IN RE STRATTON

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Docket Number

No. COA02-745

Attorney(S)

Mecklenburg County Department of Social Services, by Associate County Attorney Tyrone C. Wade, for petitioner-appellee, Mecklenburg County Department of Social Services, Youth and Family Services. Michael Schmidt for respondent-appellant father, Jack Stratton. McDowell Street Center for Family Law, Inc., by Tina Renee' Ridge for respondent-appellee mother, Kathy Stratton. Brett A. Loftis for Children. Sheila Passenant, for Guardian Ad Litem.

Judges

GEER, Judge.

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Smart Summary

Factual and Procedural Background

On 30 January 2001, the Mecklenburg County Division of Social Services (DSS) filed a juvenile petition alleging the Stratton children were neglected and dependent and the district court issued a non-secure custody order placing the children in foster care that same day. Judge Elizabeth D. Miller held an adjudicatory hearing on 12 March 2001 and entered a written order adjudicating the children neglected and dependent on 31 January 2002. Respondent father Jack (Mr.) Stratton filed notice of appeal on 14 February 2002. The oldest child, Spencer Stratton, reached age eighteen and is not part of this appeal. The children's mother, Mrs. Stratton, did not appeal but filed a brief as an appellee; DSS moved to strike that brief. While this appeal was pending, on 10 June 2003 Judge Margaret L. Sharpe, after several months of hearings, entered an order terminating the parental rights of Mr. and Mrs. Stratton, concluding independently that the children were neglected and that statutory grounds for termination existed under N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2). Judge Sharpe did not rely on the 31 January 2002 adjudication. The Court of Appeals dismissed Mr. Stratton's appeal as moot.

Legal Issues Presented

Whether the mother's filed brief was a proper appellee brief and whether DSS' motion to strike that brief should be granted.
Whether the appeal from the 31 January 2002 adjudication of neglect and dependency is moot in light of the district court's 10 June 2003 order terminating parental rights.
Whether the adjudication of neglect and dependency (conduct of the adjudication hearing and sufficiency of the evidence) supported the 31 January 2002 order (issues raised by respondent father on appeal).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State ex rel. Utilities Comm'n v. Southern Bell Telephone and Telegraph Co., 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976).	The Court may take judicial notice of matters outside the record, particularly to determine whether a question has become moot or academic.	The Court took judicial notice of the 10 June 2003 termination order to determine that the appeal was moot.
Roberts v. Madison County Realtors Ass'n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996).	Definition and explanation of mootness: a case is moot when a determination cannot have any practical effect on the existing controversy.	Used to conclude that reversal of the 31 January 2002 adjudication would have no practical effect given the later termination order, rendering the appeal moot.
Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131, disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994).	When relief sought has been granted or the questions are no longer at issue, the case should be dismissed; courts do not decide abstract propositions of law.	Supported the Court's dismissal of the appeal because the controversy between the parties had been resolved by the subsequent termination order.
In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231-32 (1984).	Although a trial court may consider prior adjudications of neglect, prior adjudications cannot serve as the sole basis for a finding of neglect at the time of a termination proceeding.	Explained that Judge Sharpe made an independent determination of neglect and did not rely on the 31 January 2002 adjudication, so reversing that prior adjudication would not affect the termination order.

Court's Reasoning and Analysis

The Court explained the procedural history and noted that Mrs. Stratton filed a brief as an appellee despite not appealing; DSS' motion to strike the mother's brief was granted because it was not a proper appellee brief. The Court then took judicial notice of Judge Sharpe's 10 June 2003 order terminating parental rights and relied on authority permitting consideration of matters outside the record to determine mootness. Judge Sharpe's order independently found the children neglected (under N.C. Gen. Stat. § 7B-101(15)) and that clear, cogent, and convincing evidence supported termination under N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2); she did not rely on the 31 January 2002 adjudication. Because the later order provided a new, independent adjudication of neglect and also included an independent statutory ground for termination (a)(2) — willful failure to make reasonable progress — the Court concluded that reversal of the 31 January 2002 adjudication would have no practical effect. Applying the cited mootness authorities, the Court dismissed the appeal as moot.

Holding and Implications

DISMISSED.

Direct consequences: the appeal from the 31 January 2002 adjudication was dismissed as moot; the 10 June 2003 order terminating Mr. and Mrs. Stratton's parental rights remains binding; the children would not be returned to Mr. Stratton and there would be no further reunification efforts as described in the opinion. The opinion does not announce or rely upon a new legal precedent beyond applying established mootness principles.

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IN THE MATTER OF: SPENCER STRATTON, DOB 01-14-84 ISAIAH STRATTON, DOB 10-01-85 SOLOMON STRATTON, DOB 03-20-89 TANNA STRATTON, DOB 08-24-90 RACHEL STRATTON, DOB 04-14-92 SIMON STRATTON, DOB 03-01-94 MICHELLE STRATTON, DOB 08-24-95 MARIA STRATTON, DOB 09-06-96 STEPHANIE STRATTON, DOB 10-28-97 LEAH STRATTON, DOB 07-02-99.

