations of the North Carolina Debt Collection Act (NCDCA), the trial court did not abuse its discretion in certifying a class of tenants to whom defendant had sent letters threatening to collect eviction and complaint-filing fees before having filed a summary ejectment complaint. The court properly defined the class as tenants who were "sent" letters rather than those who "received" them, because the injury that the letters allegedly caused did not result from individual tenants' subjective reactions to them, but rather from a common, statutory "informational injury" stemming from defendant's alleged violations of the NCDCA. Further, any damages could be shown by a class-wide theory of generalized injury where defendant used uniform procedures–including the same collection letter template–to contact the tenants. McMillan v. Blue Ridge Cos., Inc., 379 N.C. 488 (2021)
Class certification—common issues—North Carolina Debt Collection Act—apartment tenants threatened with eviction and complaint-filing fees—In a class action lawsuit brought by former tenants of defendant's residential apartments alleging violations of the North Carolina Residential Rental Agreements Act and the North Carolina Debt Collection Act, where defendant sent letters to defaulting tenants threatening to collect eviction and complaint-filing fees before having filed a summary ejectment complaint, the trial court did not abuse its discretion in certifying two classes (tenants who paid eviction fees and tenants who paid complaint-filing fees) where the court's findings of fact, though short, adequately described how defendant's procedures for sending the letters and assessing the fees were uniform for all the tenants and, therefore, supported the court's conclusion that common issues of fact or law predominated over any individual issues. McMillan v. Blue Ridge Cos., Inc., 379 N.C. 488 (2021)
Conspiracy
Jury instructions—conspirators—plain error analysis—no prejudice shown—In a trial for conspiracy to commit first-degree murder, where the trial court erred by instructing the jury that defendant could be found guilty if he conspired with "at least one other person" without naming the only co-conspirator listed in the conspiracy indictment, there was no plain error because there was no reasonable probability the jury would have reached a different result absent the error given the overwhelming evidence of defendant's guilt. The decision of the Court of Appeals reaching the opposite conclusion, without a prejudice analysis being conducted, was reversed. State v. Chavez, 378 N.C. 265 (2021)
Constitutional Law
Brady violation—materiality—additional prior convictions of prosecution witness—Defendant was not entitled to post-conviction relief (after being convicted and sentenced to death for first-degree murder) on his claim that the State committed a Brady violation by failing to turn over a complete criminal record of a prosecution witness prior to trial, because the omitted prior convictions were not material. The jury was already informed of the witness's prior convictions for more serious crimes, and, for the murder being prosecuted, that the witness had initially provided false statements to law enforcement and had been charged as an accessory after the fact. State v. Allen, 378 N.C. 286 (2021)
Courtroom restraints—issue raised in MAR—record insufficient—evidentiary hearing required—On defendant's post-conviction claim that his constitutional rights were violated when he was shackled during his trial for first-degree murder (for which he was convicted and sentenced to death), the trial court erred by summarily dismissing the issue as procedurally barred. Since the record was devoid of information establishing that defendant was actually restrained in the courtroom, that the shackles were visible to the jury, and that defense counsel was aware that the restraints were visible to the jury, an evidentiary hearing was required to develop the necessary factual foundation before the claim could be resolved. State v. Allen, 378 N.C. 286 (2021)
Due process—competency to stand trial—sua sponte competency hearing —In a case involving multiple drug offenses and habitual felon status, the trial court did not err by failing to sua sponte initiate an inquiry into defendant's competence at the time of trial where–although defendant had twice been determined to be incompetent–six months prior to trial the trial court, after interviewing defendant and his counsel and relying on a medical evaluation, determined defendant to be competent to stand trial. Because there was nothing in the record which occurred after that determination or before the end of the trial to raise a substantial doubt about defendant's continued competence, the trial court was entitled to rely on the correctness of the pre-trial competency determination and was not required to conduct an additional competency inquiry. State v. Allen, 377 N.C. 169 (2021)
Effective assistance of counsel—murder trial—sentencing phase—The trial court properly dismissed defendant's post-conviction ineffective assistance of counsel claims pertaining to the sentencing phase of his first-degree murder trial where, after the trial court conducted an evidentiary hearing, its findings were supported by evidence and in turn supported its conclusion that defense counsel's performance was not deficient and, even if it was, defendant could not demonstrate he suffered prejudice. State v. Allen, 378 N.C. 286 (2021)
Effective assistance of counsel—summary dismissal of claims—factual disputes—evidentiary hearing required—Where defendant's post-conviction claims that he received ineffective assistance of counsel in his trial for first-degree murder, for which defendant was convicted and sentenced to death, raised factual disputes, the trial court erred by summarily dismissing those claims because defendant presented facts that, if true, would entitle him to relief. Defendant presented evidence that his counsel's decision not to investigate the crime scene evidence, from which different interpretations could be drawn, was not a reasonable strategic choice, and that he was prejudiced by being deprived of the opportunity to rebut the main witness's account of how the victim was killed. The matter was remanded for an evidentiary hearing with instructions for the trial court, if it concluded counsel's performance was deficient, to consider how any deficiencies prejudiced defendant when considered both individually and cumulatively. State v. Allen, 378 N.C. 286 (2021)
Effective assistance of counsel—termination of parental rights—failure to show prejudice—Respondent-father was not entitled to relief from the trial court's order terminating his parental rights where he claimed to have received ineffective assistance of counsel. Respondent failed to show any prejudice resulting from counsel's allegedly deficient performance and there was nothing counsel could have done to overcome the undisputed evidence of neglect. In re N.B., 377 N.C. 349 (2021)
False and misleading testimony—State's witness—MAR claim—Defendant was not entitled to post-conviction relief (after being convicted and sentenced to death for first-degree murder) on his claim that the State violated his constitutional rights by knowingly presenting false testimony through the main prosecution witness, because even assuming the claim was not procedurally barred for having been raised on direct appeal, there was nothing in the record to show the State knew the witness's testimony was false. State v. Allen, 378 N.C. 286 (2021)
First Amendment—anti-threat statute—true threat—both subjective and objective intent required—In a prosecution for threatening to seriously injure or kill a court officer (N.C.G.S. § 14-16.7(a)), based on defendant's social media statements criticizing a district attorney's decision not to charge the parents of a deceased child, the speech could be criminalized only if it constituted a true threat, which is not constitutionally protected under the First Amendment. In order to prove the existence of a true threat, the State needed to establish not only that the speech was objectively threatening but also that defendant subjectively intended to communicate a threatening message. State v. Taylor, 379 N.C. 589 (2021)
First Amendment—anti-threat statute—true threat—sufficiency of the evidence—In a prosecution for threatening to seriously injure or kill a court officer (N.C.G.S. § 14-16.7(a)), the State presented substantial evidence from which a jury could find that defendant's social media statements criticizing a district attorney's decision not to charge the parents of a deceased child constituted a true threat–a necessary element rendering the statements ineligible for First Amendment protection, and which requires proof of objective and subjective intent. Defendant used the word "death" multiple times, wrote favorably of vigilante justice, and expressed a willingness to use firearms against members of the criminal justice system. Where factual questions remained for a jury to decide, the matter was remanded for a new trial. State v. Taylor, 379 N.C. 589 (2021)
North Carolina—general warrants—orders imposing satellite-based monitoring—Orders entered pursuant to the statutory satellite-based monitoring (SBM) program do not constitute general warrants, which are prohibited by Art. I, sec. 20 of the North Carolina constitution, and therefore do not violate the state constitution on that basis. State v. Hilton, 378 N.C. 692 (2021)
North Carolina—right to education—harassment by other students—board's deliberate indifference—sovereign immunity—Where plaintiff alleged that defendant-school board was deliberately indifferent to the continual harassment of her children by other students, she could bring a claim under the North Carolina Constitution because–as alleged–the indifference denied the children their constitutionally guaranteed right to a sound basic education pursuant to Article I, Section 15. Since plaintiff alleged a colorable constitutional claim for which no adequate state law remedy existed, sovereign immunity did not bar her claim and the trial court properly denied defendant's motion to dismiss. Deminski v. State Bd. of Educ., 377 N.C. 406 (2021)
North Carolina—standing—no "injury in fact" requirement—legal right arising from statute—In a case of first impression, the Supreme Court held that, unlike the federal constitution, the North Carolina Constitution does not impose an "injury in fact" requirement for standing, and therefore a committee to elect a political candidate had standing to seek statutory damages against a political action committee for running a television advertisement that allegedly violated a "stand by your ad" law, even though the candidate won his election. The Court further clarified that where a statute (such as the "stand by your ad" law) expressly confers a cause of action to a class of persons, entitling them to sue for infringement of a legal right arising from the statute, a plaintiff has standing to bring that cause of action so long as he or she belongs to that designated class of persons. Comm. to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558 (2021)
Right to silence—notice of intent to raise affirmative defense—preemptive impeachment by State—unconstitutional—Defendant's pretrial notice of intent to raise the affirmative defense of duress, given in a methamphetamine trafficking prosecution to comply with N.C.G.S. § 15A-905(c)(1), did not cause the forfeiture of her Fifth Amendment right to silence, and the State should not have been permitted to preemptively impeach her–by asking a police detective whether defendant made any statements about another man who had just been arrested when she handed over the drugs–during its case-in-chief when she had not testified at that point in the trial. State v. Shuler, 378 N.C. 337 (2021)
State and federal—freedom of speech—right to petition the government—public rezoning hearings—Where a land developer backed out of a deal to purchase property from a real estate company (plaintiff) based on statements made by the owners of a neighboring open-quarry mine (defendants) at local public rezoning hearings, the trial court properly dismissed plaintiff's action against defendants for tortious interference with a prospective economic advantage because defendants' statements constituted protected petitioning activity under the First Amendment of the U.S. Constitution and Article I, Section 12 of the North Carolina Constitution. The Supreme Court reversed the Court of Appeals' decision reversing the trial court's order granting dismissal. Cheryl Lloyd Humphrey Land Inv. Co., LLC v. Resco Prods., Inc., 377 N.C. 384 (2021)
Continuances
Request for two-hour continuance to take medication—failure to show error or prejudice—In a termination of parental rights hearing, the trial court did not abuse its discretion by denying respondent-father's request for a two-hour continuance to take his medication where respondent failed to show the denial of the motion was erroneous or that he was prejudiced by the denial of the motion. In re M.J.R.B., 377 N.C. 453 (2021)
Time to prepare for trial—constitutional adequacy—late notice of intent to introduce evidence—harmless error analysis—The trial court committed constitutional error by denying defendant's motion to continue where the State had disclosed on the eve of trial that it planned to use certain recorded jailhouse phone calls made by defendant, giving defendant constitutionally inadequate time to review and address the calls. The error was harmless beyond a reasonable doubt as to his first-degree murder conviction under the felony murder rule, because the conviction was based on the underlying felony of assault with a firearm on a government official–a general intent crime–and the State introduced the calls as rebuttal evidence to defendant's evidence of lack of specific intent. But as to defendant's conviction for robbery with a dangerous weapon–a specific intent crime–defendant was awarded a new trial because his trial counsel's ability to give an effective opening statement was materially impaired. State v. Johnson, 379 N.C. 629 (2021)
Contracts
Breach—conflicts in evidence—additional findings of fact required—remand appropriate—In an action for breach of contract (involving a tree company that had been contracted to mulch trees up to six to eight inches in diameter), the Court of Appeals appropriately remanded the matter to the trial court for additional findings of fact where the lower court's findings, upon which rested its conclusion that there was no breach of contract, did not resolve conflicts in the evidence regarding which of two methods the tree company used to measure the size of the trees. Carolina Mulching Co. v. Raleigh-Wilmington Invs. II, LLC, 378 N.C. 100 (2021)
Corporations
Individual claims—breach of fiduciary duty—constructive fraud—showing of injury—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the trial court properly dismissed plaintiff's individual claims for breach of fiduciary duty and constructive fraud where, although plaintiff alleged facts describing the specific steps defendants took to deprive him of his ownership interests in the LLCs, plaintiff failed to show he suffered a legally cognizable injury as a result of defendants' conduct. Chisum v. Campagna, 376 N.C. 680 (2021)
Judicial dissolution—appointment of receiver—sufficiency of evidence and findings—notice and opportunity to be heard—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the trial court did not err in ordering that two of the LLCs be judicially dissolved and a receiver appointed to oversee the process without first giving defendants the opportunity to buy plaintiff's membership interests. The record evidence and the court's findings of fact supported dissolution under clause (i) of N.C.G.S. § 57D-6-02(2) (allowing judicial dissolution where it is not practicable to conduct an LLC's business); the allegations in plaintiff's complaint, the evidence at trial, and the court's statement during jury deliberations that it would likely order dissolution gave defendants sufficient notice that judicial dissolution was an issue; and the trial afforded defendants ample opportunity to be heard on the issue. Chisum v. Campagna, 376 N.C. 680 (2021)
Merger—judicial appraisal—fair value of shares—additional interest payments—The Supreme Court rejected an argument by the dissenting shareholders in a merger transaction–who had initiated a judicial appraisal before the N.C. Business Court to determine whether they had been paid fair value for their shares–that they were entitled to additional interest payments pursuant to N.C.G.S. § 55-13-30(e). A fair reading of that provision necessarily included the definition of "interest" contained in N.C.G.S. § 55-13-01(6), and the dissenters' interpretation would have led to an absurd result. Reynolds Am. Inc. v. Third Motion Equities Master Fund Ltd., 379 N.C. 524 (2021)
Merger—judicial appraisal—fair value of shares—discretionary determination—In a judicial appraisal of the value of dissenting shareholders' shares in a tobacco company–initiated as the result of a merger with a larger international conglomerate–the N.C. Business Court did not abuse its discretion when it determined that the negotiated deal price constituted fair value as of the transaction date pursuant to N.C.G.S. § 55-13-01(5). The court's consideration of the deal price as evidence of fair value was proper where there was objective indicia that the deal was done at arm's length, and was only part of the court's thorough analysis, which included other customary and current valuation concepts and techniques as allowed by statute. Further, the court properly exercised its discretion in evidentiary matters when it took into account the tobacco company's evidence regarding an expert's adjusted unaffected stock price analysis, but not the dissenters' discounted cash flow analysis, which the court determined was unreliable. Reynolds Am. Inc. v. Third Motion Equities Master Fund Ltd., 379 N.C. 524 (2021)
Criminal Law
Defenses—voluntary intoxication—jury instructions—In a trial for felony breaking or entering a motor vehicle, misdemeanor larceny, and misdemeanor possession of stolen property, the trial court did not err by denying defendant's request for a jury instruction on voluntary intoxication where, although defendant appeared to be intoxicated and her actions were periodically unusual at the time of her arrest, there was no substantial evidence that she was utterly incapable of forming specific intent. Defendant did not slur her speech, was able to give biographical information, made appropriate responses to a law enforcement officer's questions, was able to walk under her own power and navigate a flight of stairs with her hands cuffed behind her back, and was able to follow directions. State v. Meader, 377 N.C. 157 (2021)
Joinder—of defendants—objection—preservation for appellate review—Defendant properly preserved for appellate review his claim that he should not have been tried jointly with another defendant because they had antagonistic defenses, where defendant objected to the joinder before trial, moved to sever during trial, renewed his motion to sever at the close of the State's evidence and at the close of all evidence, and finally moved again to sever after closing arguments. State v. Melvin, 377 N.C. 187 (2021)
Post-conviction relief—access to medical records—limited evidentiary hearing—dismissal of claim—The trial court properly dismissed defendant's post-conviction claim seeking relief (after being convicted of first-degree murder) for his counsel being denied access to certain prior treatment records of the main prosecution witness. The trial court's conclusion, made after a limited evidentiary hearing, that defendant could not demonstrate prejudice–because the records did not indicate the witness had a relevant mental health condition and they did not include evidence of substance abuse not already disclosed by the witness at trial–was supported by its findings of fact, which were in turn supported by evidence. State v. Allen, 378 N.C. 286 (2021)
Post-conviction relief—short-form indictment—first-degree murder—issue procedurally barred—Defendant's post-conviction claim that a short-form indictment was insufficient to confer jurisdiction on the trial court for his first-degree murder trial was procedurally barred where he raised the issue on direct appeal. State v. Allen, 378 N.C. 286 (2021)
Prosecutor's closing argument—factual misstatements—no objection—In a prosecution for possession of a firearm by a felon where a picture had been admitted into evidence showing defendant with face and chest tattoos, but the witnesses only described the shooter as having a face tattoo, the trial court did not abuse its discretion by failing to intervene ex mero motu when the prosecutor mistakenly stated several times in her closing argument–without objection from defendant–that the witnesses saw a chest tattoo on the shooter. Nothing suggested the misstatements were intentional and, in light of other evidence of defendant's appearance, they did not constitute an extreme or gross impropriety. State v. Parker, 377 N.C. 466 (2021)
Prosecutor's closing argument—improper statements—failure to object—prejudice requirement—In a trial for attempted first-degree murder and assault charges where defendant failed to object to the prosecutor's improper closing argument regarding his decision to plead not guilty, the trial court's failure to intervene ex mero motu was not reversible error because defendant was not prejudiced by the improper argument. The argument was a small part of the State's closing argument, the evidence of defendant's guilt was essentially uncontroverted, and the trial court instructed the jury that defendant's decision to plead not guilty could not be taken as evidence of his guilt. The improper argument, without a showing of prejudice, was not enough to grant defendant a new trial and the decision of the Court of Appeals was reversed and remanded for consideration of defendant's remaining arguments. State v. Goins, 377 N.C. 475 (2021)
