                   IN THE COURT OF APPEALS OF NORTH CAROLINA

                                           No. COA16-295

                                        Filed: 4 October 2016

Orange County, Nos. 15 JA 62, 63

IN THE MATTER OF: K.P., C.P.


        Appeal by respondent-mother from order entered 20 November 2015 by Judge

Joseph Moody Buckner and order entered 24 November 2015 by Judge Beverly

Scarlett in Orange County District Court. Heard in the Court of Appeals 7 September

2015.


        Holcomb & Cabe, LLP, by Samantha H. Cabe, for petitioner-appellee Orange
        County Department of Social Services.

        W. Michael Spivey for respondent-appellant mother.

        Battle Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for guardian ad
        litem.


        ZACHARY, Judge.


        Respondent-mother (“respondent”) appeals from an order denying her motion

to vacate an order that had adjudicated respondent’s children “Kate” and “Carl”1 to

be neglected and dependent juveniles. Although respondent failed to appeal in a

timely fashion from the underlying order adjudicating the children to be neglected

and dependent, we have granted respondent’s petition for a writ of certiorari in order




        1   We use these pseudonyms to protect the juveniles’ privacy.
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                                         Opinion of the Court



to reach the merits of her appeal. Respondent also appeals from a permanency

planning order. For the reasons discussed below, we reverse the adjudication and

disposition order, vacate all subsequent orders resulting from that order, and remand

for further proceedings with respect to Carl.2

                              I. Factual and Procedural History

       On 14 July 2015, the Orange County Department of Social Services (“DSS”)

filed juvenile petitions alleging that 17-year-old Kate and 13-year-old Carl were

neglected and dependent. The petitions alleged that respondent was “abusing or

misusing” anti-anxiety and pain medications, and that on 2 April 2015, respondent

had been involuntarily committed to UNC Hospital for several days. In addition, the

petitions alleged that Kate and Carl did not want to live with respondent until she

was treated for substance abuse. Judge Joseph Moody Buckner conducted a hearing

on the petitions on 6 August 2015. On 27 August 2015, Judge Buckner entered an

order that adjudicated Kate and Carl to be neglected and dependent, placed them in

the legal and physical custody of respondent’s brother, “Mr. R.,” and scheduled a

permanency planning hearing for 5 November 2015.

       On 14 September 2015, respondent, who was then represented by appointed

counsel James E. Tanner, III, filed a pro se motion seeking the removal of her court-

appointed counsel and asking the court to vacate the adjudication and disposition


       2  Kate reached the age of majority in June 2016 and is no longer within the jurisdiction of the
juvenile court. See N.C. Gen. Stat. § 7B-201(a) (2015).

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order due to “lack of consent, misrepresentation/facts not presented to the Court, and

ineffective assistance of counsel.” Respondent’s motions were first heard by Judge

Beverly Scarlett on 1 October 2015. At that hearing, Judge Scarlett told respondent

that if the court removed Mr. Tanner, she would then be left with the choice of

retaining private counsel or proceeding without counsel. Although the record contains

no ruling on respondent’s motion for removal of her appointed counsel, respondent

proceeded without the assistance of counsel after the 1 October 2015 motion hearing.

Judge Scarlett continued the hearing on the motion to vacate the adjudication order

until it could be heard by Judge Buckner.

      Judge Buckner held a hearing on respondent’s motion to vacate the

adjudication order on 22 October 2015, and entered an order denying respondent’s

motion on 20 November 2015. On 5 November 2015, after the hearing on respondent’s

motion to vacate the order for adjudication and disposition but before the entry of

Judge Buckner’s order denying respondent’s motion, Judge Scarlett conducted a

permanency planning hearing. On 24 November 2015, Judge Scarlett entered a

permanency planning order that established a permanent plan of guardianship for

Kate and Carl and appointed Mr. R. as their guardian. The order granted respondent

supervised visitation with the children, declared the case “closed to further reviews”

and released DSS and the guardian ad litem from their involvement in this matter.




