In re: A.J., J.C. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-522
Filed 18 July 2023
Pitt County, Nos. 21 JA 192–94
IN THE MATTER OF: A.J., J.C., J.C.
Appeal by respondent-mother from order entered 22 March 2022 by Judge Lee
Teague in Pitt County District Court. Heard in the Court of Appeals 13 July 2023.
The Graham Nuckolls Conner Law Firm, PLLC, by Jon G. Nuckolls, for
petitioner-appellee Pitt County Department of Social Services.
North Carolina Administrative Office of the Courts, by GAL Appellate Counsel
Matthew D. Wunsche and Brittany T. McKinney, for guardian ad litem.
Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Jacky L.
Brammer, for respondent-appellant mother.
TYSON, Judge.
Respondent is the mother of four-year-old A.J. (“Amanda”), thirteen-year-old
J.C. (“Jade”), and fifteen-year-old J.C. (“Juliet”). See N.C. R. App. P. 42 (pseudonyms
are used throughout the opinion to protect the identity of the juveniles). She appeals
from an order entered 22 March 2022, adjudicating Amanda as a neglected juvenile,
and Jade and Juliet as neglected and dependent juveniles, and placing the children
into the custody of the Pitt County Department of Social Services (“DSS”).
Respondent argues, and we agree, the inadmissible evidence and the trial court’s
findings thereon are insufficient to support its conclusions and adjudications. We
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Opinion of the Court
reverse and remand.
I. Background
In June 2021, DSS received a report alleging neglect and improper discipline
based on an incident between Respondent and Jade. DSS created a safety plan with
Respondent, in which she agreed to refrain from physical discipline and to begin to
receive mental health services for herself and the children. Respondent also agreed
to allow Jade and Juliet to continue residing with their maternal great aunt, with
whom they had resided since 2018.
In November 2021, the Washington County Department of Social Services
(”WCDSS”) sent DSS a report of another altercation between Respondent and Jade.
On 21 December 2021, WCDSS responded to a report alleging Respondent had locked
Jade out of the house. WCDSS, DSS, and Respondent were unable to identify a
temporary safety placement for Jade.
On 22 December 2021, DSS filed juvenile petitions alleging Amanda was a
neglected juvenile and alleging Jade and Juliet were neglected and dependent
juveniles, based upon these three reported incidents. DSS also obtained nonsecure
custody of Jade, and she was placed into the care of her maternal great aunt. Juliet
remained in the voluntary care of her maternal great aunt, and Amanda, the
youngest daughter, has remained in Respondent’s care.
On 8 February 2022, DSS filed a notice it intended to present hearsay
statements at the adjudication hearing purportedly made by Jade and Juliet. DSS
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asserted their statements, made to DSS and WCDSS social workers, fell under the
residual hearsay exception of N.C. Gen. Stat. § 8C-1, Rule 803(24) (2021).
The petitions were heard on 17 February 2022. During the adjudicatory phase,
DSS presented testimony from a DSS social worker and a WCDSS social worker, each
of whom testified to statements purportedly made to them by Jade. Respondent’s
counsel objected before, during, and after the social workers introduced the hearsay
statements, but the court overruled the objections each time and allowed the
statements to be admitted into evidence.
On 22 March 2022, the trial court entered an order adjudicating all three
children as neglected juveniles and adjudicating both Jade and Juliet as dependent
juveniles. The court later determined the children’s best interests demanded for them
to be placed into DSS’ custody. Respondent timely appealed.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(3)
(2021).
III. Issues
Respondent argues the trial court erred by: (1) admitting hearsay statements
purportedly made by Jade, (2) adjudicating all three children as neglected, (3)
adjudicating Jade and Juliet to be dependent, and (4) concluding the children’s best
interests demanded for all of them to be removed from their parent and family and
placed into DSS custody.
