In re C.B.C.B.

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-149

No. 521A20

Filed 17 December 2021

IN THE MATTER OF: C.B.C.B.

Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from orders entered on 26 May

2020 and 7 October 2020 by Judge Burford A. Cherry in District Court, Catawba

County. On 27 January 2021, this Court allowed respondent’s petition requesting

expedited review of the 23 March 2020 and 5 November 2020 trial court orders that

were pending review in the Court of Appeals and related to an underlying neglect

proceeding. Additionally, this Court on its own motion consolidated the underlying

neglect proceeding with the termination proceeding on direct appeal to this Court.

Heard in the Supreme Court on 8 November 2021.

Lauren Vaughan for petitioner-appellee Catawba County Department of Social

Services.

Matthew D. Wunsche, GAL Appellate Counsel, for petitioner-appellee Guardian

ad Litem.

Robert W. Ewing for respondent-appellant mother.

NEWBY, Chief Justice.

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¶1 In this case we determine whether the trial court properly terminated

respondent-mother’s parental rights to C.B.C.B. (Charlie)1 based upon N.C.G.S.

§ 7B-1111(a)(8) and thereafter ceased reunification with respondent. Because clear,

cogent, and convincing evidence supports the trial court’s termination order based on

respondent’s aiding and abetting second-degree murder, and because the trial court

properly ceased reunification efforts in the underlying neglect action, the trial court’s

orders are affirmed.

¶2 On 15 August 2019, respondent gave birth to Charlie. DSS then received a

report about Charlie based upon respondent’s criminal record and her prior history

with DSS involving her two older children, John and Kate. On 3 May 2013, John died

after suffering severe abuse and neglect while in the care of respondent and her

then-boyfriend, William Howard Lail. That same day, the Catawba County

Department of Social Services (DSS) obtained nonsecure custody of Kate based upon

respondent and Lail’s neglect and abuse of Kate. On 1 October 2013, Kate was

adjudicated an abused and neglected child based upon the following facts:

20. During the five or six months prior to May 3, 2013,

[respondent] and William Lail repeatedly left the minor

children [Kate] and [John] at home alone for hours at a

time, leaving no one in the home to care for the children.

On at least one of these occasions, they left the children

asleep in their beds. On multiple other occasions, they left

both children strapped in their car seats, at times in a

1 Pseudonyms are used in this opinion to protect all juveniles’ identities and for ease

of reading.

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closet, with no one to attend them for hours at a time.

Later, when [Kate] learned how to free herself from her car

seat, she was placed in a small closet with no light, where

she was left for hours at a time. Mr. Lail and [respondent]

would push a heavy object, such as a box of ammunition or

a cupboard, in front of the door to prevent her from

escaping, and would continue to leave [John] strapped in

his car seat. On more than one occasion when Mr. Lail and

[respondent] left the children at home alone, they went to

a bar. On other occasions, the children were left alone for

up to several hours when Mr. Lail’s and [respondent’s]

work schedules overlapped.

21. In February or March, Mr. Lail was fired from his job.

He did not work again after that. During this time,

[respondent] left the children with Mr. Lail.

....

24. Approximately seven to ten days prior to May 3, 2013,

both [Kate] and [John] suffered extensive scalding injuries

while in the sole care of William Lail. [Respondent] was at

work when the injuries occurred. Although details of his

explanations have changed, Mr. Lail has reported that he

left the minor children in a bathtub for approximately four

minutes with either the tub faucet or the shower head

running while he took trash cans to the curb. He reported

that while he was gone, the minor child [Kate] must have

turned on the hot water, and he returned to find [Kate]

standing outside the tub and [John] in the tub crying. The

location and patterns of the burn injuries to these children

is not consistent with the accidental explanation provided

by Mr. Lail and are more consistent with intentional

injury.

25. Despite the severe and extensive burns to the minor

children, neither [respondent] nor William Lail sought or

obtained any medical care for the minor children from the

time the burns occurred through May 3, 2013. They

attempted to use over-the-counter items to care for the

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burns. The failure to obtain appropriate medical care for

the children was a deliberate attempt to keep anyone from

seeing the extensive injuries to the children and reporting

them to the Department of Social Services.

