Opinion
NO. COA12-1013
12-18-2012
IN THE MATTER OF: K.C.H.
Caldwell County Department of Social Services, by Lauren Vaughan, for Petitioner-Appellee. Assistant Appellate Defender Joyce L. Terres for Respondent-Appellant Father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Caldwell County
No. 09 J 106
Appeal by Respondent from order entered 14 June 2012 by Judge J. Gary Dellinger in Caldwell County District Court. Heard in the Court of Appeals 3 December 2012.
Caldwell County Department of Social Services, by Lauren Vaughan, for Petitioner-Appellee.
Assistant Appellate Defender Joyce L. Terres for Respondent-Appellant Father.
Cranfill Sumner & Hartzog LLP, by Sara B. Warf, for Guardian ad Litem.
BEASLEY, Judge.
Respondent S.H. appeals from an order terminating his parental rights to his minor child K.C.H. ("the juvenile"). Because the trial court lacked jurisdiction to enter its order, we vacate the court's order terminating Respondent's parental rights.
Initials of the father are used to protect the identity and privacy of the minor child.
To protect the privacy of the minor child, her initials are used in this opinion.
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On 26 August 2009, the Caldwell County Department of Social Services ("Petitioner") filed a petition alleging the juvenile was neglected and dependent. After a hearing on 9 December 2009, the trial court entered an order adjudicating the juvenile to be a dependent juvenile. The trial court initially ordered Petitioner to continue to work towards reunification of the juvenile with Respondent. However, on 12 May 2010 the trial court ordered reunification efforts to cease, and by order entered 2 August 2010 the court set the permanent plan for the juvenile as adoption and directed Petitioner to file a motion to terminate Respondent's parental rights to the juvenile.
On 21 September 2010, Petitioner filed a motion to terminate Respondent's parental rights. Before the motion was heard, Respondent signed a designated relinquishment of his parental rights, so that the juvenile could be adopted by his maternal great aunt and uncle by order entered 16 March 2011, Petitioner voluntarily dismissed its motion to terminate Respondent's parental rights. The maternal great aunt and uncle initially agreed to adopt the juvenile, but on or about 28 March 2011, they informed Petitioner they no longer desired to adopt the juvenile. Petitioner asked Respondent to convert his designated relinquishment to a general relinquishment, but Respondent declined to do so, and revoked his relinquishment. Petitioner then proceeded on its 21 September 2010 motion to terminate Respondent's parental rights, which had previously been dismissed. After several continuances the trial court conducted a hearing concerning the proposed termination of Respondent's parental rights on 27 and 28 March and 25 April 2012. By order entered 14 June 2012, the trial court terminated Respondent's parental rights. Respondent appeals.
Respondent's sole argument on appeal is that the trial court lacked jurisdiction to enter its order terminating his parental rights because Petitioner had voluntarily dismissed its 21 September 2010 motion to terminate his parental rights. Petitioner and the guardian ad litem agree that the trial court lacked jurisdiction to enter its order. We agree and vacate the trial court's order.
It is well established that "in the absence of a proper petition [or motion], the trial court has no jurisdiction to enter an order for termination of parental rights." In re McKinney, 158 N.C. App. 441, 445, 581 S.E.2d 793, 796 (2003). Here, Petitioner voluntarily dismissed its 21 September 2010 motion to terminate Respondent's parental rights, and there is nothing in the record before this Court indicating Petitioner ever re-filed its motion or filed a new motion or petition upon Respondent's revocation of his relinquishment of his parental rights. Moreover, the trial court's order specifically states that the termination of parental rights hearing was held pursuant to the "Motion filed by the Caldwell County Department of Social Services on September 21, 2010," which had been dismissed. Without a proper petition or motion to terminate parental rights pending before the trial court, the court lacked jurisdiction to enter its order terminating Respondent's parental rights. Accordingly, we vacate the trial court's order terminating Respondent's parental rights.
Vacated.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).