IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-694

Filed 06 June 2023

Henderson County, No. 20 JT 172

IN THE MATTER OF: A.R.B.

Appeal by Respondent-Father from Order filed 6 June 2022 by Judge Emily 

Cowan in Henderson County District Court. Heard in the Court of Appeals 26 April 

2023.

Vitrano Law Offices, PLLC, by Sean P. Vitrano, for Respondent-Appellant

Father.

Emily Sutton Dezio, for Petitioner-Appellee Mother.

STADING, Judge.

Respondent-Father (“Father”) appeals from the trial court’s Amended Order 

terminating his parental rights to his child based on willful abandonment and 

neglect. Father argues (1) that the trial court abused its discretion in granting a Rule 

60(a) motion to amend the Original Order terminating his parental rights and (2) in 

the alternative, that there is no clear, cogent, and convincing evidence to support the 

trial court’s findings that Father willfully abandoned his child. For the reasons set 

forth below, we vacate and remand the Order of the trial court with instructions 

consistent with this Opinion. 
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I. Background

“Adam,”1 born 23 April 2018, is the child of Petitioner-Mother, Miranda 

Burlseon (“Mother”), and Father, Brandon Ezequiel Johnson. At the time of Adam’s 

birth, Mother was seventeen years old, and Father was nineteen years old. The 

parties were never married. Since his birth, Adam resided exclusively with Mother. 

On 26 June 2018, Father initiated a custody action in Henderson County, 

requesting custody of Adam and child support. Mother counterclaimed for the same. 

In April 2019, the court awarded joint legal custody of Adam to both parties, with 

Adam living primarily with Mother, and Father receiving supervised visitation that 

would eventually progress to unsupervised visits. The court determined Father “had 

issues with [m]arijuana use” and ordered him to complete “a 12-panel hair follicle 

drug test by May 13, 2019 and to present the results of said test to [Mother]’s attorney 

of record.” 

In August 2018, when Adam was four months old, Mother began a relationship 

with Kemper Henderson. Throughout Adam’s early years, Henderson was very 

involved in Adam’s daily care. Mother and Henderson married on 10 October 2020 

and moved to South Carolina with Adam. 

In May 2019, Father attended three, two-hour-long, supervised visits with 

Adam at Mother’s home. According to Mother, Father, and Henderson, the visits 

1 Adam is a pseudonym to protect the identity of the minor child. See N.C. R. App. P. 42.
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went well, and all parties were cordial and friendly with one another. On May 17, 

2019, Father delivered a box of diapers and wipes to Mother and visited with Adam. 

After this visit, Father ceased communication with Mother and failed to attend other

scheduled visitations. On 3 June 2019, Mother filed a “Motion to Show Cause and a 

Motion to Modify Custody based upon [Father]’s failure to contact the minor child, 

nor to produce the court-ordered drug test results.” The matter was noticed for 

hearing but was never heard and removed from the district court’s calendar on 14 

May 2020. 

On 21 June 2019, Father contacted Mother, stating he completed his follicle 

drug test. Mother questioned his lack of contact and failure to attend visits. Father 

stated Mother’s attorney contacted him and told him that he could not visit Adam 

until he completed his drug test. Mother claims her attorney did not contact Father. 

Father admits this was the last time he attempted to contact Mother and that he has 

not seen Adam since May 2019. 

On 7 December 2020, Mother petitioned for termination of Father’s parental 

rights. After he was served, Father filed a pro-se answer on 5 February 2021 and an 

additional answer through appointed counsel on 24 March 2021. The district court 

appointed a Guardian ad Litem (“GAL”), but the court dismissed the first GAL for 

failure to complete services, thereby delaying the hearing. The court appointed 
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Christopher Reed to be Adam’s GAL. On 16 February 2022, with both parties 

present, the district court held a hearing on the petition.2

The court heard testimony from Father and Mother, as well as Andrea Straton, 

Adam’s maternal grandmother, and Cindy Frickel, Father’s family friend. The court 

also considered the GAL report, filed on 16 February 2022. The report detailed the 

GAL’s interactions with Mother, Father, and Adam, noting that while Father loves 

Adam, Father “admits and recognizes that since he has not seen [Adam] since May 

2019, he currently had no bond with his son, and his son would not recognize him as 

his father.” The GAL’s report concluded that it was in Adam’s best interest that

Father’s parental rights be terminated to allow for Adam’s adoption by Henderson. 