26. During the time between the infliction of the scalding

injuries to the children and May 3, 2013, Mr. Lail and

[respondent] ensured that no one else saw the minor

children. [Respondent] sent a text message to her parents

to cancel a visit they had planned with the minor children.

[Respondent] deliberately tried to keep her parents from

seeing the children, so they would not make a report to the

Department of Social Services.

27. During the seven to ten days after the children were

scalded and before the death of [John] on May 3, 2013,

[John’s] behavior changed markedly. Although [John] had

been an active and mobile child, he moved very little after

being burned. He ate very little solid food during this

period. Mr. Lail described that he basically would just lay

[sic] there and “eat, sleep, and poop.” Because diapers

would irritate the extensive burns to [John’s] buttocks, on

multiple nights he was placed in a bathtub with a pillow,

with no diaper or clothing, and no blanket, to sleep at night,

so that he could urinate and defecate there in the tub.

28. On the morning of May 3, 2013, the day that the minor

child [John] died, William Lail and [respondent] took the

minor child [Kate] with them to McLeod Center to obtain

methadone for Mr. Lail, to Bojangle’s and to the grocery

store for chocolate milk. The minor child [John] was left

alone at home, where he lay on the love seat and moved

very little. When they returned to the home between 8:00

and 9:00 a.m., Mr. Lail and/or [respondent] placed a biscuit

next to [John] on the love seat, but he did not eat.

29. Later on the morning of May 3, 2013, around 10:10

a.m., William Lail and [respondent] left both [Kate] and

[John] at home alone while Mr. Lail drove [respondent] to

work. [Kate] was placed in a small closet with no light, and

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a heavy box of ammunition was pushed in front of the door

so that she could not get out. [John] was left lying on the

love seat. [Respondent] has admitted, and the Court finds,

that she was not concerned about leaving her nineteen

month old child unattended and unrestrained because he

could barely move in the aftermath of the burns he

sustained seven to ten days earlier.

30. Still later on May 3, 2013, the same day [John] had been

left at home alone twice and [Kate] had been left in the

close[t] once, the Department received a third Child

Protective Services report involving the minor child [Kate]

on May 3, 2013 after EMS was called to the home of

[respondent] and William Lail at 629 25th St. NW, Hickory,

North Carolina and found the minor child [John], age

nineteen months, had passed away. Law enforcement from

Longview Police Department and the State Bureau of

Investigation also responded to the home.

31. Mr. Lail’s account of the events which occurred after he

took [respondent] to work on May 3, 2013 and which led to

the death of [John] changed over the course of several

interviews. He was the sole caretaker for both of the minor

children when the minor child [John] died. [Respondent]

was at work when [John] died.

32. When law enforcement responded to the home on May

3, 2013, the body of [John] was at the home of a neighbor,

where William Lail had gone for help and to call 9-1-1. The

body of [John] had obvious injuries which included but

were not limited to apparent burns and scabs to his

forehead, back and buttocks and bruising to his forehead.

....

35. An autopsy of [John] was conducted on May 4 and 6,

2013 by Dr. Jerri McLemore of North Carolina Baptist

Hospital/Wake Forest University School of Medicine. The

presumed cause of death for the minor child was

determined to be drowning with significant contributory

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factor of burns and blunt force injuries.

36. At the time of autopsy, [John] had large areas of

scalding injuries to his forehead, predominantly to the

front of the head, and extending to the back of the head as

well as to the side of the head. The burns to the head were

determined to be partial thickness burns, also known as

second degree burns, and were in various stages of healing.

Testing to the burns indicated that they were at least a

couple of days old and could be approximately one week old.

37. In addition to the scalding injuries, a number of other

injuries, including blunt force injuries, were found about

the head of [John]. There were a number of bruises to

[John’s] head which were located in at least three different

planes, indicating separate impacts to the child. These

included a large dark bruise across the child’s forehead as

well as a patterned bruising and abrasion injury across the

top of the child’s head. A patterned injury is one which

appears to have been inflicted by impact with a particular

object. The patterned injury to the top and side of this

child’s head consisted of two parallel linear patterned

combinations of bruises and abrasions which would be

consistent with a belt.

