In re K.J.E., 288 N.C. App. 325 (2023)
Held:
Vacated and Remanded in Part
- Facts: Mother filed a TPR against father for willful abandonment, which was granted. Father appealed, and the supreme court vacated the adjudication portion and remanded based on insufficient findings for the adjudication. In 2022, on remand, the trial court entered its second order with additional adjudicatory findings and terminated parental rights. A GAL was reappointed to the juvenile but the court denied father’s motion to receive new evidence. The court relied on the 2020 record and entered the 2022 order nunc pro tunc to 2020. Father appealed, challenging the disposition portion only.
- “The trial court was required on remand during the disposition stage … to determine the best interests of the child at or near the time of the 2022 hearing.” Sl.Op. at 3. Although a trial court has broad discretion to decide whether to hear new evidence on remand, this discretion is not unlimited. It is not per se error for a best interests determination made on remand to be based on the record of the earlier hearing, when for example, no party attempts to offer new evidence. The court looks at evidence that is relevant, reliable, and necessary and has “wide discretion to determine whether ‘to admit or deny evidence at the dispositional phase’ ”. Sl.Op. at 8 (citation omitted). The supreme court was silent on whether the court must hear new evidence on remand, giving the trial court discretion to make that decision. However, “a trial court must generally hear any evidence relevant to a best interest determination if the evidence is not cumulative.” Sl.Op. at 6 (emphasis in original). Father was not permitted to make an offer of proof such that the appellate court cannot decide if refusing to allow the evidence father would have offered was an abuse of discretion. Not allowing father to make the offer of proof was error.
- A motion to continue the matter for 30 days so the GAL could perform her duties was denied. The court has discretion to deny a motion to continue but the “Supreme Court has suggested a trial court should not begin to make a determination before a GAL can perform her duties.” Sl.Op. at 9. The court of appeals makes no determination whether the court abused its discretion.
- On this remand, the court must exercise discretion when determining whether it is then in the child’s best interests to terminate his father’s rights. “It would seem to be an abuse of discretion if the trial court, on remand from our opinion today, made a best-interest determination based on 2020 information where the court could access new information.” Sl.Op. at 10. If the court does not take new evidence, it is encouraged to detail findings as to why that evidence would not be relevant, reliable, or necessary. The court does have broad discretion to determine what evidence to hear in the disposition.
- Here the court entered the new order nunc pro tunc to the earlier order’s date, which suggests the court believed it was not required to look at the best interests of the child at the time of the hearing on remand. A nunc pro tunc order cannot be used “to accomplish something which ought to have been done but was not done.” Sl.Op. at 4 (citation omitted). The use of nunc pro tunc was improper as the court was not trying to correct findings it had made in 2020 but rather it added findings it failed to make at the earlier hearing.
Category:
Termination of Parental RightsStage:
DispositionTopic:
Best Interests Findings