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IV. Standard of Review
This Court reviews an adjudication “to determine whether the trial court’s
findings of fact are supported by clear and convincing competent evidence and
whether the court’s findings, in turn, support its conclusions of law.” In re J.R., 243
N.C. App. 309, 312, 778 S.E.2d 441, 443 (2015) (citation and internal quotation marks
omitted). “When reviewing findings of fact in a juvenile order, the reviewing court
‘simply disregards information contained in findings of fact that lack sufficient
evidentiary support’ and examines whether the remaining findings support the trial
court’s determination.” In re A.J.L.H., 384 N.C. 45, 52, 884 S.E.2d 687, 693 (2023)
(quoting In re A.C., 378 N.C. 377, 394, 861 S.E.2d 858 (2021)). The trial court’s
conclusions of law are reviewed de novo. Id.V. Analysis
A. Findings of Fact
The trial court’s order contains eighteen adjudicatory findings of fact, eight of
which Respondent challenges in whole or in part:
5. The Department received a report relating to the
Juveniles beginning on June 6, 2021, alleging neglect and
improper discipline on the part of the Respondent Mother.
The specific allegations were that the Juvenile, [Jade], was
observed limping by another family member and later
disclosed once Respondent Mother was gone that she had
been in a physical altercation with the Respondent Mother.
The Juvenile did not want to get out of the car and the
Respondent Mother began twisting her leg trying to
remove her from the car. The Juvenile locked herself in the
car to get away from the Respondent Mother. The
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Respondent Mother then took a shovel and broke the
window. Thereafter, the Respondent Mother beat the
Juvenile with a belt buckle in the head and all over her
body. She also choked and threatened to kill the Juvenile.
The Respondent Mother admitted to the Department
Social Worker that the altercation occurred. The
Respondent Mother admitted she broke (sic) the car
window in today’s testimony.
...
7. Another report was received on November 16, 2021 that
the Respondent Mother had choke slammed the Juvenile,
[Jade], and threw her out of the car. This incident was
reportedly witnessed by a family member over a video call.
During the hearing . . . Respondent Mother yelled out, “I
did it.” when the choke slam was testified to.
8. On December 21, 2021, the Juvenile, [Jade], had agreed
to go with Respondent Mother thinking she would be able
to get her Christmas gifts and return to her [great] aunt’s
home, where she had been living for several years. Instead,
the Juvenile discovered that Respondent Mother planned
to enroll her in school in Washington County, which upset
the Juvenile.
9. On December 21, 2021, there was another report made
that the Respondent Mother locked the Juvenile outside in
the cold weather because she refused to babysit her two-
year-old sister. When [the WCDSS social worker] arrived
at the home, he discovered that law enforcement had to
handcuff Respondent Mother just to get her to calm down.
[He] observed Respondent Mother was “cussing and
fussing” and demanding that the child, [Jade] come inside.
[The social worker] confirmed that [Amanda], the 2-year-
old child, was present and witnessed Respondent Mother’s
outbursts and being handcuffed. This was upsetting to the
2-year-old. Respondent Mother’s behavior was unstable.
10. Neighbors, who witnessed the child’s distress had let
the Juvenile, [Jade], in their home to wait for assistance,
as they were concerned about her.
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11. The Juvenile, [Jade], is very afraid of Respondent
Mother and does not want to be in her care. The Juvenile
has refused to get out of the Social Worker’s car, fearful
that the Respondent Mother would kill her. The Juvenile,
[Jade], confirmed there had been prior physical
altercations with Respondent Mother.
12. The Respondent Mother suffers from mental and
psychological illnesses as a result of traumatic experiences
throughout her life, including witnessing the murder of the
Juveniles’ father. In 2016, Respondent Mother was the
driver of a vehicle involved in an accident where two others
were killed. The Respondent Mother suffered injuries that
required hospitalization. The Respondent Mother has
denied mental health diagnosis. The Respondent Mother
has presented as extremely hostile and aggressive
throughout the hearing of this matter as evidenced by
numerous outbursts in the Courtroom and aggressive
comments directed toward other participants in this
proceeding.
