In re: E.P-L.M.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-803

Filed: 4 August 2020

Duplin County, No. 18 JA 46

IN THE MATTER OF: E.P.-L.M.,

A Juvenile.

Appeal by Respondent-Mother from orders entered 15 January 2019, 22 April

2019, and 15 May 2019, by Judge Shelly Holt in Duplin County District Court. Heard

in the Court of Appeals 27 May 2020.

Elizabeth Myrick Boone for Petitioner-Appellee Duplin County Department of

Social Services.

Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Jacky L.

Brammer, for Respondent-Appellant Mother.

Matthew D. Wunsche for guardian ad litem.

INMAN, Judge.

This appeal arises from a trial court’s adjudication of a child as abused,

neglected, and dependent, termination of the juvenile proceeding, and modification

of visitation in a civil custody proceeding. Because the adjudication order is

supported by findings of fact not challenged on appeal, the adjudication will not be

disturbed, and it is not necessary for this Court to review other findings of fact.

Because the trial court entered an order complying with statutory requirements to

terminate juvenile jurisdiction and determine visitation in a civil custody proceeding,

IN RE: E.P.-L.M.

Opinion of the Court

we will affirm the transfer of jurisdiction and the trial court’s finding that supervised

visitation is in the best interest of the child. But because the trial court failed to

make a necessary finding regarding a parent’s ability to pay costs associated with

supervised visitation, we vacate the visitation provisions and remand for further

findings on that issue.

Respondent-Mother (“Mother”) appeals. After careful review, we affirm in part

the orders of the trial court but vacate the provisions of the trial court’s orders

allowing supervised visitation by Mother and remand for necessary findings on her

ability to pay associated costs.

I. Factual and Procedural Background

Ellen was born in December 2014 in Onslow County to parents Mother and

Father. Four months later, Mother and Father separated due, in part, to drug use

by Mother, and Father moved to Georgia. Father initiated a civil custody proceeding

(the “Civil Custody Case”) in Onslow County District Court. The trial court granted

Mother and Father joint physical custody of Ellen and instructed Mother to allow

Father routine visitation with Ellen. Ellen continued to live primarily with Mother

in the home of Ellen’s maternal grandmother (“Grandmother”) in Onslow County.

Beginning in 2016, the Onslow Department of Social Services (“DSS”) provided

continuing in-home services to Mother. DSS also received reports concerning Ellen

since her birth, including claims of substance abuse by Mother, concerns that the

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family lacked resources to properly care for Ellen, and repeated allegations that Ellen

had been sexually abused by Father. In September 2016, Grandmother reported

finding a small object inside Ellen’s vagina, removed the object at home, then took

Ellen to the hospital for examination. Grandmother stated she feared Father had

sexually abused Ellen, but the hospital found no evidence of sexual trauma. In June

2017, Mother and Grandmother again reported that Father had sexually abused

Ellen. DSS, law enforcement in North Carolina and Georgia, and a child advocacy

center investigated the reports and found no evidence of sexual abuse. Mother and

Grandmother thereafter continued to report sexual abuse allegations against Father

to DSS.

On 5 December 2017, the trial court entered an order in the Civil Custody Case

instructing DSS to investigate Mother’s allegations of sexual abuse by Father. DSS

attempted to temporarily place Ellen with paternal relatives during the investigation

and family evaluation, but Mother expressed fears that other members of Father’s

family had also sexually abused Ellen. Mother continually refused to allow

placement of Ellen with any paternal relatives. Due to the “high conflict and severity

of the allegations” in the case, the trial court appointed an independent expert,

forensic psychologist Dr. Amy James, to evaluate Ellen.

Dr. James concluded that it was “improbable” that Ellen had been sexually

abused; that it was “highly probable” Ellen had been subjected to circumstances that

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could cause emotional abuse; that it was “possible” that subjecting Ellen to multiple

invasive medical procedures as a result of sexual abuse allegations had a negative

impact on Ellen’s well-being; and that she had “concerns regarding [Mother’s] current

ability to parent.”

On 26 January 2018, DSS1 filed a petition alleging that Ellen was abused,

neglected, and dependent. The petition alleged that Mother had a substance abuse

history, that Mother and Ellen lived with Grandmother, and that Mother and

Grandmother had submitted multiple unsubstantiated sexual abuse allegations

against Father. Later that same day, the trial court removed Ellen from Mother’s

residence and placed Ellen in non-secure custody pending an outcome in the case.

The trial court held a hearing on DSS’s petition on 19 December 2018, with all

parties present and represented by counsel. DSS, the GAL, and Father tendered

stipulations to the trial court concerning Mother’s alleged conduct giving rise to the

petition; Mother, however, did not sign the stipulations. DSS and the GAL both

argued that the stipulations could be used to establish Mother’s conduct even absent

her agreement to them. When the stipulations were first proffered, the trial court

directly asked DSS, “is it your contention . . . that if I accept these stipulated facts,

that shifts the burden now to Mom?” DSS replied, “I wouldn’t say it shifts the burden,

1 The Onslow County Department of Social Services filed the initial petition in this case, but

the trial court transferred the matter to Duplin County in August 2018. We use “DSS” to refer to both

counties’ departments interchangeably for simplicity and ease of reading.

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but those stipulations become evidence, [Mother is] allowed to present [her] own

evidence.” Father’s counsel offered that, “It’s still the—DSS (inaudible) to prove

what’s in the stipulation. . . . They still have to put on evidence to prove the allegation

of abuse, neglect, dependency through DSS testimony or whatever type of evidence

they have.” The GAL confirmed this understanding of DSS’s burden, telling the court

“these stipulations do not shift the burden.” As discussion continued, DSS argued to

the court that the stipulations could—without more—be used to meet its burden.

At no point did Mother object to the stipulations or argue that they could not

be used to establish her conduct; although her counsel did argue against a motion to

admit other evidence during the discussion of the stipulations, the transcript reveals

that Mother and her counsel made no mention of the stipulations whatsoever at any

stage of the proceeding.

The trial court ultimately accepted the stipulations as “between three out of

the four parties as to the facts in the stipulation[s].” It then asked DSS if it intended

to put forth additional evidence. In response, DSS presented testimony from a DSS

social worker regarding, among other things, the reports of sexual abuse,

investigations of those reports, and Mother’s refusal to cooperate with efforts by DSS

to place Ellen in the household of any relative of Father. Mother testified on her own

behalf and called her substance abuse counsellor as an additional witness.

