Handout 1 - School of Government - University of North Carolina at ...

Social Services Attorneys’ Winter/Spring Conference 

Chapel Hill, NC 

February 26 - 27, 2009 

CASE UPDATE 

Cases Filed from July 1, 2008, through February 17, 2009 

Janet Mason 

School of Government 

The University of North Carolina at Chapel Hill 

(919) 966-4246 

mason@sog.unc.edu

ABUSE, NEGLECT, DEPENDENCY 

Jurisdiction 

• When a custody order had been entered in another state, a N.C. court had jurisdiction to enter a 

nonsecure custody order, but erred in proceeding to adjudication when the record failed to show that 

N.C. had jurisdiction under the UCCJEA to modify another state’s order. 

In re J.W.S., ___ N.C. App. ___, 669 S.E.2d 850 (12/16/08). 

http://www.aoc.state.nc.us/www/public/coa/opinions/2008/080576-1.htm 

Facts: In 2000, a Family Court in New York granted the child’s mother temporary custody “pending the 

criminal court action,” after which, it said, either party could petition for custody. In 2006, respondent 

father filed a divorce action in N.C. and signed a one-year apartment lease. A couple who lived with him 

and the child reported that respondent had assaulted the child. DSS filed a petition and obtained 

nonsecure custody. (Two additional petitions were filed on later dates.) The child remained in nonsecure 

custody, and the court denied respondent’s motions to dismiss for lack of jurisdiction and failure to state a 

claim, ruling that the court had properly exercised temporary emergency jurisdiction under the UCCJEA. 

After a hearing, in April 2007 the court adjudicated the child to be neglected and dependent. The order 

stated that New York had opted not to exercise continuing jurisdiction and that the states had agreed that 

N.C. was the most appropriate forum to exercise jurisdiction. After a combined dispositional and 

permanency planning hearing, in May 2007 the court changed the permanent plan to adoption. In August 

DSS filed a motion to terminate both parents’ rights. In December 2007 respondent filed a motion under 

G.S. 1A-1, Rule 60(b), asking the court to set aside the April adjudication order, asserting that the trial 

court lacked subject matter jurisdiction under the UCCJEA. The court denied the motion, and respondent 

appealed. 

Note: The facts were substantially more complicated, because respondent also sought relief from a 

federal court and from state courts in Texas and Virginia during the pendency of the matter in N.C. 

Held: Reversed. 

1. The trial properly exercised temporary emergency jurisdiction under G.S. 50A-204. 

2. Because a custody order had been entered in New York, the trial court could not proceed to 

adjudication without determining that it had jurisdiction to modify another state’s order. The record 

failed to show that N.C. had jurisdiction because it did not establish 

a. that New York had determined that it did not have exclusive continuing jurisdiction, or 

b. that New York had relinquished jurisdiction to N.C. after finding that N.C. was a more appropriate 

forum, or 

c. that either New York or North Carolina had determined that no party still resided in New York. 

Guardian ad Litem for Parent; Visitation 

• Where evidence and findings indicated a reasonable basis to believe respondent parent was 

incompetent or had diminished capacity, trial court’s failure to conduct a hearing to determine 

whether respondent needed a guardian ad litem was an abuse of discretion. 

• Court may not delegate to DSS discretion to determine parents’ visitation rights. 

In re M.H.B., ___ N.C. App. ___, 664 S.E.2d 583 (8/19/08). 


Facts: In a case in which the child was adjudicated abused and neglected, the court made findings 

1. that respondent stated he suffered posttraumatic stress disorder, was manic depressive and bipolar, 

was prescribed lithium but did not like its side effects, and self-medicated with marijuana. 

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2. that respondent received mental health treatment and that while testifying he was weeping, crying, 

confounded, agitated, stated he wished someone would take his life, and stated that he did not know 

why he was present at the adjudicatory hearing. 

3. that respondent threatened suicide after the petition was filed. 

4. that respondent was mentally and emotionally unstable. 

The court ordered respondent to have a psychological evaluation, suspended visitation until DSS had the 

results of the evaluation, and authorized DSS then to determine what supervised visitation respondent 

would have. 

Held: Reversed and remanded. 

1. Although appointment of a guardian ad litem for an adult parent under G.S. 7B-602 is in the court’s 

discretion, given the evidence and findings relating to respondent’s condition, the trial court abused 

its discretion by not conducting a hearing to determine whether a guardian ad litem for respondent 

should be appointed pursuant to G.S. 1A-1, Rule 17. 

2. The court erred in delegating to DSS decisions regarding respondent’s visitation rights. 

Adjudicatory Evidence 

• The rape shield law, G.S. 8C-1, Rule 412, can apply in civil cases to render most evidence of a 

victim’s sexual history inadmissible. 

• Evidence of a false allegation is not excluded by Rule 412, which addresses only sexual activity. 

• Rule 12 does not preclude introduction of a victim’s inconsistent statements for impeachment. 

In re K.W., ___ N.C. App. ___, 666 S.E.2d 490 (9/16/08). 


Facts: The 13-year-old juvenile reported to a school counselor that her father had been raping her for the 

past year. After the father violated a protection plan by returning to the home, DSS filed a petition and 

obtained nonsecure custody. Based on the juvenile’s testimony and testimony by a doctor, the court 

adjudicated the juvenile to be abused, neglected, and dependent. On appeal, respondent father argued that 

the trial court erred by excluding from evidence a police report filed by the juvenile’s mother five years 

earlier, which said “sexual assault,” and on which an officer had written that there was doubt as to 

whether the juvenile was telling the truth. The report included no other information and had become 

inactive. Respondent also asserted error based on the court’s exclusion from evidence of the juvenile’s 

Myspace website, which included provocative pictures of the juvenile and indicated that she had “had 

sex,” which contradicted her statements to police and her testimony. 

Held: Affirmed. 

1. Although G.S. 8C-1, Rule 412, is written with reference to criminal proceedings, it can be applied in 

a civil case to exclude evidence of a victim’s sexual conduct that does not fall within an exception to 

the rule. 

2. The five-year-old police report did not involve sexual activity and should not have been excluded 

based on Rule 412, which does not apply to false allegations. However, the report was properly 

excluded because it had no probative value – it included no specific information, did not indicate the 

nature of the alleged assault, and did not indicate who had doubt about the then 8-year-old child’s 

veracity. 

