Appeal by respondent from orders entered 22 August 2006 and 19
October 2006 by Judge P. Gwynett Hilburn in Pitt County District
Court. Heard in the Court of Appeals 23 April 2007.
Anthony Hal Morris for petitioner-appellee.
Michael J. Reece for respondent-appellant.
Respondent mother appeals from two orders of the district
court denying respondent's pre-hearing motions and terminating her
parental rights with respect to her minor children, P.P. and M.P.
On appeal, respondent primarily argues that the trial court erred
when, following this Court's decision vacating a permanency
planning order, the trial court failed to enter a new permanency
planning order in accordance with this Court's opinion and insteadproceeded directly to a termination of parental rights ("TPR")
hearing. Because the trial court was required to comply with this
Court's mandate, we reverse and remand for further proceedings.
On 18 March 2003, the trial court entered a permanency
planning order that relieved DSS of making further reunification
efforts for respondent and her children and changed the children's
permanent plan from reunification to adoption. Although respondent
appealed this order, DSS went ahead and filed petitions to
terminate respondent's parental rights for each of her children.
On 21 December 2004, this Court filed its opinion, concluding
that the permanency planning order "lack[ed] any findings of fact
or conclusions of law that DSS made 'reasonable efforts' in
preventing or eliminating the placement of respondent's children."
In re R.P.
, 167 N.C. App. 654, 605 S.E.2d 743, 2004 N.C. App. LEXIS
2253, *8, 2004 WL 2937920, *3 (Dec. 21, 2004) (unpublished). This
Court consequently vacated the permanency planning order and
remanded the case to the trial court for entry of findings of fact
and conclusions of law as to whether DSS had made reasonable
efforts to prevent or eliminate the need for placement of
respondent's children. Id.
(See footnote 1)
The mandate resulting from this opinion issued on 10 January
2005. N.C.R. App. P. 32(b). At a 13 January 2005 hearing, the
trial court did not address the opinion entered by this Court, butinstead continued the hearing. No other action was taken in the
case until February 2006, more than a year later, when DSS noticed
both a permanency planning and a TPR hearing for 23 March 2006. In
response, respondent moved the trial court to continue the TPR
hearing and instead hold a "remand hearing."
Although the record is unclear, it appears that the 23 March
2006 hearing was never held and, instead, on 28 March 2006, DSS
filed new petitions to terminate respondent's parental rights. In
answering these petitions, respondent again moved the trial court
to continue the TPR hearing and to hold a review hearing in order
to enter a new permanency planning order. In August 2006, the
trial court denied respondent's motions.
The hearing on DSS' petitions to terminate respondent's
parental rights was conducted during the 7 September 2006 session
of Pitt County District Court. On 19 October 2006, the trial court
issued an order concluding that various grounds existed to
terminate respondent's parental rights, that termination would be
in the children's best interests, and that respondent's parental
rights should be terminated. Respondent has appealed both the
August 2006 order denying her motions and the 19 October 2006 order
terminating her parental rights.
Respondent primarily argues that the trial court erred when,
following this Court's remand of the prior permanency planning
order, it denied her motion for a review hearing under N.C. Gen.
Stat. § 7B-906 (2005) and instead proceeded directly to a TPRhearing. N.C. Gen. Stat. § 7B-906(a) provides: "In any case where
custody is removed from a parent, guardian, custodian, or caretaker
the court shall conduct a review hearing within 90 days from the
date of the dispositional hearing and shall conduct a review
hearing within six months thereafter." Further, "[t]he court may
not waive or refuse to conduct a review hearing if a party files a
motion seeking the review." N.C. Gen. Stat. § 7B-906(b).
Here, the parties do not dispute that following this Court's
remand, respondent sought a review hearing under N.C. Gen. Stat. §
7B-906(a), that the trial court denied this request, and that this
was error under N.C. Gen. Stat. § 7B-906(b). In addition, the
trial court never complied with the mandate of this Court resulting
from its December 2004 opinion. Generally, "'an inferior court
must follow the mandate of an appellate court in a case without
variation or departure.'" In re R.A.H.
, 182 N.C. App. 52, 57, 641
S.E.2d 404, 407 (2007) (quoting Condellone v. Condellone
, 137 N.C.
