in the Court of Appeals 5 September 2019.
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.
T. Michael for Respondent-Appellant Mother.
McCullers Reece for Respondent-Appellant Father.
Parker, Poe, Adams & Bernstein L.L.P., by R. Bruce
Thompson II, for Guardian ad Litem.
appeal from an order adjudicating their minor children
"Jillian", "John", and
"Catherine" (collectively, "the
children") neglected. We reverse.
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.
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.
May 2018, CCDHS filed a petition 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."
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
Subject Matter Jurisdiction
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
"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").
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
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).
Respondents' Arguments on Appeal
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.
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 ...