Vindictive prosecution—after successful appeal—motivation for additional charges—application of N.C.G.S. § 15A-1335—The prosecutor's decision to pursue additional charges against defendant after defendant successfully appealed a conviction of attempted first-degree murder on constitutional grounds was not presumptively vindictive where the prosecutor's statements made clear that his motives in filing additional charges (for felony child abuse) were to punish defendant for his alleged criminal conduct and not in retaliation for defendant exercising his right to appeal and where there was no other evidence that the charging decision, which was presumptively lawful, was actually vindictive. Further, the Court of Appeals failed to consider the effect of N.C.G.S. § 15A-1335 when calculating the maximum potential period of incarceration for the current charges as compared with the prior charge, since the operation of the statute would prevent a significantly increased sentence for offenses based on the same conduct. State v. Schalow, 379 N.C. 639 (2021)
Waiver of jury trial—statutory inquiry—harmless error review—The trial court's failure to timely conduct an inquiry with defendant pursuant to N.C.G.S. § 15A-1201(d) to determine whether defendant fully understood and appreciated the consequences of his decision to waive his right to a jury trial was subject to harmless error review. Defendant could not demonstrate prejudice where the trial court belatedly conducted the statutory inquiry after the State rested its case, the record tended to show that defendant understood and appreciated his decision, and there was overwhelming evidence of defendant's guilt of the charged crime. State v. Hamer, 377 N.C. 502 (2021)
Damages and Remedies
Compensatory damages—identical awards against individual defendants—no fatal ambiguity in verdict—After a complex business trial against two defendants where the jury awarded compensatory damages to a limited liability company against each defendant on a derivative claim for constructive fraud, the trial court did not abuse its discretion in declining to amend the judgment because the verdict was not fatally ambiguous as to damages. Defendants were not held to be jointly and severally liable, and therefore could be found to each be independently liable, and although plaintiff's counsel told the jury during closing arguments that the trial court would prevent a double recovery, which defendants argued could have made the jury think its award would be split in half between the two defendants, juries are presumed to follow trial courts' instructions. In this case, both the instructions and the verdict sheet were clear and did not contain confusing language regarding the effect of any damage award. Chisum v. Campagna, 376 N.C. 680 (2021)
Constructive fraud—breach of fiduciary duty—proof of nominal damages—sufficient—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the trial court properly entered judgment in plaintiff's favor on his claims for breach of fiduciary duty and constructive fraud, which included an award of punitive damages, even though plaintiff presented no evidence that he suffered actual damages as a result of defendants' conduct. Under North Carolina law, a showing of nominal damages is sufficient to support claims for breach of fiduciary duty and constructive fraud. Chisum v. Campagna, 376 N.C. 680 (2021)
Punitive—sufficiency of pleading—willful or wanton conduct—In a wrongful death action filed against individual employees of a state university, the complaint contained sufficient allegations to put defendants on notice for punitive damages, based on willful and wanton conduct (N.C.G.S. § 1D-15(a)), where the allegations stated that defendants' negligent acts or omissions in failing to properly drain a chiller and refill it with antifreeze, particularly given warning signs posted on the chiller, could cause injury in the event the pipe froze and became pressurized, and that their conduct demonstrated a conscious disregard of the safety of others. Est. of Long v. Fowler, 378 N.C. 138 (2021)
Drugs
Possession with intent to sell or deliver—methamphetamine—sufficiency of evidence—totality of circumstances—The State presented sufficient evidence to convict defendant of possession with intent to sell or deliver methamphetamine where officers found in the center console of defendant's vehicle a large bag containing 6.51 grams of methamphetamine, several smaller bags of an untested white crystalline substance weighing 1.5 grams, and additional clear plastic baggies; defendant had just left a residence that was under surveillance for drug activity and had a meeting planned with a drug trafficker; the quantity of methamphetamine in defendant's possession was up to 13 times the amount typically purchased for personal use; and the officers also found a loaded syringe, a bag of new syringes, a baggie of cotton balls, and a hidden safe containing clear plastic baggies–even though there was no cash or other items typically associated with the sale of drugs. State v. Blagg, 377 N.C. 482 (2021)
Evidence
Hearsay—child witnesses—medical treatment exception—indices of reliability—In a prosecution of a father and his daughter who were accused of killing the daughter's husband during an altercation, the trial court erred by excluding statements made by the victim's two children during medical evaluations conducted a few days after the victim was killed. Objective circumstances, including that trained professionals explained to the children the importance of being truthful and that the evaluation was conducted in close proximity in time and space to a physical examination by a doctor, sufficiently demonstrated that the statements were made for the purpose of obtaining a medical diagnosis and met the reliability standards required by Evidence Rule 803(4). State v. Corbett, 376 N.C. 799 (2021)
Hearsay—child witnesses—residual hearsay exception—guarantees of trustworthiness—In a prosecution of a father and his daughter who were accused of killing the daughter's husband during an altercation, the trial court abused its discretion by excluding statements from the victim's two children made to a social worker because its findings–that the children did not have personal knowledge of their statements, that the children lacked motivation for telling the truth, and that the statements were specifically recanted–were overly broad and not fully supported by the evidence. Neither these findings, nor the record evidence, supported the court's conclusion that the children's statements were not sufficiently trustworthy to be admitted under the residual hearsay exception in Evidence Rule 803(4). State v. Corbett, 376 N.C. 799 (2021)
Indecent liberties trial—expert testimony—child victim—diagnosis of PTSD—credibility vouching—In a prosecution for taking indecent liberties with a child, there was no plain error in the admission of testimony from a licensed clinical social worker, qualified at trial as an expert witness in sexual abuse and pediatric counseling, who had evaluated the child victim and diagnosed her with post-traumatic stress disorder (PTSD). The expert's responses to questions about whether a PTSD diagnosis could be related to domestic violence or sexual abuse, and whether the child victim had experienced any traumas that required therapy, did not constitute impermissible vouching for the child victim's credibility because the expert did not definitively state the victim had been sexually abused or detail which traumas, if any, she had experienced. State v. Betts, 377 N.C. 519 (2021)
Indecent liberties trial—expert testimony—use of word "disclose" in reference to child victim's statements—credibility vouching—In a prosecution for taking indecent liberties with a child, there was no plain error in the use by multiple witnesses of the word "disclose" to describe the child victim's recounting of defendant's conduct against her which resulted in criminal charges. The term, by itself, did not give rise to impermissible vouching of the child victim's credibility and was therefore admissible, and defendant was not prejudiced by its use given the substantial evidence that defendant inappropriately touched the victim. State v. Betts, 377 N.C. 519 (2021)
Indecent liberties trial—past incidents of domestic violence—relevance—probative value—In a prosecution for taking indecent liberties with a child, there was no plain error in the admission of testimony regarding defendant's past incidents of domestic violence against the child victim and her mother, where the evidence was relevant to explain why the victim was afraid of defendant and delayed reporting allegations of sexual abuse perpetrated against her by him, to provide context for the victim having been diagnosed with post-traumatic stress disorder, and to aid the jury in assessing the victim's credibility. State v. Betts, 377 N.C. 519 (2021)
Inferences running backward—sale of real property—water intrusion problems—inspection after closing—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the Court of Appeals did not violate any prohibition against relying upon "inferences running backwards" when, in partially reversing the trial court's order granting summary judgment for defendants, it relied upon the testimony of a general contractor concerning his discovery of previous water damage during his inspection three months after the closing, where a jury could properly determine that the damage existed at the time of the closing. Cummings v. Carroll, 379 N.C. 347 (2021)
Murder trial—one defendant's testimony—co-defendant's out-of-court statement—non-hearsay—In a prosecution of a father and his daughter who were accused of killing the daughter's husband during an altercation, the trial court erred by excluding testimony by the father that he heard his daughter say "Don't hurt my dad" during the altercation, because the statement did not constitute hearsay where it was offered not to prove the truth of the matter asserted, but to illustrate the father's state of mind, and was relevant to whether his subjective fear of the victim was reasonable for purposes of his claims of self-defense and defense of another. State v. Corbett, 376 N.C. 799 (2021)
Fiduciary Relationship
Breach of fiduciary duty—buyer's real estate agent—material information—reasonable diligence—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers failed to present a genuine issue of material fact as to whether their realtors breached their fiduciary duty by failing to procure, on their own initiative, maintenance records for the home and by hiring the licensed home inspector who failed to discover the home's water intrusion problems. Cummings v. Carroll, 379 N.C. 347 (2021)
Fraud
Charter school—receipt of excess state funds—N.C. False Claims Act—pleading—particularity—objective falsehood—The State adequately pled claims under the N.C. False Claims Act against a charter school and its CEO (defendants), pursuant to Civil Procedure Rule 9(b)'s particularity requirement, where its complaint alleged that the CEO reported an inflated student enrollment estimate to the Department of Public Instruction, the school received over $300,000 in excess state funds as a result of the allegedly false representation, and that the State was seeking to recoup this amount. Moreover, by alleging that defendants "knew or should have known" when they applied for state funds that they could not reach their reported enrollment estimate and that the school would probably close before the end of the year (due to financial struggles the State was unaware of), the State adequately pled that defendants had made an objective falsehood. State v. Kinston Charter Acad., 379 N.C. 560 (2021)
Constructive—breach of fiduciary duty—jury verdicts—not fatally inconsistent—consideration of different time periods—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the trial court did not err by allowing the jury to find one of the defendants liable for constructive fraud but not liable for breach of fiduciary duty. Although elements of the two claims overlap (namely, a breach of a relationship of trust and confidence), different statutes of limitations apply to each claim, and therefore the jury–evaluating defendant's conduct over two different periods of time–could find that defendant's actions satisfied those elements within the ten-year limitations period for constructive fraud but not within the three-year limitations period for breach of fiduciary duty. Chisum v. Campagna, 376 N.C. 680 (2021)
Constructive—jury instruction—no reference to rebuttable presumption—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the trial court did not err by declining to give defendants' requested jury instruction that a finding that defendants had acted openly, fairly, and honestly in their dealings with the LLCs would defeat plaintiff's constructive fraud claim. The requested instruction did not accurately state the applicable law because it did not explain that, even if evidence of defendants' open, fair, and honest conduct sufficed to rebut the presumption of constructive fraud, plaintiff could still be entitled to recovery if the jury found proof of actual fraud. Chisum v. Campagna, 376 N.C. 680 (2021)
Inducement—sale of real property—water intrusion problems—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' fraud-related claims against the sellers and the sellers' realtor (defendants) presented genuine issues of material fact as to whether defendants reasonably relied upon the work of a painter to repair a leak, and whether the buyers reasonably relied upon their home inspector's report noting no significant water intrusion issues. Cummings v. Carroll, 379 N.C. 347 (2021)
Gambling
Retail customer rewards program—electronic games—section 14-306.4—game of chance versus game of skill—In a declaratory judgment action brought by a company selling discount goods, where the company ran a rewards program through which customers could earn cash prizes by playing two electronic games, the trial court correctly determined that the program constituted an unlawful sweepstakes under N.C.G.S. § 14-306.4, which prohibits the operation of electronic gaming machines that allow users the opportunity to win prizes through games based on chance rather than "skill or dexterity." Although the second game required some skill and dexterity, the amount of cash customers could win by playing it depended on how many points they won when playing the first game, which was entirely chance-driven. The Supreme Court affirmed (as modified) the Court of Appeals' decision upholding the trial court's ruling on this matter. Crazie Overstock Promotions, LLC v. State of North Carolina, 377 N.C. 391 (2021)
Homicide
Evidentiary errors—prejudice—new trial—In a prosecution of a father and his daughter for the unlawful killing of the daughter's husband during an altercation, where the trial court committed multiple evidentiary errors, defendants were entitled to a new trial because they were deprived of an opportunity to fully present their claims of self-defense and defense of another. Defendants were primarily prejudiced by the court's exclusion of statements made by the victim's children, which would have corroborated defendants' version of events and provided context, and there was a reasonable possibility that the admission of those statements would have resulted in a different outcome at trial. State v. Corbett, 376 N.C. 799 (2021)
Jury instructions—self-defense—request for modification—prejudice analysis—Even assuming the trial court erred by declining to give defendant's requested modified self-defense instruction in his trial for murder–that defendant must have believed it necessary "to use deadly force" against the victim, rather than "to kill" the victim–defendant failed to show that the alleged error was prejudicial. Under either instruction, the jury would have needed to find that defendant's belief was reasonable and that he did not use excessive force when he stabbed the victim, and uncontradicted evidence strongly suggested that defendant's use of deadly force was excessive and not reasonable. State v. Leaks, 379 N.C. 57 (2021)
Murder by starvation—elements—malice—"starvation" defined—In a prosecution for first-degree murder by starvation (N.C.G.S. § 14-17(a)), where defendant's four-year-old stepson died after defendant fed him no more than once a day for the last few months of his life, the State was not required to make a separate showing that defendant acted with malice because the malice required to prove first-degree murder is inherent in the act of starving someone. For purposes of section 14-17(a), "starvation" is the deprivation of food or liquids necessary to the nourishment of the human body and is not limited to situations involving the complete denial of all food and hydration. State v. Cheeks, 377 N.C. 528 (2021)
Murder by starvation—proximate cause—sufficiency of evidence—In a prosecution for first-degree murder by starvation (N.C.G.S. § 14-17(a)), there was sufficient evidence that starvation proximately caused the death of defendant's four-year-old stepson where a medical examiner's initial autopsy identified malnutrition and dehydration as the immediate causes of death. Although the examiner's amended autopsy report attributed the boy's death to strangulation, this opinion rested exclusively on defendant's claim that he choked his stepson, which he retracted at trial and which the trial court found to lack credibility. Additionally, other evidence–including accounts of the boy's emaciated, doll-like corpse–showed that defendant failed to feed his stepson more than once a day or to seek medical attention for him even though he was visibly hungry, thin, and malnourished in the months leading up to his death. State v. Cheeks, 377 N.C. 528 (2021)
Immunity
Public official—N.C. False Claims Act—CEO of charter school—motion to dismiss—In the State's lawsuit against a charter school and its CEO for violations of the N.C. False Claims Act, the trial court properly denied the CEO's motion to dismiss under Rule 12(b)(6) where the record contained insufficient information on whether public official immunity protected the CEO from suit and, even if the CEO was a public official who could claim such immunity, the State's complaint included sufficient allegations to preclude dismissal, including that the CEO knowingly made "false or fraudulent statements in connection with receiving state funds." State v. Kinston Charter Acad., 379 N.C. 560 (2021)
Sovereign—individual versus official capacity—dismissal improper—In a wrongful death action filed against individual employees of a state university, the trial court erred by dismissing the action after determining that the employees were entitled to sovereign immunity based on their status as state employees, since the employees were sued in their individual capacities, even if their alleged negligent acts were performed in the scope of their employment. Est. of Long v. Fowler, 378 N.C. 138 (2021)
Sovereign—N.C. False Claims Act—charter school—not an available defense—In the State's lawsuit against a charter school and its CEO for violations of the N.C. False Claims Act, where the school received an overpayment of state funds based on its overestimate of student enrollment, the Supreme Court overturned the Court of Appeals' ruling that sovereign immunity protected the school from suit. Although the Charter School Act provides that a state-approved charter school "shall be a public school" within its local school administrative unit, the General Assembly did not categorize charter schools as state agencies or instrumentalities under the Act, but rather as independent entities run by private non-profit corporations. Further, based on the similarities between local school boards and the boards of directors of charter schools, the Court concluded that charter schools are entitled to, at most, governmental rather than sovereign immunity. State v. Kinston Charter Acad., 379 N.C. 560 (2021)
Indictment and Information
Negligent child abuse inflicting serious injury—factual allegations—mere surplusage—consistent with trial court's determinations—In a prosecution for negligent child abuse inflicting serious injury, where the indictment alleged that defendant failed to provide his four-year-old stepson with medical treatment for over one year, despite the child having a disability, and failed to provide proper nutrition and medicine, resulting in weight loss and failure to thrive, the trial court did not err in convicting defendant on grounds that the stepson suffered from severe diaper rash, bedsores, and pressure ulcers under defendant's care. The indictment alleged all essential elements of the offense and any specific factual allegations were mere surplusage. At any rate, no fatal variance existed between the indictment and the court's grounds for convicting defendant, where the court's factual determinations were consistent with the indictment's allegations that defendant deprived the child of medical treatment. State v. Cheeks, 377 N.C. 528 (2021)
Judges
Discipline—sexual misconduct—material misrepresentations—The Supreme Court ordered that a retired district court chief judge be censured for conduct in violation of Canons 1, 2A, 2B, 3A(4), and 3A(5) of the N.C. Code of Judicial Conduct, and pursuant to N.C.G.S. § 7A-376(b) for conduct prejudicial to the administration of justice that brings the judicial office into disrepute, where the judge engaged in sexual misconduct with numerous women, failed to diligently discharge his judicial duties by constantly using his cell phone while on the bench and frequently continuing cases in order to meet with women, misused the prestige of his office, made material misrepresentations to law enforcement during an investigation, and made material misrepresentations to the Judicial Standards Commission during its investigation. The Court considered mitigating factors, including the judge's recent diagnosis with frontotemporal dementia, his prior years of distinguished service, and his agreement not to serve as a judge again. In re Pool, 377 N.C. 442 (2021)