App. 547, 551, 528 S.E.2d 639, 642, disc. review denied
, 352 N.C.
672, 545 S.E.2d 420 (2000)).
It may be that petitioner and the trial court believed that
they could proceed with the TPR hearing, despite the appeal of the
permanency planning order, under In re R.T.W.
, 359 N.C. 539, 614
S.E.2d 489 (2005). In R.T.W.
, our Supreme Court concluded that
once a parent's parental rights had been terminated, the parents'
prior appeal of a combined custody review/permanency planning order
necessarily became moot. Id.
at 553, 614 S.E.2d at 498. See also
In re V.L.B.
, 164 N.C. App. 743, 746, 596 S.E.2d 896, 898 (2004)(concluding parent's appeal of permanency planning order was mooted
by trial court's subsequent termination of parental rights because
ruling on parent's current appeal could "
have no practical effect
on the existing controversy").
Our General Assembly has, however, rewritten the statutory
provisions governing trial court dispositions of abuse, neglect,
and dependency proceedings pending appeal. 2005 N.C. Sess. Laws
398, sec. 12. In pertinent part, N.C. Gen. Stat. § 7B-1003(b)(1)
(2005) now provides that during the appeal of a dispositional
order, the trial court shall "[c]ontinue to exercise jurisdiction
and conduct hearings under this Subchapter with the exception of
Article 11 of the General Statutes
[.]" (Emphasis added.) Article
11, N.C. Gen. Stat. §§ 7B-1100 through -1113 (2005), sets out North
Carolina's law pertaining to termination of parental rights. This
Court has previously noted that, by rewriting N.C. Gen. Stat. § 7B-
1003, the General Assembly effectively superceded the mootness
analysis set forth in R.T.W. In re A.B.
, 179 N.C. App. 605, 608
n.2, 635 S.E.2d 11, 14 n.2 (2006).
The new statutory provisions are applicable to petitions filed
on or after 1 October 2005. Since the petitions at issue in this
case were filed 28 March 2006, the trial court was not allowed to
conduct a TPR hearing during the pendency of the appeal of the
permanency planning order.
We acknowledge that because the hearing on the petitions in
this case occurred after this Court's mandate had issued, it was
not, strictly speaking, in violation of N.C. Gen. Stat. § 7B-1003. Nevertheless, it is a well settled rule of statutory construction
that, "'where a literal interpretation of the language of a statute
would contravene the manifest purpose of the statute, the reason
and purpose of the law will be given effect and the strict letter
thereof disregarded.'" In re A.C.F.
, 176 N.C. App. 520, 523, 626
S.E.2d 729, 732 (2006) (quoting In re Banks
, 295 N.C. 236, 240, 244
S.E.2d 386, 389 (1978)).
Although the trial court in the present case waited until this
Court resolved respondent's prior appeal before ruling on DSS' TPR
petitions, the trial court nevertheless avoided this Court's
resolution of that appeal by summarily denying respondent's motions
for a review hearing and, instead, proceeding directly to ruling on
DSS' TPR petitions. We do not believe that the Legislature
intended for its amendment of N.C. Gen. Stat. § 7B-1003 to divest
trial courts of jurisdiction over termination petitions during
appeals of dispositional orders, but to nonetheless allow trial
courts to avoid the effect of those appeals once they are decided.
Cf. In re J.D.C.
, 174 N.C. App. 157, 164, 620 S.E.2d 49, 53 (2005)
(applying certain provisions of Juvenile Code, despite
Legislature's failure to explicitly delineate their applicability,
because "any other interpretation would contravene the intent of
the Juvenile Code").
As a result, we conclude that the trial court erred in
proceeding with the termination of parental rights hearing before
complying with this Court's mandate regarding the permanency
planning order. Indeed, we also note that the trial court'sfailure to comply with the mandate in this case has resulted in a
procedural anomaly. This Court's prior opinion vacated the trial
court's permanency planning order _ the order that had changed the
permanent plan from reunification to termination of parental
, 167 N.C. App. 654, 605 S.E.2d 743, 2004 N.C. App.
LEXIS 2253 at *8, 2004 WL 2937920 at *3. At that point, the
permanency planning order was "void and of no effect."