3. Evidence of the Myspace page should have been admitted for impeachment purposes, but not as 

substantive evidence that someone else caused the physical trauma to the juvenile. Failure to allow it 

into evidence was harmless, however, because respondent did not show that the outcome would have 

been different if it had been admitted. 

4. In addition to abuse, the evidence supported adjudications of neglect, because the home was an 

injurious environment, and dependency, because the parents refused to abide by the safety plan. 

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Failure to Enter Timely Order 

• Appropriate remedy for trial court’s failure to enter a timely order is mandamus. 

In re T.H.T., 362 N.C. 446, 665 S.E.2d 54 (8/27/08). 

http://www.aoc.state.nc.us/www/public/sc/opinions/2008/469-07-1.htm 

Facts: The trial court completed an adjudication and disposition hearing on July 26, 2006 – adjudicating 

the child to be abused and neglected, awarding custody to the father, and granting the mother 

unsupervised visitation. No written order was entered until November 3, 2006, and there was no hearing 

pursuant to G.S. 7B-807 to determine the reason for delay in entry of the order. The mother appealed, and 

the court of appeals affirmed, with one judge dissenting on the basis that the delay prejudiced the mother 

and required reversal. 

Held: Modified and affirmed. 

1. The Supreme Court held that “when delayed entry of an otherwise proper order is the sole purported 

ground for appeal, a new hearing is not the proper remedy. Instead, a party’s remedy lies in 

mandamus,” an extraordinary court order mandating the performance of a clear official duty imposed 

by law. 

2. In describing the remedy of mandamus, the court specified these required elements: 

a. Party seeking relief must show a clear legal right to the act requested. 

b. Defendant must have a clear legal duty to perform the act. 

c. The duty must relate to a ministerial act, not an act requiring the exercise of discretion. 

(Mandamus may be used to compel an official to exercise his or her discretion, but not to direct 

what the result should be.) 

d. The official must have neglected or refused to perform the act. 

e. There must not be an alternative legally adequate remedy. 

Authority to Modify Delinquency Disposition 

• In a delinquency case, trial court did not err in changing disposition from residential treatment to 

commitment to youth development center after finding that funding for residential treatment was no 

longer available. 

In re D.G., ___ N.C. App. ___, 663 S.E.2d 458 (8/5/08) (appeal pending). 


Facts: The juvenile was adjudicated delinquent after admitting a first degree sex offense based on having 

anal intercourse with a five-year-old child. Both DSS, which apparently had custody of the juvenile, and 

mental health recommended residential treatment. DSS expressed concern about funding for the 

placement because the juvenile was an illegal alien. The court counselor assured the court that state funds 

were available. The court ordered placement in a residential sex offender treatment facility as a Level 2 

disposition. Five months later a motion for review was filed asserting that funding for the placement was 

no longer available and asking that the disposition be modified, and the juvenile filed a motion asking the 

court to compel the state to provide him with sex offender treatment. Evidence included a letter from the 

attorney for mental health stating that the juvenile was not a qualified alien and that mental health could 

not provide funding for custodial sex offender treatment. The letter was based on an opinion from the 

Office of the N.C. Attorney General. The trial court found that under state and federal law funding for the 

placement was no longer available. The court denied the juvenile’s motion to compel and amended the 

disposition to commit the juvenile to a youth development center for an indefinite time not to exceed his 

nineteenth birthday. The juvenile appealed. 

Holding: Affirmed. 

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1. The trial court’s finding that funding was not available was supported by competent evidence and 

therefore conclusive on appeal. Evidence included testimony from mental health and DSS personnel 

that they had explored all avenues of funding and that funding was not available due to federal law. 

2. The court properly ruled that it could not compel the provision of residential treatment in violation of 

federal law. 

3. The facts constituted a change of circumstances and justified modification of the disposition under 

G.S. 7B-2600. 

Dissent: Judge Wynn dissented on the basis that 

• the trial court had not been presented any clear administrative or statutory law regarding the funding 

question; 

• the allegations and arguments of mental health and DSS did not constitute competent evidence; 

• the “opinion” from the Attorney General’s Office actually was just an advisory letter that had no legal 

force or effect; 

• the court’s “finding” about lack of funding was actually a conclusion of law that was not supported by 

the evidence or findings; 

• there had not been a legal determination that sexual offender treatment is an impermissible “public 

benefit” within the meaning of the relevant federal law. 

Appealability of Order 

• A nonsecure custody order is not an appealable order. 

• DSS had no right to appeal denial of its motion seeking review of an earlier nonsecure custody order 

that directed DSS to make foster care board payments to kinship care providers. 

In re A.T., ___ N.C. App. ___, 662 S.E.2d 917 (7/15/08). 


Facts: 

3/06 DSS substantiated neglect and child was placed voluntarily in kinship care 

7/07 DSS filed petition alleging child was neglected; court held nonsecure custody hearing 

9/07 – nonsecure custody order entered, leaving custody with DSS and ordering DSS to pay foster 

care board rate to the kinship care providers, effective 3/06 

– adjudication and disposition orders entered, continuing requirement that DSS pay foster 

care board rate to care providers 

10/07 – after a review hearing, court ordered that custody remain with DSS 

– DSS filed motion asking court to review the foster care board rate payment provision in the 

nonsecure custody order, arguing that it improperly ordered payment from 3/06, when 

children had been in DSS custody only since 7/07 

After a hearing the trial court denied DSS’s motion, and DSS appealed. 

Held: Appeal dismissed. 

1. DSS had no right to appeal the earlier nonsecure custody order or the order denying its motion for 

review of that order. 

2. Nonsecure custody orders are excluded from the list of appealable orders in G.S. 7B-1001, and the 

order denying DSS’s motion was neither a final order nor an order finding an absence of jurisdiction, 

where the court did not rule that it lacked subject matter jurisdiction but only found as a fact that it 

did not have jurisdiction during a portion of the time for which it had ordered payment of the foster 

care board rate. 

3. The court of appeals did not consider the merits of any claim that the order requiring DSS to pay the 

foster care board rate or to pay it for a particular period of time was improper. 

