Supreme Court - Digested Index

For the Year: 2022

Appeal and Error

Interlocutory order—claims dismissed without prejudice—no substantial right—In an action for declaratory judgment and tortious interference with contract, which was designated a complex business case, plaintiff's cross-appeal from an interlocutory order partially granting defendants' motion to dismiss was dismissed as premature. The order did not affect a substantial right to avoid the risk of inconsistent verdicts in two possible trials where plaintiff's claims were dismissed without prejudice and, therefore, not all relief had been denied. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Interlocutory order—substantial right—denial of summary judgment—assertion of public official immunity—Defendant police officer was entitled to appellate review of an order denying his motion for summary judgment where, although the order was interlocutory, the denial affected a substantial right because defendant asserted the defense of public official immunity. Bartley v. City of High Point, 381 N.C. 287 (2022)

Interlocutory orders—of a business court judge—statement of grounds for appellate review—An appeal from a partial summary judgment order in a mandatory complex business case was dismissed where appellant failed to show that the order affected a substantial right or satisfied any of the other requirements under N.C.G.S. § 7A-27(a)(3) for an appeal as of right from an interlocutory order of a business court judge. Specifically, appellant's statement for the grounds of appellate review in its brief contained only bare assertions that the order met section 7A-27(a)(3)'s requirements while failing to allege sufficient facts and arguments to support those assertions. KNC Techs., LLC v. Tutton, 381 N.C. 475 (2022)

Interlocutory orders—substantial right—challenge to trust amendments—order for distributions to defending beneficiaries—Where plaintiffs challenged certain amendments to their father's revocable trust removing them as beneficiaries and the trial court issued an interlocutory order directing the trustee to make distributions to the beneficiaries for the legal fees incurred in their defense of the trust amendments, the Court of Appeals properly exercised jurisdiction over plaintiffs' interlocutory appeal because the order impacted a substantial right–namely, their right to recover from the trustee pursuant to N.C.G.S. § 36C-6-604(b) for distributions to the defending beneficiaries in the event plaintiffs were successful in their challenge to the trust amendments. However, the portions of the Court of Appeals' opinion addressing one of the trial court's rulings not appealed by the parties was vacated. Wing v. Goldman Sachs Tr. Co., N.A., No. 488PA20 (N.C. Aug. 19, 2022)

Mootness—statute amended during appeal—request for damages—constitutionality of fees—Where plaintiffs filed suit challenging a county ordinance that required residential property developers to pay one-time water and sewer "capacity use" fees for each lot they wished to develop as a precondition for the county's concurrence in the developer's applications for water and sewer permits, plaintiffs' request for declaratory relief was not rendered moot by the legislature's amendments to the relevant statutory provisions during the pendency of the appeal because plaintiffs' request for declaratory relief was inextricably intertwined with their claim for monetary relief. Further, the county's statutory authority to enact the fees at issue had no bearing on the constitutionality of those fees. Anderson Creek Partners, L.P. v. Cnty. of Harnett, No. 62PA21 (N.C. Aug. 19, 2022)

Order granting motion to dismiss—de novo review—no request by parties for findings—remand not appropriate—In a case involving allegations of fraud against a bank, where the trial court granted defendant's motion to dismiss for failure to state a claim, the Court of Appeals erred by remanding the case to the trial court for further findings of fact instead of reviewing de novo whether plaintiffs' complaint contained allegations sufficient to support their claims for relief. The trial court was not required to include any factual findings or conclusions of law in its order, and none were requested by either party. Taylor v. Bank of Am., N.A., No. 102A20-2 (N.C. Nov. 4, 2022)

Petition for certiorari—authority of Court of Appeals—exercise of discretion—The decision of the Court of Appeals to deny a criminal defendant's petition for a writ of certiorari to review an order of the trial court denying his motion to suppress was, for the second time, vacated and remanded with instructions for the Court of Appeals to exercise its discretion in determining whether to allow or deny defendant's petition on its merits. The Supreme Court overruled prior Court of Appeals decisions that incorrectly held or implied that the Court of Appeals lacks authority to issue a writ of certiorari in similar circumstances or that Appellate Rule 21 limits its authority to do so. State v. Killette, 381 N.C. 686 (2022)

Preservation of issues—constitutional argument—raised and ruled upon—Plaintiff properly preserved her argument regarding the constitutionality of Chapter 50B where plaintiff's counsel raised the issue before the trial court–by asserting that the statute was unconstitutional based on a recent opinion of the United States Supreme Court, stating that there was no rational basis for the statutory provision at issue, and citing an out-of-state case in support of plaintiff's argument–and obtained a ruling from the trial court. M.E. v. T.J., 380 N.C. 539 (2022)

Preservation of issues—constitutional issue—child abuse and neglect proceeding—In an abuse and neglect proceeding, a father failed to preserve his constitutional argument that it was error for the trial court to grant guardianship to his children's grandparents without first concluding that the father was an unfit parent or had acted inconsistently with his constitutional right to parent. The father had ample notice that the department of social services was recommending that the permanent plan be changed from reunification to guardianship, he failed to make any argument that guardianship with the grandparents would be inappropriate on constitutional grounds, and the issue was not automatically preserved. In re J.N., 381 N.C. 131 (2022)

Preservation of issues—criminal case—denied request for jury instruction—self-defense—request constituted objection—In a prosecution for assault on a female and other related charges, defendant properly preserved for appellate review his challenge to the trial court's refusal to instruct the jury on self-defense where, although defendant expressly agreed to the trial court's planned instructions during the charge conference and again after the court finished instructing the jury, defendant's request for a self-defense instruction–which he made right before the court instructed the jury–constituted an "objection" for purposes of Appellate Rule 10(a)(2). Further, defendant's failure to file a pre-trial notice of his intent to assert self-defense as required under N.C.G.S. § 15A-905(c)(1) did not preclude him on appeal from challenging the trial court's refusal to instruct on self-defense, where the court's decision did not appear to be the imposition of a discovery sanction under section 15A-910(a)(4) and, even if that had been the court's intent, it failed to take the procedural steps necessary to justify such a sanction. State v. Hooper, No. 382A21 (N.C. Nov. 4, 2022)

Preservation of issues—jury instruction—self-defense—specific grounds for objection—In a murder prosecution, where the trial court instructed the jury that N.C.G.S. § 14-51.4 precluded defendant from claiming self-defense because he was committing a felony (possession of a firearm by a felon) at the time he used defensive force against the victim, defendant preserved for appellate review his argument that the court erred by not instructing the jury that section 14-51.4 only applied if the State could prove an immediate causal nexus between defendant's use of defensive force and his commission of the felony. Defendant's objection at trial–that the court erred in delivering an instruction on section 14-51.4 and, alternatively, the court misstated the scope and applicability of the felony disqualifier–encompassed defendant's argument on appeal and therefore met the specificity requirement of Appellate Rule 10 (parties must state the specific grounds for their objection unless those grounds were apparent from the context). State v. McLymore, 380 N.C. 185 (2022)

Preservation of issues—jury instructions—specific request—Defendant failed to properly preserve his challenge to the trial court's jury instructions in his trial for first-degree murder–that the trial court allegedly erred by not instructing that defendant was presumed to have had a reasonable fear of imminent death or great bodily injury–where defendant did not specifically request the instruction but rather simply requested that the trial court instruct the jury in accordance with N.C.P.I. - Crim. 308.10. State v. Benner, 380 N.C. 621 (2022)

Preservation of issues—mandatory joinder—raised for first time on appeal—challenge to N.C. law—Defendant did not properly preserve her mandatory joinder argument–that the opinion of the Court of Appeals declaring a portion of Chapter 50B unconstitutional must be vacated and remanded for the mandatory joinder of the General Assembly pursuant to Civil Procedure Rule 19(d)–where the mandatory joinder issue was first raised by the Court of Appeals' dissenting opinion. Even assuming that Rule 19(d) mandatory joinder may be raised for the first time on appeal, plaintiff's Chapter 50B action for obtaining a domestic violence protective order–in which plaintiff asserted an as-applied constitutional defense to prevent dismissal of her action–did not qualify as a civil action challenging the validity of a North Carolina statute. M.E. v. T.J., 380 N.C. 539 (2022)

Preservation of issues—probation revocation—right to confront witnesses—insufficient objection—Where defendant's objection at his probation revocation hearing to the introduction of a transcript of an officer's testimony (from a prior suppression hearing regarding an offense for which defendant was ultimately not convicted) did not specifically reference either a constitutional or statutory right to confront witnesses, but appeared at most to challenge the evidence on relevance grounds, and where defendant neither made a request to have the officer testify nor was prevented from doing so, the issue of whether defendant's confrontation rights were violated was neither properly preserved for appellate review nor automatically preserved as a violation of a statutory right (under N.C.G.S. § 15A-1354(e)). State v. Jones, No. 85PA20 (N.C. Aug. 19, 2022)

Preservation of issues—timely objection—grounds for objection—clear from context—In his trial for driving while impaired, defendant properly preserved the issue of whether a police officer gave improper lay opinion testimony–his opinion that defendant was the driver of a crashed moped–by timely objecting to the testimony. Defense counsel was not required to clarify the grounds for the objection because it was reasonably clear from the context. State v. Delau, 381 N.C. 226 (2022)

Standard of review—conclusion that factual basis exists to support guilty plea—de novo—A trial court's conclusion regarding the sufficiency of a factual basis to support a defendant's guilty plea requires an independent judicial determination and, as such, is subject to de novo review on appeal. State v. Robinson, 381 N.C. 207 (2022)

Swapping horses on appeal—statute enacted during pendency of appeal—new claim raised—Where a case arising from a school board's constitutional challenge to the attorney general's administration of funds received pursuant to an agreement with a hog farming company (following the contamination of water supplies by swine waste lagoons) was on remand at the Court of Appeals for further proceedings not inconsistent with the Supreme Court's prior opinion, the Court of Appeals erred by concluding that the school board's amended complaint sufficed to state a claim for relief pursuant to a statute that was enacted during the pendency of the appeal (N.C.G.S. § 147-76.1). The school board could not raise an entirely new claim for the first time on appeal–based on a statute that did not even exist at the time its amended complaint was filed–from the trial court's order granting summary judgment to the attorney general. New Hanover Cnty. Bd. of Educ. v. Stein, 380 N.C. 94 (2022)

Assault

Guilty plea—multiple charges—factual basis—no evidence of distinct interruption in assault—The factual basis for defendant's guilty plea to multiple assaults was insufficient to support the trial court's decision to accept the plea and sentence defendant to three separate and consecutive assault sentences based on an assaultive episode in which defendant grabbed the victim's neck, punched her multiple times, and strangled her. Although the victim stated that defendant had held her captive for three days, the evidence as presented to the trial court did not describe any distinct interruptions between the assaults–whether a lapse in time, a change in location, or other intervening event–but instead indicated a confined and continuous attack. State v. Robinson, 381 N.C. 207 (2022)

On a female—self-defense—jury instruction—sufficiency of evidence—In a prosecution for assault on a female and other charges arising from an altercation between defendant and his child's mother, in which the woman shot defendant after he choked and punched her, the trial court did not err by denying defendant's request for a jury instruction on self-defense where the evidence–which presented multiple versions of what happened during the altercation–did not indicate that defendant assaulted the woman based on a perceived need to protect himself against unlawful force on the woman's part. Even under the version of events most favorable to defendant–where the woman brandished the gun, defendant asked her to relinquish the weapon, she fired one shot, a scuffle ensued, and then the woman shot defendant's leg–there was no evidence that the woman pointed the gun in the absence of provocation by defendant, especially given testimony stating the woman feared that defendant would kill her if she did not have the gun. State v. Hooper, No. 382A21 (N.C. Nov. 4, 2022)

Associations

Non-judicial power of sale—North Carolina Condominium Act—plain language of Act and declaration—A condominium formed in 1982, prior to the enactment of the N.C. Condominium Act in 1985, had the power of sale for foreclosure pursuant to section 3-116 of the Act for nonpayment of an assessment that occurred after 1 October 1986 where the plain language of the Act stated that section 3-116 applied "to all condominiums created in this State on or before October 1, 1986, unless the declaration expressly provides to the contrary" and the condominium's declaration did not expressly provide to the contrary. A reference in the declaration to the intent to submit the property to the N.C. Unit Ownership Act, which did not expressly exclude foreclosure by power of sale, simply satisfied a registration requirement and did not bar the use of foreclosure by power of sale. In re Foreclosure of a Lien by Exec. Off. Park of Durham Ass'n against Rock, No. 240PA21 (N.C. Nov. 4, 2022)

Attorney Fees

Contract to purchase real estate—obligation to pay earnest money deposit and due diligence fee—evidence of indebtedness—After a buyer breached a contract to purchase real estate, which provided that the prevailing party in an action to recover the earnest money deposit would be entitled to collect "reasonable" attorney fees from the opposing party, the district court properly awarded attorney fees to the seller in her action to recover the earnest money deposit (and a due diligence fee) from the buyer. The contract–as a printed instrument signed by both parties that, on its face, evidenced a legally enforceable obligation for the buyer to pay both the deposit and the fee to the seller–constituted an "evidence of indebtedness" for purposes of N.C.G.S. § 6-21.1 (allowing parties to any "evidence of indebtedness" to recover attorney fees resulting from a breach). Further, the court did not err in awarding attorney fees exceeding the statutory cap set forth in section 6-21.2 because the additional amount represented what the seller incurred in the course of defending the award she initially received from a magistrate (and which the buyer appealed to the district court). Reynolds-Douglass v. Terhark, 381 N.C. 477 (2022)