Impermissible expression of opinion—in presence of jury—prejudice analysis—jury instructions and evidence—In a trial for assault on a female, even assuming that the trial court violated N.C.G.S. §§ 15A-1222 and 15A-1232 by improperly expressing its opinion during jury instructions that defendant assaulted the victim, defendant could not show prejudice where the trial court's instructions as a whole made clear that only the jury could make the factual determination of whether defendant assaulted the victim and where the State's evidence satisfied the elements of the crime. State v. Austin, 378 N.C. 272 (2021)
Impermissible expression of opinion—in presence of jury—preservation—standard of review—Defendant's argument that the trial court improperly expressed an opinion on the evidence in violation of N.C.G.S. §§ 15A-1222 and 15A-1232 while instructing the jury was preserved by operation of law due to the mandatory nature of the statutory prohibitions, and thus the alleged error was subject to review for prejudicial error pursuant to N.C.G.S. § 15A-1443(a). State v. Austin, 378 N.C. 272 (2021)
Misconduct—serving as executor for non-relatives' estates—failure to report substantial extra-judicial income—suspension—The Supreme Court suspended a district court judge from office for one month where he violated Canons 1, 2A, 5D, and 6C of the Code of Judicial Conduct by serving as executor for the estates of two former clients who were not members of his family, collecting substantial fees as a result, and failing to properly report that extra-judicial income. The Court held that the judge's conduct constituted willful misconduct that was prejudicial to the administration of justice and that brought the judicial office into disrepute. In re Brooks, 377 N.C. 146 (2021)
Jurisdiction
Personal—minimum contacts—cell phone calls—no knowledge recipient in N.C.—Defendant lacked the requisite minimum contacts with the state of North Carolina to be subject to the exercise of personal jurisdiction in a domestic violence protection order (DVPO) proceeding where defendant, who had previously been in a romantic relationship with plaintiff outside of North Carolina, called plaintiff's cell phone many times on the evening that plaintiff had moved from South Carolina to North Carolina–when there was no evidence that defendant knew or had reason to know that plaintiff was in North Carolina. Because he did not know plaintiff was in North Carolina, defendant's phone calls did not constitute purposeful availment of the benefits and protections of the laws of North Carolina. In addition, plaintiff's argument that the "status exception" doctrine allowed exercise of personal jurisdiction was rejected. Mucha v. Wagner, 378 N.C. 167 (2021)
Landlord and Tenant
Public housing—notice of lease termination—federal requirement to state specific grounds—In a summary ejectment case, plaintiff public housing authority's notice of lease termination to defendant tenant failed to "state specific grounds for termination," pursuant to 24 C.F.R. § 966.4 (l)(3)(ii), where the notice quoted the lease provision defendant allegedly violated but neither identified specific conduct by defendant that violated the provision nor clearly identified the factors forming the basis for terminating the lease. Consequently, the Supreme Court reversed the Court of Appeals' decision holding that the notice complied with federal regulations. Raleigh Hous. Auth. v. Winston, 376 N.C. 790 (2021)
Motor Vehicles
Insurance—underinsured motorist coverage—applicable limit—interpolicy stacking—A North Carolina resident injured in an out-of-state car accident as a passenger in a car owned and operated by a Tennessee resident and insured by a Tennessee insurer, where that driver's negligence caused the accident, was entitled to collect underinsured motor vehicle (UIM) coverage benefits from her North Carolina insurer. Based on North Carolina law allowing interpolicy stacking when calculating applicable policy limits (pursuant to N.C.G.S. § 20-279.21(b)(4)), the Tennessee policy's UIM coverage limit constituted an "applicable limit" and, because the stacked UIM coverage limits exceeded the sum of the applicable bodily injury coverage limits, the car owned by the Tennessee resident was an underinsured motor vehicle as defined in North Carolina. N.C. Farm Bureau Mut. Ins. Co. v. Lunsford, 378 N.C. 181 (2021)
Insurance—underinsured motorist coverage—multiple claimants—limits of liability—Where an automobile accident caused by a drunk driver killed a woman and injured her husband, the total amount of underinsured motorist coverage available under the deceased woman's policy for her estate and her husband was limited by the per-accident limit, and the total amount of coverage available to each individual claimant was limited by the per-person limit. The Court of Appeals erred in applying N.C. Farm Bureau Mut. Ins. Co., Inc. v. Gurley, 139 N.C. App. 178 (2000), such that the individual claimants would have received payments exceeding the policy's per-person limits. N.C. Farm Bureau Mut. Ins. Co., Inc. v. Dana, 379 N.C. 502 (2021)
Native Americans
Indian Child Welfare Act—termination of parental rights order—failure to make proper inquiry—Where the trial court's order terminating a mother's parental rights to her child did not address whether it made the required inquiry, pursuant to 25 C.F.R. § 23.107(a), regarding whether the child was an Indian child as defined by the Indian Child Welfare Act, and the inquiry did not appear in the record, the matter was remanded for compliance with the Act. In re A.L., 378 N.C. 396 (2021)
Indian Child Welfare Act—termination of parental rights—inquiry required—In a termination of parental rights case, the trial court erred by conducting a hearing without complying with the inquiry requirements of the Indian Child Welfare Act and related federal regulations. The court was directed on remand to ensure compliance with the Act. In re M.L.B., 377 N.C. 335 (2021)
Indian Child Welfare Act—tribal notice requirements—post-termination of parental rights documentation—noncompliance cured—Where the trial court terminated respondent-mother's parental rights to her son without fully complying with the notice requirements of the Indian Child Welfare Act (ICWA), but the court held post-termination proceedings and made detailed findings of fact–regarding the social services agency's due diligence in confirming the child's non-eligibility status with numerous Indian tribes and seeking assistance from the federal Bureau of Indian Affairs for a non-responsive tribe–before concluding that the minor child was not an Indian child under ICWA, the trial court cured its initial noncompliance. In re D.J., 378 N.C. 565 (2021)
Negligence
Economic loss rule—sale of real property—disclosure statement—water damage—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' claims against the selling parties were not barred by the economic loss rule where the claims–for negligent misrepresentation, fraud, and negligence–rested upon allegations that the selling parties had failed to disclose the existence of a long history of water intrusion problems and had unreasonably relied upon a painter's assurances that he had fully repaired the problems. The disclosure statement upon which the buyers' claims relied was not incorporated into the purchase contract and therefore could not serve as the basis for application of the economic loss rule. Cummings v. Carroll, 379 N.C. 347 (2021)
Negligent misrepresentation—sale of real property—water intrusion problems—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' negligent misrepresentation claims against the sellers presented genuine issues of material fact as to whether the sellers reasonably relied upon the work of a painter to repair a leak when they represented in the disclosure statement that they did not know of any water intrusion problems, and whether the buyers reasonably relied upon the disclosure statement in light of their home inspector's report noting no significant water intrusion issues. Cummings v. Carroll, 379 N.C. 347 (2021)
Sale of real property—duty of realtor to disclose—material facts—water intrusion problems—In an action by buyers of a beach house to recover damages after discovering severe water damage that appeared to have been intentionally concealed, the buyers' negligence claims against the sellers' realtor and real estate company (defendants) presented a genuine issue of material fact as to whether defendants had a duty to disclose the history of water intrusion into the house, where the realtor knew of the previous water intrusion, hired a painter to repair the source of a leak, and received equivocal assurances from the painter that he had located and fixed the leak. Cummings v. Carroll, 379 N.C. 347 (2021)
Sufficiency of pleading—proximate cause—burst pipes—In a wrongful death action filed against individual employees of a state university, the complaint adequately pled proximate cause through allegations that the employees knew or should have known, given warning signs posted outside a chiller, that their negligent acts in failing to properly drain the chiller and refill it with antifreeze could cause injury in the event the pipe froze and became pressurized. Therefore, the trial court improperly dismissed the action for failure to state a claim. Est. of Long v. Fowler, 378 N.C. 138 (2021)
Obstruction of Justice
Felony obstruction of justice—deceit and intent to defraud—sufficiency of the evidence—In a case involving the sexual abuse of a child by the child's adoptive father where defendant (the child's mother) engaged in acts to obstruct the abuse investigation by denying investigators access to the child, the record contained sufficient evidence of deceit and intent to defraud to support defendant's conviction of felonious obstruction of justice. The evidence, in the light most favorable to the State, showed defendant knew the child's accusations against her husband were probably true–and later discovered him having sex with the child– and had motives other than a desire for truthfulness in seeking to interfere with the investigation. State v. Ditenhafer, 376 N.C. 846 (2021)
Pretrial Proceedings
Objection to class certification—after summary judgment granted—waived —In an action filed against a town (defendant), where defendant consented to and joined in plaintiff's motion for continuance, which indicated that the parties had agreed to file cross-motions for summary judgment first and then address class certification if the matter was not resolved during the summary judgment stage, defendant waived any objection it may have had to the trial court granting plaintiff's motion for class certification after it had granted plaintiff's summary judgment motion. Plantation Bldg. of Wilmington, Inc. v. Town of Leland, 379 N.C. 55 (2021)
Public Records
North Carolina Railroad Company—private company—State sole shareholder—not subject to Public Records Act—The North Carolina Railroad Company–a private company whose sole shareholder was the State of North Carolina and which was organized and operated for the benefit of the public–was not an agency or subdivision of the North Carolina government subject to the Public Records Act. Although, among other things, the State was the company's sole shareholder, the State selected the company's board members, and the State would receive the company's assets in the event of the company's dissolution, nonetheless the General Assembly indicated its intent in relevant legislation that the company should not be considered an entity of the State, and decisions of other State entities also supported this conclusion. Furthermore, the company consistently maintained its separate corporate identity and made decisions independently, demonstrating that the State's exercise of authority over the company was in its capacity as shareholder rather than as sovereign. S. Env't Law Ctr. v. N.C. Railroad Co., 378 N.C. 202 (2021)
Real Property
Foreclosure sale—deficient service—grossly inadequate sale price—good faith purchasers for value—In a case involving a non-judicial foreclosure based on a claim of lien for unpaid homeowners association fees (in the amount of $204.75), the trial court did not abuse its discretion when it concluded that two purchasers were not entitled to good faith purchaser for value status or protections allowed by N.C.G.S. § 1-108, because the initial purchaser paid a grossly inadequate price ($2,650.22 for a house that was sold to the second purchaser for $150,000) and there was evidence showing that both purchasers, who had a history of dealing in foreclosed properties with each other, had reason to be on notice that the homeowners had not received adequate notice of the foreclosure proceeding. The matter was remanded for the trial court to consider whether an award of restitution pursuant to section 1-108 would be appropriate. In re Foreclosure of George, 377 N.C. 129 (2021)
Receivership
Attorney fees—authorization—denial—impermissible basis—The trial court abused its discretion in denying a court-appointed receiver's request for authorization to pay an attorney's fees for work performed for the receivership, where the sole basis of the denial was the receiver's and the attorney's failure to obey the trial court's prior order concerning how invoices should be submitted to the court. Bandy v. A Perfect Fit For You, Inc., 379 N.C. 1 (2021)
Attorney fees—authorization—denial—sufficiency of findings—After the trial court denied a court-appointed receiver's request for authorization to pay outside counsel for certain work performed on behalf of the receivership, the trial court erred by denying the receiver's requests for authorization to pay outside counsel for work performed in prosecuting the appeal of that order, where the trial court's denial was based solely on the finding that the fees incurred for the appeal would diminish the receivership's assets. Bandy v. A Perfect Fit For You, Inc., 379 N.C. 1 (2021)
Reformation of Instruments
Admissions—attempt to contradict by affidavit—summary judgment—In an action by plaintiff bank for reformation of a deed based on mutual mistake, defendant property owner could not use her affidavit to contradict her binding admissions and thereby create an issue of material fact as to the parties' intent for the deed of trust to secure repayment of the promissory note executed during a refinance. Wells Fargo Bank, N.A. v. Stocks, 378 N.C. 342 (2021)
Satellite-Based Monitoring
Lifetime—reasonableness balancing test—aggravated offenders—The imposition of lifetime satellite-based monitoring (SBM) on defendant after the end of his post-release supervision was not an unconstitutional search in violation of the Fourth Amendment because defendant had been convicted of first-degree statutory rape and first-degree statutory sexual offense, making him an aggravated offender as defined by N.C.G.S. § 14-208.6(1a). Lifetime SBM as applied to aggravated offenders is reasonable in light of the State's paramount interest in protecting the public (particularly children), the SBM program's efficacy as a deterrent for recidivism, and the minimal nature of the intrusion required by SBM monitoring given the diminished expectation of privacy by aggravated offenders. State v. Hilton, 378 N.C. 692 (2021)
Lifetime—reasonableness—imposition after lengthy term of imprisonment—aggravated offenders—The imposition of lifetime satellite-based monitoring (SBM) on defendant upon the completion of his sentence for kidnapping, robbery with a dangerous weapon, and rape (for which he received an active sentence of thirty to forty-three years) did not violate defendant's constitutional right to be free from unreasonable searches, where the legitimate and compelling governmental interest in preventing and prosecuting future crimes of sex offenders outweighed the narrowly tailored intrusion into defendant's expectation of privacy. State v. Strudwick, 379 N.C. 94 (2021)
Lifetime—reasonableness—imposition after lengthy term of imprisonment—current factors—safeguards—The imposition of lifetime satellite-based monitoring (SBM) on defendant after he pled guilty to kidnapping, robbery with a dangerous weapon, and rape, for which defendant received an active sentence of thirty to forty-three years, was constitutionally permissible despite the lengthy passage of time before SBM could be effectuated, because the reasonableness determination was appropriately based on factors as they existed at the time of the SBM hearing. If at some point in the future the imposition of lifetime SBM were to become unreasonable, statutory avenues of relief provided sufficient safeguards of defendant's constitutional right to be free from unreasonable searches. State v. Strudwick, 379 N.C. 94 (2021)
Schools and Education
Charter school—receipt of excess state funds—N.C. False Claims Act—definition of "person"—In the State's lawsuit against a charter school and its CEO for violations of the N.C. False Claims Act, where the school received an overpayment of state funds based on its overestimate of student enrollment, the Supreme Court overturned the Court of Appeals' ruling that charter schools are not "persons" subject to liability under the Act. The statutory definition of "persons" includes "corporate" bodies, and therefore it necessarily encompasses charter schools because non-profit corporations operate them. Further, the classification of charter schools as "persons" is consistent with the legislature's intent to prevent misuse of public funds, and neither a sovereign immunity defense nor the "arm-of-the state" analysis for protecting state governments from liability under the Act are applicable to charter schools. State v. Kinston Charter Acad., 379 N.C. 560 (2021)
Search and Seizure
Traffic stop—Terry search for weapons in vehicle—totality of circumstances—history of violent crime—A police officer who initiated a traffic stop of defendant for a fictitious license plate had reasonable suspicion to justify a Terry search for weapons in the areas of the vehicle that were under defendant's immediate control where the traffic stop occurred at night in a high-crime area, defendant appeared very nervous, defendant bladed his body when he accessed his center console to look for registration papers, and defendant's criminal history indicated a trend in violent crime. Further, the traffic stop was not unconstitutionally prolonged where the officer stopped defendant's vehicle, spoke with defendant, performed a routine records check that showed defendant's violent criminal history, and then performed the Terry search of the vehicle for weapons. State v. Johnson, 378 N.C. 236 (2021)
Sentencing
Prior record level calculation—parallel offense from another state—comparison of elements—substantially similar—For purposes of calculating defendant's prior record level calculation (after he was convicted of sexual offense with a child by an adult), defendant's conviction of statutory rape in Georgia was properly deemed to be equivalent to a North Carolina Class B1 felony where the statutory rape statutes in both states were substantially similar, despite variations in the age of the victim and the age differential between the perpetrator and victim. In applying the "comparison of the elements" test to determine whether an out-of-state criminal statute is substantially similar to a North Carolina criminal statute (pursuant to N.C.G.S. § 15A-1340.14(e)), there is no requirement that the statutes use identical language or that all conduct prohibited by one statute must also be prohibited by the other. State v. Graham, 379 N.C. 75 (2021)
Sexual Offenders
Secret peeping—sex offender registration—danger to the community—After defendant's conviction for felony secret peeping, the trial court did not err in finding as an ultimate fact that defendant was a danger to the community and ordering him to register as a sex offender where the evidentiary facts showed defendant took advantage of a close personal relationship, used a sophisticated scheme to avoid detection, deployed a hidden camera and obtained images of the victim over an extended period of time, repeatedly invaded the victim's privacy, caused significant and long lasting emotional harm to the victim, and could easily commit similar crimes in the future. State v. Fuller, 376 N.C. 862 (2021)
Statutes of Limitation and Repose
Declaratory judgment claims—based on breach of contract—applicable limitations period—triable issue of fact—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the three-year limitations period for breach of contract claims applied to plaintiff's declaratory judgment claims regarding one of the LLCs, where plaintiff based those claims on a theory that defendants breached the LLC operating agreement by diluting his membership interest and assuming total control of the LLC. On appeal, the trial court's order directing a verdict in defendants' favor on these claims was reversed and remanded because a triable issue of fact existed regarding the date the limitations period began to run (the date when plaintiff knew or should have known about defendants' alleged breach). Chisum v. Campagna, 376 N.C. 680 (2021)