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Issuance of Summons to Child 

TERMINATION OF PARENTAL RIGHTS 

1. Subject matter jurisdiction attaches when a summons is issued. 

2. Defects or irregularities in the summons or in service of process relate to personal, not subject 

matter, jurisdiction and can be waived. 

In re J.T., ___ N.C. ___, ___ S.E.2d ___ (2/6/09), reversing In re J.T., ___ N.C. App. ___, 657 S.E.2d 

692 (2008). 

http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/155-08-1.pdf 

Facts: In an action to terminate parental rights, a summons was issued, but it did not name the child as a 

respondent and the summons was not served on the child’s guardian ad litem or attorney advocate. Both 

the GAL and attorney advocate participated fully in the hearing, however, without raising any objection 

to the summons or service of process. The court of appeals reversed the order terminating parental rights, 

holding that the failure to name the child as a respondent in the summons deprived the trial court of 

subject matter jurisdiction. 


The Supreme Court held that 

1. the trial court obtained subject matter jurisdiction when a summons was issued, and any problem with 

the summons or service of process related only to personal jurisdiction; 

2. the attorney advocate and GAL waived any issue with respect to defects or irregularities in process or 

service of process by participating in the proceeding. 

On 2/6/09 the Supreme Court also granted DSS’s petition for discretionary review in In re I.D.G., ___ 

N.C. App. ___, 655 S.E.2d 858 (2008), for the limited purpose of remanding to the court of appeals for 

reconsideration in light of J.T. (above). (Court of appeals had held that failure to issue summons to the 

child when a petition to terminate parental rights was filed deprived trial court of subject matter 

jurisdiction.) 

The Supreme Court’s holding in J.T. would affect the court’s reasoning, but not its conclusion, in the 

following recent cases: 

• In re S.L.T., ___ N.C. App. ___, 670 S.E.2d 922 (1/20/09) (holding that juvenile need not be named 

as respondent if the juvenile is named in the caption of the summons and the guardian ad litem 

certifies that the juvenile was served). 

• In re S.N., ___ N.C. App. ___, 669 S.E.2d 55 (12/2/08) (holding that trial court had subject matter 

jurisdiction where the summons named the child in the caption; named the child’s guardian ad litem, 

but not the child, as a respondent; and was served with the petition on the child’s guardian ad litem). 

• In re N.C.H., ___ N.C. App. ___, 665 S.E.2d 812 (9/2/08) (appeal pending); and 

In re S.D.J., ___ N.C. App. ___, 665 S.E.2d 818 (9/2/08) 

(both holding that trial court had subject matter jurisdiction when juveniles were named in the caption 

of the summonses and the juveniles’ representatives certified that the juveniles were served). 

The Supreme Court’s holding in J.T. effectively overrules one holding in the following recent decision: 

• In re K.J.L., ___ N.C. App. ___, 670 S.E.2d 269 (12/16/08) (trial court did not have subject matter 

jurisdiction because no summons was issued to the child or served on the child’s guardian ad litem). 

However, see the summary below for the court’s other holding, which may not be affected by J.T. 

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• The trial court did not have subject matter jurisdiction because, in the underlying case in which DSS 

was awarded custody, no proper summons was ever issued because the summons was not signed by 

a clerk or assistant or deputy clerk. 

In re K.J.L., ___ N.C. App. ___, 670 S.E.2d 269 (12/16/08). 


Facts: Parents appealed from an order terminating their parental rights, arguing that the trial court lacked 

subject matter jurisdiction. 

Held: Vacated. 

1. In the underlying neglect/dependency action, in which DSS obtained custody of the child, no 

summons was ever properly issued because the summons was not signed by a clerk or assistant or 

deputy clerk. Therefore the court lacked subject matter jurisdiction in the underlying case. [Although 

the opinion does not say this directly, because the order giving DSS custody was void for lack of 

jurisdiction, DSS did not have standing to petition for termination of parental rights.] 

2. [This holding was effectively overruled by In re J.T., above.] Although the summons in the 

termination of parental rights case named the child in the caption, it was not served on or accepted by 

the child’s guardian ad litem. Therefore, following other recent opinions of the court, the trial court 

lacked subject matter jurisdiction.] 

UCCJEA 

• An order entered pursuant to temporary emergency jurisdiction under the UCCJEA remains in effect 

until an order is received from another state that has jurisdiction. 

• N.C. became the child’s home state when the child and parent had been here more than six months 

and no action had been filed in another state. 

• Failure to serve one of the parents in the underlying juvenile case did not deprive the court of subject 

matter jurisdiction in a later termination action. 

In re E.X.J., ___ N.C. App. ___, 662 S.E.2d 24 (6/17/08), affirmed per curiam, ___ N.C. ___, ___ 

S.E.2d ___ (2/6/09). 


http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/341-08-1.pdf 

Facts: In April 2005, the day after arriving in N.C. from Alabama, respondent (mother) took her two 

children to DSS for placement in foster care, telling the social worker that she was not mentally or 

financially able to care for them and had left Alabama to escape domestic violence and other marital 

problems. DSS filed a petition and obtained nonsecure custody. Respondent was served properly but the 

summons mailed to the father in Alabama was returned “unclaimed.” Notice of an August, 2005, 

adjudication hearing was sent to the father, who wrote a letter to the clerk stating that he could not attend 

but had a good job and would have his own home soon. At the hearing the mother stipulated to facts 

relating to dependency and the court adjudicated the children dependent and left them in DSS custody. At 

a permanency planning hearing in October, 2006, the court ceased reunification efforts and changed the 

permanent plan to adoption. In December, 2006, DSS filed motions to terminate the parents’ rights. 

Because the father had never been served in the dependency case, DSS in April, 2007, filed a petition to 

terminate his rights and had a summons issued to him. Both parents were properly served. Both 

respondents moved to dismiss for lack of subject matter jurisdiction and the father also moved to dismiss 

for lack of personal jurisdiction because he was not served in the underlying case. The court denied the 

motions, heard evidence, and entered an order terminating both parents’ rights. 


1. The court rejected respondents’ argument that DSS lacked standing to petition for termination 

because it was not granted custody by a court of competent jurisdiction. 

