                                   NO. COA13-972

                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


IN THE MATTER OF:

       K.A.                                  Mecklenburg County
       E.A.                                  Nos. 12 JA 704–06
       K.A.


       Appeal by Respondent-Mother from orders entered 19 April

2013    and   14     June   2013   by    Judge   Elizabeth    T.    Trosch     in

Mecklenburg County District Court. Heard in the Court of Appeals

27 February 2014.


       Senior   Associate   Attorney    Twyla  Hollingsworth-
       Richardson for Mecklenburg County Department of Social
       Services, Youth & Family Services.

       Mercedes O. Chut for Respondent-Mother.

       Parker Poe Adams & Bernstein LLP, by Deborah L. Edney,
       for Guardian ad Litem.


       STEPHENS, Judge.


               Factual Background and Procedural History

       This   case    arises   from     an   adjudication    of    neglect    and

dependency    in     Mecklenburg   County    District   Court.     Three     minor

children, referred to as “Katie,” “Elliot,” and “Karen” in this
                                       -2-
opinion,1     were   the    subject    of     the     hearing.    Their      parents,

Respondent-Mother and “the father,” were married on or about 30

July 1994 and separated on or about 11 December 2010. Prior to

separation, Respondent-Mother “became determined to prove [that

the father] had molested all three minor children.”

       On 20 December 2010, Respondent-Mother initiated a custody

action and filed a motion for a domestic violence protective

order.    The    parties    reached    a    consent    order     in    the   domestic

violence matter in February of 2011. On 19 September 2012, the

Mecklenburg       County    District       Court,     Judge    Christy       T.    Mann

presiding, entered a permanent civil custody order. The court

found that “[i]t [was] highly unlikely that [Karen] ha[d] been

molested or abused by [the father]” and that Respondent-Mother

had “perpetuated a false set of beliefs onto the children which

they    now     believe.”   The    court     placed     the    juveniles      in    the

father’s legal custody, but ordered the children and the father

to “undergo intensive counseling with therapists to prepare them

for    the    transition    from   [Respondent-Mother’s]              home   to    [the

father’s] home,” given the “significant psychological damage”

suffered by the children as a result of the parties’ divorce and

the Respondent-Mother’s attempts to alienate the children from



1
    Pseudonyms are used to protect the juveniles’ identities.
                                          -3-
the   father.   On     6    November    2012,    the     court   entered    a   second

custody order placing Katie and Elliot in the father’s physical

custody and ordering therapy to allow Karen to be placed with

the father. The order also provided that Respondent-Mother could

only visit with Katie and Elliot under supervision. The record

indicates that neither party appealed the custody orders.

      Seven     days       later,    on    13    November        2012,     Petitioner

Mecklenburg County Department of Social Services, Youth & Family

Services (“YFS”), filed a juvenile petition alleging that all

three   juveniles      were     abused,    neglected,        and   dependent.      The

petition   recited         certain   findings     from    the    trial   court’s   19

September 2012 civil custody order and alleged that, “[d]uring

one of the . . . therapy sessions, [which were ordered so that

Karen could be returned to her father’s care, Karen] attacked

[the] father and had to be pulled off of him by a therapist.”

The petition also alleged that Elliot had accused the father of

sexual abuse, but noted that the accusation was “suspect.”

      On 20 November 2012, the trial court entered a nonsecure

custody    order     placing    Karen     in    foster    care.    The   court    also

determined that Katie and Elliot would remain with the father,

noting that “YFS ha[d] taken appropriate steps to assess the

safety of the two children remaining in the father’s care [and]
                                            -4-
enter[ed]    into    a   safety      plan    with    the    father    to     ensure   the

children’s continued safety.” In addition, the trial court found

there was a reasonable factual basis to believe the allegations

in the petition and that placement in foster care was the most

appropriate arrangement as to Karen. Lastly, the court noted

that    “[Respondent-Mother]          is    collaterally         estopped     from    re-

litigating the issues adjudicated by Judge Mann. YFS shall begin

the [Interstate Compact on the Placement of Children] process

for    the   maternal      grandparents[,]          but    the     [c]ourt    will    not

consider temporary custody with them.”

