In re L.N.H. ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-109
No. 393PA20
Filed 4 November 2022
IN THE MATTER OF L.N.H.
Appeal pursuant to N.C.G.S. § 7A-31 from a unanimous, unpublished decision
of the Court of Appeals, 272 N.C. App. 695, 2020 WL 4462550 (2020), reversing in
part, vacating in part, and remanding the trial court’s order entered on 23 August
2019 by Judge Marcus A. Shields in District Court, Guilford County. Heard in the
Supreme Court on 23 May 2022 in session in the Old Burke County Courthouse in
the City of Morganton pursuant to N.C.G.S. § 7A-10(a).
Mercedes O. Chut, for appellant Guilford County Department of Health and
Human Services.
Matthew D. Wunsche, for appellant Guardian ad Litem.
Jeffrey L. Miller, for appellant respondent-mother.
BERGER, Justice.
¶1 Appellant Guilford County Department of Health and Human Services (DSS)
appeals from a decision of the Court of Appeals which reversed in part and vacated
in part the trial court’s adjudications of abuse, neglect, and dependency, as well as
the disposition and permanency planning order in the matter of L.N.H. In re L.N.H.,
272 N.C. App. 695, 2020 WL 4462550 (2020) (unpublished). DSS filed a petition for
discretionary review on September 8, 2020. Respondent-mother filed a conditional
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petition for discretionary review on September 28, 2020. We allowed both petitions
on December 14, 2021.
I. Factual and Procedural Background
¶2 Lea1 was born in February 2019. On May 7, 2019, DSS began an investigation
after receiving a report regarding Lea’s hospitalization. The report alleged that
respondent-mother punched Lea in the chest, sprayed a green liquid on Lea, waved
a lighter near Lea’s face, and burned Lea’s feet with a lighter. The report also alleged
that Lea was subsequently left outside on the porch unattended. Respondent-mother
was arrested and charged with felony child abuse inflicting serious injury and held
in the Guilford County Jail under a $500,000.00 bond. Medical records obtained by
DSS from the hospital confirmed that Lea suffered burns to her feet.
¶3 Social worker Jerin Elliot interviewed respondent-mother in jail on May 8,
2019. Consistent with her statement to another social worker on the day of the
incident, respondent-mother told Elliott that she did not remember the events leading
to Lea’s hospitalization; she only remembered that she had put the child to bed, drank
alcohol, and then went to sleep. Respondent-mother admitted she suffered from
depression and had not been taking her medication. She further identified Bruce
Rutledge as Lea’s father, but she did not have his contact information. Elliott’s
1 Pseudonyms are used in this opinion to protect the juvenile’s identity and for ease of
reading.
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investigation further revealed that respondent-mother told her mother that when Lea
was taken to the hospital for treatment, respondent-mother thought the child was
still in the home.
¶4 On May 8, 2019, Lea’s maternal great-grandmother and other family members
informed DSS that they would be willing to take care of Lea; however, no home study
had been completed when the petition was filed. Lea’s family members also identified
respondent-father as the child’s father and stated that he had been in and out of
prison and had active warrants against him.2
¶5 On May 9, 2019, DSS obtained nonsecure custody of Lea after filing a petition
alleging that Lea was abused, neglected, and dependent.
¶6 On July 31, 2019, the trial court held an adjudication, disposition, and
permanency planning hearing. At the hearing, Elliot testified about the investigation.
When asked if DSS had received a report regarding the family, respondent-mother
objected to testimony concerning the report on hearsay grounds. DSS argued the
report was not being offered for the truth of the allegations set forth in the report,
but to show why DSS became involved with the family. The trial court overruled the
objection and allowed Elliot to testify.
2 Respondent-father was subsequently located and served. He submitted to DNA
testing which confirmed that he was Lea’s biological father. However, at the time the petition
was filed, paternity had not been established. The trial court ordered that reunification
efforts with respondent-father should continue and that he should have visitation with the
child.
