• 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.

    Sara DePasquale is an Assistant Professor at the School of Government specializing in child welfare (abuse, neglect, dependency, termination of parental rights, and adoption) and juvenile court.

    One thought on “One Potato, Two Potato: The Rules of Civil Procedure in A/N/D and TPR Proceedings”

    • Sara DePasquale says:

      The post was amended on June 22, 2015 to add Rule 8.

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