• One Potato, Two Potato: The Rules of Civil Procedure in A/N/D and TPR Proceedings

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    *This post was amended on January 29, 2016 to add Rule 45 (subpoena) and on February 22, 2017 to specifically reference Rule 12(b)(3)

    Have you ever felt like you’re playing a game of one potato, two potato when figuring out if a Rule of Civil Procedure applies to your abuse, neglect, dependency, or termination of parental rights action? Let me provide you with a guide instead.

    The first place to look for both substantive and procedural law in A/N/D and TPR actions is Subchapter I of the NC Juvenile Code (hereinafter “G.S. 7B”). NC appellate courts have long recognized the purposes of both Subchapter I generally, “to provide procedures for the hearing of juvenile cases” [G.S. 7B-100(1)] and Article 11 (Termination of Parental Rights), “to provide judicial procedures for terminating the legal relationship between a juvenile and the juvenile’s biological or legal parents….” G.S. 7B-1100(1). Case law is clear that G.S. 7B sets forth the exclusive procedure governing juvenile proceedings, and a particular rule of civil procedure only applies if it fills a procedural gap and advances the purposes of the Juvenile Code. In re E.H., 742 S.E. 2d 844 (2013).

    What Rules Are Specifically Referenced in the Juvenile Code?

    • Rule 4 service applies to:
      • a summons and petition for interference [G.S. 7B-303(c)], abuse, neglect or dependency, [G.S. 7B-406 and -407], and termination of parental rights [G.S. 7B-1106(a)];
      • a motion to TPR filed in an existing A/N/D proceeding if in that underlying A/N/D action
        • the respondent parent was not originally served with a summons,
        • the service was made by publication and did not include language that upon proper notice and hearing, the parent’s rights may be terminated,
        • it has been at least two years since the commencement of the A/N/D action, or
        • the court orders Rule 4 service. G.S. 7B-1102(b); and
      • a court order of service by publication on an unknown parent in a TPR action pursuant to G.S. 7B-1105(d). Rule (4j1) is also referenced in G.S. 7B-1107, which addresses a parent’s failure to answer or respond to a TPR petition or motion.
    • Rule 5 service applies to:
      • motions for discovery [G.S. 7B-700(c)];
      • a motion to TPR (versus a petition) filed in an existing A/N/D action that does not meet the statutory requirements for Rule 4 service (described above) [G.S. 7B-1102(b)]; and
      • service of a copy of “pleadings and other papers required to be served” in a TPR proceeding on (1) a juvenile’s GAL or attorney advocate and (2) a parent’s attorney, if she was appointed and not relieved of her obligations in the underlying A/N/D action [G.S. 7B-1106(a1), (a2)].
    • Rule 17 applies to require the appointment of a GAL for a respondent parent if the parent is:
    • Rule 17 applies to require the appointment of a GAL for a juvenile who appeals and is not represented by a G.S. 7B-601 GAL [G.S.7B-1002].
    • Rule 42 consolidation applies when a TPR is filed in the same district as a pending A/N/D action for the juvenile. G.S. 7B-1102(c). Although not specifically referencing Rule 42, a juvenile court may consolidate an A/N/D proceeding with a civil custody action or claim [G.S. 7B-200(c), (d)].
    • Rule 58 entry of judgment is specifically identified at G.S. 7B-1001(b). In addition, several references to the entry of an order are made throughout G.S. 7B, including -303(d) (interference), -323(d) (Responsible Individual List), -506(d) (continued nonsecure custody order), -700(d) (protective order regarding discovery), -800.1(c) (consent order), -807(b) (A/N/D adjudication), -900.1(c), (f) (post-adjudication change of venue), -905(a) (dispositional order), -906.1(h), (l), (m) (review and permanency planning hearings), -911(b), (c) (civil custody order), -1109(e) (TPR adjudication), -1110(a) (TPR disposition), and -1114(i)(1), (l) (reinstatement of parental rights).

    What Other Rules Apply?

