In re A.J., 289 N.C. App. 632 (2023)

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Stay granted

August 23, 2023 and dissolved September 7, 2023; writ of supersedeas granted September 8, 2023

Held:

Reversed and Remanded

Facts: DSS filed juvenile petitions alleging three juveniles (ages four, 13, and 15) were neglected, and the two older juveniles were also dependent based on three incidents reported to DSS. The two older juveniles had been voluntarily residing with their maternal great aunt, while the younger juvenile resided with the mother. One incident alleged an altercation between the mother and the 13-year old, where the child refused to exit the car; mother attempted to remove the child from the car by her leg; the child locked herself in the car; the mother broke the car window to unlock the car, slapped and hit the juvenile with a belt, and choked and threatened to kill the child. A second incident alleged the mother choked the 13-year old and threw her out of the car. The third incident alleged the mother locked the 13-year old out of the house following an argument about transferring the juvenile’s school district; when a social worker arrived, law enforcement had handcuffed mother to calm her down, which was witnessed by the youngest juvenile who was visibly upset, while the juvenile sought safety at a neighbor’s. At the adjudicatory hearing and over mother’s objections, DSS presented testimony of two social workers who testified to statements purportedly made to them by the 13-year old, noticed by DSS as admissible under the residual hearsay exception Rule 803(24) but presented by DSS at hearing as admissible as a statement by a party opponent. The court allowed the child’s statements as an admission of a party. The three juveniles were adjudicated neglected and the two older juveniles were also adjudicated dependent. All three juveniles were placed into DSS custody. Mother appeals.
G.S. 7B-101(15) defines a neglected juvenile as one who does not receive proper care, supervision, or discipline or who lives in an injurious environment.
Some of the findings of fact were supported by inadmissible hearsay evidence. Those findings are disregarded. There was no properly admitted evidence to support the alleged second incident of mother choking child.
Evidence does support that an argument between mother and child occurred in the car (first incident) and the incident that occurred when mother informed the juvenile that she would be transferring schools (third incident) but does not support the full findings about each incident.
Supported findings regarding the first and third incidents are insufficient to establish mother’s improper care or supervision of her children.

“An argument between a parent and child or use of corporal punishment, with no evidence of any resulting marks, bruising, or other injury, does not constitute neglect.” Sl. Op. at 11-12.
“The place of the family’s residence and choice of their children’s school is a parent’s prerogative under parental care, custody, and control.” Sl. Op. at 12. The court found the properly admitted evidence establishes that the 13-year-old has “a recalcitrant and undisciplined pattern of behavior,” while mother testified she believed her actions relating to the car incident and school transfer were necessary due to the 13-year-old’s aggressive behavior. Sl. Op. at 13.
“Where a child is residing in a voluntary kinship arrangement prior to any DSS involvement, and no evidence or adjudicatory findings support a conclusion the child has been subjected to harm in the parent’s primary care, custody, and control, ‘the findings and evidence do not support a conclusion’ of the child ‘living in an environment injurious to her welfare and not receiving proper care and supervision.’ “ Sl. Op. at 13 (citation omitted). With the 13-year-old juvenile living with relatives during all relevant periods and with mother’s permission, the trial court erred in adjudicating the 13-year old as neglected.

Under G.S. 7B-101(15), it is relevant whether a juvenile lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home. The court made no evidentiary findings concerning the other older juvenile who did not live with her mother, and only one relevant finding concerning the youngest juvenile – her presence during the third incident. This single finding does not support the conclusion that the youngest juvenile was neglected. With the evidence failing to support the 13-year-old juvenile as neglected, the trial court “erred in, ipso facto” adjudicating the two siblings neglected juveniles.
The findings describing the behaviors of mother and the youngest child during the adjudicatory hearing is irrelevant when determining the existence or nonexistence of the conditions alleged in the petition, which is the purpose of the adjudicatory hearing. See G.S. 7B-802.