IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-677
Filed 18 March 2026
Union County, Nos. 24JA000157-890, 24JA000158-890, 24JA000159-890
IN THE MATTER OF: P.G., O.G., H.G.
Appeal by respondent-mother from orders entered 21 March 2025, 25 April
2025, and 8 May 2025 by Judge Erin S. Hucks in Union County District Court. Heard
in the Court of Appeals 11 February 2026.
Marc S. Gentile for petitioner-appellee Union County Division of Social Services.
Womble Bond Dickinson (US) LLP, by Cal Adams and Reid C. Adams, Jr., for appellee Guardian ad Litem.
Parent Defender Annick Lenoir-Peek, by Sr. Assistant Parent Defender J. Lee Gilliam for respondent-appellant mother.
FREEMAN, Judge.
Respondent-mother appeals from the trial court’s adjudication order
adjudicating her children as neglected juveniles; disposition order awarding legal and
physical custody of the children to their father; and order terminating juvenile court
jurisdiction and establishing a civil file. Respondent-mother’s arguments on appeal
are limited to the adjudication order. She challenges various findings of fact and the
conclusion of law adjudicating the children as neglected juveniles. After careful
review, we affirm the orders of the trial court. IN RE: P.G., O.G., H.G.
Opinion of the Court
I. Factual and Procedural Background
The evidence presented at the adjudication and disposition hearings tended to
show the following. Respondent-parents share three children: H.G. (“Harry”), O.G.,
(“Oscar”), and P.G. (“Perry”).1 Respondent-parents have a history of domestic
violence. In April 2024, respondent-father moved out of the family home in Wingate,
North Carolina, following criminal charges related to alleged domestic violence.
Respondent-parents agreed that respondent-father could visit the children at the
home. On 14 May 2024, an ex parte Domestic Violence Order of Protection (“DVPO”)
was entered but was subsequently dismissed on 6 June 2024. Similarly, the criminal
domestic violence charges against respondent-father were dismissed on 4 December
2024.
Respondent-mother has “various mental health diagnoses, including ADHD,
PTSD, and anxiety and has been prescribed medications to treat her diagnoses.”
A. August 2024
On 9 August 2024, respondent-mother went to a neighbor’s house around 10:00
p.m. or 11:00 p.m. to confront the neighbors about them taking one of the children’s
Hot Wheels tracks. Ultimately this interaction led to respondent-mother calling the
police. Respondent-mother testified that she “might have had one drink around
dinner time” that evening. Sierra Ritz, who was a “new friend” of respondent-mother,
1 Pseudonyms are used to protect the identities of the minor children. See N.C. R. App. P. 42(b).
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testified that she watched the children while respondent-mother was confronting the
neighbors.
On 12 August 2024, Detective Sergeant Jake Henry of the Wingate Police
Department responded to a call at the home. When he arrived, he saw respondent-
father standing in the driveway and holding Oscar, who was then two years old.
Respondent-father told Detective Henry he had been talking on the phone with his
mother when respondent-mother “became irate and ripped the phone from his
hands.” Detective Henry asked respondent-father if he thought respondent-mother
had consumed alcohol, and respondent-father said that it was possible and “always
could be in question.”
Detective Henry entered the home and saw respondent-mother sitting on the
staircase. Detective Henry noticed that respondent-mother seemed “very agitated,”
and was confused about his identity; she mistook him for another officer “numerous
times throughout the interaction.” Respondent-mother told Detective Henry that she
had consumed half of a bottle of wine that evening, and Detective Henry noticed that
she smelled like alcohol. Respondent-mother denied grabbing the phone out of
respondent-father’s hands. Detective Henry testified that to his knowledge Harry
“was present when the incident happened that caused [respondent-father] . . . to call
the police.”
Detective Henry saw four-year-old Harry running in and out of the house.
Detective Henry asked Harry about the incident, and Harry said, “She’s lying. She’s
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always lying.” Respondent-mother told Detective Henry that the youngest child,
eight-month-old Perry, was asleep in a crib upstairs. However, another officer found
Perry “downstairs in the playpen.”
Detective Henry was concerned about respondent-mother’s ability to care for
the children and asked if respondent-father could take care of the children for the
night; respondent-father said that he could not because he could not fit three car seats
in his pickup truck, and he was staying at a hotel for the night. Respondent-father
then left the residence. Two of respondent-mother’s friends later came to the house
and told Detective Henry that they would stay at the house for the night and take
care of the children. Detective Henry then left, though he “would have taken other
action” had respondent-mother’s friends not told him that they would stay.