Ultimately, the court found that Father had abandoned and neglected Adam, and it 

was in Adam’s best interest that Father’s parental rights be terminated. The court 

entered the order terminating Father’s rights on 25 February 2022 and Father 

entered a notice of appeal on 28 February 2022.

On 27 May 2022, Mother filed a Rule 60(a) motion, requesting “the court to 

amend the February 25, 2022 Order terminating the parental rights to clearly state 

the standard of review for which she made her findings of fact relating to the grounds 

to terminate.” On 9 June 2022, the court held a hearing and determined that the 

2 A record of this proceeding, and another held on 9 June 2022, was made with an electronic 

recording device that subsequently malfunctioned. The assigned transcriptionist was unable to 

prepare a verbatim transcript, so the parties stipulated to the inclusion of summaries of the 

proceedings in narrative form. See N.C. R. App. P. 9(c)(1). 
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language of the Order could be “made clearer to ensure that the standard of review 

used by the court applies not only to the best interests but also that there were 

grounds to terminate [Father]’s parental rights.” Father’s counsel objected to the 

change, but ultimately, the court entered an Amended Order terminating Father’s 

parental rights. Father timely filed a notice of appeal from the Amended Order and 

Order granting the Rule 60(a) motion.

II. Jurisdiction 

This Court has jurisdiction over Father’s appeal from the Amended Order 

terminating his parental rights pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) and 7B1001(a)(7) (2023).

III. Analysis

Father presents two issues on appeal: (1) whether the trial court abused its 

discretion in granting the Rule 60(a) motion to make a substantive, rather than 

clerical, change to the Termination of Parent Rights (“TPR”) Order; and (2) if this 

Court finds the trial court did not abuse its discretion, whether there is clear, cogent, 

and convincing evidence to support the trial court’s determination that grounds

existed to terminate Father’s parental rights. We first examine whether the court 

properly granted the Rule 60(a) motion.

A. Comparison of the Orders

We pay due deference to the principle that parents have fundamental, 

substantive rights under the United States Constitution that are embodied in North 
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Carolina General Statutes and reinforced by precedential case law. In Santosky v. 

Kramer, the United States Supreme Court held that “[b]efore a State may sever 

completely and irrevocably the rights of parents in their natural child, due process 

requires that the State support its allegations by at least clear and convincing 

evidence.” 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982). The Juvenile Code 

in North Carolina “provides for a two-step process for the termination of parental 

rights—an adjudicatory stage and a dispositional stage.” In re K.N., 373 N.C. 274, 

277-78, 837 S.E.2d 861, 864-865 (2020) (citing N.C. Gen. Stat. §§ 7B-1109, -1110 

(2017)). During the first or adjudicatory stage, the petitioner bears the burden of 

proving by “clear, cogent, and convincing evidence” the existence of one or more 

grounds for termination pursuant to subsection 7B-1111(a) of the General Statutes 

of North Carolina. N.C. Gen. Stat. § 7B-1109(e), (f) (emphasis added). Next, if a trial 

court finds that a ground for termination exists, it proceeds to the second or

dispositional stage, at which it must “determine whether terminating the parent’s 

rights is in the juvenile’s best interest.” N.C. Gen. Stat. § 7B-1110(a).

In the trial court’s Original Order, the only recitation of a standard of proof 

was found in paragraph 26, in reference to the dispositional stage, which read: “[t]hat 

there is clear and convincing evidence that it is in the best interests of the minor child 

that the Father’s parental rights be terminated.” In considering Mother’s 60(a) 

motion, the trial court recognized the deficiency in granting the Order and ultimately 

determined “it is best practice to grant this Motion and be clear upon the standard 
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used at the hearing to terminate Respondent’s parental rights.” The amended portion 

reads as follows:

THAT FURTHER, that Petitioner[-Mother] has produced 

the following clear, convincing and cogent evidence to 

support termination of the parental rights and that it is in 

the child’s best interest to do so; 

. . . .

24. Based on the foregoing, the Petitioner[-Mother] has 

established grounds for termination of the parental rights 

of the Respondent[-Father] by clear, cogent, and convincing 

evidence. That Respondent[-Father], as a natural parent of 

the juvenile, has willfully abandoned the juvenile for at 

least six (6) consecutive months immediately preceding the 

filing of this Petition for Termination of Parental Rights, 

pursuant to the provisions of N.C. Gen. Stat. § 7B1111(a)(7). 