Child Abuse, Dependency, and Neglect

Adjudication—conditions existing at the time of the petition's filing—alternative placement with family—The trial court did not err in adjudicating a child as dependent by examining the conditions existing at the time the petition was filed as required by N.C.G.S. § 7B-802 (rather than at the time of the adjudication) and determining that–at the time the petition was filed–the child, whose mother had committed a felony assault causing serious bodily injury to the child, had no alternative placement options with family because the alleged father's whereabouts were unknown and no home studies with other relatives had been completed. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Dependency—incapability to parent—cognitive defects and mental illness—The trial court properly terminated a father's parental rights in his children on grounds of dependency (N.C.G.S. § 7B-1111(a)(6)) where clear, cogent, and convincing evidence–along with the court's unchallenged findings of fact–supported a determination that, at the time of the termination hearing, the father was incapable of providing proper care and supervision of the children and there was a reasonable probability that this incapability would continue for the foreseeable future. Among other things, the father suffered from severe cognitive defects and mental illnesses (including bipolar disorder, attention deficit hyperactivity disorder, and an unspecified intellectual disability) that impaired his ability to reason, exercise judgment, or problem solve, and that there was no evidence showing that his mental condition was expected to change. In re J.I.G., 380 N.C. 747 (2022)

Guardianship—best interests of the child standard—findings of fact—support for conclusions—The trial court in a neglect case properly applied the "best interests of the child" standard in awarding guardianship of a mother's two children to the paternal grandmother after properly determining that the mother had acted inconsistently with her constitutionally protected parental status. Further, the guardianship award was appropriate where the court's factual findings supported its conclusions that the conditions leading to the children's removal continued to exist (the mother's substantial compliance with her family services agreement did not overcome the initial concerns prompting the children's removal–her relinquishment of custody to the grandmother for three years–and she failed to obtain suitable housing until nineteen months after social services' involvement) and that social services had made reasonable efforts toward reunifying the children with their mother (regardless of social services "abruptly" moving for guardianship after initially recommending a trial home placement). In re B.R.W., 381 N.C. 61 (2022)

Initial disposition—elimination of reunification efforts—written findings—felony assault resulting in serious bodily injury to the child—remand—In a juvenile case arising from reports that respondent-mother had burned and struck her infant, although the trial court's written findings were insufficient to support the elimination of reunification efforts as an initial disposition following adjudication, the record did contain sufficient evidence to support elimination of reunification efforts as an initial disposition based on respondent's commission of a felony assault resulting in serious bodily injury to the infant, pursuant to N.C.G.S. § 7B-901(c)(3)(iii). Therefore, the relevant portion of the trial court's order was vacated and the matter was remanded for entry of appropriate findings on the matter. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Neglect—dismissal of claim—standard of review on appeal—de novo—In a neglect case, where the trial court's findings–which were based on the parties' stipulations–were unchallenged and therefore binding on appeal, the Court of Appeals erred in affirming the trial court's dismissal of the neglect claim because it failed to conduct a proper de novo review of the trial court's decision. Rather than determining whether the unchallenged findings of fact supported a legal conclusion of neglect, the Court of Appeals' use of speculative language demonstrated an improper deference to the trial court's conclusion where it stated that another judge "may have" adjudicated the juvenile as neglected, that the findings "might" support a neglect adjudication but did not "compel" one, and that it could not "say as a matter of law" that the trial court erred by dismissing the claim. The matter was remanded to the Court of Appeals to conduct a proper de novo review. In re K.S., 380 N.C. 60 (2022)

Permanency planning—guardianship—constitutionally protected parental status—indefinitely ceding custody to nonparent—The trial court properly awarded guardianship of two neglected children to their paternal grandmother where the court's findings supported its conclusion that their mother had acted inconsistently with her constitutionally protected status as a parent by voluntarily ceding custody of the children–then ages one and four years old–to the grandmother for three years until social services assumed custody. Although the mother made demonstrable progress in her family services plan, the fact that she made minimal contact with the children throughout that three-year period (during which the children developed a stronger bond with the grandmother than with the mother) and made no attempts to regain custody until social services got involved indicated that she intended for the grandmother to serve indefinitely as the children's primary caregiver. In re B.R.W., 381 N.C. 61 (2022)

Permanent plan—ceasing reunification efforts—sufficiency of findings—In a permanency planning matter, the trial court did not err by ceasing respondent's visitation with her teenage daughter and eliminating reunification from the permanent plan based on evidence that respondent behaved inappropriately during visits and was not in compliance with her case plan and that the daughter showed improved behavior after no longer seeing her mother. A social worker's testimony and reports from the department of social services (DSS) supported the challenged findings of fact as well as the court's determination that DSS's efforts to finalize the permanent plan were reasonable. In re C.C.G., 380 N.C. 23 (2022)

Underlying case files—admitted in previous hearing—judicial notice—failure to object—waiver of appellate review—In a juvenile case, by failing to lodge an objection, respondent-mother waived appellate review of the trial court's decision to take judicial notice of medical records that had been admitted at a previous hearing regarding nonsecure custody of her juvenile. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Underlying case files—judicial notice—no objection—effective assistance of counsel—In a juvenile case, the decision of respondent-mother's counsel not to object to the trial court taking judicial notice of certain medical records did not constitute ineffective assistance of counsel where the trial court had already allowed testimony regarding how respondent had burned and struck her infant and where the medical records contained the same information about the source of the infant's injuries. Counsel stated that his reason for not objecting was because the records were already in evidence; in addition, neither appellate court had directly addressed whether a trial court may, at a later adjudication hearing, judicially notice evidence that has previously been admitted at a hearing regarding continuance of non-secure custody. In re L.N.H., No. 393PA20 (N.C. Nov. 4, 2022)

Churches and Religion

Subject matter jurisdiction—ecclesiastical abstention doctrine—termination of pastor's employment—In a lawsuit arising from an employment dispute between a church and one of its former pastors, the ecclesiastical entanglement doctrine of the First Amendment did not bar the trial court from reviewing the pastor's claim seeking a declaratory judgment establishing that his employment relationship with the church was not "at-will" and that the church's procedure for firing him violated the church's then-controlling bylaws, since the court could apply neutral principles of law to resolve the claim. In contrast, First Amendment principles required dismissal of the pastor's claim for injunctive relief allowing him to resume his employment, the resolution of which would necessarily require the court to second-guess the board's evaluation of the pastor's job performance. Similarly, the pastor's claims alleging that the church's board of directors breached a fiduciary duty owed to him, tortiously interfered with his employment relationship, and misappropriated church funds required dismissal where each claim would require the court to examine whether the board's actions advanced the church's religious mission. Nation Ford Baptist Church, Inc. v. Davis, No. 390A21 (N.C. Aug. 19, 2022)

Civil Procedure

Motion to dismiss—matters outside the pleadings—arguments of counsel not evidence—no conversion to motion for summary judgment—On a motion to dismiss a medical negligence claim pursuant to Civil Procedure Rule 12(b)(6), where the trial court did not consider matters outside the pleadings, it was not required to convert the motion to one for summary judgment under Civil Procedure Rule 56, which would have necessitated giving the parties additional time to conduct discovery and present evidence. Although plaintiff's counsel made several factual assertions in his memorandum of law and during the hearing, arguments of counsel are not evidence, and no evidentiary materials were submitted. The matter was remanded to the Court of Appeals for consideration of two remaining issues. Blue v. Bhiro, 381 N.C. 1 (2022)

Presumption of regularity—order terminating parental rights—signed by judge who did not preside over hearing—administrative and ministerial action—An order terminating respondent-mother's parental rights, signed by the chief district court judge after the judge who had presided over the hearing retired–which stated in an unchallenged finding that the findings of fact, conclusions of law, and decretal had been announced in chambers by the now-retired judge, and that the order was administratively and ministerially signed by the chief district court judge–was held to be properly entered in an administrative and ministerial capacity pursuant to Civil Procedure Rules 52 and 63 where respondent-mother failed to rebut the presumption of regularity. In re E.D.H., 381 N.C. 395 (2022)

Rules 52 and 63—order terminating parental rights—new findings made by substitute judge without hearing evidence—improper judicial action—An order terminating a father's parental rights to his child was vacated as a nullity where, after a prior termination order was vacated on appeal, remanded, and the matter assigned to a substitute judge (due to the original judge being deceased), the substitute judge acted in a judicial and not merely a ministerial manner by making new findings–beyond what appeared in the initial order–based on evidence the judge did not personally hear. Civil Procedure Rules 52 and 63 do not permit a substitute judge who did not preside over a matter to make new findings of fact and conclusions of law. In re K.N., 381 N.C. 823 (2022)

Voluntary dismissal—amended by hand—functional Rule 60(b) motion—domestic violence protective order action—Where plaintiff dismissed her Chapter 50B domestic violence protective order action but, thirty-nine minutes later, struck through the notice and wrote "I do not want to dismiss this action" on the Notice of Voluntary Dismissal form, the trial court acted within its broad discretion in exercising jurisdiction over the Chapter 50B complaint. Plaintiff's amended notice of dismissal functionally served as a motion for equitable relief under Civil Procedure Rule 60(b), and her later amendment to the complaint, which defendant consented to, functionally served as a refiling. M.E. v. T.J., 380 N.C. 539 (2022)

Class Actions

Class certification—common predominating issue—DPS inmates—solitary confinement settings—The trial court did not abuse its discretion by denying plaintiffs' motion for class certification where plaintiffs were inmates in the custody of the N.C. Department of Public Safety (DPS) who were being or would be subjected to solitary confinement and were alleging that DPS's policies and practices concerning five types of restrictive housing assignments violated the state constitution. Specifically, there was no abuse of discretion in the trial court's conclusion that plaintiffs had failed to demonstrate a common predominating issue among the proposed class members where plaintiffs presented insufficient evidence connecting the five challenged types of restrictive housing assignments to an alleged uniform risk of harm, and where risk of harm depended significantly upon the penological purposes served, the duration and length of stay, the procedural safeguards, and the relevant attendant circumstances of each type of housing assignment. Dewalt v. Hooks, No. 165A21 (N.C. Nov. 4, 2022)

Constitutional Law

Confrontation Clause—test performed by nontestifying chemical analyst—prejudice analysis—overwhelming evidence—Even assuming, without deciding, that in defendant's trial for rape and kidnapping, the trial court violated defendant's rights under the Confrontation Clause by overruling his objections to the testimony of a forensic scientist manager from the State Crime Laboratory regarding testing performed by a nontestifying chemical analyst–that a confirmatory test detected the drug Clonazepam (a date rape drug) in the victim's urine–the State met its burden under N.C.G.S. § 15A-1443(b) of demonstrating that the alleged error was harmless beyond a reasonable doubt. In the first place, other evidence established that the crime lab's initial testing detected Clonazepam in the victim's urine; moreover, even without the evidence of Clonazepam in the victim's urine, there was overwhelming evidence of defendant's guilt before the jury, including evidence of the drug Cyclobenzaprine (another date rape drug) in the victim's hair sample, surveillance footage showing the victim in an impaired state with defendant, the testimony of a restaurant waitress to the same effect, the testimony of a sexual assault nurse examiner, the testimony of the victim and her mother regarding the victim's impaired state, and DNA evidence. State v. Pabon, 380 N.C. 241 (2022)

Effective assistance of counsel—Miller resentencing—counsel's failure to raise legal issue—prejudice analysis—On appeal from the denial of defendant's motion for appropriate relief (MAR) (which sought re-sentencing of his convictions for murder, kidnapping, and two counts of robbery), the Court of Appeals properly denied defendant's claim that his counsel's performance at the MAR hearing was deficient because defendant could not demonstrate that he was prejudiced by his counsel's decisions to inform the trial court that the two robbery convictions (which arose out of a separate criminal transaction) were not before the court and to ask only for the other two sentences to run concurrently. The trial court's decision to impose consecutive sentences for the murder and kidnapping, which arose from the same transaction, clearly showed its belief that defendant should be punished separately for each of his crimes. However, the decision of the Court of Appeals was modified where it misinterpreted N.C.G.S. § 15A-1354(a) to suggest that the trial court would not have been authorized to run the murder and kidnapping sentences concurrently with the robbery sentences. State v. Oglesby, No. 683A05-3 (N.C. Aug. 19, 2022)

Effective assistance of counsel—termination of parental rights—prejudice analysis—In a termination of parental rights matter, respondent-mother failed to show prejudice and therefore was not entitled to relief on her claim of ineffective assistance of counsel–in which she alleged that her counsel failed to ensure respondent was present at the hearings, seek visitation, file a response to the termination petition, assert due process claims, or advocate sufficiently. Based on evidence of numerous communications between respondent and her counsel throughout the proceedings, and respondent's failure to complete any part of her case plan despite understanding what was expected, she did not demonstrate that there was a reasonable probability of a different outcome absent the alleged errors by counsel. In re B.B., 381 N.C. 343 (2022)

Equal protection and due process—request for prior trial transcript—harmless error—At defendant's retrial for multiple driving offenses arising from a car crash, in which two witnesses identified defendant as the drunk driver of the wrecked car, the trial court properly denied defendant's motions for a continuance and for a transcript of his prior mistrial, in which defendant argued that the denial of his motions would violate his due process and equal protection rights because the transcript was necessary to impeach the witnesses who identified him. Although the record did not indicate whether the trial court applied the requisite two-part test from Britt v. North Carolina, 404 U.S. 226 (1971), when denying defendant's transcript request, any error (assuming the trial court had erred) was harmless beyond a reasonable doubt given the overwhelming evidence of defendant's identity as the drunk driver at the crash. State v. Gaddis, No. 306A21 (N.C. Aug. 19, 2022)

