Browne v. Catawba County Department of Social Services , 22 N.C. App. 476 ( 1974 )

206 S.E.2d 792 (1974) 22 N.C. App. 476

Mary Elizabeth BROWNE, Petitioner,
v.
CATAWBA COUNTY DEPARTMENT OF SOCIAL SERVICES et al., Respondents.
In the Matter of the CUSTODY OF Angela Ruth CHURCH, age seven, and Earl Clifford Church, age ten, minors.

No. 7425DC446.

Court of Appeals of North Carolina.

July 17, 1974.

Forrest A. Ferrell and Jeffrey T. Mackie, Hickory, for petitioner appellee.

Corne, Warlick & Pitts, by Thomas W. Warlick, Newton, for respondent appellants.

BRITT, Judge.

While respondents assign numerous errors, we find it necessary only to consider respondents' third assignment for the determination of this appeal. The third assignment is to the failure of the court to direct a verdict in respondents' favor. Since the case was tried without a jury, with the court the finder of the facts, a motion for directed verdict was improper; nevertheless, we shall treat respondents' motion as a motion for an involuntary dismissal under G.S. § 1A-1, Rule 41(b) in order to pass on the merits of the questions sought to be raised. Neff v. Coach Co., 16 N.C.App. 466, 192 S.E.2d 587 (1972).

A motion under Rule 41(b) raises the question of whether any findings of fact could be made from the evidence which would support a recovery. Pegram-West, Inc. v. Homes, Inc., 12 N.C. App. 519, 184 S.E.2d 65 (1971). A review of the evidence reveals no facts under which petitioner would be entitled to an award of custody or other relief.

The evidence tended to show: On 19 November 1971, after an adjudication by the district court that the children were neglected, they were placed in the custody of respondent Department of Social Services. On that date, a representative of the department placed the children with petitioner under the Foster Home Program until procedures could be worked out to qualify the children for adoption. On 10 October 1972, the mother of the children executed a consent for them to be adopted. On 29 May 1973, an order finding willful abandonment by, and terminating the parental rights of, the father was entered. On 28 August 1973, representatives of respondent Department of Social Services removed the children from petitioner's home to another facility.

G.S. § 7A-288 provides for the custody of, and the termination of parental rights in, neglected children. The statute contains the following provision: "In such cases, the court shall place the child by written order in the custody of the county department of social services or a licensed child-placing agency, and such custodian shall have the right to make such placement plans for the child as it finds to be in his best interest. Such county department of social services or licensed child-placing agency shall further have the authority to consent to the adoption of the child, to its marriage, to its enlistment in the armed forces of the United States, and to surgical and other medical treatment of the child." (Emphasis added.)

We hold that petitioner had no standing to have the court determine the custody, temporary or permanent, of the children in question.

We then come to the consideration of the treatment by the court of the proceeding as a "Motion for review in Juvenile Case 71 J 123." This would seem to say that there was a motion in the cause to review a former case involving the children. We do not know, because the motion does not appear in the record, and the record does not show the disposition in the former case. Assuming this to be a motion in the cause, and that cause to be the action to terminate parental rights under G.S. § 7A-288, we find the motion to be improper. Under G.S. § 1A-1, Rule 60, a party or his legal representative may seek relief from a final judgment. Petitioner was not a party, and is not the legal representative of a party, in the former cause.

For the reasons stated, the judgment appealed from is

Reversed.

MORRIS and BALEY, JJ., concur.