247 N.C. App. 711
N.C. Ct. App.2016Background
- Orange County DSS obtained nonsecure custody of O.D.S. and filed petitions alleging neglect and dependency; child initially adjudicated neglected (May 2014).
- DSS later ceased reunification efforts with both parents and moved the permanent plan to adoption (Feb 2015); motions to terminate parental rights followed.
- DSS filed a motion to terminate Respondent-Father’s parental rights on grounds of neglect (G.S. 7B-1111(a)(1)) and dependency (G.S. 7B-1111(a)(6)).
- At the July 16, 2015 hearing the trial court orally found neglect but did not expressly announce dependency; a written order entered Aug. 11, 2015 found both neglect and dependency and terminated Father’s rights.
- Father appealed, arguing the court could not rely on dependency because it was not announced in open court; he did not challenge the sufficiency of evidence supporting dependency or best interests findings.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether the trial court could base termination on dependency when it failed to announce that ground in open court but included it in the later written order | The court may enter a written adjudicatory order addressing every alleged ground; Rule 58/§7B-1109 requires written findings and the written order controls when entered | Because the trial court did not state dependency in its oral disposition, it was precluded from relying on dependency in the later written order | The written and entered order controls; the trial court was not precluded from finding dependency despite the omission in the oral rendering; affirmed |
| Whether dependency as adjudicated supports termination | (implicit) DSS argued evidence and findings established incapability, lack of alternative caregiver, and reasonable probability incapability will continue | Father did not contest evidentiary sufficiency on appeal | Court affirmed that the dependency findings in the written order support termination; no need to address neglect ground |
| Whether discrepancy between oral and written judgments automatically invalidates the written order | DSS: written order complying with statutory requirement of written findings is valid; oral omission can be an oversight corrected by the written order | Father: written order cannot add a ground not announced in open court; transcript is dispositive where discrepancy exists | Court: transcript controls when written order directly and substantively contradicts oral rendering; but on these facts the written order was valid and controlled because there was no substantive contradiction and the written order complied with §7B-1109 |
| Appropriate remedy if omission in oral rendering is error | DSS: remand is unnecessary where the written order already contains findings; written entry resolves the issue | Father: any omission should require remand or reversal because parties rely on oral ruling | Court: the usual remedy would be remand to add findings, but remand unnecessary here because the written order already contains the requisite findings and conclusions; affirmed |
Key Cases Cited
- Stachlowski v. Stach, 401 S.E.2d 638 (N.C. 1991) (Rule 52 requires findings of fact, conclusions of law, and judgment in sequence)
- Morris v. Bailey, 358 S.E.2d 120 (N.C. Ct. App. 1987) (discusses pre-1994 Rule 58 practice and relation between oral rendition and written judgment)
- Draughon v. Harnett Cty. Bd. of Educ., 580 S.E.2d 732 (N.C. Ct. App. 2003) (illustrates trial court reserving decision in open court and later entering written order)
- Capital Outdoor Advertising v. City of Raleigh, 446 S.E.2d 289 (N.C. 1994) (Rule 58 amendments and effect on entry of judgment)
- Abels v. Renfro Corp., 486 S.E.2d 735 (N.C. Ct. App. 1997) (announcement of judgment in open court is rendering, not entry; written judgment controls when entered)
- Morris v. Southeastern Orthopedics Sports Med. & Shoulder Ctr., 681 S.E.2d 840 (N.C. Ct. App. 2009) (written judgment entry controls; trial court may consider post-hearing materials before entry)
- Fayetteville Publ’g Co. v. Advanced Internet Techs., Inc., 665 S.E.2d 518 (N.C. Ct. App. 2008) (written order as entered is controlling over trial judge’s comments at hearing)
- In re J.C. & J.C., 783 S.E.2d 202 (N.C. Ct. App. 2016) (where written order substantively contradicts oral rendering, transcript may be dispositive and remand may be required)
- State v. Sellers, 574 S.E.2d 101 (N.C. Ct. App. 2002) (clerical errors in written judgments apparent from transcript should be corrected on remand)