IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-66
No. COA20-311
Filed 16 March 2021
Rutherford County, Nos. 18 JA 101-02
IN THE MATTER OF: R.P., X.P.
Appeal by respondents from order entered 14 February 2020 by Judge Robert
Martelle in Rutherford County District Court. Heard in the Court of Appeals 24
February 2021.
King Law Offices PLLC, by Brian W. King and Thomas Morris, for petitioner- appellee Rutherford County Department of Social Services.
Miller and Audino LLP, by Jeffrey L. Miller, for respondent-appellant mother.
Surratt Thompson & Ceberio PLLC, by Christopher M. Watford, for respondent-appellant father.
Fox Rothschild LLP, by Kip D. Nelson, for Guardian ad Litem.
TYSON, Judge.
¶1 Respondents mother and father appeal the adjudication and initial disposition
order adjudicating their minor child, X.P. (“Xavier”) as abused and neglected. See
N.C. R. App. P. 42(b) (pseudonyms are used to protect the identity of the juveniles).
Respondent-father also appeals the trial court’s adjudication of R.P. (“Rorie”) as
abused and neglected. We vacate the orders and remand for a new adjudication and IN RE R.P.
Opinion of the Court
disposition hearing.
I. Background
¶2 Respondent-mother gave birth to Xavier, while in the bathtub at her parents’
home in July 2018. Xavier and Respondent-mother tested positive for amphetamines
and benzodiazepine after Xavier’s birth. Respondent-mother had failed to obtain
prenatal care prior to the birth. The Rutherford County Department of Social
Services (“DSS”) became involved with the family two days after Xavier’s birth.
¶3 DSS scheduled a child and family team (“CFT”) meeting and drug testing for
Respondents, their twelve-year-old child, Rorie, and Xavier for 28 August 2018. Both
Respondent-mother and Xavier tested positive for methamphetamine. Respondent-
mother and Xavier attended the CFT meeting and agreed to a safety plan.
Respondent-father failed to attend or to bring Rorie to be drug tested.
¶4 The safety plan included the family moving into the juveniles’ paternal
grandfather’s home. On 13 September 2018, when DSS arrived at the grandfather’s
home for the next scheduled CFT meeting, the family had moved back into their own
home. Rorie told DSS she had observed both of her parents use methamphetamine
in the home and she did not feel safe being around them. Rorie was tested the next
day and was negative for drugs.
¶5 DSS filed its original juvenile petitions on 13 September 2018, alleging Rorie
was neglected and Xavier was abused and neglected. DSS filed amended petitions IN RE R.P.
with the same allegations on 16 October 2018. The juveniles were placed into DSS’
custody. After initially being in foster care, Rorie was placed in the home of her
paternal grandfather and Xavier resided in a kinship placement.
¶6 Respondents acquiesced to an out-of-home services agreement on 21
September 2018. Both parents agreed to complete mental health and drug
assessments and comply with any recommended treatment. Respondents denied
drug usage and did not complete any drug assessments.
¶7 Respondent-mother tested positive for methamphetamine on 25 September
2018 and again on 25 October 2018. Respondent-father provided his first drug screen
on 25 October 2018, which was positive for methamphetamine and amphetamines.
On 4 January 2019, Respondent-mother tested positive for oxycodone,
methamphetamine, and amphetamines. Respondent-father tested positive for
methamphetamine and amphetamines on that same date.
¶8 The adjudication hearing was held 22 January 2019. All parties and their
attorneys were present before Judge C. Randy Pool. The parties stipulated to
thirteen statements of fact. The stipulations were introduced as Exhibit A and DSS
offered no other evidence at adjudication. The stipulations included the results of the
drug tests administered through the pendency of the case, that Xavier was abused
and neglected, and that Rorie was neglected. IN RE R.P.
¶9 Judge Pool indicated “based on the stipulations [he] would make findings of
fact consistent with those in the stipulation on Exhibit A, would -- based on that
stipulation -- enter the adjudications of neglect [of both juveniles] and abuse [of
Xavier].”
¶ 10 At the disposition stage of the hearing, the court received DSS’ court reports
and those of the guardian ad litem (“GAL”). The recommended permanent plan was
reunification. Judge Pool listed several conditions to be included in the order and
asked for DSS’ attorney to draft the order. The matter was to be set for review in
three months.