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After all the evidence on adjudication had been received, DSS argued that “the

Department’s shown by clear, cogent, convincing evidence, the child is depend[e]nt,

neglected, and abused at the time the petition was filed. . . . [T]hese are just the same

things that are in the stipulated facts[.]” The GAL argued next, expressly contending

the stipulation was sufficient to establish proof of abuse, neglect, and dependency:

“we agree with . . . [DSS’s] assessment of the case and would ask that you accept the

stipulation. Using those facts into evidence . . . the mother is essentially causing the

child to be depend[e]nt[.]” Father’s counsel followed, presenting an alternative

argument that, “even if the stipulations we handed you at the beginning, if you were

to not give them any weight today, Ms. Brown testified . . . . But without the

stipulations, Judge, if you didn’t feel comfortable with those, Ms. Brown’s testified

fully to that type of neglect and abuse that’s occurred[.]”

The trial court asked Mother to respond to the arguments of the other parties.

Her counsel conceded that Mother’s allegations of sexual abuse were unsubstantiated

and simply “ask[ed] that the Court acknowledge it’s not abuse just because they went

and sought medical help.” Mother did not discuss the stipulations, address the

argument that the stipulations alone established DSS’s burden of proof, or contend

that the stipulations were inadmissible or incompetent in any way. Indeed, Mother

did not address the stipulations at all.

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Immediately following Mother’s closing argument, the trial court asked if there

would be “[a]ny closing argument then for DSS since you’re the—having the burden?”

DSS responded by arguing that the social worker’s testimony constituted clear,

cogent, and convincing evidence of “the allegations in the petition . . . specifically,

those outlined in the stipulation[s], and other than that, just to reiterate what

everyone else says.”

The trial court adjudicated Ellen abused, neglected, and dependent in open

court, stating:

All right, on the adjudication then, this order is based on

the stipulated facts between [DSS], the [GAL], and

[Father], the evidence presented by [DSS], and the

evidence presented by [Mother], and the arguments of all

four counsel.

And going through the stipulated facts that make a finding

that [Mother] did not stipulate to these facts [sic], however,

after [Mother] presented evidence, the Court finds that

with regard to all of the stipulated facts, the Court finds

them to be fact. That [Mother’s] evidence did not convince

the Court that any of these stipulations were not in fact

accurate.

....

So the Court does adjudicate abuse, neglect, and

dependency.

Immediately after the adjudication hearing, the trial court proceeded with a

disposition hearing. DSS and the GAL presented additional testimonial evidence. At

the conclusion of that hearing, the trial court found that juvenile court supervision of

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the child was no longer necessary, and that the adjudication of the child as abused,

neglected, and dependent constituted a change in circumstances warranting a

modification of the custody order previously entered in the Civil Custody Case. The

trial court instructed counsel for the parties prepare and submit proposed orders

providing, among other things, that Father would have primary physical custody of

Ellen and was required to allow Mother supervised visitation with Ellen both

electronically and in person.

On 15 January 2019, the trial court entered a written order adjudicating Ellen

abused, neglected, and dependent, “based upon the stipulated facts, the evidence

presented, testimony of [Mother], and arguments of counsel[.]”

On 3 April 2019, the trial court entered a Chapter 7B-911 Disposition Order in

the ongoing Civil Custody Case (the “7B-911 Order”), finding that a substantial

change of circumstances existed which warranted modification of the prior custody

order in the case. The 7B-911 Order awarded Mother and Father joint legal custody,

awarded Father primary physical custody of Ellen, and ordered supervised in-person

and electronic visitation by Mother. On 15 May 2019, the trial court entered a

disposition order (the “Disposition Order”) mirroring the terms of the 7B-911 Order

while also finding there was no longer a need for State intervention on behalf of Ellen

in a juvenile proceeding. Mother timely appealed.

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II. Analysis

Mother challenges the trial court’s adjudication of Ellen as abused, neglected,

and dependent, as well as the 7B-911 and Disposition Orders. We address each of

Mother’s arguments in turn.

A. Stipulations and Burden of Proof

Mother first contends that the stipulations are not admissible evidence. She

further argues that the trial court, in erroneously considering the inadmissible

stipulations as competent evidence of Mother’s conduct, impermissibly placed a

burden of production on Mother to refute the stipulations’ contents. After careful

review, we hold Mother has failed to preserve these issues for appellate review.

Mother did not object to the admission of the stipulations into evidence. “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) (2019). “It is well settled that an error,

even one of constitutional magnitude, that defendant does not bring to the trial

court’s attention is waived and will not be considered on appeal.” State v. Bell, 359

N.C. 1, 28, 603 S.E.2d 93, 112 (2004) (citation and internal quotation marks omitted).

This rule is equally applicable to evidentiary arguments in the context of abuse,

neglect, and dependency proceedings. See In re H.D.F., 197 N.C. App. 480, 488-89,

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677 S.E.2d 877, 883 (2009) (holding a mother could not challenge admissibility of

evidence—or the findings in adjudication and disposition orders based on that

evidence—when no objection to the evidence was raised at the hearing). Because

Mother raised no objection to the introduction of the stipulations into evidence at the

hearing, we hold this issue has not been preserved for review. Id.

By extension, Mother’s argument that the trial court impermissibly considered

the stipulations as “competent for adjudication” as to her and erroneously shifted the

burden of production to “[Mother] to refute the incompetent stipulations” is also

unpreserved.2 The transcript reveals that Mother and her counsel were completely

silent on the competency and use of the stipulations to show her alleged misconduct,

even in the face of direct argument by DSS and the GAL that the stipulations were

admissible and sufficient, standing alone, to prove Mother’s abuse, neglect, and

dependency by clear, cogent, and convincing evidence. Just as she failed to object to

the admission of the stipulations, Mother did not object to the use of the stipulations

as competent evidence establishing Mother’s conduct. When a party fails to object to

incompetent evidence, she cannot complain of its admission—or the trial court’s

reliance on it—on appeal: “Evidence admitted without objection is properly considered

by the court and, on appeal, the question of its competency cannot be presented for

2 We note that DSS, the GAL, and Father’s attorney all contended that DSS bore the burden

of proof notwithstanding the stipulations, and the trial court expressly placed the burden of proof on

DSS prior to making its findings on adjudication when it asked “[a]ny closing argument then for DSS

since you’re the—having the burden?”

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the first time.” Joyner v. Garrett, 279 N.C. 226, 234, 182 S.E.2d 553, 559 (1971)

(emphasis added) (citation omitted). See also In re H.D.F., 197 N.C. App. at 488-89,

677 S.E.2d at 883 (holding that findings of fact were binding on appeal as supported

by competent evidence—notwithstanding the mother’s argument that the evidence in

question was inadmissible—as the mother failed to object to the admissibility of the

evidence at trial).

