IN THE SUPREME COURT OF NORTH CAROLINA
No. 194A23
Filed 22 March 2024
IN THE MATTER OF: A.H.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 289 N.C. App. 501 (2023), reversing orders entered on 20 and
24 May 2022 by Judge Thomas B. Langan in District Court, Stokes County. Heard in
the Supreme Court on 20 February 2024.
Anné C. Wright for petitioner-appellant Stokes County Department of Social Services.
James N. Freeman Jr. for appellant Guardian ad Litem.
Mercedes O. Chut for respondent-appellee father.
PER CURIAM.
Justice RIGGS did not participate in the consideration or decision of this case.
As to the trial court’s adjudication of neglect, the decision of the Court of Appeals is
reversed for the reasons stated in the dissenting opinion.
As to the trial court’s adjudication of dependency, the remaining members of
the Court are equally divided, with three members voting to affirm and three
members voting to reverse the decision of the Court of Appeals. Accordingly, the
decision of the Court of Appeals as to dependency is left undisturbed and stands
without precedential value. See Batson v. Coastal Res. Comm’n, 385 N.C. 328 (2023)
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Opinion of the Court
(per curiam) (affirming by an equally divided vote a Court of Appeals decision without
precedential value). This matter is remanded to the Court of Appeals for further
remand to the trial court for proceedings not inconsistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
-2- Justice EARLS dissenting.
North Carolina’s general statutes set out seven criteria for determining that a
child is a neglected juvenile. N.C.G.S. § 7B-101(15) (2023). This Court’s cases
establish that there must be “clear, cogent, and convincing evidence” of neglect to
support an adjudication that a child is neglected. See In re K.N., 373 N.C. 274, 278
(2020). The criteria for determining neglect are intended by the General Assembly
“[t]o provide standards for the removal, when necessary, of juveniles from their homes
and for the return of juveniles to their homes consistent with preventing the
unnecessary or inappropriate separation of juveniles from their parents.” N.C.G.S.
§ 7B-100(4) (2023). But those criteria are not intended to empower trial courts to
punish a parent they consider uncooperative or to remove a child from a home based
on the court’s own views of good parenting.
Several of the trial court’s findings of fact in this case were not supported by
clear, cogent, and convincing evidence. The remaining factual findings centered on a
single incident and the interactions of the juvenile’s parent and her caregiver with
social workers. Those remaining findings do not support the adjudication that the
child in this case was neglected by her father. I would affirm the decision of the Court
of Appeals reversing the trial court’s adjudication order and resulting disposition
order.
I. Factual Background
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Earls, J., dissenting.
This is respondent-father’s appeal from an adjudication order dated 20 May
2022 and a disposition order dated 24 May 2022 adjudicating his daughter A.H.
(Aerin)1 neglected and dependent and placing Aerin in the custody of petitioner,
Stokes County Department of Social Services (DSS). Aerin was born on 12 April 2012
and was nine years old at the time of the 4 October 2021 incident that led to the
orders appealed here. Aerin’s biological mother relinquished her parental rights on
15 December 2021 and is not a party to this appeal.
The record indicates that on 27 May 2021, a temporary custody order giving
custody of Aerin to respondent-father was entered by the Forsyth County District
Court when Aerin was residing with her mother in Forsyth County. The findings
supporting that order detail unfit living conditions that Aerin was subjected to in her
mother’s home. The trial court on that date found
that with [respondent-father] the minor child has her own room, a quiet and safe living environment; that to provide the same for the minor child, [her father] rented and moved into a second apartment across the street from [his wife/Aerin’s stepmother] and his six other children; that the minor child’s home, hygiene, clothing are all suitable and safe and [DSS caseworker] has seen and has no concerns with the same; that the minor child is presently remote learning in third grade, has an IEP and is doing well; that [her father and stepmother] are aware of and taking care of the minor child’s medical and dental care and the minor child does not have any significant health issues.
1 A pseudonym used to protect the privacy and identity of the minor child and for ease
of reading. See N.C. R. App. P. 42(b).
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The Forsyth County order also provided that respondent-father, who was the
plaintiff in that case, “shall have legal and primary physical custody of the minor
child, pending review of this matter before the undersigned on December 15, 2021.”
At the time this order was entered, respondent-father was living in Mt. Airy, North
Carolina. However, before the Forsyth County court could review the temporary
custody order, DSS became involved with the family due to an incident on 4 October
2021.
