In re J.M., 275 N.C. App. 517 (2020)

  • Facts: This is the second appeal of an adjudication and dispositional order regarding a juvenile. In the first appeal, the court of appeals remanded the adjudication of the juvenile as “seriously neglected” because of a misapprehension of law (serious neglect applies to responsible individuals; neglect applies to juveniles). The remand was for the district court to consider neglect within the proper statutory framework. The district court judge that heard the first adjudication hearing was no longer a judge, and a different judge was assigned to hear the remand. On remand, the second judge admitted the hearing transcript of the first hearing as well as other exhibits that had been admitted at the first hearing and took judicial notice of the findings of fact that were undisturbed by the court of appeals and the adjudication of this juvenile’s sibling as a neglected juvenile. No new evidence was admitted at the adjudicatory hearing held on remand. An adjudication of a neglected juvenile was rendered and the case proceeded to disposition. After the adjudication and dispositional orders were entered, respondent father appeals, arguing the substitute judge on remand resolved an evidentiary conflict and therefore exceeded her authority.
  • Rule 63 of the NC Rules of Civ Pro applies to this case (unlike In re Whisnant, 71 N.C. App. 439 (1984)). The first judge was unable to perform the duties of the court on remand because of the expiration of his term and his not being re-elected during the pendency of the appeal. Under Rule 63 the second judge was authorized to perform the duties of the court on remand; “ ‘[t]his court has interpreted the language of Rule 63 to statutorily authorize a substitute judge to reconsider [on remand] an order entered by a judge who has since ‘left the bench.” Sl.Op. at 9 (citations omitted). The remand in this case does not have the effect of a vacatur where portions of the order are void and of no effect. Instead, the remand was limited and precise, and a “remand Is not intended to be an opportunity for either respondent or petitioner to retry its case.” Sl.Op. at 10 (citation omitted). The substitute judge complied with the mandate on remand to reconsider the juvenile’s adjudication within the statutory framework and did not commit error.
  • The holding of State v. Bartlett, 368 N.C. 309 (2015), which interpreted G.S. 15A-977(d), is not relevant. That was a criminal case. There is not a similar requirement for an adjudication order in the Juvenile Code.
  • The substitute judge did not resolve an evidentiary conflict. The substitute judge was bound by the unchallenged findings of the first adjudication order. Those findings show a pattern of the mother making and recanting allegations about respondent’s mistreatment of her children and the first judge’s description of mother as not being forthcoming and of the evidence corroborating mother’s recanted allegations. The substitute judge’s findings are consistent with the first judge’s original findings of fact.
  • The focus on the credibility of mother is misguided because the determinative factors for a neglect adjudication are “the circumstances and conditions surrounding the child, not the fault or culpability of the parent.” Sl.Op. at 15. An appeal reviews findings and conclusions about the child’s status and “should not be morphed …into a question of culpability regarding the conduct of an individual parent.” Id.
Abuse, Neglect, Dependency
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