In re E.P.-L.M., ___ N.C. App. ___ (Aug. 4, 2020)

Held: 
Affirmed in Part; Vacated in Part; and Remanded
  • Facts: Prior to DSS involvement, there was a Chapter 50 civil custody order that awarded joint physical custody to both parents, with the juvenile primarily living with mother as father had moved to Georgia. Mother and juvenile resided with maternal grandmother. DSS became involved when mother and grandmother made multiple reports of sexual abuse of the juvenile by the father. After multiple medical assessments and DSS and law enforcement investigations, none of the reports of sexual abuse were substantiated. During in-home services with DSS, mother refused to agree to a placement of the juvenile with paternal relatives. DSS filed a petition alleging abuse, neglect, and dependency based on mother’s substance abuse, housing, and repeated unsubstantiated reports of sexual abuse by the father. At hearing, DSS, the GAL, and father provided stipulations to the court; mother did not stipulate resulting in a hearing where the stipulations were admitted as well as testimony from the social worker, mother, and mother’s substance abuse counselor. The child was adjudicated all three alleged conditions. The court entered a dispositional order that awarded custody to father and supervised visitation both electronically and in person for mother through a modification of the Chapter 50 custody order based on a substantial change in circumstances and terminated its jurisdiction in the juvenile action through G.S. 7B-911. Mother appeals, challenging the adjudications based on stipulations, the 7B-911 order, and the visitation order.
  • Stipulations and Burden of Proof – Preservation of Issue of Appeal: Mother argues the stipulations were not competent evidence and the trial court erroneously shifted the burden of proof to mother to refute the stipulations. Mother did not preserve the issues raised on appeal as she did not object to the admission of the stipulations or the use of those stipulations as competent evidence. “It is well settled that an error, even one of constitutional magnitude, that defendant does not bring to the trial court’s attention is waived and will not be considered on appeal,” and this rule applies to evidentiary arguments in abuse, neglect, and dependency proceedings. Sl.Op. at 9. “Evidence admitted without objection is properly considered by the court and, on appeal, the question of its competency cannot be presented for the first time.” Sl.Op. at 10-11 (emphasis in opinion).
    • Concurrence (Murphy): Addressing the use of stipulations even though mother did not preserve the argument for appeal. The trial court improperly relied on the stipulation against mother since she was not a party to the stipulation stating “[s]tipulations do not extend beyond what was agreed to, and do not extend to parties who did not agree to them either.” Concurrence at 2. The trial court improperly shifted the burden to mother when it stated “mother’s evidence did not convince the [trial c]ourt that any of these stipulations were in fact accurate.” Concurrent at 6. DSS, as petitioner, has the burden of proof.
Category:
Abuse, Neglect, Dependency
Stage:
Adjudication
Topic:
Evidence
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