25. Based upon the foregoing, the Petitioner[-Mother] has 

established grounds for termination of the parental rights

of the Respondent[-Father] by clear, cogent, and convincing 

evidence. That Respondent[-Father], as a natural parent of 

the juvenile, has neglected, pursuant to the provisions of 

N.C. Gen. Stat. § 7B-1111(a)(1) by: 

a. Abandoning the juvenile,

b. Failing to provide the proper care, supervision or 

discipline for the juvenile, and

c. Showing a lack of parental concern for the

juvenile. 

26. Based upon the totality of the evidence and by the clear, 

cogent and convincing standard of law, termination of the 

Respondent[-Father]’s parental rights is in the best 

interest and welfare of the juvenile.
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A comparison of the two Orders reveals, inter alia, that the modifications were an 

intentional addition to include the constitutionally permissible standard of proof.

B. Substantive Versus Clerical Changes

This Court reviews a trial court’s decision to amend an order after a Rule 60(a) 

motion for abuse of discretion. In re Estate of Meetze, 272 N.C. App. 475, 479, 847 

S.E.2d 220, 224 (2020). Rule 60(a) of North Carolina’s Rules of Civil Procedure states: 

Clerical mistakes in judgments, orders or other parts of the 

record and errors therein arising from oversight or 

omission may be corrected by the judge at any time on his 

own initiative or on the motion of any party and after such 

notice, if any, as the judge order. During the pendency of 

an appeal, such mistakes may be so corrected before the 

appeal is docketed in the appellate division, and thereafter 

while the appeal is pending may be so corrected with leave 

of the appellate division. 

N.C.G.S. § 1A-1, Rule 60(a) (2022). “Clerical mistakes” are those that do not alter the 

court’s reasoning or determination in ruling on an order. In re J.K.P., 238 N.C. App. 

334, 343, 767 S.E.2d 119, 124 (2014). “While Rule 60 allows the trial court to correct 

clerical mistakes in its order, it does not grant the trial court the authority to make 

substantive modifications to an entered judgment.” In re C.N.C.B., 197 N.C. App. 

553, 556, 678 S.E.2d 240, 242 (2009) (citations omitted). Thus, a trial court abuses 

its discretion if the correction “alters the effect of the original order.” In re Meetze, 

272 N.C. App. at 479, 847 S.E.2d at 224. We are now tasked with determining 

whether the trial court’s initial omission and subsequent addition of the correct
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standard was a clerical mistake or a substantive modification constituting an abuse 

of discretion. 

The existing body of case law contemplating whether a trial court is divested 

of jurisdiction pursuant to Rule 60(a) does not speak directly to the primary issue in 

this case. Available precedent considering whether a trial court exceeded the bounds 

of a clerical mistake and trod onto the territory of a substantive modification has 

considered alterations in findings of fact that change the result of an order. See, e.g., 

In re B.B., 381 N.C. 343, 873 S.E.2d 589 (2022). Father cites several cases in support 

of his argument in which granting a Rule 60(a) motion to amend an order was found 

to be a substantive alteration. In re B.L.H., 376 N.C. 118, 852 S.E.2d 91 (2020); In re 

M.R.F., 378 N.C. 638, 862 S.E.2d 758 (2021); Hinson v. Hinson, 78 N.C. App. 613, 337 

S.E.2d 663 (1985); In re C.N.C.B., 197 N.C. App. 553, 678 S.E.2d 240 (2009); In re 

J.C., 380 N.C. 738, 869 S.E.2d 682 (2022). However, in these cases, our State 

Supreme Court addressed whether excluding the standard of proof from the written 

order is reversible error—distinguished from our present case which considers

whether the addition of the standard of proof is a substantive modification under a 

Rule 60(a) amendment. 

In one such case, the Court held that “a trial court does not reversibly err by 

failing to explicitly state the statutorily-mandated standard of proof in the written 

termination order if . . . the trial court explicitly states the proper standard of proof 

in open court at the termination hearing.” In re B.L.H. 376 N.C. at 120–21, 852 
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S.E.2d at 95 (2020). In another matter, the Court considered a scenario in which the 

trial court did not make an announcement either in its written order or in open court 

about the standard of proof that it applied to make findings of fact. In re M.R.F., 378 

N.C. at 643, 862 S.E.2d at 762 (2021). The Court held “[i]n light of not only the failure 

of the trial court to announce the standard of proof which it was applying to its 

findings of fact but also due to petitioner’s failure to present sufficient evidence to 

support any of the alleged grounds for the termination of the parental rights of 

respondent-father, we are compelled to simply, without remand, reverse the trial 

court’s order.” Id. at 642–643, 862 S.E.2d 758, 762–763 (emphasis original). More 

recently, the Court determined that employing the wrong standard of proof requires

a reviewing court to set aside a termination of parental rights order. In re J.C., 380 

N.C. at 744, 689 S.E.2d at 687 (2022). Though these cases address the insufficiency 

of orders and are not a factual analysis of a modification under Rule 60(a), they speak 

directly to the importance of the trial court memorializing its employment of the 

correct standard of proof during the proceedings in this context.