38. Other injuries to the head and neck of the minor child

[John], as documented during his autopsy, include but are

not limited to bruising to the inside corner of his left eye

and along the inside of his nose, bruising across the bridge

of the child’s nose, and a cut to the child’s left eyelid. The

locations of these specific bruises, as well as those to the

top of the child’s head are not consistent with typical

accidental injuries to children of this age. There were

additional bruises and injuries to the child’s face, including

but not limited to bruising to the outside of his left cheek,

bruising to his right cheek, bruising near the left side of his

mouth, and a scraping injury to the lip. The injuries to the

child’s face were in different planes, suggesting multiple

impacts.

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....

47. The numerous bruises, abrasions, and scars, as well as

the healing rib fracture are indicative of nonaccidental

inflicted injury to this child, which occurred on multiple

occasions. Many of the bruises, abrasions and scars would

have been evident to his mother and caretaker for at least

24 hours prior to the child’s death, with many of the

injuries likely evident for longer.

....

57. [Respondent] admitted that she has seen William Lail

become increasingly aggressive over the last several

months prior to [John’s] death. She stated that she was

afraid of Mr. Lail, wanted to leave him, and had spoken to

friends about leaving him, but did not act on that. She has

admitted that she has seen him hit the minor children with

a double-looped belt, and specifically [Kate] on at least two

occasions, and had seen him hit both children on their

buttocks with an open hand. She has also admitted that

she often came home from work to find bruises on her

children for which Mr. Lail would offer excuses. Specifically

on the morning of May 3, 2013, she saw unexplained linear

bruising to [John’s] back. Despite those injuries, she

continued to leave her children in his care.

58. Despite the extensive scalding injuries to both children,

received while in the sole care of William Lail, [respondent]

continued to leave the minor children in his care while she

worked.

59. [Respondent] has admitted that she saw the linear

marks on [John’s] back before she left him in William Lail’s

care on May 3, 2013.

60. Mr. Lail has stated that he took his lead on how to treat

the minor children from the way that [respondent] treated

the children. He asserts that [respondent] was very

impatient with the children, would become angry and

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scream at them and that she would place her hand over

their mouths to stop them from crying. He has reported

that [respondent] whipped the children with a belt, a coat

hanger, a piece broken off of a mini blind and a wooden

spoon.

....

62. The Court specifically finds that both of the minor

children have been struck on multiple occasions by Mr. Lail

and/or [respondent] with objects including but not limited

to a belt and a coat hanger.

63. The Court specifically finds that both of the minor

children sustained inflicted bruising injuries after they

received the scalding injuries outlined above.

....

65. [Respondent] had opportunities to seek assistance and

protection for herself and her children from Mr. Lail, if she

was in fact in fear of him. She had experience with

obtaining domestic violence protective orders and the

services available to victims of domestic violence. She left

the home regularly to go to work and had access to a phone

to seek assistance from friends and family. Still, despite

obvious severe injuries to her children, she took no

measures to protect them and instead took active steps to

conceal them and prevent them from being seen by those

who might offer some measure of protection.

¶3 In July of 2013, respondent completed a psychological evaluation and was

diagnosed with “Personality Disorder [Not Otherwise Specified] with Dependent

features.” Almost four years later, on 5 May 2017, respondent was convicted of one

count of intentional child abuse inflicting serious physical injury and four counts of

negligent child abuse inflicting serious physical injury, all stemming from John’s

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death and Kate’s injuries. Respondent was released from prison in August of 2017.

On 14 November 2017, William Lail was convicted of second-degree murder for John’s

death.

¶4 On 1 October 2019, DSS filed a petition alleging Charlie to be a neglected

juvenile. Shortly thereafter, on 4 November 2019, the Guardian ad Litem (GAL) filed

a petition to terminate respondent’s parental rights to Charlie based upon N.C.G.S.

