No. COA97-261 | N.C. Ct. App. | Sep 2, 1997
Lead Opinion
We note at the outset that respondent has not assigned error to the II June 1996 order terminating her parental rights. Furthermore, respondent’s notice of appeal with regard to that order was not timely because a motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 60 does not toll the time for filing notice of appeal from the underlying judgment. See N.C.R. App. P. 3(c); Parrish v. Cole, 38 N.C. App. 691" court="N.C. Ct. App." date_filed="1978-11-21" href="https://app.midpage.ai/document/parrish-v-cole-1213213?utm_source=webapp" opinion_id="1213213">38 N.C. App. 691, 248 S.E.2d 878 (1978). Insofar as respondent gave notice of appeal from the 11 June 1996 order, the appeal must be dismissed.
Respondent’s only argument presented on appeal is that the trial court abused its discretion by denying her motion for a new trial. She contends the trial court should have granted the requested relief because she showed excusable neglect for her failure to appear at the termination hearing and because her pleadings established a meritorious defense to the petition. We disagree.
“To set aside a judgment on the grounds of excusable neglect under Rule 60(b), the moving party must show that the judgment rendered against him was due to his excusable neglect and that he has a meritorious defense.” Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421" court="N.C." date_filed="1986-11-04" href="https://app.midpage.ai/document/thomas-m-mcinnis--associates-inc-v-hall-1270835?utm_source=webapp" opinion_id="1270835">318 N.C. 421, 424, 349 S.E.2d 552, 554 (1986). A motion for relief under Rule 60(b) is addressed to the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion, Sink v. Easter, 288 N.C. 183" court="N.C." date_filed="1975-08-27" href="https://app.midpage.ai/document/sink-v-easter-1284216?utm_source=webapp" opinion_id="1284216">288 N.C. 183, 217 S.E.2d 532 (1975). What constitutes excusable neglect is a question of law which is fully reviewable on appeal. In re Hall, 89 N.C. App. 685" court="N.C. Ct. App." date_filed="1988-04-19" href="https://app.midpage.ai/document/matter-of-hall-1272005?utm_source=webapp" opinion_id="1272005">89 N.C. App. 685, 366 S.E.2d 882, disc. review denied, 322 N.C. 835" court="N.C." date_filed="1988-07-28" href="https://app.midpage.ai/document/in-re-lynette-h-6709151?utm_source=webapp" opinion_id="6709151">322 N.C. 835, 371 S.E.2d 277" court="N.C." date_filed="1988-07-28" href="https://app.midpage.ai/document/in-re-hall-6709154?utm_source=webapp" opinion_id="6709154">371 S.E.2d 277 (1988) “However, the trial court’s decision is final if there is competent evidence to support its findings and those findings support its conclusion.” Id. at 687, 366 S.E.2d 882" court="N.C. Ct. App." date_filed="1988-04-19" href="https://app.midpage.ai/document/matter-of-hall-1272005?utm_source=webapp" opinion_id="1272005">366 S.E.2d at 884. “[W]hat constitutes excusable neglect depends upon what, under all the surrounding circumstances, may be reasonably expected of a party in paying proper attention to his case.” McInnis, 318 N.C. 421" court="N.C." date_filed="1986-11-04" href="https://app.midpage.ai/document/thomas-m-mcinnis--associates-inc-v-hall-1270835?utm_source=webapp" opinion_id="1270835">318 N.C. at 425, 349 S.E.2d at 555.
The record in this case shows that respondent is disabled, that she does not have a driver’s license, depends upon her husband and others for transportation, and does not have a telephone. However, the record also shows she did not ask her husband to take her to court until the morning of the hearing and her in-laws, who have a telephone, lived nearby.
We believe the evidence in the record supports the trial court’s conclusion that respondent’s failure to appear did not amount to
Absent a showing of excusable neglect, any meritorious defense pled by the movant becomes immaterial. Hall, 89 N.C. App. 685, 366 S.E.2d 882. Therefore, we need not address respondent’s remaining argument that the pleadings revealed she had a meritorious defense.
The order of the trial court denying respondent’s Rule 60(b) motion is affirmed. Respondent’s purported appeal from the order terminating her parental rights is dismissed.
Affirmed in part; appeal dismissed in part.
Dissenting Opinion
dissenting:
I believe that the trial court abused its discretion in not granting the Rule 60 relief sought by Ms. Carpenter.
First, the record indicates that grounds for excusable neglect existed in this case. It is undisputed that Ms. Carpenter suffers from a genetic disease known as Myotonic Dystrophy (a disease similar to Muscular Dystrophy) which leaves her physically disabled. She therefore has been unemployable and is unable to drive. Moreover, she lives in a basement apartment without a telephone. Also, her child, Brittany, the subject of this termination proceeding, suffers from the same disease having apparently inherited the trait from her mother. Brittany receives SSI benefits which are paid directly to DSS.
On at least two occasions prior to the termination hearing on 4 June 1996, Ms. Carpenter appeared in district court for hearings
Like the first two hearings, Ms. Carpenter relied on her husband to transport her on 4 June 1996 to the third scheduled hearing on the petition to terminate her parental rights. Undisputedly, she asked him to take her to district court on that date as she had on the two prior occasions. He refused. With no means of transportation, no telephone and no evidence that her in-laws who lived near her were available or willing to take her to court, she, although desiring to be present at the hearing to terminate her relationship with her daughter, could not attend. This, I believe, is sufficient evidence to show that this disabled mother showed that her absence was due to excusable neglect.
Second, Ms. Carpenter showed that she had a meritorious defense to the petition. In her affidavit, she points out that the plans for reunification by DSS were inadequate to promote reunification with her daughter. The record shows that the plan called for her husband to transport her to visit with the child at a child care center during his lunch break. While some visits were made, the trial court found that the efforts were inadequate. Apparently, like the 4 June 1996 hearing, the husband did not provide transportation to all or most of the visits. It is significant to note that DSS, although fully aware of her debilitating condition and transportation difficulties, made no effort to arrange in-home visits with the child.
In sum, I conclude that Ms. Carpenter showed that her absence at the 4 June 1996 hearing was due to excusable neglect and that there was evidence that she had a meritorious defense to the petition. I believe the trial court should have granted the continuance at the third hearing to allow Ms. Carpenter an additional opportunity to be present. I, therefore, dissent.