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a. Although N.C. was not the children’s home state when the underlying petition was filed, it was 

clear from the record that N.C. had jurisdiction to enter the nonsecure custody order pursuant to 

the temporary emergency custody provisions of the UCCJEA. 

b. If jurisdiction is clear from the record, the trial court is not required to make specific findings of 

fact to support a conclusion that it has jurisdiction, although doing so is the better practice. 

c. Because no action was ever filed in Alabama, the temporary emergency order remained in effect 

and the N.C. court had jurisdiction when it gave DSS custody. 

2. Because the children and mother had been in N.C. more than two years when the termination action 

was filed and no action had been initiated in Alabama, N.C. had become the children’s home state 

and the N.C. court had jurisdiction to terminate parental rights. 

3. The fact that the father was never served with a summons in the underlying case did not deprive the 

court of subject matter jurisdiction in the termination action. 

a. In an abuse, neglect, or dependency case failure to serve one of the parents, if the other is 

properly served, does not deprive the court of subject matter jurisdiction. In re Poole, 151 N.C. 

App. 472, 568 S.E.2d 200 (2002), (Timmons-Goodson, J., dissenting), adopted per curiam, 357 

N.C. 151, 579 S.E.2d 248 (2003). 

b. “Motions in the cause and original petitions for termination of parental rights may be sustained 

irrespective of earlier juvenile court activity,” citing In re O.C., 171, N.C. App. 457, 615 S.E.2d 

391 (2005). 

Service of Motion and Notice 

In an action to terminate parental rights initiated by motion in a pending case, DSS’s failure to serve 

respondent with notice was error; however, 

1. that failure did not deprive the court of subject matter jurisdiction, and 

2. respondent waived any objection by filing a response and participating in the hearing. 

In re C.S.B., ___ N.C. App. ___, 669 S.E.2d 15 (12/2/08). 


Facts: DSS initiated a termination proceeding by filing a motion in the pending neglect proceeding. DSS 

served respondent and her attorney with the motion, but not the notice required by G.S. 7B-1106.1. 

Respondent filed a response to the motion and participated in the hearing through her attorney, without 

objecting to the sufficiency of notice. The court terminated respondent’s rights. 


1. Failure to serve the required notice on respondent did not affect the trial court’s subject matter 

jurisdiction, because the court had already acquired jurisdiction in the underlying proceeding. 

2. Respondent did not preserve for appeal any objection to the lack of notice, because she filed a 

response and participated in the hearing without raising the issue. 

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Guardian ad Litem for Parent 

In an action to terminate parental rights, 

1. the signature of respondent parent’s guardian ad litem on the notice of appeal did not satisfy the 

requirement that the respondent sign the notice. 

2. the role of a parent’s guardian ad litem in a termination case is to provide assistance, not to 

substitute his or her judgment or decisions for those of the parent. 

In re L.B., 187 N.C. App. 326, 653 S.E.2d 240 (12/4/07), affirmed per curiam, 362 N.C. 507, 666 

S.E.2d 751 (10/10/08). 


Facts: In an action to terminate the parents’ rights, guardians ad litem were appointed for both parents 

pursuant to G.S. 7B-1101.1. After the court entered an order terminating both parents’ rights, both 

parents’ attorneys and guardians ad litem signed notices of appeal. Petitioner made a motion to dismiss 

the appeal for failure to comply with Rule 3A of the Rules of Appellate Procedure. 

Held: Appeal dismissed. 

1. In juvenile cases, Rule 3A of the Rules of Appellate Procedure requires that both trial counsel and the 

appellant sign the notice of appeal. The court held that the signature of the respondent parent’s 

guardian ad litem did not suffice to satisfy the requirement that the parent sign. Failure of the parents 

to sign the notice of appeal deprived the court of appeals of jurisdiction to consider the appeal. 

2. The court of appeals contrasted standards for appointing a guardian for an adult under G.S. Chapter 

35A, which requires an adjudication of incompetence, and those for appointing a guardian ad litem 

under G.S. 7B-1101.1, which requires only a reasonable basis to believe the parent is incompetent or 

has diminished capacity. The court also noted that the provision for appointing a GAL for a minor 

parent, unlike the provision applicable to adult parents, specifically references appointment pursuant 

to G.S. 1A-1, Rule 17. The court concluded that the role of a guardian ad litem appointed under the 

termination statute is much more limited than that of a guardian under Chapter 35A or a guardian ad 

litem under Rule 17 and does not include exercising legal rights in the place of the respondent parent. 

GAL for parent; willfully leaving child in care 

• Trial court abused its discretion by failing to hold a hearing to determine whether respondent needed 

a guardian ad litem when circumstances raised substantial question as to whether she was competent 

or had diminished capacity. 

• The “willfulness” required to establish the ground of leaving the child in foster care is “less than 

willful abandonment.” 

In re N.A.L., ___ N.C. App. ___, 666 S.E.2d 768 (10/7/08). 


Facts: In addition to other grounds for termination of parental rights, DSS alleged that both parents were 

incapable of providing proper care and supervision. The petition alleged that respondent mother had 

problems controlling her anger, tended to be aggressive, and lacked understanding of the earlier neglect 

adjudication. Evidence showed that she had an IQ score of 74 and was diagnosed as having personality 

disorder and borderline intellectual functioning. The trial court found that she had significant mental 

health issues that affected her ability to parent. No one moved for appointment of a guardian ad litem for 

respondent mother in the termination proceeding and the court did not appoint one. 

Although the court had returned custody of one child to the father at one point, custody had been 

returned to DSS after respondent father violated the court’s order that he allow no contact between the 

child and the mother. Although he had made some progress, he was unemployed, had not maintained 

suitable housing, and had not participated in court-ordered counseling. 

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Held: Affirmed in part; reversed and remanded in part. 

1. The court reversed and remanded with respect to respondent mother, holding that the trial court erred 

by not conducting a hearing to determine whether she needed a guardian ad litem. The error was not 

in failing to appoint a guardian ad litem, but in failing to conduct a hearing and exercise discretion 

one way or the other about whether to appoint one. 

2. The court of appeals affirmed the portion of the order terminating respondent father’s rights on the 

ground of willfully leaving the children in foster care for more than a year without making reasonable 

progress. “Willfulness,” the court said, may be found even when a parent has made some progress. 