¶ 11 The adjudication and disposition orders were not signed until 14 February
2020. Judge Pool had resigned prior to that date, and the order was signed by the
chief district court judge, Judge Robert Martelle. Respondents timely appealed.
Respondent-mother noted her appeal only to the order regarding Xavier.
II. Jurisdiction
¶ 12 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(5)
(2019).
III. Standards of Review
¶ 13 This Court reviews a trial court’s adjudication of a child as a neglected or
abused juvenile to determine “(1) whether the findings of fact are supported by clear
and convincing evidence, and (2) whether the legal conclusions are supported by the IN RE R.P.
findings of fact.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
(citations omitted). “The trial court’s conclusions of law are reviewable de novo on
appeal.” In re K.J.D., 203 N.C. App. 653, 657, 692 S.E.2d 437, 441 (2010) (citation
and quotation marks omitted).
¶ 14 “The standard of review of the dispositional stage is whether the trial court
abused its discretion.” In re D.R.B., 182 N.C. App. 733, 735, 643 S.E.2d 77, 79 (2007).
An abuse of discretion occurs when the trial court acts under a misapprehension of
the law or its ruling is “so arbitrary that it could not have been the result of a reasoned
decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
IV. Issues
¶ 15 Respondents assert the adjudication and disposition orders signed by Judge
Martelle are void, and argue in the alternative, that their stipulations are
insufficient, standing alone, to support an adjudication of abuse or neglect.
Respondents further assert the trial court erred in relying solely upon written reports
and attorney arguments at the disposition stage.
V. Analysis
A. Ministerial Action
¶ 16 We take judicial notice that Judge Pool resigned from the bench and left the
orders unsigned. See N.C. Gen. Stat. § 8C-1, Rule 201 (2019) (court may take judicial
notice of fact not subject to reasonable dispute). North Carolina Rule of Civil IN RE R.P.
Procedure 63 allows the chief district court judge to sign orders upon the resignation
of a district court judge.
If by reason of death, sickness or other disability, resignation, retirement, expiration of term, removal from office, or other reason, a judge before whom an action has been tried or a hearing has been held is unable to perform the duties to be performed by the court under these rules after a verdict is returned or a trial or hearing is otherwise concluded, then those duties, including entry of judgment, may be performed:
...
(2) In actions in the district court, by the chief judge of the district, or if the chief judge is disabled, by any judge of the district court designated by the Director of the Administrative Office of the Courts.
If the substituted judge is satisfied that he or she cannot perform those duties because the judge did not preside at the trial or hearing or for any other reason, the judge may, in the judge’s discretion, grant a new trial or hearing.
N.C. Gen. Stat. § 1A-1, Rule 63 (2019) (emphasis supplied).
¶ 17 Respondents argue Rule 63 does not anticipate the chief district court judge’s
signing an adjudication order after the judge who presided at the hearing and heard
the evidence resigned without entry of the orders. Respondents rely upon this Court’s
holding that the function of a substituted judge is “ministerial rather than judicial.”
In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984).
¶ 18 In Whisnant, Judge Tate had conducted a hearing on a motion to terminate
the respondent’s parental rights on 20 October 1983. Id. at 440, 322 S.E.2d at 435. IN RE R.P.
Judge Tate stated insufficient evidence supported neglect, but evidence existed to
find nonpayment of support and “he believed the best interest of the child would be
served by termination of parental rights.” Id. Judge Tate directed the GAL attorney
to prepare the order. Id. The resulting adjudication and disposition orders listed
Judge Crotty had heard the matter and they were signed by Judge Crotty on 28
December 1983. Id. This Court held “Judge Crotty was without authority to sign the
order terminating respondent’s parental rights and the order he signed [was] a
nullity.” Id. at 441, 322 S.E.2d at 435.
¶ 19 Respondents, relying upon Whisnant, assert the judge presiding at the hearing
is the only one who hears all the evidence, passes upon the credibility of the witnesses,
and discerns the weight to be applied to the testimony and the inferences to be drawn
therefrom to adjudicate the issues. Respondents also argue Judge Pool, not Judge
Martelle, is the one who received their stipulation in open court on the day of the
hearing.