§ 7B-1111(a)(8). On 13 February 2020, the trial court entered an order consolidating

the underlying neglect hearing filed by DSS with the termination of parental rights

hearing filed by the GAL.

¶5 On 23 March 2020, the trial court entered an order of adjudication in which

the court concluded that Charlie was a neglected juvenile. On 26 May 2020, the trial

court entered an adjudication order on the motion for termination of parental rights,

in which it found that:

8. Since [Charlie’s] birth, during conversations with social

workers and even during her testimony before this court,

[respondent] has repeatedly minimized and excused her

responsibility for the abuse and neglect suffered by her

children [John] and [Kate]. When asked about her

responsibility for the abuse and neglect, [respondent]

focuses on herself as a victim of abuse and violence by Mr.

Lail and tends to downplay or deny her own responsibility.

9. The Court has considered the severity of the abuse and

neglect suffered by [Kate] and [John] which ultimately

resulted in the death of [John], as well as the statements

and testimony of the Respondent mother regarding her

responsibility, or lack thereof, for the abuse and neglect of

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her children. The Court has also considered the extensive

and obvious nature of the injuries sustained by [John] prior

to his death which were observable by the Respondent

mother for a period of time during which she could have

taken steps to protect her very young children. The Court

finds that the Respondent mother had an affirmative duty

to protect her very young minor children, particularly

[John] whose injuries were more severe and which

contributed to his death. The Court finds that the

Respondent mother had an affirmative duty to take all

steps reasonably possible to protect her minor children,

and specifically [John], from an attack by William Lail and

from the dangerous environment in which they were living

with Mr. Lail.

10. [Respondent] intentionally failed to take [John] for

medical care following his scalding burns, and such failure

was a deliberate attempt on her part to hide [John’s]

injuries from professionals (DSS, doctors, etc.) who could

have offered him help.

11. In the days prior to the death of [John], [respondent]

sent text messages to her parents cancelling their planned

visit with the children, in an effort to hide the children’s

injuries from them.

12. [Respondent] continued to leave her children in the sole

care of William Lail, including on the day of [John’s] death,

even after observing their scalding injuries, patterned

bruising on their bodies, and Lail’s increasing aggression.

13. The Court finds that the Respondent mother, though

not present in the home when [John] was killed, knew or

should have known of the extreme risk posed by Mr. Lail

and took no steps to prevent the injury of both children,

[Kate] and [John]; and the death of [John]. The Court finds

that the actions, omissions and decisions of the Respondent

mother created the opportunity for Mr. Lail to commit the

murder of [John] and were tantamount to consent to the

conduct of Mr. Lail which resulted in the death of [John],

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for which he was convicted of Second Degree Murder.

¶6 Thus, the trial court concluded that respondent had “aided, abetted,

attempted, conspired or solicited to commit murder or voluntary manslaughter of

another child of [respondent]: to-wit [John].” As such, the trial court determined that

grounds existed to terminate respondent’s parental rights to Charlie pursuant to

N.C.G.S. § 7B-1111(a)(8). In a separate disposition order entered on 7 October 2020,

the trial court concluded that terminating respondent’s parental rights was in

Charlie’s best interests.

¶7 Thereafter, on 5 November 2020, the trial court entered a separate disposition

order ceasing reunification with respondent in light of the court’s previous order

terminating her parental rights. Respondent appeals.2

¶8 A termination of parental rights proceeding consists of an adjudicatory stage

and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery, 311

N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudicatory stage, the petitioner

bears the burden of proving by “clear, cogent, and convincing evidence” the existence

2 Respondent appealed to the North Carolina Court of Appeals the 23 March 2020 and

5 November 2020 orders of adjudication and disposition in the underlying neglect proceeding.

Additionally, respondent appealed to the Supreme Court the 26 May 2020 and 7 October 2020

orders in the termination of parental rights proceeding. Because the two actions involve the

same facts, respondent filed a petition for discretionary review with this Court, requesting

that the appeal of the underlying neglect case bypass the Court of Appeals. On 27 January

2021, this Court allowed respondent’s petition and, on its own motion, consolidated the

underlying neglect proceeding and termination proceeding. Therefore, both matters are

before this Court.

