IN THE SUPREME COURT OF NORTH CAROLINA
No. 206PA23
Filed 23 August 2024
IN THE MATTER OF: A.J., J.C., J.C.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 289 N.C. App. 632 (2023), reversing an order entered on 22
March 2022 by Judge Lee Teague in District Court, Pitt County, and remanding the
case. Heard in the Supreme Court on 20 February 2024.
Jon G. Nuckolls for petitioner-appellant Pitt County Department of Social Services; and Matthew D. Wunsche, GAL Appellate Counsel, and Brittany T. McKinney, GAL Staff Attorney, and for respondent-appellant Guardian ad Litem.
Wendy C. Sotolongo, Parent Defender, by Jacky Brammer, Assistant Parent Defender, for respondent-appellee mother.
DIETZ, Justice.
In this juvenile proceeding, the Court of Appeals held that many of the trial
court’s key findings in its adjudication order were based on inadmissible hearsay. In
their briefing to this Court, the parties agree that those findings are improper and
must be disregarded.
The issue before this Court is what to do about it. The Court of Appeals held
that the trial court’s “findings of fact, unsupported by properly admitted evidence, are
insufficient to support the trial court’s adjudications.” In re A.J., 289 N.C. App. 632,
644 (2023). As a result, the Court of Appeals reversed the trial court’s order and IN RE A.J., J.C., J.C.
Opinion of the Court
remanded with instructions to dismiss the juvenile petitions.
As explained below, this holding omits crucial steps in the appellate analysis.
First, when an appellate court determines that a finding of fact is not supported by
sufficient evidence, the court must disregard that finding and examine whether the
remaining findings support the trial court’s conclusions of law. In re A.J.L.H., 384
N.C. 45, 52–53 (2023). If the remaining findings support the trial court’s conclusions,
the appellate court must affirm, notwithstanding the existence of some invalid
findings. Id.
Second, if the remaining findings do not support the trial court’s conclusions,
there is yet another step: the reviewing court must examine whether there is
sufficient evidence in the record that could support the necessary findings. See In re
K.N., 373 N.C. 274, 284 (2020). If so, the appropriate disposition is to vacate the trial
court’s order and remand for entry of a new order. Id. This permits the trial court, as
fact finder, to decide whether to enter a new order with sufficient findings based on
the record or to change the court’s conclusions because the court cannot make the
necessary findings. Id. at 284–85.
Here, the Court of Appeals did not adequately examine whether the remaining
findings supported the trial court’s conclusions and did not examine whether the
evidence in the record could support sufficient findings. Because the remaining
findings of fact are insufficient but the record contains clear, cogent, and convincing
evidence that could support both the neglect and dependency adjudications, we
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reverse the decision of the Court of Appeals and remand with instructions to vacate
the trial court’s order and remand the case for further proceedings in the trial court.
Facts and Procedural History
Respondent is the mother of three children, Amanda, Jade, and Juliet.1 In
2021, the Pitt County Department of Social Services received several reports
regarding respondent’s family. At the time, respondent’s youngest child, Amanda,
lived with respondent while the two older children, Jade and Juliet, lived primarily
with relatives but frequently spent time with respondent.
All of the reports involved interactions between respondent and her daughter
Jade in which respondent acted in a hostile and aggressive manner, such as by
smashing in a window of her car when Jade locked herself inside and leaving Jade
outside the home in the cold until neighbors took her in. Respondent acknowledged
to social workers that she needed to obtain a mental health assessment in light of her
erratic, aggressive behavior. Respondent did not do so and later denied the need for
any mental health assessment.
DSS ultimately filed petitions alleging that Jade and her two siblings were
neglected and that Jade and her sister Juliet were dependent. At the hearing, over
respondent’s objection, the trial court admitted statements from Jade to the social
workers. Jade did not testify at the hearing. The trial court later entered a written
order concluding that all three juveniles were neglected and that Jade and Juliet were
1 We use pseudonyms to protect the identities of the juveniles.
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dependent. Many of the trial court’s findings relied on Jade’s hearsay statements or
other evidence that was the subject of a timely objection by respondent. Respondent
appealed.
On appeal, the Court of Appeals determined that the trial court erred by
admitting Jade’s hearsay statements. In re A.J., 289 N.C. App. at 644. The court then
held that 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” and that the trial
court’s order “is reversed and this cause is remanded for dismissal.” Id.
This Court allowed a joint petition for discretionary review from DSS and the
guardian ad litem.
Analysis
This is an appeal from an initial adjudication in a juvenile proceeding. At this
stage of the proceeding, the “sole question for the reviewing court is 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.” In re
A.J.L.H., 384 N.C. at 53.
