Assume a hearing in a juvenile abuse, neglect, or dependency (AND) matter has just concluded. The judge announced the broad strokes of their ruling from the bench.  Questions about who is responsible for drafting the order, the need to circulate the order, what happens when a draft order is received by the judge, and the effect on this process if a party appears pro se are discussed in this post.

Entry of judgment: when and why?

Generally, a judgment is not entered until “it is reduced to writing, signed by the judge, and filed with the clerk of court pursuant to Rule 5.” N.C. R. Civ. P. r 58. “The announcement of judgment in open court is the mere rendering of judgment and is subject to change before entry of judgment.” In re O.D.S., 247 N.C. App. 711 (2016) (cleaned up).

Most AND orders are required to be entered no later than 30 days after a hearing concludes. See G.S. 7B-506(d) (continued nonsecure); 7B-807(b) (adjudication); 7B-900.1 (post-adjudication venue); 7B-905(a) (disposition); 7B-906.1(h) (review and permanency planning); 7B-908(e1) (post-TPR placement); 7B-1000 (modification). Except for nonsecure custody orders, each statute listed here requires that for any order not entered by the 30-day deadline, the clerk must schedule a hearing to determine the reason for the delay and to obtain clarity about the contents of the order. The order must then be entered within 10 days of this subsequent hearing. If the court fails to comply with these timelines, a writ of mandamus is the appropriate remedy. In re T.H.T., 362 N.C. 446 (2008).

Drafting orders: whose responsibility?

Ultimately, the order is the responsibility of the judge. In re A.B., 239 N.C. App. 157 (2015). In meeting that responsibility, judges may draft their own orders, assign drafting duties to one party, or may seek proposed orders from multiple parties. See In re A.B. (cited in In re J.W., 241 N.C. App. 44 (2015)). The court of appeals has recognized that a trial court may delegate drafting responsibilities to an attorney appearing before it. See, e.g., In re G.M.J.S., 179 N.C. App. 863 (2006) (holding the trial court did not improperly delegate its finding duty to DSS in directing the attorney for DSS to draft its TPR order); see also In re J.B., 172 N.C. App. 1 (2005) (rejecting the argument that a trial court is prohibited from directing counsel to draft an order, including findings and conclusions, where the trial court sufficiently indicated from the bench the court’s conclusions and the bases for those conclusions, noting the “routine” practice of delegating drafting duties is permissible under Rule 58 of the N.C. Rules of Civil Procedure) (citation omitted); N.C. R. Civ. P. r 58 (acknowledging the possibility that a party will prepare the judgment).

Circulating drafts: what happens after the order is drafted?

A few practical issues regularly arise.

Ex parte communication. A lawyer involved in a pending matter before a judge is prohibited from communicating ex parte with that judge regarding the matter, unless otherwise authorized by law or court order. N.C. R. Prof’l Conduct r 3.5(a)(3); see, e.g., G.S. 7B-502(a) (authorizing the ex parte entry of a nonsecure order). Ex parte communication is that which “occurs in the absence of an opposing party, without notice to that party, and outside the record.” N.C. R. Prof’l Conduct r. 3.5(d)(1). This prohibition partly stems from the notion that all parties should have equal access to courts, meaning lawyers should not behave in a way that creates (or appears to create) an undue advantage for one party. N.C. R. Prof’l Conduct r. 3.5, cmt [8]. For example, lawyers should not engage in written communication with a court without providing copies to opposing counsel and parties. Id.

How then can an attorney submit a draft order to the judge without engaging in prohibited ex parte communication?

Communication with judicial officials is addressed in 2019 Formal Ethics Opinion 4 (Adopted July 16, 2021) (herein 2019 FEO 4), which resulted in the withdrawal of several prior ethics opinions. A draft order addresses the merits of the case and cannot be submitted to the court ex parte. 2019 FEO 4, Inquiry and Opinion #5. Judges may decide how counsel communicate with the court, subject to rules established by law or court rules. This includes proposed orders. Id. The judge should instruct counsel how to communicate the proposed order to both the court, all other counsel, and any self-represented parties to avoid ex parte communication. Id. The method of delivery may include email. Id.

Timing. When delegating drafting responsibilities, the court should specify when the order must be circulated and provided to the court, ensuring compliance with statutory deadlines. Unless the presiding judge or a local rule says otherwise, the attorney responsible for drafting the order should circulate the draft with opposing counsel, allowing sufficient time for review and feedback before the draft is submitted for signature. Remember, attorneys must “act with reasonable diligence and promptness in representing a client.” N.C. R. Prof’l Conduct r. 1.3. Unless representation has been terminated, an attorney “should carry through to conclusion all matters undertaken for a client.” Id. at cmt [4].