       The petition came on for hearing on 14 January 2013. At the

outset of the hearing,              the trial court orally               re-stated its

determination       that     Respondent-Mother            “would    be     collaterally

estopped from re-litigating those issues that were litigated by

those parties as Petitioner and [Respondent-Mother] in a child

custody action before the Honorable Christy T. Mann in 10 CVD

25443.” The court also received documents from the civil custody

case into evidence. The father stipulated to a mediated petition

agreement, but YFS offered no further evidence at adjudication.

Respondent-Mother          called     several       witnesses,        including       the

father. During the presentation of evidence, the trial court

sustained     a     number     of     objections           to    Respondent-Mother’s
                                          -5-
questions about the father’s alleged abuse of the juveniles on

grounds that         Respondent-Mother was collaterally estopped from

re-litigating that issue.

      The   trial     court     entered    an   adjudication     and   disposition

order on 11 March 2013 and an amended adjudication order on 19

April 2013.2 In the amended order, the trial court found as fact

that “[t]he [c]ourt has previously ruled that the parents are

collaterally     [e]stopped        from    re-litigating    issues       which    have

already been ruled upon in the custody case. The [c]ourt takes

judicial notice of the findings made by Judge Mann and those

findings are incorporated herein.” Given the findings of fact in

its   order,    the     trial     court    adjudicated    all    three    juveniles

neglected      and    additionally        adjudicated    Karen   dependent.        The

trial   court    entered      a   dispositional     order   on    14     June    2013,

providing that Karen would remain in the legal custody of YFS

and continue treatment “in order to change her false beliefs




2
  In the 11 March 2013 order, the court elected to continue
disposition in order to “fully assess the most appropriate way
to achieve the purpose of the [c]ourt’s exercising jurisdiction
over the children [by obtaining] more information about the
needs of the children.” Oddly, the 11 March 2013 adjudication
and disposition order purports to continue the disposition
hearing to 6 March 2013, an obvious impossibility that was
repeated in the 19 April 2013 amended order. In any event, the
14 June 2013 disposition order makes clear that the hearing
occurred on 16 May 2013.
                                       -6-
about her father so she can be reintegrated into his home.”

Respondent-Mother appeals.



                                  Discussion

       Respondent-Mother        appeals      from         the    trial     court’s

adjudication and disposition orders on grounds that the trial

court    (1)   erroneously        found      that        Respondent-Mother      was

collaterally    estopped      and/or    barred      by    the   doctrine   of   res

judicata3 from litigating the allegations in the petition that

were addressed in the 19 September 2012 civil custody order or,

in the alternative, (2) failed to make sufficient findings of

fact    to   support    its     adjudication        order.      We   reverse    the

adjudication and disposition orders on grounds that the trial

court erred by invoking the doctrine of collateral estoppel and

remand for further proceedings consistent with this opinion.

       I. Appellate Review

       As a preliminary matter, we address YFS’s argument that

Respondent-Mother      failed    to    preserve     her     first    argument   for

appellate review because she did not object when the trial court



3
   The   record   indicates  that,    despite Respondent-Mother’s
argument, the trial court relied exclusively on the doctrine of
collateral   estoppel   to  bar    litigation  on  the   relevant
allegations in the petition, not res judicata. Therefore, we
tailor our analysis to her collateral estoppel argument.
                                                 -7-
stated at the beginning of the hearing that collateral estoppel

would   work     to       bar   re-litigation           of    those   issues       raised    and

determined in the custody                  case.       For support, YFS points out

that,    during       a     discussion       of        res    judicata    and      collateral

estoppel, counsel for Respondent-Mother “state[d] that she [was]

not re-litigating any of the issues decided by Judge Mann” and

even    stated      in      her      closing       argument       that    she      “obviously

accepted” the collateral estoppel ruling. These statements are

taken   out    of     context        and    do     not       accurately   represent         what

occurred at the hearing.

       Rule   10(a)(1)          of   the   North        Carolina      Rules   of    Appellate

Procedure provides that

              [i]n   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.
              It is also necessary for the complaining
              party to obtain a ruling upon the party’s
              request, objection, or motion. . . .

N.C.R. App. P. 10(a)(1).

       Relevant to the preservation issue, the following colloquy

occurred      between       counsel        for     Respondent-Mother,           the   father,

counsel for the father, and the court during the 14 January 2013

hearing:
                           -8-
[COUNSEL   FOR    RESPONDENT-MOTHER:]   These
allegations, when did they first surface?

[THE FATHER:]          Which   allegations    are       you
referring to?

[COUNSEL    FOR        RESPONDENT-MOTHER:]         Sexual
abuse.