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of one or more grounds for termination under section 7B-1111(a) of our General

Statutes. N.C.G.S. § 7B-1109(f) (2019). We review 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.

at 111, 316 S.E.2d at 253 (citing In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133

(1982)). “Findings of fact not challenged by respondent are deemed supported by

competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. 403, 407, 831

S.E.2d 54, 58 (2019) (citing Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,

731 (1991)).

¶9 Section 7B-1111 provides, in pertinent part, that “[t]he court may terminate

the parental rights upon a finding . . . [that] [t]he parent has . . . aided, abetted,

attempted, conspired, or solicited to commit murder or voluntary manslaughter of the

child, another child of the parent, or other child residing in the home.” N.C.G.S.

§ 7B-1111(a)(8) (2019). Absent a prior conviction of a qualifying offense, the petitioner

must “prov[e] the elements of the offense” to satisfy its burden to show that a parent’s

rights should be terminated under subsection 7B-1111(a)(8). Id.

¶ 10 Here, though respondent mother was convicted of both intentional and

negligent child abuse, she was not convicted of second-degree murder. Therefore, the

petitioner must prove the elements of either aiding and abetting, attempt, conspiracy,

or solicitation of second-degree murder to satisfy its burden here.

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¶ 11 Aiding and abetting occurs when (1) “the crime was committed by some other

person;” (2) “the defendant knowingly advised, instigated, encouraged, procured, or

aided the other person to commit that crime;” and (3) “the defendant’s actions or

statements caused or contributed to the commission of the crime by that other

person.” State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation

omitted).

¶ 12 With respect to the second element, “[t]he communication or intent to aid does

not have to be shown by express words of the defendant but may be inferred from his

actions and from his relation to the actual perpetrators.” Id. at 260, 512 S.E.2d at

422. Generally an individual’s failure to intervene does not make him guilty of aiding

and abetting. See State v. Walden, 306 N.C. 466, 472, 293 S.E.2d 780, 784–85 (1982)

(citing State v. Birchfield, 235 N.C. 410, 413, 70 S.E.2d 5, 7 (1952)). Parents, however,

“have an affirmative legal duty to protect and provide for their minor children.” Id.

at 473, 293 S.E.2d at 785 (citations omitted). As such, parents must “take every step

reasonably possible under the circumstances of a given situation to prevent harm to

their children.” Id. at 475, 293 S.E.2d at 786. Therefore, when a parent has actual

knowledge of harm to his or her child and fails to reasonably protect the child from

harm, that parent has knowingly aided the perpetrator’s commission of the harm. See

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id. at 473–76, 293 S.E.2d at 785. The reasonableness of a parent’s response, however,

must be determined on a case-by-case basis. Id. at 475–76, 293 S.E.2d at 786.3

¶ 13 Here the first element of aiding and abetting is clearly met because Lail was

convicted of second-degree murder in the death of respondent’s older son, John.

¶ 14 As for the second element, the trial court’s order and the record support the

finding that respondent “knowingly advised, instigated, encouraged, procured, or

aided” Lail’s murder of respondent’s son, John. Goode, 350 N.C. at 260, 512 S.E.2d at

422. The trial court stated:

The Court finds that the Respondent mother, though not

present in the home when [John] was killed, knew or

should have known of the extreme risk posed by Mr. Lail

and took no steps to prevent the injury of both children,

[Kate] and [John]; and the death of [John]. The Court finds

that the actions, omissions and decisions of the Respondent

mother created the opportunity for Mr. Lail to commit the

murder of [John] and were tantamount to consent to the

conduct of Mr. Lail which resulted in the death of [John],

for which he was convicted of Second Degree Murder.

¶ 15 Because aiding and abetting requires knowledge, the trial court’s statement

that respondent “should have known” of the risk presented here is an inaccurate

statement of the law and should be disregarded. Nevertheless, when read in context,

3 Respondent argues that Walden is no longer authoritative given the legislature’s

enactment of N.C.G.S. § 14-5.2 (2019), which abolished all distinctions between accessories

before the fact and principals to a crime. The statutory change, however, has no bearing on

the general principle in Walden that parents may have a duty to intervene to protect their

children.