Ritz was one of the friends who came over to the home on the night of 12
August. Ritz testified that she left the house after Oscar and Perry were asleep, and
as Harry was “falling asleep on the couch.” She further testified that she left before
the other friend did. Ritz said that that she did not go to respondent-mother’s house
that night to care for the children, but to spend time with respondent-mother. Ritz
also testified that she did not think that respondent-mother was drunk on the night
of 12 August, but respondent-mother told her that she “had taken some anxiety
medicine” at some point that day. Ritz characterized respondent-mother as seeming
“lost” or “confused” that evening.
That same day, the Union County Division of Social Services (“DSS”) received
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a report about concerns of “substance abuse, improper supervision, [and] injurious
environment” stemming from respondent-mother’s apparent intoxication while her
children were with her. DSS assigned Opal Phillips to be the social worker for the
case, and she went to the home around 10:00 a.m. on 13 August 2024. When she
arrived, respondent-mother and two of the children were present. Respondent-
mother let Phillips into the house after “several minutes,” and was initially
“cooperative” and “polite.” Respondent-mother told Phillips that she drank three
cocktails the night before, “which consisted of soda water, vodka, and juice.”
Phillips then discussed putting a safety plan in place, which involved “a sober
caretaker in the home because of the . . . allegations the night before.” Respondent-
mother called her friend, Cameron, who said that respondent-mother could come to
her home while respondent-father stayed at the home with the children. Phillips
testified that respondent-mother then changed her mind and instead wanted to stay
at the home with respondent-father and the children. Phillips did not think that was
“an appropriate plan” because of the “tension” between the parents, and stepped
outside to call respondent-father. Phillips then went back to the door to speak with
respondent-mother but discovered that she was “locked out.”
Phillips went to a neighbor’s house to try to obtain a video about the 9 August
incident with respondent-mother, but when she did not make contact with the
neighbor, she called her supervisor. Phillips then called respondent-mother to inform
her that the door was locked. Respondent-mother answered Phillips’ phone call and
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stated that she was “on the phone with [her] attorney” and said, “I just changed my
mind.” Respondent-mother then merged Phillips with her “attorney,” who told
respondent-mother, “You’re not leaving your damn house.” Respondent-mother then
informed Phillips that she “didn’t realize she merged Sierra [Ritz] in,” who was her
friend and not her attorney. Phillips testified that she tried to explain a safety plan
had to be in place, but Ritz kept talking over her. Phillips then ended the call and
contacted her supervisor and law enforcement.
Once respondent-father, who had picked up the third child from school, and
law enforcement officers arrived at the home, Phillips and the officers knocked on the
door. Respondent-mother answered but seemed “aggravated” and was “walking back
and forth.” The officers administered a breathalyzer test, around 2:00 or 2:30 p.m.,
which showed a positive reading. Respondent-mother maintained that she had just
brushed her teeth and used mouthwash.
Respondent-mother then walked out of the house while holding one child, while
the other “came out running towards” respondent-father. Respondent-mother
handed the child she was holding to respondent-father. By her own account,
respondent-mother was initially cooperative in giving the children to respondent-
father but then was “screaming and upset” and “not okay” with her children leaving.
Phillips testified that respondent-mother went back into the house, and went to an
upstairs window, and started yelling and “cursing [Phillips] and the officer out[.]”
Phillips then made a safety plan with respondent-father.
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On 14 August 2024, respondent-parents and the children’s maternal and
paternal grandmothers met at DSS to continue safety planning, but the group did not
agree to a safety plan. At the time the meeting took place, Phillips had no concerns
with respondent-father’s ability to “protect” the children.
On 16 August 2024, DSS filed petitions alleging that Harry, Oscar, and Perry
were neglected juveniles. The petitions detailed DSS’ concerns based on respondent-
mother’s mental health and substance abuse, and domestic violence between
respondent-parents. DSS obtained nonsecure custody of the children the same day.2
B. Subsequent Proceedings and Involvement with DSS
DSS also assigned social worker Janie Lakeman as the supervisor on the case.