When assessing whether a particular finding is supported by clear, cogent, and
convincing evidence, the reviewing court must consider any properly preserved
challenges to the admission of the supporting evidence. See In re J.S., 377 N.C. 73,
77–78 (2021). For example, the North Carolina Rules of Evidence apply at the
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adjudication stage of these juvenile proceedings. N.C.G.S. § 7B-804 (2023). Thus,
statements that constitute inadmissible hearsay are not clear, cogent, and convincing
evidence on which the trial court may rely. See In re K.J.M., 288 N.C. App. 332, 345
(2023); In re T.M., 187 N.C. App. 694, 698 (2007). Similarly, facts that must be
established by expert testimony are not clear, cogent, and convincing evidence if
offered by lay witnesses or inferred from other nonexpert testimony. Cf. In re K.L.,
272 N.C. App. 30, 50 (2020). Assuming an evidentiary objection is properly preserved,
a party may argue on appeal that any findings supported solely by inadmissible
evidence are infirm and cannot support the trial court’s conclusions of law.
We have repeatedly articulated what an appellate court must do if it
determines that a finding of fact lacks sufficient support in the record: the reviewing
court must disregard that finding and examine whether the remaining findings
support the trial court’s determination. In re A.J.L.H., 384 N.C. at 52. Naturally, if
the remaining findings sufficiently support the trial court’s conclusion that a juvenile
is abused, neglected, or dependent, then the reviewing court must affirm the trial
court’s order notwithstanding the existence of some unsupported findings. Id. at 52–
53.
If, however, the appellate court determines that the trial court’s remaining
findings of fact are not sufficient, then the court must then examine a follow-on
question: whether there is sufficient evidence in the record that could support the
necessary findings. See In re K.N., 373 N.C. at 284. If so, the appellate court must
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vacate the trial court’s order and remand the case to give the trial court the
opportunity to make additional findings if it chooses. Id. at 284–85. An appellate
court may remand for entry of an order dismissing the matter only if the trial court’s
findings are insufficient and the evidentiary record is so lacking that it cannot
support any appropriate findings on remand. See id.
Here, the Court of Appeals determined that a number of the trial court’s
findings of fact were not supported by clear, cogent, and convincing evidence because
the supporting evidence was inadmissible under the Rules of Evidence. In re A.J., 289
N.C. App. at 637–40. But the Court of Appeals did not adequately engage in the
additional steps of the analysis described above. First, instead of focusing on the
remaining supported findings, the Court of Appeals repeatedly focused on the impact
of the unsupported findings. See id. at 640 (“The unsupported findings of fact, as
discussed above, are insufficient to support an adjudication that Jade was
neglected.”); id. at 644 (“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.”).
Second, after determining that the findings were insufficient, the Court of
Appeals did not examine whether the evidentiary record could support additional
findings. Instead, the court simply stated that “this cause is remanded for dismissal,”
without any examination of the full evidentiary record. Id.
We therefore begin our analysis by doing what our case law requires and what
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the Court of Appeals failed to do adequately: disregard any unsupported findings of
fact, examine whether the remaining findings are sufficient, and if necessary,
examine whether the evidentiary record could support additional findings.
The challenged findings can be divided into four categories. The first involves
findings of a June 2021 incident that resulted in a report to DSS. With respect to that
incident, the trial court found that respondent got into an altercation with Jade that
led Jade to lock herself in the family’s car. The court found that respondent took a
shovel and broke out the window of the car, hit Jade with a belt buckle in the head
and all over her body, choked Jade, and threatened to kill her.
Some of these findings are not supported by clear, cogent, and convincing
evidence in the record. Specifically, respondent’s use of a shovel, her choking of Jade,
and her threat to kill Jade all were based solely on Jade’s statements to social workers
during their investigation. On appeal, DSS and the guardian ad litem do not dispute
that Jade’s statements are inadmissible hearsay.2
The remaining portions of the trial court’s findings, however, are supported
by clear, cogent, and convincing evidence. Respondent admitted to the social workers
that she and Jade got into an “altercation” and Jade then locked herself in the car
2 Because, in their filings with this Court, DSS and the guardian ad litem do not
contest the Court of Appeals’ conclusion that Jade’s statements were inadmissible hearsay, we do not consider that question and treat Jade’s statements as inadmissible. See Soc’y for the Hist. Pres. of the Twenty-Sixth N.C. Troops, Inc. v. City of Asheville, 385 N.C. 744, 751 (2024) (declining to consider a portion of the Court of Appeals’ opinion when the appellant abandoned that issue before the Supreme Court); see also N.C. R. App. P. 16(a), 28(a).
