The trial court erred in a child neglect adjudicatory hearing by entering findings of fact
not proved by clear, cogent, and convincing evidence even though respondent mother denied the
allegations without contesting them, because: (1) the Department of Social Services (DSS) still
had the burden of proving by clear, cogent, and convincing evidence the allegations contained in
the petition; and (2) DSS did not present any evidence by which the trial court could make
findings of fact or conclusions of law.
HALL & HALL ATTORNEYS AT LAW, PC by Douglas L. Hall for
respondent-appellant.
Charlotte A. Wade for petitioner-appellee.
Michael N. Tousey for guardian ad litem-appellee.
TIMMONS-GOODSON, Judge.
K.S. (“respondent”) appeals an order of the trial court
adjudicating her biological children, A.W. and E.W., neglected and
granting guardianship of the children to their paternal
grandparents. For the reasons stated herein, we vacate the order
of the trial court and remand the case for a new trial.
The pertinent factual and procedural history of this case is
as follows: On 27 June 2002, the Buncombe County Department of
Social Services (“DSS”) filed a petition alleging that the minor
children were neglected in that they lived in an environment
injurious to their welfare. The petition alleged that on or about
19 December 2001, DSS found conditions at the home that respondentshared with A.W., E.W., and the children's biological father,
L.K.W., to be “unsanitary” and “hazardous.” The children were
voluntarily placed with their paternal grandmother and her husband
while respondent and the children's father were referred to a
substance abuse treatment program. From that time until the
hearing at issue on appeal, respondent had no contact with the
children.
At the adjudication and disposition hearing, DSS sought to
grant guardianship of the children to their grandparents. At the
hearing, respondent stated that she denied the allegations of
neglect “without contesting them.” The trial court entered an
order adjudicating A.W and E.W. as neglected, and granted
guardianship of the children to their grandparents. It is from
this order that respondent appeals.
The dispositive issue on appeal is whether the trial court's
findings that the children were neglected are supported by clear,
cogent and convincing evidence where respondent denied the
allegations “without contesting them.”
Respondent asserts that although she denied the allegations,
“without contesting them,” DSS still had the burden of proving by
clear, cogent and convincing evidence the allegations contained in
the petition. We agree.
The Juvenile Code contained in our General Statutes provides
that an adjudicatory hearing is “a judicial process designed to
adjudicate the existence or nonexistence of any of the conditions
alleged in a petition.” N.C. Gen. Stat. § 7B-802 (2003). Thetrial court is obligated during the adjudicatory hearing to
“protect the rights of the juvenile and the juvenile's parent to
assure due process of law.” Id. “The allegations in a petition
alleging abuse, neglect, or dependency shall be proved by clear and
convincing evidence.” N.C. Gen. Stat. § 7B-805 (2003).
If the court finds that the allegations in the
petition have been proven by clear and
convincing evidence, the court shall so state.
If the court finds that the allegations have
not been proven, the court shall dismiss the
petition with prejudice . . . . The
adjudicatory order shall be in writing and
shall contain appropriate findings of fact and
conclusions of law.
N.C. Gen. Stat. § 7B-807 (2003).
A neglected juvenile is defined by statute as a juvenile who
does not receive proper care, supervision, or
discipline from the juvenile's parent;. . .who
has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2003). “An adjudication of abuse,
neglect or dependency in the absence of an adjudicatory hearing is
permitted only in very limited circumstances.” In re Shaw, 152
N.C. App. 126, 129, 566 S.E.2d 744, 746 (2002).
In the present case, DSS did not present any evidence by which
the trial court could make findings of fact or conclusions of law.
The extent of the adjudicatory phase of the hearing is as follows:
DSS: This is the West matter on
Margin 4 of the calendar.
Anyone involved in the West
matter please come into the
courtroom at this time.
[Respondent's counsel] just
informed me that with respectto the allegations alleged,
that the client would deny but
not contest.
Court: Okay.
DSS: It is my understanding in
speaking with Ms. Shade who
represents the caregiver, that
she consents - - or has no
objections to anything.
Respondent: There's no allegations, Your
Honor.
Court: Okay.
DSS: Your Honor, we're ready to
proceed on dispositioning.
Nevertheless, the trial court entered the following pertinent
findings of fact on adjudication:
6. That the Court was informed that [K.S.]
denies, but does not contest, that the
minor children are neglected children
based on the allegations contained in the
Juvenile Petitions.
7. That on or about December 19, 2001, the
Buncombe County Department of Social
Services substantiated neglect due to the
minor children residing in a home where
parent's [sic] engaged in substance
abuse. In addition, there were concerns
about the condition of the home,
including broken glass, unsafe steps to
the entry to the home, trash piled up to
the point of limiting one's ability to
walk in the home as well as outside the
home. The Buncombe County Department of
Social Services substantiated that the
parent's [sic] created an injurious
environment for their children by
allowing their children to reside in a
hazardous environment with their drug use
and the unsanitary conditions of the
home. The children were voluntarily
placed with the paternal grandparents in
a kinship placement on December 19, 2001.
And the parent's [sic] were referred to
Blue Ridge Center for a Substance Abuse
assessment and/or treatment. The caseplan also included that the parents
maintain a safe and secure home for the
children. Since December 19, 2001, the
parents moved several times and at the
time of the filing of the juvenile
petitions their whereabouts were unknown.
The parents also refused to comply with
the recommendations of the Buncombe
County Department of Social Services to
address their substance abuse issues by
not keeping scheduled appointments,
submitting to drug and alcohol
assessments, and remaining drug/alcohol
free. The parents failed to provide
emotional and physical care for their
children, the parents have not had
contact with the children since December
2001 when the children were placed in a
kinship placement.
8. That based on the above findings of fact
the minor children are neglected children
as defined by N.C.G.S. §7B-101, due to
the children living in an environment
injurious to their welfare due to the
substance abuse problems of their parents
and the unsanitary condition of the home.
Finding of fact number 7 recites verbatim the Summary of DSS
Intervention with Family provided in the DSS's Dispositional Report
to the Court. However, this report was not introduced into
evidence during the brief adjudicatory phase of the hearing. A
trial court may not find as fact that which was not presented as
evidence at trial. Cf. State v. Fernandez, 346 N.C. 1, 11, 484
S.E.2d 350, 357 (1997) (“The trial court's findings of fact must be
supported by the evidence.”). Likewise, where there is no evidence
presented at an adjudicatory hearing, the trial court cannot make
findings of fact based on clear and convincing evidence. See In re
Ellis, 135 N.C. App. 338, 342, 520 S.E.2d 118, 121 (1999)
(Affirming a trial court's finding of fact that there was
insufficient evidence to support a finding of neglect or abuse). For these reasons, we hold that the trial court erred by entering
findings of fact not proved by clear, cogent and convincing
evidence. Accordingly, we hereby reverse the judgment of the trial
court and remand the case for trial.
Reversed and remanded.
Judges LEVINSON and THORNBURG concur.
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