Lakeman and another social worker, Elizabeth Yopp, met with respondent-mother in
the following months to discuss respondent-mother’s mental health appointments.
Lakeman testified that those conversations tended to “escalate quickly,” and were not
successful in addressing respondent-mother’s mental health. Many of the
conversations felt like “repeat conversations” to Lakeman, like respondent-mother
was not listening to the answers because Lakeman was “not giving her the answer
she want[ed].” When Lakeman discussed her concerns about respondent-mother’s
mental health and offered resources, respondent-mother’s responses were “usually
sarcastic.”
2 The children were placed with respondent-father on 6 November 2024. They remained in respondent-father’s care throughout the proceedings.
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Respondent-mother also sent hundreds of text messages, often containing
profanity, to Lakeman, which alleged “accusations against DSS as a whole, the social
worker, [Lakeman], the director, the executive director, the Court[,]” and accused
“DSS of grooming [the] children to be trafficked.”
During the subsequent proceedings, respondent-mother was represented by
multiple attorneys who withdrew for various reasons, including “irreconcilable
differences.” The adjudication hearing was scheduled for 6 November 2024 but was
continued to 3 December 2024 at the request of DSS. The proceeding began to take
place on 3 December and 4 December, but was continued to 30 December 2024, as
respondent-mother “appeared to be passed out or asleep at various times” during the
proceedings. Respondent-mother did not appear at the 30 December adjudication
hearing, and it was again continued to 29 January 2025.
On 31 December 2024, respondent-mother went to the DSS office, “skipped the
lobby” and “attempted to gain access to a restricted area” where “[DSS] normally
wouldn’t see a client.” When approached by a DSS employee, respondent-mother
initially said she was a social worker in Mecklenburg County. Later that same day,
she went to the home where respondent-father was staying with the children and
“was banging on the doors and windows” while respondent-father and the children
were present. Law enforcement subsequently escorted respondent-mother away from
the property.
C. January 2025
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On 9 January 2025, respondent-mother was arrested for trespassing and
resisting a public officer after she went to the DSS office without an appointment and
refused to leave when informed that no one was available to speak with her, despite
being requested to leave by DSS security.
On 13 January 2025, Detective Henry responded to a 911 call at respondent-
father’s house, and found respondent-mother at the property. Detective Henry
testified that respondent-mother “started breaking the garage door window” and was
talking to the children “from the ground to the upstairs window.” Respondent-mother
got in her car and started driving towards the garage door, so Detective Henry
stopped her. Respondent-mother then “got up on the hood of her car and jumped
through the open glass that she had broken out the rest of the way into the garage.”
Respondent-mother started knocking on the interior door to the home. Respondent-
father came outside with the children to leave the home, and while he was putting
one of the children in their car seat, respondent-mother took the other two children
“and went behind the house.” Law enforcement eventually “convinced her to give the
kids back to [respondent-father].”
DSS filed a motion to appoint a Rule 17 Guardian ad Litem (“GAL”) for
respondent-mother on 17 January 2025; the trial court subsequently granted the
motion over respondent-mother’s objection.
On 29 January 2025, the trial court ordered a mistrial of adjudication and
scheduled a new adjudication hearing for 24 February 2025.
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D. Adjudication Hearing
At the 24 February adjudication hearing, Lakeman further testified about
incidents of domestic violence between the respondent-parents in 2023 and 2024.
Respondent-mother objected to this testimony on the basis that Lakeman’s testimony
stemmed from statements made by respondent-mother after the petition was filed,
as they were made during the previous adjudication hearing on 3 December 2024.
The trial court admitted the testimony as an admission of a party-opponent.
Lakeman testified that respondent-mother previously testified about three instances
of domestic violence while the children were present: respondent-father breaking the
windows in their home in April 2023; respondent-father throwing a wooden table at
respondent-mother while she was nine months pregnant in late 2023; and
respondent-father ripping off a baby gate from the wall and throwing it at
respondent-mother in the spring of 2024. Lakeman also testified that respondent-
mother said respondent-father pushed her down while she was holding one of the
children. Respondent-mother’s testimony contradicted Lakeman’s when she stated
that the children were not present during the April 2023 incident but were asleep in
different parts of the house.
Lakeman further testified that respondent-mother’s last mental health
appointment was in November 2024, and to her knowledge respondent-mother was
not being treated for her mental health. Lakeman also testified, over counsel’s
objection, that respondent-mother had not entered into a family service agreement.