¶ 20 DSS and the GAL argue Judge Pool presided over the hearing and articulated
both his findings of fact and the basis of his decision, stating he “would make findings
of fact consistent with those in the stipulation on Exhibit A.” Judge Pool indicated
he “would - based on that stipulation - enter the adjudication of neglect and abuse . . .
as is admitted to.” DSS and the GAL assert that because of the stipulation all that
was left for Judge Martelle was to sign the order as a ministerial act. IN RE R.P.
¶ 21 Our Juvenile Code allows for stipulations by the parties to be received into
evidence at adjudication. N.C. Gen. Stat. § 7B-807(a) (2019). The statute provides
“[a] record of specific stipulated adjudicatory facts shall be made by either reducing
the facts to a writing, signed by each party stipulating to them and submitted to the
court; or by reading the facts into the record, followed by an oral statement of
agreement from each party stipulating to them.” Id. The statute requires the trial
court shall make and state the same findings “that the allegations in the petition
have been proven by clear and convincing evidence” as is required where live
testimony is presented. Id.
¶ 22 Here, the parties stipulated to the facts underlying the adjudication. This
stipulation was written and signed by all parties. It is unquestioned that the parties
were lawfully able to stipulate to the adjudicatory facts in this matter. Such
stipulations of underlying facts could properly have been included as part of the final
judgment.
¶ 23 However, nothing in the record or transcript shows Judge Pool ever made or
rendered the final findings of fact and conclusions of law in the unfiled and unsigned
orders. He merely stated he would enter the adjudication “as is admitted to.” Since
the record on appeal shows only a stipulation without any adjudication of the facts
and conclusions of law, or rendering of the order, any action by Judge Martelle to IN RE R.P.
cause the later prepared and unsigned draft order to be entered was not solely a
ministerial duty. In re Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435.
¶ 24 Further, the statutorily required disposition hearing requires the presiding
judge consider competent evidence “necessary to determine the needs of the juvenile
and the most appropriate disposition.” N.C. Gen. § 7B-901 (2019). Judge Martelle’s
signing of the disposition orders cannot be considered simply a ministerial act.
¶ 25 At the 22 January 2019 hearing, Judge Pool stated he “would make findings
consistent with the stipulations consistent with the reports presented by the
guardian ad litem and by the department of social services.” The court stated,
“reasonable efforts [had] been made by the agency” and that it would be “in the best
interest of the children to remain in DSS custody.” The court ordered Respondents
to comply with their out-of-home services agreements. These four findings are
included in the written orders.
¶ 26 All other purported findings and conclusions included in the order signed by
Judge Martelle are not reflected in any stipulations or oral statements of Judge Pool.
The written disposition portion of the order went beyond the oral recitations of Judge
Pool.
¶ 27 Rendering and entering judgment was more than a ministerial task. Judge
Martelle was without authority to sign the adjudication and disposition orders and
the orders are a “nullity.” In re Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435. IN RE R.P.
¶ 28 DSS asserts voiding Judge Martelle’s order would be an improper extension of
our Supreme Court of North Carolina’s recent holding in In re C.M.C., 373 N.C. 24,
28, 832 S.E.2d 681, 684 (2019). DSS argues the reasoning in C.M.C. is only applicable
to termination of parental rights hearings and orders and not to the initial
adjudication of the juveniles. DSS’ argument is unpersuasive and erroneous.
¶ 29 In C.M.C., our Supreme Court held a termination of parental rights order
signed by a different judge than the judge who presided over the termination hearing
was a nullity. Id. The Court specifically adopted the reasoning of this Court’s
decisions in In re Whisnant, 71 N.C. App. at 442, 322 S.E.2d at 435 and In re Savage,
163 N.C. App. 195, 198, 592 S.E.2d 610, 611 (2004). The Supreme Court concluded
the appropriateness of nullifying the orders stems “from the fact that N.C.G.S. § 1A-
1, Rule 52 requires a judge presiding over a non-jury trial to (1) make findings of fact,
(2) state conclusions of law arising on the facts found, and (3) enter judgment
accordingly.” In re C.M.C., 373 N.C. at 28, 832 S.E.2d at 684 (internal citation and
quotation marks omitted). The Court further recognized the appropriateness of their
result by noting N.C. Gen. Stat. § 1A-1, Rule 58 provides that “a judgment is entered
when it is reduced to writing, signed by the judge, and filed with the clerk of court.”