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the entire finding shows that the trial court concluded that respondent possessed the

actual knowledge required to aid and abet Lail in murdering John. John’s presumed

cause of death was determined as “drowning with significant contributory factor of

burns and blunt force injuries.” Respondent’s testimony at the trial court hearing and

the findings from Kate’s adjudication order, which are incorporated in the trial court’s

order here, consistently show that respondent knew that her children suffered severe

abuse and saw the bruises and burns on John, yet intentionally concealed the

injuries. Specifically, respondent had “seen William Lail become increasingly

aggressive over the last several months prior to [John’s] death,” “had seen [Lail] hit

the minor children with a double-looped belt,” “had seen him hit both children on

their buttocks with an open hand,” “often came home from work to find bruises on

her children,” and, on the morning of John’s death, “saw unexplained linear bruising

to [John’s] back.” Rather than protecting John, respondent deliberately isolated John

to conceal his injuries. This concealment was a significant contributory factor in

John’s death. Respondent refused to take John to the doctor and even cancelled a visit

with her parents to avoid medical intervention or DSS involvement. Based upon

respondent’s conduct, the trial court found that respondent’s “actions, omissions and

decisions . . . created the opportunity for Mr. Lail to commit the murder of [John] and

were tantamount to consent to the conduct of Mr. Lail which resulted in the death of

[John].”

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¶ 16 Moreover, the trial court found that respondent also took part in the abuse.

She and Lail both struck John and Kate “with objects including but not limited to a

belt and a coat hanger,” and respondent was convicted of intentional and negligent

child abuse. Respondent’s actions demonstrate that she knew of harm to her children,

participated in the abuse, and failed to reasonably protect John and Kate. As such,

the trial court correctly determined that respondent knowingly aided Lail in

committing second-degree murder.

¶ 17 As for the third element, respondent’s actions contributed to Lail’s murdering

John. Had respondent reasonably protected her children or refrained from concealing

John’s injuries, Lail would not have had the opportunity to murder John. Instead of

seeking help for John, however, respondent prioritized concealing John’s injuries to

protect herself. Respondent “continued to leave her children in the sole care of

William Lail, including on the day of [John’s] death, even after observing their

scalding injuries, patterned bruising on their bodies, and Lail’s increasing

aggression.” Respondent’s actions, combined with all the facts recounted above,

contributed to Lail’s murder of John.

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¶ 18 Because the elements of aiding and abetting are met in this case, the trial court

appropriately terminated respondent’s parental rights based upon N.C.G.S.

§ 7B-1111(a)(8).4

¶ 19 Respondent next argues that if this Court reverses the trial court’s termination

orders, the Court must also vacate the underlying neglect order ceasing her

reunification with Charlie. Because we hold that the trial court did not err in

terminating respondent’s parental rights, however, we conclude that the trial court

did not err in ceasing respondent’s reunification with Charlie.

¶ 20 Thus, the trial court here properly terminated respondent’s parental rights

and ceased reunification efforts. Accordingly, the trial court’s orders are affirmed.

AFFIRMED.

4 Respondent also argues that the trial court erred in concluding that respondent

solicited, conspired, or attempted to murder John. Because we have concluded that the trial

court properly determined that respondent aided and abetted Lail in the murder of John, we

need not reach these alternate grounds for terminating her rights under N.C.G.S.

§ 7B-1111(a)(8).

Justice ERVIN dissenting.

¶ 21 Although I agree with my colleagues that the record in this case provides more

than sufficient support for a conclusion that respondent-mother aided and abetted

Mr. Lail in murdering John, I am unable to join the Court’s conclusion that the trial

court’s findings and conclusions, as written, suffice to permit an affirmance of the

trial court’s order. For that reason, rather than affirming the trial court’s termination

order on the basis set out in the Court’s opinion, I would vacate the trial court’s order

and remand this case to District Court, Catawba County, for further proceedings,

including the entry of a new order containing properly drafted findings of fact. As a

result, I respectfully dissent.