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Respondent-mother testified about her mental health. Respondent-mother
maintained that her mental health diagnoses were “well-managed” with a “low dose
medication.” Respondent-mother specified that in August 2024, she was prescribed
“Vyvanse as needed” and “lorazepam, 0.25 as needed” but was not taking daily
medications. She testified that the Center for Emotional Health recommended that
she engage in therapy and that she had been on a waitlist. However, she testified
that she was currently seeing a therapist.
Respondent-mother also testified to her version of the events of 12 and 13
August. She maintained that on the night of 12 August, her friends were at her home
when she went to bed, and the children “laid down someplace and fell asleep.”
Respondent-mother further testified that her friends were gone when she woke up,
and she did not know when they left.
Respondent-mother testified that when she met with Phillips on 13 August
2024 at her house, the first safety plan to stay with her friend Cameron was called
off because Cameron was “going to need daycare” for her child, and Phillips
responded, “Well, we’re not giving her no daycare, so this isn’t going to work.”
Respondent-mother testified that after Phillips stepped outside, she thought they
were “done for the day” and “on the same page,” though Phillips still had “some
concerns.” Respondent-mother then had pizza and wine and thought it was “an hour-
and a half, two hours” before Phillips and law enforcement returned.
Respondent-mother testified that she had “two glasses of wine that day,” and
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she drank a glass half an hour before the breathalyzer was administered. She told
the police the positive reading was from mouthwash because she was “nervous to
admit that [she] had two glasses of wine that day . . . .”
Respondent-father testified that in his opinion, respondent mother was a
“decent” parent when she was “sober” or in a “right frame of mind,” “mentally and
emotionally.” Respondent-father also testified that he was concerned about
respondent-mother’s substance abuse, which included alcohol and prescription pills.
On 21 March 2025, the trial court entered its written order adjudicating the
children as neglected juveniles.
E. Disposition Hearing
The trial court conducted the disposition hearing on 7 April 2025. At the
disposition hearing, DSS social worker Elizabeth Yopp testified that respondent-
father was progressing on his identified needs, the interactions between him and the
children were positive, and that DSS did not have concerns about the children’s well-
being in his care. Yopp further testified that respondent-mother had “refused” to tell
DSS where she was receiving counseling, and that she had received an assessment
but had not engaged in further services. Respondent-mother had completed some
classes, but they did not satisfy the “parenting requirement that DSS was asking her
to do.” Yopp also testified that respondent-mother had not confirmed her employment
and had last confirmed where she was residing “several months” prior to the
disposition hearing.
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Yopp testified that during visitation sessions, DSS had a “difficult time at the
end in separating [respondent-mother] from the children,” causing the visits to
“become[ ] chaotic,” despite warnings that the session was nearing an end. She also
testified about times where they had to instruct respondent-mother to stop
whispering to Harry, and respondent-mother had told Harry to “tell his therapist that
he wants to go home and live with Mommy” and asked him questions like, “Is daddy
being mean to you?” Respondent-mother would bring toys and games to the sessions
to play with the children.
The children’s GAL testified that he had no concerns with the children’s
placement with respondent-father, and that he was not concerned with respondent-
father’s progress. The GAL was concerned with respondent-mother’s lack of progress
in doing “any of the positive things that the Court has asked her to do or that DSS
has asked her to do.”
Respondent-mother testified that she was on a waitlist for in-person therapy
but had completed two in-person sessions and about five “follow-up” phone calls with
BetterHelp in the meantime. Respondent-mother also testified that she was
employed and that there was a house “available to [her]” that was suitable for the
children, which was where they conducted visits. Respondent-mother testified that
she did not want DSS or the trial court to be further involved with her mental health.
She further testified that she would be willing to sign a family services agreement “if
it meant we’re done with involvement with DSS and DSS court.” Respondent-mother
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testified that respondent-father “weaponized DSS” by making “three bogus 911 calls,”
and that there was “collusion between . . . the police officers and the judges, and
there’s just so much corruption and crooked practices going on, misconduct” for the
purpose of “foster care fraud.”