Declaratory judgment claims—based on breach of contract—limitations period—date of notice of breach—In a legal dispute concerning plaintiff's membership status in the parties' three limited liability companies (LLCs), the three-year limitations period applicable to plaintiff's declaratory judgment claims (based on breach of contract) began to run at the time he became aware or should have become aware of defendants' breach of the LLC operating agreements. Therefore, rather than dismissing the claims as time-barred, the trial court properly submitted to the jury the issue of when plaintiff had notice of defendants' breach where the record showed it was a triable issue of fact. Chisum v. Campagna, 376 N.C. 680 (2021)
Three years—N.C.G.S. § 1-52(9)—mutual mistake—deed reformation—In an action for reformation of a deed of trust brought by a bank, the cause of action accrued when the bank should have discovered the drafting error (listing the wrong family member as the borrower), and its first opportunity to do so was after the borrower defaulted, even though the document was drafted with the error years earlier. Therefore, the three-year statute of limitations in N.C.G.S. § 1-52(9) applied because the action was to reform the instrument due to mutual mistake, and the bank's action was timely filed within three years of the default and the bank's subsequent investigation of the loan instruments to prepare for foreclosure. Wells Fargo Bank, N.A. v. Stocks, 378 N.C. 342 (2021)
Taxation
Ad valorem taxes—true value—appraisal methodology—functional and economic obsolescence—The Property Tax Commission properly accepted a county's valuation method to determine the true value of business personal property (used grocery store equipment) for purposes of an ad valorem tax assessment. The Commission's factual determinations regarding whether the appraisal properly accounted for functional and economic obsolescence were supported by substantial evidence in the form of an appraiser's testimony, and the Commission was justified in declining to adopt the business's approach of relying on market sales to determine the extent of depreciation adjustments. In re Harris Teeter, LLC, 378 N.C. 108 (2021)
Termination of Parental Rights
Adjudication evidence—sufficiency—adoption of allegations in petition—oral testimony—The trial court did not err, in determining whether grounds existed to terminate a mother's parental rights, when it relied on a social worker's oral testimony that adopted the allegations in the termination petition. In so doing, the trial court did not improperly rely on the petition itself as the only adjudication evidence. In re Z.G.J., 378 N.C. 500 (2021)
Adjudication—findings of fact—sufficiency of evidence—The adjudicatory findings of fact in an order terminating respondent-mother's parental rights to her two children (based on neglect and willful failure to make reasonable progress) were supported by clear, cogent, and convincing evidence regarding respondent's failure to take advantage of multiple opportunities to engage in services for her substance abuse and mental health issues, her lack of progress in various treatment programs, and the effect of her behavior on her son's mental health. In re M.S.E., 378 N.C. 40 (2021)
Adjudicatory findings of fact—sufficiency of evidence—improperly based on dispositional evidence—Where several of the trial court's findings of fact, made in the adjudication phase of a termination of parental rights hearing, lacked evidentiary support or were improperly based on testimony from the dispositional phase, the Supreme Court disregarded those portions of the findings made in error when evaluating the trial court's determination that respondent-father's parental rights to his daughter should be terminated on the basis of neglect and willful abandonment. In re Z.J.W., 376 N.C. 760 (2021)
Appointed counsel—assistance from guardian ad litem—ineffective assistance of counsel claim—In a termination of parental rights case where the guardian ad litem participated in the hearing by questioning some witnesses and making arguments to the trial court, respondent's claim that she received ineffective assistance of counsel because her appointed counsel was not sufficiently involved with the proceeding was rejected because the record reflected that counsel was engaged throughout and utilized the assistance of the guardian ad litem to better serve respondent. Respondent's additional claim that the guardian ad litem was unprepared to assist her counsel was not supported by the record. In re J.E.B., 376 N.C. 629 (2021)
Appointment of guardian ad litem—parent failed to file answer to petition—trial court's discretion—Even assuming the issue was preserved for appellate review, in a private termination of parental rights proceeding where the mother failed to file an answer to the termination petitions but later decided to contest the matter, the record gave no indication that the trial court acted under a misapprehension of law or failed to exercise its discretion when it did not appoint a guardian ad litem for the children. In re M.J.M., 378 N.C. 477 (2021)
Best interests of children—statutory factors—sufficiency of evidence—weight and credibility—The trial court did not abuse its discretion by determining that termination of a father's parental rights was in the best interests of his two children where the court's findings addressed the relevant dispositional factors in N.C.G.S. § 7B-1110(a) and were supported by competent evidence (which the court properly weighed and assessed for credibility). The court found the father willfully abandoned his children by having no contact with them for five and a half years, and the children lacked a bond with their father but had a close relationship with their grandparents, who had provided for all their educational, emotional, and financial needs in the father's absence and had filed a civil action seeking custody of the children. In re G.G.M., 377 N.C. 29 (2021)
Best interests of the child—bond with mother—abuse of discretion analysis—The trial court did not abuse its discretion by determining that it was in the best interests of the children to terminate respondent-mother's parental rights where, although respondent claimed and the court found that the children were bonded with respondent, the court also found that the children felt safe in their placements, respondent did not provide healthy parental boundaries and she threatened physical violence during visitation sessions, there was a high likelihood that the children would be adopted by their caregivers, the children were thriving in their placements, and respondent's testimony that she would not use drugs or consume alcohol if the children were returned to her was not credible. In re A.M., 377 N.C. 220 (2021)
Best interests of the child—consideration of factors—sufficiency of findings—The trial court did not abuse its discretion in concluding that terminating a father's parental rights to his oldest son was in the child's best interests where the court properly weighed and analyzed the appropriate statutory factors. The court found that the child was highly functioning–despite his autism, attention-deficit/hyperactivity disorder, and aggression problems–and was making progress in therapy while in foster care, the child had an "unhealthy" bond with his parents, the child expressed a desire to be adopted, adoption was not an immediate possibility for the child but was a realistic one, and terminating parental rights would aid in achieving the permanent plan of adoption. In re L.G.G., 379 N.C. 258 (2021)
Best interests of the child—dispositional findings of fact—abuse of discretion analysis—The trial court did not abuse its discretion by determining that termination of respondent-mother's rights to her children was in their best interests where the court's findings addressed the statutory factors in N.C.G.S. § 7B-1110(a) and were supported by competent evidence or reasonable inferences from that evidence, including findings that the bond between respondent and her daughter had lessened over time, and that respondent's behavior played a part in her son's mental health issues. The trial court was not required to make findings regarding every dispositional alternative it considered, and its findings demonstrated a reasoned decision. In re M.S.E., 378 N.C. 40 (2021)
Best interests of the child—dispositional findings—sufficiency of evidence—weighing of factors—The trial court did not abuse its discretion by determining that termination of respondent-mother's parental rights, and not other dispositional alternatives, was in the best interests of respondent's children where the court's findings of fact–including the poor bond between respondent and her children and the negative impact of respondent's visits on the children–were supported by competent evidence and showed the court properly addressed and weighed the various dispositional factors contained in N.C.G.S. § 7B-1110(a). In re T.A.M., 378 N.C. 64 (2021)
Best interests of the child—incarcerated father—release imminent—The trial court did not abuse its discretion by determining that termination of respondent-father's parental rights was in the best interests of the children where respondent's only challenge to the determination was to emphasize that he was scheduled to be released from incarceration shortly after the completion of the termination hearing and had a strong desire to maintain his parental relationship with the children. In re G.B., 377 N.C. 106 (2021)
Best interests of the child—need for permanency—no misapprehension of the law—dispositional factors—The trial court did not abuse its discretion in concluding that terminating a mother's parental rights was in her two-year-old child's best interests, where the mother had previously executed a relinquishment of her rights conditioned upon her sister and brother-in-law adopting the child. Because the relinquishment statutes permitted the mother to revoke her relinquishment or challenge its validity, the court reasonably considered possible hindrances to the adoption process, and therefore did not act under a misapprehension of the law in finding termination necessary to ensure the child received a permanent plan of care. Furthermore, the court properly considered the child's young age and high likelihood of adoption (dispositional factors under N.C.G.S. § 7B-1110(a)) given that two families were already willing to adopt him. In re M.R.J., 378 N.C. 648 (2021)
Best interests of the child—parent-child bond—sufficiency of findings—The trial court did not abuse its discretion in concluding that termination of a mother's parental rights was in her minor daughter's best interests where the court reasonably determined that the mother and the child lacked a strong, healthy bond. The evidence showed that the daughter had no contact with her mother in the five months leading up to the termination hearing, suffered from severe emotional and behavioral issues that worsened during prior visits with her mother, expressed more concern over her mother's animals than in seeing her mother, described having a parental attitude toward her mother, and would require extensive therapy to work through her past trauma in order to resume visits with the mother. In re N.B., 379 N.C. 441 (2021)
Best interests of the child—potential relative placement—dispositional findings —The trial court did not abuse its discretion by determining that termination of a father's parental rights was in his daughter's best interests where, one month before the termination hearing, the father requested that the department of social services consider his third cousin as a potential placement for the child. Although the court was not required to consider the availability of relative placement when making its best interests determination, the court's dispositional findings–including that the proposed placement was not appropriate and that the daughter already had a strong bond with her foster parents–showed that the court adequately considered all critical circumstances regarding the daughter's placement. In re E.S., 378 N.C. 8 (2021)
Best interests of the child—stability—lack of adoptive placement—In a private termination of parental rights matter initiated by a child's mother, the trial court did not abuse its discretion by determining that termination of the father's parental rights was in the best interests of the child where the court's findings that termination would facilitate continued consistency and stability for the child was supported by the mother's testimony. Moreover, termination was not precluded by the lack of a potential adoptive second parent for the child. In re J.B., 379 N.C. 233 (2021)
Best interests of the child—standard of review—abuse of discretion analysis—The Supreme Court reaffirmed that the standard of review for a best interest determination in a termination of parental rights proceeding is abuse of discretion, and upheld the trial court's conclusion, which was supported by specific findings that addressed the factors in N.C.G.S. § 7B-1110(a), that termination of respondent-mother's parental rights was in the best interests of her children. In re G.B., 377 N.C. 106 (2021)
Best interests of the child—statutory factors—child's consent to adoption—bond with mother—The trial court did not abuse its discretion by determining that termination of a mother's parental rights was in her fifteen-year-old daughter's best interests. The trial court was not required to consider the daughter's consent to adoption under N.C.G.S. § 48-3-601(1) (requiring minors over twelve years old to consent to adoption) when entering its disposition pursuant to N.C.G.S. § 7B-1110. Further, in considering the statutory factors under section 7B-1110(a), the trial court properly considered the bond between the mother and her daughter and was not required to make written findings about that factor because the evidence on the issue was uncontested. In re E.S., 378 N.C. 8 (2021)
Best interests of the child—statutory factors—consideration of relative placement—no conflict in evidence—The trial court did not abuse its discretion by concluding that termination of a father's parental rights to his son were in the son's best interests, after finding the existence of three grounds for termination, where the court's findings addressing the statutory factors in N.C.G.S. § 7B-1110(a) were supported by evidence and there was no conflicting evidence about a relative placement with the maternal grandmother–which had previously been considered and rejected by the trial court–that would require written findings on that issue. In re K.A.M.A., 379 N.C. 424 (2021)
Best interests of the child—statutory factors—probability of reunification within reasonable amount of time—bond between child and parent—The trial court did not abuse its discretion by determining that termination of both parents' rights to their daughter was in the daughter's best interests, based on unchallenged findings of fact addressing the dispositional factors in N.C.G.S. § 7B-1110(a). The parents' lack of progress on various aspects of their case plans–including lack of visitation with their daughter and failing to complete drug screens and mental health evaluations–supported the court's conclusion that there was no reasonable probability that reunification with the parents could be achieved in a reasonable amount of time. Further, the court's conclusion that the child had no bond with her parents was supported by evidence from the social worker and the guardian ad litem. In re S.C.C., 379 N.C. 303 (2021)
Best interests of the child—statutory factors—proposed placement with relatives—The trial court did not abuse its discretion in concluding that termination of a mother's parental rights to her two sons was in the children's best interests, where the court properly considered and made sufficient factual findings regarding the statutory dispositional factors, including the relationship between the children and the proposed permanent placements (N.C.G.S. § 7B-1110(a)(5)). The court properly rejected the maternal grandmother and the maternal great-grandparents as permanent placements for the children based on findings supported by competent evidence, and–although the availability of a relative placement can be a "relevant consideration" under section 7B-1110(a)(6)–section 7B-1110 did not require the court to prioritize placing the children with relatives over non-relatives. In re N.C.E., 379 N.C. 283 (2021)
Best interests of the child—statutory factors—weighing of factors—The trial court's conclusion that termination of respondent-mother's parental rights was in the best interest of her two children was supported by its unchallenged findings of fact, which addressed the statutory factors in N.C.G.S. § 7B-1110(a), and which demonstrated the court's careful consideration of the nature of the bond each child had with respondent as well as of each child's placement history as it pertained to the likelihood of being adopted. The court did not abuse its discretion by weighing certain factors more heavily than others in its final determination. In re H.A.J., 377 N.C. 43 (2021)
Best interests of the child—weighing of statutory factors—parent-child bond—alternatives to termination—The trial court did not abuse its discretion in concluding that termination of a mother's parental rights was in her minor daughter's best interests where, contrary to the mother's argument, the court was not required to delay the termination hearing–which the court appropriately fast tracked after finding aggravated circumstances existed under N.C.G.S. § 7B-901(c)(1)(b) and (e)–so respondent could try to improve the tenuous bond with her child. Furthermore, the court properly considered each dispositional factor under N.C.G.S. § 7B-1110(a) in making its best interests determination, and the record evidence did not support continued visitation between the mother and her child or any other dispositional alternatives to termination of parental rights. In re N.B., 379 N.C. 441 (2021)
Best interests of the children—statutory factors—children's bond with parent—likelihood of adoption—The trial court did not abuse its discretion in concluding that termination of a father's parental rights was in the best interests of his two children, where the court properly considered each dispositional factor under N.C.G.S. § 7B-1110(a). The court acknowledged the children's strong bond with their father while finding the children had also bonded with their foster family, their foster parents were willing to adopt both siblings, and the younger sibling's behavioral issues (he suffered from adjustment disorder and post-traumatic stress disorder, which resulted in sleep deprivation, tantrums, hitting, and other problematic behaviors) did not make adoption unlikely because the foster parents were willing to provide him with the necessary therapy and medical treatment to address those issues. In re K.B., 378 N.C. 601 (2021)
Bifurcated hearing—adjudication phase—evidence of reasonable progress—necessary only up to adjudication—Where the trial court agreed to hold a bifurcated termination of parental rights hearing and the adjudication and disposition hearings were held several months apart, the court was not required, for purposes of the ground of failure to make reasonable progress (N.C.G.S. § 7B-1111(a)(2)), to make findings regarding respondent-mother's progress on her case plan in the several months between the two hearings. Since the court concluded the adjudication phase at the end of the first hearing date when it found that grounds for termination had been established, it was respondent's obligation to move to reopen the adjudication phase if she wanted to present additional adjudication evidence at the later hearing date before the court began the dispositional phase. In re B.J.H., 378 N.C. 524 (2021)
Competency of parent—guardian ad litem—Rule 17—abuse of discretion analysis—In a termination of parental rights matter, the trial court did not abuse its discretion by failing to sua sponte conduct a competency hearing to determine whether respondent-mother needed a Rule 17 guardian ad litem. Although respondent's psychological evaluation recommended various types of assistance after stating that respondent had borderline intellectual functioning, the evaluation also noted several positive attributes of respondent including her resourcefulness. Further, the trial court had ample opportunity to observe respondent at multiple hearings, including during respondent's testimony, and respondent exhibited appropriate judgment prior to the hearings when she told the social services agency that she did not feel ready to take her children back and asked that they remain in their relative placement. In re M.S.E., 378 N.C. 40 (2021)
Delayed termination hearing—statutory violation—petition for a writ of mandamus—proper remedy—An order terminating respondent-father's parental rights to his two children on multiple grounds was affirmed where, even though the trial court committed reversible error by holding the termination hearing thirty-three months after the department of social services filed the termination petitions (which violates the requirement under N.C.G.S. § 7B-1109 to hold the hearing no later than ninety days after a petition is filed), respondent-father failed to file a petition for a writ of mandamus during that thirty-three-month delay to address the issue. In re C.R.L., 377 N.C. 24 (2021)
Denial of motion to continue—abuse of discretion analysis—due process—In an termination of parental rights action, the trial court did not abuse its discretion in denying respondent-father's counsel's motion to continue the termination hearing due to respondent's absence where the hearing had previously been continued twice because the parents were absent, it had been five months since the filing of the petition, respondent's unexplained absence did not amount to an extraordinary circumstance meriting a further continuance beyond the 90-day time-fame set out in N.C.G.S. § 7B-1109(d), respondent could not show he was prejudiced by the denial given his counsel's advocacy, and–based on the unchallenged findings–it was unlikely that the result would have been different had the hearing been continued. In re J.E., 377 N.C. 285 (2021)