On 4 October 2021, Aerin was living with her father, stepmother, and her
stepmother’s four other children in Stokes County and attending King Elementary
School. That day Aerin rode the school bus home with two of the other children in the
home, and all three of them were met at the bus stop by respondent-father driving a
truck with a work trailer attached. While still in the truck, respondent-father
received a telephone call from Aerin’s teacher, who mentioned that the family was
now all living together in their new house.2 When the call ended, respondent-father
2 This account is taken from the trial court’s findings of fact based on Aerin’s testimony. In Finding of Fact 38 the trial court states that it finds Aerin’s testimony credible and “adopts the events and chronology set out” in her testimony as the court’s findings. Respondent-father gave a different account of the telephone call and the conversation with his daughter in his testimony, but, as the majority in the Court of Appeals noted, the trial court’s findings appeared to credit respondent-father’s testimony at some points despite also making a finding that “[t]he court does not find [respondent-father] to be credible.” The challenge this creates for appellate review is why, as we recently explained, “the better practice always will be to make specific, express findings in the written order about what the trial court determined the facts to be, rather than referencing evidence in the record and stating that the referenced evidence is credible” or, as in this case, not credible. In re H.B., 384 N.C. 484, 490–91 (2023).
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“told [Aerin] he was tired of her telling other people their business. He stated to
[Aerin] that he was going to whoop her.”
At this point Aerin got out of the truck and started walking away. Respondent-
father told her to get back into the truck but she refused. He followed her in the truck
but could not keep up with her because he could not maneuver the truck in the
neighborhood’s cul-de-sacs. Respondent-father then got out of his truck, again
ordered Aerin to get in the truck, and started chasing her. Aerin began running and
darted into the road, where she was nearly hit by a dump truck that honked at her.
There was conflicting testimony about what respondent-father saw and why he
turned around and got back into his truck. The trial court’s uncontested finding was
that “[t]he black man turned and walked away before the child was directly in front
of the dump truck.”
A neighbor, also returning home from picking up children from school, was
directly behind the dump truck and saw Aerin run into the road. He followed Aerin
walking down the road for approximately 200–300 feet until he pulled off the road
into the parking lot of a business. He found that Aerin was “hysterical, crying and
screaming” and initially too upset to speak. Eventually when he calmed her down,
she said she was afraid of her father and that he would beat her. The neighbor called
law enforcement and waited with Aerin until they arrived.
It appears that the trial court credited respondent-father’s testimony in finding
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that he drove from the scene of the incident and took the other two children in the
truck to a convenience store. The trial court found that
there was a substantial risk to the juvenile of serious physical injury, when the father turned around, walked away, and left the child on a busy roadway on 10/4/2021. [Respondent-father] did not provide proper care of his child, when he left her running into a busy roadway . . . .
Aerin’s stepmother admitted in her testimony that she did not cooperate with
the DSS caseworker who came to the home the afternoon of 4 October 2021. The trial
court found that “[n]o respondent was able to make a proper plan for [Aerin] on
10/4/2021. Her father . . . left and did not return to the scene. [Her stepmother] did
not offer to make a plan for the child . . . .” Less than 24 hours after the incident, DSS
filed a juvenile petition alleging that Aerin was an abused, neglected, and dependent
juvenile.
II. Proceedings Below
The DSS petition was heard at the 23 February 2022 session of Stokes County
Juvenile Court at which time the trial court took evidence and heard arguments of
counsel for all parties. The trial court ultimately concluded that Aerin was neglected
and dependent and dismissed the allegation of abuse. Respondent-father appealed,
challenging several of the trial court’s findings as unsupported by the evidence and
inadequate to support the conclusion that Aerin was neglected or dependent. See In
re A.H., 289 N.C. App. 501, 502, 505 (2023).
Both the majority and the dissenting judges in the Court of Appeals agreed
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that the trial court’s Findings of Fact 33, 39 through 42, 44, and 45 are unsupported
by the evidence. Id. at 505, 511. They further agreed that the remaining findings of
fact are proper and supported by the evidence. Id. The dissenting judge disagreed
with the majority on the question of whether the remaining findings of fact were
sufficient to support the trial court’s ultimate conclusions that Aerin was a neglected
and dependent juvenile. Id. at 510, 524.