Self-represented parties. Bear in mind that applicable Rules of Professional Conduct, including on diligence (r 1.3), candor toward the tribunal (r 3.3), fairness to opposing parties and counsel (r 3.4), and the rules regarding ex parte communication (r 3.5) apply even when another party is unrepresented. See 2019 FEO 4 (lawyers must take “great care” in complying with the prohibition on ex parte communications when a party is unrepresented); N.C. R. Prof’l Conduct r 3.5, cmt [8] (opining “a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered…to the adverse party [who] is unrepresented,” and “oral communication by a lawyer with a judge…should be made only upon adequate notice to opposing counsel or, if there is none, to the opposing party”).

Local rules. Be mindful that local rules may provide requirements for drafting and circulating orders and for addressing issues or delays with orders. For example, in Alamance County, parties have five days from the date they receive a draft nonsecure custody order to notify DSS of any changes they wish to make, otherwise the draft will be submitted to the judge as is. Local juvenile court rule R. 13g.(5)(b) (April 2021). In Pitt County, unless the presiding judge instructs otherwise, (i) DSS must draft orders for all matters they are involved in, (ii) a movant must draft the order on motions for review, and (iii) drafts must be circulated among attorneys and pro se parties who appeared at the hearing seven days before the order is submitted for signature. Local family court and juvenile AND rule R. 17 (August 2018).

Unless instructed otherwise by the presiding judge, Wake County requires that:

• DSS draft orders for matters involving DSS;
• In matters not involving DSS, the prevailing party draft the order;
• Drafts be circulated among parties (including unrepresented parties who participated in the hearing) for a reasonable amount of time before being submitted;
• Disagreements about the order must be resolved according to the process and timeline articulated by the rule;
• Orders must be submitted for signature sufficiently in advance of their statutory due date to allow the judge time to review and sign the order; and
• Attorneys are responsible for reviewing entered orders and, if an issue is identified, bringing the issue to the attention of the other parties and filing a Rule 60 motion, if applicable.

Local juvenile AND court rule R. 21 (March 2020).

Local rules, organized by county, are available through the N.C. Judicial Branch website. Practitioners may consider proposing the adoption of a local rule to address the issues raised in this post – a process contemplated by the Rules of Professional Conduct. See, e.g., 2019 FEO 4, Opinion #3 (identifying local rules as one possible method of addressing attorney communication with trial courts).

Other practical considerations for proposed orders.

• Ensure the draft satisfies the applicable legal requirements, including required findings of fact and conclusions of law. For more on drafting AND orders, see the Manual’s section on checklists.
• Confirm the draft accurately reflects what happened in court, including identifying who was present, evidentiary rulings, and findings and rulings announced from the bench. The draft should reflect whether the court adopted the recommendations of DSS and/or the GAL (often admitted through written reports).
• Using templates, previous orders, or allegations in a pleading to draft an order is common practice and is an efficient way of addressing a large caseload. But care should be taken to ensure that (i) extraneous language from a template or from a different case is not mistakenly included in the present order, (ii) allegations that were not proved are not included in the order, and (iii) the findings in the order consist of more than the factual allegations in the pleading. See In re J.W., 241 N.C. App. 44 (2015) (holding it is not per se reversible error to mirror the pleading allegations where the record makes clear the findings were based on admitted evidence, the court used logical reasoning, and the court found the ultimate findings necessary to support its decree). A draft order prepared in advance of a hearing should be reviewed to ensure it accurately captures what happened and not what counsel may have incorrectly predicted would happen.
• The court may revise a proposed order. A written order may vary from an oral rendition; if it does, the written order controls. See, e.g., In re O.D.S., 247 N.C. App. 711 (2016).
• The order must have the appearance of impartiality and should not include the stationary of the law firm that prepared the order or a designation of it being a proposed order of a party. See In re T.M.H., 186 N.C. App. 451 (2007); Heatzig v. McLean, 191 N.C. App. 451 (2008).

Addressing issues with proposed or entered orders

Questions or disagreements may arise about a proposed order that need to be addressed before it is submitted for signature. Parties should first seek to resolve the issue. If the parties reach an impasse, however, a conference between the judge and all parties could be requested, or a motion seeking clarification about the ruling could be filed, with notice sent to all parties. Ultimately, if the statutory deadline is missed, the clerk must schedule a hearing to address issues related to the timely entry of court orders, discussed earlier in this post.

If a party is not given an opportunity to review a draft before the order is entered, that party has a few potential options, depending on the facts and circumstances, including

• Moving to
  • amend the judgment under Rule 59(e) (for orders following a trial on the merits where at least one ground found in Rule 59(a) applies; see Maynard v. Crook, 289 N.C. App. 357 (2023)).
  • amend the findings of fact under Rule 52(b) (permitting a court to amend its findings or make additional findings, and to amend the judgment accordingly).
  • correct a clerical error under Rule 60(a) (note that this rule cannot be used to alter the substantive rights of parties) or for relief from judgment under Rule 60(b).
• File an appeal if the order is designated as an appealable order under G.S. 7B-1001.

These options mostly require the moving party to act in a prescribed amount of time. See each individual rule for more.

Reach out to me at Heinle@sog.unc.edu if you want to discuss these or other issues. A special thank you to my colleague, Joseph Laizure, for lending his expertise on the civil procedure pieces of this post.