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¶7 Later, Elliot testified that DSS had received medical records regarding Lea’s
injuries. The trial court took judicial notice of a medical records exhibit, which the
court had admitted in a previous nonsecure custody hearing without objection.3 The
medical records detailed how Lea was transferred to the hospital. The summary
stated, “[Lea] is a 2 month old female . . . who was transferred from [a different]
hospital where she was initially brought . . . by [Lea’s] neighbors who witnessed
[respondent-]mother abusing [Lea] physically.” The medical records further
contained a History of Present Illness section, which stated, “the neighbors saw
[respondent-]mother burning [Lea]’s feet with [a] cigarette light[er], punching her in
the abdomen and spraying her face with Windex.”
¶8 On August 23, 2019, the trial court adjudicated Lea an abused, neglected, and
dependent juvenile. The trial court found that Lea had sustained injuries related to
respondent-mother “punching [her] in the chest, allowing green liquid to be placed
across [her] face, and allowing [her] to sustain serious burns to her feet, as [a result
of respondent-] mother being under the influence of alcohol, based upon her own
admission.” The trial court also determined that Lea was left outside on the steps of
the home after sustaining these injuries.
¶9 The trial court ordered that legal and physical custody remain with DSS, but
3 At oral argument, respondent-mother’s counsel conceded that respondent-mother
was represented by counsel at the hearing in which these medical records were originally
admitted.
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that custody be transferred to Lea’s relatives once they complied with certain
requirements. The court also found that reunification with respondent-mother would
be unsuccessful and ordered DSS to cease reunification efforts with her. Respondent-
mother’s visitation rights with Lea were terminated.
¶ 10 Respondent-mother appealed. On August 4, 2020, the Court of Appeals held
that respondent-mother was denied a fair hearing and the trial court erred in
adjudicating Lea an abused, neglected, and dependent juvenile. In re L.N.H., 272
N.C. App. 695, 2020 WL 4462550, at *6. Specifically, the Court of Appeals determined
that respondent-mother’s counsel provided ineffective assistance by failing to object
to the admission of Lea’s medical records and that the trial court improperly
considered Elliot’s testimony regarding the neighbors’ report as substantive evidence.
Id. at *5–6. Further, the Court of Appeals reversed the adjudication of dependency,
stating that “the trial court erroneously based its adjudication of dependency on
conditions existing at the time the petition was filed instead of the time of the
adjudication.” Id. at *7. As a result, the Court of Appeals vacated the disposition and
permanency planning order and remanded the case to the trial court. Id.
¶ 11 On September 8, 2020, DSS filed a petition for discretionary review under
N.C.G.S. § 7A-31(c). On September 28, 2020, respondent-mother filed a conditional
petition for discretionary review in response. This court allowed both petitions on
December 14, 2021, and the matter was heard on May 23, 2022.
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II. Analysis
¶ 12 First, we address the argument by DSS that the Court of Appeals erred in
determining that the trial court improperly admitted and considered witness reports
of abuse contained in Lea’s medical records.
¶ 13 “In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C. R. App. P. 10(a)(1) (2021); see also, In re E.D.,
372 N.C. 111, 116, 827 S.E.2d 450, 454 (2019). As this Court has stated, “a
respondent’s failure to object to the trial court’s taking judicial notice of underlying
juvenile case files waives appellate review of the issue.” In re A.C., 378 N.C. 377,
2021-NCSC-91, ¶ 17 (cleaned up).
¶ 14 Here, the trial court took judicial notice of the medical records previously
admitted without objection at a May 10, 2019 hearing on nonsecure custody in which
respondent-mother was represented by counsel. When counsel for DSS offered the
medical records for admission there, the following exchange occurred:
[DEPARTMENT COUNSEL]: Your Honor, I’m not going to
introduce an extensive amount of medical records;
however, previously admitted into evidence on May 10th,
2019, are a portion of the medical records. Since those have
already been admitted into evidence, I would ask at this
time that you take judicial notice of those.
THE COURT: Any objection?
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UNIDENTIFIED SPEAKER: No objection, Your Honor.
[RESPONDENT-MOTHER’S COUNSEL]: No objection,
already in evidence.
THE COURT: All right. So admitted. The Court will take
judicial notice.