B. Evidence Supporting Adjudication

Mother next argues that the trial court’s order adjudicating Ellen abused,

neglected, and dependent was not supported by sufficient evidence and that the trial

court did not make appropriate findings of fact. We review a trial court’s abuse,

neglect, and dependency adjudication “to determine whether the findings are

supported by clear, cogent, and convincing evidence and the findings support the

conclusions of law.” In re I.G.C., 373 N.C. 201, 203, 835 S.E.2d 432, 434 (2019)

(citation and quotation omitted). “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). A trial judge sitting without a jury has the duty to consider and weigh the

evidence, pass upon the weight and credibility of witness testimony, and draw

reasonable inferences therefrom. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d

29, 33 (1968). “A trial court’s finding of fact that is supported by clear, cogent, and

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convincing evidence is deemed conclusive even if the record contains evidence that

would support a contrary finding.” In re B.O.A., 372 N.C. 372, 379, 831 S.E.2d 305,

310 (2019).

The purpose of the adjudication hearing is to determine the existence of the

juvenile’s conditions as alleged in the petition. In re A.B., 179 N.C. App. 605, 609,

635 S.E.2d 11, 14 (2006); N.C. Gen. Stat. § 7B-802 (2015). At this stage, the court’s

decisions must often 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 McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).

Here, the trial court made the following findings of fact not challenged on

appeal:

11. That [Mother] lacks housing of her own. The [Mother]

lives with [Grandmother], who lives in her ex-husband’s

home.

12. That [Mother] has no employment or income.

13. That since [Ellen] was three months old, [Mother] and

[Grandmother] have made several reports of sexual abuse

against [Father] that were found to be unsubstantiated.

14. That while in the home and under [Mother’s] care,

[Grandmother] stated that she removed a foreign object

from [Ellen’s] vagina with mineral oil.

15. That while under [Mother’s] care, [Grandmother] has

taken pictures of the [Ellen’s] vagina and attempted to give

them to [DSS].

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16. That [Mother] disrupted a potential kinship placement

by contacting the potential placement despite [DSS’s]

recommendations to not contact the potential placement.

17. That [Mother] failed to bring [Ellen] to [DSS] as

directed to meet with a potential temporary resource

provider (the paternal aunt).

....

19. That [Mother] stated that she would rather [Ellen] be

placed in foster care than with a paternal relative.

20. That [Mother] and [Grandmother] have attempted to

thwart any placement of [Ellen] with any paternal relative.

21. That [Mother], by raising unsubstantiated sexual abuse

allegations, has caused [Ellen] to receive unnecessary and

harmful medical care, including:

a. Multiple invasive vaginal inspections by various

medical providers (none of which showed any

physical findings); and

b. Two interviews by Child Forensic interviewers

(both found no findings consistent with sexual

abuse).

22. That [DSS] and law enforcement from two states have

conducted investigations due to the [Mother’s] allegations,

all of which were unsubstantiated.

The trial court then made the following conclusions of law:

2. That [Ellen] is an abused juvenile pursuant to N.C. Gen.

Stat. §7B-101 (1).

3. That [Ellen] is a neglected juvenile pursuant to N.C.

Gen. Stat. §7B-101(15).

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4. That [Ellen] is a dependent juvenile pursuant to

N.C. Gen. Stat. §7B-101 (9).

We hold that the trial court’s unchallenged findings of fact were sufficient to

support the trial court’s adjudication of Ellen as abused, neglected, and dependent.

1. Abuse

Mother argues that the evidence presented at the hearing did not support an

adjudication of abuse based on the grounds DSS alleged in its petition. DSS alleged

that Mother (1) “has used or allowed to be used upon the juvenile cruel or grossly

inappropriate devices or procedures to modify behavior,” one definition of abuse

provided in N.C. Gen. Stat. § 7B-101(1)(c), and (2) “has created or allowed to be

created serious emotional damage to the juvenile,” another definition of abuse

provided in N.C. Gen. Stat. § 7B-101(1)(e).

Our Court has held that the term “cruel or grossly inappropriate” typically

refers to “extreme examples of discipline” beyond what a reasonable parent would

employ. See In re F.C.D., 244 N.C. App. 243, 249, 780 S.E.2d 214, 219 (2015). We

need not address this issue, because we hold that the evidence supports an

adjudication of abuse based on serious emotional damage.

An abused juvenile is defined, in relevant part, as one whose caretaker by act

or omission allows serious emotional damage to the juvenile, evidenced by the

juvenile’s anxiety, depression, withdrawal, or aggressive behaviors. N.C. Gen. Stat.

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§ 7B-101(1)(e) (2015). “[T]he nature of abuse, based upon its statutory definition, is

the existence or serious risk of some nonaccidental harm inflicted or allowed by one’s

caretaker.” In re M.G., 363 N.C. 570, 574, 681 S.E.2d 290, 292 (2009).

Mother contends that the trial court “erred in adjudicating Ellen abused

because neither the findings nor the evidence show Ellen having any physical harm,

severe anxiety, depression, withdrawal or aggressive behavior.” Mother specifically

challenges findings of fact 10 and 18 as unsupported by the evidence. However,

finding 18 is supported by the stipulations and, because the competency of the

stipulations as evidence has not been preserved for review, that finding is deemed

supported and binding on appeal. In re H.D.F., 197 N.C. App. at 489, 677 S.E.2d at

883. She does not challenge findings of fact 11 through 17, or 19 through 22. As such,

these findings are binding on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.

And, assuming, arguendo, that findings of fact 10 and 18 are unsupported by clear

and convincing evidence, we hold that the trial court’s remaining, unchallenged

findings of fact support its abuse adjudication. See In re J.R., 243 N.C. App. 309, 312,

778 S.E.2d 441, 443 (2015) (“[E]rroneous findings unnecessary to the determination

do not constitute reversible error where an adjudication is supported by sufficient

additional findings grounded in competent evidence.” (citation and quotation

omitted)).

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The trial court found, in finding 21, that Ellen had been subjected to repeated

unnecessary and harmful medical procedures, including invasive vaginal

examinations and forensic interviews involving sexual content. The DSS social

worker who filed the petition testified at the hearing that DSS had documented at

least four allegations of sexual abuse for which Ellen received medical examinations,

in addition to an informal examination by Grandmother to allegedly remove a

“pebble” from Ellen’s vagina. Each of these five examinations occurred before Ellen

reached four years old. Law enforcement and child welfare agencies in two states

found no signs of physical or sexual abuse but did report that Ellen displayed signs

of emotional abuse. Mother and Grandmother nonetheless continued to make claims

of sexual abuse, and to subject Ellen to additional invasive medical procedures. The

trial court found that these procedures were harmful and inflicted as a result of

Mother’s actions. The trial court did not err in concluding that Ellen was an abused

juvenile.