3. The court also reviewed the trial court’s “best interest” findings and held that the trial court did not 

abuse its discretion in concluding that termination of father’s rights was in the children’s best interest. 

• Whether to conduct a hearing on the need for a GAL for a parent is in the trial court’s discretion. 

• Mere allegation of the incapacity ground for termination does not require appointment of a GAL. 

In re C.G.A.M., ___ N.C. App. ___, 671 S.E.2d 1 (10/21/08). 


Facts: The children came into care based on a stipulation that they were dependent. More than a year 

later DSS filed a petition to terminate respondent father’s rights, alleging that he was incapable of caring 

for the children, that he had a long criminal record and pending charges, that he had not completed courtordered 

substance abuse and domestic violence counseling, that he had not maintained contact with DSS, 

and that he had provided no child support for the preceding six months. (The mother relinquished the 

child for adoption.) The court terminated respondent’s rights on the grounds of neglect in the form of 

willful abandonment; willfully leaving the children in foster care for more than a year without making 

reasonable progress; incapacity to care for the children, which could be expected to last for the 

foreseeable future; and willfully failing to provide a reasonable portion of the cost of the children’s care. 


1. The trial court did not abuse its discretion by failing to appoint a guardian ad litem for respondent or 

conduct a hearing on whether to appoint a GAL. Allegation of the incapacity ground for termination, 

by itself, does not require appointment of a GAL for the parent. Contrasting this case with In re 

N.A.L., ___ N.C. App. ___, 666 S.E.2d 768 (10/7/08), the court stated that nothing in respondent’s 

conduct at the hearing in this case raised a question about his competence. 

2. The court rejected respondent’s argument that there was not clear, cogent, and convincing evidence to 

support a ground for termination. The court reviewed only the ground of willfully leaving the child in 

foster care, etc., and affirmed on the basis of that ground. 

3. Finding that the trial court addressed the statutory factors relating to be interest, the court rejected 

respondent’s argument that the trial court abused its discretion by terminating his rights. 

Rules of Civil Procedure 

• Trial court erred in allowing amendment of the petition to conform to the evidence. 

• G.S. 1A-1, Rule 15, does not apply in a termination proceeding to permit amendment of the petition 

or motion to conform to evidence presented at the adjudication hearing. 

In re B.L.H., ___ N.C. App. ___, 660 S.E.2d 255 (5/6/08), affirmed per curiam, 362 N.C. 674, 669 

S.E.2d 320 (12/12/08). 



Facts: DSS filed a petition to terminate respondent’s rights on two grounds – neglect and non-payment of 

child support. After testimony of the social worker, the trial court granted DSS’s motion to amend the 

11

petition to conform to the evidence and allege the additional ground of willfully leaving the child in foster 

care for more than a year without making reasonable progress in correcting the conditions that led to 

placement. Respondent objected. The court adjudicated only this ground and entered an order terminating 

respondent’s rights. 


1. The court held that it was error for the trial court to allow the amendment to conform to the evidence, 

because 

a. Article 11 of G.S. Chapter 7B is silent with regard to such amendments, and 

b. applying G.S. 1A-1, Rule 15, to allow the amendment amounted to conferring a new procedural 

right, which the court has held it will not do in termination cases. 

2. The court then held that the petition as filed did not give sufficient notice that the added ground might 

be litigated, because the children had not been in care for a year when the petition was filed and the 

ground could not have been alleged at that time. 

Rules of Civil Procedure; Evidence 

• The court may not terminate parental rights based solely on documentary evidence and must conduct 

a proper, independent hearing. 

• Summary termination of parental rights is not permitted. 

In re A.M., ___ N.C. App. ___, 665 S.E.2d 534 (9/2/08). 


Facts: Respondents did not appear at the hearing on DSS’s motion to terminate parental rights, and the 

trial court denied their counsel’s request for a continuance. DSS asked the court to take judicial notice of 

previous findings in the record and to accept and include in its order written reports as evidence to 

establish grounds to terminate respondents’ rights. The court received the reports into evidence over 

respondents’ objections and entered an order terminating rights based on the written reports of DSS and 

the guardian ad litem, prior court orders, and oral arguments by the attorneys. 

Holding: Reversed and remanded. 

1. G.S. 1A-1, Rule 43, furthers the purposes of the Juvenile Code and, when read in conjunction with 

language in the Code, requires that some testimony be taken orally in open court in a hearing to 

terminate parental rights. 

2. Termination of parental rights may not occur through a summary proceeding. 

3. It was not improper for the court to consider properly admitted reports, documentary evidence, and 

prior orders, but a witness or witnesses must be sworn or affirmed and tendered to give some 

testimony. The court noted that the opinion should not be construed as requiring “extensive oral 

testimony.” 

Note: The court of appeals stated that the trial court’s “[c]onsideration of written reports [from DSS and 

the guardian ad litem] . . . was proper.” It is not clear whether that was because they fell within an 

exception to the hearsay rule, or because the adjudication and disposition hearings were combined, or for 

some other reason. 

• Petitioner must present some live testimony at a termination hearing. 

In re N.B., ___ N.C. App. ___, 670 S.E.2d 923 (1/20/09). 


Facts: DSS filed a motion for termination of parental rights in a pending neglect case. At the hearing, 

DSS offered as evidence prior court orders and the written reports of DSS and the guardian ad litem. The 

only live testimony was from respondent mother. The court terminated respondent’s rights. 

12


As it did in In re A.M., ___ N.C. App. ___, 665 S.E.2d 534 (2008), the court of appeals held that the trial 

court must hear some testimony at a hearing on termination of parental rights. The court stated that 

respondent’s testimony did not support petitioner’s case and that, by relying solely on written evidence 

and the arguments of counsel, the trial court failed to make an independent determination of whether the 

neglect ground for termination existed. 

• The court may not adjudicate a ground for termination that is not alleged in the petition or motion. 

• Willful abandonment occurs only when the parent evidences an intent to forego all parental rights 

and duties. 

In re S.R.G., ___ N.C. App. ___, 671 S.E.2d 47 (1/20/09). 