    • Rule 7(b)(1): a motion requires that grounds are stated with particularity, and the motion must include a request for relief. In re McKinny, 158 N.C. App. 441 (2003).
    • Rule 8: construe juvenile pleadings so as to do substantial justice. In re Dj.L, 184 N.C. App. 76 (2007).
    • Rule 11(b): requirements for verification of a pleading. In re Triscare Children, 109 N.C. App. 285 (1993). Verification is required for an interference petition [S. 7B-303(a)], A/N/D petition [G.S. 7B-403(a)], and TPR petition or motion [G.S. 7B-1104].
    • Rule 12(b): defenses, including a motion to dismiss [In re Quevedo, 106 N.C. App. 574 (1992)] and improper venue [In re J.L.K., 165 N.C. App. 311 (2004)].
    • Rule 41(a)(1)(i)*: DSS’s voluntarily dismissal of an A/N/D petition prior to the adjudicatory hearing. In re E.H., 742 S.E. 2d 844 (2013).
    • Rule 43: there must be some oral testimony for an adjudication. In re A.M., 192 N.C. App. 538 (2008).
    • Rule 45: subpoena. Note that the authority to issue a subpoena is implied in the following opinions: A Child’s Hope LLC v. Doe, 178 N.C. App. 96 (2006); In re Dj.L., 184 N.C. App. 76 (2007); In re S.M., ___ N.C.App. ___, 761 S.E. 2d 764 (2014)(unpublished).
    • Rule 52: findings of fact and conclusions of law. In re E.N.S., 164 N.C. App. 146 (2004). Note, various statutes throughout G.S. 7B require the court to make specific findings.
    • Rule 60: motion for relief from judgment. In re E.H. , 742 S.E. 2d 844 (2013).
    • Rule 61: harmless error. In re T.M., 187 N.C. App. 694 (2007).

    What Rules Do Not Apply?

    • Rule 12(c): judgment on the pleadings, In re I.D., 769 S.E. 2d 846 (2015).
    • Rule 13: counterclaim, In re S.D.W., 187 N.C. App. 416 (2007); In re Pierce, 53 N.C. App. 373 (1981).
    • Rule 15: amendment of pleading
      • Amendment of an A/N/D petition is governed by G.S. 7B-800. Note, case law limiting the amendment of a petition has been superseded by changes to the language of G.S. 7B-800.
      • There is no statutory language regarding amending a petition in a TPR action. In re B.L.H., 190 N.C. App. 142 aff’d per curiam, 362 N.C. 674 (2008) holds a TPR petition/motion may not be amended to conform to the evidence. In re M.M., 200 N.C. App. 248 (2009) explains an amendment to a TPR petition that names a previously unknown father is not required and is instead governed by G.S. 7B-1105 and not Rule 15.
    • Rule 24: intervention is governed by G.S. 7B-401.1(h). Note, the holding allowing for intervention in a juvenile proceeding in In re T.H., 753 S.E. 2d 207 (2014) was superseded by the creation of G.S. 7B-401.1(h).
    • Rule 41(a)(1)*: dismissal which then precludes the filing of a second petition, In re L.O.K., 174 N.C. App. 426 (2005).
    • Rule 55: default, In re I.D. (2015). See also G.S. 7B-1107, which requires the court to order a hearing on the petition or motion.
    • Rule 56: summary judgment, In re J.N.S., 165 N.C. App. 536 (2004).

    *One provision of Rule 41(a)(1) applies, and one does not.

    Discovery: Are You Still Playing One Potato?

    Discovery is specifically provided for in G.S. 7B-700 and is referenced in -803 and -1109(d), authorizing the court to continue an A/N/D or TPR adjudication hearing “to allow the parties to conduct expeditious discovery.”  Although G.S. 7B-700 is silent as to what procedures may be used, cases have mentioned specific discovery Rules as if their application in a juvenile proceeding is permitted:

    • Rules 30 and 32 – depositions, In re K.D.L., 176 N.C. App. 261 (2006); In re K.H.H., 175 N.C. App. 420 (2006) (unpublished),
    • Rules 33 and 34 – interrogatories and request for production of documents, In re Clayton, 159 N.C. App. 228 (2003) (unpublished), and
    • Rule 35 – mental examination of a juvenile, In re Williams, 149 N.C. App. 951 (2002)].

    Protective orders are governed by G.S. 7B-700(d), and a court may need to look to G.S 7B-302(a1) and -2901(b) regarding confidentiality of records, including the identity of the reporter.

    If you know of other Rules, please share in the comments below.

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