2. Neglect

Mother argues the trial court failed to make the necessary findings of fact that

Ellen was experiencing, or at a substantial risk of experiencing, any kind of

emotional, psychological, or behavioral impairment, and that the record evidence did

not support such a finding. We disagree.

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A neglected juvenile is defined, in relevant part, as one whose caretaker “does

not provide proper care, supervision, or discipline; . . . or who is not provided

necessary medical care; . . . or who lives in an environment injurious to the juvenile’s

welfare.” N.C. Gen. Stat. § 7B-101(15) (2015). The petition in this case alleged Ellen

neglected on those grounds. Additionally, our Courts have required “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 Stumbo, 357 N.C. 279,

283, 582 S.E.2d 255, 258 (2003) (citation and quotation omitted). “Section 7B-101(15)

affords the trial court some discretion in determining whether children are at risk for

a particular kind of harm given their age and the environment in which they reside.”

In re N.G., 186 N.C. App. 1, 8–9, 650 S.E.2d 45, 50 (2007) (citation and quotations

omitted).

Mother does not challenge the trial court’s findings that Ellen has been

subjected to numerous harmful and invasive medical procedures following repeated,

unsubstantiated allegations of sexual abuse and that Mother repeatedly claimed that

Ellen had been abused by others following determinations that each prior allegation

was unsubstantiated. Finding 21 states that these procedures were already harmful

to Ellen. The trial court’s unchallenged findings establish that Mother’s improper

care of Ellen and repeated allegations of sexual abuse exposed Ellen to harmful

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medical procedures, creating an environment injurious to Ellen’s welfare. Although

the trial court’s unchallenged findings do not track the language used in N.C. Gen.

Stat. § 7B-101(15) or expressly state Ellen has suffered some impairment, we hold

they are sufficient to show the existence, or risk, of neglect when Ellen is in Mother’s

care. See In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013) (“The trial

court’s written findings must address the statute’s concerns, but need not quote its

exact language.”). The trial court did not err in adjudicating Ellen neglected.

3. Dependency

Mother’s last challenge to the trial court’s adjudication argues that it was

improper to adjudicate Ellen dependent when Father was able to provide proper care

and supervision at the time of the adjudication hearing. We disagree. Mother’s

argument misconstrues the law.

A juvenile may be adjudicated dependent where DSS proves “the juvenile’s

parent, guardian, or custodian [1] is unable to provide for the juvenile’s care or

supervision and [2] lacks an appropriate alternative child care arrangement.” N.C.

Gen. Stat. § 7B-101(9) (2015). “Findings of fact addressing both prongs must be made

before a juvenile may be adjudicated as dependent[.]” In re B.M., 183 N.C. App. 84,

90, 643 S.E.2d 644, 648 (2007). Further, a child may not be adjudicated dependent

when she has at least one parent capable of providing care or supervision. In re V.B.,

239 N.C. App. 340, 342, 768 S.E.2d 867, 868 (2015) (citation omitted).

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Mother’s argument fails because it requires consideration of Father’s status at

the time of the adjudication hearing, rather than the circumstances as they existed

at the time the petition was filed. Section 7B-802 expressly provides “[t]he

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. Gen. Stat. § 7B-

802 (emphasis added). Absent exceptional circumstances, the trial court may only

look to the circumstances before the court at the time the petition was filed when

considering whether a juvenile is dependent at the adjudication stage. In re V.B., 239

N.C. App. at 344, 768 S.E.2d at 869 (“[P]ost-petition evidence generally is not

admissible during an adjudicatory hearing for abuse, neglect, or dependency.”); see

also In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 15 (2006) (holding that “post-

petition evidence is admissible for consideration of the child’s best interest in the

dispositional hearing, but not an adjudication[.]”).

Our Court has carved out exceptions to this general rule; for instance, when

evidence is discovered after the filing of the petition that reflects a “fixed and ongoing

circumstance” rather than a “discreet event or one-time occurrence,” that evidence

may be considered in a dependency adjudication. In re V.B., 239 N.C. App. at 344,

768 S.E.2d at 870 (considering post-petition evidence of father’s paternity in

dependency adjudication because paternity was a “fixed and ongoing circumstance”

relevant to whether the juvenile had a parent capable of supervision and care).

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More recent case law has muddied the waters regarding what evidence a trial

court may consider in an adjudication hearing. Although this case is factually

distinguishable from those decisions, we take the opportunity here to survey the state

of the law in hopes that it may be clarified by our Supreme Court or the legislature.

In In re F.S., this Court reversed a dependency adjudication because there was

no evidence that, at the time of the adjudication, the mother was unable to care for

her child. In re F.S., ___ N.C. App. ___, ___, 835 S.E.2d 465, 473 (2019). The Court

explained that because the child had not been in the mother’s custody for several

months both before DSS filed a petition alleging dependency or during the four

months pending the adjudication hearing, the trial court needed to consider evidence

of the mother’s ability to care for the child at the time of the adjudication hearing.

Id.3 This case is distinguishable from In re F.S. because Ellen was in Mother’s

custody until and at the time DSS filed its petition.

3 The decision in In re F.S. also included the broad statement that “[t]he trial court must look

at the situation before the court at the time of the hearing when considering whether a juvenile is

dependent.” Id. The Court cited a previous decision, In re B.P., 257 N.C. App. 424, 809 S.E.2d 914

(2018), which quoted another case, In re K.J.D., 203 N.C. App. 653, 661, 692 S.E.2d 437, 443 (2010),

for the proposition. B.P. and K.J.D. discussed this language in the context of adjudications based on

the risk of future neglect where the parents did not have custody of the children prior to the filing of

the petitions. See In re K.J.D., 203 N.C. App. at 660, 692 S.E.2d at 443 (“This case resembles those

that deal with termination of parental rights based upon neglect in that the child has not lived in a

home with a parent for a substantial period of time prior to the filing of the petition.”); In re B.P., 257

N.C. App. at 433-34, 809 S.E.2d at 919-20 (discussing K.J.D. but distinguishing it in part because the

trial court did not find a substantial risk of harm if B.P. were returned to her mother’s custody and

such a finding could not be implied from the evidence). Here, Ellen was in Mother’s custody at the

time of the petition, and Mother’s challenge to post-petition evidence in this case concerns the

adjudication of Ellen as dependent, not as neglected based on any future risk should she be returned

to Mother’s custody.