¶ 15 The medical records included reports that Lea had been brought to the hospital
by her neighbors after the neighbors witnessed respondent-mother burn Lea’s feet
with a cigarette lighter, punch Lea in the abdomen, and spray Lea in the face with
Windex. Elliot also provided testimony regarding the reports that respondent-mother
burned Lea’s feet and left her on the porch. As this Court stated in In re A.C., the
failure to object to the trial court taking judicial notice of such records waives
appellate review of the issue. Id. Thus, respondent-mother’s failure to object waives
appellate review.
¶ 16 DSS next argues that the Court of Appeals erred in determining that
respondent-mother received ineffective assistance when counsel did not object to
admission of the medical records.
¶ 17 A party alleging ineffective assistance of counsel “must show that counsel’s
performance was deficient and the deficiency was so serious as to deprive [the party]
of a fair hearing.” In re B.B., 381 N.C. 343, 2022-NCSC-67, ¶ 39 (quoting In re G.G.M.,
337 N.C. 29, 2021-NCSC-25, ¶ 35). In order to show deprivation of a fair hearing, the
party “must prove that there is a reasonable probability that, but for counsel’s errors,
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there would have been a different result in the proceedings.” Id. (emphasis omitted).
“[I]f a reviewing court can determine at the outset that there is no reasonable
probability that in the absence of counsel’s alleged errors the result of the proceeding
would have been different, then the court need not determine whether counsel’s
performance was actually deficient.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d
241, 249 (1985).
¶ 18 There is “a strong presumption that counsel’s conduct falls within the range of
reasonable professional assistance.” State v. Roache, 358 N.C. 243, 280, 595 S.E.2d
381, 406 (2004) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
“Counsel is given wide latitude in matters of strategy, and the burden to show that
counsel’s performance fell short of the required standard is a heavy one for [a party]
to bear.” State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001); see also
State v. Goss, 361 N.C. 610, 623, 651 S.E.2d 867, 875 (2007) (“This Court indulges the
presumption that trial counsel’s representation is within the boundaries of acceptable
professional conduct, giving counsel wide latitude in matters of strategy.” (cleaned
up)).
¶ 19 Here, counsel for respondent-mother objected to admission of Elliot’s testimony
regarding the report to DSS about Lea’s injuries. The trial court overruled the
objection and allowed Elliot’s testimony. Elliot testified:
A report was received alleging that on May 7th, 2019,
[Lea], who at the time was reported as an unidentified child
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weighing 11 pounds, was transported to the emergency
room after being assaulted by [respondent-mother].
[Respondent-mother] was observed punching the minor
child in the chest area. [Respondent-mother] spray[ed]
unknown green liquid in [Lea]’s face, then pulled out a
lighter and swiped the flame of the lighter across [Lea]’s
face. [Respondent-mother] was seen burning [Lea]’s feet
with the lighter. [Respondent-mother] then laid [Lea] on
the steps of the porch. [Lea] was then taken from
[respondent-]mother by observers, and law enforcement
was called.
¶ 20 Subsequently, DSS requested the trial court to take judicial notice of Lea’s
medical records and stated that the medical records were “previously admitted into
evidence on May 10, 2019.” Counsel for respondent-mother was asked if there was
any objection to the court taking judicial notice and responded, “[n]o objection,
already in evidence.”
¶ 21 These medical records contained the same information about the source of
Lea’s injuries as testified to by Elliot:
[Lea] is a 2 month old female . . . who was . . . initially
brought . . . by [Lea]’s neighbor who witnessed [respondent-
]mother abusing [Lea] physically. Per report, [respondent-
]mother was burning [Lea]’s feet with [a] cigarette
light[er], punching her in the abdomen and spraying her
face with Windex. She has <1% TBSA partial thickness
burns to the soles of her feet.
¶ 22 The record reflects that respondent-mother’s counsel stated that he expressed
no objection to the trial court's decision to take judicial notice of the relevant medical
records and that he declined to exercise his right to object because those records were
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“already in evidence.” Thus, in this case, unlike in many other cases, the record
contains an explanation for the failure of respondent-mother’s counsel to lodge the
objection that respondent-mother now claims should have been made. In addition,
we note that neither this Court nor the Court of Appeals has directly addressed the
issue of whether a trial court is entitled to judicially notice evidence that has
previously been admitted into evidence at a hearing held for the purpose of
determining whether a juvenile should continue in non-secure custody at a
subsequent adjudication hearing, with reasonable arguments in support of and in
opposition to the admissibility of this evidence having been advanced in the parties’
briefs before this Court. For that set of circumstances, we are unable to conclude that
respondent-mother’s counsel’s conduct was “unreasonable” given “prevailing
professional norms.” Strickland, 466 U.S. at 688. As a result, we hold that
respondent-mother’s ineffective assistance of counsel claim lacks merit.