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      Respondent filed timely notice of appeal from the order denying her motion to

vacate the adjudication order and from the permanency planning order. However,

respondent failed to enter a timely notice of appeal from the underlying order for

adjudication and disposition. Counsel appointed to represent respondent on appeal

has filed a petition for writ of certiorari asking this Court to review the original

adjudication order entered on 27 August 2015.             N.C.R. App. P. 21(a)(1) (2015)

provides that the “writ of certiorari may be issued in appropriate circumstances . . .

when the right to prosecute an appeal has been lost by failure to take timely action[.]”

Our courts have generally interpreted the term “appropriate circumstances” in Rule

21(a) to mean that “the right of appeal has been lost through no fault of the

petitioner[,]” Johnson v. Taylor, 257 N.C. 740, 743, 127 S.E.2d 533, 535 (1962), and

“that error was probably committed below.” State v. Grundler, 251 N.C. 177, 189, 111

S.E.2d 1, 9 (1959). Ultimately, however, our decision to issue the writ is discretionary.

State v. McCoy, 171 N.C. App. 636, 639, 615 S.E.2d 319, 321 (2005). In this case, the

record shows that respondent lost her right of appeal through no fault of her own and,

as discussed below, we conclude that respondent has shown error by the trial court.

In our discretion, we allow her petition for writ of certiorari to review the order.

                      II. Order of Adjudication and Disposition

      On appeal, respondent argues that the court erred by entering the order

adjudicating her children to be neglected and dependent, on the grounds that the trial



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court neither conducted a proper adjudicatory hearing nor properly established

respondent’s consent to the adjudication. We conclude that respondent’s argument

has merit.

                         A. Legal Principles and Standard of Review

      When a juvenile is alleged to be abused, neglected, or dependent, N.C. Gen.

Stat. § 7B-802 (2015) requires the court to conduct an “adjudicatory hearing” in the

form of “a judicial process designed to adjudicate the existence or nonexistence of any

of the conditions alleged in a petition.” “In the adjudicatory hearing, the court shall

protect the rights of the juvenile and the juvenile’s parent to assure due process of

law.” Id. “[T]he allegations in a petition alleging that a juvenile is abused, neglected,

or dependent shall be proved by clear and convincing evidence.” N.C. Gen. Stat. §

7B-805 (2015). Moreover, the trial court may accept a stipulation to adjudicatory

facts only as follows:

             A record of specific stipulated adjudicatory facts shall be
             made by either reducing the facts to a writing, signed by
             each party stipulating to them and submitted to the court;
             or by reading the facts into the record, followed by an oral
             statement of agreement from each party stipulating to
             them.

N.C. Gen. Stat. § 7B-807(a) (2015).

      “An adjudication of abuse, neglect or dependency in the absence of an

adjudicatory hearing is permitted only in very limited circumstances.” In re Shaw,

152 N.C. App. 126, 129, 566 S.E.2d 744, 746 (2002). N.C. Gen. Stat. § 7-801(b1) (2015)


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authorizes the court to enter “a consent adjudication order” only if: (1) all parties are

present or represented by counsel, who is present and authorized to consent; (2) the

juvenile is represented by counsel; and (3) the court makes sufficient findings of fact.

      N.C. Gen. Stat. § 7B-807(b) (2015) requires that an “adjudicatory order shall

be in writing and shall contain appropriate findings of fact and conclusions of law.”

“ ‘[T]he trial court’s findings must consist of more than a recitation of the allegations’

contained in the juvenile petition. ‘[T]he trial court must, through processes of logical

reasoning, based on the evidentiary facts before it, find the ultimate facts essential

to support the conclusions of law.’ ” In the Matter of S.C.R., 217 N.C. App. 166, 168,

718 S.E.2d 709, 711-12 (2011) (quoting In re O.W., 164 N.C. App. 699, 702, 596 S.E.2d

851, 853 (2004) (internal quotation omitted)). In addition:

             In juvenile proceedings, it is permissible for trial courts to
             consider all written reports and materials submitted in
             connection with those proceedings. . . . [However,] the trial
             court may not delegate its fact finding duty. Consequently,
             the trial court should not broadly incorporate these written
             reports from outside sources as its findings of fact.