On 21 April 2025, the trial court entered its written disposition order. The
trial court found that respondent-mother made “minimal progress towards
addressing her identified needs.” The trial court further found that respondent-
father had made progress on his identified needs, was employed, maintained
communication with DSS and the GAL, and had been meeting the children’s needs
as their primary caretaker for months. The trial court concluded that it was in the
best interest of the children to be reunified with respondent-father and granted him
physical and legal custody. The trial court ordered that respondent-mother have
supervised visitation, have an updated mental health and substance abuse
assessment, engage in counseling and medication management, and follow through
with any recommended treatment. On 8 May 2025, the trial court entered its written
order terminating juvenile court jurisdiction and established a civil file.
Respondent-mother timely appealed the adjudication, disposition, and
jurisdiction termination orders.
II. Jurisdiction
Appeal of right lies to this Court from “[a]ny initial order of disposition and the
adjudication order upon which it is based[,]” N.C.G.S. § 7B-1001(a)(3) (2025), and
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“[f]rom any final judgment of a district court in a civil action[,]” id. § 7A-27(b)(2)
(2025).
III. Standard of Review
“In an appeal from an initial adjudication in a juvenile proceeding, ‘the sole
question for the reviewing court is whether the trial court’s conclusions of law are
supported by adequate findings . . . .’ ” In re K.E.P., 298 N.C. App. 527, 531 (2025)
(quoting In re A.J., 386 N.C. 409, 411–12 (2024) (cleaned up)). “The allegations in a
petition alleging that a juvenile is abused, neglected, or dependent shall be proved by
clear and convincing evidence.” N.C.G.S. § 7B-805 (2025). Such findings are “binding
on appeal” and “are deemed conclusive, even where some evidence supports contrary
findings.” In re K.E.P., 298 N.C. App. at 531 (cleaned up).
“[T]he North Carolina Rules of Evidence apply at the adjudication stage of
these juvenile proceedings.” In re A.J., 386 N.C. at 412. “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.” Id.
“Conclusions of law made by the trial court are reviewable de novo on appeal.”
In re K.S., 380 N.C. 60, 64 (2022). “Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment for that of the trial court.” In
re T.M.L., 377 N.C. 369, 375 (2021) (emphasis omitted) (cleaned up).
IV. Discussion
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Respondent-mother challenges various findings of fact and the trial court’s
conclusion of law that the children were neglected juveniles. We address each
argument in turn.
F. Challenged Findings of Fact
Respondent-mother argues that several findings in the adjudication order are
unsupported by competent evidence. The challenged findings can be grouped into
three categories: (1) findings based on post-petition gathered evidence; (2) findings
based on respondent-mother’s statements from a prior proceeding that ended in a
mistrial; and (3) findings without support of record evidence.
1. Post-Petition Evidence
Respondent-mother argues that factual findings 24, 25, 26, 27, 28, 30, 31, 32,
and 33 in the adjudication order are unsupported by competent evidence because they
rely on evidence gathered after DSS filed the petition. Specifically, respondent-
mother contends that post-petition gathered evidence is inadmissible for the purpose
of adjudicating a child as neglected. We disagree.
Findings 24, 25, and 26 detail three different mental health assessments and
office visits, including respondent-mother’s medication plan, alcohol use, and
behavior at the appointments. Two of the findings recommend therapy. Finding 27
summarizes that two separate mental health providers recommended that
respondent-mother engage in therapy, but respondent-mother had never engaged in
therapy. Finding 28 lists several different dates when the Center for Emotional
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Health recommended respondent-mother for therapy, and that another mental
health provider recommended therapy.
Finding 30 and 31 detail the 13 January incident, where respondent-mother
broke into the garage, and state that respondent-mother’s behavior during the
incident was erratic and not in the best interests of the children. Finding 32 explains
that the trial court observed respondent-mother “randomly” exiting the courtroom,
and that it observed her engaging in “inappropriate and/or erratic behaviors such
talking to herself, setting up framed pictures of the children on the defense table, and
making inappropriate gestures while various witnesses were testifying.” Finally,
finding 33 states, “It is clear to this Court that [respondent-mother’s] mental health
issues are a fixed and ongoing circumstance which impact her ability to appropriately
parent the minor children.”
“The adjudicatory hearing shall be a judicial process designed to adjudicate the
existence or nonexistence of any of the conditions alleged in a petition.” N.C.G.S.