Facts: The trial court adjudicated respondent’s child to be neglected and dependent and ordered 

respondent to take a variety of actions, including obtaining evaluations, receiving treatment for her drug 

addiction, having regular visits, finding independent housing, etc. After periods of respondent’s only 

partial compliance with the case plan and her continued use of drugs, the court changed the plan from 

reunification to a concurrent plan of reunification and adoption, and then to adoption. DSS filed a petition 

to terminate parental rights and after a hearing the trial court terminated respondent’s rights on the sole 

ground of willful abandonment for a period of six months before the filing of the petition. 

Held: Reversed and remanded 

1. Much of the language in the trial court’s order related to factors that were relevant to the ground of 

willfully leaving the child in care for more than a year without making reasonable progress to correct 

conditions that led to the child’s placement. That ground was not alleged in the petition and the court 

could not adjudicate that ground. 

2. Findings about respondent’s partial failure to comply with the case plan and her continued drug use 

did not support the ground of willful abandonment. Evidence showed that during the relevant sixmonth 

period respondent attended a court hearing, visited the child eleven times, and brought 

appropriate toys and clothes to the visits. 

3. The evidence and findings failed to support a conclusion that respondent demonstrated a “purposeful, 

deliberative and manifest willful determination to forego all parental duties and relinquish all parental 

claims” to the child for a six-month period – the showing that is required for an adjudication of 

willful abandonment. 

• Reports of drug screen results and letter from Alcohol and Drug Services were admissible under 

business records exception to the hearsay rule after social worker testimony laid proper foundation. 

• The trial court may take judicial notice of prior proceedings and orders in a case and is presumed to 

disregard any incompetent evidence. 

In re S.D.J., ___ N.C. App. ___, 665 S.E.2d 818 (9/2/08). 


Facts: In addition to the jurisdiction issue described above, respondent argued that the trial court erred in 

1. admitting into evidence reports of drug screen results and a letter from Alcohol and Drug Services 

over the objection of respondent’s attorney and 

2. taking judicial notice of and basing findings of fact on prior orders in the case, including those that 

involved a lesser standard of proof than clear, cogent, and convincing evidence. 


1. The reports and letter were properly admitted as evidence under the business records exception to the 

hearsay rule, where a social worker testified that she had collected all but one of the samples and 

13

sealed them and shipped them to the laboratory for testing, that she relied on the reports in the 

ordinary course of her business, and that the reports were collected as part of petitioner’s record in the 

case. A proper foundation did not require authentication by the person who made the records. 

2. The court noted that it is “well established” that a trial court may take judicial notice of earlier 

proceedings in the same case and that the trial court is presumed to disregard any incompetent 

evidence. The court also found that the trial court’s findings were supported by testimony in the case 

and were not based on the prior orders. 

Dispositional Authority 

• Trial court did not have subject matter jurisdiction to order that the child be placed with a relative 

following termination of parental rights, because statute gives DSS exclusive placement authority 

when the child was in DSS custody at the time the termination petition or motion was filed. 

In re I.T.P-L., ___ N.C. App. ___, 670 S.E.2d 282 (12/16/08). 


Facts: DSS petitioned for termination of parental rights in the case of a child who had been adjudicated 

neglected and dependent, placed in the custody of DSS, and placed in foster care. After terminating both 

parents’ rights, the trial court granted legal and physical custody of the child to DSS but ordered 

placement with the maternal grandmother who was the guardian of the mother’s four other children, two 

of whom were also respondent father’s children. Both the parents and DSS appealed. 

Held: Affirmed in part and vacated in part. 

1. The court rejected respondents’ arguments relating to 

a. subject matter jurisdiction, holding that the summons was sufficient when it named the child in 

the caption and was served on the child’s guardian ad litem. 

b. sufficiency of the evidence, where error had not been assigned to major findings or to the 

conclusion of law. 

c. timely appointment of a guardian ad litem for the mother, where the GAL was appointed 17 days 

after the petition was filed and three months before the hearing. 

d. best interest. 

2. The trial court did not have jurisdiction to determine the child’s placement, because G.S. 7B-1112 

gives DSS exclusive placement authority following termination of parental rights when the child was 

in DSS custody when the petition was filed. 

14

CHILD SUPPORT AND PATERNITY 

Support Modification 

Devaney v. Miller, ___ N.C. App. ___, 662 S.E.2d 672 (7/1/08). 


The court of appeals affirmed the trial court’s dismissal of defendant’s motion to modify a child support 

order, holding that: 

• when a child support order has been modified and a subsequent motion to modify is filed, the party 

seeking modification must show a change in circumstances since the date of the most recent order. 

• an allegation that the parties’ incomes have changed, by itself, is not sufficient to support a motion 

to modify a child support order. 

New Hanover Child Support Enforcement, obo Dillon v. Rains, ___ N.C. App. ___, 666 S.E.2d 800 

(10/7/08). 


Facts: Defendant appealed from an order increasing his monthly child support obligation from $300 to 

$591. 

Held: Affirmed in part, remanded in part. 

Business expenses. The court of appeals remanded for additional findings because the trial court’s findings 

were insufficient for a determination of whether the trial court applied the guidelines appropriately. The 

trial court determined defendant’s monthly gross income by dividing by 12 the amount deposited in his 

personal bank account in a year. Although defendant was self-employed and presented evidence of 

business expenses, the court’s order made no reference to business expenses. 

Other children in home. The court of appeals rejected defendant’s argument that the trial court made 

insufficient findings about expenses related to the parties’ other children. The order and work sheet 

reflected that each party was given a deduction for support of the other child in the party’s home. Detailed 

findings are not required and in this case the findings were sufficient. (The court noted that defendant’s 

deduction would change if consideration of business expenses resulted in a reduction in his gross income.) 

Child support as income. The court of appeals also rejected defendant’s argument that the trial court erred 

by including in the parties’ gross incomes the child support payments they received for other children, 

holding that the child support guidelines do not exclude child support from income. The court also noted 

that the majority of other states do exclude from income child support a parent receives for a child other 

than the one for whom support is being determined. The court also urged the Conference of Chief District 

Judges to consider the effect of not excluding support paid for another child and to indicate clearly in the 

Guidelines how child support paid for another child should be treated. 

Contempt 

Eakes v. Eakes, ___ N.C. App. ___, 669 S.E.2d 891 (12/16/08). 