Id. (citation omitted).
¶ 30 Contrary to DSS’ assertion, our Supreme Court relied upon our rules of civil
procedure, not upon some perceived distinction between the gravity of a hearing on a IN RE R.P.
juvenile petition versus a hearing on a motion to terminate parental rights. See id.
Here, Judge Pool did not recite, render, nor sign the order. His unsigned order is not
a valid judgment from where Judge Pool presided over the adjudication hearing, and
Judge Martelle’s ministerial signature thereon cannot cure the judgment. See In re
C.M.C., 373 N.C. at 28, 832 S.E.2d at 684.
B. Stipulated Conclusions of Law
¶ 31 Our conclusion to vacate is also supported by other precedent. “It is well
established that stipulations as to questions of law are generally held invalid and
ineffective, and not binding upon the courts, either trial or appellate.” In re R.L.G.,
260 N.C. App. 70, 76, 816 S.E.2d 914, 919 (2018) (citation and internal quotation
marks omitted).
¶ 32 In the present case, the parties’ stipulation includes “the Respondent parents
stipulate and admit that [Xavier] is an abused and neglected juvenile” and that Rorie
is “a neglected juvenile.” Chapter 7B and our case law clearly require the trial court’s
legal conclusion that a child is abused or neglected be based upon DSS’ presentment
and admission of clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2019).
¶ 33 Here, the parties did not agree to the trial court entering a “consent
adjudication order” pursuant to N.C. Gen. Stat. § 7B-801(b1) (2019) (allowing consent
order to be entered where all parties consent, the juveniles are represented by counsel
and the court makes sufficient findings of fact). IN RE R.P.
¶ 34 DSS concedes Respondents’ stipulation that they believed their children to be
neglected and abused is not binding on a court as a legal conclusion. See In re R.L.G.,
260 N.C. App. at 76, 816 S.E.2d at 919.
¶ 35 The juvenile petition filed alleges Xavier was abused in that Respondents
“inflicted or allowed to be inflicted on the juvenile a serious physical injury by other
than accidental means.” See N.C. Gen. Stat. § 7B-101(1) (2019). The petition alleges
Xavier was neglected in that the Respondents did “not provide proper care,
supervision, or discipline” and “lives in an environment injurious to the juvenile’s
welfare.” See N.C. Gen. Stat. § 7B-101(15) (2019). DSS’ petition alleged the same
statutory prongs of neglect concerning Rorie.
¶ 36 According to the trial court’s finding of fact in In re R.L.G., the respondent had
admitted the juvenile was neglected because she did not ensure that the juvenile
attended school regularly. In re R.L.G., 260 N.C. App. at 76, 816 S.E.2d at 918. This
Court recognized “the determination of whether a juvenile is neglected within the
meaning of N.C. Gen. Stat. § 7B-101(15) is a conclusion of law.” Id. at 76, 816 S.E.2d
at 918-19. Such “[d]etermination that a child is not receiving proper care,
supervision, or discipline, requires the exercise of judgment by the trial court.” Id.
This Court held the respondent’s admission that the juvenile was a neglected juvenile
“was ineffective to support the trial court’s adjudication of neglect.” Id. IN RE R.P.
¶ 37 The formulation of this conclusion requires the hearing judge to consider the
properly admitted evidence, determine the weight and burden on DSS, and reconcile
the nexus, if any, between the stipulated facts, and to adjudicate whether the child is
neglected or abused. “The trial court’s findings must consist of more than a recitation
of the allegations contained in the juvenile petition. The trial court must, through
processes of logical reasoning, based on the evidentiary facts before it, find the
ultimate facts essential to support the conclusions of law.” In re K.P., 249 N.C. App.
620, 624, 790 S.E.2d 744, 747 (2016) (alterations and internal quotation marks
omitted) (citation omitted).
¶ 38 Judge Pool would have been unable to simply rest alone upon a stipulated
conclusion. It is equally clear Judge Martelle cannot, in the name of a ministerial
act, do what Judge Pool himself could not do. See id. Judge Martelle was not present
at the hearing and on the basis of the order alone could not adjudicate Rorie and
Xavier as neglected and abused as a conclusion of law, in a ministerial act.