13. The Respondent Mother also has a history of drug use,
specifically marijuana.
Respondent argues the trial court, over multiple objections, erroneously
admitted hearsay statements purportedly made by Jade. We agree.
DSS’s notice of its intent to offer hearsay statements specifically indicated the
proffered statements purportedly fell under the residual exception of N.C. Gen. Stat.
§ 8C-1, Rule 803(24)(2021). However, at the hearing, DSS changed its position from
that basis asserted in the notice and appeared to argue Jade’s statements were
admissible because the social worker had
direct knowledge. He had this conversation with the
juvenile and he, as he testified, had a conversation with the
Respondent-Mother, both of which are parties to the case,
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and anything that the mom said, I would argue, is an
admission of the Respondent-Mother and the juvenile as
well. Her statement should be allowed in, as she is a party
to the case as well.
Over objections, the trial court ruled the statements were admissible because “the
juvenile is a party to the action with the admission by the party as well.”
The trial court’s determination and ruling were erroneous under either of the
possible hearsay exceptions noticed or presented by DSS at the hearing. In order to
admit hearsay under the residual exception, the trial court must
determine whether (1) proper notice has been given; (2) the
hearsay statement is not specifically covered elsewhere; (3)
the statement possesses circumstantial guarantees of
trustworthiness; (4) the statement is material; (5) the
statement is more probative than any other evidence which
the proponent can procure through reasonable efforts; and
(6) the interest of justice will be best served by admission.
In re W.H., 261 N.C. App. 24, 27, 819 S.E.2d 617, 620 (2018) (citation omitted).
Such “careful consideration” must be reflected in the trial court’s findings. In
re F.S., 268 N.C. App. 34, 41, 835 S.E.2d 465, 470 (2019). As no such findings were
made, either during the hearing or in the order, Jade’s purported hearsay statements
were not properly admitted under this exception and should have been excluded upon
objection. Id. at 42, 835 S.E.2d at 470.
A statement made by a party opponent is
admissible as an exception to the hearsay rule if it is
offered against a party and it is (A) his own statement, in
either his individual or a representative capacity, or (B) a
statement of which he has manifested his adoption or belief
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in its truth, or (C) a statement by a person authorized by
him to make a statement concerning the subject, or (D) a
statement by his agent or servant concerning a matter
within the scope of his agency or employment, made during
the existence of the relationship or (E) a statement by a
coconspirator of such party during the course and in
furtherance of the conspiracy.
N.C. Gen. Stat. § 8C-1, Rule 801(d) (2021).
In abuse, neglect, and dependency actions, the parents are party opponents to
the petitioner-complainant. In re J.M., 255 N.C. App. 483, 489, 804 S.E.2d 830, 834
(2017). The trial court erred in concluding Jade, a juvenile, was a “party to the case,”
and, as her statements do not fall under any of the exceptions outlined in Rule 801(d),
her purported statements were not admissible. Respondent’s objections should have
been sustained.
Neither DSS nor the guardian ad litem contest or argue Respondent’s assertion
of Jade’s purported statements constituted inadmissible hearsay. Instead, they
contend Respondent failed to establish the inadmissible hearsay statements were
prejudicial and argue the findings were supported by other properly admitted clear
and convincing evidence. Respondent counters and contends the prejudice to her is
“readily apparent,” as the trial court’s conclusions are unsupported by a factual basis,
absent the inadmissible hearsay evidence. In re F.S., 268 N.C. App. at 41, 835 S.E.2d
at 470. We agree.
At the hearing, the DSS social worker acknowledged DSS was still
investigating the allegations in all three reports, and the majority of the evidence to
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support the unsubstantiated allegations was based upon Jade’s purported
statements. We disregard the challenged findings, or portions thereof, which rely
upon Jade’s inadmissible hearsay statements or those which are otherwise
unsupported. In re A.J.L.H., 384 N.C. at 52, 884 S.E.2d at 693. This includes the
entirety of Finding of Fact 13, as it relies solely upon inadmissible hearsay, and the
entirety of Finding of Fact 7, as the only portion not solely based on Jade’s
inadmissible hearsay statements was apparently a misapprehension by the court.