Facts: Plaintiff (mother) and defendant (father) were divorced, and plaintiff was in possession of a $75,000 

fund that belonged to defendant. A modification of an earlier child support order prohibited defendant from 

claiming the fund and required plaintiff to use it only to pay defendant’s child support arrears, to pay a 

specified portion of the monthly support defendant owed, for medical and related expenses specified in the 

parties’ separation agreement, and to pay defendant’s support obligation in the event he became 

unemployed and unable to pay. It also required plaintiff to provide an accounting within 60 days and every 

two years thereafter. Plaintiff nearly depleted the fund by using the money for vacations, vehicles, and 

personal bills. The court entered an order to compel an accounting, and defendant filed a motion for 

contempt, although no show cause order was entered. Fifteen months later plaintiff filed a motion to 

15

dismiss defendant’s claims for failure to prosecute. Nine months after that the court entered an order 

denying plaintiff’s motion to dismiss and holding plaintiff in contempt for using the funds for improper 

purposes. 


1. Although the trial court referred to the fund as a “constructive trust,” the case was properly in the 

district court because it was a contempt hearing in a child support case, not a trust accounting over 

which the superior court would have jurisdiction. 

2. Defendant had standing to bring the matter before the court because he had a substantial interest in 

how the fund was used. 

3. The trial court did not abuse its discretion when it denied plaintiff’s motion to dismiss for failure to 

prosecute. 

4. The order holding plaintiff in civil contempt was supported by the evidence and findings. 

Assessment of Attorney Fees in IV-D Case 

Guilford County obo Holt v. Puckett, ___ N.C. App. ___, 664 S.E.2d 362 (8/6/08). 


Facts: The child support agency brought an action on behalf of Holt, seeking paternity establishment, 

support, and past paid public assistance from Puckett. After a paternity test excluded the defendant, the 

action was voluntarily dismissed. The trial court granted defendant’s motion for attorney fees and ordered 

Holt to pay a portion of defendant’s attorney’s fees. 


1. Attorney fees cannot be awarded in a paternity action pursuant to G.S. 50-13.6. In the court’s 

discretion, however, they may be assessed as costs under G.S. 6-21. 

2. The trial court abused its discretion in ordering Holt to pay attorney fees. The county, not Holt, 

initiated the action, in which she was required to participate and cooperate. The trial court did not find 

that she was acting dishonestly or in bad faith. The court said that assessing the fees against her was 

both inequitable and contrary to the statutory scheme and purposes. 

3. The court noted that the agency could have avoided litigation altogether by contacting the defendant 

and obtaining a paternity test before filing the action. It would be more equitable, the court said, to 

assess fees against the county. On remand the court said that the trial court could, “in its discretion, 

make findings of fact and conclusions of law determining whether plaintiff, not Holt, should bear any 

portion of defendant’s attorney’s fees.” 

Dissent: Judge Hunter dissented and would have held that the trial court did not abuse its discretion in 

awarding attorney fees. The dissent noted (1) that there is no precedent for the position that “bad faith” 

must be shown before attorney’s fees can be awarded as costs and (2) that the majority discussed the 

“principles of equity” in relation to plaintiff, but not in relation to defendant. 

Paternity 

Helms v. Landry, ___ N.C. App. ___, 671 S.E.2d 347 (1/6/09). 


Facts: The parties were never married, and their child was born in 1999. In 2001 both parties filed civil 

actions for custody of the child. The court joined the two actions and in 2002 entered an order finding that 

the parties were the child’s biological parents and giving custody to Mother (defendant) and visitation to 

Father (plaintiff). In 2005, based on a substantial change of circumstances, the court gave permanent legal 

and physical custody to Father and visitation rights to Mother. In 2007, Mother filed a motion seeking a 

DNA test to determine paternity, alleging that Father had never legitimated the child or sought a judicial 

determination of paternity. The trial court dismissed the motion with prejudice on the basis that it was not 

timely and had no basis in law or fact. Mother appealed. 

16


1. The court of appeals rejected Mother’s argument that the trial court’s 2002 finding that Father was the 

child’s biological father was not based on any proof or proper legal proceeding for legitimation, 

because those issues were not addressed in the trial court or preserved for appeal. 

2. The court of appeals, however, agreed with Mother that the trial court should have ordered a paternity 

test pursuant to G.S. 8-50.1, because 

a. Father had never obtained a judgment of paternity; 

b. Father had never acknowledged paternity by affidavit under G.S. 110-132(a); and 

c. “a question of parentage” arose when Mother contested Father’s paternity. 

Dissent: Judge Jackson dissented from the second holding above on the basis that paternity was judicially 

established by the 2002 court order and Mother neither appealed nor made a timely motion under G.S. 

1A-1, Rule 60(b), for relief from the judgment. 

Legitimation 

In re Papathanassiou, ___ N.C. App. ___, ___ S.E.2d ___ (2/3/09). 


Facts: Months after the child was born in 1998, respondent, who was married to the child’s mother, 

learned that he was not the child’s biological father. He continued to act like the child’s father, however, 

and he and his wife had another child. The parents separated in 2002 and were divorced the following 

year. In 2005, petitioner filed a special proceeding to legitimate the child. After a hearing the clerk 

declared the child legitimate, declared that petitioner was the child’s father, and order that the child’s birth 

certificate be changed accordingly. Respondent appealed to superior court, de novo. Petitioner filed 

motions in limine asking that respondent be prohibited from offering “best interest” evidence and a 

motion for summary judgment. The court granted the motion for summary judgment and entered an order 

legitimating the child and directing that the birth certificate be changed. Respondent appealed, arguing 

that summary judgment was not proper because, even though he admitted and a test showed that he was 

not the child’s biological father, an issue of fact regarding the child’s best interest remained. 


The court of appeals concluded that the legislature has not required a best interest determination in a 

legitimation proceeding and that the only issue for the court in such a proceeding is whether the petitioner 

is the child’s biological father. Therefore, summary judgment was proper. Other proceedings, the court 

said, provide vehicles for determining custody and other issues relating to the child. 

Medicaid Reimbursement 

OTHER 

• North Carolina’s statutory scheme for determining Medicaid reimbursements is reasonable and 

complies with federal law as interpreted by the U.S. Supreme Court. 

