IN THE MATTER OF:
KAYLEE BARBOSA,
minor child.
Buncombe County
;
No. 01 J 202
Buncombe County Department of Social Services, by John C.
Adams, for petitioner-appellee Department of Social Services.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Robert W. Ewing for respondent appellant.
Judy N. Rudolph and Michael N. Tousey as Guardians Ad
Litem for petitioner appellee Kaylee Barbosa.
PER CURIAM.
Respondent appeals from an order finding neglect with respect
to her minor child, Kaylee Barbosa. Previously, this Court
concluded this matter to be moot because custody of the child had
already been restored to the mother. However, In re Hatley, 291N.C. 693, 231 S.E.2d 633 (1977), establishes that, regardless of
whether the underlying controversy continues to exist, an appeal
will not be moot if “collateral consequences” remain, which could
“frequently be revived to attack the capacity of [an appellant]”
and could damage the appellant's credibility. Hatley, 291 N.C. at
695, 231 S.E.2d at 634. An adjudication of neglect is such a
collateral consequence. This Court now reconsiders respondent's
appeal on remand from the Supreme Court. Because, however, the
order adjudicating the minor child as a neglected juvenile was not
signed by the trial court judge who presided over the hearing, this
case must be vacated and remanded to the trial court.
The hearing transcript shows that Judge Gary C. Cash presided
over the 15 August and 21 August 2001 hearings concerning Kaylee
Barbosa. The transcript does not reflect that Judge Earl Fowler
was present. At the end of the 21 August hearing, Judge Cash
requested that the Department of Social Services prepare an order
finding “the facts as are related in these reports.” The order
before us on appeal, however, was signed by Judge Fowler. From a
thorough examination of the record and transcript, we can discern
no explanation for why this occurred.
(See footnote 1)
Under In re Whisnant,71 N.C. App. 439, 322 S.E.2d 434 (1984)
a trial judge who was not presiding over a proceeding and did not
hear the evidence in the case does not have authority to enter an
order under Rule 52 in that case and any such order entered is anullity and must consequently be vacated and remanded. In re
Whisnant, 71 N.C. App. 439, 440-41, 322 S.E.2d 434, 434-35 (1984).
This is because this Court is without authority to entertain an
appeal of a case in which no judgment has been entered. Abels v.
Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997).
Thus, we may not undertake a review on the merits until a valid
order is entered. Accordingly, the order adjudicating Kaylee
Barbosa as a neglected juvenile must be vacated and this case
remanded to the trial court to enter a valid order.
In accordance with Whisnant, if Judge Cash is available for
assignment the case will be heard by him. See Whisnant, 71 N.C.
App. at 442, 322 S.E.2d at 436. He may consider the transcript of
the evidence previously heard by him and may take such additional
evidence as he may find to be helpful in deciding the issue of
neglect. If Judge Cash is unavailable for assignment, the trial
court shall undertake a new hearing.
Vacated and remanded.
Panel consisting of:
Judges HUNTER, BRYANT and ELMORE.
Report per Rule 30(e).
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