Dispositional stage—best interests of the child—evidentiary standard not stated—In a termination of parental rights matter in which the adjudicatory and dispositional stages were combined but the trial court did not delineate the different standards of proof for each stage, the entirety of the proceedings clearly showed that the trial court understood and applied the proper evidentiary standard before assessing whether termination of respondent-father's parental rights was in the best interests of the child, where the court considered each dispositional factor in N.C.G.S. § 7B-1110. Even if the court improperly used the clear, cogent, and convincing standard at disposition, use of that heightened standard for petitioner-agency to overcome caused no prejudice to respondent. In re M.Y.P., 378 N.C. 667 (2021)
Effective assistance of counsel—failure to advise—appeal of termination case—meritless—Where a father's parental rights were terminated and his attorney filed a no-merit brief on appeal, the Supreme Court rejected the father's pro se argument alleging that he received ineffective assistance of counsel. Even assuming counsel rendered deficient performance by failing to notify the father that he needed to contribute to the cost of his child's care, the father could not establish prejudice because ignorance did not excuse his failure to fulfill his inherent parental duty to provide support; further, there was no merit in his argument that counsel should have pursued a second appeal in his son's termination case, because his son's case was not before the trial court on remand (only his daughter's case was). In re J.M., 377 N.C. 298 (2021)
Effective assistance of counsel—failure to advise—steps to establish paternity—findings not challenged—meritless—In an appeal from an order terminating respondent-father's parental rights to his child in which respondent did not challenge the findings or conclusion regarding the ground of failure to establish paternity (N.C.G.S. § 7B-1111(a)(5)), the Supreme Court rejected respondent's argument alleging that he received ineffective assistance of counsel due to his counsel's failure to advise him on or assist him with establishing paternity. Respondent's professed ignorance of his legal duty as a parent to establish paternity did not excuse his failure to fulfill that duty, and therefore respondent failed to demonstrate that there was a reasonable probability that, absent counsel's alleged failure to advise him regarding that duty, a different result would have been reached at the hearing. In re B.S., 378 N.C. 1 (2021)
Effective assistance of counsel—no showing of prejudice —Respondent-father's claim that he received ineffective assistance of counsel at a termination of parental rights hearing–arguing his counsel failed to make any objections during the hearing and failed to introduce certain evidence that could have helped his case–was rejected because he failed to show he was prejudiced as a result of his counsel's allegedly deficient conduct. In re G.G.M., 377 N.C. 29 (2021)
Findings of fact—challenges—recitation of testimony and reports—independent determination of evidence—A father's numerous challenges to the findings of fact in the trial court's order terminating his parental rights–arguing that the findings were nothing more than recitations of witness testimony, reports, or the trial court's beliefs–were for the most part rejected where the trial court did refer to prior orders and reports from earlier proceedings but heard live testimony and made an independent determination regarding the evidence presented. However, the findings that simply recited witness testimony were disregarded in the appellate court's evaluation of whether grounds existed to terminate the father's parental rights. In re A.E., 379 N.C. 177 (2021)
Findings of fact—challenges—sufficiency of evidence—pattern of neglect—A father's numerous challenges to the findings of fact in the trial court's order terminating his parental rights–arguing that the findings were overbroad or lacked evidentiary support–resulted in some findings being disregarded on appeal because of a lack of evidentiary support, while other findings, including those related to the father's continuation of the pattern of neglect, remained undisturbed because they were sufficiently supported by record evidence. In re A.E., 379 N.C. 177 (2021)
Findings of fact—challenges—sufficiency of evidence—stipulation—A father's numerous challenges to the findings of fact in the trial court's order terminating his parental rights–arguing that the findings lacked sufficient evidentiary support or were excessively imprecise–were rejected where portions of the challenged findings were based on the father's own stipulation and portions regarding a psychologist's evaluation and testimony were supported by record evidence. In re A.E., 379 N.C. 177 (2021)
Findings of fact—sufficiency of competent evidence—exhibit not admitted during hearing—The trial court's order terminating respondents' parental rights to their daughter on multiple grounds was reversed where the court's findings were not supported by clear, cogent, and convincing evidence. Although the department of social services tendered three witnesses who gave testimony, the challenged findings of fact contained information not from their testimony but from an exhibit which was not admitted into evidence during the hearing and which was presumed to be inadmissible incompetent evidence for purposes of the appeal. In re M.L.B., 377 N.C. 335 (2021)
Findings of fact—sufficiency—mere recitations of testimony—conflicting evidence—When reversing an order terminating a father's parental rights to his son on grounds of neglect, dependency, and abandonment, the Supreme Court disregarded multiple findings of fact in the order that either failed to resolve material conflicts in the evidence or constituted (or potentially constituted) mere recitations of testimony rather than proper factual determinations by the trial court, including findings regarding the father's child support payments, the father's relationship with and efforts to contact his son, and the maternal grandparents' efforts to prevent the father from communicating with the child. In re D.T.H., 378 N.C. 576 (2021)
Grounds for termination—abandonment—insufficiency of findings—unresolved factual disputes—An order terminating a father's parental rights to his son on grounds of abandonment (N.C.G.S. § 7B-1111(a)(7)) was reversed and remanded for entry of further findings, where the trial court failed to make findings addressing the father's conduct during the determinative six-month period before the termination petition was filed, and where the court's findings did not resolve key factual disputes over the amount of contact the father had had with the child and whether such contact was limited because of the father's willful relinquishment of his parental duties or because of the grandparents' efforts to prevent him from communicating with his son. In re D.T.H., 378 N.C. 576 (2021)
Grounds for termination—abandonment—willful intent—sufficiency of findings and evidence—The trial court properly terminated a father's rights to his two children on grounds of willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where the court's findings of fact–supported by clear, cogent, and convincing evidence–established that the father did not contact the children for five and a half years before the termination petition was filed (with the exception of one brief interaction) and provided no care or financial support during that time, which supported the court's conclusion that he intended to abandon the children. Although the father testified that he stopped seeing the children out of fear for their safety after he was injured in an unsolved shooting, the weight and credibility of this evidence could not be reassessed on appeal. In re G.G.M., 377 N.C. 29 (2021)
Grounds for termination—aiding and abetting—murder of other child in home—The trial court properly terminated a mother's parental rights in her newborn son under N.C.G.S. § 7B-1111(a)(8) and ceased reunification efforts in the underlying neglect action, where clear, cogent, and convincing evidence supported a finding that she aided and abetted her boyfriend in the second-degree murder of her nineteen-month-old son. Although the mother knew for months that her boyfriend was hitting her children, observed scalding injuries on the children after her boyfriend left them in a hot bathtub, and found patterned linear bruising on her son's back the day before he died (in large part because of the burns and blunt force injuries), she continued to leave the children in her boyfriend's care, did not seek medical care for the children, and actively concealed the injuries from her parents and anyone else who could have offered help. In re C.B.C.B., 379 N.C. 392 (2021)
Grounds for termination—dependency—required findings—alternative care arrangement —The trial court erred in terminating a father's parental rights on grounds of dependency (N.C.G.S. § 7B-1111(a)(6)), where the court failed to enter any written findings addressing whether the father "lacked an alternative child care arrangement" for his son, and where the record did not contain any evidence that the father lacked an alternative child care arrangement. In re D.T.H., 378 N.C. 576 (2021)
Grounds for termination—dependency—sufficiency of findings—The trial court's findings were insufficient to support its conclusion that grounds existed to terminate respondent-father's parental rights to his child based on dependency where the sole finding related to dependency–stating that there was no proper plan of care for the child during an incident in which respondent experienced a medical issue–was not supported by the evidence. There were no findings, nor evidence presented, that respondent's health prevented him from providing proper care or supervision of the child. In re C.L.H., 376 N.C. 614 (2021)
Grounds for termination—failure to establish paternity—In a termination of parental rights proceeding where the trial court's findings related to paternity were unchallenged by respondent-father and he did not challenge the sufficiency of the findings to support termination or that the termination was in the best interests of the children, the trial court's order terminating his parental rights to the children under N.C.G.S. § 7B-1111(a)(5) was affirmed. In re M.J.R.B., 377 N.C. 453 (2021)
Grounds for termination—failure to make reasonable progress—The trial court properly terminated the parental rights of respondent-mother for willful failure to make reasonable progress to correct the conditions which led to the removal of the children where the evidence showed that respondent left the children in foster care for sixteen months, she never obtained the required substance abuse assessment (despite losing custody of the children due to substance abuse issues), she repeatedly failed drug screens, and she did not comply with any of the mental health aspects of the case plan. In re A.M.L., 377 N.C. 1 (2021)
Grounds for termination—failure to make reasonable progress—The trial court properly determined that grounds existed to terminate respondent-mother's parental rights based on her failure to make reasonable progress to correct the conditions that led to the removal of the children–substance abuse, domestic violence, and homelessness–where, although respondent had acquired a structurally safe and appropriate residence and had participated in substance abuse support groups and abstained from using marijuana for a year, the unchallenged findings of fact showed respondent had multiple positive drug tests, consistently failed to comply with drug screens, failed to complete substance abuse treatment and domestic violence counseling, and was involved in repeated acts of domestic violence involving the consumption of alcohol. In re A.M., 377 N.C. 220 (2021)
Grounds for termination—failure to make reasonable progress—In a termination of parental rights hearing where the unchallenged findings of fact showed respondent-mother failed to submit to a required psychological assessment, failed to submit to a required domestic violence assessment, repeatedly failed to submit to drug screens upon request, and failed to complete a parenting program, the trial court did not err when it terminated her parental rights to the older juveniles for willful failure to make reasonable progress in correcting the conditions that led to the removal of the juveniles. In re M.J.R.B., 377 N.C. 453 (2021)
Grounds for termination—failure to make reasonable progress—12-month requirement—The trial court erred in terminating respondent-mother's parental rights to the youngest child for failure to make reasonable progress in correcting the conditions that led to the removal of the child where the evidence showed that only nine months had elapsed between the custody order and the filing of the termination petition. The court was required by N.C.G.S. § 7B-1111(a)(2) to look at the parent's reasonable progress over a twelve-month period. In re M.J.R.B., 377 N.C. 453 (2021)
Grounds for termination—failure to make reasonable progress—compliance with majority of case plan—An order terminating a mother's parental rights to her son was reversed where the trial court's findings of fact did not support its conclusion that she willfully failed to make reasonable progress in correcting the conditions leading to the child's removal from the home. Although the trial court properly considered the mother's partial noncompliance with the "parenting skills" component of her case plan with the Department of Health and Human Services, the court's remaining findings showed the mother had made reasonable progress by fully complying with the remaining components of her case plan, including those addressing her substance abuse, domestic violence issues, mental health, and housing situation. In re D.A.A.R., 377 N.C. 258 (2021)
Grounds for termination—failure to make reasonable progress—drug relapses—The trial court did not err in terminating a mother's parental rights to her daughter for willful failure to make reasonable progress to correct the conditions that led to the child's removal (N.C.G.S. § 7B-1111(a)(2)) based on evidence that the mother's substance abuse continued for at least three and a half years during the pendency of this case. Although the mother argued that relapses for addicts are common and therefore her limited progress was not unreasonable, the court's findings regarding the mother's inability to successfully complete rehabilitation or maintain sobriety for any significant amount of time supported its conclusion that her progress was not reasonable. In re A.L., 378 N.C. 396 (2021)
Grounds for termination—failure to make reasonable progress—findings and conclusion as to father—The trial court properly terminated respondent-father's parental rights to his two children on the basis that his failure to make reasonable progress to correct the conditions that led to the children's removal (N.C.G.S. § 7B-1111(a)(2)) was willful where, although respondent did not sign the case plan prepared for him, he orally agreed to its requirements and was on notice that he needed to address issues with substance abuse, mental health, housing, employment, and parenting, as evidenced by prior orders in the case. Any discrepancy between findings in permanency planning orders, of which the trial court took judicial notice, and testimony at the termination hearing were for the trial court to resolve. Sufficient evidence was presented to support the court's findings, which in turn supported the court's conclusion that respondent's lack of progress over twenty-seven months was grounds for termination. In re B.J.H., 378 N.C. 524 (2021)
Grounds for termination—failure to make reasonable progress—findings and conclusion as to mother—The trial court properly terminated respondent-mother's parental rights to her two children on the basis that she willfully failed to make reasonable progress to correct the conditions that led to the children's removal (N.C.G.S. § 7B-1111(a)(2)) after making detailed findings, supported by the evidence, regarding respondent's noncompliance or lack of progress with her case plan, including aspects related to her substance abuse, mental health, housing, and employment. The trial court's determination that respondent's progress was extremely limited and not reasonable was amply supported by the facts. In re B.J.H., 378 N.C. 524 (2021)
Grounds for termination—failure to make reasonable progress—findings—evidentiary support—The trial court did not err by terminating a mother's parental rights to her daughter based on the mother's willful failure to make reasonable progress to correct the conditions which led to the child's removal (N.C.G.S. § 7B-1111(a)(2)) where there was clear, cogent, and convincing evidence, in addition to the mother's stipulations, regarding the mother's extensive history of substance abuse for which she received inadequate treatment, her refusal to submit to drug screens on multiple occasions, her incomplete mental health treatment, her housing instability, and her lack of consistent employment. In re A.S.D., 378 N.C. 425 (2021)
Grounds for termination—failure to make reasonable progress—nexus between case plan and conditions that led to removal—The trial court's order terminating respondent-father's parental rights to the youngest child based on failure to make reasonable progress was supported by unchallenged findings, which showed that respondent-father failed to complete parenting classes, tested positive for controlled substances and refused at least four drug screenings, and was not incarcerated for seven months while his child was in DSS custody. Although respondent argued that he did make reasonable progress where the only condition relating to him that led to the child's removal–that his paternity had not been established–had since been corrected, there was a sufficient nexus between the substance abuse and mental health components of respondent's case plan and the conditions that led to the child's removal from the home, because the child had been removed from respondent-mother's care based on neglect caused by exposure to substance abuse. In re M.S., 378 N.C. 30 (2021)
Grounds for termination—failure to make reasonable progress—progress made post-petition—no misapprehension of the law—The trial court did not act under a misapprehension of the law when terminating a mother's parental rights in her daughter for failure to make reasonable progress to correct the conditions leading to the child's removal (N.C.G.S. § 7B-1111(a)(2)). Specifically, the mother failed to show that the court operated on the erroneous belief that evidence of any progress she made after the filing of the termination petition was irrelevant, where the court not only overruled a relevance-based objection to testimony describing events occurring after the petition filing but also admitted a substantial amount of evidence concerning those post-petition events. In re I.E.M., 379 N.C. 221 (2021)
Grounds for termination—failure to make reasonable progress—relevant time period—poverty exception—An order terminating a father's parental rights was affirmed where the trial court's findings of fact supported a conclusion that he willfully failed to make reasonable progress in correcting the conditions leading to his children's removal (N.C.G.S. § 7B-1111(a)(2)). The order contained sufficient findings regarding the father's lack of progress up to the date of the termination hearing (the relevant time period under the statute), and the "poverty exception" in section 7B-1111(a)(2) did not require the court to enter specific findings addressing whether poverty was the "sole reason" for the father's failure to make reasonable progress where the father presented no evidence that he was impoverished. In re T.M.L., 377 N.C. 369 (2021)
Grounds for termination—failure to make reasonable progress—sufficiency of findings—An order terminating a mother's parental rights to her daughter was affirmed where the trial court's findings–that the mother failed to complete the programs required by her out-of-home family services agreement to address her domestic violence and parenting issues–supported the conclusion that the mother had failed to make reasonable progress under the circumstances to correct the conditions that led to the child's removal, pursuant to N.C.G.S. § 7B-1111(a)(2). In re T.T., 379 N.C. 317 (2021)
Grounds for termination—failure to make reasonable progress—sufficiency of findings—domestic violence—The trial court properly terminated a mother's parental rights to her children for failure to make reasonable progress in correcting the conditions that led to the children's removal from her home (N.C.G.S. § 7B-1111(a)(2)). The findings of fact challenged on appeal, which were supported by clear, cogent, and convincing evidence, showed that the mother failed to address domestic violence issues stemming from her relationship with her youngest child's father by continuing the relationship (even though he kept on perpetuating new incidents of domestic violence), repeatedly lying to the court about having ended the relationship, and failing to attend domestic violence counseling despite her means and ability to do so. In re L.N.G., 377 N.C. 81 (2021)
Grounds for termination—failure to pay a reasonable portion of the cost of care—incarceration—no contribution—Where a father's parental rights were terminated and his attorney filed a no-merit brief on appeal, the Supreme Court rejected the father's pro se argument challenging the trial court's conclusion that the grounds of willful failure to pay a reasonable portion of the cost of care (N.C.G.S. § 7B-1111(a)(3)) existed to terminate his parental rights. Although he was incarcerated, he earned some money working and received some from friends and family, yet he contributed nothing to the cost of his child's care during the relevant six-month time period. In re J.M., 377 N.C. 298 (2021)