In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004) (citing In re Ivey, 156

N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003), and In re Harton, 156 N.C. App. 655,

660, 577 S.E.2d 334, 337 (2003)). On appeal from an adjudication of neglect, abuse,

or dependency, this Court must “determine ‘(1) whether the findings of fact are

supported by clear and convincing evidence, and (2) whether the legal conclusions are

supported by the findings of fact[.]’ ” In re T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d


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519, 523 (2007) (quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365

(2000)), aff’d as modified, 362 N.C. 446, 665 S.E.2d 54 (2008).

                                    B. Discussion

      The record on appeal shows that the parties attended a Child Planning

Conference on 21 July 2015, and that a report submitted by DSS to the trial court

indicated that a “Consent Agreement could not be reached” at the conference. The

case was scheduled for adjudication and disposition on 6 August 2015. The entire

adjudication hearing consisted of the following exchange between the trial court and

counsel:

             [DSS COUNSEL]: Handing up the reports in [Kate and
             Carl’s] case and I understand there’s a consent.

             THE COURT: Okay. I appreciate everybody’s consent and
             hard work in this case. It’s going to work out fine. We’ll
             approve the placement as recommended by [the guardian
             ad litem] and [the DSS social worker]. And we need a
             three-month [hearing] date.

             [FATHER’S COUNSEL]: Oh. Your Honor, if I could be
             heard.

             THE COURT: Of course.

             [FATHER’S COUNSEL]: Yes, Your Honor. [Father] is in
             agreement with the children being with Mr. [R]. He has a
             couple of concerns. One being that there is a fairly
             substantial amount of money that comes to - that the
             children get by virtue of his disability. And that money is
             still going to Mother---

             THE COURT: And it’s going to change.


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                           ....

[COUNSEL FOR FATHER]: . . . Okay. And also, just to
specify that he can have unsupervised visitation at the
permission--- at the desire of the children. . . .

                           ....

[COUNSEL FOR DSS] And how should the order read with
regards to the children’s disability benefits?

THE COURT: That [Mr. R. will] become the payee and
recipient.

                            ...

MR. TANNER: Your Honor. So my client has a couple of
requests.   She’s     willing to  comply   with    the
recommendations. She would like to have some ability to
have further visitation.

THE COURT: Well, there’s nothing restricting her from
that.

MR. TANNER: Okay.

THE COURT: There won’t be anything in the order doing
that.

MR. TANNER: There won’t be anything restricting it?

THE COURT: No.

                           ....

MR. TANNER: Second issue as it says: That [Father] is to
assist with providing transportation. I was informed that
there was some history of substance use, drunk driving,
prior custody orders from some years past.


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                                          ....

             THE COURT: Everybody that’s providing transportation
             have a license and insurance. How about that?

                                           ...

             THE COURT: Okay. Have a license and insurance and not
             be impaired.

             MR. TANNER: Okay.

             THE COURT: Or using. All right? Thank you.

The hearing concluded with counsel for DSS announcing a subsequent hearing date

of 5 November 2015.

      The order of adjudication and disposition recites that its findings of fact are

being made “based on clear, cogent and convincing evidence” and that the court’s

conclusions are based on these findings of fact. However, the trial court received no

testimony at the 6 August 2015 hearing, and the parties did not stipulate to any

adjudicatory facts pursuant to N.C. Gen. Stat. § 7B-807(a). Instead, the adjudication

of the minor children as neglected and dependent was supported solely by two written

reports submitted by DSS at the hearing. As a result, the trial court’s findings of fact

consist of recitations from the facts alleged in the petitions and wholesale

incorporation of reports prepared by DSS. We conclude that the trial court entered

its adjudication order without conducting an adjudicatory hearing as required by N.C.

