In The Matter Of: J.P
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-793 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 IN THE MATTER OF: J.P., Minor Child Appeal by Watauga County No. 06-J-41 respondent-mother from order entered 12 April 2011 by Judge Ted McEntire in Watauga County District Court. Heard in the Court of Appeals 31 October 2011. Di Santi Watson Capua & Wilson, by Andrea N. Capua and Chelsea B. Garrett, for Watauga County Department of Social Services petitioner-appellee. Charlotte Gail Blake for respondent-mother appellant. Pamela Newell for guardian ad litem. McCULLOUGH, Judge. On 1 March 2011, this Court filed an opinion which affirmed the trial court s order adjudicating that grounds existed to terminate respondent s parental rights, and which remanded for entry of a new dispositional order. In re J.P., ___ N.C. App. ___, 710 S.E.2d 710 (2011) (unpublished). trial court convened a dispositional On 14 March 2011, the hearing and received -2evidence. On 12 April 2011, the court filed an order concluding that it was in the best interest of the juvenile that parental rights of juvenile both filed parents notice be of terminated. appeal on The 18 mother April of 2011. the She subsequently filed a brief in which she contended the trial court lacked subject matter jurisdiction to conduct the dispositional hearing on 14 March 2011 because this Court had not yet issued its mandate. Her contention has merit. During the pendency of an appeal from an order terminating parental rights, the trial court retains jurisdiction only to enter temporary orders affecting the custody or placement of the juvenile. 789, [A]n 794-95 appeal In re K.L., 196 N.C. App. 272, 280, 674 S.E.2d (2009) (quoting removes a case N.C. Gen. from the Stat. trial ยง 7B-1003(c)). court which is thereafter without jurisdiction to proceed on the matter until the case is returned by mandate of the appellate court. Woodard v. Local Governmental Employees Retirement Sys., 110 N.C. App. 83, 85, 428 S.E.2d 849, 850 (1993). The disposition of the appellate court does not become final until the mandate issues. Hodge v. N.C. Dep t of Transp., 161 N.C. App. 726, 729, 589 S.E.2d 737, 738-39 (2003). The mandate of an appellate court -3issues twenty days after the written opinion has been filed with the clerk of the appellate court. N.C.R. App. P. 32(b) (2011). Twenty days from 1 March 2011 is 21 March 2011; the trial court thus prematurely conducted the hearing before this Court issued its mandate and returned jurisdiction to the trial court. When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest authority. judgment or vacate any order entered without In re R.P.M., 172 N.C. App. 782, 787, 616 S.E.2d 627, 631 (2005) (quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)). We therefore vacate the order and remand the matter to the trial court for appropriate action. Vacated and remanded. Judges HUNTER (Robert C.) and THIGPEN concur. Report per Rule 30(e).
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