Grounds for termination—failure to pay a reasonable portion of the cost of care—sufficiency of findings—determinative time period—The trial court erred in concluding that a mother's parental rights were subject to termination on the grounds of failure to pay a reasonable portion of the cost of care where the court's findings did not specifically address the six-month period immediately preceding the filing of the termination petition. In re Z.G.J., 378 N.C. 500 (2021)
Grounds for termination—failure to pay a reasonable portion of the cost of care—willfulness—notice of obligation—The trial court's unchallenged findings of fact supported its decision to terminate both parents' rights to their son on the basis that, for a continuous period of six months prior to the filing of the termination petition, they failed to pay a reasonable portion of the cost of care for their child although able to do so (N.C.G.S. § 7B-1111(a)(3)). The Supreme Court declined to revisit its holding in In re S.E., 373 N.C. 360 (2020), which interpreted this statutory provision as not requiring notice to parents regarding their obligation to provide support. In re D.C., 378 N.C. 556 (2021)
Grounds for termination—failure to pay reasonable portion of cost of care—no contribution—The termination of respondent-father's parental rights for failure to pay a reasonable portion of the cost of care for the juvenile was affirmed where the trial court found that respondent was employed and earned between $200 and $800 per week but did not provide any financial support for the child during the six months prior to the filing of the petition and the findings were supported by clear, cogent, and convincing evidence. In re J.E.E.R., 378 N.C. 23 (2021)
Grounds for termination—incapable of providing proper care and supervision—necessary findings—In a termination of parental rights proceeding where–although there may have been sufficient evidence in the record to show respondent-mother was incapable of providing proper care and supervision for the youngest child–the trial court failed to make findings showing the absence of an acceptable child-care arrangement, did not identify the condition that made respondent incapable of parenting the child, and did not address whether her condition would continue for the foreseeable future, the court's order terminating respondent's parental rights under N.C.G.S. § 7B-1111(a)(6) was vacated and remanded for entry of a new order. In re M.J.R.B., 377 N.C. 453 (2021)
Grounds for termination—neglect—best interests—sufficiency of findings—The findings of fact in an order terminating a father's parental rights to his son contained sufficient differences from the petition allegations to demonstrate that the trial court conducted an independent evaluation of the evidence. Although certain findings were not supported by the evidence and were therefore disregarded on appeal, the remainder of the findings were supported by evidence that the son was neglected and that the father's failure to correct the conditions which led to the son's removal indicated a likelihood of future neglect. The trial court properly terminated the father's rights based on neglect after conducting a best interests analysis in accordance with the factors contained in N.C.G.S. § 7B-1110(a). In re R.G.L., 379 N.C. 452 (2021)
Grounds for termination—neglect—by abandonment—insufficiency of findings—unresolved factual disputes—An order terminating a father's parental rights to his son on grounds of neglect by abandonment (N.C.G.S. § 7B-1111(a)(1)) was reversed and remanded, where the trial court's findings failed to resolve key factual disputes over the amount of contact the father had had with the child and whether such contact was limited because of the father's willful relinquishment of his parental duties or because of the grandparents' efforts to prevent him from communicating with his son. In re D.T.H., 378 N.C. 576 (2021)
Grounds for termination—neglect—failure to make reasonable progress—dependency—determinative time period—The trial court erred in concluding that a mother's parental rights were subject to termination on the grounds of neglect, failure to make reasonable progress, and dependency where the trial court relied solely on evidence of circumstances existing more than a year before the hearing–a social worker's oral testimony adopting the allegations in the termination petition–in making its factual findings. There was no evidence from the determinative time period for each of the grounds for termination, and evidence presented during the disposition hearing could not cure the error. In re Z.G.J., 378 N.C. 500 (2021)
Grounds for termination—neglect—failure to make reasonable progress—evidence before and after the termination petition—In determining that a father's parental rights were subject to termination pursuant to N.C.G.S. § 7B-1111(a)(1) (neglect) and (a)(2) (failure to make reasonable progress), the trial court properly considered the totality of the evidence–both before and after the filing of the termination petition, despite the father's argument to the contrary on appeal–and determined that the events occurring after the petition's filing were unpersuasive and inadequate to overcome evidence supporting termination. In re K.N., 378 N.C. 450 (2021)
Grounds for termination—neglect—findings of fact—A trial court's uncontested findings of fact supported its conclusion that grounds existed to terminate respondent-mother's parental rights to her child based on neglect, where the findings not only demonstrated respondent's failure to adequately address the domestic violence and substance abuse issues that contributed to the child being adjudicated neglected and dependent but also indicated a likelihood of future neglect based on respondent's noncompliance with her case plan. Although portions of certain findings were unsupported by the evidence with regard to specific aspects of the case plan, any errors were harmless in light of the remaining supported findings. In re S.R.F., 376 N.C. 647 (2021)
Grounds for termination—neglect—findings—sufficiency—The trial court properly terminated respondent-mother's rights to her children on the ground of neglect (N.C.G.S. § 7B-1111(a)(1)) where its findings of fact, including those regarding respondent's lack of progress in her parenting skills and the children's trauma under respondent's care, were supported by clear, cogent, and convincing evidence. The evidence and findings amply demonstrated a likelihood of future neglect, based on respondent's history of failing to meet her children's basic needs, her inability to protect them from physical and sexual abuse, and her lack of progress in resolving those issues. In re M.J.B., 377 N.C. 328 (2021)
Grounds for termination—neglect—findings—sufficiency of evidence—In a private termination of parental rights matter filed by the child's grandparents, the trial court's findings of fact in its order terminating the father's parental rights to his son based on neglect (N.C.G.S. § 7B-1111(a)(1)) were supported by clear, cogent, and convincing evidence regarding the father's lengthy history of drug use and criminal conduct, continued drug use while incarcerated, failure to address his addiction despite the availability of services in prison, lack of a bond or relationship with his son, and lack of consistent interest in the welfare or health of his son (who had special medical needs). In re W.K., 379 N.C. 331 (2021)
Grounds for termination—neglect—incarceration for abuse of another child—likelihood of future neglect—In a private termination of parental rights matter initiated by a mother after her son's father entered an Alford plea in another state to molesting a different child, the trial court properly terminated the father's rights to his son on the ground of neglect (N.C.G.S. § 7B-1111(a)(1)). The mother's testimony supported the trial court's findings that the father repeatedly molested his victim and that at least one incident occurred when the son was in the same bed. Further, the trial court's determination that there was a likelihood of future neglect was supported by evidence that the father made no effort to learn about his son's welfare in more than four years and would be unable to provide future care due to additional pending criminal charges. The father's incarceration and court-ordered prohibition from contacting his son did not absolve him of all parental responsibilities. In re J.B., 379 N.C. 233 (2021)
Grounds for termination—neglect—incarceration—likelihood of future neglect—The trial court's termination of respondent-father's parental rights based on neglect was affirmed where the children had been previously adjudicated to be neglected and the unchallenged findings established a lack of changed circumstances and a likelihood of repeated neglect. Although respondent was incarcerated or absconding for much of the time after the original adjudication of neglect, he was not incarcerated for the entirety of the case and his incarceration was not the sole evidence of neglect. Respondent failed to complete his case plan addressing the issues that led to the adjudication of neglect (substance abuse, mental health, and housing) or to remain in contact with DSS, he failed to regularly visit the children or check on their well-being, and his probation violations and criminal activity continued up until the month before the hearing. In re J.E., 377 N.C. 285 (2021)
Grounds for termination—neglect—incarceration—likelihood of future neglect—The trial court's termination of respondent-father's parental rights on the basis of neglect due to a likely repetition of neglect was affirmed where respondent was incarcerated, the child had been placed in foster care due to neglect caused by domestic violence and respondent's use and distribution of drugs while the child was in respondent's care prior to his incarceration, respondent was only involved in the child's life in a limited way when he was not incarcerated, and he made no attempt to contact the child during his incarceration except for a single letter and had limited contact with DSS. In re N.B., 377 N.C. 349 (2021)
Grounds for termination—neglect—insufficient findings—evidence from which determination could be made—The trial court's determination that respondent-father's parental rights to his daughter were subject to termination on the basis of neglect was vacated. The court's conclusion that respondent neglected his child by abandonment was not supported by its findings, which established that respondent paid child support, attended hearings, emailed his daughter's caregiver, and complied with his case plan requirements. Although the court also concluded that grounds for neglect existed based on a prior adjudication of neglect and a likelihood of future neglect, the court's findings did not address the possibility of a repetition of neglect, despite record evidence from which sufficient findings could be made. The matter was remanded for entry of a new order addressing future neglect and best interests. In re Z.J.W., 376 N.C. 760 (2021)
Grounds for termination—neglect—likelihood of future neglect—The trial court properly determined respondent-mother's parental rights were subject to termination on the basis of neglect where the children had been previously adjudicated to be neglected (due to respondent's housing instability, her drug use and incarceration, domestic violence, and her leaving the children with inappropriate caretakers who subjected the children to physical and sexual abuse) and where–although respondent had made some progress towards satisfying the requirements of her case plan–there was a likelihood of future neglect due to respondent's failure to establish stable housing free from substance abuse, her lack of contact with the children, and her inability to meet the children's trauma-related needs. In re N.B., 377 N.C. 349 (2021)
Grounds for termination—neglect—likelihood of future neglect—The trial court properly terminated respondent-mother's parental rights on the ground of neglect where its findings of fact, which were either unchallenged or supported by clear, cogent, and convincing evidence, supported the court's conclusion that there was a likelihood of future neglect of respondent's two children if they were returned to her care, based on respondent's lack of progress in addressing her ongoing substance abuse, mental health issues, and parenting skills, and her inability to acknowledge her role in her son's mental health struggles. In re M.S.E., 378 N.C. 40 (2021)
Grounds for termination—neglect—likelihood of future neglect—conclusions—In a private termination of parental rights matter filed by the child's grandparents, the trial court's conclusions that there existed a high probability of future neglect if the child were returned to his father's care and that the father's rights should be terminated on the ground of neglect (N.C.G.S. § 7B-1111(a)(1)) were supported by the findings of fact detailing the father's lengthy history of drug use and criminal conduct, failure to address his substance abuse, and minimal interest in the health of his son (who had special medical needs). The father's argument that he lacked the ability to pay any support while incarcerated was undermined by the unchallenged finding that he paid support for his daughter, in whom he showed more interest and with whom he sought more of a relationship than with his son. In re W.K., 379 N.C. 331 (2021)
Grounds for termination—neglect—likelihood of future neglect—incarceration—The trial court's order terminating respondent-father's parental rights was affirmed where respondent's lengthy term of incarceration (which implicated a future likelihood of neglect since he could not provide proper care, supervision, and discipline to the children while incarcerated) combined with his history of drug use and incarcerations for drug offenses, his lack of care and attention to the children when he was not incarcerated, and a history of domestic abuse between respondent and the children's mother witnessed by the children, supported the trial court's conclusion that respondent's parental rights were subject to termination on the grounds of neglect due to a likelihood of future neglect. In re J.S., 377 N.C. 73 (2021)
Grounds for termination—neglect—likelihood of future neglect—no findings—In a private termination of parental rights action, the trial court's decision to terminate a mother's parental rights to her son on the ground of neglect (N.C.G.S. § 7B-1111(a)(1)) was not supported by any findings regarding the likelihood of repetition of neglect if the son were returned to his mother's care. The termination order was reversed and the matter remanded for further factual findings. In re B.R.L., 379 N.C. 15 (2021)
Grounds for termination—neglect—likelihood of future neglect—pattern of exposure to child sex abusers—An order terminating a mother's parental rights to her two daughters was affirmed where the trial court's findings–all of which, with one exception, were supported by clear, cogent, and convincing evidence–showed a high likelihood of repeated neglect if the children returned home. Specifically, the court found a pattern in which the mother exposed her daughters to men with histories of child sexual abuse, those men sexually abused the daughters, the daughters were adjudicated neglected and removed from the home, the mother cooperated with social services such that the children were returned to her care, and then the cycle would recommence. Moreover, evidence showed that the mother's cognitive limitations, dependent personality, and tendency to disbelieve her children's abuse allegations rendered her incapable of protecting the children from future abuse. In re L.H., 378 N.C. 625 (2021)
Grounds for termination—neglect—likelihood of future neglect—sibling died of suspected abuse—The trial court properly terminated respondent-mother's parental rights to her child based on neglect where, after a sibling suffered injuries in the home that led to her death from likely abuse, respondent-mother failed to acknowledge the non-accidental cause of the sibling's injuries, provided an implausible explanation for those injuries, and maintained a relationship with respondent-father. The court's findings supported its conclusion that neglect was likely to reoccur if the child were returned to respondent-mother's care. In re A.W., 377 N.C. 238 (2021)
Grounds for termination—neglect—likelihood of future neglect—substance abuse and unstable housing and employment—The trial court's termination of respondent-mother's parental rights based on neglect due to a likelihood of future neglect was affirmed where the child was previously adjudicated neglected, respondent had made only limited progress on the issues that led to the prior adjudication, her substance abuse continued after the child entered DSS custody, her housing situation remained unstable, and she was unable to maintain stable employment. In re B.T.J., 377 N.C. 18 (2021)
Grounds for termination—neglect—likelihood of future neglect—substantial risk of impairment—sufficiency of evidence—An order terminating a mother's parental rights to her children was affirmed where the trial court's findings–supported by clear, cogent, and convincing evidence–showed a likelihood of future neglect if the children were returned to the mother's care, because she failed to make progress in her social services case plan; failed to address her substance abuse, mental health issues, and history of domestic violence; failed to keep a safe and stable home; and disregarded social services' concerns with her having unsupervised contact with the children. Evidence also supported a finding that the children were physically, mentally, or emotionally impaired (or at a substantial risk of such impairment) as a result of the mother's neglect, where both children suffered from adjustment disorder and various behavioral issues. In re K.B., 378 N.C. 601 (2021)
Grounds for termination—neglect—likelihood of future neglect—sufficiency of findings—The trial court properly terminated a mother's parental rights in her son on grounds of neglect where competent evidence supported the court's factual findings, including that, at the time of the termination hearing, the mother had failed to maintain a safe home environment (she lived in the maternal grandmother's house, which was found covered in animal feces, moldy food, and piles of trash), routinely missed drug screens required under her case plan despite her methamphetamine and marijuana use disorders, attended only twenty-eight out of the seventy-seven visits she was offered with her son, and failed to correct any of those conditions while her son was in foster care. Further, these findings supported a conclusion that the child faced a high likelihood of future neglect if returned to the mother's care. In re A.L.A., 379 N.C. 383 (2021)
Grounds for termination—neglect—likelihood of future neglect—sufficiency of findings—The trial court properly terminated respondents' parental rights to their three sons on grounds of neglect (N.C.G.S. § 7B-1111(a)(1)) where the court's findings of fact were supported by clear, cogent, and convincing evidence demonstrating that the children had been exposed to domestic violence, substance abuse, and pornography in the home; the children were diagnosed with post-traumatic stress disorder and exhibited behavioral issues, including sexualized behavior between the brothers; respondents completed most of their family case plans but failed to take responsibility for the children's traumas, to address the inappropriate incidents between the children (other than to fervently deny that they happened), or to understand why the children were removed from the home; and, therefore, there was a high likelihood of future neglect if the children were returned to respondents' care. In re L.G.G., 379 N.C. 258 (2021)
Grounds for termination—neglect—likelihood of future neglect—unstable housing and domestic violence—The trial court did not err by determining that a mother's parental rights were subject to termination on the grounds of neglect where the court's findings were supported by the evidence, which demonstrated that the mother was likely to repeat her prior neglect if the child were returned to her care, based on the mother's lack of stable housing and unresolved domestic violence issues. Although the mother had made some progress on her case plan, at the time of the hearing she was sharing a studio apartment with a male coworker and was not on the lease, and she had failed to demonstrate an understanding of her domestic violence issues and how to protect herself and her child in the future. In re M.A., 378 N.C. 462 (2021)
Grounds for termination—neglect—likelihood of repetition of neglect—findings—After disregarding numerous findings of fact that were mere recitations of testimony or that did not accurately reflect the record evidence, the Supreme Court nevertheless affirmed the trial court's order terminating a mother's parental rights to her son based on neglect (N.C.G.S. § 7B-1111(a)(1)) where the remaining findings were supported by clear, cogent, and convincing evidence regarding the mother's limited progress on various aspects of her case plan, her continued contact with the child's father despite his acts of abusive behavior, and her inability to grasp or tendency to minimize the severity of the issues preventing reunification with her child. The trial court did not impermissibly shift the burden of proof to the mother, it adequately considered evidence of changed circumstances between the child's removal and the termination hearing, and it supported its conclusion that there was a likelihood of repetition of neglect with sufficient findings of fact. In re A.C., 378 N.C. 377 (2021)