2. Appeal and Error — appealability — mootness

1. Appeal and Error — motion to strike brief — improper appellate brief

The Department of Social Services' motion to strike a brief filed by the mother in a child neglect and dependency adjudication hearing is granted on the grounds that the brief was not a proper appellee brief.

Respondent father's appeal from a 31 January 2002 order adjudicating his children to be neglected and dependent was rendered moot by a 10 June 2003 order terminating respondent's parental rights where the trial judge who terminated respondent's parental rights did not rely on findings by the judge who adjudicated the children to be neglected and dependent but made an independent determination that the children had been and continued to be neglected.

GEER, Judge.

This appeal arises from the adjudication of the Stratton children as being neglected and dependent. Mr. Stratton raises in this appeal several issues regarding the conduct of the adjudication hearing and whether sufficient evidence exists to support the adjudication of neglect and dependency. Because we find that this appeal is now moot and should be dismissed, we do not address these issues.

On 30 January 2001, the Mecklenburg County Division of Social Services ("DSS") filed a juvenile petition alleging the Stratton children to be neglected and dependent as defined in N.C. Gen. Stat. § 7B-101(9), (15) (2001). On that same date, the district court issued a non-secure custody order placing the children in foster care.

Judge Elizabeth D. Miller conducted an adjudicatory hearing pursuant to N.C. Gen. Stat. §§ 7B-801(c) and -901 (2001) on 12 March 2001. Judge Miller entered a written order adjudicating the children to be neglected and dependent on 31 January 2002. Mr. Stratton filed notice of appeal from that order on 14 February 2002. The oldest of the Stratton children, Spencer Stratton, has since reached the age of eighteen and is not the subject of this appeal.

Mrs. Stratton, the children's mother, has not appealed or petitioned this Court for writ of certiorari. Nevertheless, Mrs. Stratton has filed a brief, purportedly as an appellee, challenging the validity of the trial court's 31 January 2002 order. DSS has moved to strike that brief on the grounds that it is not a proper appellee brief. We agree and grant DSS' motion.

On 10 June 2003, while this appeal was pending, Judge Margaret L. Sharpe entered an order, following several months of hearings, terminating the parental rights of Mr. and Mrs. Stratton. Based on the evidence presented at the hearings, Judge Sharpe concluded that the Stratton children were neglected within the meaning of N.C. Gen. Stat. § 7B-101(15) and that DSS had proven by clear, cogent, and convincing evidence that grounds existed to terminate the parental rights of the Strattons under N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2) (2001). In the 10 June 2003 order, Judge Sharpe did not rely in any respect on the 31 January 2002 adjudication of neglect at issue on this appeal.

This Court is entitled to take judicial notice of this recent order. State ex rel. Utilities Comm'n v. Southern Bell Telephone and Telegraph Co., 289 N.C. 286, 288, 221 S.E.2d 322, 323 (1976). As our Supreme Court has held, "[c]onsideration of matters outside the record is especially appropriate where it would disclose that the question presented has become moot, or academic. . . ." Id., 221 S.E.2d at 324.

The district court's 10 June 2003 order renders this appeal moot. "A case is `moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." Roberts v. Madison County Realtors Ass'n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). Further, "[w]henever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law." Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131, disc. review denied, 337 N.C. 691, 448 S.E.2d 520 (1994) (internal quotation marks omitted).

The questions raised by Mr. Stratton on this appeal are now academic given Judge Sharpe's order terminating his parental rights. Mr. Stratton asks this Court to reverse the 31 January 2002 adjudication of neglect, but all of the findings in that order have now been superseded by the findings in Judge Sharpe's 10 June 2003 order. Although Judge Sharpe could have taken into account the 31 January 2002 adjudication of neglect, she chose not to do so and instead made an entirely independent determination that the Stratton children had been and continued to be neglected. See In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231-32 (1984) (although the trial court may consider prior adjudications of neglect, these prior adjudications cannot serve as the sole basis for a finding of neglect at the time of the termination proceeding). Reversing the 31 January 2002 order would have no effect given this separate determination of neglect.

Moreover, the district court also found a second ground, independent of the finding of neglect, justifying termination of Mr. Stratton's parental rights: N.C. Gen. Stat. § 7B-1111(a)(2) (allowing termination of parental rights when a parent has willfully left a child in foster care without demonstrating reasonable progress in correcting the conditions that led to the removal of the child). As a result, even if this Court were to reverse the 31 January 2002 order of adjudication and even if we did not consider the subsequent finding of neglect, the termination of parental rights order would still be binding, the children would not be returned to Mr. Stratton, and there would be no further reunification efforts.

In short, Mr. Stratton has already received a new, independent adjudication of the neglect issue and any resolution of the issues raised on this appeal will have no practical effect on the existing controversy. The issues regarding the 31 January 2002 order have been rendered moot by the subsequent 10 June 2003 order. We therefore dismiss respondent's appeal. Southern Bell, 289 N.C. at 290, 221 S.E.2d at 324 ("When a case becomes moot while on appeal, the usual disposition is simply to dismiss the appeal.").

Dismissed.

Chief Judge EAGLES and Judge MARTIN concur.