In the Matter of: Jackson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA01-1410 NORTH CAROLINA COURT OF APPEALS Filed: 6 August 2002 IN THE MATTER OF: Johnston County No. 98 J 61 GREGORY JACKSON Appeal by respondent, Peggy Green, from order entered 14 March 2001 by Judge Franklin F. Lanier in Johnston County District Court. Heard in the Court of Appeals 15 July 2002. Jennifer S. O Connor for petitioner-appellee Johnston County Department of Social Services. Terry F. Rose for respondent-appellant Peggy Green. WALKER, Judge. The Johnston County Department of Social Services (petitioner) filed a petition to terminate the parental rights of Peggy Green (respondent) to her son on 19 April 1999. Petitioner unsuccessfully attempted service of summons upon respondent at her last known address. Pursuant to an order of the court issued 7 May 1999, the DSS served notice by publication. Respondent did not file an answer or pleading and did not appear for the hearing to terminate rights on 29 July 1999. The trial court filed an order terminating respondent s parental rights on 13 August 1999. -2On 8 December 1999, respondent filed a motion to set aside the order terminating parental rights, contending that she was incarcerated in the Johnston County Jail at the time of the hearing and was not allowed to attend the hearing. she had not received notice of the She also contended that hearing, had not been represented by counsel, had not waived her right to representation by counsel, and had not been informed of her right to counsel. The trial court heard the motion on 16 December 1999 and denied it. proceeding Respondent appealed, but because the tape of the was erased, thereby precluding preparation of a stenographic transcript, the motion was heard again by the trial court on 14 March 2001. After hearing the evidence, the trial court found that, while respondent s failure to attend or respond may have been due to excusable neglect, respondent failed to show that she had a meritorious defense which would justify setting aside the order. The trial court, in its discretion, denied the motion and the respondent appeals. A motion for relief from a judgment or order made pursuant to Rule 60(b) of the Rules of Civil Procedure is addressed to the discretion of the trial judge, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion. Harris v. Harris, 307 N.C. 684, 687, 300 S.E.2d 369, 372 (1983). If the motion seeking relief does not allege facts corresponding to the specific grounds for relief stated in clauses (1) through (5) of Rule 60(b), then clause (6) allowing relief for any other reason justifying relief applies. In re Oxford Plastics v. Goodson, 74 -3N.C. App. 256, 259, 328 S.E.2d 7, 9 (1985). under this section, the movant must To qualify for relief show (1) extraordinary circumstances exist and (2) justice demands granting of relief. Id. Whether relief is sought under the first five clauses or under clause six, the movant must make a prima facie demonstration of a meritorious defense or claim. Id. at 260, 328 S.E.2d at 10. Respondent contends that the trial court erred (1) by refusing to find that justice demanded the granting of relief to respondent and (2) by concluding that respondent does not have a meritorious defense. We disagree. Respondent did not allege in her motion that she had a defense and she did not present affirmative evidence of a defense. During direct examination at the hearing, she only presented evidence regarding the circumstances of her failure to appear for the termination of parental rights hearing. The order terminating her rights shows that she left the child with a maternal greatgrandmother who was unable to care for the child and who was unaware of respondent s whereabouts. The termination order further shows that respondent has not participated in a required substance abuse treatment program and that respondent had pending drugrelated charges. The evidence at the hearing on the motion to set aside the order shows that respondent was subsequently convicted of the drug charges for which she was incarcerated. Respondent had not obtained treatment for substance abuse and she had not paid for the cost of care for the child--another ground stated by the trial court for termination of her parental rights. -4We conclude the trial court did not abuse its discretion in denying the motion to set aside the order terminating respondent s parental rights. The order is Affirmed. Judges THOMAS and BIGGS concur. Report per Rule 30(e).
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