Interstate sovereign immunity—waiver—sue and be sued clause—out-of-state public university—local office registered as foreign nonprofit—An Alabama public university that operated a recruiting office in North Carolina (to enroll students from this state in online courses) explicitly waived its sovereign immunity from being sued in North Carolina by a former employee raising intentional tort claims when it registered its local office as a foreign nonprofit corporation–which rendered it subject to the sue and be sued clause of the North Carolina Nonprofit Corporation Act (N.C.G.S. § 55A-3-02(a)(1))–and when it obtained a certificate of authority to conduct business in this state–which signaled its consent to be treated like a domestic corporation of like character and to be sued in North Carolina. Farmer v. Troy Univ., No. 457PA19-2 (N.C. Nov. 4, 2022)

North Carolina—education provisions—fundamental right to sound basic education—The Supreme Court reaffirmed the principle stated in Leandro v. State, 346 N.C. 336 (1997) and Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605 (2004), that the education provisions of the North Carolina Constitution (including Article I, Section 15 and Article IX, Section 2) expressly establish the right of every child in North Carolina to be given the opportunity to receive at least a sound basic education, a right that the State has an affirmative duty to protect and maintain. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Public school funding—failure to provide—equitable remedy—inherent power of judiciary to grant—ordering the transfer of state funds—The North Carolina Constitution requires the General Assembly to adequately fund the public school system in order to fulfill the State's constitutional duty to provide to every child in North Carolina the opportunity to receive a sound basic education, and it gives the judiciary inherent power to uphold constitutional rights; thus, in the exceedingly rare and extraordinary circumstance where the General Assembly continually fails to meet its obligations to provide adequate funds to meet the constitutional minimum standard for public education, a court may, after exhibiting the appropriate deference and after established methods of seeking a remedy fail, order as an equitable remedy the transfer of adequate available state funds. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Public school funding—right to sound basic education—ongoing violation—remedy—transfer of state funds—Where the state public education system was constitutionally deficient due to the State's continued failure to provide to all children the opportunity to receive a sound basic education–as set forth in Leandro v. State, 346 N.C. 336 (1997), and Hoke Cnty. Bd. of Educ. v. State, 358 N.C. 605 (2004)–the extraordinary circumstances of the State's ongoing constitutional violation and the failure of the legislative and executive branches to correct those educational deficiencies despite years of opportunity required the judiciary to exercise its inherent power to fashion an appropriate equitable remedy. The trial court did not err when it ordered the State to transfer funds to comply with portions of the State's Comprehensive Remedial Plan based on conclusions that the violation was statewide and that the trial court had shown proper deference to the other branches prior to taking this step. However, the trial court's subsequent order rescinding the transfer requirement–based on a mistaken conclusion, which required reversal, that it lacked authority to order the transfer–was vacated and the matter remanded to the trial court for the narrow purpose of recalculating the amount of funds to be transferred, subject to the 2022 state budget. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Public school funding—role of General Assembly—appropriations power—subject to duty to provide sound basic education—The education provisions of the North Carolina Constitution (including Article I, Section 15 and Article IX, Section 2) require the General Assembly to wield its appropriations power in accordance with its contemporaneous duty to provide every child in every school district the opportunity to receive at least a sound basic education. Hoke Cnty. Bd. of Educ. v. State of N.C., No. 425A21-2 (N.C. Nov. 4, 2022)

Right to counsel—forfeiture—defendant did not act egregiously—Defendant was entitled to a new trial for murder and related charges where the trial court violated defendant's right to counsel by determining that defendant had forfeited that right. Throughout the pendency of the case–during which defendant had five different court-appointed attorneys (two of whom withdrew of their own volition, two others withdrew at defendant's request due to differences related to the preparation of his defense, and one was appointed as standby counsel), he waived his right to counsel and agreed to proceed pro se, and he subsequently requested assistance of counsel due to the difficulties he was having in preparing his defense–defendant remained courteous and engaged with his case, he did not exhibit aggressive or disruptive behavior, and his actions did not rise to the level of serious obstruction of the trial proceedings. State v. Harvin, No. 485PA19 (N.C. Nov. 4, 2022)

Right to speedy trial—Barker factors—evaluation of prejudice to defendant—misapplication of correct standard—In a prosecution for charges stemming from a fatal car accident, where more than six years passed before defendant's case was brought to trial, the trial court misapplied the proper standard for determining whether the delay prejudiced defendant pursuant to Barker v. Wingo, 407 U.S. 514 (1972), by first finding that the State had been prejudiced by the delay, and by determining that the prejudice factor weighed against defendant because he did not demonstrate actual prejudice. The constitutional right to a speedy trial is granted to defendants to protect against prosecutorial delay, and prejudice may be shown by presumptive rather than actual prejudice. State v. Farook, 381 N.C. 170 (2022)

Unconstitutional conditions doctrine—land-use permits—water and sewer impact fees—legislatively enacted and generally applicable—Where plaintiffs filed suit challenging a county ordinance that required residential property developers to pay one-time water and sewer "capacity use" fees (which were generally applicable and non-negotiable) for each lot they wished to develop as a precondition for the county's concurrence in the developer's applications for water and sewer permits, the "capacity use" fees were properly considered as both impact fees and monetary exactions, and they were subject to review under the unconstitutional conditions doctrine; therefore, the fees had to have an essential nexus and rough proportionality to the impact of plaintiff's developments on the county's water and sewer systems in order to avoid being treated as takings of plaintiffs' property. While plaintiffs' complaint admitted the existence of the required essential nexus, the question of rough proportionality needed to be determined on remand. Anderson Creek Partners, L.P. v. Cnty. of Harnett, No. 62PA21 (N.C. Aug. 19, 2022)

Contracts

Tortious interference with contract—specific pleading requirements—no rebuttal to qualified privilege—In a complex business case, where a corporation's former CEO (plaintiff) accused two shareholders and the minority shareholder's managing partner (defendants) of inducing the corporation to violate plaintiff's employment agreement, the trial court properly dismissed plaintiff's claim for tortious interference with contract for failure to state a claim. Plaintiff did not comply with the specific pleading requirements for tortious interference claims where his complaint made conclusory, general allegations that defendants had acted with malice. Further, the complaint failed to rebut the presumption that the shareholders–as corporate "non-outsiders"–acted in the corporation's best interest, and also failed to rebut the qualified privilege afforded to stockholders to interfere with a corporation's contracts with third parties. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Courts

Superior court—denial of petition for certiorari—motion to reinstate charges—discretion of district attorney—Where the State dismissed (with leave) charges against defendant for driving while impaired and driving without a license after defendant failed to appear in court and the district court denied defendant's motion to reinstate the charges, the superior court properly denied defendant's petition for writ of certiorari to review the district court's decision. Because the district attorney had the exclusive and discretionary power to place the criminal charges in dismissed-with-leave status pursuant to N.C.G.S. § 15A-932, defendant was not entitled to–and the district court lacked authority to order–the reinstatement and calendaring of his charges. State v. Diaz-Tomas, No. 54A19-3 (N.C. Nov. 4, 2022)

Criminal Law

Batson violation—conviction vacated—time already served—no new trial—Where the trial court improperly denied defendant's Batson claim–after defendant proved purposeful discrimination by the State in its use of a peremptory strike to remove an African-American woman from the jury–its order was reversed and defendant's conviction for armed robbery was vacated. However, no new trial was warranted where defendant had already served his sentence and completed post-release supervision, because N.C.G.S. § 15A-1335 prohibited the imposition of a sentence more severe than the prior sentence imposed minus time served. State v. Clegg, 380 N.C. 127 (2022)

Guilty plea—multiple assault charges—insufficient factual basis—remedy—entire plea vacated—Where there was an insufficient factual basis to support defendant's plea of guilty to multiple assaults–because defendant committed one continuous assault–the appropriate remedy was to vacate the entire plea and remand to the trial court for further proceedings. State v. Robinson, 381 N.C. 207 (2022)

Jury instructions—possession of a firearm by a felon—requested instruction—justification defense—After defendant's trial for murder and possession of a firearm by a felon, in which the trial court denied defendant's request for a jury instruction on justification as an affirmative defense to the firearm charge and he was subsequently convicted, the Court of Appeals' decision holding that defendant was entitled to the instruction (and to a new trial) was reversed because the evidence–even when viewed in the light most favorable to defendant–indicated that defendant at least negligently placed himself in a situation where he would be forced to engage in criminal conduct. Specifically, defendant went to the scene of a gang fight to rescue his brother, left after breaking up the fight, but then returned and remained at the scene for twenty-five minutes (resulting in the confrontation at issue at trial) despite witnessing the fight, knowing he was in gang territory, hearing his brother express a willingness to fight again, and being threatened by a gang member. State v. Swindell, No. 294A21 (N.C. Nov. 4, 2022)

Post-conviction DNA testing—availability after guilty plea—materiality —In a case arising from a fatal shooting in connection with a robbery, defendant's guilty plea to second-degree murder did not disqualify him from seeking post-conviction DNA testing pursuant to N.C.G.S. § 15A-269. Nevertheless, the trial court properly denied defendant's motion for post-conviction DNA testing of the shell casings and projectile found at the crime scene, where he failed to show that the test results would be material to his defense (according to credible eyewitness testimony, defendant was one of two people involved in the crime, and therefore the presence of another's DNA on the shell casings or projectile would not necessarily have exonerated him). State v. Alexander, 380 N.C. 572 (2022)

Post-conviction motions—newly discovered evidence—Beaver factors—satisfied—The trial court did not abuse its discretion by granting defendant, who had been convicted of first-degree murder more than twenty years earlier, a new trial on the grounds of newly discovered evidence pursuant to N.C.G.S. § 15A-1415(c), where defendant satisfied the factors set forth in State v. Beaver, 291 N.C. 137 (1976). Despite some internal inconsistencies in the newly discovered testimony, the court properly found that the testimony was "probably true;" defendant's lawyer exercised due diligence in procuring the testimony–that is, the diligence reasonably expected from someone with limited information about the testimony–by hiring an investigator to track down the witness; the testimony constituted material, competent, and relevant evidence where the State did not object to it and where it was admissible under the residual exception to the hearsay rule (Evidence Rule 803(24)); and the testimony–revealing another person's confession to committing the murder–was of a nature that a different result would probably be reached at a new trial. State v. Reid, 380 N.C. 646 (2022)

Declaratory Judgments

Jurisdiction—actual controversy—former CEO's contractual rights upon termination of employment—In a complex business case, where a corporation's former CEO sought a declaratory judgment setting forth his rights under his employment agreement with the corporation and under various related contracts with the corporation's majority shareholder–and where the determinative issue was whether the corporation terminated his employment with or without cause–the trial court lacked subject matter jurisdiction over the CEO's declaratory judgment claim against the majority shareholder. The complaint failed to show an actual controversy between the parties that was practically certain to result in litigation, where the decision to terminate the CEO lay with the corporation, the complaint did not allege that the CEO or the majority shareholder had attempted to exercise their rights under the various contracts, and it was impossible to speculate on appeal whether any future acts by the shareholder would constitute a breach. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Discovery

Attorney-client privilege—communications with outside counsel—investigation of company policy violations—In a case involving alleged violations of a company's policies on sexual harassment, the Business Court properly applied the law of attorney-client privilege where it mandated disclosure of all communications between the company and outside counsel that were unrelated to the provision of legal services but protected communications for which the primary purpose was the giving or receiving of legal advice. Buckley, LLP v. Series 1 of Oxford Ins. Co., NC, LLC, No. 219A21 (N.C. Aug. 19, 2022)

Domestic Violence

Violation of protective order—knowledge of order—sufficiency of evidence—In a trial for multiple charges including violating a domestic violence protective order (DVPO) while in possession of a deadly weapon, the trial court properly denied defendant's motion to dismiss where substantial evidence supported a reasonable inference that defendant had knowledge of a valid DVPO when he broke into his girlfriend's apartment and assaulted her. The Court of Appeals' determination that the evidence was too tenuous to support the knowledge element–including defendant's response "Yeah, I know you did" when the victim told him "I got a restraining order"–improperly evaluated the weight, and not the sufficiency, of the evidence. State v. Tucker, 380 N.C. 234 (2022)

Evidence

Attorney-client privilege—speedy trial claim—defense attorney testified for State regarding trial strategy—plain error—In a prosecution for charges stemming from a fatal car accident, where more than six years passed before defendant's case was brought to trial, during which he was represented by four different attorneys, the trial court committed plain error by allowing one of defendant's attorneys to testify for the State regarding trial strategy to counter defendant's claim that his right to a speedy trial was violated. The attorney's testimony regarding delay tactics divulged privileged communications in the absence of any waiver by defendant of the attorney-client privilege; defendant's pro se claim for ineffective assistance of counsel regarding his attorney's delays was invalid for having been filed when defendant was represented by counsel and therefore could not constitute a waiver or justification. The matter was remanded for the trial court to reweigh any admissible evidence submitted by the State to justify the delay as part of the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972). State v. Farook, 381 N.C. 170 (2022)

Expert testimony—indecent liberties—identifying defendant as perpetrator—impermissible vouching of victim's credibility—The trial court committed plain error in a trial for taking indecent liberties with a child by allowing the State's expert witness to implicitly identify defendant as the perpetrator of the crime when describing her treatment recommendations for the victim (including that the victim should have no contact with defendant). Where there was no physical evidence of the crime and the case therefore hinged on the statements of the victim, the admission improperly vouched for the victim's credibility. State v. Clark, 380 N.C. 204 (2022)

Expert testimony—that victim was "sexually abused"—impermissible vouching of child victim's credibility—The trial court committed plain error in a trial for taking indecent liberties with a child by allowing testimony from the State's expert witness–a nurse tendered as an expert in child abuse and forensic evaluation of abused children–that the minor victim had been "sexually abused" where there was no physical evidence of the crime and the statements of the victim were the only direct evidence. Pursuant to the standard set forth in State v. Towe, 366 N.C. 56 (2012), where the improper testimony bolstered the victim's credibility upon which the case turned, it had a probable impact on the jury's guilty verdict and therefore constituted fundamental error. State v. Clark, 380 N.C. 204 (2022)