Because the decision of the Court of Appeals to reverse the finding of
dependency is left undisturbed by this Court’s decision, the only issue here is
whether, disregarding the unsupported findings, the findings of fact by the trial court
that were supported by competent evidence are adequate to support the finding of
neglect. See In re A.J.L.H., 384 N.C. 45, 53 (2023) (explaining that in an appeal from
a neglect adjudication, a reviewing court examines “whether the trial court’s
conclusions of law are supported by adequate findings and whether those findings, in
turn, are supported by clear, cogent, and convincing evidence”) (citing In re E.H.P.,
372 N.C. 388, 392 (2019)); see also In re A.C., 378 N.C. 377, 394 (2021) (discussing
that when a finding lacks sufficient evidentiary support, it must be disregarded and
the court must determine whether the remaining findings support the trial court’s
adjudication).
III. Findings of Fact Supporting the Conclusion of Neglect
The Court of Appeals majority applied the correct standard of review in this
case. Findings supported by clear, cogent, and convincing evidence are conclusive and
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binding on appeal, even when there is contrary evidence in the record. In re A.E., 379
N.C. 177, 184 (2021). Conclusions of law are reviewed de novo. In re C.B.C., 373 N.C.
16, 19 (2019). We therefore review de novo whether the trial court’s legal conclusion
that Aerin was a neglected juvenile is supported by the remaining findings of fact.
This is distinct from the contention in the Court of Appeals dissent that our
task is to “consider the totality of the evidence to determine whether the trial court’s
findings sufficiently support its ultimate conclusion that [Aerin] is a neglected
juvenile.” In re A.H., 289 N.C. App. at 519 (Flood, J., dissenting) (alteration in
original) (quoting In re F.S., 268 N.C. App. 34, 43 (2019)). This Court’s precedents
hold that appellate courts may not reweigh the underlying evidence to make factual
assessments that are not made by the trial court. See In re C.C.G., 380 N.C. 23, 33
(2022) (citing In re J.A.M., 372 N.C. 1, 11 (2019)). The language in In re F.S. relied
upon by the dissent below is not based on any applicable precedent from this Court
and implies a “totality of the evidence” standard of review that we have not previously
applied in these circumstances. See, e.g., In re H.B., 384 N.C. 484, 492–93 (2023)
(stating that the trial court is “the sole judge of the credibility and weight to be given
to the evidence” (quoting In re N.P., 374 N.C. 61, 65 (2020))). We review the evidence
to determine if the trial court’s findings of fact are supported, but we do not make or
rely on our own findings of fact.
Under the law of this state, a neglected juvenile is one:
[W]hose parent, guardian, custodian, or caretaker does any
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of the following:
a. Does not provide proper care, supervision, or discipline.
b. Has abandoned the juvenile, except where that juvenile is a safely surrendered infant as defined in this Subchapter.
c. Has not provided or arranged for the provision of necessary medical or remedial care.
d. Or whose parent, guardian, or custodian has refused to follow the recommendations of the Juvenile and Family Team made pursuant to Article 27A of this Chapter.
e. Creates or allows to be created a living environment that is injurious to the juvenile’s welfare.
f. Has participated or attempted to participate in the unlawful transfer of custody of the juvenile under G.S.14- 321.2.
g. Has placed the juvenile for care or adoption in violation of law.
N.C.G.S. § 7B-101(15).
Remembering that the purpose of this section is simultaneously to provide
services to protect juveniles, to respect the right to family autonomy and to prevent
the “unnecessary or inappropriate separation of juveniles from their parents,”
N.C.G.S. § 7B-100(3), (4), it is axiomatic that neglect is something more than a single
act of bad judgment by a parent or caregiver that results in no significant harm to a
child. See In re Stumbo, 357 N.C. 279, 283 (2003). Under our cases interpreting this
statute, a finding that a juvenile is neglected requires that the “conduct at issue
constituted either severe or dangerous conduct or a pattern of conduct either causing
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injury or potentially causing injury to the juvenile.” Id. That precedent remains good
law. And for good reason. As this Court explained, to hold that every act of negligence
constitutes neglect
would subject every misstep by a care giver to the full impact of subchapter I of chapter 7B of the North Carolina General Statutes, resulting in mandatory investigations, and the potential for petitions for removal of the child or children from their family for custodial purposes, and/or ultimate termination of parental rights.
In re Stumbo, 357 N.C. at 283 (cleaned up).