Grounds for termination—neglect—likelihood of repetition of neglect—substance abuse—The trial court properly terminated respondent-mother's parental rights to her two children on the ground of neglect where its findings demonstrated a likelihood of the repetition of past neglect if the children were returned to respondent's care, based on her ongoing substance abuse, domestic violence between her and her partner, and lack of sustained progress on her case plan. In re H.A.J., 377 N.C. 43 (2021)
Grounds for termination—neglect—repetition of neglect—findings—The trial court properly determined that grounds existed to terminate respondent-father's parental rights to his child based on neglect despite a few unsupported findings, given other supported findings establishing that the child was previously neglected and that there was a likelihood of the repetition of neglect if the child were returned to respondent's care. The two-year-old was removed from the home after being left alone in an unfurnished apartment for at least several hours; respondent had a history of untreated and continuing substance abuse; respondent's lack of progress on his case plan left issues regarding domestic violence, lack of stable housing, and mental illness unresolved; and his visits with the child were sporadic. In re M.Y.P., 378 N.C. 667 (2021)
Grounds for termination—neglect—sufficiency of findings—The trial court's findings were insufficient to support its conclusion that grounds existed to terminate respondent-father's parental rights to his child based on neglect where the sole finding–stating that the child was previously neglected due to lack of care when respondent experienced a medical issue–was not supported by the evidence. Further, the findings failed to address whether the child would be neglected in the future if returned to respondent's care. In re C.L.H., 376 N.C. 614 (2021)
Grounds for termination—neglect—sufficiency of findings—The trial court did not err by concluding that a father's parental rights were subject to termination on the grounds of neglect (N.C.G.S. § 7B-1111(a)(1)) where the conclusion was sufficiently supported by the findings of fact, including that both parents had stipulated to the children's neglect at the time the juvenile petitions were filed, the parents exhibited a pattern of neglect and failed to understand the importance of keeping the children and the home clean, and the father denied that the children had special needs despite evidence-based documentation of those needs. Further, the trial court properly considered circumstances up to and including the date of the termination hearing. In re A.E., 379 N.C. 177 (2021)
Grounds for termination—neglect—sufficiency of findings—Where many of a mother's challenges to the findings of fact in the trial court's order terminating her parental rights overlapped with the father's challenges, her challenges were addressed in the same manner, resulting in some findings being disregarded and others being found to have ample evidentiary support. As with the father, the trial court did not err in determining that the mother's parental rights were subject to termination on the grounds of neglect (N.C.G.S. § 7B-1111(a)(1)). In re A.E., 379 N.C. 177 (2021)
Grounds for termination—not stated in conclusion section of order—referenced in findings—harmless error—Where the trial court's order terminating a father's parental rights to his son referenced the statutory ground of neglect (N.C.G.S. § 7B-1111(a)(1)) in its findings of fact, the specific statutory grounds supporting termination did not have to be stated in the order's conclusion section. Any potential error was harmless given the court's extensive findings of fact, which were supported by ample evidence, demonstrating how the court reached its decision to terminate based on neglect. In re W.K., 379 N.C. 331 (2021)
Grounds for termination—parental rights terminated as to another child—lack of safe home—no protection from abusive individuals—The trial court properly terminated a mother's parental rights to her son on the basis that her parental rights had been terminated involuntarily to two of her other children and she lacked the ability to establish a safe home (N.C.G.S. § 7B-1111(a)(9)), after making findings, which were based on clear, cogent, and convincing evidence, that she had a pattern of exposing her children to abusive individuals and lacked insight into her son's sexual abuse and the effect it had on him, that she had not made sufficient progress with her own mental health treatment, and that she was unable to provide safe and stable housing for her son. The court's findings in turn supported its conclusion that grounds existed to terminate and that termination of the mother's parental rights was in the best interest of her son. In re T.M.B., 378 N.C. 683 (2021)
Grounds for termination—willful abandonment—determinative six-month period—lack of findings—The trial court's order terminating a father's parental rights to his son was vacated and the matter remanded for further findings where the court's findings did not adequately address the father's actions during the determinative six-month time period (immediately preceding the filing of the termination petition) for purposes of the ground of willful abandonment (N.C.G.S. § 7B-1111(a)(7)). Although the court heard evidence during adjudication from which it could have made relevant findings, and did make findings addressing this issue in the dispositional portion of the termination order, the dispositional findings were subject to a different standard of review and could not be used to support the adjudication. In re K.J.E., 378 N.C. 620 (2021)
Grounds for termination—willful abandonment—evidentiary support—The trial court properly terminated a father's parental rights to his daughter based on willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where the majority of the challenged findings of fact were supported by evidence or based on the trial court's proper role in assessing credibility that, during the determinative six-month period, although the father sent one card with a gift, he otherwise had no contact with his daughter or the relatives caring for her, took no steps to seek visitation or assert his legal rights, provided no financial support, and did not attempt to show love, care, and affection for his daughter. In turn, the findings supported the court's conclusion that the father's conduct constituted willful abandonment. In re L.M.M., 379 N.C. 431 (2021)
Grounds for termination—willful abandonment—failure to pay for care required by decree or custody agreement—sufficiency of findings—In a private termination of parental rights action, the evidence did not support the trial court's finding that the father, who was incarcerated during the relevant time period, had willfully abandoned his child where the father testified that he spoke with his daughter every other weekend and where the petitioner, who had custody of the child, testified that the father called on Christmas. Even if the father's testimony were found not credible, the petitioner's testimony did not establish willful abandonment. The evidence also did not support the trial court's finding that the father had willfully failed to pay for care, support, or education as required by a decree or custody agreement where there was no evidence of any decree or custody agreement making such a requirement. In re S.C.L.R., 378 N.C. 484 (2021)
Grounds for termination—willful abandonment—incarceration and restraining order—no emotional or material support—domestic abuse—The trial court's order terminating the parental rights of respondent-father on the grounds of willful abandonment was affirmed where respondent was aware of his ability to seek legal custody and visitation rights (and how to obtain such relief) despite the limitations of his incarceration and a restraining order prohibiting contact with the child and her mother, he did not provide any emotional or material support during the determinative period although he could have done so, and his domestic abuse of the mother which led to the restraining order supported an inference of willfulness for purposes of N.C.G.S. § 7B-1111(a)(7). In re I.R.M.B., 377 N.C. 64 (2021)
Grounds for termination—willful abandonment—incarceration—failure to contact child—The trial court properly determined that a father's parental rights were subject to termination on the grounds of willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where it was undisputed that the father, who had been incarcerated for approximately six years when the termination petition was filed, had made no contact with his daughter during his incarceration. He failed to seek his daughter's contact information from relatives (other than a single unsuccessful attempt to ask the sister of his daughter's caregiver for the caregiver's phone number–years outside the determinative period) or to otherwise display any interest in her welfare. The father's incarceration and alleged ignorance of how to contact his child could not negate the willfulness of his abandonment. In re M.S.A., 377 N.C. 343 (2021)
Grounds for termination—willful abandonment—sufficiency of findings—In a termination of parental rights proceeding, the trial court's conclusion that respondent-father willfully abandoned his daughter was reversed where the unchallenged findings established that respondent made child support payments, sent emails to the relative caring for his daughter, and completed certain aspects of his case plan during the determinative six-month period prior to the filing of the termination petition. Respondent's failure to visit with his daughter was not voluntary where a prior order precluded visitation absent a recommendation from the child's therapist, which had not been given. In re Z.J.W., 376 N.C. 760 (2021)
Grounds for termination—willful abandonment—sufficiency of findings—The trial court's termination of a father's parental rights to his son based on willful abandonment (N.C.G.S. § 7B-1111(a)(7)) was supported by unchallenged findings of fact that the father had not seen his six-and-a-half-year-old son since he was a baby, he did not contact his son, he did not send money, gifts, cards, or letters, and he did not take any action to follow up on statements to the child's mother that he planned to become more involved with his son. The father's refusal to sign papers to allow the child's mother to change their son's last name was not sufficient to refute the ground of willful abandonment. In re C.K.I., 379 N.C. 207 (2021)
Grounds for termination—willful abandonment—sufficiency of findings—The trial court properly terminated a father's parental rights to his son on grounds of willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where the court's findings of fact–supported by clear, cogent, and convincing evidence–demonstrated that, during the determinative six-month period, the father (who was serving a criminal sentence) had the ability to contact his son by telephone from prison and had the contact information for the child's foster family but, nevertheless, failed to check in on his son or to provide any child support. Further, the father did not send any gifts or letters to his son from prison, and any gifts that his fiancee sent to the child were not sent at the father's direction. In re A.A.M., 379 N.C. 167 (2021)
Grounds for termination—willful abandonment—sufficiency of findings—In a private termination of parental rights proceeding, the trial court properly terminated a father's parental rights to his daughter based on the ground of willful abandonment (N.C.G.S. § 7B-1111(a)(7)). Clear, cogent, and convincing evidence supported the court's findings that, prior to the filing of the termination petition and for far longer than the determinative six-month period, the father did not send any cards or gifts to his daughter or make any attempts to contact her directly or through other family members, he did not take any steps to modify a prior custody order in order to secure visitation rights, and he only paid a third of his monthly child support obligation. In re M.E.S., 379 N.C. 275 (2021)
Grounds for termination—willful abandonment—sufficiency of findings—relevant six-month period—The trial court's order terminating respondent-father's parental rights on the grounds of willful abandonment was affirmed where the unchallenged findings of fact showed that for over a year prior to the filing of the motion to terminate respondent had not visited the child, he refused to work his case plan or take any of the steps required to reunite with the child, and did not make any effort to maintain a parental bond with the child. Respondent's attempts to comply with the case plan after the filing of the petition did not bar an ultimate finding of willful abandonment because they did not occur during the determinative period for adjudicating willful abandonment–the six consecutive months preceding the filing of the petition. In re I.J.W., 378 N.C. 17 (2021)
Grounds for termination—willful abandonment—sufficiency of findings—willfulness—The Supreme Court rejected a mother's argument that the trial court failed to make any factual finding that her conduct was willful and therefore that the court erred by concluding her parental rights were subject to termination on the grounds of willful abandonment. Even though it was labeled as a conclusion of law, the trial court did make a finding that the mother had willfully abandoned the child. In addition, the Court rejected the mother's challenge to the sufficiency of the findings because the findings reflected that she had failed to do anything to express love, affection, and parental concern during the determinative period. In re S.C.L.R., 378 N.C. 484 (2021)
Grounds for termination—willful abandonment—visitation requests by parent—In a private termination of parental rights action, the trial court's findings of fact did not support its conclusion that a mother willfully abandoned her son pursuant to N.C.G.S. § 7B-1111(a)(7), where the mother's actions–by requesting visits with her son multiple times, visiting with him twice, and filing a pro se motion for review seeking increased visitation–did not demonstrate an intent to forego all parental claims to her son. In re B.R.L., 379 N.C. 15 (2021)
Grounds for termination—willful failure to make reasonable progress—failure to enter into a case plan—The trial court did not err by determining that grounds existed to terminate the parental rights of the father of the two oldest children based on a willful failure to make reasonable progress where the unchallenged findings showed that he did not enter into a case plan with DSS to establish the goals he needed to achieve prior to reunification–despite several opportunities to do so–and that he was not incarcerated for nine of the twenty months the children were in DSS custody. In re M.S., 378 N.C. 30 (2021)
Grounds for termination—willful failure to make reasonable progress—incarceration—The trial court properly terminated respondent-father's parental rights to his children on the basis that he willfully failed to make reasonable progress to correct the conditions that led to the children's removal where the findings, supported by evidence, demonstrated that respondent, who was incarcerated throughout the pendency of the case, repeatedly made voluntary choices which delayed his release date, limited his options, and hindered his ability to comply with different aspects of his case plan. In re G.B., 377 N.C. 106 (2021)
Grounds for termination—willful failure to make reasonable progress—lack of participation in case plan—The trial court properly terminated respondent-mother's parental rights on the basis of willful failure to make reasonable progress where the findings established that respondent, whose pregnancy at thirteen resulted from a crime perpetrated against her and who was placed in foster care with her baby until aging out when she reached the age of majority, discontinued participation in and failed to comply with multiple aspects of her case plan despite having the ability to comply. The case plan had a sufficient nexus to the reason the child was removed from respondent's care because it included activities designed to foster stability and the acquisition of sufficient parenting skills. In re Q.P.W., 376 N.C. 738 (2021)
Grounds for termination—willful failure to pay a reasonable portion of cost of care—voluntary support agreement—The trial court did not err by terminating a mother's parental rights to her three children on the basis that she willfully failed to pay a reasonable portion of the cost of the children's care (N.C.G.S. § 7B-1111(a)(3)), where the mother signed a voluntary support agreement in which she agreed to pay $112.00 per month and she had past periods of employment, but during the determinative six-month period immediately preceding the filing of the termination petition, she was unemployed, paid nothing toward the cost of the children's care, and never moved to modify the support agreement. In re A.P.W., 378 N.C. 405 (2021)
Grounds for termination—willful failure to pay a reasonable portion of the cost of care—sufficiency of evidence—The trial court properly terminated a mother's parental rights to her three children based on willfully failing to pay a reasonable portion of the cost of their care although physically and financially able to do so (N.C.G.S. § 7B-1111(a)(3)), where clear, cogent, and convincing evidence showed that the mother had entered into a voluntary support agreement that she never moved to modify, she was employed during at least part of the six-month determinative period, but she had not voluntarily paid any support for her children. In re J.K.F., 379 N.C. 247 (2021)
Grounds for termination—willful failure to pay a reasonable portion of the cost of care—sufficiency of findings—The trial court properly terminated both parents' parental rights to their daughter on the ground that they willfully failed to pay a reasonable portion of the cost of care although physically and financially able to do so (N.C.G.S. § 7B-1111(a)(3)), based on unchallenged findings that the parents were obligated by court order to pay child support but, despite being employed and not under a disability, neither parent had paid any support. The Supreme Court declined to revisit the principle established in In re J.M., 373 N.C. 352 (2020), that when a parent is subject to a valid child support order, the petitioner in a termination of parental rights case is not required to independently prove that a parent had the ability to pay support during the relevant time period. In re S.C.C., 379 N.C. 303 (2021)
Grounds for termination—willful failure to pay child support—sufficiency of findings—In a termination of parental rights case, the trial court's findings were insufficient to support termination on the grounds of willful failure to pay child support where they failed to address whether an enforceable child support order was in place within one year prior to the termination petition being filed. The termination order was vacated and remanded for the trial court to exercise its discretion regarding the need for new evidence and to enter an order with findings and conclusions regarding the existence of a valid support order. In re C.L.H., 376 N.C. 614 (2021)
Guardian ad litem participation in hearing—appointed counsel's duties—N.C.G.S. § 7B-1101.1(d)—Respondent mother received a fundamentally fair hearing in a termination of parental rights case even though her guardian ad litem cross-examined witnesses and made arguments to the court (which was at the express direction of, or in apparent coordination with, respondent's appointed counsel). There was no violation of N.C.G.S. § 7B-1101.1(d) where counsel's actions representing respondent throughout the proceeding did not demonstrate an abdication of his responsibilities and where the clear statutory language required only that the parent's counsel and guardian ad litem not be the same person and did not constitute a prohibition against the guardian ad litem from assisting counsel as he did here. In re J.E.B., 376 N.C. 629 (2021)
Ineffective assistance of counsel—failure to show prejudice—On appeal from an order terminating a mother's parental rights, the mother's ineffective assistance of counsel claim lacked merit because, even assuming her counsel's performance was deficient (where counsel may have failed to ensure the mother received notice of the date and time of the termination hearing, and where counsel did not cross-examine the department of social services' witnesses, offer any witnesses on the mother's behalf, or offer a closing argument at the termination hearing), the mother failed to demonstrate that she was prejudiced as a result. The mother neither challenged the trial court's findings and conclusions of law in the termination order nor argued on appeal that, but for counsel's deficient performance, there was a reasonable probability of a different result. In re Z.M.T., 379 N.C. 44 (2021)
Jurisdiction—standing to initiate termination proceedings—"county director" of social services—Uniform Child Custody Jurisdiction and Enforcement Act —Wake County Human Services (WCHS) had standing under N.C.G.S. § 7B-1103(a)(3) to petition to terminate a mother's parental rights because her child–who lived in South Carolina when WCHS filed the petition in Wake County–was placed in WCHS's custody by a "trial court of competent jurisdiction" where the Wake County District Court met the jurisdictional prerequisites under the Uniform Child Custody Jurisdiction and Enforcement Act and where the petition had been properly verified. Furthermore, neither the definition of "director" found in N.C.G.S. § 7B-101(10) nor the county-specific allocation of social services under N.C.G.S. § 153A-257(a) imposes a geographical limit on which "county director" may initiate termination proceedings under N.C.G.S § 7B-401.1(a). Therefore, the District Court had subject matter jurisdiction over the termination matter. To the extent the mother's appellate arguments addressed venue rather than jurisdiction, those arguments were unpreserved and lacked merit. In re M.R.J., 378 N.C. 648 (2021)
