In re J.C.M.J.C., 268 N.C. App. 47 (2019)
Held:
Reversed
- Facts: DSS filed a petition alleging neglect after (1) receiving reports of children being unattended outside, father smoking marijuana, suspected domestic violence, and an unclean home and (2) needing to file an interference petition due to parents refusal to cooperate with the DSS assessment. At the adjudicatory hearing, one witness was called – the DSS social worker. The children were adjudicated neglected based on the brief social worker testimony and judicial notice of the findings in the nonsecure custody order. Respondents appeal, challenging the findings of fact and conclusion of law.
- Standard of review: Are the findings of fact based on clear and convincing competent evidence, and do the findings support the conclusions of law. Conclusions of law are reviewed de novo.
- Judicial Notice: Although a trial court may take judicial notice of its own proceedings, “it is problematic to allow the trial court’s findings of fact in the [nonsecure custody order] to serve as the sole evidentiary support for the great majority of the adjudicatory findings….” Sl. Op. at 13. Although the same standard of proof applies to a hearing on the need for continued nonsecure custody and the adjudicatory hearing – clear, cogent, and convincing evidence – the rules of evidence do not apply to a nonsecure custody hearing. There is no way to know if the findings for the nonsecure custody order were based on evidence that would be admissible at an adjudicatory hearing where the rules of evidence apply.
- Findings: Many of the findings are recitations of allegations or reports and are not really findings of fact. They are not affirmative findings that would support a conclusion of neglect. Other findings are not supported by clear and convincing evidence. The affirmative findings that were made focus mostly on the respondents’ obstruction with the DSS assessment and do not support a conclusion of neglect based on a lack of proper care, supervision, or disciplines or that the children lived in an injurious environment.
- The smell of marijuana alone does not support an adjudication of neglect as there is no evidence of harm or substantial risk of harm to the juveniles (see Sl. Op. FN 5)
- Multiple absences from school without findings contextualizing those absences – the reason, whether they were unexcused, the degree to which the children were academically behind – are insufficient to show the children were denied an education such that they were neglected. See In re McMillan, 30 N.C. App. 235 (1976); In re R.L.G., 816 S.E.2d 914 (2018).
Category:
Abuse, Neglect, DependencyStage:
AdjudicationTopic:
Neglect