§ 7B-802 (2025). At the adjudication hearing, the “inquiry focuses on the status of
the child at the time the petition is filed, not the post-petition actions of a party.” In
re L.N.H., 382 N.C. 536, 543 (2022). This is because “the conditions underlying
determination of whether a juvenile is an abused, neglected, or dependent juvenile
are fixed at the time of the filing of the petition.” Id. However, this Court has
previously determined that some ongoing conditions as alleged in the petition are
fixed; therefore, a trial court may consider evidence gathered after the petition was
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filed within the meaning of the statutory rule. See In re G.W., 286 N.C. App. 587, 594
(2022).
Conditions “which pertain[ ] to mental illness . . . have been determined by this
Court to be fixed and ongoing circumstances so that post-petition evidence about
them is allowed to be considered in a neglect adjudication.” Id. (cleaned up). Put
another way, trial courts may use evidence gathered after the petition was filed when
the evidence “relate[s] in whole or in part to ongoing circumstances relevant to the
existence or nonexistence of conditions alleged in the adjudication petition.” Id.
(cleaned up). Since then, our Supreme Court has upheld a trial court’s findings “that
respondent exhibited ‘extremely hostile and aggressive’ behavior and refused to
follow through with a recommended case plan to address those issues,” including
findings that discussed the “extremely hostile and aggressive behavior” of the
respondent-parent “in the Courtroom and aggressive comments directed towards
other participants,” which necessarily occurred after the petition was filed. In re A.J.,
386 N.C. at 415–16.
Because a panel of this Court has already decided the legal issue of whether
evidence gathered post-petition may be used in an adjudication when the evidence
relates to an ongoing condition alleged in the petition, and it has not been overturned
by a higher court, we are bound to follow that precedent. See In re Civil Penalty, 324
N.C. 373, 384 (1989) (“Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same court is bound by that
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precedent, unless it has been overturned by a higher court.”); see also State v.
Gonzalez, 263 N.C. App. 527, 531 (2019) (stating we must follow binding precedent of
this Court “even if the previous panel’s decision involved narrowing or distinguishing
an earlier controlling precedent—even one from the Supreme Court[.]”). Thus, we
must conclude that the trial court properly considered post-petition evidence related
to respondent-mother’s ongoing mental health condition. Therefore, respondent-
mother’s challenge to findings 24, 25, 26, 27, 28, 30, 31, 32, and 33 fails, and these
factual findings are binding on appeal.
2. Statements from Prior Adjudication Proceedings
Next, we turn to respondent-mother’s challenge to finding of fact 7, which
provides “[t]he parents in this matter have engaged in acts of domestic violence in the
presence of the minor children.”
Respondent-mother maintains that factual finding 7 is unsupported because
the only evidence supporting multiple instances of domestic violence in the presence
of the children stemmed from respondent-mother’s testimony from the “prior
adjudication hearing that resulted in a mistrial . . . .” Respondent-mother maintains
that because the “new trial was an entirely separate legal affair from the original
trial . . . [,] the testimony from the mistrial could not be used to prove independent
facts at the retrial.”
As an initial matter, this argument is not properly preserved for appellate
review. Respondent-mother argued below that the statements were inadmissible
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because they were made after the petition was filed, not because they were
statements from a proceeding that ended in a mistrial. See State v. Sharpe, 344 N.C.
190, 195 (1996) (“[W]here a theory argued on appeal was not raised before the trial
court, the law does not permit parties to swap horses between courts in order to get
a better mount” on appellate review. (cleaned up)).
But even if this argument were properly preserved, there are circumstances
where something is admissible from a prior proceeding ending in a mistrial. “When
the trial court declares a mistrial, ‘in legal contemplation there has been no trial.’ ”
State v. Harris, 198 N.C. App. 371, 376 (2009) (quoting State v. Sanders, 347 N.C.
587, 599 (1998)). “There can be no prior binding evidentiary rulings when [a]
defendant is tried again following a mistrial.” Id.; see also Burchette v. Lynch, 139
N.C. App. 756, 761 (2000) (“When a trial court orders a new trial, the case remains
on the civil docket for the trial de novo, unaffected by the rulings made therein during
the original trial . . . .” (cleaned up)). In a subsequent trial, therefore, a “defendant
would not be bound by evidence presented at the former trial.” Burchette, 139 N.C.
App. at 761 (cleaned up).