The order identifies 16 November 2021 as the date the report “was received,”
by DSS, which tracks the language of the petitions. The testimony at hearing
indicates WCDSS received the report 9 November 2021. Respondent asserts this
discrepancy supports her assertion and argument that the trial court’s findings were
merely improper recitations of allegations in the petitions and do not reflect an
adjudication of the evidence and findings of facts. However, it appears: (1) the report
was first received by WCDSS, which then forwarded the report to DSS; and, (2) only
one event allegedly occurred in November 2021.
Moreover, no properly admitted evidence supports any allegations from
November 2021. When the court sought clarification on what the allegation of “choke-
slammed” meant, Respondent objected and the transcript shows she stated she
“didn’t do it[,]” and not that she did. The properly admitted evidence, including
Respondent’s testimony and the social worker’s testimony concerning their
knowledge of the reports, supports portions of Findings of Fact 5, 8, 9, 10, 11, and 12.
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Finding of Fact 5 has sufficient evidence to support an argument had occurred
between Jade and Respondent on or about 6 June 2021. Jade purportedly refused to
her mother’s instruction to get out of the car, Respondent allegedly slapped and hit
Jade with a belt, Jade locked herself in the car, and Respondent broke the vent
window to unlock the car and to gain access. The remainder of Finding of Fact 5 is
unsupported by properly admitted evidence.
The alleged 21 December 2021 incident, as described in Findings of Fact 8, 9,
10, and 11, finding another argument occurred between Jade and Respondent is
supported by sufficient evidence. Jade was allegedly upset by Respondent’s intention
to enroll her in a school located in Washington County. Neighbors allegedly saw Jade
standing outside and invited her to come into and wait inside their house.
Police officers allegedly told a WCDSS social worker they had handcuffed
Respondent prior to his arrival. Respondent began “arguing and cussing” when the
social worker called the child’s maternal great aunt. The social worker allegedly
believed Jade was “afraid” because, as had occurred with Respondent earlier, Jade
remained inside the DSS vehicle, recalcitrant and disobeying instructions, and had
refused Respondent’s instructions for her to exit the DSS vehicle and go inside of
Respondent’s home. Amanda was two years old and was allegedly present during the
incident. The remainder of these findings are unsupported by properly admitted
evidence.
Sufficient evidence supports portions of Finding of Fact 12, finding Respondent
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had experienced several severe traumatic events in her life, had denied diagnoses of
mental illness, and had outbursts during the hearing. However, no clear and
convincing evidence and no expert medical testimony were presented to show or prove
Respondent “suffers from mental and psychological illnesses as a result of traumatic
experiences[.]”
“Without the improperly admitted hearsay evidence, [and with the lack of any
other clear and convincing evidence,] the record does not support the trial court’s
conclusion[s].” In re F.S., 268 N.C. App. at 41, 835 S.E.2d at 470. Respondent has
established she was prejudiced by the trial court’s erroneous admission of hearsay
and other unsupported testimony. Id.
B. Neglect
The trial court concluded all three children were neglected juveniles as defined
in N.C. Gen. Stat. § 7B-101(15), as they did “not receive proper care, supervision or
discipline from [their] parent, guardian, custodian or caretaker and [they] live[d] in
an environment injurious to their welfare.” “In determining whether a juvenile is a
neglected juvenile, it is relevant whether that juvenile . . . lives in a home where
another juvenile has been subjected to abuse or neglect by an adult who regularly
lives in the home.” N.C. Gen. Stat. § 7B-101(15) (2021) (emphasis supplied).
The unsupported findings of fact, as discussed above, are insufficient to
support an adjudication that Jade was neglected. An argument between a parent
and child or use of corporal punishment, with no evidence of any resulting marks,
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bruising, or other injury, does not constitute neglect. In re Thompson, 64 N.C. App.