¶ 22 As the parties to this case acknowledge, “[a] person is guilty of a crime by

aiding and abetting if (i) the crime was committed by some other person; (ii) the

defendant knowingly advised, instigated, encouraged, procured, or aided the other

person to commit that crime; and (iii) the defendant’s actions or statements caused

or contributed to the commission of the crime by that other person.” State v. Goode,

350 N.C. 247, 260 (1999); see also State v. Dick, 370 N.C. 305, 311 (2017). Although

the necessary knowledge may be established by “circumstantial evidence from which

an inference of knowledge might reasonably be drawn,” State v. Boone, 310 N.C. 284,

294–95 (1984), superseded on other grounds by statute, as recognized in State v. Oates,

366 N.C. 264, 267 (2012), a person does not act “knowingly” in the event that, rather

than having actual knowledge of the fact in question, he or she reasonably should

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Ervin, J., dissenting

have had the required knowledge. State v. Miller, 212 N.C. 361, 363 (1937) (stating

that “[k]nowledge connotes a more certain and definite mental attitude than

reasonable belief,” with the extent to which “knowledge [ ] implied from the

circumstances [being] sufficient to establish reasonable belief [is] a question for the

jury”), superseded by statute in 1975 N.C. Sess. L. c 165, s. 1, as recognized in State v.

Fearing, 304 N.C. 471, 478 n.3 (1981). Thus, in order to find the existence of the

ground for termination enunciated in N.C.G.S. § 7B-1111(a)(8) (allowing the

termination of parental rights in the event that the parent “has . . . aided, abetted,

attempted, conspired, or solicited to commit murder or voluntary manslaughter of the

child, another child of the parent, or other child residing in the home”), the trial court

was required to find that respondent-mother had actual knowledge of the risk that

Mr. Lail posed to John. As a result, the trial court erred by finding that respondent-

mother’s parental rights in Charlie were subject to termination pursuant to N.C.G.S.

§ 7B-1111(a)(8) on an aiding and abetting theory based upon a finding that, although

“not present in the home when [John] was killed, [she] knew or should have known

of the extreme risk posed by Mr. Lail and took no steps to prevent the injury of both

children.”

¶ 23 Although my colleagues acknowledge that “the trial court’s statements that

[respondent-mother] ‘should have known’ of the risk presented here is an inaccurate

statement of law and should be disregarded,” they overlook this error on the grounds

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that, “when read in context, the entire finding shows that the trial court concluded

that respondent possessed the actual knowledge required to aid and abet [Mr. Lail]

in murdering John.” In reaching this conclusion, my colleagues point to the fact that

John died as the result of drowning, that respondent-mother knew of the abuse that

Mr. Lail had inflicted upon John while intentionally concealing the injuries that John

had sustained, and that she had inflicted abuse upon both John and Kate. The Court

has not, however, directed our attention to any direct or explicit statement by the

trial court that respondent-mother had actual knowledge of the risks that Mr. Lail’s

conduct posed to John, with the remaining findings that the trial court actually made

being consistent with both a view that respondent-mother actually knew of the

relevant risks and a view that respondent-mother simply should have known of them.

For that reason, I cannot conclude that the trial court did not decide that respondent-

mother’s parental rights in Charlie were subject to termination pursuant to N.C.G.S.

§ 7B-1111(a)(8) on the basis of a misunderstanding of the applicable law. Helms v.

Rea, 282 N.C. 610, 620 (1973) (stating that “[i]t is still the rule that ‘[f]acts found

under misapprehension of the law will be set aside on the theory that the evidence

should be considered in its true legal light’ ” (quoting McGill v. Town of Lumberton,

215 N.C. 752, 754 (1939))). In light of that determination, I am unable to see how the

relevant portion of the trial court’s order can withstand this aspect of respondent-

mother’s challenge to its legal validity.

