In re K.S. ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-7
No. 60PA21
Filed 11 February 2022
IN THE MATTER OF: K.S.
On discretionary review pursuant to N.C.G.S. § 7A-31 from a unanimous,
unpublished decision of the Court of Appeals, No. COA20-271, 2020 WL 7974420(N.C. Ct. App. Dec. 31, 2020) (unpublished), affirming in part, reversing in part, and
remanding an order entered on 14 January 2020 by Judge Luis J. Olivera in District
Court, Cumberland County. Heard in the Supreme Court on 8 November 2021.
Patrick A. Kuchyt for petitioner-appellant Cumberland County Department of
Social Services; and Michelle FormyDuval Lynch for appellant Guardian ad
Litem.
J. Thomas Diepenbrock for respondent-appellee mother.
BERGER, Justice.
¶1 When reviewing a lower court’s order, the appellate court must be ever
cognizant of the proper standard of review. Because we conclude the Court of Appeals
failed to apply the proper standard of review, we vacate the decision below and
remand to the Court of Appeals with instructions to conduct a de novo review.
I. Factual and Procedural Background
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Opinion of the Court
¶2 On May 26, 2019, Kelly1 was born to respondent-mother and father. The
Cumberland County Department of Social Services (DSS) filed a juvenile petition
three days later alleging Kelly to be a neglected and dependent juvenile. On October
4, 2019, DSS filed an amended juvenile petition with additional factual allegations.
Following a judicial settlement conference, DSS, respondent-mother, and the
guardian ad litem executed a “Stipulation Agreement and Written Agreement for
Consent Adjudication Order Per 7B-801(b1)” (Stipulation Agreement).
¶3 As part of the Stipulation Agreement, the parties agreed that the following
factual allegations set forth in the amended petition were true and accurate at the
time the amended petition was filed:
1. [DSS] received a Child Protective Services (CPS)
referral on 05/27/2019 concerning the safety of [Kelly].
2. [Respondent-mother] named [father] as [Kelly’s]
biological father. [Father] signed the Affidavit of
Paternity as to [Kelly] and his name appears on
[Kelly’s] birth certificate.
3. [Respondent-mother] and [father] have two older
children who are currently in the custody of [DSS] . . . .
Furthermore, [respondent-mother and father] have an
older child that was placed in the legal and physical
custody of a relative . . . .
4. The oldest child . . . was adjudicated abused and
neglected on 2/1/16 based on [father] physically abusing
the child and the child having sustained severe injuries.
The child was approximately three months old when the
1 Pseudonyms are used in this opinion to protect the juveniles’ identities.
IN RE K.S.
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Opinion of the Court
abuse occurred. [Father] pled guilty and was convicted
of felony child abuse. . . .
5. On 1/18/17, the juvenile [Kori] . . . , a sibling of [Kelly]
and a child of [respondent-mother and father] was
adjudicated dependent, and on 5/10/18, the juvenile
[Kori] . . . , a sibling of [Kelly] and another child of
[respondent-mother and father] was adjudicated
neglected. These adjudications were based on the
adjudication of the older child . . . and [respondent-
mother and father] had not alleviated the conditions for
which that child was removed from their care. At the
time of said adjudications, [respondent-mother and
father] continued to be involved in a relationship with
each other. . . .
....
10. At the time of the filing of the original petition,
[respondent-mother and father] stated they did not
have essential necessities for [Kelly].
....
12. [Respondent-mother and father] admitted to Ms.
Frances Holstein [(Kelly’s kinship placement)] in June
2019 that on June 15, 2019, they were involved in a
verbal and physical altercation with each other in the
presence of the juvenile [April] . . . when [respondent-
mother] drove [father] and the juvenile [April] in a
vehicle. Based on said admissions, [respondent-mother]
hit [father] and [father] hit [respondent-mother]. In
addition, [father] physically choked [respondent-
mother] after grabbing her. During these admissions to
Ms. Frances Holstein, [respondent-mother] admitted
that she knew [father] was not allowed around [April]
when [respondent-mother] allowed [father] into the
vehicle with [April] . . ..
13. [Father] further admitted to Ms. Frances Holstein that
the June 15, 2019 altercation occurred as a result of
IN RE K.S.