Friend-Novorska v. Novorska
, 143 N.C. App. 387, 393, 545 S.E.2d
788, 793, aff'd per curiam
, 354 N.C. 564, 556 S.E.2d 294 (2001).
As a result, the trial court erred when it proceeded to a TPR
hearing while the permanent plan for the children was still
For the foregoing reasons, we vacate the trial court's orders
terminating respondent's parental rights. We remand for further
proceedings in accordance with our prior opinion. Given the
passage of time, it may be appropriate for the trial court to take
additional evidence regarding the children's permanent plan, but we
leave that decision to the discretion of the trial court.
Judge STEELMAN concurs.
Judge LEVINSON concurs by separate opinion.
LEVINSON, Judge concurring by separate opinion.
I agree the order on termination of parental rights must be
reversed, but for reasons that differ from those set forth in the
majority opinion. This Court, in In re R.P., 167 N.C. App. 654, 605 S.E.2d 743,
(2004)(unpublished), reversed the 18 March 2003 permanency planning
order because the trial court did not include any findings to
support its conclusion that DSS made reasonable efforts to prevent
or eliminate the placement of respondent's children. In doing so,
this Court expressly refused to address whether the trial court's
decision to change the plan from reunification to adoption was
error. As the majority opinion correctly observes, reunification
was the permanent plan at the time this matter was remanded by
virtue of this Court's setting aside of the 18 March 2003 review
order. It is significant, too, that respondent sought a review
hearing on remand before the hearing on termination that resulted
in the order that is now the subject of this appeal.
In my view, the order on termination of parental rights must
be reversed as a result of the trial court's failure to hold a
permanency planning hearing on remand because the statutory
considerations contained in N.C. Gen. Stat. § 7B-907 (2005)
concerning the establishment of a permanent plan do not mirror the
best interest considerations contained in N.C. Gen. Stat. § 7B-1110
(2005) concerning termination of parental rights.
Section 7B-907 guides the trial court's determination of a
permanent plan, while the court's exercise of discretion in
determining whether to terminate parental rights is counseled by
Section 7B-1110. Here, a trial court could have decided, after
examining those factors contained in Section 7B-907, that some
option other than adoption should be the permanent plan even thoughit could, if confronted with the best interests determination for
the purposes of termination of parental rights on the same
evidence, conclude that termination was appropriate.
One could assert that the trial court, by terminating parental
rights as it did here, necessarily determined that reunification
was not in the best interests of the juveniles and that adoption
should be the permanent plan. However, one cannot logically
conclude that this will always hold true because, again, the
required considerations contained in Section 7B-907 largely differ
from those contained in Section 7B-1110. As a result, the order on
termination must be reversed even though doing so may prove futile
in light of that which is revealed by the record on appeal.
I make several additional observations. First, the trial
court's failure on remand to reexamine whether DSS made reasonable
efforts to prevent or eliminate the placement of respondent's
children is not integral to my decision to reverse. Secondly, it
cannot be seriously questioned that the inferior courts of this
State must follow the directives of this Court. However, their
failures to do so do not always require reversal of an order
entered in contradiction of such directives. See, e.g., In re
Faircloth, 153 N.C. App. 565, 571 S.E.2d 65 (2002); In re R.A.H.,
182 N.C. App. 52, 641 S.E.2d 404 (2007). Finally, the holding in
this appeal _ that the order on termination cannot be sustained
because of the failure of the trial court to hold a permanency
planning hearing _ is inconsistent to some extent with the truism
that the trial court will oftentimes adjudicate a motion orpetition to terminate parental rights where it is not already
exercising any form of jurisdiction over the child. See N.C. Gen.
Stat. § 7B-1103 (2005) (Who may file a petition or motion).
Indeed, there is oftentimes no permanent plan in place when
termination is sought by certain persons. Nevertheless, on these
facts, where the juvenile court was already involved in the life of
these juveniles, and where it was responsible for establishing a
plan as counseled by the criteria set forth in Section 7B-907, it
was required to hold a new review hearing.
I limit my holding to the specific facts of this case. For
the foregoing reasons only, I agree the order on termination of
parental rights must be reversed.