While case law highlights the significance of substantiating the use of the 

correct standard of proof, well-founded principles of statutory construction provide 

additional guidance. “The principal goal of statutory construction is to accomplish 

the legislative intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 

(2001) (internal citation omitted). “It is well settled that where the language of a 

statute is clear and unambiguous, there is no room for judicial construction and the 
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courts must construe the statute using its plain meaning.” In re Estate of Lunsford, 

359 N.C. 382, 391–92, 610 S.E.2d 366, 372 (2005) (internal citation omitted). “If the 

statutory language is clear and unambiguous, the court eschews statutory 

construction in favor of giving the words their plain and definite meaning.” State v. 

Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (citation omitted). Black’s Law 

Dictionary defines a “clerical error” as “an error resulting from a minor mistake or 

inadvertence. . . .” Clerical error, Black’s Law Dictionary (7th ed. 2002). Such an 

error as the omission of the proper standard of proof can hardly fall within the realm 

of a clerical error or mistake. 

In the matter presently before our Court, due to a malfunction of the electronic 

recording device, we are without an original transcript from the proceedings and left 

only with a “narrative of the proceedings,” the Original Order, and the Amended 

Order. Thus, it is impossible for this Court to determine whether the trial court 

announced the correct standard of proof in open court. The timeline and sequence of 

events in this matter is also noteworthy. The adjudicatory hearing on termination 

was held on 16 February 2022 and the Order of Termination was entered on 25 

February 2022. On 28 February 2022, Father filed his notice of appeal. It was not 

until 27 May 2022 that Mother filed a Rule 60(a) motion that highlighted the 

deficiencies in the Original Order. Then, on 9 June 2022, the trial court granted 

Mother’s motion pursuant to Rule 60(a) and entered the Amended Order. 
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In the Original Order, a single reference of an imprecise, albeit acceptable 

articulation of the standard of proof is present in the findings of fact, which states

there is “clear and convincing evidence that it is in the best interests of the minor 

child that the Father’s parental rights be terminated.” See In re Montgomery, 311 

N.C. 101, 109, 316 S.E.2d 246, 252 (1984) (“It is well established that ‘clear and 

convincing’ and ‘clear, cogent, and convincing’ describe the same evidentiary 

standard”). Still, a comparison of the Original and Amended Orders shows that the 

Original Order is deficient in that “[t]he burden in such proceedings shall be upon the 

petitioner or movant and all findings of fact shall be based on clear, cogent, and 

convincing evidence.” N.C. Gen. Stat. § 7B-1109 (emphasis added). Here, in contrast 

to the Amended Order, the Original Order fails to assert the proper standard of proof 

for any findings beyond the “best interests of the minor child.” Moreover, an 

application of available Rule 60(a) case law invites us to determine whether the 

additional language “alters the effect of the original order.” Buncombe Cnty ex rel. 

Andres v. Newburn, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993). The Original 

Order has no legal effect, while the Amended Order is legally sufficient to terminate 

parental rights. Absent proper employment of the appropriate standard of proof by 

the trial court in either the written Order or the record of the proceedings, any 

subsequent addition including this standard of proof was substantive and an abuse 

of discretion. 
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In addition to challenging the propriety of the Rule 60(a) motion, Father

challenges the trial court’s factual findings, as well as its conclusion that his 

abandonment of Adam was willful. We do not reach the merits of these particular

arguments because we conclude the trial court’s Order is invalid. 

IV. Conclusion

It is not lost on this Court that the differences between the two Orders are 

technical. Nonetheless, considering timeless legal principles and the fundamental 

rights at stake, we find the modifications were substantive rather than clerical in 

nature and divested the trial court of jurisdiction to make such changes pursuant to 

Rule 60(a). Accordingly, it was an abuse of discretion to grant Mother’s Rule 60(a) 

motion to amend the Original Order terminating Father’s rights. Therefore, we 

vacate the trial court’s Amended Order terminating Father’s parental rights and 

remand to apply the proper standard of proof. On remand, the trial court may

consider additional evidence or hear further arguments if necessary.

VACATED AND REMANDED.

Judges HAMPSON and CARPENTER concur.