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Opinion of the Court
[father] telling the juvenile [April] that he would bite
[April] back after [April] bit him, [respondent-mother]
taking [father’s] statement seriously, [respondent-
mother] hitting [father], [respondent-mother]
beginning to drive like a maniac with [April] in the
vehicle, and [father] trying to grab [respondent-
mother].
14. Pursuant to the last order of the [trial c]ourt in [the
sibling’s juvenile case], [father] was not allowed any
contact with the juvenile [April] . . . and that remained
the order of the [trial c]ourt at the time of the June 15,
2019 incident.
15. [Respondent-mother] admitted to the [ ] social worker
that an altercation occurred in June 2019 between her
and [father] when [respondent-mother] picked [father]
up after [father] demanded a car ride.
¶4 In addition to the facts set forth above, the parties stipulated that the
allegations that led to removal of the juvenile were true and accurate and existed at
the time of the filing of the amended petition. Among those facts were the current
and prior CPS history; father’s conviction for felony child abuse of Kelly’s sibling,
April; unstable housing; and domestic violence issues between respondent-mother
and father. Respondent-mother reserved her right to argue before the trial court
whether the stipulated facts were sufficient to support an adjudication of neglect.
¶5 Based on these admissions by respondent-mother, in addition to the testimony
of a social worker, the trial court adopted the above factual allegations as findings of
fact. The trial court found that the evidence presented was sufficient to support an
adjudication of dependency. Further, and without explanation, the trial court
IN RE K.S.
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Opinion of the Court
dismissed the claim of neglect. Respondent-mother appealed the adjudication of
dependency, and DSS cross-appealed the trial court’s dismissal of the claim of
neglect.2
¶6 In affirming the trial court’s dismissal of the claim of neglect, the Court of
Appeals noted that “the parties do not challenge the evidentiary underpinnings of
these findings of fact, but rather the legal import of these findings.” In re K.S., No.
COA20-271, 2020 WL 7974420, at *5 (N.C. Ct. App. Dec. 31, 2020) (unpublished).
Regarding the prior adjudications of Kelly’s siblings, the Court of Appeals stated that
the weight of such “is left to the discretion of the trial court.” In re K.S., 2020 WL
7974420, at *6. Concerning the verbal and physical altercation between respondent-
mother and father and the violation of a court order, the Court of Appeals discussed
how such “did not, as a matter of law, compel a conclusion that Kelly was neglected,”
because the altercation, standing alone, was not dispositive on the issue of neglect.
Id.¶7 The Court of Appeals concluded the trial court did not err in dismissing the
neglect claim. In doing so, the Court of Appeals stated that “[w]hile another judge
may have adjudicated Kelly as neglected based on the stipulated facts of the instant
case,” id., it was not permitted to reach such a conclusion as “appellate courts may
2 This Court allowed discretionary review only on issues related to neglect. Thus, the
issue of dependency is not before us.
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Opinion of the Court
not reweigh the underlying evidence presented at trial[,]” id. (quoting In re J.A.M.,
372 N.C. 1, 11, 822 S.E.2d 693, 700 (2019)). The Court of Appeals went on to conclude
“that the findings might support a conclusion of neglect; nevertheless, the findings do
not compel such a conclusion, given the discretion we afford the trial courts in making
such a determination.” In re K.S., 2020 WL 7974420, at *6. “In other words,” the
Court of Appeals stated, “we cannot say as a matter of law that the trial court erred
by failing to conclude that Kelly was a neglected juvenile.” Id.II. Analysis
¶8 An appellate court reviews a trial court’s adjudication “to determine whether
the findings are supported by clear, cogent and convincing evidence and the findings
support the conclusions of law.” In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d
246, 253 (1984).3 “Where no exception is taken to a finding of fact by the trial court,
the finding is presumed to be supported by competent evidence and is binding on
appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Conclusions of law made by the trial court are reviewable de novo on appeal. In re
C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019). An appeal de novo is one “in
which the appellate court uses the trial court’s record but reviews the evidence and
3 We recognize that In re Montgomery and In re C.B.C. reviewed orders terminating
parental rights pursuant to what is currently N.C.G.S. § 7B-1109. Although this case
concerns an adjudication order entered pursuant to N.C.G.S. § 7B-800, et seq., both
determinations rely upon and relate to the definitions found in the current version of
N.C.G.S. § 7B-101, and therefore, we employ the same standard of review.
