In re K.W., 272 N.C. App. 487 (2020)

  • Facts: DSS became involved after mother reported to the child’s therapist that the children were abused and neglected by their father when there were in his care (joint custody had been ordered under a G.S. Chapter 50 order). Mother made numerous reports of the children’s mistreatment by father to various professionals, including medical providers who were assessing the children for abuse, and law enforcement. All of mother’s allegations were false. The children would repeat mother’s false disclosures and the older child was fearful and anxious about seeing her father and was diagnosed with Generalized Anxiety Disorder. DSS filed a petition and obtained a nonsecure custody order where the children were placed with their father. Based on several inappropriate incidents involving mother and visitation, the court limited her visitation to electronic only. The court adjudicated the older juvenile abused and neglected and the younger juvenile neglected. At disposition, no new evidence was taken; mother was self-represented (with standby counsel), and after arguments were made the court ordered mother visitation remain the same but authorized DSS to allow for in-person visitation when she made progress on her case plan. Mother appeals the abuse adjudication and disposition.
  •  Testimony at Initial Disposition:  Mother challenges the disposition based on the court not taking sworn testimony at the initial dispositional hearing. “Mother overstates the formal requirements of an initial disposition hearing.” Sl.Op. at 9. There is a statutory two-step: adjudication and disposition. Although the adjudication hearing has heightened requirements to protect the rights and due process of the parent and applies the Rules of Evidence and a standard of clear and convincing evidence, the initial dispositional hearing may be informal, consider evidence that is not barred by the Rules of Evidence, and incorporate into its findings information from written reports and adjudicatory findings. The dispositional hearing is inquisitive and is based on the best interests of the child as opposed to the adjudication which is a formal, adversarial process designed to determine the truth or falsity of the allegations in the petition. G.S. 7B-901(a) allows for the court to rely on written reports and incorporate findings from the adjudication, and if these findings are sufficient to support the disposition, “there is no need for the court to hear additional testimony.” Sl.Op. at 10. Sworn testimony is required when the order relies on information from individuals who address the court at the dispositional hearing. Here, no new information was provided such that the lack of sworn testimony was not improper.
    •  Author’s note: This holding differs from the need to have sworn testimony at a review/permanent planning hearing. The language in G.S. 7B-906.1(c) that applies to those hearing differs from G.S. 7B-901(c), which applies to the initial dispositional hearing, and there are published opinions that address the need for sworn testimony at these types of hearings.
Abuse, Neglect, Dependency
Disposition (All Stages Post-Adjudication)
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