However, this rule is not absolute. See, e.g., State v. Dial, 122 N.C. App. 298,
305–06 (1996) (holding a prior court’s acceptance of a special verdict was binding in
a subsequent trial on the same matter despite the prior trial ending in a mistrial).
And it does not exclude testimony from a prior proceeding that ended in a mistrial
from being admissible at the subsequent proceeding. In State v. Carter, the victim
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testified in the defendant’s first trial, which ultimately ended in a mistrial. 338 N.C.
569, 583, 590 (1994). The victim was unavailable to testify in defendant’s subsequent
trial on the same matter. Id. at 591. Our Supreme Court held that her prior
testimony was admissible in the subsequent trial. Id. at 592–93.
Here, as in Carter, there is testimony from a prior proceeding—that ended in
a mistrial—and was used in a subsequent proceeding involving the same controversy.
Like the victim’s testimony was admissible in the subsequent trial in Carter,
respondent-mother’s statements from the earlier adjudication proceeding were
admissible and therefore constitute competent evidence to support the challenged
findings of fact. Though here, these are the statements of a party opponent and not
an unavailable witness who testified under oath in a prior proceeding, compare
N.C.G.S. § 8C-1, Rule 801(d) (2025) (hearsay exception for statements by a party-
opponent), with id. § 8C-1, Rule 804(b)(1) (2025) (hearsay exception for former
testimony), the same general principle applies: the testimony is admissible
notwithstanding the earlier mistrial. Accordingly, Lakeman’s testimony about
respondent-mother’s statements from the prior adjudication hearing that ended in a
mistrial was properly admitted.
Here, factual finding 7 states that multiple instances of domestic violence
happened in the presence of the children. This is supported by Lakeman’s testimony,
which detailed three separate instances of domestic violence between the respondent-
parents and occurred in the presence of the children, and by the testimony about the
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13 January incident, which happened in the presence of the minor children.
Therefore, finding 7 is supported by clear and convincing evidence.
3. Other Findings
The remaining factual findings that respondent-mother has challenged on
appeal are findings 10(c), 11(d), 11(e), 11(r), 11(x), 11(z), and 29. These findings state:
10. On or about August 9, 2024, [respondent-mother] was at the Respondents’ home with the minor children and a friend, Sierra Ritz.
....
c. [Respondent-mother] had consumed at least three alcoholic beverages.
11. On or about August 12, 2024, there was a domestic violence incident between [respondent-mother] and [respondent-father].
d. The minor children were in the room with [respondent-father] and [respondent-mother].
e. [Respondent-mother] grabbed the telephone out of [respondent-father’s] hand and threw his phone. [Respondent-father] felt threatened by [respondent- mother’s] behavior and called law enforcement officers. This incident occurred in the presence of the minor children.
r. Whether [respondent-mother’s] behavior was driven by mental health issues, substance use, or both is unclear to this Court. However, this court
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finds that [respondent-mother’s] behavior during the August 12, 2024 incident was erratic and not in the best interests of the children, who were present during this incident.
x. Ms. Ritz testified that when she left [respondent- mother’s] home, [Oscar] and [Perry] were asleep, but that [Harry] and [respondent-mother] were still awake. This contradicts [respondent-mother’s] testimony. This Court finds Ms. Ritz’s testimony to be reliable. However, this Court questions the veracity of Ms. Smith’s testimony.
z. Both Ms. Ritz and [respondent-mother’s] neighbor left the home, leaving [respondent-mother] without a sober caretaker for the minor that children. This is not in the minor children’s best interests.
29. Medication management is not sufficient to address the mental health concerns for [respondent-mother] based on testimony and evidence presented as well as this court’s observations of [respondent-mother] during court proceedings.
Finding of fact 11(e) is supported to the extent that it details the incident of
respondent-mother snatching the cell phone from respondent-father, as Detective
Henry and respondent-father’s testimonies detailing that respondent-mother
“ripped” the phone out of his hand and that respondent-father called 911 “to de-
escalate the situation” and “prevent it from going any further.” However, this factual
finding is unsupported to the extent that it states this incident happened in the
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presence of the children, as the record evidence supports that only one child was
present when respondent-mother grabbed the cell phone.
