Id. Respondent and the GAL also reference the Court of Appeals opinion of In re S.R.G. , 200 N.C. App. 594, 684 S.E.2d 902 (2009), disc. review and cert. denied , 363 N.C. 804, 691 S.E.2d 19 (2010) ( S.R.G. II ), for the principle that a trial court's failure to address an alleged ground for termination in its order amounts to a tacit "non-adjudication of that ground." They appear to argue, by way of extension of this holding from In re S.R.G. , that a trial court's order does not need to address any of the specific grounds for termination alleged by a petitioner when the trial court concludes that none of the alleged grounds exist.
Because the majority opinion vacates the trial court’s order in its entirety, the majority opinion does not address the trial court’s adjudication of neglect under N.C. Gen. Stat. § 7B-1111(a)(1) as a new and separate ground to support termination of Respondent-Mother’s parental rights. I write separately to emphasize the trial court’s adjudication of neglect as a ground to terminate parental rights on remand from this Court was error—a conclusion firmly supported in this Court’s decision in In re S.R.G. , 200 N.C. App. 594, 598, 684 S.E.2d 902, 905 (2009) (S.R.G. II ).As in this case, in S.R.G. , the trial court initially adjudicated grounds to terminate the respondent-mother’s parental rights including, inter alia , on the basis of willful abandonment.
She argues the doctrine of law of the case precluded the court from terminating her parental rights on the ground of neglect after the court had not found the existence of that ground in the prior order. Respondent-mother calls our attention to In re S.R.G., N.C. App., 684 S.E.2d 902 (2009), disc. review and cert. denied, 363 N.C. 804, 691 S.E.2d 19 (2010), a case having facts remarkably similar to the case at bar. Indeed, the same trial judge and the same department of social services are involved in both cases.
On remand, it is well established that the trial court “must follow the mandate of [the] appellate court ... without variation or departure.” In re S.R.G. , 200 N.C.App. 594, 684 S.E.2d 902, 904 (2009) (quoting In re R.A.H. , 182 N.C.App. 52, 641 S.E.2d 404, 407 (2007) ).
On remand, however, "the general rule is that an inferior court must follow the mandate of an appellate court in a case without variation or departure." In re S.R.G. , 200 N.C. App. 594, 597, 684 S.E.2d 902, 904 (2009) (citation and internal quotation marks omitted), disc. review and cert. denied , 363 N.C. 804, 691 S.E.2d 19 (2010). "Remand is not intended to be an opportunity for either respondent or petitioner to retry its case."
“Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary.” In re S.R.G., 195 N.C.App. 79, 83, 671 S.E.2d 47, 50, appeal after remand, 200 N.C.App. 594, 684 S.E.2d 902 (2009). First, mother challenges finding of fact 2, which states:
“A new petition, based on circumstances arising subsequent” to the original hearing is considered a new action, and is not “barred by the doctrine of res judicata.” In re S.R.G., 200 N.C.App. 594, 599, 684 S.E.2d 902, 905 (2009), disc. review and cert. denied,363 N.C. 804, 691 S.E.2d 19 (2010). “The doctrine of collateral estoppel operates to preclude parties ‘from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.’
Moreover, " [t]he law of the case doctrine applies to cases in which 'a question before an appellate court has previously been answered on an earlier appeal in the same case[.]'" In re S.R.G., 200 N.C. App. 594, 597, 684 S.E.2d 902, 904 (2009) (quoting Wrenn v. Maria Parham Hosp., Inc., 135 N.C. App. 672, 678, 522 S.E.2d 789, 792 (1999)), disc. review and cert. denied, 363 N.C. 804, 691 S.E.2d 19 (2010). "In such a case, 'the answer to the question given in the former appeal becomes "the law of the case" for purposes of later appeals.
Moreover, "[t]he law of the case doctrine applies to cases in which `a question before an appellate court has previously been answered on an earlier appeal in the same case[.]'" In re S.R.G., 200 N.C. App. 594, 597, 684 S.E.2d 902, 904 (2009) (quoting Wrenn v. Maria Parham Hosp., Inc., 135 N.C. App. 672, 678, 522 S.E.2d 789, 792 (1999)), disc. review and cert. denied, 363 N.C. 804, 691 S.E.2d 19 (2010). "In such a case, `the answer to the question given in the former appeal becomes "the law of the case" for purposes of later appeals.
"[O]ur mandate is binding upon [the trial court] and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered." In re S.R.G., 200 N.C. App. 594, 598, 684 S.E.2d 902, 904 (2009) (citing D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966)). In Wright II, this Court held that "[t]he record before us indicates that no findings of fact were made as to whether Home Place was impliedly dedicated to the public; therefore, there was no final adjudication as to whether Home Place was a public or private street."