[THE  FATHER:]         Approximately    December         of
2010.

[COUNSEL FOR RESPONDENT-MOTHER:] And what —
when it surfaced, what did you offer to do?

[COUNSEL FOR THE FATHER]: I’m gonna object.
I don’t know how far we’re gonna go with
this.   My   understanding    is   the   only
allegation that would be relevant here is
the one that’s in the petition . . . .
Everything else would have been covered by
the previous orders of Judge Christy Mann
and should be collaterally estopped . . . .

THE COURT: All right. So you’re objecting to
this evidence on the basis that [Respondent-
Mother] would be collaterally estopped from
re-litigating it?

[COUNSEL    FOR THE  FATHER]: Collaterally
estopped   or res judicata or beyond the
scope.

THE COURT:       All     right.   The   objection       is
sustained.

[COUNSEL   FOR    RESPONDENT-MOTHER]:        May    I    be
heard?

THE COURT: Yes. What is your argument for
the admissibility of this evidence?

[COUNSEL FOR RESPONDENT-MOTHER]: Well, the
issue I’m trying to ask him about actually
                    -9-
was not provided in any of the orders. I
asked him what he did. There’s nothing about
what he did.

And my position is collateral estoppel does
not   apply  or   res  judicata  in   these
proceedings. For res judicata or collateral
estoppel to apply, the [c]ourt has to find
that the parties are identical, the issues
are identical, and we don’t have that here.
You had a — you had a civil action between
[the father] and [Respondent-Mother] in
civil court.

In this court, you have — and that was with
[Respondent-Mother] as the plaintiff and
[the father] as the defendant. We are in
juvenile court. A different statute applies,
which is the 7B statute. You have different
parties now. You don’t have [Respondent-
Mother] bringing an action against [the
father].

You have [YFS] as the petitioner in this
case. You have the Guardian ad Litem’s
office . . . representing the children. You
have the mother and the father . . . as
respondents in this action. So I say there
is no identity of parties. The issues are
not the same.

I’m not re-litigating anything, and there
are additional allegations in the petition
that are not referenced here. . . .

I met with [counsel for YFS] on Friday when
I was getting my discovery, and I said, I
don’t have any police reports, I don’t have
any of this. [He s]aid, well, I’m not going
to be offering any of those. And now we have
a stipulation dealing with police reports.
And if the [c]ourt adopts that stance,
[Respondent-Mother]     cannot      litigate
anything.
                              -10-


         I say there’s no identity of parties and
         there’s no res judicata as far as what I’m
         questioning. There’s some things that I’m
         not going to be re-litigating, but I asked
         him   specifically   when the   allegations
         surfaced what did you do. He took certain
         steps that I know weren’t reflected in any
         of the orders, and I think I should be
         allowed to ask that.

         And I clearly wasn’t a party to that
         proceeding. My client was unrepresented in
         the civil proceeding.

         THE COURT: All right. Well, the Honorable
         Christy T. Mann presided over a hearing July
         10th through 11th, 2012. . . .

         . . .

         And   so   I’m   going   to   conclude  that
         [Respondent-Mother] should not be allowed to
         re-litigate those factual allegations in
         this proceeding . . . . So the objection is
         sustained.

(Italics added). Later, in her closing argument, counsel for

Respondent-Mother made the following comment:

         [COUNSEL FOR RESPONDENT MOTHER]: . . .

         While I feel that the Court has ruled that
         we   can’t  litigate  anything  because  of
         collateral estoppel and res judicata, which
         obviously we have accepted, I feel my hands
         are tied. I’m not really properly able to
         argue but . . . that the petition be
         dismissed. . . .

(Italics added). This is clearly sufficient to preserve review

of the collateral estoppel issue under Rule 10.
                                   -11-
      When counsel for the father sought to halt questioning on

the issue of the alleged abuse, counsel for Respondent-Mother

made a clear, cogent argument for why she objected to the trial

court’s application of the collateral estoppel rule. Afterward,

the   court   specifically    ruled   against      her.   As    the   hearing

continued, counsel for Respondent-Mother maintained that she did

not believe her line of questioning was barred by the doctrines

of res judicata or collateral estoppel. Indeed, a reading of

counsel’s closing argument in context makes it clear that she

“accepted” the trial court’s ruling only to the extent that she

had to do so in order to try the case, not because she believed

the ruling was correct. For these reasons, we hold that this

issue was properly preserved for appellate review under Rule 10.