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IN RE: E.P.-L.M.

Opinion of the Court

When DSS filed the petition in this case, neither Mother nor Father was

available to provide care or supervision to Ellen, and Mother disrupted DSS’s

attempts to temporarily place Ellen with relatives. Mother was not available because

of her then-alleged emotional abuse of Ellen stemming from the unsubstantiated

belief that Ellen was being sexually victimized. Father was not available because

Mother and Grandmother had alleged Father sexually abused Ellen. The trial court

adjudicated Ellen dependent after finding that, at the time the petition was filed,

each parent was “unable to provide for [Ellen’s] care or supervision and lack[ed] an

appropriate alternative child care arrangement[.]” The trial court also found that,

contrary to Mother’s allegations, there was no evidence Father had sexually abused

Ellen.

In addition to not fitting within the narrow exceptions to the rule that only pre-

petition facts can be considered by the court in an adjudication hearing, this case is

uniquely distinguishable because Mother was responsible for the allegations and DSS

investigation which rendered Father unavailable to provide care or supervision to

Ellen at the time of the petition.

C. Disposition

In the disposition hearing, based upon additional, post-petition facts, the trial

court found that it was in Ellen’s best interests to reside with Father and awarded

Father primary physical custody of Ellen. Mother challenges the trial court’s 7B-911

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IN RE: E.P.-L.M.

Opinion of the Court

and Disposition Orders modifying custody and transferring the case from juvenile

court to the parents’ civil custody action. “[D]ispositional orders of the trial court

after abuse, neglect and dependency hearings must contain findings of fact based

upon the credible evidence presented at the hearing.” In re Weiler, 158 N.C. App.

473, 477, 581 S.E.2d 134, 137 (2003). Findings based upon competent evidence are

conclusive on appeal. Id. “The trial court’s assessment of a juvenile’s best interests

at the dispositional stage is reviewed for abuse of discretion.” In re E.H.P., 372 N.C.

388, 392, 831 S.E.2d 49, 52 (2019).

1. Termination and Transfer to Civil Custody Proceeding

In addition to the Disposition Order, the trial court entered its 7B-911 Order

terminating the juvenile proceeding. Mother contends the 7B-911 Order is void

because it did not contain a finding required to transfer jurisdiction to the civil case.

See N.C. Gen. Stat. § 7B-911(c)(2)(a) (2015) (stating the trial court must make a

finding that “[t]here is not a need for continued State intervention on behalf of the

juvenile through a juvenile court proceeding” to modify custody in a corresponding

civil case). This deficiency in the 7B-911 Order is immaterial because the trial court’s

Disposition Order contained the requisite language to transfer the matter from

juvenile court to a private civil proceeding. In re A.S., 182 N.C. App. 139, 142, 641

S.E.2d 400, 402 (2007) (“The trial court may enter one order for placement in both

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IN RE: E.P.-L.M.

Opinion of the Court

the juvenile file and the civil file as long as the order is sufficient to support

termination of juvenile court jurisdiction and modification of custody.”).

2. Change of Custody

Mother argues the trial court erred in entering a “7B-911 order and initial

disposition order that changed custody of Ellen without considering the prior custody

order and otherwise did not make sufficient findings to modify the underlying custody

order.” Mother contends that in order to determine whether there had been a change

of circumstances since the prior custody order, entered on 18 July 2017, the trial court

was required to consider that prior custody order.

We reject Mother’s argument concerning the trial court’s failure to literally

examine the 18 July 2017 custody order. The only authority Mother cites as squarely

supporting this proposition, Woodring v. Woodring, 227 N.C. App. 638, 645, 745

S.E.2d 13, 19 (2013),4 concerns an entirely different scenario. See Woodring at 645-

46, 745 S.E.2d at 19-20 (holding the trial court erred in modifying a temporary

custody order entered in 2010 based on a substantial change in circumstances

without regard to a more recent 2011 permanent custody order that had already

4 Plaintiff also suggests Kenney v. Kenney, 15 N.C. App. 665, 190 S.E.2d 650 (1972), requires

the trial court to directly examine the specific findings and terms of the earlier custody decree in order

to modify it. Although we did compare the prior custody order and the appealed order modifying

custody in Kenney, we did so to identify whether the facts and circumstances themselves had changed

between the entry of the two orders. Id. at 668-69, 190 S.E.2d at 652-53. Here, the facts giving rise

to the modification of custody in the Disposition and 7B-911 Orders occurred after the 18 July 2017

custody order and remained unsettled at the time of the trial court’s most recent 5 December 2017

temporary custody order.

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IN RE: E.P.-L.M.

Opinion of the Court

litigated those purportedly changed circumstances).5 Woodring itself states that,

“when evaluating whether there has been a substantial change in circumstances,

courts may only consider events which occurred after the entry of the previous order,

unless the events were previously undisclosed to the court.” Id. at 645, 745 S.E.2d at

20 (citations omitted) (emphasis added). We based this statement on the underlying

rationale for showing a substantial change in circumstances: “ ‘The reason behind the

often stated requirement . . . is to prevent relitigation of conduct and circumstances

that antedate the prior custody order.’ ” Id. at 645, 745 S.E.2d at 19 (quoting

Newsome v. Newsome, 42 N.C. App. 416, 425, 256 S.E.2d 849, 854 (1979)).

The events relied upon by the trial court in identifying a substantial change in

circumstances—specifically, Mother’s continuing allegations of abuse, the

investigation and evaluation of those allegations, the determination that those

allegations and examinations were unfounded and harmful to Ellen, and the

adjudication of Ellen as abused, neglected, and dependent—occurred after the 18 July

2017 order pointed to by Mother and had not been resolved at the time of the most

5 Here, the trial court considered the most recent temporary custody order—entered on 5

December 2017 and directing DSS to investigate Mother’s allegations of abuse against Father—in

determining a substantial change in circumstances existed. Although the December 2017 order stated

that an earlier temporary custody order, entered on 18 July 2017, “shall remain in full force and

effect[,]” it also made clear that a full investigation into Mother’s allegations and their effect on Ellen

had not been completed as of the previous order. This is unlike Woodring, where the most recent

permanent order had not been considered in determining whether a change in circumstances required

for modification under N.C. Gen. Stat. § 50-13.7 existed and the trial court relied on events that were

previously litigated in that most recent permanent order. 227 N.C. App. at 645-46, 745 S.E.2d at 19-

20.

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IN RE: E.P.-L.M.

Opinion of the Court

recent 5 December 2017 order. Mother does not contend that those events were

previously litigated in the 18 July 2017 order. As a result, we reject this argument

that a literal examination of the earlier 2017 order was necessary to find a change of

circumstances here.