While a single act of negligence severe enough to cause significant harm to a
child and indicative of the likelihood that future harm would result can constitute
neglect, it is not the case that any “treatment of a child which falls below the
normative standards imposed upon parents by our society” is sufficient to justify a
finding that the child is neglected. See In re V.M., 273 N.C. App. 294, 297 (2020).
Both In re Stumbo and In re V.M. involve children who arguably were subjected
to negligent parenting, just as Aerin arguably was on 4 October 2021, but who were
not neglected juveniles within the meaning of the statute. In In re Stumbo, a two-
year-old child was reportedly playing naked and unsupervised in the driveway of his
home. In re Stumbo, 357 N.C. at 280. When social workers came to the home to
investigate the report, the parents were uncooperative. Id. In interpreting the
statutory definition of neglect, this Court explained that
It is obvious from this definition and the cases applying it
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that the circumstances constituting neglect involve serious and substantial allegations. ‘Neglect’ is further linked with ‘abuse’ and ‘dependency,’ thereby reinforcing the legislative conclusion that these are conditions that pose a serious threat to a juvenile’s welfare.
Id. at 287.
In In re V.M., cited by the dissent below, the Court of Appeals reversed a trial
court’s finding of neglect where a four-month-old child suffered acute alcohol
intoxication after being fed formula prepared with liquor that had been poured into
water bottles after a funeral. 273 N.C. App. at 295. Upon de novo review, the Court
of Appeals concluded that the trial court’s findings of fact did not support the legal
conclusion that the child was a neglected juvenile. Id.
These and other cases make clear that isolated incidents of neglect, even if the
potential for serious injury is present, do not meet the statutory threshold for a
finding of neglect. See, e.g., In re H.P., 278 N.C. App. 195 (2021) (holding that findings
that a three-year-old child was running naked between parents’ homes and was
walking alone did not constitute a neglected juvenile).
As the majority below correctly concluded after reviewing all the trial court’s
competent and supported findings of fact, this case presents a single incident in which
a nine-year-old child walked away from her father, refused to follow his directions to
return, and ran from him as he followed her in his truck with two other children.
When he could not effectively navigate the neighborhood streets, he got out of the
truck and pursued her on foot. Before Aerin crossed the busy road, he had already
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turned around to return to the other two children. See In re A.H., 289 N.C. App. at
507. At this point he had a Sophie’s choice—he could expose the nine-year-old to
danger by allowing her to continue unsupervised as she ran away from him, or he
could expose the children in the truck to danger by leaving them alone to pursue the
nine-year-old. Perhaps in hindsight he made the wrong choice, but there is no
evidence that it was a neglectful one.
The dissent below found support for the conclusion that Aerin was neglected
based on the finding that respondent-father “left the scene of the incident and did not
return nor inquire about his child.” As the majority explained, the trial court’s finding
here is simply devoid of sufficient information to establish neglect. Id. at 508–09.
There was no finding of fact regarding whether respondent-father knew who to
contact or how. As the majority below recounted:
What evidence was introduced shows that [the DSS caseworker] received a report at 3:15 p.m., arrived at Newsome Road around 4:00 p.m., began her home inspection between 5:30 and 5:45 p.m., executed her verified petition before a magistrate later that evening, and filed the petition the following day. Again, the absence of evidence is not evidence, and DSS failed to meet its burden of introducing evidence proving Father’s failure to contact DSS after business hours on the 4th and on the morning of the 5th before the filing of the petition amounted to neglect, particularly when the only evidence that was introduced— credible or not—shows Father knew that his wife had already met with DSS and that Aerin was safe in DSS custody.
Id. at 509 (cleaned up).
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It is not our role to make findings of fact from the evidence. Just as we are
bound by the competent findings of fact that the trial court did make, we are forbidden
to infer factual findings that it did not.
At the end of the day, the issue here is not whether we approve of respondent-
father’s parenting decisions on 4 October 2021. The question is whether the trial
court’s findings of fact that were supported by clear, cogent, and convincing evidence
in the case are sufficient to meet the statutory criteria to find that a child is a
neglected juvenile. The findings of fact in this case do not rise to that level. This
Court’s failure to enforce the statute as written, and to follow our precedents,
frustrates the purposes of the General Assembly to protect family integrity, to provide
children with safety, continuity, and permanence, and to prevent the unnecessary
separation of children from their parents. The decision of the Court of Appeals should
be affirmed.
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