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¶ 24 I fully agree, on the other hand, that the record, including those portions upon

which my colleagues rely, would have permitted the trial court to find the actual

knowledge necessary to determine that respondent-mother’s parental rights in

Charlie were subject to termination pursuant to N.C.G.S. § 7B-1111(a)(8) on the

grounds that she aided and abetted Mr. Lail in murdering John. However, given the

fact that the trial court never found the necessary actual knowledge and that this

Court lacks the authority to make the required finding based upon an examination

of a cold record, I cannot conclude that the trial court did not err in the course of

determining that respondent-mother’s parental rights in Charlie were subject to

termination pursuant to N.C.G.S. § 7B-1111(a)(8) on the grounds that respondent-

mother aided and abetted Mr. Lail in murdering John. Hard cases, once again, seem

to me to be making bad law.

¶ 25 The proper manner in which to rectify the trial court’s error is readily

apparent. Instead of affirming the challenged trial court order, I believe that we

should vacate the trial court’s termination order and remand this case to District

Court, Catawba County, for the entry of a new order containing appropriate findings

of fact and conclusions of law. In the event that my colleagues are correct in thinking

that the inclusion of the trial court’s reference to what respondent-mother “should

have known” did not reflect what the trial court actually meant, then the trial court

can quickly confirm that understanding by entering a new termination order that

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finds the facts and makes legal conclusions on the basis of the existing record and a

proper understanding of the applicable law. On the other hand, if the trial court did,

in fact, mean to find that respondent-mother acted on the basis of something other

than the required actual knowledge, it can take other appropriate action as well. In

failing to act in this manner on the basis of the logic that the Court deems persuasive,

we risk creating a precedent that allows this Court to draw inferences on appeal that

the trial court did not, for whatever reason, draw, placing us in the position of a fact-

finder despite the known limitations on the ability of appellate courts to act in that

capacity.

¶ 26 My inability to join my colleagues in taking the analytical leap that they deem

to be appropriate may seem excessively formalistic in light of the horrific facts that

are before us in the case. I certainly understand the strength of the temptation to

overlook the insufficiency of the trial court’s findings in order to eliminate any

conceivable risk that Charlie would be returned to respondent-mother’s care. In other

words, “[t]he very sordidness of the evidence strongly tempts us to say that justice

and law are not always synonymous [ ] and to vote for an affirmance of the judgment

. . . on the theory that justice has triumphed, however much law may have suffered.”

State v. Bridges, 231 N.C. 163, 166 (1949) (Ervin, J., dissenting). Although “[i]t might

well be that [a remand for additional findings] would result” in the entry of another

order terminating respondent-mother’s parental rights in Charlie pursuant to

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N.C.G.S. § 7B-1111(a)(8) on the basis of the theory that she aided and abetted Mr.

Lail’s homicidal conduct, “[t]hat possibility should not shape our action” given that

“what happens to the law in this case is of the gravest moment,” that our decision to

make a finding concerning the critical issue of knowledge “will be invoked in other [ ]

trials as a guiding and binding precedent,” and that “[t]he preservation unimpaired

of our basic rules of [ ] procedure is an end far more desirable than that of” ensuring

that this case comes to an end now. Id. at 171. As a result, while “[c]andor compels

the confession that it is not altogether easy to hearken to” respondent-mother’s

arguments in this matter, id. at 166, I would, rather than affirming the trial court’s

order with respect to the issue of whether respondent-mother’s parental rights in

Charlie are subject to termination pursuant to N.C.G.S. § 7B-1111(a)(8) on the basis

of an aiding and abetting theory, vacate the trial court’s order and remand this case

to District Court, Catawba County, for further proceedings not inconsistent with this

opinion, including the entry of a new order containing findings of fact and conclusions

of law that are based upon a proper understanding of the applicable law.1

Justice EARLS joins in this dissenting opinion.

1 As my colleagues have noted, the trial court also found that respondent-mother’s

parental rights in Charlie were subject to termination pursuant to N.C.G.S. § 7B-1111(a)(8)

on the basis of a determination that respondent-mother solicited, conspired, or attempted to

murder John. In view of the fact that the Court has not addressed the validity of the trial

court’s findings and conclusions with respect to any of those legal theories, I will refrain from

addressing them as well.