We also disagree with Mother’s contention that the trial court’s findings are

inadequate to support the conclusion of a substantial change in circumstances. In its

7B-911 Order, the trial court found that Ellen “was adjudicated abused, neglected

and dependent due to actions of the defendant as detailed in the aforesaid

Adjudication Order.” That Adjudication Order, in turn, recounted those actions,

namely, her submission of Ellen to numerous unnecessary and harmful medical

procedures based on continuing allegations of sexual abuse by Father that were

ultimately determined to be unsubstantiated. In the Disposition Order, the trial

court found that Mother continuously levelled unfounded allegations of sexual abuse

by Father, and that those allegations led to a determination that Ellen was abused,

neglected, and dependent. We hold that these findings were adequate to support a

conclusion of law that a substantial change in circumstances had occurred.

Mother also argues that the trial court “erred in concluding a change in

circumstances existed warranting modification of a custody order without

affirmatively stating the standard of proof.” Mother correctly states that, where a

standard of proof is necessary, “there is clear case law that holds the order of the trial

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IN RE: E.P.-L.M.

Opinion of the Court

court must affirmatively state the standard of proof utilized.” In re E.N.S., 164 N.C.

App. 146, 152, 595 S.E.2d 167, 171 (2004). However, Mother cites to no case law

defining a standard of proof required in dispositional orders. Rather, as our Supreme

Court has explained, no party “bears the burden of proof in [dispositional] hearings,

and the trial court’s findings of fact need only be supported by sufficient competent

evidence.” In re L.M.T., 367 N.C. 165, 180, 752 S.E.2d 453, 462 (2013). It is only

essential that the court receive sufficient evidence to determine what is in the best

interests of the child. Id. (citation omitted). The trial court’s determination of Ellen’s

best interests “based upon evidence and the records” was sufficient.

3. Visitation

Lastly, Mother argues the trial court “erred in effectively denying [Mother]

appropriate visitation and in making no findings as to [Mother]’s obligations or ability

to pay for supervised visitation.” We agree.

N.C. Gen. Stat. § 7B-905.1 provides, in pertinent part:

(a) An order that removes custody of a juvenile from a

parent, guardian, or custodian or that continues the

juvenile's placement outside the home shall provide for

appropriate visitation as may be in the best interests of the

juvenile consistent with the juvenile's health and safety.

The court may specify in the order conditions under which

visitation may be suspended.

....

(c) If the juvenile is placed or continued in the custody or

guardianship of a relative or other suitable person, any

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IN RE: E.P.-L.M.

Opinion of the Court

order providing for visitation shall specify the minimum

frequency and length of the visits and whether the visits

shall be supervised. The court may authorize additional

visitation as agreed upon by the respondent and custodian

or guardian.

N.C. Gen. Stat. § 7B-905.1(a), (c) (2015).

The Disposition Order in the present case ordered the following:

3. That until further order of the Court regarding the

[Mother's] visitation, the [Mother] shall have the following

supervised visitation:

a. Facetime twice a week, Sundays from 2-·3 pm and

Wednesdays from 7-8 pm;

b. Christmas day Facetime from 2-3 pm;

c. If [Mother] travels to the [Father's] hometown,

Ackworth, Cobb County, Georgia, prior to further

hearing on visitation, she can have supervised

visitation for 2 hours on a Saturday and 2 hours on

a Sunday.

4. That each of the parties need to come up with a

supervision plan for supervised visits for the [Mother].

5. That Charlotte, North Carolina is the half-way point

between the parties, and the parties need to explore

visitation centers in the City of Charlotte, to include hours

and costs, possibly at the Mecklenburg County Supervised

Visitation Center.

First, the visitation provisions appropriately (1) provide for physical and

electronic visitation, (2) set out the length and frequency of visitation, and (3) direct

whether the visitation should be supervised, but they “fail[] to provide any direction

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IN RE: E.P.-L.M.

Opinion of the Court

as to the frequency or length of [Mother’s] visits in the event that she does not [go to

Georgia].” In re J.D.M.-J., 260 N.C. App. 56, 69, 817 S.E.2d 755, 757 (2018).

Second, in setting out instructions for future visitation in a supervised

visitation center, the trial court failed to make findings as to who would pay for the

resulting costs of visitation and the chosen party’s ability to pay. In In re J.C., 368

N.C. 89, 772 S.E.2d 465 (2015), the trial court specifically ordered that visitation be

supervised and that the mother pay for supervision expenses. Id. at 89, 772 S.E.2d

at 465. Our Supreme Court ordered that the visitation provisions be vacated and the

matter remanded for further findings because “[t]he district court made no findings

whether respondent mother was able to pay for supervised visitation once ordered.”

Id. In doing so, the Supreme Court held that such findings were necessary “to

determine if the trial court abused its discretion” and “to support meaningful

appellate review.” Id.

Our Court then expanded on J.C. in In re Y.I., 262 N.C. App. 575, 582, 822

S.E.2d 501, 506 (2018). In Y.I., the trial court ordered supervised visitation but did

not order a specific party to pay for supervision and did not make any assessment of

the mother’s ability to pay. Id. We found error and reversed because it appeared

likely that the mother would be required to pay for visitation, as DSS was relieved of

authority in the case, and the trial court failed to determine whether the mother could

pay for supervised visitation. Id. Our Court has since squarely relied on Y.I. and

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IN RE: E.P.-L.M.

Opinion of the Court

reversed without further discussion where “the trial court made no findings as to the

costs associated with supervised visitation, who would bear the responsibility of

paying such costs, or [the visiting party]’s ability to pay the costs.” In re J.T.S., ___

N.C. App. ___, ___, 834 S.E.2d 637, 646 (2019).

In the present case, the trial court ordered that Mother only gets visitation (1)

if she travels from Onslow County to Georgia or (2) if visitation is supervised in

Charlotte. Having determined that it is in the best interests of Ellen that Mother

have in-person visitation with her child, the trial court was required to determine

whether any inability to pay for visitation on Mother’s part would prevent the best

interests of Ellen from being met. Without such findings, we cannot determine

whether the trial court abused its discretion in setting the conditions for Mother’s

visitation with Ellen. See In re Y.I., 262 N.C. App. at 582, 822 S.E.2d at 505 (“[T]he

trial court’s order is not specific enough to allow this Court to determine whether the

trial court abused its discretion in setting the conditions of visitation.” (citing In re

J.C., 368 N.C. at 89, 772 S.E.2d at 465)). Therefore, we vacate and remand the

portion of the dispositional order setting out Mother’s visitation for additional

findings regarding Mother’s ability to pay for costs associated with visitation.