Andrews ex rel. Andrews v. Haygood, 362 N.C. 599, 669 S.E.2d 310 (12/12/08). 


Facts: Minor plaintiff brought malpractice action seeking recovery for injuries she suffered at birth. The 

case was settled, and the Division of Medical Assistance (DMA) sought reimbursement from the 

settlement for the amount Medicaid had paid for the plaintiff’s medical expenses. The settlement did not 

specify what portion of the settlement amount was for medical expenses. The subrogation statute, G.S. 

108A-57, gives the state or county subrogation rights to all of a Medicaid recipient’s rights of recovery 

for medical expenses up to the amount paid by DMA but not exceeding one third of the judgment or 

17

settlement or other recovery by the recipient. In this case, because DMA’s claim was for less than one 

third of the settlement amount, the court ordered full reimbursement. 

The trustee of the settlement appealed and the court of appeals affirmed. In Arkansas DHS v. 

Ahlborn, 547 U.S. 268 (2006), the U.S. Supreme Court held that the state could not recover an amount 

higher than the portion of the settlement that represented medical expenses, in a case in which the parties 

had stipulated to what that portion was. In Andrews, the trustee argued that when a settlement does not 

specify the amount that represents medical expenses, the court must conduct a hearing to determine what 

portion of the settlement amount that is. 


Affirming the court of appeals, which had affirmed the trial court, the N.C. Supreme Court held that 

1. Ahlborn “did not require a specific method for determining the portion of a settlement that represents 

the recovery of medical expenses.” 

2. N.C. law provides that the portion of a settlement that represents payment for medical expenses, when 

that is not specified, is “the lesser of the State’s past medical expenditures or one-third of the 

plaintiff’s total recovery.” 

3. North Carolina’s approach is reasonable and consistent with the holding in Ahlborn. 

Medicaid Appeals 

Meza v. DHHS, ___ N.C. App. ___, 668 S.E.2d 571 (10/21/08). 


Facts: The appellant had sought judicial review of a final DHHS determination that only the first days of 

two hospital stays qualified as treatment for medical emergencies and that because she was an unqualified 

alien, she was not eligible for Medicaid for the additional days in the hospital. The superior court 

considered the evidence, made findings of fact and conclusions of law, reversed the administrative 

decision, and ordered DHHS to provide appellant with Medicaid coverage for the full length of both 

hospital stays. 


The court of appeals considered only whether the superior court had applied the correct standard of review 

and affirmed, relying in part on G.S. 108A-79(k), which says that the superior court properly may take 

testimony and “examine into the facts of the case, to determine whether the final decision is in error under 

federal and State law, and under [applicable] rules and regulations . . . .” The court declined to consider 

the merits because error was not assigned to any of the superior court's findings or conclusions 

Dissent: Judge Steelman dissented on the basis that the superior court should have applied the “whole 

record” test when reviewing the administrative decision. 

Martin v. North Carolina Dept. of Health and Human Services, ___ N.C. App. ___, 670 S.E.2d 629 

(1/6/09). 


Facts: The superior court reversed the DHHS final agency decision (which upheld the county DSS 

decision) terminating petitioner’s Medicaid for Qualified Beneficiary Part B (MQB-B), an eligibility 

category for those who need help paying their Medicare Part B premiums. The agency decision was based 

on state guidance that because petitioner’s husband was not eligible for Medicare, petitioner’s income 

should be evaluated in relation to her as an individual, not in relation to a family of two. 


The court of appeals affirmed the superior court’s reversal, finding that the state’s interpretation was 

contrary to the plain language of the federal statute and, the court noted, contrary to the state’s final 

decision in a previous similar case. 

18

Liability – Public Duty Doctrine 

• The public duty doctrine did not apply to provide immunity to county DSS or its employees in a 

wrongful death action alleging negligence in a child protective services matter. 

Christmas v. Cabarrus County, ___ N.C. App. ___, 664 S.E.2d 649 (8/19/08). 


Facts: DSS received several reports about a young child who had various injuries. DSS investigated on 

two dates and concluded that the home was “conditionally safe.” Several weeks later, on December 24, a 

physician reported that the child possibly had suffered a non-accidental trauma. The on-call social worker 

determined that the child could be released back to the mother’s care and that DSS would assess the case 

on December 27. A social worker visited the home on December 31 and when no one answered the door, 

left a note asking the mother to contact DSS. On January 2, EMS was called to the home and declared the 

child dead. The mother and her boyfriend were criminally convicted in connection with the child’s death. 

The executor of the child’s estate brought a wrongful death action against DSS, its director, and various 

other individuals. The trial court granted the individual defendants’ motions to dismiss the claims against 

them in their individual capacities and denied the motions to dismiss claims against them in their official 

capacities. Government immunity had been waived by the county’s purchase of insurance, and the trial 

court rejected defendants’ argument that they had immunity pursuant to the public duty doctrine. 


Although the appellate courts have extended application of the public duty doctrine at the state level, with 

respect to local governments the doctrine has been applied only to law enforcement agencies carrying out 

their general duty to protect the public as a whole. The court declined to extend it in this case. 

Liability – Insurance Coverage 

• Alleged negligent supervision claims were not excluded from county’s liability insurance policies. 

Fulford v. Jenkins, ___ N.C. App. ___, ___ S.E.2d ___ (2/17/09). 


Facts: A juvenile placed by DSS with his grandmother stabbed a neighbor to death. Plaintiff filed suit 

against the county, the county DSS and its director, and several social workers, alleging negligent 

supervision of the 13-year-old juvenile. The trial court granted defendants’ motions to dismiss the action 

against them in their individual capacities and denied the motion with respect to claims against the county 

and against individuals in their official capacities. Defendants argued that they were protected by 

governmental immunity because, even though the county had purchased liability insurance, the actions or 

inactions complained fell within the exclusions for Public Officials and for bodily injury. 


The court of appeals held that summary judgment was properly denied because there was still a claim for 

negligent supervision. The court said that accepting defendants’ reading of the insurance policies would 

suggest that the county had purchased insurance that provided almost no coverage. 

Janet Mason 

School of Government 

The University of North Carolina at Chapel Hill 

T: 919.966.4246 F: 919.962.2706 

mason@sog.unc.edu 

19

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