Finding of fact 11(r) is supported by Detective Henry’s testimony that on the
night in question, respondent-mother was “very agitated to a point where it seemed
like she was getting offended that [he] was not that officer that she had spoke[n] to
before.” This finding is also supported by Ritz’s testimony that respondent-mother
seemed “lost” or “confused” that evening. Respondent-father testified that
respondent-mother “erratically came and took something from me out of my hand
erratically.” Furthermore, all of the children were present for various portions of the
overall incident on 12 August, even if they did not all witness the phone being
“snatched.” Accordingly, finding 11(r) is supported by clear and convincing evidence.
The remaining findings may be unsupported. However, we need not determine
whether these findings were supported because they do not affect the conclusion. See
In re J.T.C., 273 N.C. App. 66, 68 (2020) (“[E]rroneous findings unnecessary to the
determination do not constitute reversible error where the trial court’s remaining
findings independently support its conclusions of law.” (cleaned up)).
G. Conclusion of Law
Respondent-mother challenges the trial court’s conclusion that adjudicated the
children neglected.
The trial court concluded that the children were neglected juveniles as defined
by subsection 7B-101(15) of our General Statutes because of lack of “proper care or
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supervision to the minor children, and that the parents created or allowed to be
created a living environment that is injurious to the juveniles’ welfare.”
A neglected juvenile is, as relevant here:
Any juvenile less than 18 years of age . . . whose parent, guardian, or caretaker does any of the following:
a. Does not provide proper care, supervision, or discipline.
e. Creates or allows to be created a living environment that is injurious to the juvenile’s welfare.
N.C.G.S. § 7B-101(15) (2025). “The clear and convincing evidence in the record must
show current circumstances that present a risk to the juvenile.” In re K.C., 295 N.C.
App. 363, 369 (2024) (cleaned up). “This Court has additionally required that there
be some physical, mental, or emotional impairment of the juvenile or a substantial
risk of such impairment as a consequence of the failure to provide proper care,
supervision, or discipline in order to adjudicate a juvenile neglected.” In re Helms,
127 N.C. App. 505, 511 (1997) (emphasis omitted) (cleaned up).
“Severe or dangerous conduct or a pattern of conduct either causing injury or
potentially causing injury to the juvenile may include alcohol or substance abuse by
the parent . . . .” In re D.B.J., 197 N.C. App. 752, 755 (2009) (cleaned up). “Other
conduct that supports a conclusion that a child is neglected includes exposing the
child to acts of domestic violence, . . . and threatening or abusive behavior toward
social workers and police officers in the presence of the children.” Id. “Mental health
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issues, which are a ‘fixed and ongoing circumstance,’ can lead to an adjudication of
neglect.” In re K.C., 295 N.C. App. at 369 (quoting In re G.W., 286 N.C. App. at 594).
“It is well-established that the trial court need not wait for actual harm to occur to
the child if there is a substantial risk of harm to the child in the home.” In re T.S.,
178 N.C. App. 110, 113 (2006).
Here, as discussed above, the trial court made findings that illustrate multiple
instances of domestic violence between the respondent-parents that happened in the
presence of the minor children. In particular, factual finding 30, detailing the 13
January 2025 incident, shows respondent-mother trying to break into the house—
where the children were—while the children were watching, and that she grabbed
two of the children and took them behind the house. Furthermore, factual finding 12
details that on 13 August 2024, respondent-mother locked Phillips out of the house,
consumed alcohol, and, in the presence of the children, “began yelling obscenities at
the individuals who remained in the front yard, including respondent-father, law
enforcement, and Ms. Phillips.” There are also many findings—such as factual
findings 16, 17, 18, 19, 20, 21, 22, 25, 26, and 28—about respondent-mother’s refusal
to engage in therapy despite multiple recommendations by her medical providers,
and warnings by medical providers about the interaction of her prescribed
medications with alcohol or other drugs.
Ultimately, the binding findings of fact show respondent-mother engaging in
“threatening or abusive behavior toward social workers and police officers in the
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presence of the children,” see In re D.B.J., 197 N.C. App. at 755; “exposing children to
acts of domestic violence,” see id.; and the proliferation of her mental health issues,
which are a fixed and ongoing concern, see In re K.C., 295 N.C. App. at 369.
Accordingly, the trial court’s findings support a conclusion of neglect.
V. Conclusion
For the foregoing reasons, we affirm the orders of the trial court.
AFFIRMED.
Chief Judge DILLON and Judge FLOOD concur.
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