III. Conclusion

We hold that the trial court did not commit error in adjudicating Ellen abused,

neglected, and dependent and did not err in its transfer of proceedings from Chapter

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IN RE: E.P.-L.M.

Opinion of the Court

7B to Chapter 50 under Section 7B-911. However, we hold that the trial court failed

to make necessary findings as to Mother’s ability to pay for visitation as ordered in

the 7B-911 and Disposition Orders. As a result, we vacate the visitation provisions

of those orders and remand for further findings on Mother’s ability to pay for

visitation. The trial court may elect to take further evidence on the question in its

discretion.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.

Judge ARROWOOD concurs.

Judge MURPHY concurs by separate opinion.

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No. COA19-803 – In re E.P.-L.M.

MURPHY, Judge, concurring.

I concur with the Majority that Mother’s arguments regarding the “stipulation”

entered into by Father, DSS, and the GAL, but not Mother, were not properly

preserved for our review. Supra at 9. However, I write separately to reject the GAL’s

and DSS’s arguments that, were the issues related to the “stipulation” preserved, the

trial court’s use of the “stipulation” against Mother was appropriate and did not

impermissibly shift the burden to Mother.

DSS and the GAL would urge us to approve of the trial court’s reliance on the

“stipulation,” a document that discusses the alleged actions of a party to the litigation

who did not assent to the “stipulation.” The trial court improperly relied on the

document during the adjudication stage of the proceeding despite Mother not being a

party to it:

All right, on the adjudication then, this order is based on

the stipulated facts between [DSS], the [GAL], and [Father],

the evidence presented by [DSS], and the evidence

presented by [Mother], and the arguments of all four

counsel.

(Emphasis added). The trial court went on to improperly place the burden of

disproving the “stipulation” on Mother:

And going through the stipulated facts that make a finding

that the [Mother] did not stipulate to these facts, however,

after the mother presented evidence, the Court finds that

with regard to all of the stipulated facts, the Court finds

them to be fact. That the mother's evidence did not convince

the Court that any of these stipulations were not in fact

accurate.

IN RE E.P.-L.M.

Murphy, J., concurring

(Emphasis added). Ultimately, the trial court “adjudicate[d the child to be] abuse[d],

neglect[ed], and dependen[t].”

There are two errors in the trial court’s actions regarding the “stipulation”—

first, the “stipulation” was not properly considered as evidence against Mother given

that she did not stipulate to it; and, second, the trial court placed a burden on Mother

to disprove the allegations of her adversaries.

To adjudicate a child as abused, neglected, and dependent the trial court must

“find[] from the evidence, including stipulations by a party, that the allegations in the

petition have been proven by clear and convincing evidence[.]” N.C. G. S. § 7B-807(a)

(2019) (emphasis added). Despite the contemplation of “stipulations by a party” in

the statute, our caselaw has made clear that stipulations do not extend beyond what

was agreed to by those stipulating. See Rickert v. Rickert, 282 N.C. 373, 380, 193

S.E.2d 79, 83 (1972). Stipulations do not extend beyond what was agreed to, and do

not extend to parties who did not agree to them either. The GAL suggests that a

party who did not agree to a stipulation may be bound by the content of the

stipulation. This is not the law, this has never been the law, and this should never

be the law in an adversarial system.6

6 “Where facts are stipulated, they are deemed established as fully as if determined by the

verdict of a jury. A stipulation is a judicial admission. As such, [i]t is binding in every sense,

preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent

from the necessity of producing evidence to establish the admitted fact.” Moore v. Humphrey, 247 N.C.

423, 430, 101 S.E.2d 460, 466-467 (1958) (internal citations and quotation marks omitted). Similar to

2

IN RE E.P.-L.M.

Murphy, J., concurring

Our Supreme Court has discussed the rules regarding stipulations and how

those rules apply when the stipulation is used beyond its intended scope to also

include attorney fees, as follows:

It has been said in North Carolina that courts look with

favor on stipulations, because they tend to simplify,

shorten, or settle litigation as well as saving cost to the

parties. . . .

In Lumber Co. v. Lumber Co., . . . this Court considered

judicial admissions, and Walker, J., speaking for the Court,

stated: “Such agreements and admissions are of frequent

occurrence and of great value, as they dispense with proof

and save time in the trial of causes. The courts recognize

and enforce them as substitutes for legal proof, and there

is no good reason why they should not. . . . While this is so,

the court will not extend the operation of the agreement

beyond the limits set by the parties or by the law.”

It has been the policy of this Court to encourage

stipulations and to restrict their effect to the extent

manifested by the parties in their agreement. . . . In

determining the extent of the stipulation we look to the

circumstances under which it was signed and the intent of

the parties as expressed by the agreement. Similarly,

stipulations will receive a reasonable construction with a

our caselaw, Black’s Law Dictionary’s second definition of stipulation is “[a] voluntary agreement

between opposing parties concerning some relevant point; esp. an agreement relating to a proceeding,

made by attorneys representing adverse parties to the proceeding [for example,] the plaintiff and

defendant entered into a stipulation on the issue of liability[]. . . . A stipulation relating to a pending

judicial proceeding, made by a party to the proceeding or the party's attorney, is binding without

consideration.” Stipulation, Black’s Law Dictionary (11th ed. 2019). Its third definition is “Roman

law. A formal contract by which a promisor (and only the promisor) became bound by oral question

and answer. []By the third century A.D., stipulations were always evidenced in writing.” Stipulation,

Black’s Law Dictionary (11th ed. 2019). In fact, even the first edition of Black’s Law Dictionary states

“[t]he name ‘stipulation’ is familiarly given to any agreement made by the attorneys engaged on

opposite sides of a cause, (especially if in writing,) regulating any matter incidental to the proceedings

or trial, which falls within their jurisdiction. Such, for instance, are agreements to extend the time for

pleading, to take depositions, to waive objections, to admit certain facts, to continue the cause.”

Stipulation, Black’s Law Dictionary (1st ed. 1891) (emphasis added).

3

IN RE E.P.-L.M.

Murphy, J., concurring

view to effecting the intent of the parties; but in seeking

the intention of the parties, the language used will not be

so construed as to give the effect of an admission of a fact

obviously intended to be controverted, or the waiver of a

right not plainly intended to be relinquished, . . .

Judge Martin's order enumerated concisely each of

defendant's obligations, all of which related to subsistence

and child custody. Further, the fact that the stipulation

did not include an award of counsel fees is reflected in the

following portion of Judge Martin's order: “The court

expressly refrains from ruling on the question of attorneys’

fees for plaintiff's attorneys at this time, and that said

motion for attorneys’ fees may be ruled upon at the final

determination of this action.”

