In re A.J.L.H., 275 N.C. App. 11 (2020)
Stay granted
allowed 1/21/21
Held:
Vacated and Remanded
- THIS DECISION WAS REVERSED BY THE SUPREME COURT; see 384 N.C. 45 (2023).
- Facts: This action involves three children, where the appellant is the stepfather to the two older children and the biological father of the youngest child. The children share the same mother. After a DSS assessment of abuse based on the use of corporal punishment with a belt that caused bruising on the oldest child, who was 10 years old, DSS and the parents entered into a safety plan. Months later at a CFT meeting, DSS decided to file a petition alleging the oldest child was abused and neglected and the younger siblings were neglected. The safety plan had not been violated but the parents did not believe their disciplinary methods were cruel or unusual. After hearing, the children were adjudicated and the parents were denied visitation. The parents appeal challenging the adjudications and denial of visitation.
- The Juvenile Code requires the protection of a parent’s due process rights and the rules of evidence apply to adjudicatory hearings. G.S. 7B-802, -804.
- The oldest child’s out-of-court statements, which were objected to, were inadmissible hearsay. The child’s letter to the court as also inadmissible hearsay. No hearsay exception was offered or applies. Additionally, the child was not found to be unavailable as a witness.
- Prior reports involving the mother’s DSS history are a permitted business record exception to hearsay under Rule 803(6). There was a proper foundation laid for the business records.
- Abuse under G.S. 7B-101(1)(a)-(b) refers to “serious physical injury.” “The nature of the injury is dependent on the facts of each case.” Sl.Op. at 14. In this case, the evidence of temporary marks and bruises resulting from a spanking on the oldest child is not serious physical injury and does not support an abuse adjudication by clear and convincing evidence. There was no admissible evidence to support an abuse adjudication under G.S. 7B-101(c), which involves the use of cruel or grossly inappropriate discipline. The adjudication intertwines findings that were supported by competent admissible evidence and findings that relied on inadmissible evidence. Remanded for a new hearing.
Category:
Abuse, Neglect, DependencyStage:
Adjudicatory HearingTopic:
Evidence