Opinion
No. COA02-736
Filed 7 October 2003 This case not for publication
Appeal by Respondent Cassia Barbosa from judgment and order entered 15 January 2002 by Judge Earl Fowler in Buncombe County District Court, Juvenile Division. Dismissed as moot by order of the Court of Appeals on 13 February 2003. Appealed to the Supreme Court. Now on remand to the Court of Appeals by the Supreme Court Order at 357 N.C. 160, 580 S.E.2d 359 (2003) to reconsider in light of In re Hatley, 291 N.C. 693, 231 S.E.2d 633 (1977). Heard in the Court of Appeals 20 August 2003.
Buncombe County Department of Social Services, by John C. Adams, for petitioner-appellee Department of Social Services. Appellate Defender Staples Hughes, by Assistant Appellate Defender Robert W. Ewing for respondent appellant. Judy N. Rudolph and Michael N. Tousey as Guardians Ad Litem for petitioner appellee Kaylee Barbosa.
Buncombe County No. 01 J 202.
Respondent appeals from an order finding neglect with respect to her minor child, Kaylee Barbosa. Previously, this Court concluded this matter to be moot because custody of the child had already been restored to the mother. However, In re Hatley, 291 N.C. 693, 231 S.E.2d 633 (1977), establishes that, regardless of whether the underlying controversy continues to exist, an appeal will not be moot if "collateral consequences" remain, which could "frequently be revived to attack the capacity of [an appellant]" and could damage the appellant's credibility. Hatley, 291 N.C. at 695, 231 S.E.2d at 634. An adjudication of neglect is such a collateral consequence. This Court now reconsiders respondent's appeal on remand from the Supreme Court. Because, however, the order adjudicating the minor child as a neglected juvenile was not signed by the trial court judge who presided over the hearing, this case must be vacated and remanded to the trial court.
The hearing transcript shows that Judge Gary C. Cash presided over the 15 August and 21 August 2001 hearings concerning Kaylee Barbosa. The transcript does not reflect that Judge Earl Fowler was present. At the end of the 21 August hearing, Judge Cash requested that the Department of Social Services prepare an order finding "the facts as are related in these reports." The order before us on appeal, however, was signed by Judge Fowler. From a thorough examination of the record and transcript, we can discern no explanation for why this occurred.
It does not appear from the record that Rule 63 of the Rules of Civil Procedure was operative in this case. See N.C. Gen. Stat. § 1A-1, Rule 63 (2001) (disability of a judge).
Under In re Whisnant, 71 N.C. App. 439, 322 S.E.2d 434 (1984) a trial judge who was not presiding over a proceeding and did not hear the evidence in the case does not have authority to enter an order under Rule 52 in that case and any such order entered is anullity and must consequently be vacated and remanded. In re Whisnant, 71 N.C. App. 439, 440-41, 322 S.E.2d 434, 434-35 (1984). This is because this Court is without authority to entertain an appeal of a case in which no judgment has been entered. Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737 (1997). Thus, we may not undertake a review on the merits until a valid order is entered. Accordingly, the order adjudicating Kaylee Barbosa as a neglected juvenile must be vacated and this case remanded to the trial court to enter a valid order.
In accordance with Whisnant, if Judge Cash is available for assignment the case will be heard by him. See Whisnant, 71 N.C. App. at 442, 322 S.E.2d at 436. He may consider the transcript of the evidence previously heard by him and may take such additional evidence as he may find to be helpful in deciding the issue of neglect. If Judge Cash is unavailable for assignment, the trial court shall undertake a new hearing.
Vacated and remanded.
Panel consisting of:
Judges HUNTER, BRYANT and ELMORE.
Report per Rule 30(e).