95, 98-99, 306 S.E.2d 792, 794 (1983) (concluding that a child who is repeatedly
“disciplined so severely that bruises and internal abrasions [can be] a ‘neglected’
juvenile”); See State v. Varner, 252 N.C. App. 226, 228, 796 S.E.2d 834, 836 (2017)
(“[O]ur Supreme Court has recognized that, as a general rule, a parent . . . is not
criminally liable for inflicting physical injury on a child in the course of lawful
administering corporal punishment.” (citation omitted)); In re C.B., 180 N.C. App.
221, 224, 636 S.E.2d 336, 338 (2006) (holding the respondent’s punishment by
“spanking [or] whipping that resulted in a bruise” and not “serious injury” did not
constitute abuse under N.C. Gen. Stat. § 7B-101(1)).
Similarly, the supported findings regarding the June and December 2021
incidents are insufficient to establish Respondent’s improper care or supervision of
her children. Respondent testified that she felt it was necessary to break the car vent
window after Jade had locked herself inside the vehicle and refused Respondent’s
instructions to open the door or exit the vehicle. Respondent testified she only used
“light force” to break a vent window only to unlock the car.
Respondent’s intention to enroll Jade in school located in Washington County,
where Respondent lived, allegedly precipitated the December incident. The place of
the family’s residence and choice of their children’s school is a parent’s prerogative
under parental care, custody, and control. Testimony at the hearing shows
Respondent believed a school transfer was necessary, due to Jade’s aggressive
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behavior at her current Greene County school. No record evidence supports a finding
Respondent had locked Jade out of the home. Instead, a recalcitrant and
undisciplined pattern of behavior is shown by Jade locking herself inside of and
refusing to leave a car when she does not get her way, or disagrees and argues with
Respondent.
Moreover, the evidence establishes that during all relevant periods and with
Respondent’s permission, Jade had been residing with her grandmother and later
with her maternal great aunt. Where a child is residing in a voluntary kinship
arrangement prior to any DSS involvement, and no evidence or adjudicatory findings
support a conclusion the child has been subjected to harm in the parent’s primary
care, custody, and control, “the findings and evidence do not support a conclusion” of
the child “living in an environment injurious to her welfare and not receiving proper
care and supervision.” In re B.P., 257 N.C. App. 424, 434, 809 S.E.2d 914, 920 (2018).
A child or DSS personnel disagreeing with or preferring a different path to a parent’s
prerogatives and decisions for their child is not neglect. With no supporting evidence,
the trial court erred in adjudicating Jade as a neglected juvenile. Id. at 434, 809
S.E.2d at 920.
The trial court’s evidentiary findings center around the incidents between Jade
and Respondent. The court made no evidentiary findings whatsoever concerning
Juliet, who lived with her great aunt, and only one relevant finding concerning two-
year-old Amanda. Though Amanda’s presence while Respondent was “arguing and
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cussing” speaks “to the quality of [her] home environment[,]” that single finding does
not support a conclusion and adjudication Amanda was neglected. In re J.C.M.J.C.,
268 N.C. App. 47, 58, 834 S.E.2d 670, 678 (2019).
As the evidence fails to establish Jade was a neglected juvenile, the trial court
also erred in, ipso facto, adjudicating Juliet, who was living at her maternal great
aunt’s home, and two-year-old Amanda as neglected juveniles. Cf. In re G.C., 384
N.C. 62, 68, 884 S.E.2d 658, 662 (2023) (evidentiary findings establishing neglect of
one child residing in the home may support an ultimate finding another child was
neglected).
The trial court also made a finding regarding Amanda’s “agitation” during the
hearing and Respondent’s unwillingness to remove Amanda from the proceedings.
The purpose of an adjudicatory hearing is to determine only “the existence or
nonexistence of any of the conditions alleged in a petition.” N.C. Gen. Stat. § 7B-802
(2021). The trial court failed to make findings to show this interaction was relevant
or admissible in any manner as adjudicatory evidence concerning the allegations in
the petition. In re V.B., 239 N.C. App. 340, 344, 768 S.E.2d 867, 870 (2015) (providing
that post-petition evidence may be considered where it is relevant to “a fixed and
ongoing circumstance” as alleged in the petition).
