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In re J.C.M.J.C.

Court of Appeals of North Carolina

October 15, 2019

IN THE MATTER OF: J.C.M.J.C., J.J.C.C., C.O.C.

          Heard in the Court of Appeals 5 September 2019.

          Appeal by Respondents from order entered 24 August 2018 by Judge William G. Hamby, Jr. in Cabarrus County Nos. 18 JA 72, 73, 74 District Court.

          Hartsell & Williams, PA, by H. Jay White and Austin "Dutch" Entwistle III, for Petitioner-Appellee Cabarrus County Department of Human Services.

          Garron T. Michael for Respondent-Appellant Mother.

          Mary McCullers Reece for Respondent-Appellant Father.

          Parker, Poe, Adams & Bernstein L.L.P., by R. Bruce Thompson II, for Guardian ad Litem.

          COLLINS, Judge.

         Respondents appeal from an order adjudicating their minor children "Jillian", "John", and "Catherine" (collectively, "the children") neglected.[1] We reverse.

         On or about 25 April 2018, the Cabarrus County Department of Human Services ("CCDHS") received a Child Protective Services ("CPS") report alleging that 8-year-old John and 5-year-old Catherine were frequently seen playing outside alone after school; Respondent-Father ("Father") smoked marijuana in front of the children; Respondent-Mother ("Mother") was pregnant and may also have been smoking; and the odor of marijuana was detectible from the family's apartment. On 2 May 2018, CCDHS received another CPS report alleging that the family could be heard yelling; there was suspected domestic violence in the home; and the home was unclean and lacked furniture.

         CCDHS made multiple unsuccessful attempts to reach Respondents by phone, by mail, and by visits to the residence. Although a social worker spoke to John and Catherine at their school and verified Respondents' address and telephone number, CCDHS was unable to contact Respondents or observe 1-year-old Jillian. Respondents did not respond to CCDHS's phone messages or to multiple "speed messages" left by CCDHS at their apartment.

         On 4 May 2018, CCDHS filed a petition[2] under N.C. Gen. Stat. § 7B-303 (2017) accusing Respondents of obstructing or interfering with a juvenile investigation. After a hearing on 7 May 2018, the trial court found Respondents had obstructed or interfered with CCDHS's investigation without lawful excuse and entered a "Juvenile Interference Order" ordering Respondents to allow CCDHS access to their home and the children. The trial court entered additional interference orders after hearings on 14 and 21 May 2018, finding that CCDHS had made additional attempts to contact Respondents by phone and in person and that Father had "told CCDHS to go away and stop harassing the family."

         On 22 May 2018, CCDHS obtained nonsecure custody of Respondents' children and filed a petition alleging they were neglected juveniles within the meaning of N.C. Gen. Stat. § 7B-101(15) (2017). After a hearing on 12 July 2018, the trial court entered an "Adjudication/Disposition Order" on 24 August 2018 adjudicating the children neglected, continuing them in CCDHS custody, and approving their existing foster placements. The trial court ordered Respondents to obtain psychological, parenting capacity, and substance abuse assessments and comply with any recommended treatment; submit to random drug screens requested by CCDHS; obtain and maintain sufficient income and suitable housing for the children; provide financial support for the children consistent with state law; attend supervised visitations as prescribed in the order; and remain in bi-weekly contact with their social worker. Respondents each filed timely notice of appeal from the trial court's order.

         I. Subject Matter Jurisdiction

         As an initial matter, we note the record on appeal lacks copies of the juvenile petitions purportedly filed by CCDHS with regard to John and Catherine in file numbers 18 JA 73 and 74.[3] "A trial court's subject matter jurisdiction over all stages of a juvenile case is established when the action is initiated with the filing of a properly verified petition." In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). Contrary to the requirements of Appellate Rule 9, the record on appeal thus fails to demonstrate the trial court's jurisdiction over the subject matter in 18 JA 73 and 74. See N.C. R. App. P. 9(a)(1)(c)-(d) (2018) (requiring record to contain "a copy of the summons with return, or of other papers showing jurisdiction of the trial court . . . or a statement showing same" and "copies of the pleadings . . . on which the case or any part thereof was tried").

         Our Supreme Court has established the following doctrine applicable to this circumstance:

"When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority." . . . Contrarily, "when the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed."

State v. Petersilie, 334 N.C. 169, 175-76, 432 S.E.2d 832, 836 (1993) (quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)).

         Because the record on appeal in this case is silent with regard to the trial court's subject matter jurisdiction in 18 JA 73 and 74, we dismiss Respondents' appeal in these cases. See Felmet, 302 N.C. at 176, 273 S.E.2d at 711. Pursuant to our discretionary authority under N.C. Gen. Stat. § 7A-32(c) (2017), however, we elect to review Respondents' arguments on appeal by writ of certiorari. See State v. Phillips, 149 N.C.App. 310, 314, 560 S.E.2d 852, 855 (2002); Gibson v. Mena, 144 N.C.App. 125, 127, 548 S.E.2d 745, 746 (2001).

         II. Respondents' Arguments on Appeal

         Respondents both claim the trial court erred in adjudicating the children neglected juveniles. They assert that many of the trial court's findings of fact in support of its adjudication were not grounded in clear and convincing evidence as required by N.C. Gen. Stat. § 7B-805 (2017). Respondents further argue that the findings supported by the hearing evidence do not support the court's conclusion that the children are neglected.

         We review an adjudication of neglect to determine whether the trial court's findings of fact are based on clear and convincing competent evidence and whether the trial court's findings support its conclusions of law. In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997). Uncontested findings are deemed to be supported by the evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Erroneous findings unnecessary to the adjudication may be disregarded as harmless. In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006). The ...


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