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and was on the phone with police. Respondent also admitted to “breaking the window
out of the car” while Jade was inside and to hitting Jade with a belt. A social worker
testified that she saw a visible mark where respondent hit Jade with the belt. This
supports the remaining portions of the trial court’s findings.
The second category of findings concern a November 2021 incident in which
the trial court found that respondent “choke slammed” Jade and “threw her out of the
car.” The trial court found that this incident “was reportedly witnessed by a family
member over a video call.” On appeal, DSS and the guardian ad litem do not dispute
that this entire finding is based on inadmissible hearsay statements. We therefore
disregard this finding in its entirety.
The third category involves a December 2021 report to DSS. The trial court
found that respondent locked Jade outside of her home in cold weather because Jade
refused to babysit her younger sister. The court found that neighbors saw Jade
outside in the cold and brought her into their home. The court also found that when
a law enforcement officer responded to the neighbor’s call concerning Jade, the officer
had to handcuff respondent to “get her to calm down,” social workers observed
respondent “cussing and fussing” in the presence of her children, and respondent’s
“behavior was unstable.”
Again, some of these findings are not supported by sufficient evidence.
Specifically, the only evidence that respondent actually locked Jade out of the home,
as opposed to merely leaving Jade alone outside, is Jade’s statements to social
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workers. DSS and the guardian ad litem do not contest the Court of Appeals’
conclusion that these statements are inadmissible hearsay.
But, again, the remaining portions of the trial court’s findings are supported
by clear, cogent, and convincing evidence. This includes, importantly, the trial court’s
findings that respondent left Jade alone outside in the cold until neighbors took her
in; that social workers observed respondent “cussing,” “fussing,” and “banging” in the
presence of her children; that a law enforcement officer had to handcuff respondent
“just to get her to calm down”; and that respondent’s behavior during this incident
was so unusual and erratic that it fits the ordinary meaning of “unstable.”3
The final category of findings concerns respondent’s mental and emotional
condition. The trial court found that respondent “suffers from mental and
psychological illnesses as a result of traumatic experiences throughout her life” and
that respondent “has denied mental health diagnosis.” The trial court also found that
respondent “presented as extremely hostile and aggressive through the hearing of
this matter as evidenced by numerous outbursts in the Courtroom and aggressive
comments directed toward other participants in this proceeding.”4 The court further
3 The term “unstable” also can have a technical meaning in the context of a mental
health diagnosis done by medical professionals. See, e.g., Unstable, Oxford Advanced American Dictionary (2011). As explained in detail below, there is no evidence to support a finding that respondent had any diagnosed mental health issues, and we reject any interpretation of this finding that suggests otherwise. 4 The purpose of an adjudicatory hearing is to determine “the existence or
nonexistence of any of the conditions alleged in a petition.” N.C.G.S. § 7B-802; see also In re L.N.H., 382 N.C. 536, 543 (2022). Thus, the “inquiry focuses on the status of the child at the time the petition is filed, not the post-petition actions of a party.” Id.
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found that respondent acknowledged the need to engage in a case plan to address
these issues and specifically agreed “to begin mental health services” but did not do
so.
Once again, some of these findings are unsupported by the record. Specifically,
there is no evidence in the record of any diagnoses of respondent’s mental health. To
be diagnosed with a mental illness, a person must be evaluated by a trained mental
health professional based on accepted criteria established in the profession, such as
those in the Diagnostic and Statistical Manual of Mental Disorders (DSM). See
generally Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders: DSM-5 (5th ed. 2013). Finding that a person suffers from a mental illness
typically requires expert testimony or admissible evidence of a past diagnosis by a
qualified health professional. See, e.g., State v. Lynch, 340 N.C. 435, 459 (1995).
To be sure, a social worker testified at the hearing that he personally observed
respondent’s behavioral issues including “anger, resentment, with the family
members,” and other evidence in the record demonstrated that respondent had anger
issues and acted erratically. The trial court also observed similar behavior at the
hearing. But there was no expert testimony or documentary evidence that would
support a finding that respondent had a diagnosed mental health condition. Thus, all
findings specifically related to respondent’s mental health are unsupported by the
record.
The remaining findings, however, are supported by the record, including the
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trial court’s finding that respondent exhibited “extremely hostile and aggressive”
behavior and refused to follow through with a recommended case plan to address
those issues.
