Appeal by respondent mother from order entered 14 October 2004
by Judge Paul A. Hardison in Onslow County District Court. Heard
in the Court of Appeals 9 February 2006.
Cindy Goddard Strope for petitioner-appellee.
Richard E. Jester for respondent-appellant.
M. Lynn Smith for guardian ad litem.
Respondent mother, A.J., appeals from an order terminating her
parental rights with respect to her son D.D.J. and her daughter
D.M.J. We hold that the trial court lacked jurisdiction because
(1) the children were not in the custody of the Onslow County
Department of Social Services at the time the petition to terminate
A.J.'s parental rights was filed, and (2) the children were not
"resid[ing] in" or "found in" North Carolina at that time. N.C.
Gen. Stat. § 7B-1101 (2005). We, therefore, vacate the trial
Factual and Procedural History
The children were adjudicated neglected juveniles on 29
November 2001, primarily because of domestic violence and substance
abuse issues in their home. Following this adjudication, the
children resided in foster care for a time, but the Onslow County
Department of Social Services ("DSS") ultimately placed them in
South Carolina with their maternal great-uncle and great-aunt,
Durand and Tammy Williams. Respondent mother separated from the
children's father in the summer of 2002, and the father moved to
(See footnote 1)
On 15 August 2003, the district court held a permanency
planning hearing. Subsequently, it entered an order on 26
September 2003 placing "[f]ull custody" of the children with Durand
and Tammy Williams and stating that DSS, the guardian ad litem, and
the attorney advocate were released and the children's case was
Two months later, on 3 December 2003, DSS filed a petition to
terminate the parental rights of respondent mother and the
children's father. Thereafter, on 17 March 2004, the district
court amended the 26 September 2003 order, purporting to sign it
nunc pro tunc
15 August 2003. Rather than giving full custody to
Mr. and Mrs. Williams, the amended order gave legal custody to DSS
and physical custody to the Williamses. The new order also, rather
than closing the case, provided that the case plan for the children
was changed from relative placement to termination of parental
rights. The trial court held a hearing on DSS' 3 December 2003
petition on 16 April 2004 and 6 May 2004. More than five months
later, on 14 October 2004, the trial court entered an order
terminating both parents' parental rights. Respondent mother has
timely appealed from this order.
Respondent mother argues on appeal that the district court did
not have jurisdiction to rule on DSS' petition to terminate her
parental rights. Because DSS did not have custody of the children
when it filed the petition, we agree and vacate the order
terminating respondent mother's parental rights.
N.C. Gen. Stat. § 7B-1101 provides that "[t]he court shall
have exclusive original jurisdiction to hear and determine any
petition or motion relating to termination of parental rights to
any juvenile who resides in, is found in, or is in the legal or
actual custody of a county department of social services or
licensed child-placing agency in the district at the time of filing
of the petition or motion." In other words, there are three sets
of circumstances in which the court has jurisdiction to hear a
petition to terminate parental rights: (1) if the juvenile resides
the district at the time the petition is filed; (2) if the
juvenile is found in
the district at the time the petition is
filed; or (3) if the juvenile is in the legal or actual custody of
a county department of social services or licensed child-placing
agency in the district at the time the petition is filed. It is undisputed that DSS did not have custody of the children
on 3 December 2003, the date upon which the petition was filed.
Furthermore, according to the petition itself, the children were
living in South Carolina at the time of the filing, so they were
not "residing in" or "found in" this State. See In re Leonard
N.C. App. 439, 440, 335 S.E.2d 73, 73-74 (1985) (holding that
because mother left with child for Ohio four days before filing of
petition to terminate parental rights, the child was neither
"residing in" nor "found in" the district at the time of filing,
and the petition failed for lack of subject matter jurisdiction).
Given these facts, the trial court lacked jurisdiction under N.C.
Gen. Stat. § 7B-1101 to enter any order terminating respondent
mother's parental rights.
Moreover, N.C. Gen. Stat. § 7B-1103 (2005) specifies who has
standing to file a termination of parental rights petition. DSS
relied upon § 7B-1103(a)(3), which allows a petition to be filed by
"[a]ny county department of social services, consolidated county
human services agency, or licensed child-placing agency to whom
custody of the juvenile has been given by a court of competent
jurisdiction." Although DSS' petition alleged it had been granted
custody pursuant to a non-secure custody order dated 25 October
2001, it no longer had custody as of the date of the filing of the
petition. DSS, therefore, lacked standing to file the petition.