Lay opinion—assumed error—prejudice analysis—Even assuming that admission of an officer's allegedly improper lay opinion testimony–his belief that a crashed moped was driven by defendant–was error, defendant could not prove prejudice where other evidence admitted at his trial for driving while impaired included substantially similar information. Specifically, the warrant application (to draw defendant's blood) and defense counsel's cross-examination of the officer put essentially the same information before the jury. State v. Delau, 381 N.C. 226 (2022)

Prior bad acts—prior sexual assaults—prejudice analysis—overwhelming evidence—Even assuming, without deciding, that in defendant's trial for rape and kidnapping, the trial court erred by allowing two women to give Evidence Rule 404(b) testimony that defendant had previously sexually assaulted them, defendant failed to demonstrate a reasonable possibility that, absent the error, the jury would have reached a different verdict, pursuant to N.C.G.S. § 15A-1443(a). This case was not a credibility contest; rather, there was overwhelming evidence of defendant's guilt before the jury, including evidence of the drug Cyclobenzaprine (a date rape drug) in the victim's hair sample, surveillance footage showing the victim in an impaired state with defendant, the testimony of a restaurant waitress to the same effect, the testimony of the sexual assault nurse examiner, the testimony of the victim and her mother regarding her impaired state, and DNA evidence. State v. Pabon, 380 N.C. 241 (2022)

Standard of review—misapplication of the law—Rule 702(a)—In a medical malpractice case, the Court of Appeals properly applied a de novo standard of review when determining that the trial court improperly excluded one of plaintiff's expert witnesses where the expert had not reviewed some of the medical records in the case. Although a trial court's ruling on a motion to exclude expert testimony is reviewable for an abuse of discretion, the issue on appeal involved a question of law: whether the trial court misapplied Evidence Rule 702(a) by implying that putative experts must base their opinions on all the facts or data available rather than on "sufficient" facts or data as prescribed by Rule 702(a)(1). Miller v. Carolina Coast Emergency Physicians, LLC, No. 222PA21 (N.C. Aug. 19, 2022)

Gambling

Electronic sweepstakes—game of chance versus game of skill—predominant factor test—The Supreme Court reaffirmed its prior holding that in order to determine whether a video gaming machine is prohibited by N.C.G.S. § 14-306.4 (banning electronic sweepstakes games), courts must utilize the predominant factor test to evaluate whether the game is one of chance or of skill, since a sweepstakes conducted by use of an entertaining display is prohibited only if it is not dependent on skill or dexterity. Gift Surplus, LLC v. State ex rel. Cooper, 380 N.C. 1 (2022)

Electronic sweepstakes—game of chance versus game of skill—predominant factor test—viewed in entirety—Plaintiffs' video-game kiosks violated the ban on electronic sweepstakes in N.C.G.S. § 14-306.4 under the predominant factor test where the outcome of the game in question depended on chance and not on skill or dexterity. Although the game included a nominal "winner-every-time" feature, chance determined which prizes a player was eligible to win, since the top prize was not available for 75% of player turns. Further, the "double-nudge" modification (allowing a player to nudge two symbols up or down to align three spinning slots) involved no more than de minimis skill and dexterity, as evidenced by data of error rates, and chance could override any exercise of skill with regard to the outcome. Gift Surplus, LLC v. State ex rel. Cooper, 380 N.C. 1 (2022)

Electronic sweepstakes—predominant factor test—mixed question of fact and law—standard of review—A trial court's determination of whether a video gaming machine is prohibited by N.C.G.S. § 14-306.4 under the predominant factor test (i.e., whether the outcome of the game depends on chance or on skill and dexterity) involves a mixed question of law and fact, and is reviewed de novo when there is no factual dispute about how the game is played. Gift Surplus, LLC v. State ex rel. Cooper, 380 N.C. 1 (2022)

Homicide

First-degree murder—self-defense—jury instructions—In the first-degree murder prosecution for defendant's fatal shooting of an unarmed man in defendant's home, the trial court did not err when it declined to instruct the jury in accordance with North Carolina Pattern Jury Instruction (N.C.P.I.) - Crim. 308.10 where the trial court adequately conveyed the substance of defendant's requested instruction to the jury. The instructions delivered to the jury stated that defendant had no duty to retreat, and the N.C.P.I.'s language concerning defendant's right to "repel force with force regardless of the character of the assault" was not required under the circumstances. Further, defendant failed to establish a reasonable possibility that the outcome would have been different if the trial court had issued defendant's requested jury instructions. State v. Benner, 380 N.C. 621 (2022)

Jury instruction—self-defense—section 14-51.4—applicability—prejudice analysis—In a murder prosecution, where the trial court instructed the jury that N.C.G.S. § 14-51.4 precluded defendant from claiming self-defense because he was committing a felony (possession of a firearm by a felon) at the time he used defensive force against the victim, the court erred by failing to add that section 14-51.4 only applied if the State could prove an immediate causal nexus between defendant's use of defensive force and his commission of the felony. However, the court's error did not prejudice defendant where the evidence showed he had committed a different felony (robbery with a dangerous weapon) immediately after his fatal confrontation with the victim; the jury's verdict convicting defendant of both murder and the robbery charge indicated that the immediate causal nexus between defendant's use of force and the disqualifying felonious conduct had been established at trial. State v. McLymore, 380 N.C. 185 (2022)

Jury instructions—self-defense—common law right—replaced by statutory right—The trial court in a murder prosecution properly instructed the jury that N.C.G.S. § 14-51.4 precluded defendant from invoking his right to self-defense where he was committing a felony (possession of a firearm by a felon) at the time he used defensive force against the victim. Although defendant claimed that he had asserted his common law right to self-defense at trial and that section 14-51.4 only disqualified him from invoking his statutory right to self-defense codified in section 14-51.3, the General Assembly's enactment of section 14-51.3 clearly abrogated and replaced the common law right such that defendant could have only claimed his statutory right. State v. McLymore, 380 N.C. 185 (2022)

Sufficiency of evidence—reasonable inference—circumstantial evidence—large sum of cash—There was sufficient evidence to withstand defendant's motion to dismiss the charges of robbery with a dangerous weapon and first-degree murder where, among other things, defendant was a crack cocaine addict who had frequently borrowed cash from the victim and others, the victim had been known to carry large sums of cash, investigators found no money in the victim's residence, defendant lacked legitimate financial resources, defendant had approximately $3,000 of cash in a concealed location after the murder, cell phone records showed that defendant was in the vicinity of the victim's residence on the night of the murder, there was no sign of forced entry into the victim's residence, defendant indicated before the victim's body was discovered that he knew the victim would not be returning to work, defendant made false and contradictory statements to the police, and defendant had deleted all of the call and text message history from his phone up until the morning that the victim's body was found. Defendant had the motive, opportunity, and means to commit the crimes. State v. Dover, 381 N.C. 535 (2022)

Immunity

Governmental—fire protection services—acquisition of fire station—allegations of fraud—Where plaintiff volunteer fire department filed claims against defendant town based on the town's actions involving three contracts with plaintiff–for the provision of fire protection services for town residents, renovations to plaintiff's fire station, and the town's purchase and lease-back of the fire station to plaintiff–the contracts constituted one indivisible transaction, and the town was protected from plaintiff's fraud-related claims based on the doctrine of governmental immunity. Although plaintiff alleged that defendant's acquisition of the fire station from plaintiff was accomplished with fraud and was a proprietary action, defendant's acquisition of the fire station was for the provision of fire services for the town and thus was a governmental action rendering it immune from plaintiff's fraud claims. Providence Volunteer Fire Dep't, Inc. v. Town of Weddington, No. 47PA21 (N.C. Aug. 19, 2022)

Legislative—mayor—town council meeting—termination of fire department contracts—Where plaintiff volunteer fire department filed claims against defendant mayor based on the mayor's role in bringing about the termination of the town's contracts with plaintiff, the Supreme Court recognized legislative immunity as a bar to claims against public officials and held that the mayor's actions–beginning with actions before his election and culminating with his calling and setting the agenda for the town council meeting during which the council voted to terminate the contracts with plaintiff–were legislative actions entitled to legislative immunity. Providence Volunteer Fire Dep't, Inc. v. Town of Weddington, No. 47PA21 (N.C. Aug. 19, 2022)

Public official immunity—police officer—individual capacity—malice—summary judgment not appropriate—Where plaintiff, in asserting civil tort claims against a police officer in his individual capacity, forecast sufficient evidence to raise genuine issues of material fact regarding whether the officer acted with malice–including whether he used unnecessary and excessive force–when he arrested plaintiff for resisting an officer, the officer was not entitled to summary judgment based on the defense of public official immunity. Evidence that the plainclothes officer acted contrary to his duty and with intent to injure plaintiff included plaintiff's claims that the officer "body slammed" him against the trunk of his car; that the officer refused to loosen the handcuffs, which were tight enough to leave marks on plaintiff's wrists; and that the officer suggested to plaintiff that if he had done as he was initially told, then he would not have been handcuffed in front of his neighbors. Bartley v. City of High Point, 381 N.C. 287 (2022)

Indictment and Information

Attempted armed robbery—victims not specifically named—pleading requirements—An indictment for attempted armed robbery was not fatally defective where it designated "employees of the Huddle House located at 1538 NC Highway 67 Jonesville, NC" as victims without specifically naming them. The indictment satisfied the criminal pleading requirements set forth in N.C.G.S. § 15A-924(a)(5) (requiring a plain and concise statement asserting facts supporting each element of the crime), and it did not fail to protect defendant from double jeopardy by omitting the victims' names, especially where the Criminal Procedure Act had relaxed the stricter common law pleading rules. In fact, the reference to a particular group of people protected defendant from any future prosecutions involving any individual from that group. State v. Oldroyd, 380 N.C. 613 (2022)

Jurisdiction

Personal—Calder jurisdiction—applicability—unnecessary—In the State's action against a chemical company and its two out-of-state corporate successors, where the State alleged that the chemical company–which faced mounting liabilities for releasing harmful chemicals into the environment–underwent significant corporate restructuring and transferred its assets to the successors in order to limit its future liability, the Supreme Court declined to determine whether personal jurisdiction over the successors would be proper under Calder v. Jones, 465 U.S. 783 (1984), where it had already determined that both due process and North Carolina law permitted the trial court to exercise personal jurisdiction by imputing the chemical company's liabilities to the successors. State ex rel. Stein v. E.I. DuPont de Nemours & Co., No. 436A21 (N.C. Nov. 4, 2022)

Personal—long-arm statute—due process—CEO's contractual rights after termination—extent of control by shareholders—In a complex business case, where the parties disputed a former CEO's rights under his employment agreement with a North Carolina corporation and under various related contracts with the corporation's majority shareholder (a Florida company), and where the CEO accused the Florida company and the minority shareholder's managing partner of inducing the corporation to terminate the CEO for cause, the trial court properly exercised personal jurisdiction over the Florida company and the managing partner. To varying degrees, the Florida company–through one of its managers, who also acted as the North Carolina corporation's sole director–and the managing partner exercised control over the North Carolina corporation and were actively involved in negotiating terms of the contracts at issue and in firing the CEO, thereby satisfying the "substantial activity" requirement under North Carolina's long-arm statute and the "minimum contacts" requirement for due process. Button v. Level Four Orthotics & Prosthetics, Inc., 380 N.C. 459 (2022)

Personal—minimum contacts—nonresident business—services agreement—substantial connection with North Carolina—In a breach of contract action brought by a North Carolina-based company (plaintiff) against a nonresident business (defendant), the trial court did not err by determining that defendant was subject to personal jurisdiction in North Carolina based on unchallenged findings establishing that the services agreement entered into by both parties–under which plaintiff was to maintain and repair point-of-sale equipment from defendant's stores–had a substantial connection with North Carolina. Due process was not offended where defendant intentionally solicited plaintiff, which it knew to be based in North Carolina; the parties entered into a multiyear contract for ongoing services; the contract required any written notices to be sent to plaintiff in North Carolina; and plaintiff shipped thousands of parts from and performed thousands of repairs at its depot in North Carolina to meet its contractual obligations. Toshiba Glob. Com. Sols., Inc. v. Smart & Final Stores LLC, 381 N.C. 692 (2022)

Personal—over corporate successor—by imputation of predecessor's liabilities—due process—In the State's action against a chemical company and its two out-of-state corporate successors, where the State alleged that the chemical company–which faced mounting liabilities for releasing harmful chemicals into the environment–underwent significant corporate restructuring and transferred its assets to the successors in order to limit its future liability, due process permitted the trial court to exercise personal jurisdiction over the successors (even though they had no direct contacts with North Carolina) where the chemical company was subject to personal jurisdiction in North Carolina and where North Carolina law permitted the court to impute the chemical company's liabilities to the successors on two grounds: first, the successors expressly agreed to assume those liabilities by written agreement, and second, the State sufficiently alleged in its complaint that the successors participated in an asset transfer intended to defraud the State as a creditor. State ex rel. Stein v. E.I. DuPont de Nemours & Co., No. 436A21 (N.C. Nov. 4, 2022)

Termination of parental rights case—sufficiency of service of process—statutory requirements—type of jurisdiction implicated—The trial court properly exercised jurisdiction over a private termination of parental rights matter in which respondent-father, a nonresident, alleged on appeal that the court lacked subject matter jurisdiction over him because he was not properly served with a summons as required by N.C.G.S. § 7B-1101. Respondent's argument implicated personal, not subject matter, jurisdiction, and since he participated in the hearing without objection, he waived any argument regarding insufficient service of process. In re A.L.I., 380 N.C. 697 (2022)