¶ 23 DSS next contends that the Court of Appeals erred in reversing the trial court’s
adjudication of dependency because the trial court did not consider post-petition
evidence.
¶ 24 “The adjudicatory hearing shall be a judicial process designed to adjudicate the
existence or nonexistence of any of the conditions alleged in a petition.” N.C.G.S. §
7B-802 (2021).
Unlike in the dispositional stage, where the trial court’s
primary consideration is the best interest of the child and
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any evidence which is competent and relevant to a showing
of the best interest of that child must be heard and
considered by the trial court, evidence in the adjudicatory
hearing is limited to a determination of the items alleged
in the petition.
In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 14 (2006) (cleaned up). Thus, the
conditions underlying determination of whether a juvenile is an abused, neglected, or
dependent juvenile are fixed at the time of the filing of the petition. This inquiry
focuses on the status of the child at the time the petition is filed, not the post-petition
actions of a party.
¶ 25 Here, the Court of Appeals held that “[t]he trial court erroneously based its
adjudication of dependency on conditions existing at the time the petition was filed
instead of the time of the adjudication.” In re L.N.H., at *7. The Court of Appeals
determined that the trial court erred in adjudicating Lea as dependent because “the
trial court failed to make specific findings with respect to Lea’s father’s ability to
provide or arrange care for her,” and because respondent-mother’s family members
presented themselves as placement alternatives. Id. at *7.
¶ 26 This holding does not follow the plain language of N.C.G.S. § 7B-802. At the
time the petition was filed, respondent-father’s whereabouts were unknown and
paternity had not been established. Further, there were no alternative placements
available for Lea because home studies had not been completed. Thus, although
relatives had been identified as potential alternative placements at the time the
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petition was filed, no acceptable relative placements were available.
¶ 27 The trial court correctly found that, at the time the petition was filed,
“[respondent-]mother did not provide any other alternative[] placements with family
members who presented themselves to the department, [and respondent-]mother was
unable to provide any information as it related to [respondent-father], who at the
time, his location was unknown and the means to communicate with him remained
unknown.”
¶ 28 For these reasons, the trial court did not err in adjudicating Lea a dependent
juvenile.
¶ 29 Finally, respondent-mother contends that the trial court erred by eliminating
reunification efforts as an initial disposition following adjudication. At the time of
the hearing in this case, N.C.G.S. § 7B-906.2(b) provided that
[a]t any permanency planning hearing, the court shall
adopt concurrent permanent plans and shall identify the
primary plan and secondary plan. Reunification shall
remain a primary or secondary plan unless the court made
written findings under [N.C.G.S. §] 7B-901(c) or makes
written findings that reunification efforts clearly would be
unsuccessful or would be inconsistent with the juvenile’s
health or safety.
(emphasis added). In this case, the trial court ordered DSS to cease reunification
efforts with respondent-mother as part of the initial dispositional hearing. As a
result, the trial court was required to make written findings under N.C.G.S. § 7B-
901(c) before eliminating reunification as a primary or secondary plan. See In re J.M.,
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255 N.C. App. 483, 499, 804 S.E.2d 830, 840–41 (2017) (holding, that “because the
trial court ceased reunification efforts in an order entered following an initial
disposition hearing, N.C.G.S. § 7B-901(c) was necessarily implicated.”), disc. rev.
improvidently allowed, 371 N.C. 132, 813 S.E.2d 847 (2018).
