In re: J.S.K. & J.E.K.Â
807 S.E.2d 188
N.C. Ct. App.2017Background
- Cabarrus County DHS removed two children (J.S.K. and J.E.K.) after petitions alleging neglect due to respondent-mother’s untreated mental health and substance abuse, domestic violence, and improper care.
- Children were adjudicated neglected on Aug. 26, 2015; reunification was initially the permanent plan with limited supervised visits.
- Permanency plan changed to adoption on Nov. 12, 2015; reunification efforts ceased in a Jan. 4, 2016 permanency order.
- On May 20, 2016, CCDHS filed a motion in the cause to terminate respondent-mother’s parental rights alleging statutory grounds under N.C. Gen. Stat. § 7B-1111.
- At the start of the termination hearing (Nov. 10, 2016) respondent-mother orally moved to dismiss under Rule 12(b)(6), arguing the motion merely recited statutory grounds without pleading sufficient factual allegations to put her on notice.
- Trial court denied the motion and entered an order (Feb. 17, 2017) terminating parental rights; the Court of Appeals reversed for failure to allege sufficient facts to state grounds for termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to terminate alleged sufficient factual allegations to state grounds under § 7B-1111 | CCDHS relied on its motion in the cause and the underlying juvenile file to supply notice; the motion’s language tracked statutory grounds | Respondent argued the motion contained only bare statutory recitations and thus failed under § 7B-1104(6) to plead facts putting her on notice | The motion contained only bare recitations of statutory grounds and was insufficient; dismissal should have been granted and termination reversed |
| Whether filing a motion in the cause (versus a separate petition) relieves CCDHS of the § 7B-1104(6) pleading requirement | CCDHS argued that because termination was brought as a motion in the cause, respondent had notice from the underlying abuse/neglect file | Respondent argued that § 7B-1104(6) applies equally to petitions and motions and facts must be pleaded in the motion itself | The Court held § 7B-1104(6) applies the same to motions; filing in the cause does not excuse pleading sufficient facts |
| Whether denial of an oral Rule 12(b)(6) motion at the hearing is reviewable on appeal from the final termination order | CCDHS argued appeal should be dismissed because denial of a motion to dismiss is not reviewable after final judgment | Respondent noted (and Court recognized) an exception in termination cases where review of pleading sufficiency is permitted, especially when no separate written order denies the motion | The Court addressed the argument on the merits and reversed despite general non-reviewability rules in other contexts |
Key Cases Cited
- Christmas v. Cabarrus Cty., 192 N.C. App. 227 (2008) (standard for de novo review of Rule 12(b)(6) dismissal)
- Green v. Kearney, 203 N.C. App. 260 (2010) (liberal construction of pleadings and scope of Rule 12(b)(6) review)
- In re Hardesty, 150 N.C. App. 380 (2002) (petition that merely recited statutory language is insufficient to put party on notice)
- In re Quevedo, 106 N.C. App. 574 (1992) (petition lacking facts is insufficient unless incorporated documents supply required facts)
- Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678 (1986) (general rule that denial of motion to dismiss is not reviewable after final judgment)