Jury

Selection—Batson challenge—overruled by trial court—clear error—purposeful discrimination—The trial court's decision overruling defendant's Batson challenge was clearly erroneous where the totality of the evidence demonstrated it was more likely than not that the State's peremptory strike to remove an African-American woman from the jury in an armed robbery trial was improperly motivated by race. Although the trial court properly rejected the State's race-neutral reasons for striking the juror and accepted defendant's statistical evidence of peremptory strikes against Black potential jurors in this case and statewide, the trial court should have ruled for defendant when there were no race-neutral reasons remaining. In addition, the court imposed an improperly high burden of proof on defendant, considered a reason for the strike not offered by the prosecutor, and failed to consider the State's disparate questioning of comparable white and Black prospective jurors. State v. Clegg, 380 N.C. 127 (2022)

Legislature

Authority to propose constitutional amendments—members from illegally gerrymandered districts—limitations—After some state legislators were determined to have been elected from illegally gerrymandered districts, their authority as de facto officers could be used to pass ordinary legislation but did not automatically extend to the proposal of amendments to the North Carolina Constitution (in this instance, regarding an income tax cap and voter identification), which must follow heightened procedural requirements. Further, the subsequent ratification of the amendments by popular vote did not cure the deficiencies of the unconstitutional election process. In order to determine whether these constitutional amendments may stand, the matter was remanded for the trial court to conduct an evidentiary hearing and to enter findings of fact and conclusions of law addressing multiple factors, including whether the votes of the unconstitutionally elected legislators could have been decisive in passing the proposed amendments and whether those amendments could have a significant impact on democratic accountability in or access to the election process going forward. N.C. State Conf. of NAACP v. Moore, No. 261A18-3 (N.C. Aug. 19, 2022)

Authority to propose constitutional amendments—political question doctrine—justiciability analysis—Where some state legislators were determined to have been elected from illegally gerrymandered districts, the question of whether their authority to propose amendments to the North Carolina Constitution was limited was not purely a political question because it involved the interpretation and application of constitutional provisions, and therefore was properly before the Supreme Court. N.C. State Conf. of NAACP v. Moore, No. 261A18-3 (N.C. Aug. 19, 2022)

Medical Malpractice

9(j) certification—expert—reasonable expectation of qualification and testimony—at time of complaint—In a medical malpractice case, the trial court properly denied defendant-hospital's motion to dismiss plaintiff's complaint for noncompliance with Evidence Rule 9(j), where the complaint facially complied with Rule 9(j)'s certification requirements but where it was later discovered that plaintiff's Rule 9(j) expert was unwilling to testify that the hospital violated the applicable standard of care in one of the ways alleged in the complaint. The record contained ample evidence that showed–when taken in the light most favorable to plaintiff–plaintiff reasonably believed at the time her complaint was filed that her expert would be willing to testify against the hospital, including the expert's affidavit expressing that willingness. Further, the record showed that the expert remained willing to testify that the hospital violated the applicable standard of care under at least one of the other theories mentioned in plaintiff's complaint. Miller v. Carolina Coast Emergency Physicians, LLC, No. 222PA21 (N.C. Aug. 19, 2022)

Native Americans

Indian Child Welfare Act—termination of parental rights—reason to know status as Indian—statutory inquiry—In a termination of parental rights hearing, the trial court did not fail to comply with the Indian Child Welfare Act (ICWA) where, although respondent-mother told the department of social services that she might have a possible distant Cherokee relation on her mother's side of the family, there was insufficient information presented to the trial court for it to have reason to know that the child was an Indian child pursuant to 25 C.F.R. § 23.107(c). Although the trial court did not conduct the necessary statutory inquiry into the status of the child after the termination petition was filed, there was no reversible error where the court properly conducted the inquiry at earlier stages in the proceedings and there was no information in the record to show that the child might be an Indian child. In re C.C.G., 380 N.C. 23 (2022)

Negligence

Negligent hiring—elements—nexus between employment and injury—sufficiency of evidence—In an action brought against a home health agency based on a theory of negligent hiring after an aide the agency placed in plaintiffs' home orchestrated an off-duty home break-in and robbery of that home, the trial court properly denied the agency's motions for directed verdict and judgment notwithstanding the verdict because the evidence taken in the light most favorable to plaintiffs was sufficient on each element necessary to prove negligent hiring and to support a nexus between the aide's employment and the harm suffered by plaintiffs, which created a duty on the part of the agency. The harm to plaintiffs was foreseeable where the agency did not conduct a criminal background check on the aide, the aide provided false information on her job application, and the aide used information gained through her employment in plaintiffs' home to facilitate the robbery. Keith v. Health-Pro Home Care Servs., Inc., 381 N.C. 442 (2022)

Negligent hiring—requested jury instruction—inclusion of elements not required—In an action brought against a home health agency based on a theory of negligent hiring after an aide the agency placed in plaintiffs' home orchestrated an off-duty home break-in and robbery of that home, the trial court properly denied the agency's request for the pattern jury instruction on negligent hiring, since it was not an accurate statement of the law in this case with regard either to the necessary elements of the claim or to the competency of the employee. To the extent the pattern instruction misstated the elements as set forth in case law, the Supreme Court recommended it be withdrawn and revised. Keith v. Health-Pro Home Care Servs., Inc., 381 N.C. 442 (2022)

Nurses

Medical malpractice claim—professional duty of care—evidence of breach of standard of care—exclusion improper—In a medical malpractice action arising from injuries sustained by a young girl during an anesthesia mask induction procedure, a new trial was required because the trial court improperly excluded evidence regarding whether the certified registered nurse anesthetist (CRNA) who conducted the procedure breached his professional duty of care. The Supreme Court overruled the principle stated in Byrd v. Marion Gen. Hosp., 202 N.C. 337 (1932), that nurses could not be held legally responsible for decisions made when diagnosing or treating patients under the direction of a supervising physician, and held that nurses may be held liable for negligence or medical malpractice if found to have breached the applicable professional standard of care in carrying out their duties. Connette v. Charlotte-Mecklenburg Hosp. Auth., No. 331PA20 (N.C. Aug. 19, 2022)

Obstruction of Justice

Felony—by intentionally providing false and fabricated statements—sufficiency of evidence—circumstantial—The State introduced sufficient evidence to convict defendant-supervisor of felony obstruction of justice based on the intentional provision of false statements to a State Bureau of Investigation agent where defendant falsely stated that his employee performed certain types of work, and where the agent testified–and circumstantial evidence allowed the reasonable inference–that defendant's false statements caused the agent to change the steps and process of his investigation. State v. Bradsher, No. 13PA21 (N.C. Nov. 4, 2022)

Probation and Parole

Probation revocation—absconding—sufficiency of allegations—Where probation violation reports alleged that defendant had absconded in violation of N.C.G.S. § 15A-1343(b)(3a) during a specifically alleged time period by failing to report, failing to return phone calls, failing to provide a certifiable address, and failing to make himself available, the violation reports sufficiently alleged defendant's commission of the revocable violation of absconding supervision. The trial court did not abuse its discretion by revoking defendant's probation upon defendant's admission to the violations. State v. Crompton, 380 N.C. 220 (2022)

Public Officers and Employees

State Health Plan amendments—constitutional contractual impairment claim—existence of contractual obligation—In an action asserting that amendments to the State Health Plan (SHP) removing premium-free options for retired state employees violated both the federal and state constitutions (the Contracts Clause and the Law of the Land Clause, respectively), retirees had a vested right to the noncontributory health plan benefits that existed at the time they were hired and for which they met the eligibility requirements because employees relied on the promise of the State's obligation to provide those benefits when they entered into the employment contract. However, summary judgment was inappropriate where there were genuine issues of material fact regarding whether the amendments constituted a substantial contractual impairment–the determination of which required an analysis of the relative value of different health plans offered at different times–and, if so, whether the impairment was reasonable and necessary to serve an important public purpose. Therefore, the matter was remanded for further factual findings by the trial court. Lake v. State Health Plan for Tchrs. & State Emps., 380 N.C. 502 (2022)

Real Property

Covenants—restrictive—solar panel installation—denial of application—N.C.G.S. § 22B-20—The denial by an architectural review committee (ARC) of defendant property owners' application to install solar panels on the roof of their house violated the plain and unambiguous meaning of N.C.G.S. § 22B-20, which generally prohibits restrictions on solar collectors unless either one of two exceptions is met. In this case, where the subdivision's declaration of covenants did not expressly prohibit solar panels or mention solar panels at all, but still could have had the effect of restricting their installation (by granting authority to the ARC to refuse any improvements for aesthetic reasons), the committee's restriction was void under the statute's general prohibition in subsection (b). Since the restriction prevented the reasonable use of solar panels, the exception in subsection (c) did not apply, and since there was no express restriction of solar panels, the exception in subsection (d) regarding installations visible from the ground did not apply. Defendants were therefore entitled to summary judgment on their claim for declaratory judgment. Belmont Ass'n v. Farwig, 381 N.C. 306 (2022)

Good faith purchaser for value—fraudulent intention—imputation of knowledge—agency principles—In plaintiff's action pursuant to the Uniform Voidable Transactions Act–in which plaintiff, a nonprofit community organization, challenged a real estate transfer of land which it had previously owned and to which it had a potential claim under a separate lawsuit–defendants were not entitled to the protections afforded good faith purchasers for value where they purchased the land in a private sale from another developer with which defendants had formed a joint real estate development venture. Pursuant to principal-agent law and the doctrine of imputed knowledge, defendants were charged with the knowledge of their co-principal's fraudulent intent to shield the land from plaintiff as a creditor, which was accomplished by transferring title of the subject property–the co-principal's last substantial asset–to defendants without public notice, appraisal, or negotiation during the pendency of plaintiff's appeal from the related lawsuit. Cherry Cmty. Org. v. Sellars, 381 N.C. 239 (2022)

Search and Seizure

Vehicle checkpoint—reasonableness—Brown factors—A police checkpoint was lawful under the Fourth Amendment pursuant to Brown v. Texas, 443 U.S. 47 (1979), where the checkpoint's purpose–ensuring that each driver had a valid driver's license and was not intoxicated–operated to advance public safety and was reasonable; the checkpoint was conducted on a major thoroughfare during early morning hours conducive to catching intoxicated drivers; and the checkpoint caused only a small amount of traffic backup, it was visible to approaching drivers, and it was conducted in accordance with a plan under a supervising officer with specific restraints on time, location, and officer conduct. State v. Cobb, 381 N.C. 161 (2022)

Warrantless search of person—lawfulness—search warrant executed at adjacent property—Defendant's motion to suppress drugs seized from his person was properly denied where competent evidence supported the trial court's findings of fact, which in turn supported the court's conclusion that law enforcement officers had reasonable suspicion to detain defendant pursuant to Terry v. Ohio, 392 U.S. 1 (1968), even though defendant was adjacent to, and not on, the piece of property that was the subject of a search warrant (which was issued after defendant sold narcotics to a confidential informant at that address the previous day). Law enforcement was aware of defendant's criminal history as a drug dealer known to carry guns, defendant was in sight of the officers executing the search warrant, and there was a reasonable basis for the detaining officer to believe that defendant was armed. State v. Tripp, 381 N.C. 617 (2022)

Sentencing

Juvenile—murder—rape—consecutive sentences—de facto life without parole—In a case of first impression, where a fifteen-year-old defendant pleaded guilty to the rape and murder of his aunt, his consecutive sentences–240 to 348 months' imprisonment for first-degree rape and life with a possibility of parole for first-degree murder–violated both the federal and state constitutions because, taken together, they would keep defendant incarcerated for forty-five years (at which point, he would be sixty years old) before he could seek parole, and therefore they constituted a de facto sentence of life without parole. Juvenile offenders who are sentenced to life with the possibility of parole must have the opportunity to seek parole after serving no more than forty years of incarceration. State v. Conner, 381 N.C. 643 (2022)

Juvenile—two first-degree murders—defendant "neither incorrigible nor irredeemable"—de facto life without parole sentence—Defendant's two consecutive sentences of life (twenty-five years each) with the possibility of parole for a double homicide he committed at the age of seventeen–issued upon resentencing in light of Miller v. Alabama, 567 U.S. 460 (2012)–violated both the Eighth Amendment of the federal constitution and article I, section 27 of the state constitution where the trial court found in the resentencing hearing that defendant was "neither incorrigible nor irredeemable" and where the consecutive sentences, which together required defendant to serve fifty years in prison before becoming eligible for parole, constituted a de facto sentence of life without parole. State v. Kelliher, 381 N.C. 558 (2022)

Termination of Parental Rights

Appellate review—cumulative error review—declined to extend—The Supreme Court declined to expand the doctrine of cumulative error review to a termination of parental rights matter. In re J.D.O., 381 N.C. 799 (2022)

Best interests of the child—adoptability—consent of children to being adopted—The trial court did not abuse its discretion by determining that the termination of a father's parental rights was in the best interests of his children. Although the father argued that the court did not sufficiently consider whether the children would consent to being adopted or whether they were ready to be adopted, the father's reliance on N.C.G.S. § 48-3-601, which provides that children over the age of twelve must consent to adoption, was misplaced because that statute governed adoptions and not termination of parental rights proceedings. Even if relevant, section 48-3-601 allows a trial court to dispense with the consent requirement upon a determination that it is not in the child's best interest to require consent. In re M.R., 381 N.C. 838 (2022)

