In re F.S., 268 N.C. App. 34 (2019) (originally unpublished subsequently published)
Held:
Reversed
- Facts and Procedural History: DSS filed its first petition alleging neglect and dependency in 2016. In 2017, the child was adjudicated neglected and dependent based mother’s on substance use. Respondent mother appealed, and in 2018 the court of appeals unanimously reversed the adjudication (unpublished opinion) because the facts did not establish harm or risk of harm to the juvenile. During the pendency of the appeal, mother entered into a case plan with DSS. During that period, mother was hospitalized at least 8 times for alcohol addiction and symptoms of withdrawal. On the date of the COA mandate, DSS filed a second petition alleging (1) neglect based on a lack of proper care, supervision, and discipline by a parent and living in an injurious environment and (2) dependency. At hearing, residual hearsay involving the child’s statements about mother’s drinking was admitted over objection. The DSS social worker (who was the second social worker assigned to the case) testified to statements the child purportedly made to other individuals (including the prior DSS social worker and child’s therapist). There was also testimony from the DSS supervisor about mother’s need for hospitalizations prior to the filing of the second petition due to mother’s use of impairing substances and her current participation in and compliance with the case plan. Respondent mother offered no evidence at the hearing. The child was adjudicated neglected and dependent and placed in DSS custody. Respondent mother appealed.
- Residual Hearsay Exception: The child’s hearsay statements were admitted under Rule of Evidence 803(24) – the residual hearsay exception. For admission, the proponent must give written notice of its intention to offer the statement and the particulars of the statement. The court must find all three factors of Rule 803(24): the statement (1) is offered as evidence of a material fact; (2) is more probative on the point than any other evidence the proponent can procure through reasonable efforts, and (3) admission of the statement serves the general purposes of the rules of evidence and interests of justice.
- The standard of review is an abuse of discretion; respondent mother must show she was prejudiced and a different result would likely have occurred had the statement not been admitted.
- There was no testimony, arguments, or findings required by Rule 803(24).
- The former social worker, the therapist, and the child were not called to testify and there were no findings by the court about their unavailability. The argument that availability of the child should be consider mother’s failure to subpoena the child is rejected since DSS and not respondent mother has the burden of proof in an adjudicatory hearing.
- There were no findings of the circumstantial guarantee of trustworthiness of the child’s statements. The statements testified to by the current social worker were double hearsay as there were a summary of meeting notes taken by the former social worker and the therapist and were not heard by the social worker who was testifying. There were no findings of the conditions, situation, and motivation to be truthful under which the purported statements were made.
- Without the child’s hearsay statements, the record does not support the court’s conclusion. Respondent mother was prejudiced by the admission.
- Collateral estoppel precludes DSS from retrying the fully litigated issues that were decided in the first adjudication but does not preclude an adjudication based on new allegations and events which occurred after the first adjudication.
Category:
Abuse, Neglect, DependencyStage:
AdjudicationTopic:
Evidence