In re B.W., ___ N.C. App. ___ (Nov. 17, 2020)

Held: 
Remanded
Reversed in Part
Vacated in Part
  • Facts: As part of an assessment of a report of abuse and neglect, two of the three children (ages 11.5 and 7.5 years old) were interviewed by a clinical social worker at a Child Advocacy Center (CAC). The interview was videotaped. The older child disclosed he was repeatedly raped and sexually assaulted by a male friend of his mother’s who occasionally spent the night; the younger child disclosed she had been touched inappropriately by the same man. DSS filed a petition; the children were removed from their home, and they began receiving counseling. Prior to the adjudicatory hearing, DSS filed a notice and motion to introduce the children’s hearsay statements under Rules 803(24) and 804(b)(5). At a pre-adjudication hearing, the court orally ruled the children would be unavailable to testify; no written order was prepared. Later, mother’s attorney subpoenaed the children for their testimony at the adjudicatory hearing, which the district court orally quashed upon the request of DSS and the children’s GAL. At the adjudicatory hearing, over objection, to the CAC interviewer’s hearsay testimony and the admission of the interview videos. The alleged perpetrator testified and denied the allegations. The two children were adjudicated abused and all three children were adjudicated neglected. Mother appeals.
  • Residual Hearsay Exceptions are reviewed for an abuse of discretion. There must also be a showing that the appellant was prejudiced and a different result would likely have occurred.
  • Rules 803(24) and 804(b)(5) require the court make specific findings. The NC Supreme Court requires the district court to conduct a 6-part inquiry. The only distinction between the two residual hearsay rules is the finding of unavailability for the declared, which is required by Rule 804(b)(5). A court’s failure to make the required findings or erroneous findings results in the appellate court reviewing the record to determine if it supports the trial court’s conclusion about the admissibility of the statements under the residual hearsay exception.
    • The trial court’s oral ruling about the children’s unavailability in the pre-adjudicatory hearing is not an entered judgment such that there are no findings of fact (there is no order). Although there was testimony from the children’s therapist at the pre-adjudicatory hearing, that testimony is not addressed in the adjudication order. DSS contends the record includes a letter from the counselor, but that letter is not a substitute for sworn testimony. The findings of the children’s unavailability in the adjudication order are not supported by competent evidence.
    • The introduction of the residual hearsay prejudiced mother – “Where the court’s findings and conclusions are not supported by other evidence, the admission of incompetent evidence is prejudicial.” Sl.Op. at 17. Without inadmissible hearsay, there is no clear and convincing evidence supporting the conclusion that the children were abused and neglected.
Category:
Abuse, Neglect, Dependency
Stage:
Adjudication
Topic:
Evidence
Tags:
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