Best interests of the child—consideration of factors—sufficiency of evidence and findings—The trial court did not abuse its discretion by concluding that terminating a mother's and father's parental rights in their eleven-year-old daughter was in the child's best interests, where the court's factual findings were supported by competent evidence and demonstrated a proper analysis of the dispositional factors set forth in N.C.G.S. § 7B-1110(a). Notably, the child–whom the parents had exposed to sexually inappropriate boundaries, inappropriate discipline, and grooming behaviors–had an unhealthy bond with her parents characterized by guilt and a distorted sense of loyalty; the parents refused to acknowledge the problems that led to the child's removal from their home, deflecting blame for the child's trauma to the "system" and the department of social services; and there was a high likelihood of adoption where, despite her history of behavioral issues, the child had shown a real improvement after finding stability in her foster home and developing a trusting relationship with her foster mother. In re S.M., 380 N.C. 788 (2022)

Best interests of the child—consideration of statutory factors—additional factors not listed in statute—The trial court did not abuse its discretion by concluding that terminating respondent-mother's parental rights in her daughter was in the child's best interests, where the court's factual findings were supported by the evidence and adequately addressed each dispositional factor in N.C.G.S. § 7B-1110(a), including that there was no bond between the child and respondent-mother (at best, the record showed that any bond between them had lessened significantly), and that the likelihood of adoption was high where the child was a "very loving little girl" who did not exhibit any behavioral issues and where social services had already identified two potential adoptive families. Further, respondent-mother's argument that trial courts should consider additional dispositional factors not listed in section 7B-1110(a) should have been directed to the legislature, and, at any rate, the catch-all provision in section 7B-1110(a)(6) allows courts to consider "any relevant consideration" not enumerated in the statute. In re R.L.R., 381 N.C. 863 (2022)

Best interests of the child—dispositional factors—findings of fact—son's bond with mother and feasibility of adoption—The trial court did not abuse its discretion in determining that termination of respondent-mother's parental rights would be in her son's best interests where the findings–including those concerning the son's bond with his mother and the feasibility of adoption despite the son's behavioral issues–were supported by the record evidence. The trial court properly considered the dispositional factors in N.C.G.S. § 7B-1110(a) and performed a reasoned analysis weighing those factors. In re J.A.J., 381 N.C. 761 (2022)

Best interests of the child—dispositional factors—incarcerated father—no contact with child—The trial court did not abuse its discretion in determining that termination of respondent-father's parental rights would be in his son's best interests where respondent would not be released from incarceration until three years after the trial court's termination order and he had made no effort to have any relationship with his son. The trial court properly considered dispositional factors in N.C.G.S. § 7B-1110(a) and performed a reasoned analysis weighing those factors. In re J.A.J., 381 N.C. 761 (2022)

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 a father's parental rights was in his child's best interests where the court made appropriate findings regarding each of the dispositional factors in N.C.G.S. § 7B-1110, the findings were based on a reasonable interpretation of competent evidence, and the findings specifically challenged by the father–regarding the father's bond with the child and the child's likelihood of adoption–were also supported by competent evidence. In re J.R.F., 380 N.C. 43 (2022)

Best interests of the child—factual findings—evidentiary support—The trial court did not abuse its discretion in determining that it would serve the best interests of the children to terminate respondent-parents' parental rights where the court properly considered and made findings regarding the dispositional factors in N.C.G.S. § 7B-1110(a)–including that disrupting the routine and services established during the children's foster care would be needlessly detrimental and that the children lacked a strong bond with their parents–which had sufficient evidentiary support. There was no basis for the use of a "least restrictive disposition" test in this state, as suggested by respondent-parents. In re J.C.J., 381 N.C. 783 (2022)

Best interests of the child—factual findings—statutory factors—The trial court did not abuse its discretion by concluding that termination of a father's parental rights was in his children's best interests, where the dispositional findings were supported by sufficient evidence and the court properly considered the statutory factors in N.C.G.S. § 7B-1110(a) and performed a reasoned analysis in reaching its conclusion. Although one of the findings incorrectly listed certain crimes as ones for which the father had been convicted, the finding nonetheless accurately characterized his criminal history as "extensive"; further, the appellate court rejected the father's arguments that the trial court erred by failing to consider the impact of the coronavirus restrictions and options short of termination. In re A.N.D., 380 N.C. 702 (2022)

Best interests of the child—guardian ad litem recommendation—no termination of other parent's rights—The trial court did not abuse its discretion by concluding that termination of a mother's parental rights to her daughter was in her daughter's best interest where the court made specific findings as to each criteria found in N.C.G.S. § 7B-1110(a) and was not bound by the guardian ad litem's report, in which termination was not recommended. Further, although the court terminated the mother's rights but not the father's, its decision was not arbitrary since the best interests determination focuses on the child and not on the equities between the parents. In re A.A., 381 N.C. 325 (2022)

Best interests of the child—placement with foster mother—consideration of relatives—The trial court did not abuse its discretion by concluding that termination of a mother's parental rights was in her daughter's best interests and by placing the child with her nonrelative foster mother. The court's unchallenged findings addressed statutory dispositional factors, including that the child had an extremely strong bond with the foster mother and that there was a high likelihood of adoption, and gave relevant consideration to family members who were identified late in the proceedings as being available for placement. The trial court was not required to prioritize placement with a relative, and its findings indicated an appropriate balancing of competing goals. In re H.R.S., 380 N.C. 728 (2022)

Best interests of the child—relevant factors—bond between parent and child—The trial court did not abuse its discretion in determining that termination of a father's parental rights was in his son's best interests where, contrary to the father's argument on appeal, the court made findings concerning all relevant factors–specifically, the bond between the father and son, by finding that the father obviously loved the son but that their bond was outweighed by the son's need for a safe, nurturing, stable environment. In re C.S., 380 N.C. 709 (2022)

Best interests of the child—statutory factors—adoptability—bond with mother versus prospective adoptive parents—The trial court did not abuse its discretion by concluding that terminating a mother's parental rights was in the best interests of her children, where the court's findings were supported by competent evidence, including a social worker's testimony regarding the children's adoptability and the likelihood of adoption by the children's foster parents, and demonstrated a proper consideration and reasoned weighing of the dispositional factors in N.C.G.S. § 7B-1110(a), including the relative bonds the children had with their mother and the foster parents. In re M.R., 381 N.C. 838 (2022)

Best interests of the child—sufficiency of findings—statutory factors—The trial court did not abuse its discretion by concluding that termination of a father's parental rights was in his son's best interests, where the dispositional findings were supported by sufficient evidence–including findings regarding the father's minimal role in the son's upbringing, the son's significant behavioral improvements since entering social services' custody, the bond between the father and son, and the son's interest in and likelihood of adoption. Furthermore, the court properly considered the statutory factors in N.C.G.S. § 7B-1110(a) and performed a reasoned analysis in reaching its conclusion. In re K.N.L.P., 380 N.C. 756 (2022)

Best interests of the child—support for written findings—variation from oral findings—The trial court did not abuse its discretion by determining that it was in the child's best interests to terminate his mother's parental rights, where the court's findings of fact (with one exception) were supported by competent evidence and where those findings demonstrated a proper analysis of the dispositional factors set forth in N.C.G.S. § 7B-1110(a). The court was not bound by its oral statements at the dispositional hearing–regarding the parent-child bond and the mother's efforts toward reunification–when entering its final order, and therefore there was no error where the court's oral findings varied from its written findings. Further, the court was not required to enter any findings regarding dispositional alternatives to termination, such as guardianship. In re S.D.C., 381 N.C. 152 (2022)

Collateral attack—initial custody determination—failure to appeal—not facially void for lack of jurisdiction—In his appeal from the trial court's order terminating his parental rights in his daughter, respondent-father could not collaterally attack the initial custody determination adjudicating his daughter as neglected and placing her in the department of social services' custody. Respondent's failure to appeal the initial custody determination precluded his collateral attack, and the exception regarding orders that are facially void for lack of jurisdiction did not apply. In re D.R.J., 381 N.C. 381 (2022)

Denial of motion to continue—no-show by parent—abuse of discretion analysis—The trial court did not abuse its discretion by denying respondent-mother's motion to continue a termination of parental rights hearing where, although respondent did not appear at the hearing, no arguments were advanced by her counsel or guardian ad litem that would justify allowing the continuance and information given to the trial court from respondent's representatives and a social worker tended to show that respondent was aware of the hearing date. Further, respondent did not demonstrate prejudice where there was nothing to show she would have testified or that her testimony would have impacted the outcome of the hearing. In re C.C.G., 380 N.C. 23 (2022)

Findings of fact—sufficiency of evidence—compliance with case plan—In an appeal from an order terminating a father's parental rights in his daughter, many of the trial court's findings of fact were disregarded because they lacked the support of clear, cogent, and convincing evidence–including findings that the father failed to comply with portions of his case plan, that he lied about his drug use, that he failed to demonstrate the ability to provide appropriate care for his daughter, that he was in arrears in child support payments, and that he failed to seek assistance to find appropriate housing. In re A.N.H., 381 N.C. 30 (2022)

Grounds for termination—abandonment—sufficiency of evidence and findings—The trial court properly terminated a mother's parental rights to her daughter based on abandonment (N.C.G.S. § 7B-1111(a)(7)) where clear, cogent, and convincing evidence showed that, during the relevant six-month period, the mother had no visitation or communication with the child; sent no gifts, cards, or clothing; did not inquire about the child's well-being; and was aware that her child support payments, which were garnished from her wages, went to the child's father, with whom the child did not reside, and were not used for the child's benefit. In re A.A., 381 N.C. 325 (2022)

Grounds for termination—failure to make reasonable progress—continued drug use—lack of contact with DSS—An order terminating a mother's parental rights to two children was affirmed where the trial court's findings–that one of the children was born cocaine-positive, that the mother continued to use drugs and gave birth to another drug-positive baby during the pendency of this case, that she did not provide proof of employment or of completion of a rehabilitation program, that she maintained a relationship with the children's father despite his abuse of the children's sibling, and that she failed to cooperate or remain in contact with DSS–supported the conclusion that the mother willfully left the children in placement outside the home for more than twelve months without making reasonable progress to correct the conditions that led to their removal. In re L.D., 380 N.C. 766 (2022)

Grounds for termination—failure to make reasonable progress—medical neglect of child—parent's untreated mental illness—The trial court properly terminated respondent-mother's rights in her son for failure to make reasonable progress to correct the conditions leading to the child's removal (N.C.G.S. § 7B-1111(a)(2)), which mainly consisted of respondent-mother's failure to seek necessary medical care for the child, who was born prematurely with a heart defect and severe lung problems. Respondent-mother did not comply with treatment recommendations for her various mental health issues, including bipolar disorder, despite receiving a psychological evaluation (which she had continually put off completing for two years) confirming the detrimental effect that these issues had on her ability to attend to her son's medical needs. Further, the court did not impermissibly terminate respondent-mother's rights on account of her poverty where social workers had made several efforts throughout the case to help respondent-mother complete her case plan despite her insufficient finances. In re D.D.M., 380 N.C. 716 (2022)

Grounds for termination—failure to pay a reasonable portion of the cost of care—dependency—sufficiency of evidence and findings—The trial court erred in determining that the grounds of failure to pay a reasonable portion of the cost of care (N.C.G.S. § 7B-1111(a)(3)) and dependency (N.C.G.S. § 7B-1111(a)(6)) existed to support termination of respondent-father's parental rights where insufficient evidence of each ground was presented before the trial court and therefore the factual findings were insufficient. Specifically, for the ground in N.C.G.S. § 7B-1111(a)(3), the single factual finding recited the statutory language, and there was no evidence or finding regarding the cost of the child's care or respondent's ability to pay; for the ground in N.C.G.S. § 7B-1111(a)(6), the trial court's single factual finding failed to address the availability of an alternate placement option, and no evidence was presented on the matter. In re D.R.J., 381 N.C. 381 (2022)

Grounds for termination—failure to pay a reasonable portion of the cost of care—gifts—notice—The trial court did not err by concluding that respondent-parents' parental rights in their children were subject to termination on the grounds of failure to pay a reasonable portion of the cost of the care that the children received in foster care where the parents sporadically provided the children with gifts, clothing, and diapers during the determinative six-month period but failed to make any payment to the department of social services or to the foster parents. Further, the absence of a court order, notice, or knowledge could not serve as a defense to the parents' failure to support their children. Finally, because the trial court found that the father was consistently employed at the same job throughout the pendency of the case (the mother remained unemployed), it was not required to make specific findings concerning the six-month determinative period. In re J.C.J., 381 N.C. 783 (2022)

Grounds for termination—failure to pay a reasonable portion of the cost of care—gifts, clothing, and birthday party—The trial court's order terminating respondent-father's parental rights in his children on the grounds of willful failure to pay a reasonable portion of the cost of care was affirmed where, during the relevant six-month period, he had the ability to pay more than zero dollars toward the cost of his children's foster care but failed to pay any amount to the department of social services or the foster parents. His sporadic provision of lunch, gifts, and clothing for the children and a birthday party for his daughter did not preclude the trial court's finding that he failed to pay a reasonable portion of the cost of the children's care. In re M.C., 381 N.C. 832 (2022)

Grounds for termination—neglect—continued criminal activity—failure to engage with case plan—The trial court properly terminated respondent-mother's parental rights to her children on the ground of neglect based on findings, which were supported by clear, cogent, and convincing evidence, that, while the children were in DSS custody, respondent incurred new criminal charges; did not provide gifts, notes, letters, tangible items, or financial support to her children; and did not complete any aspect of her case plan. Respondent's periods of incarceration were not an adequate excuse for her lack of engagement with her children. In re B.B., 381 N.C. 343 (2022)

Grounds for termination—neglect—failure to make reasonable progress—compliance with case plan—some drug use—An order terminating a father's parental rights on the grounds of neglect and failure to make reasonable progress was vacated and remanded where, after unsupported factual findings were disregarded, the remaining factual findings showed that the father complied with almost all of the requirements of his case plan, and no findings supported a conclusion that his continued drug use would result in the impairment or a substantial risk of impairment of his daughter. In re A.N.H., 381 N.C. 30 (2022)