Having identified the remaining findings that are supported by clear, cogent,
and convincing evidence in the record, we turn to examining whether those findings
support the trial court’s conclusions of law. See In re A.J.L.H., 384 N.C. at 52. Those
conclusions involve two separate adjudications: the trial court adjudicated Jade and
her siblings Amanda and Juliet as neglected and adjudicated Jade and her sibling
Juliet as dependent.
A neglected juvenile is one whose parent, guardian, custodian, or caretaker
“does not provide proper care, supervision, or discipline” or who “creates or allows to
be created a living environment that is injurious to the juvenile’s welfare.” N.C.G.S.
§ 7B-101(15) (2023). A juvenile may be adjudicated neglected even if not currently
residing in the parent’s home. When the juvenile does not currently reside with the
parent, the trial court must assess whether there is substantial risk of future neglect
based on the historical facts of the case. In re K.J.D., 203 N.C. App. 653, 661 (2010).
A dependent juvenile is one whose “parent, guardian, or custodian is unable to
provide for the juvenile’s care or supervision and lacks an appropriate alternative
child care arrangement.” N.C.G.S. § 7B-101(9) (2023). Findings that a parent is
unable to care for her children and that the parent lacks an alternative child care
arrangement support a dependency adjudication. In re J.J., 180 N.C. App. 344, 347
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(2006), aff’d per curiam, 362 N.C. 172 (2008). The court “must consider the conditions
as they exist at the time of the adjudication as well as the risk of harm to the child
from return to a parent” and “look at the situation before the court at the time of the
hearing when considering whether a juvenile is dependent.” In re F.S., 268 N.C. App.
34, 44, 46 (2019) (cleaned up).
Here, the remaining findings support many of the requirements to satisfy these
standards. The findings establish a pattern in which respondent put Jade in
situations that are potentially injurious to her welfare, such as smashing in a car
window while Jade was inside the car and allowing Jade to be unsupervised and alone
in cold weather until neighbors took her in. The findings also establish that
respondent exhibited hostile and aggressive behavior during these incidents and that
respondent initially acknowledged the need to have these issues assessed by a mental
health professional but refused to do so and later denied having these issues. Finally,
there are unchallenged findings supporting respondent’s lack of an alternative child
care arrangement.
Still, there are necessary findings that are missing. There are many scenarios
where a parent breaking a window out of a car to get at a child locked inside would
be reasonable and would not be an injurious living environment. The same is true of
allowing a child to stay outside without supervision, even when it is cold outside.
Beyond the bare findings describing these events, the trial court did not make
findings demonstrating how these incidents established that the children were not
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receiving proper care, supervision, or discipline, or were living in an injurious
environment. Importantly, there is clear, cogent, and convincing evidence in the
record that could support the necessary findings. But the trial court did not make
those findings.
We therefore agree with the Court of Appeals’ holding that the trial court’s
findings of fact were insufficient to support its conclusions of law.5 But we reject the
Court of Appeals’ resulting disposition. After determining that the trial court’s
findings did not support its conclusions, the Court of Appeals stated that “this cause
is remanded for dismissal.” Cf. In re A.J., 289 N.C. App. at 644. This is error.
As explained above, when an appellate court determines that the trial court’s
findings of fact are insufficient, the court must examine whether there is sufficient
evidence in the record that could support the necessary findings. See In re K.N., 373
N.C. at 284. If so, the appropriate disposition is to vacate the trial court’s order and
remand for entry of a new order. Id. This permits the trial court, as fact finder, to
decide whether to enter a new order with sufficient findings based on the record or to
change its conclusions of law because the court cannot make the necessary findings.
Id. at 284–85.
5 Although we agree with this portion of the Court of Appeals’ reasoning, we reject the
court’s categorical statement that the “use of corporal punishment, with no evidence of any resulting marks, bruising, or other injury, does not constitute neglect.” In re A.J., 289 N.C. App. at 640–41. Whether a child is neglected is a fact-specific determination that cannot be reduced to this type of categorical statement. There are scenarios where discipline of a child can constitute neglect even when the discipline causes little or no physical injury. See In re A.J.L.H., 384 N.C. at 55.
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Here, as we have noted, there is clear, cogent, and convincing evidence in the
record that could support the necessary findings. We therefore reverse the decision of
the Court of Appeals and remand this case for further remand to the trial court. On
remand, the trial court, in its discretion, may enter a new order on the existing record
or conduct any further proceedings that the court deems necessary.
Conclusion
We reverse the decision of the Court of Appeals and remand with instructions
to vacate the trial court’s order and remand for further proceedings.
REVERSED AND REMANDED.
Justice RIGGS did not participate in the consideration or decision of this case.
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