Motion in the cause—verification requirement—N.C.G.S. § 7B-1104—subject matter jurisdiction—The trial court lacked subject matter jurisdiction to terminate a father's parental rights to his son based on an unverified motion in the cause, which was filed pursuant to N.C.G.S. § 7B-1102 after the child was adjudicated dependent and neglected, because the requirement in N.C.G.S. § 7B-1104 that a petition or motion to terminate parental rights "shall be verified" was jurisdictional in nature–a result compelled by In re T.R.P., 360 N.C. 588 (2006), which interpreted the same language in N.C.G.S. § 7B-403(a) to be jurisdictional. Nothing in section 7B-1104 distinguished between a petition and a motion in the cause, the statutory requirements served important constitutional interests, and a trial court could not derive its jurisdiction in a termination matter from a prior abuse, neglect, or dependency proceeding. In re O.E.M., 379 N.C. 27 (2021)
Motion to continue—to secure witness testimony—insufficient offer of proof—no prejudice—In a termination of parental rights matter, respondent-mother's motion to continue the hearing in order to secure a witness–who was expected to relate the services respondent was engaged in at a local health center–was properly denied where the offer of proof by respondent's counsel was vague and did not forecast what the witness's testimony would be, and where there was no dispute that respondent received services at the health center. Respondent waived any constitutional argument by not raising the issue before the trial court, and did not demonstrate she was prejudiced by the court's decision. In re D.J., 378 N.C. 565 (2021)
Multiple grounds for termination—adjudicatory stage—statements of trial court—no misapprehension of law—In a termination of parental rights hearing in which four grounds for termination were alleged, the trial court's statement at the end of adjudication that "We're here for – not for [respondents]. We're here for this child." did not reflect a misapprehension of the law by viewing the parents and child as adversaries. The court's full statement indicated its understanding that the parents' constitutionally protected rights as parents were paramount until grounds for termination were proven, at which point the matter would move to disposition. In re D.C., 378 N.C. 556 (2021)
No-merit brief—abandonment—The termination of a father's parental rights on grounds of abandonment was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. In re A.R.P., 377 N.C. 16 (2021)
No-merit brief—elimination of reunification from permanent plan—failure to make reasonable progress—The elimination of reunification with the father from his child's permanent plan and the subsequent termination of the father's parental rights on the grounds of failure to make reasonable progress were affirmed where the father's counsel filed a no-merit brief, the order eliminating reunification comported with the requirements of N.C.G.S. § 7B-906.2(b), and the termination order was supported by clear, cogent, and convincing evidence and based on proper legal grounds. In re D.M., 378 N.C. 435 (2021)
No-merit brief—failure to legitimate—The termination of a father's parental rights to his son on the grounds of failure to legitimate was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re Z.J.M., 379 N.C. 485 (2021)
No-merit brief—failure to make reasonable progress—The trial court's order terminating a father's parental rights to his daughter on the grounds of failure to make reasonable progress was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re I.P., 379 N.C. 228 (2021)
No-merit brief—failure to pay a reasonable portion of the cost of care—The termination of a father's parental rights on the grounds of willful failure to pay a reasonable portion of the cost of care was affirmed where counsel filed a no-merit brief and the termination order was supported by competent evidence and based on proper legal grounds. In re J.M., 377 N.C. 298 (2021)
No-merit brief—failure to pay a reasonable portion of the cost of care—best interests of the child—The termination of a mother's parental rights to her three children on multiple grounds was affirmed where her counsel filed a no-merit brief, both the evidence and the trial court's findings of fact supported termination on grounds of willful failure to pay the reasonable costs of child care (N.C.G.S. § 7B-1111(a)(3)), and the trial court did not abuse its discretion in finding that termination was in the children's best interests. In re P.R.F., 379 N.C. 298 (2021)
No-merit brief—multiple grounds for termination—The termination of a mother's parental rights to her three children on multiple grounds was affirmed where her counsel filed a no-merit brief, the trial court's order was supported by clear, cogent, and convincing evidence, and the termination order was based on proper legal grounds. In re T.I.S., 379 N.C. 482 (2021)
No-merit brief—multiple grounds for termination—The trial court's order terminating a mother's parental rights to her daughter on the grounds of neglect and failure to make reasonable progress was affirmed where her counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re S.G.S., 379 N.C. 471 (2021)
No-merit brief—multiple grounds for termination—The trial court's order terminating a father's parental rights to his five children on the grounds of neglect, failure to make reasonable progress, and failure to pay a reasonable portion of the cost of caring for the children was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re S.J., 379 N.C. 478 (2021)
No-merit brief—multiple grounds for termination—The termination of a mother's parental rights to her daughter on the grounds of neglect and willful failure to make reasonable progress was affirmed where the mother's counsel filed a no-merit brief, the trial court's findings of fact were supported by clear, cogent, and convincing evidence, and the termination order was based on proper legal grounds. In re N.K., 379 N.C. 294 (2021)
No-merit brief—multiple grounds for termination—record support—The termination of a father's parental rights to his son based on five separate statutory grounds was affirmed where the father's counsel filed a no-merit brief, the father did not file any written arguments, the termination order's findings of fact had ample record support, and there was no error in the trial court's determination that the father's parental rights were subject to termination and that termination would be in the son's best interest. In re J.L.F., 378 N.C. 445 (2021)
No-merit brief—multiple grounds—best interests of the children—The termination of a mother's parental rights to three of her children on multiple grounds was affirmed where her counsel filed a no-merit brief, the trial court's findings of fact in the termination order had ample record support, those findings supported the court's conclusion that termination grounds existed, and the trial court did not err in finding that termination was in the children's best interests. In re C.M.F., 379 N.C. 216 (2021)
No-merit brief—neglect—The trial court's order terminating a mother's parental rights to her daughter on the grounds of neglect was affirmed where her counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re K.W., 379 N.C. 255 (2021)
No-merit brief—neglect—failure to make reasonable progress —The termination of a father's parental rights to his three children–on the grounds of neglect and willful failure to make reasonable progress in correcting the conditions that led to the children's removal–was affirmed where the father's counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based on proper legal grounds. In re P.M., 377 N.C. 366 (2021)
No-merit brief—neglect—failure to make reasonable progress—The termination of a mother's parental rights on the grounds of neglect and willful failure to make reasonable progress was affirmed where the mother's counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. In re G.D.H., 377 N.C. 282 (2021)
No-merit brief—neglect—failure to pay reasonable portion of cost of care—The termination of a mother's parental rights for neglect and for failure to pay a reasonable portion of the costs for the child's care was affirmed where counsel for the mother filed a no-merit brief. The trial court's order was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. In re M.C.T.B., 377 N.C. 92 (2021)
No-merit brief—neglect—lifetime incarceration of father—In a termination of parental rights case where respondent-father was incarcerated for life without the possibility of parole for murder and for shooting a child, counsel for respondent filed a no-merit brief pursuant to Appellate Rule 3.1(e) which conceded that counsel could find no meritorious argument to challenge termination on the ground of neglect or the conclusion that termination was in the best interests of the child. After an independent review of the entire record, the Supreme Court affirmed the trial court's termination of respondent's parental rights. In re S.F.D., 376 N.C. 643 (2021)
No-merit brief—neglect—willful failure to make reasonable progress—The termination of a mother's parental rights–based on grounds of neglect and willful failure to make reasonable progress–was affirmed where the mother's counsel filed a no-merit brief, the termination order's findings of fact had ample record support, and where those findings supported the trial court's conclusions. To permit appellate review, the Supreme Court invoked Appellate Rule 2 to suspend the requirements under Rule 3.1(a) (that counsel provide copies of the no-merit brief, transcript, and record on appeal to the mother and to inform her of her right to file a pro se brief) where the mother's counsel made exhaustive efforts to contact her but to no avail. In re Z.R., 378 N.C. 92 (2021)
No-merit brief—neglect, failure to make reasonable progress, and abandonment—The termination of the incarcerated respondent-father's parental rights on the grounds of neglect, willfully leaving the children in a placement outside the home for more than twelve months without making reasonable progress to correct the conditions that led to their removal, and willful abandonment was affirmed where respondent's counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. In re A.R.W., 377 N.C. 234 (2021)
No-merit brief—pro se brief—weight of evidence—Where a father's parental rights were terminated and his attorney filed a no-merit brief on appeal, the Supreme Court rejected the father's pro se argument asking the Court to reweigh the evidence. In re J.M., 377 N.C. 298 (2021)
No-merit brief—termination on multiple grounds—The termination of a mother's parental rights on the grounds of neglect, failure to make reasonable progress, failure to pay a reasonable portion of the cost of care, and dependency was affirmed where the mother's counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. In re J.E.H., 378 N.C. 440 (2021)
No-merit brief—termination on multiple grounds—The termination of a mother's parental rights to her two children on multiple grounds was affirmed where her counsel filed a no-merit brief, the trial court's findings of fact had sufficient record support, those findings both supported termination on at least one ground and adequately addressed the dispositional issues delineated in N.C.G.S. § 7B-1110(a), and the trial court had a rational basis for concluding that termination of the mother's rights was in the children's best interests. In re J.D.D.J.C., 378 N.C. 593 (2021)
No-merit brief—termination on multiple grounds—The termination of a father's parental rights based on neglect, willful failure to make reasonable progress, dependency, and willful abandonment was affirmed where the father's counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based on proper legal grounds. In re J.G.S., 379 N.C. 245 (2021)
No-merit brief—termination on multiple grounds—both parents—The trial court's order terminating the parental rights of a mother based on neglect and willful failure to make reasonable progress and of a father based on neglect, willful failure to make reasonable progress, and willful failure to pay a reasonable portion of the cost of the children's care was affirmed where their attorneys filed no-merit briefs and the order was based on clear, cogent, and convincing evidence supporting the grounds for termination. In re R.D.M., 377 N.C. 94 (2021)
No-merit brief—termination on multiple grounds—competent evidence and proper legal grounds—The termination of respondent-mother's parental rights based on neglect, willful failure to make reasonable progress, and being incapable of providing proper care and supervision of the children was affirmed where the mother's counsel filed a no-merit brief and the termination order was supported by competent evidence and based on proper legal grounds. In re M.S., 378 N.C. 30 (2021)
No-merit brief—willful abandonment—willful failure to pay child support—The trial court's order terminating a father's parental rights to his son on the grounds of willful abandonment and willful failure to pay child support was affirmed where his counsel filed a no-merit brief and the termination order was supported by clear, cogent, and convincing evidence and based upon proper legal grounds. In re J.I.T., 379 N.C. 421 (2021)
Parental right to counsel—motion to withdraw—lack of contact—granted in parent's absence—In a termination of parental rights proceeding, the trial court did not abuse its discretion by allowing respondent-father's appointed counsel to withdraw from representation at a hearing in which respondent failed to appear. Respondent had been advised multiple times by the court of his responsibility to maintain contact with his attorney, the department of social services made diligent efforts to locate respondent, respondent appeared to actively avoid being found or receiving communications, he failed to appear at several hearings, and counsel related to the court that she spoke to respondent and he did not object to her motion. In re T.A.M., 378 N.C. 64 (2021)
Permanency planning—findings of fact—challenged on appeal—On appeal from the trial court's order terminating a mother's parental rights and from an earlier permanency planning order, the mother's challenges to several portions of a finding of fact in the permanency planning order–regarding her positive tests for alcohol, her lack of compliance with drug screens, her failure to maintain stable housing, and incidents of domestic violence–were rejected. The trial court's error in finding that she received three–rather than two–sanctions in drug treatment court was harmless where the evidence established two sanctions. In re L.R.L.B., 377 N.C. 311 (2021)
Permanency planning—required findings—insufficient—remedy—The trial court erred in a permanency planning order by failing to make all the written findings required by N.C.G.S. § 7B-906.2(d); specifically, even though there were sufficient findings addressing subsections (d)(1), (2), and (4), there were no findings concerning subsection (d)(3)–whether the mother "remain[ed] available to the court, the department, and the guardian litem." Where the trial court substantially complied with the statute, the appropriate remedy was to remand the matter for entry of the necessary findings and determination of whether those findings affected the decision to eliminate reunification from the permanent plan (rather than vacation or reversal of the permanency planning order or termination order). In re L.R.L.B., 377 N.C. 311 (2021)
Pleadings—sufficiency—private termination action—reference to court order—The petition in a private termination of parental rights action comported with statutory pleading requirements (N.C.G.S. § 7B-1104(2)) where the petition stated petitioners' names and address, alleged that custody had been granted to them, and referenced the custody order establishing that the child had resided with them for two years. In re S.C.L.R., 378 N.C. 484 (2021)
Request for new counsel and new guardian ad litem—denied—abuse of discretion analysis—In a termination of parental rights proceeding, the trial court did not abuse its discretion by denying respondent-father's motions for new counsel and a new guardian ad litem (GAL) where respondent made the requests prior to the hearing and outside the presence of counsel and the GAL, failed to present good cause to remove counsel and the GAL, and did not renew the motion or otherwise address the issue once counsel arrived for the hearing. In re M.J.R.B., 377 N.C. 453 (2021)
Standard of proof—clear, cogent, and convincing evidence—not stated in open court or in written findings—insufficient evidence to support grounds—The order terminating a father's parental rights to his child was reversed where the trial court did not state the standard of proof (clear, cogent, and convincing) either in open court or in its written findings, as required by N.C.G.S. § 7B-1109, and where insufficient evidence was presented to support the alleged grounds of failure to make reasonable progress (there was no evidence that the child had been in a court-ordered placement for at least twelve months prior to the termination petition being filed), failure to pay support (there was no evidence that the child's mother had been awarded custody or that the father was required by decree or custody agreement to pay support), or failure to legitimate (there was no evidence that the child was born out of wedlock). Where petitioner (the child's maternal grandmother) did not allege neglect or abandonment or seek a ruling on those grounds, her arguments pertaining to them were not properly considered on appeal. In re M.R.F., 378 N.C. 638 (2021)
Subject matter jurisdiction—during pendency of appeal—order void—The trial court lacked subject matter jurisdiction to proceed with the termination of a father's parental rights in his daughter while his appeal of the adjudicatory and dispositional orders (which had been entered on remand from the Court of Appeals) was pending, so the order was void. The Supreme Court rejected the guardian ad litem's argument that the father should be required to prove prejudice in order to prevail on appeal. In re J.M., 377 N.C. 298 (2021)
Subject matter jurisdiction—non-resident parents—residence of the child—The trial court had subject matter jurisdiction in a termination of parental rights case because–even though the parents were not and had not been residents of North Carolina–jurisdiction depends on the residence of the child, not the parents. Since the child was born in North Carolina and had lived her entire life in this state, she was a resident of North Carolina. In re N.P., 376 N.C. 729 (2021)
Subject matter jurisdiction—standing—petition filed by department of social services—The trial court had subject matter jurisdiction to terminate a mother's parental rights where the county department of social services (DSS) had standing to file the termination petition because it had been given custody of the child by a court of competent jurisdiction (N.C.G.S. § 7B-1103(a)). The social worker's testimony that she was the petitioner, when considered in context, did not mean that the petition was filed in the social worker's individual capacity. In re Z.G.J., 378 N.C. 500 (2021)
Subject matter jurisdiction—UCCJEA—home state—record evidence—The trial court had subject matter jurisdiction to terminate the parental rights of a father who was living out of state where, although the court did not make an explicit finding that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (N.C.G.S. § 50A-201), the record established that the Act's jurisdictional requirements were satisfied. The children's home state was North Carolina at the time the termination proceedings commenced, and the children had been living in North Carolina with their foster parents for more than six consecutive months immediately preceding the commencement of the proceedings. In re K.N., 378 N.C. 450 (2021)
Subject matter jurisdiction—verification of pleading—missing date of verification—substantial compliance—The trial court had subject matter jurisdiction in a termination of parental rights case where the termination motion substantially complied with the verification requirement under N.C.G.S. § 7B-1104, even though neither the petitioner who verified the motion nor the notary she appeared before had filled in the date of the verification on the attached notarial certificate. A savings clause in the Notary Public Act affords a "presumption of regularity" to notarized documents containing minor technical defects and, at any rate, none of the applicable rules governing verification require that a verified pleading be notarized. Further, where the significant date for purposes of a termination proceeding is the date upon which a termination motion was filed, it did not matter whether the motion was verified contemporaneously with or subsequent to the date it was signed. In re C.N.R., 379 N.C. 409 (2021)
Subject matter jurisdiction—where child resides with guardian—underlying juvenile case—In a private termination proceeding, the trial court had subject matter jurisdiction to enter an order terminating a mother's parental rights to her child where the child's legal permanent guardian filed the termination petition in the county in which she resided with the child (Robeson), satisfying the jurisdictional requirements of N.C.G.S. § 7B-1101. A different county's jurisdiction over the child's underlying juvenile case did not prevent the Robeson County court from having jurisdiction over the termination petition. In re M.J.M., 378 N.C. 477 (2021)
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