Grounds for termination—neglect—inability to parent—likelihood of future neglect—The trial court's order terminating a mother's parental rights on the grounds of neglect was affirmed where the court's finding that she was incapable of parenting her child (who had been adjudicated as neglected) was supported by clear, cogent, and convincing evidence–including testimony from her therapist and her own admission to her social worker–and where the court's determination that there was a likelihood of future neglect was supported by numerous findings–including those related to her inability to care for the child at the time of the hearing and her failure to make progress on her case plan. In re B.R.L., 381 N.C. 56 (2022)

Grounds for termination—neglect—likelihood of future neglect—The trial court properly terminated a mother's parental rights to her daughter based on neglect where, after an older sibling was sexually abused by the children's father, respondent-mother refused to believe that abuse had occurred and actively tried to discredit the sibling. Despite completing a case plan, respondent-mother failed to accept responsibility for her actions and to demonstrate any ability to protect her daughter from threats. The unchallenged findings of fact supported the court's determination that there was a likelihood of future neglect if the child were returned to her mother's care. In re G.D.C.C., 380 N.C. 37 (2022)

Grounds for termination—neglect—likelihood of future neglect—case plan, domestic violence, and parenting skills—The trial court's order terminating respondent-mother's parental rights in her child on the ground of neglect was affirmed where, even after the factual findings that lacked evidentiary support were disregarded, the trial court's conclusion that respondent was likely to neglect her child in the future was supported by the remaining findings–including that she had failed to adequately make progress on her case plan, she continued to have issues with domestic violence, and she had failed to show any ability to parent appropriately. In re M.K., 381 N.C. 418 (2022)

Grounds for termination—neglect—likelihood of future neglect—drugs, parenting, and home—The trial court did not err in determining that there was a probability of a repetition of neglect if respondent-father's child were returned to his custody, where the child had been removed from the father's custody two years before the termination hearing due to the father's substance abuse, his parenting issues, and the filthy condition of the home. The trial court's findings, which were supported by sufficient evidence, established that the father had tested positive for methamphetamine approximately twenty-three months before the termination hearing, had willfully failed to complete a parenting class despite ample opportunity to do so, had failed to pay child support or find employment, and continued to have no known residence suitable for the child. In re A.E.S.H., 380 N.C. 688 (2022)

Grounds for termination—neglect—likelihood of future neglect—extensive history of drug use and domestic violence—Disregarding one finding of fact that was not supported by record evidence (regarding a father's participation in substance abuse and parenting education classes while incarcerated), the trial court's termination of a father's parental rights to his four children on the ground of neglect was supported by the remaining findings and did not rest solely on the father's incarceration. The findings detailed the father's extensive history of domestic violence with the children's mother and drug dealing, multiple arrests, lack of direct contact with his children in three years, and minimal progress on his case plan. Therefore, the court's conclusion that there was a "very high" likelihood of a repetition of neglect was well supported. In re B.E., 381 N.C. 726 (2022)

Grounds for termination—neglect—likelihood of future neglect—failure to address domestic violence in home—The trial court properly terminated a mother's parental rights in her daughter on the ground of neglect based on a determination that a likelihood of future neglect existed if the child were returned to the mother's care. The court's findings showed that the mother had denied at least two reported incidents of domestic violence by the child's father; that the child's initial neglect adjudication resulted from the mother's tendency to deny or minimize the domestic violence issues at home; and that the mother made minimal progress in addressing the domestic violence component of her case plan, continued her relationship with the father until just months before the termination hearing, made few efforts to contact or develop a relationship with the child, and lacked appropriate housing. In re T.B., 380 N.C. 807 (2022)

Grounds for termination—neglect—likelihood of future neglect—inability to provide care and safe environment—The trial court properly terminated a mother's parental rights to her three children on the ground of neglect where its unchallenged findings supported a determination that there was a likelihood of the repetition of neglect if the children were returned to the mother's care, based on her inability to provide stable housing or maintain utilities, her drug use, her criminal conduct leading to arrest and incarceration, and her delay of nearly twenty-one months after two of the children were taken into DSS custody before beginning to comply with her case plan. In re M.R., 381 N.C. 838 (2022)

Grounds for termination—neglect—likelihood of future neglect—inadequate progress on case plan—The trial court's order terminating respondent-mother's parental rights in her daughter on the ground of neglect was affirmed where clear, cogent, and convincing evidence supported the court's factual findings, including that respondent-mother did not begin working on her social services case plan until shortly before the termination hearing; she failed to demonstrate the sustained behavioral changes necessary to ensure her child's safety and welfare, particularly where it came to her substance abuse and parenting-related issues; her visits with the child were discontinued because of her inconsistent attendance and the resulting negative effect on the child; and she failed to maintain suitable housing and stable employment. In turn, these findings supported the court's conclusion that there was a high likelihood of future neglect if the child were returned to respondent-mother's care. In re R.L.R., 381 N.C. 863 (2022)

Grounds for termination—neglect—likelihood of future neglect—mental health issues—The trial court properly terminated a mother's parental rights to her three children based on neglect where its findings, supported by evidence, in turn supported the court's conclusion that there was a high likelihood of the repetition of neglect if the children were returned to the mother's care. Although the mother did make some progress on her mental health issues up to the time of the hearings, she remained unable to parent all of her children simultaneously, she was still prone to making angry outbursts, and she and the children's father were likely to resume their relationship after the completion of his incarceration, despite their extensive history of domestic violence. In re B.E., 381 N.C. 726 (2022)

Grounds for termination—neglect—likelihood of future neglect—ongoing substance abuse—The trial court's order terminating respondent-mother's parental rights in her children on the grounds of neglect was affirmed where, despite some non-fatal deficiencies in the order, the children had been adjudicated as neglected and the mother continued to have substance abuse issues that demonstrated a likelihood of future neglect–as shown by her refusal to regularly comply with her case plan's required random drug screens and by the positive test for cocaine in her newborn daughter. In re J.D.O., 381 N.C. 799 (2022)

Grounds for termination—neglect—likelihood of future neglect—parent's cognitive limitations—The trial court did not err by determining that a mother's parental rights in her children were subject to termination on the grounds of neglect where the unchallenged findings of fact showed no changes in circumstance that would support a conclusion that the mother was unlikely to neglect her children in the future. Rather, the mother's significant cognitive limitations prevented her from taking basic care of even herself, and she lacked the ability to comprehend the past neglect or how to care for her children going forward; furthermore, the suitability of other family members as caregivers was irrelevant where the mother was unfit to care for the children. In re V.S., 380 N.C. 819 (2022)

Grounds for termination—neglect—likelihood of future neglect—pattern of domestic violence—In an order terminating respondent-father's parental rights to his four-year-old son on the ground of neglect (N.C.G.S. § 7B-1111(a)(1)), the trial court's determination that there was a likelihood of repetition of neglect if the child were returned to respondent's care was supported by unchallenged findings regarding the long history of domestic violence between respondent and the child's mother, respondent's violation of domestic violence protective orders, and respondent's aggression toward a social worker and display of a knife at a supervised visit. Although respondent made some progress on his case plan, his repeated denials that domestic violence occurred or that it was the reason for the child's removal gave rise to a justifiable concern about the possibility of future neglect. In re K.Q., 381 N.C. 137 (2022)

Grounds for termination—neglect—likelihood of repetition of neglect—parental fitness at time of proceeding—In a private termination of parental rights matter, where petitioners had obtained custody of the child pursuant to a civil custody order, the trial court properly terminated the father's parental rights in the child on grounds of neglect (N.C.G.S. § 7B-1111(a)(1)). Although the father could not regain custody under the civil order without a substantial change in his parenting skills and ability to care for the child, the court did not err in determining that a substantial likelihood of repetition of neglect existed where, under the applicable statutes, that determination depends not on the parent's fitness to regain custody of the child but rather on the parent's fitness to care for the child at the time of the termination proceeding. In re D.I.L., 380 N.C. 723 (2022)

Grounds for termination—neglect—past neglect—other parent's conduct—The trial court did not err by determining that a father's parental rights in his son were subject to termination on the grounds of neglect where the showing of past neglect was based on the mother's (rather than the father's) conduct. In re C.S., 380 N.C. 709 (2022)

Grounds for termination—neglect—some progress—right before termination hearing—The trial court did not err by determining that a father's parental rights were subject to termination on the grounds of neglect where the child had previously been adjudicated as neglected and the unchallenged findings supported the conclusion that repetition of neglect was highly likely given the father's lack of stability, unaddressed substance abuse issues, and domestic violence issues. Although the father had made some progress in the month or two before the termination hearing, it was insufficient to outweigh his long history with these issues. In re J.R.F., 380 N.C. 43 (2022)

Grounds for termination—neglect—stipulations to factual circumstances—sufficiency of findings—The trial court properly terminated a father's parental rights to his daughter based on neglect after making findings that, although respondent was not responsible for the child's initial removal from the home (which was based on her testing positive for controlled substances at birth), he had a long-standing drug addiction, he continued to use drugs after he came forward as the child's father, and he lied to the court about his drug use. Although the court's findings were limited due to respondent having stipulated to the factual circumstances underlying the grounds for termination, the findings were supported by competent evidence and were in turn sufficient to support the court's conclusions of law. In re M.S.L., 380 N.C. 778 (2022)

Grounds for termination—notice—sufficiency of allegations—Where the department of social services' motion to terminate respondent-father's parental rights specifically cited only N.C.G.S. § 7B-1111(a)(3) and (a)(6) as grounds for terminating his parental rights, the trial court erred by adjudicating the existence of the grounds in N.C.G.S. § 7B-1111(a)(1), (a)(2), and (a)(7). A sentence in the motion under the paragraph citing N.C.G.S. § 7B-1111(a)(6)–even when coupled with prior orders incorporated by reference–alleging that the "parents have done nothing to address or alleviate the conditions which led to the adjudication of this child as a neglected juvenile" did not adequately allege statutory language to provide notice of the grounds in N.C.G.S. § 7B-1111(a)(1) or (a)(2), and the allegation in the motion referencing N.C.G.S. § 7B-1111(a)(7) with regard to the children's mother could not provide notice that respondent's parental rights were subject to termination on that ground. In re D.R.J., 381 N.C. 381 (2022)

Grounds for termination—willful abandonment—attempts to regain contact with children—In a case involving ex-spouses who previously lived in Kentucky, the trial court properly dismissed the mother's petition to terminate the father's parental rights in their three children on the ground of willful abandonment. The court's factual findings showed that, during the determinative six-month period, the father paid child support and attempted to register in North Carolina the parties' Kentucky custody order (granting sole custody to the mother while entitling the father to seek review of the order and request visitation upon completing the Friend of the Court's recommendations). Further, the court found that the father–who had been prevented from contacting the children under protective orders entered in Kentucky–had made several efforts to regain contact with his children outside of the determinative six-month period, including complying with the Friend of the Court's recommendations, making multiple attempts to obtain relief from the protective orders, and relocating to North Carolina to be closer to where the mother had moved with the children. In re N.W., 381 N.C. 851 (2022)

Grounds for termination—willful abandonment—incarceration—no contact with child—The trial court did not err by concluding that respondent-father's parental rights were subject to termination on the grounds of willful abandonment where he was incarcerated for nearly the entire time that his child was in the custody of social services and the evidence–including orders from prior proceedings and social workers' testimony that they were not aware of respondent-father ever calling the child or sending him any gifts–showed that he failed to make any efforts to communicate with his child during the relevant six-month time period. In re J.A.J., 381 N.C. 761 (2022)

Grounds for termination—willful abandonment—neglect by abandonment—termination petitions denied—insufficiency of findings—The trial court's orders denying petitioner-mother's petitions to terminate respondent-father's parental rights in the children born of their marriage lacked sufficient findings of fact–both to support denial of the petitions and to permit meaningful appellate review–and therefore the orders were vacated and remanded for additional findings and conclusions. Specifically, for the ground of willful abandonment, the trial court failed to identify the determinative six-month period, failed to address whether respondent had the ability to seek modification of an order requiring him to have no contact with his children during the determinative period, and, with one exception, considered respondent's "actions to improve himself" occurring only outside the determinative period; for the ground of neglect based on abandonment, the trial court failed to make any findings. In re B.F.N., 381 N.C. 372 (2022)

Grounds for termination—willful abandonment—sufficiency of findings—The trial court properly terminated a father's parental rights to his daughter on the ground of willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where its findings, which were supported by clear, cogent, and convincing evidence, showed respondent's willful intention to forego all parental responsibilities by his complete lack of contact with his daughter for far longer than the determinative six-month period, his failure to inquire about the child by contacting her mother despite having multiple avenues to do so, and his written response to the mother that he was unwilling to provide any financial support. In re B.E.V.B., 381 N.C. 48 (2022)

Jurisdiction—amendments to termination order—after notice of appeal given—substantive in nature—The trial court lacked jurisdiction pursuant to N.C.G.S. § 7B-1003(b) to amend its order terminating a mother's parental rights to her children after the mother had given notice of appeal of the original termination order because the amendments–multiple additional findings of fact which were neither mentioned in the court's oral ruling nor duplicative of other findings in the original order–were not merely clerical corrections but were substantive in nature. Therefore, the amended order was void, leaving only the original order subject to appellate review. In re B.B., 381 N.C. 343 (2022)

Jurisdiction—sufficiency of findings—In a termination of parental rights matter, the trial court's general finding that it had jurisdiction over the parties and the subject matter of the action was supported by the record and met the jurisdictional requirements of N.C.G.S. § 7B-1101. In re M.S.L., 380 N.C. 778 (2022)