Recognition that allowance of counsel fees had not been

considered by either judge was again clearly shown by

paragraph 15 of the consent order awarding permanent

alimony and child custody signed by Judge Allen on 25 July

1971, . . .

Rickert, 282 N.C. at 379-381, 193 S.E.2d at 83-84 (internal citations and marks

omitted) (emphasis added).

The language above recognized the longstanding application of the limits of

stipulations to only what is agreed upon. Our Supreme Court in Rickert goes on to

state:

Manifestly, it was not the intent of the parties or the

understanding of the respective trial judges that allowance

of counsel fees be affected by defendant's stipulation. We

cannot by construction broaden or extend this stipulation

to encompass allowance of counsel fees. We therefore hold

that defendant's stipulation, standing alone, did not

support the award of counsel fees.

4

IN RE E.P.-L.M.

Murphy, J., concurring

The trial judge could not have, without more, awarded

counsel fees even if we concede defendant's stipulation

included admissions of all requirements of [N.C.]G.S. [§]

50-16.3 as relating to subsistence, and that the stipulation

met the statutory prerequisite that plaintiff was entitled to

the principal relief demanded.

Id. at 381,193 S.E.2d at 84. Stipulations are not evidence of anything against a party

beyond what is stipulated to by that party. As our Supreme Court stated, even if a

stipulation could fully establish a claim on its own, it still would not entitle a party

to relief on that claim when the stipulation was not intended to extend to the claim.

This further demonstrates that a stipulation is not evidence to the extent there is not

agreement to its terms. See also Estate of Carlsen v. Carlsen, 165 N.C. App. 674, 678,

599 S.E.2d 581, 584 (2004) (“A stipulation need not follow any particular form, but

its terms must be sufficiently definite and certain as to form a basis for judicial

decision, and it is essential that the parties or those representing them assent to the

stipulation.”). If a stipulation is not evidence beyond the extent of the parties agreed-

upon terms, it cannot be evidence against a party who does not agree to it. If this

were not true, it would make the requirement “that the parties or those representing

them assent to the stipulation” pointless, as in any action with three or more parties,

two parties could enter a stipulation only about the other party, as happened here,

that would be included in evidence against all other parties despite the other parties

not agreeing to the stipulation. Id. Using the “stipulation” here as evidence against

5

IN RE E.P.-L.M.

Murphy, J., concurring

Mother despite her not being a party to it was improper, and the trial court erred in

considering the “stipulation” as evidence against her.

The error here, if it was preserved, would be reversable due to the trial court’s

apparent reliance on the “stipulation” to shift the burden of proof to Mother when it

came to the facts in the “stipulation.” The trial court stated:

And going through the stipulated facts that make a finding

that the mother did not stipulate to these facts, however,

after the mother presented evidence, the Court finds that

with regard to all of the stipulated facts, the Court finds

them to be fact. That the mother's evidence did not

convince the [trial c]ourt that any of these stipulations were

not in fact accurate.

(Emphasis added). The plain meaning of this statement shows the trial court placed

a burden of disproving the content of the stipulation on Mother.

DSS suggests that the language above instead reflects the trial court having

weighed and considered conflicting evidence. The language itself is that Mother had

to “convince the [trial c]ourt” that the “[contents of the] stipulation[] were not in fact

accurate.” Placing a burden on Mother to disprove the facts in the “stipulation” DSS

provided to the trial court as evidence that the child was neglected, dependent, and

abused is the same as placing a burden on Mother to disprove DSS’s evidence that

the child was neglected, dependent, and abused. This impermissibly shifted the

burden of proof to Mother to show her child was not neglected, dependent, or abused.

Placing this burden of proof on Mother was erroneous, as “[t]he burden of proof in an

adjudicatory hearing lies with the petitioner to show by clear and convincing evidence

6

IN RE E.P.-L.M.

Murphy, J., concurring

that a minor child has been neglected[, abused, or is dependent].” In re E.P., 183 N.C.

App. 301, 306, 645 S.E.2d 772, 775 (2007).

Our Supreme Court has held:

“The rule as to the burden of proof (the burden of the issue)

constitutes a substantial right, for upon it many cases are

made to turn, and its erroneous placing is regarded as

reversible error.”

...

When [a] judge has expressly placed the burden of proof

upon the wrong party, and conflicting inferences may be

drawn from the evidence, it is impossible for an appellate

court to know whether the erroneous allocation of the

burden dictated his findings of fact. [Such a] proceeding,

therefore, must be remanded to the Superior Court for a

rehearing.

Joyner v. Garrett, 279 N.C. 226, 236-237, 182 S.E.2d 553, 560-561 (1971) (quoting

Williams v. Insurance Company, 212 N.C. 516, 518, 193 S.E. 728, 730 (1937)).

According to the rule set out in Joyner, if this issue was preserved, we would be

required to vacate the trial court’s order and remand.

Here, as established above, the trial court expressly placed the burden of proof

on Mother to disprove the evidence presented by DSS, while DSS should have had

the burden of proof. Additionally, conflicting inferences may be drawn from the

evidence here, as Mother testified to the allegedly legitimate reasons for her concerns

of sexual abuse. The trial court’s order was based on the conflicting evidence,

including “the stipulated facts,” that supported the findings of fact relied on to

adjudicate the child as dependent, neglected, and abused. As a result, “it is

7

IN RE E.P.-L.M.

Murphy, J., concurring

impossible for an appellate court to know whether the erroneous allocation of the

burden dictated [the trial court’s] findings of fact” where the trial court “expressly

placed the burden of proof upon the wrong party, and conflicting inferences may be

drawn from the evidence.” Id. According to Joyner, if this issue was preserved, we

would be required to vacate the order and remand for determination of this issue

without considering the “stipulation” against a stranger to the document. Id.

Were the trial court able to consider this stipulation against Mother in the

manner the trail court did, it would allow a filing entitled “stipulation” to be

considered as evidence of a claim, even if the party it is used against does not agree

to it, unless she is able to disprove the contents of the “stipulation.” In other words,

for a party to not be bound by a “stipulation” she never agreed to, she must disprove

its contents. Such a rule greatly expands how stipulations may be used by parties as

the law otherwise requires stipulations to be limited to the agreeing parties’

intentions and to the agreeing parties. Such a rule would turn our adversarial system

on its head. The GAL’s and DSS’s positions before the trial court and on appeal as to

the trial court’s use of the “stipulation” are incorrect and have no place in our

adversarial system.

8