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Opinion of the Court
law without deference to the trial court’s rulings.” Appeal De Novo, Black’s Law
Dictionary (11th ed. 2019). “Under a de novo review, the court considers the matter
anew and freely substitutes its own judgment for that of the [trial court].” In re
T.M.L., 377 N.C. 369, 2021-NCSC-55, ¶ 15 (alteration in original) (quoting In re
C.V.D.C., 374 N.C. 525, 530, 843 S.E.2d 202, 205 (2020)).
¶9 A neglected juvenile is one “whose parent, guardian, custodian, or
caretaker . . . [d]oes not provide proper care, supervision, or discipline[;] . . . [or who
c]reates or allows to be created a living environment that is injurious to the juvenile’s
welfare.” N.C.G.S. § 7B-101(15) (2021). Traditionally, “there [must] be some
physical, mental, or emotional impairment of the juvenile or a substantial risk of such
impairment as a consequence of the failure to provide ‘proper care, supervision, or
discipline’ in order to adjudicate a juvenile neglected.” In re E.P., 183 N.C. App. 301,
307, 645 S.E.2d 772, 775 (quoting In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d
672, 676 (1997)), aff’d per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007). “In neglect
cases involving newborns, ‘the decision of the trial court must of necessity be
predictive in nature, as the trial court must assess whether there is a substantial risk
of future abuse or neglect of a child based on the historical facts of the case.’ ” In re
J.A.M., 372 N.C. at 9, 822 S.E.2d at 698–99 (quoting In re McLean, 135 N.C. App.
387, 396, 521 S.E.2d 121, 127 (1999)).
IN RE K.S.
2022-NCSC-7
Opinion of the Court
¶ 10 Here, the trial court’s findings of fact are largely based on facts agreed upon
by the parties in the Stipulation Agreement and, thus, are supported by sufficient
evidence. Further, as neither party challenges any of those findings, they are
presumed to be supported by competent evidence and are binding on appeal.
Koufman, 330 N.C. at 97, 408 S.E.2d at 731. With the facts in this case being
supported by competent evidence and binding, the Court of Appeals was presented
with the task of determining whether those facts supported the conclusion of law that
Kelly was a neglected juvenile. Stated differently, the Court of Appeals was to decide
whether the facts contained in the Stipulation Agreement supported the conclusion
that respondent-mother did not provide proper care, supervision, or discipline; or that
there is a substantial risk of future abuse or neglect. N.C.G.S. § 7B-101(15).
¶ 11 De novo review of an adjudication of neglect or dismissal of a claim of neglect
does not allow a reweighing of the evidence. Nor does it require deference to the trial
court. The Court of Appeals did not decide whether, from its review, the findings of
fact support the conclusion of law that Kelly is a neglected juvenile pursuant to
N.C.G.S. § 7B-101(15). Rather, the Court of Appeals stated that “another judge may
have adjudicated Kelly as neglected based on the stipulated facts”; “the findings
might support a conclusion of neglect”; and it could not “say as a matter of law that
the trial court erred by failing to conclude that Kelly was a neglected juvenile.” In re
K.S., 2020 WL 7974420, at *6. Such speculation is not appropriate under the
IN RE K.S.
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Opinion of the Court
applicable standard of review. Instead, under a de novo review, the Court of Appeals
was tasked with determining whether or not, from its review, the findings of fact
supported a conclusion of neglect.
¶ 12 The Court of Appeals failed to conduct a proper de novo review on the issue of
neglect. It did not discuss whether the findings of fact derived from the Stipulation
Agreement were sufficient to conclude as a matter of law that Kelly should be
adjudicated a neglected juvenile. Rather, the Court of Appeals’ analysis showed
improper deference to the trial court’s conclusion of law. As such, we remand to the
Court of Appeals with instructions to conduct a de novo review consistent with this
opinion. By virtue of the result here, we need not address the remaining issues.
III. Conclusion
¶ 13 For the foregoing reasons, we vacate the decision of the Court of Appeals and
remand with instructions to apply the proper standard of review.
VACATED AND REMANDED.