Gen. Stat. § 7B-802.


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      We further conclude that the order for adjudication and disposition is not a

valid consent order and did not meet the requirements of N.C. Gen. Stat. § 7-801(b1).

The order contains no findings stating that the parties had stipulated to adjudicative

facts or had consented to the children being adjudicated as neglected and dependent.

Nor is there any evidence that a consent order had been drafted for the parties’

agreement. In sum, the record contains no evidence that the parties had reached a

consent agreement or that respondent had consented to her children being

adjudicated as neglected and dependent.

      In In re J.N.S., 207 N.C. App. 670, 678, 704 S.E.2d 511, 517 (2010), the record

showed that the respondent’s attorney had drafted a proposed consent order. In

addition, the parties were informed in open court that the trial court intended to enter

an adjudication order based upon the consent of the parties. In that factual context,

this Court held that the respondent’s failure to object to entry of the consent order

constituted a waiver of the right to challenge the order on appeal. In contrast, in the

present case, there is no evidence in the record that a consent agreement had been

reached for adjudication or that a consent order had been drafted. Moreover, although

the attorney for DSS and the trial court referred to “consent” several times, none of

those present stated the nature of the purported “consent” for the record. Specifically,




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neither of the parties’ attorneys nor the trial court ever stated that respondent was

consenting to the adjudication of her children as neglected and dependent. 3

       “As the link between a parent and child is a fundamental right worthy of the

highest degree of scrutiny, the trial court must fulfill all procedural requirements in

the course of its duty to determine whether allegations of neglect are supported by

clear and convincing evidence.” Thrift v. Buncombe County DSS, 137 N.C. App. 559,

563, 528 S.E.2d 394, 396 (2000) (citation omitted). In the present case, the

adjudication and disposition order neither resulted from a proper adjudicatory

hearing under N.C. Gen. Stat. § 7B-802, nor met the requirements of a valid consent

adjudication order under N.C. Gen. Stat. § 7B-801(b1). Therefore, we reverse the

order and remand to the trial court for further proceedings as to Carl.

                                    III. Remaining Issues

       As we have reversed the trial court’s order for adjudication and disposition, we

vacate the orders based upon the adjudication order, including the order that denied

respondent’s motion to vacate the adjudication order and the 24 November 2015

permanency planning order. Accordingly, we need not address respondent’s

arguments challenging these orders.




       3 Respondent’s attorney stated that respondent had agreed to “comply with the
recommendations.” We conclude that this was likely a reference to the “recommendations” in
respondent’s case plan, as there is no evidence in the record that any party had “recommended” that
respondent consent to the adjudication.

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      Respondent also argues that the court erred by treating her motion for removal

of her court-appointed counsel as a waiver of her right to appointed counsel under

N.C. Gen. Stat. § 7B-602(a) (2015) and by requiring her to proceed pro se without

conducting the inquiry mandated by N.C. Gen. Stat. § 7B-602(a1). As we have

reversed the underlying order for adjudication and disposition and have vacated the

subsequent orders arising from that order, we find it unnecessary to reach this issue.

                                      IV. Conclusion

      Respondent’s petition for writ of certiorari is allowed for the purpose of

reversing the order for adjudication and disposition entered on 27 August 2015. All

subsequent orders entered by the trial court, including the permanency planning

order entered on 24 November 2015, are hereby vacated. We remand the cause for a

new hearing on the petition filed by DSS in 15 JA 63 with regard to Carl. The trial

court shall hold a hearing to determine respondent’s eligibility and desire for

appointed counsel in accordance with N.C. Gen. Stat. § 7B-602.

      REVERSED AND REMANDED IN PART; VACATED IN PART.

      Judges BRYANT and TYSON concur.




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