C. Dependency
The trial court concluded Jade and Juliet were “dependent” juveniles as their
“parent, guardian or custodian is unable to provide for [their] care or supervision and
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lacks an appropriate alternative child care arrangement.” N.C. Gen. Stat. § 7B-101(9)
(2021).
“In determining whether a juvenile is dependent, ‘the trial court must address
both (1) the parent’s ability to provide care or supervision, and (2) the availability to
the parent of alternative child care arrangements.’” In re B.M., 183 N.C. App. 84, 90,
643 S.E.2d 644, 648 (2007) (quoting In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d
403, 406 (2005)). “Findings of fact addressing both prongs must be made before a
juvenile may be adjudicated as dependent, and the court’s failure to make these
findings will result in reversal of the court.” Id. (emphasis supplied).
The trial court failed to make any evidentiary findings or conclusions regarding
Respondent’s ability to care for or to supervise Jade and Juliet. The supported
findings, as detailed above, address Respondent’s arguments with Jade; no findings
or conclusions show Respondent’s behavior rendered her “wholly unable to parent”
Jade or Juliet. In re H.L., 256 N.C. App. 450, 458, 807 S.E.2d 685, 690 (2017).
While the trial court referenced Respondent’s purported mental state, as
concluded above, no evidence supports a finding that Respondent suffered from
“mental and psychological illnesses,” let alone “serious psychological problems” that
impaired her ability to care for and supervise her children. See In re T.B., 203 N.C.
App. 497, 503, 692 S.E.2d 182, 186 (2010) (concluding that the mother’s “suicidal
ideation and tendencies,” “chronic state of stimulus overload,” and diagnoses of
“Chronic Post Traumatic Stress Disorder, Major Personality Disorder, Major
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Depressive Disorder, and Dependent Personality Disorder” impaired her ability to
parent her children).
We also reject DSS’ and the guardian ad litem’s assertion Respondent is unable
to care for Jade and Juliet without constant assistance. The trial court failed to make
any findings, other than her witnessing the murder of her older girl’s father and being
hospitalized from an automobile accident, regarding Respondent’s reasons and
permissions for Jade’s and Juliet’s voluntary placement with their grandmother and
later their maternal great aunt for several years prior to the juvenile petitions.
The evidence also does not support a finding such a placement was necessary
due to Respondent’s unwillingness or inability to parent. Testimony shows Jade and
Juliet originally went to live with their grandmother while Respondent recovered
from injuries suffered from her car accident. After their grandmother’s death and
with Respondent’s permissions, Jade and Juliet voluntarily went to live with their
grandmother’s sister: their maternal great aunt. Respondent testified she was
willing and able to care for Jade and Juliet and to continue to parent Amanda. No
evidence was presented to the contrary.
As the trial court failed to make sufficient findings, we conclude the trial court
erred in adjudicating Jade and Juliet as dependent juveniles. See In re J.A.G., 172
N.C. App. 708, 716, 617 S.E.2d 325, 332 (2005). That adjudication is reversed.
VI. Conclusion
The trial court erred in admitting the objected-to hearsay statements
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purportedly made by Jade to WCDSS and DSS social workers. Respondent was
prejudiced by the court’s error. The findings of fact, unsupported by properly
admitted evidence, are insufficient to support the trial court’s adjudications either
that Jade, Juliet, and Amanda were neglected, or that Jade and Juliet were
dependent. The 22 March 2022 order is reversed and this cause is remanded for
dismissal. See In re F.S., 268 N.C. App. at 47, 835 S.E.2d at 473. In light of our
holding, we need not address Respondent’s arguments concerning disposition. It is
so ordered.
REVERSED AND REMANDED.
Judges Flood and Riggs concur.
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