In re Miller
, 162 N.C. App. 355, 358, 590 S.E.2d 864, 866 (2004)
("Because DSS no longer had custody of the child, DSS lacked
standing, under the plain language of N.C. Gen. Stat. § 7B-1103(a),to file a petition to terminate respondent's parental rights.").
This Court held in Miller
that DSS' lack of standing deprived the
district court of subject matter jurisdiction, meaning that "the
proceedings to terminate respondent's parental rights were a
at 359, 590 S.E.2d at 866.
DSS argues on appeal, however, that the amended order filed on
17 March 2004, which purported to undo the trial court's grant of
full custody to the Williamses, should operate retroactively to
validate DSS' 3 December 2003 petition. DSS contends that the 26
September 2003 order was entered due to a clerical mistake, and the
17 March 2004 order should be applied retroactively because it
merely corrected that mistake.
A clerical error is "'[a]n error resulting from a minor
mistake or inadvertence, esp[ecially] in writing or copying
something on the record, and not from judicial reasoning or
determination.'" State v. Jarman
, 140 N.C. App. 198, 202, 535
S.E.2d 875, 878 (2000) (quoting Black's Law Dictionary
563 (7th ed
. Generally, clerical errors include mistakes such as
inadvertent checking of boxes on forms, e.g.
, or minor
discrepancies between oral rulings and written orders, e.g.
, 155 N.C. App. 51, 59, 574 S.E.2d 101, 106-07 (2002).
Although DSS relies upon Rule 60(a) of the Rules of Civil
Procedure, authorizing the correction of clerical mistakes in
judgments, courts do not have the power under Rule 60(a) to affect
the substantive rights of the parties or to correct substantive
errors in their decisions. Hinson v. Hinson
, 78 N.C. App. 613,615, 337 S.E.2d 663, 664 (1985) ("We have repeatedly rejected
attempts to change the substantive provisions of judgments under
the guise of clerical error."), disc. review denied
, 316 N.C. 377,
342 S.E.2d 895 (1986).
On its face, the 17 March 2004 amendment makes a very
substantial, substantive change in the 26 September 2003 order. We
can perceive no basis for classifying it as a clerical correction.
In the 26 September 2003 order _ in contrast to prior orders
involving the children _ "[f]ull custody" of the children was
placed with the Williamses, while DSS, the guardian ad litem, and
the attorney advocate were released. Further, the order specified
that "this case is closed." In March, custody was changed to
provide that DSS retained legal custody, while the Williamses had
only physical custody. Rather than closing the case, the order
provided that "[t]he case plan is changed from relative placement
to termination of parental rights and adoption." Such changes
cannot be classified as clerical.
We also note it is questionable whether the court had
authority to enter the March order. N.C. Gen. Stat. § 7B-1000(b)
(2005) (emphasis added) provides: "In any case where the court
finds the juvenile to be abused, neglected, or dependent, the
jurisdiction of the court to modify any order or disposition made
in the case shall continue during the minority of the juvenile,
until terminated by order of the court
, or until the juvenile is
otherwise emancipated." Our Court has held that once jurisdiction
has been terminated by court order, "the trial court [has] nofurther duty or authority to conduct reviews." In re Dexter
N.C. App. 110, 115, 553 S.E.2d 922, 925 (2001). DSS has provided
no explanation of how the trial court came to enter the 17 March
2004 amended order; the record contains no motions, pleadings, or
transcripts of hearings relating to the entry of either the 26
September 2003 order or the 17 March 2004 order. Nor does DSS
include in its brief any citation of statutory or case law
authority that would allow the court to act after it had closed the
case. See In re P.L.P.
, 173 N.C. App. 1, 7-8 618 S.E.2d 241, 245
(2005) (holding that jurisdiction in the district court was
"terminated by the trial court's order to 'close' the case" and
that DSS was required to file a new petition alleging neglect),
aff'd per curiam
, 360 N.C. 360, 625 S.E.2d 779 (2006).
Because, at the time of the filing of the DSS petition, DSS
lacked standing to petition for termination of parental rights and
the trial court lacked subject matter jurisdiction to hear DSS'
petition, "the proceedings to terminate respondent's parental
rights were a nullity," and the order from which respondent appeals
must be vacated. Miller
, 162 N.C. App. at 359, 590 S.E.2d at 866.
Judges HUDSON and TYSON concur.