¶ 30 At the time of the hearing in this case, N.C.G.S. § 7B-901(c) provided that
[i]f the disposition order places a juvenile in the custody of
a county department of social services, the court shall
direct that reasonable efforts for reunification as defined
in [N.C.G.S. §] 7B-101 shall not be required if the court
makes written findings of fact pertaining to any of the
following, unless the court concludes that there is
compelling evidence warranting continued reunification
efforts:
(1) A court of competent jurisdiction determines or has
determined that aggravated circumstances exist
because the parent has committed or encouraged the
commission of, or allowed the continuation of, any of
the following upon the juvenile:
a. Sexual abuse.
b. Chronic physical or emotional abuse.
c. Torture.
d. Abandonment.
e. Chronic or toxic exposure to alcohol or
controlled substances that causes impairment
of or addiction in the juvenile.
f. Any other act, practice, or conduct that
increased the enormity or added to the
injurious consequences of the abuse or
neglect.
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(2) A court of competent jurisdiction terminates or has
terminated involuntarily the parental rights of the
parent to another child of the parent.
(3) A court of competent jurisdiction determines or has
determined that (i) the parent has committed
murder or voluntary manslaughter of another child
of the parent; (ii) has aided, abetted, attempted,
conspired, or solicited to commit murder or
voluntary manslaughter of the child or another child
of the parent; (iii) has committed a felony assault
resulting in serious bodily injury to the child or
another child of the parent; (iv) has committed
sexual abuse against the child or another child of the
parent; or (v) has been required to register as a sex
offender on any government-administered registry.
Thus, before eliminating reunification efforts with respondent-mother, the trial court
in this case was required to make written findings pertaining to one of the
circumstances listed above. See J.M., 255 N.C. App. at 500, 804 S.E.2d at 841.
¶ 31 In its order, the trial court found that “[r]eunification efforts with the mother
would be clearly unsuccessful and inconsistent with the juvenile[’s] health and safety”
and that “[t]here are aggravating circumstances that exist as it relates to the mother
and juvenile, whereas the mother’s conduct caused serious injuries to the juvenile.”
Although the trial court did not specifically cite N.C.G.S. § 7B-901(c), its reference to
“aggravating circumstances” is sufficient to invoke that statutory provision. See In
re A.P.W., 378 N.C. 405, 2021-NCSC-93, ¶ 20 (noting that “[t]he trial court’s written
findings must address the statute’s concerns but need not quote its exact language”)
(quoting In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)). Thus, the
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question before this Court on review is
limited to whether there is competent evidence in the
record to support the findings of fact and whether the
findings of fact support the conclusions of law. The trial
court’s findings of fact are conclusive on appeal if supported
by any competent evidence. Uncontested findings are
binding on appeal. The trial court’s dispositional choices—
including the decision to eliminate reunification from the
permanent plan—are reviewed for abuse of discretion. An
abuse of discretion occurs when the trial court’s ruling is so
arbitrary that it could not have been the result of a
reasoned decision.
Id., ¶ 14–15 (cleaned up). Given that respondent-mother has challenged the
sufficiency of the evidence to support the trial court’s finding of aggravated
circumstances under N.C.G.S. § 7B-901(c), we review those findings to determine if
they were supported by competent evidence. See In re B.C.T., 265 N.C. App. 176,
186–87, 828 S.E.2d 50, 57 (2019).
¶ 32 As an initial matter, the trial court’s mere declaration that “there are
aggravating circumstances that exist,” without explaining what those circumstances
are, is not sufficient to constitute a valid finding for purposes of N.C.G.S. § 7B-901(c).
Cf., In re A.W., 377 N.C. 238, 2021-NSCS-44, ¶ 31–32 (holding that there was
sufficient evidence to support the trial court’s finding that the parent’s conduct with
respect to the juvenile “increase[d] the enormity and add[ed] to the consequences of
the neglect of [the juvenile] where the parents had “consistently worked together to
conceal” the abuse and neglect that had led to the death of the juvenile’s sister given
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that “there is no means by which [the trial court] can address what caused the death
of [the sister] and thereby [e]nsure the safety of [the juvenile]”). Although the trial
court noted that “[respondent-]mother’s misconduct caused serious injuries to the
juvenile,” the evidence presented in this case cannot support a finding of any of the
aggravated circumstances listed in N.C.G.S. § 7B-901(c)(1)a–e.