Motion for continuance—more time for counsel to prepare—effective assistance of counsel—argument waived on appeal—The trial court did not err by denying respondent-mother's motion to continue a termination of parental rights hearing where her counsel told the court he needed more time to prepare a defense (respondent-mother had recently been incarcerated and would potentially be starting a 120-day substance abuse treatment program). Because counsel did not assert that the continuance was necessary to protect respondent-mother's constitutional right to effective assistance of counsel, the denial of the motion was reviewable for an abuse of discretion only; here, there was no abuse of discretion where respondent-mother failed to show any "extraordinary circumstances" to justify the continuance, which would have pushed the hearing beyond the ninety-day period prescribed by N.C.G.S. § 7B-1109(d). Moreover, there was no factual basis for respondent-mother's argument that her counsel's performance at the termination hearing was constitutionally deficient. In re A.M.C., 381 N.C. 719 (2022)

Motion to continue hearing—denied—no prejudice—The trial court did not abuse its discretion by denying respondent-mother's motion to continue a termination of parental rights hearing (made on her behalf by her counsel when respondent did not appear at the hearing) where respondent failed to show the denial caused her prejudice, since she did not state that she would have testified or that a different outcome would have resulted if the motion had been allowed. In re B.B., 381 N.C. 343 (2022)

Motion to continue—beyond ninety days after initial petition—extraordinary circumstances—notice of hearing—In a private termination of parental rights action, the trial court did not abuse its discretion in denying a mother's motion for a continuance beyond the statutory ninety-day period where there were no extraordinary circumstances to justify a continuance. While the mother claimed that it was difficult for her to travel from Ohio on such short notice (she claimed she received notice of the hearing date only five days in advance), she knew more than sixty days in advance which week the hearing would occur. In re L.A.J., 381 N.C. 147 (2022)

Motion to continue—denial—incarcerated parent—due process argument waived—no extraordinary circumstances—A father's argument on appeal that the denial of his fourth motion to continue a termination of parental rights (TPR) hearing violated his due process rights was waived because his counsel did not raise the constitutional issue before the trial court. There was no abuse of discretion where the father had already been granted three continuances to allow more time to secure his participation by telephone from federal prison, there was no showing that another continuance would increase his chances at participation, and more than eight months had passed since the filing of the TPR petition. Therefore, there were no extraordinary circumstances pursuant to N.C.G.S. § 7B-1109(d) to justify another continuance. In re B.E., 381 N.C. 726 (2022)

Motion to continue—extraordinary circumstances—incarcerated parent—COVID-19 lockdown—The trial court erred by denying a father's motion to briefly continue the adjudicatory hearing on a petition to terminate his parental rights where the prison in which the father was incarcerated was under lockdown due to COVID-19, preventing him from preparing for the hearing with his attorney and testifying on his own behalf. The lockdown at the prison was an "extraordinary circumstance" allowing the hearing to be continued beyond the statutory ninety-day period; the father's absence created a meaningful risk of error that undermined the fundamental fairness of the hearing because the father could not meet with counsel before the hearing, each of the four grounds for termination required a careful assessment of his conduct in prison, and no other witness was available to testify as to that information; and the error was prejudicial. In re C.A.B., 381 N.C. 105 (2022)

Neglect—likelihood of future neglect—willful failure to make reasonable progress—willfulness—required findings—An order terminating a mother's parental rights in her three children based on neglect (N.C.G.S. § 7B-1111(a)(1)) and failure to make reasonable progress in correcting the conditions leading to the children's removal (N.C.G.S. § 7B-1111(a)(2)) was vacated, where the trial court failed to enter a specific finding regarding the probability of future neglect if the children were returned to the mother's care–which was a necessary finding for termination under section 7B-1111(a)(1) where the children had been separated from the mother for a period of time–and the court also failed to determine whether the mother's failure to make reasonable progress was willful. Because some of the court's findings and some evidence in the record could have supported these necessary determinations, the matter was remanded for further proceedings. In re M.B., No. 325A21 (N.C. Aug. 19, 2022)

No-merit brief—dependency—sexual abuse—The orders ceasing reunification efforts and terminating the parental rights of a father–who had been arrested for dozens of sexual offense charges against minors, including his own young daughter–were affirmed where his counsel filed a no-merit brief, there was no error in the trial court's decision to discontinue reunification efforts, the evidence and findings supported the determination that the grounds of dependency existed to support termination, and there was no abuse of discretion in the conclusion that termination would be in the child's best interests. In re A.K., 380 N.C. 16 (2022)

No-merit brief—failure to legitimate—In a private termination action, the termination of a father's parental rights to his daughter on the ground of failure to legitimate was affirmed where his counsel filed a no-merit brief–identifying two potential issues for review, neither of which held merit–and the termination order was supported by clear, cogent, and convincing evidence and based on proper legal grounds. In re K.M.S., 380 N.C. 56 (2022)

No-merit brief—multiple grounds for termination—The termination of a father's parental rights in his daughter on multiple grounds was affirmed where his counsel filed a no-merit brief and where the termination order was supported by the evidence and based on proper legal grounds. In re T.B., 380 N.C. 807 (2022)

Parent's competency—inquiry—trial court's discretion—In a termination of parental rights case, the trial court did not abuse its discretion by not conducting an inquiry into respondent-mother's competency where the trial court was aware that she suffered from mental illness and that she was not consistent in receiving mental health treatment. The record showed that the trial court had the opportunity to observe respondent-mother throughout the proceedings and that she understood the nature of the proceedings, her role in them, and how to assist her attorney in preparing for them. In re J.A.J., 381 N.C. 761 (2022)

Permanency planning—cessation of reunification efforts—no change in plan—parent given additional opportunity for compliance—The trial court did not err by ordering the department of social services to cease reunification efforts between a father and his children–even though the court did not change the primary permanent plan from reunification–based upon findings that the father did not fully acknowledge his responsibility in the removal of his children from his care and the effect his mental health issues had on his parenting skills, that he had a pattern of noncompliance with his case plan, and that he continued to be aggressive and abusive with DSS workers. Given the father's behavior, the court did not violate N.C.G.S. § 7B-906.2(b) by deciding to give the father additional time to demonstrate compliance with his case plan rather than immediately eliminate reunification as a permanent plan. In re C.H., 381 N.C. 745 (2022)

Permanency planning—eliminating reunification—statutory factors—availability of parent—In an appeal from a termination of parental rights (TPR) order and an earlier permanency planning order, although the findings in the TPR order challenged by the father regarding his lack of progress on his case plan were supported by competent evidence and the trial court made sufficient findings to address subsections (d)(1), (d)(2), and (d)(4) as required by N.C.G.S. § 7B-906.2 before eliminating reunification as a permanent plan in the earlier order, there were insufficient findings addressing subsection (d)(3)–whether the father remained available to the court, the department of social services, and the guardian ad litem. Since the trial court substantially complied with the statute, the appropriate remedy was not to vacate the permanency planning order, but to remand for entry of additional findings of fact. In re C.H., 381 N.C. 745 (2022)

Standard of proof—clear, cogent, and convincing—not stated in open court or in written order—appropriate remedy—In a termination of parental rights proceeding, the trial court's failure to state that it was utilizing the standard of proof of clear, cogent, and convincing evidence, either orally in open court or in its written order terminating both parents' rights to their children–and in fact stating the wrong standard of proof in its order (preponderance of the evidence)–was in violation of N.C.G.S. § 7B-1109(f). Where the record evidence was not so clearly insufficient as to make further review futile, the termination order was reversed and the matter remanded for reconsideration under the correct standard of review. In re J.C., 380 N.C. 738 (2022)

Subject matter jurisdiction—findings—record support—The trial court had subject matter over a termination of parental rights action where the trial court's order included a determination that it had subject matter jurisdiction and the record supported that determination. The trial court was not required to make an express finding of jurisdiction under N.C.G.S. § 50A-201, 50A-203, or 50A-204. In re J.D.O., 381 N.C. 799 (2022)

Subject matter jurisdiction—standing—petition filed by stepmother—statutory requirements—A stepmother had standing to file a private termination of parental rights action against a child's mother pursuant to N.C.G.S. § 7B-1103(a)(5), thereby giving the trial court subject matter jurisdiction over the matter, where there was sufficient evidence that the child had resided with her stepmother continuously far in excess of the required statutory length of time immediately preceding the filing of the petition. The trial court was not required to make an explicit finding of fact establishing petitioner's standing, particularly where the mother did not raise the issue at the hearing. In re A.A., 381 N.C. 325 (2022)

Trusts

Subject matter jurisdiction—pay order—new pleadings not required—Where plaintiffs filed actions challenging certain amendments to their father's revocable trust removing them as beneficiaries, the trial court had subject matter jurisdiction to issue an order directing the trustee to make distributions to the beneficiaries for the legal fees incurred in their defense of the trust amendments. The defending beneficiaries were not required to file pleadings to invoke the trial court's jurisdiction on their motions; rather, their motions within the actions commenced by plaintiffs' complaints were sufficient. Wing v. Goldman Sachs Tr. Co., N.A., No. 488PA20 (N.C. Aug. 19, 2022)

Trustee—power to make distributions—during pendency of litigation challenging trust amendments—court order—Where plaintiffs filed actions challenging certain amendments to their father's revocable trust removing them as beneficiaries, the trial court did not err by ordering the trustee–at the trustee's own request–to make distributions to the beneficiaries for the legal fees incurred in their defense of the trust amendments. The trustee had the power to exercise its discretion to make such distributions, and the record supported the trial court's order compelling the distributions. Further, the Court of Appeals erred by applying N.C.G.S. § 31-36 (a statute applicable to will caveats) in this trust proceeding. Wing v. Goldman Sachs Tr. Co., N.A., No. 488PA20 (N.C. Aug. 19, 2022)

Unemployment Compensation

Good cause—attributable to employer—employee's burden—Petitioner, a former service technician for a security company, was disqualified from receiving unemployment benefits where, although he had good cause to leave his employment, he failed to carry his burden of showing that his resignation was attributable to his employer. In response to petitioner's ongoing knee pain, the employer had made an out-of-state administrative position available and attempted to give petitioner assignments that were less strenuous on his knees; however, petitioner rejected the out-of-state position, did not take additional Family and Medical Leave, and chose to resign. In re Lennane, 380 N.C. 483 (2022)

Unfair Trade Practices

In or affecting commerce—solicitation of investments—single market participant—Plaintiff was not entitled to protection under the Unfair and Deceptive Trade Practices Act where defendant encouraged her to loan money to his company–based on representations of the strength of the business and a promise to provide health insurance–and then reneged on the promissory note that was issued, because soliciting funds to raise capital did not constitute a business activity in or affecting commerce. The investment interactions related to the internal operations of the company and occurred solely within a single market participant. Nobel v. Foxmoor Grp., LLC, 380 N.C. 116 (2022)

Utilities

General rate case—treatment of coal ash remediation costs—departure from prior precedent—not arbitrary and capricious—no equal protection violation—In a general rate case, the Utilities Commission neither acted arbitrarily and capriciously nor violated the equal protection provisions of the state and federal constitutions by authorizing a utilities company to amortize its coal ash waste remediation costs over a ten-year period instead of the five-year period it allowed in two earlier decisions–one from 2016 involving the same company and another involving Duke Energy Corporation–and by denying the company the ability to earn a return on the unamortized balance of those costs as it had permitted in the earlier decisions. The Commission's ratemaking decisions–which are legislative, rather than judicial, in nature–are not subject to res judicata or stare decisis principles. Further, the 2016 order expressly disclaimed having any precedential effect regarding the company's coal ash-related issues; the decision from the Duke rate cases was still on appeal when this case was heard, was reversed on appeal, and resulted in an unfavorable settlement for Duke; and the Commission's order in this case was supported by the record and adequately explained the Commission's basis for its decision. State ex rel. Utils. Comm'n v. Virginia Elec., 381 N.C. 499 (2022)

Workers' Compensation

Average weekly wages—calculation method—fair and just results—standards of review—In a workers' compensation case, the Supreme Court held that whether the Industrial Commission selected the correct method under N.C.G.S. § 97-2(5) for calculating an injured employee's average weekly wages is a question of law subject to de novo review on appeal, while the issue of whether a particular method produces "fair and just" results is a question of fact reviewable under the "any competent evidence" standard–unless the Commission's determination on that issue lacked evidentiary support or was based upon a misapplication of the legal standard presented in section 97-2(5) (whether the result most nearly approximates the amount the employee would be earning but for the injury), in which case the Commission's erroneous statutory construction is reviewable de novo. Thus, where the Commission determined plaintiff's average weekly wages based on an apparent misapplication of the law, the Court remanded the case for further proceedings, including the entry of a new order correctly applying the law. Nay v. Cornerstone Staffing Sols., 380 N.C. 66 (2022)

Jurisdiction—timeliness of filing—N.C.G.S. § 97-24—standard of review—de novo—The Industrial Commission's determination of whether an injured employee's application for worker's compensation benefits was timely filed pursuant to N.C.G.S. § 97-24 constituted a jurisdictional fact and, therefore, was subject to de novo review on appeal. Cunningham v. Goodyear Tire & Rubber Co., 381 N.C. 10 (2022)

Timeliness of filing—last payment of medical compensation—chronic back pain—related to prior injury—A claim for worker's compensation benefits filed by a press operator at a tire factory (plaintiff) was not time-barred pursuant to N.C.G.S. § 97-24 because she filed it within two years of the last payment of medical compensation by her employer–for a back injury she suffered in 2014–which occurred in 2017, not 2015 as found by the Industrial Commission. Records and testimony from plaintiff and multiple doctors demonstrated that plaintiff's medical treatment for chronic back pain in 2017 was related to her 2014 injury and was not due solely to injuries she sustained in 2011 (claims for which were settled in 2012). Cunningham v. Goodyear Tire & Rubber Co., 381 N.C. 10 (2022)


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