[1]The dispositive issue on appeal is whether the trial court
erred by finding that the allegations of neglect contained in the
petition had been proved by clear and convincing evidence.
Respondent argues that her failure to be present at the
adjudicatory hearing did not relieve the trial court of its duty to
find based on competent evidence that the allegations of neglect
contained in the petition were supported by clear and convincing
evidence. We agree.
A neglected juvenile is one who “does not receive proper care,
supervision, or discipline from the juvenile's parent, guardian,
custodian, or caretaker; or who . . . lives in an environment
injurious to the juvenile's welfare[.]” N.C. Gen. Stat. § 7A-
517(21), repealed effective 1 July 1999, S.L. 1998-202, s.5. When
a child is alleged to be neglected, the trial court must conduct an
adjudicatory hearing designed to determine the existence or
nonexistence of any of the conditions alleged in the petition.
N.C. Gen. Stat. § 7A-631, repealed effective 1 July 1999, S.L.
1998-202, s.5. The allegations contained in a petition may be
admitted or denied.
See N.C. Gen. Stat. § 7A-633, repealed
effective 1 July 1999, S.L. 1998-202, s.5. At the hearing, the
trial court must protect the due process rights not only of the
child, but also of the parent.
The adjudicatory hearing shall be a judicial
process designed to adjudicate the existence
or nonexistence of any of the conditions
alleged in a petition. In the adjudicatoryhearing, the judge shall protect the following
rights of the juvenile and his parent to
assure due process of law: the right to
written notice of the facts alleged in the
petition, the right to counsel, the right to
confront and cross-examine witnesses, the
privilege against self-incrimination, the
right of discovery and all rights afforded
adult offenders except the right to bail, the
right of self-representation, and the right of
trial by jury.
N.C.G.S. § 7A-631.
“Where the juvenile is alleged to be abused,
neglected, or dependent, the rules of evidence in civil cases shall
apply.” N.C. Gen. Stat. § 7A-634(b), repealed effective 1 July
1999, S.L. 1998-202, s.5. The allegations of a petition alleging
neglect must be proved by clear and convincing evidence. N.C. Gen.
Stat. § 7A-635, repealed effective 1 July 1999, S.L. 1998-202, s.5.
North Carolina General Statutes section 7A-641 authorizes
consent orders in limited instances:
Nothing in this Article precludes the judge
from entering a consent order or judgment on a
petition for abuse, neglect or dependency when
all parties are present, the juvenile is
represented by counsel and all other parties
are either represented by counsel or have
waived counsel, and sufficient findings of
fact are made by the judge.
N.C. Gen. Stat. § 7A-641, repealed effective 1 July 1999, S.L.
1998-202, s.5. “A judgment by consent is the agreement of the
parties, their decree, entered upon the record with the sanction of
the court[,]”
McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27,
31 (1948), and operates as a judgment on the merits.
Id. at 719-
20, 47 S.E.2d at 31.
Petitioner argues that the trial court was authorized to enterin essence a default judgment based on the allegation
s contained in
the verified petition, the stipulations of the father, the absence
of respondent, and the failure of her counsel to present any
evidence. For the reasons that follow, we are compelled to
disagree.
According to Rule 12(c) of the North Carolina Rules of Civil
Procedure, the trial court may, upon motion of any party, enter
judgment solely on the pleadings. N.C. Gen. Stat. § 1A-1, Rule
12(c) (1999). The Rules of Civil Procedure apply “in the district
court division of the General Court of Justice,” unless otherwise
provided in a pertinent provision of Chapter 7A. N.C. Gen. Stat.
§ 7A-193, repealed effective 1 July 1999, S.L. 1998-202, s.5.
Therefore, unless the provisions of Chapter 7A, Hearing Procedures,
explicitly or implicitly provide otherwise, Rule 12(c) applies in
the case at bar.
In the present case, the trial court incorrectly assumed that
it could, on its own motion, accept the verified petition and enter
judgment on the petition. The trial court was not authorized to
enter judgment on the pleadings pursuant to Rule 12(c) because
neither party moved for judgment on the pleadings. N.C.G.S. § 1A-
1, Rule 12(c). Furthermore, we believe that judgment on the
pleadings was implicitly precluded by the provisions of Chapter 7A,
Hearing Procedures. As stated above, the trial court must conduct
a hearing to adjudicate the existence or nonexistence of the
conditions of neglect alleged in the petition. N.C.G.S. § 7A-631.
The quantum of evidence at the hearing is clear and convincingevidence. N.C.G.S. § 7A-635.
This Court has adopted a similar line of reasoning in cases
pertaining to termination of parental rights. In
In re Tyner, 106
N.C. App. 480, 483, 417 S.E.2d 260, 261 (1992), this Court held
that the respondent's failure to file an answer did not authorize
the trial court to enter a “default type” order terminating the
respondent's parental rights.
See also In re Quevedo, 106 N.C.
App. 574, 419 S.E.2d 158 (1992) (Greene, J., concurring).
Just as a default judgment or judgment on the pleadings is
inappropriate in a proceeding involving termination of parental
rights, it is equally inappropriate in an adjudication of neglect.
We note that an adjudication of neglect constitutes grounds for
terminating parental rights and is frequently the basis for a
termination proceeding. N.C. Gen. Stat. § 7A-289.32(2), repealed
effective 1 July 1999, S.L. 1998-202, s.5. As the link between a
parent and child is a fundamental right worthy of the highest
degree of scrutiny,
In re Baby Girl Dockery, 128 N.C. App. 631, 495
S.E.2d 417 (1998), the trial court must fulfill all procedural
requirements in the course of its duty to determine whether
allegations of neglect are supported by clear and convincing
evidence.
Finally, our decision in the present case is consistent with
this Court's holding in
In re Murphy, 105 N.C. App. 651, 414 S.E.2d
236,
aff'd, 332 N.C. 663, 422 S.E.2d 577 (1992). In
Murphy, the
respondent was incarcerated at the time his parental rights were
terminated. At issue on appeal was whether he had a right to bepresent at the hearing. This Court stated:
When, as here, a parent is absent from a
termination proceeding and the trial court
preserves the adversarial nature of the
proceeding by allowing the parent's counsel to
cross examine witnesses, with the questions
and answers being recorded, the parent must
demonstrate some actual prejudice in order to
prevail upon appeal.
Id. at 658, 414 S.E.2d at 400. While
Murphy indicates that the
trial court must allow counsel for the absent parent to cross-
examine witnesses, respondent's counsel in the present case was
denied the opportunity to cross-examine witnesses, compromising the
“adversarial nature of the proceeding.”
Id.
[2]Petitioner argues that the father's stipulation supported
an adjudication of neglect. While North Carolina General Statutes
section 7A-641 authorizes judgments on a petition, consent
judgments are appropriate only in limited instances. According to
the mandates of section 7A-641, all parties must be present in
order for the trial court to enter a consent judgment. In the case
at bar, respondent was not present and, as such, no valid consent
judgment could be entered.
See also Brundage v. Foye, 118 N.C.
App. 138, 454 S.E.2d 669 (1995) (holding that where a consent
judgment is entered against two parties with the consent of only
one, the trial court must set the consent judgment aside as to both
parties). We conclude that the father's purported consent was not
sufficient to support a finding of neglect.
For the reasons stated herein, we hold that the trial court
erred in finding the allegations of neglect contained in the
petition had been proved by clear and convincing evidence. Thejudgment of the trial court is therefore reversed and the matter is
remanded for a trial.
Reversed and remanded.
Judges GREENE and WALKER concur.
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