¶ 33 In apparent recognition of this fact, DSS relies on N.C.G.S. § 7B-901(c)(1)f,
which permits the trial court to cease reunification efforts if it makes written findings
of “[a]ny other act, practice, or conduct” on the part of the respondent-parent “that
increased the enormity or added to the injurious consequences of the abuse or
neglect.” DSS contends that the trial court’s findings show that Lea sustained severe
burns on the soles of her feet while in respondent-mother’s care, that respondent-
mother recalled drinking alcohol before Lea was injured while lacking any memory
of hurting Lea, that Lea was left alone on the front porch of respondent-mother’s
house, and that Lea’s injuries were severe enough to require hospitalization for two
days and continued medical treatment for several weeks thereafter, so that
“[respondent-mother’s] conduct and actions toward Lea on 7 May 2019 ‘increased the
enormity’ and ‘added to the injurious consequences’ of evidence supporting the court’s
adjudications of abuse and neglect within the meaning of [N.C.G.S. §] 7B-901(c)(1)f.”
¶ 34 The fundamental defect in DSS’s argument is that it relies upon evidence
necessary to support the trial court’s adjudication of abuse and neglect to show the
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existence of conduct that exacerbated the consequences of that abuse and neglect. In
other words, although DSS argues that respondent-mother’s conduct in burning Lea’s
feet and leaving her on the porch increased the enormity and added to the injurious
consequences of burning Lea’s feet and leaving her on the porch, N.C.G.S. § 7B-
901(c)(1)f requires a showing of the existence of “any other act, practice, or conduct,”
which seems to us to require that the evidence in aggravation involve something in
addition to the facts that rise to the initial adjudication of abuse and/or neglect. See
A.W., ¶ 32; see also In re C.L.K., 2022 WL 4841743, 2022-NCCOA-661, ¶ 14
(unpublished) (concluding that the trial court’s extensive findings of fact
demonstrated how the respondent-mother’s conduct “increased the enormity or added
to the injurious consequences of the abuse [and] neglect” of her children, with the
trial court having found that the respondent-mother continued to allow her boyfriend
to live in the house for months despite knowledge that he was sexually abusing one
of her children and that respondent-mother was failing to provide appropriate care
for her daughter despite awareness of her daughter’s extensive medical needs). As a
result, since the allegation that respondent-mother burned Lea’s feet and left her on
the porch cannot serve as conduct that “increase[ed] the enormity” or “add[ed] to the
injurious consequences” of that conduct, the evidence does not support a
determination that any of the aggravating factors specified in N.C.G.S. § 7B-901(c)(1)
exist in this case.
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¶ 35 On the other hand, we do believe that there is sufficient evidence in the record
to support a determination by the trial court that reunification efforts were not
required pursuant to N.C.G.S. § 7B-901(c)(3)(iii), which allows the cessation of
reunification efforts in an initial dispositional order in the event that the parent “has
committed a felony assault resulting in serious bodily injury to the child[.]” As noted
above, following the events that led to Lea’s removal from respondent-mother’s
custody, respondent-mother was arrested and charged with felony child abuse
inflicting serious injury. In our view, the record developed before the trial court
contains ample evidence that tends, if believed, to show that respondent-mother’s
actions in burning Lea’s feet involved the commission of a felonious assault upon the
child that resulted in serious bodily injury. Although the trial court did not make the
findings necessary to permit the cessation of reunification efforts with respondent-
mother based upon N.C.G.S. § 7B-901(c)(3)(iii), it certainly could have done so had it
chosen to make such a determination. As a result, we vacate that portion of the trial
court’s order ceasing reunification efforts with respondent-mother based on a finding
the existence of aggravated circumstances and remand to the trial court with
instructions to enter appropriate findings addressing the issue of whether efforts to
reunify respondent-mother with Lea should be ceased pursuant to N.C.G.S. § 7B-
901(c). See In re L.R.L.B., 377 N.C. 311, 2021-NCSC-49, ¶ 38 (remanding to the trial
court where it failed to make written findings as required by N.C.G.S. § 7B-
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906.2(d)(3)).
III. Conclusion
¶ 36 For the foregoing reasons, we hold that the trial court did not err in
adjudicating the child abused, neglected, and dependent, and did not err in
eliminating reunification efforts with respondent-mother. We also hold that
respondent-mother’s counsel provided effective assistance. We reverse the decision
of the Court of Appeals and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.