¶ 39 DSS asserts there exists a distinction between accepting a stipulation as a
legal conclusion at an initial adjudication and disposition hearing versus accepting
one at a termination of parental rights hearing. DSS argues the trial court’s action
requires us to apply a lower standard, since it does not involve termination of parental
rights or a substantial deprivation of Respondents’ ability to see their children. DSS
asserts another judge signing off on an order after conduct of this hearing on IN RE R.P.
allegations of abuse and neglect and determining the appropriate initial disposition
is a ministerial task.
¶ 40 This assertion is not supported by the statute or our case law. The case of In
re R.L.G., an appeal of the initial adjudication hearing, was held upon DSS’ petition
alleging the juvenile was neglected. The disposition order in that case ordered DSS
to pursue the goal of reunification. In re R.L.G., 260 N.C. App. at 73, 816 S.E.2d at
916.
¶ 41 In the case of In re L.G.I., 227 N.C. App. 512, 515, 742 S.E.2d 832, 835 (2013),
the respondent had entered into a stipulation of certain facts during the adjudication
phase of the hearing. On appeal, this Court reviewed whether the adjudication order
was a valid consent adjudication order, and no additional evidence showing neglect
needed to be presented beyond the parties’ agreed upon facts. The respondent
asserted, and this Court agreed, that her stipulation did not convert the trial court’s
order into a consent adjudication order. Id. at 515, 742 S.E.2d at 835.
¶ 42 This Court affirmed the trial court’s adjudication because additional medical
record evidence in the record supported the respondent-mother’s prenatal drug
exposure, even without respondent-mother’s stipulation. Id. at 516, 742 S.E.2d at
835.
¶ 43 No other evidence beyond the parties’ stipulation was presented at the
adjudication hearing. Judge Pool was required to make findings of fact, adjudicated IN RE R.P.
and state conclusions of law arising on those facts, and enter judgment accordingly.
The parties did not and could not have stipulated to the final conclusion in this
matter.
¶ 44 Respondent-father also points out the written order also concludes Rorie “is
adjudicated to be an abused and neglected juvenile.” “The allegations in a petition
alleging that a juvenile is abused, neglected, or dependent shall be proved by clear
and convincing evidence.” N.C. Gen. Stat. § 7B-805. The underlying petition only
alleged neglect. The box alleging “abuse” on the petition was not checked. The parties
stipulated Rorie is neglected “[a]s a result of the frequent use of illegal controlled
substances.” No evidence was offered at the adjudication hearing and no findings of
fact in the order support a conclusion that Rorie was abused.
¶ 45 We categorically reject DSS’ argument that Judge Martelle’s rendering of Rorie
as abused in the absence of such allegation in the petition was within his discretion
or is, at worst, nonprejudicial or harmless error. Presuming Judge Pool had signed
the order, this conclusion is erroneous. No clear and convincing evidence supports a
conclusion Rorie was abused and that portion of the adjudication is vacated. Id.; In
re Gleisner, 141 N.C. App. at 480, 539 S.E.2d at 365; see also In re D.C., 183 N.C. App.
344, 349, 644 S.E.2d 640, 643 (2007) (holding where DSS did not click the box or
allege neglect in its petition, the trial court erred by entering an order adjudicating
the juvenile to be a neglected juvenile”). That conclusion is vacated. IN RE R.P.
C. Disposition
¶ 46 Respondents also argue the trial court abused its discretion in rendering its
disposition without sufficient credible and competent evidence to support its findings.
DSS and the GAL respond that the initial disposition hearings are informal and there
is no requirement that the order be supported by live testimony, just competent
evidence. Both DSS and the GAL presented court reports to Judge Pool at the
disposition stage. Because we hold the adjudication orders signed by Judge Martelle
are “a nullity.” It is unnecessary to reach the merits of these arguments. In re
Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435.
VI. Conclusion
¶ 47 Notwithstanding the parties entered into specific stipulation of facts that Rorie
was neglected and that Xavier was abused and neglected, Judge Pool did not
adjudicate the evidence, enter conclusions of law, and render an order. The chief
district court judge could not properly sign the later written adjudication and
disposition orders as merely a ministerial duty. The orders are vacated and the case
is remanded for a new hearing. It is so ordered.
VACATED AND REMANDED.
Judges COLLINS and WOOD concur.