Therefore, YFS’s preservation argument is overruled.

      II. Collateral Estoppel

      In her first argument on appeal, Respondent-Mother contends

the trial court prejudicially erred by finding in the 19 April

2013 neglect order that she was collaterally estopped from re-

litigating the issues addressed in the 19 September 2012 civil

custody   order   because    the   neglect   hearing      and   the   custody

hearing   involved   different     parties   and   different     burdens   of

proof. In response, YFS asserts that (1) mutuality of parties is
                                          -12-
no   longer    a    requirement     for     collateral    estoppel,        (2)   North

Carolina law allows the application of the collateral estoppel

doctrine    despite     the     different    burdens     of     proof   in   juvenile

cases under Chapters 7B and 50, and (3) any error that the trial

court made in applying the doctrine of collateral estoppel is

harmless.     The    Guardian     ad    Litem    contends     that,     even     though

mutuality is no longer a requirement for collateral estoppel,

the trial court erred in applying the doctrine because of the

different     burdens      of   proof    between   this     case   and     the    civil

custody case. Nonetheless, the Guardian ad Litem asserts that

the trial court’s error is harmless. After a thorough review of

the case, we conclude that the trial court prejudicially erred

in applying the doctrine of collateral estoppel. Accordingly, we

reverse the order of the trial court and remand for further

proceedings.

      Under the traditional definition of collateral estoppel,

our Supreme Court has said in Thomas M. McInnis & Assocs., Inc.

v.   Hall     that    “a    final       judgment   on     the     merits     prevents

re[-]litigation of issues actually litigated and necessary to

the outcome of the prior action in a later suit involving a

different cause of action between the parties or their privies.”

318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986) (“Traditionally,
                                              -13-
courts     limited     the     application           of    both   [res          judicata    and

collateral estoppel] to parties or those in privity with them by

requiring so-called ‘mutuality of estoppel:’ both parties had to

be    bound   by    the    prior       judgment.”)        (citation       omitted).        After

explaining the traditional definition of collateral estoppel,

however, the Supreme Court went on to decide that there was “no

good reason for continuing to require mutuality of estoppel” and

abolished the requirement as a defensive tactic. Id. at 434, 349

S.E.2d at 560. Relying on that decision, this Court has since

stated that “mutuality of parties is no longer required when

invoking      either      offensive      or    defensive      collateral           estoppel,”

intending to abolish the element altogether. Rymer v. Estate of

Sorrells, 127 N.C. App. 266, 269, 488 S.E.2d 838, 840 (1997).

These are the cases relied on by the Guardian ad Litem and YFS

to    support      their   assertion          that   mutuality       is     no     longer    an

element of collateral estoppel.

       Inexplicably, however, our Supreme Court has since defined

the    doctrine      of    collateral          estoppel      using        the     traditional

definition,        providing       a    lengthy       analysis       of     the     mutuality

element. See State v. Summers, 351 N.C. 620, 626, 528 S.E.2d 17,

22 (2000) (holding that “the elements of collateral estoppel

were satisfied” when, inter alia, “the district attorney is in
                                             -14-
privity with the Attorney General”). Though the Summers court

cites Hall, it does not discuss the apparent divergence from

Hall and Rymer on the issue of mutuality. See id. at 622, 528

S.E.2d      at   20.    The    result     is    that       our   courts     have     defined

collateral estoppel variously, applying the privity element in

some cases and refraining to do so in others. See, e.g., Youse

v. Duke Energy Corp., 171 N.C. App. 187, 192–93, 614 S.E.2d 396,

401    (2005)    (defining       collateral         estoppel      without     the    privity

element); Bee Tree Missionary Baptist Church v. McNeil, 153 N.C.

App.    797,     799,   570     S.E.2d    781,       783    (2002)    (“For    collateral

estoppel to bar [the] plaintiff’s action, [the] defendants must

show    . . .     (4)   both     parties       are    either      identical     to    or   in

privity     with    a   party     or   the     parties      from     the   prior     suit.”)

(citations omitted); In re Foreclosure of Azalea Garden Bd. &

Care, Inc., 140 N.C. App. 45, 54, 535 S.E.2d 388, 395 (2000)

(“[M]utuality of parties is no longer required when invoking

either offensive or defensive collateral estoppel . . . .”).

       We   need    not    resolve       the   mutuality         issue     here.    Even   if

privity is not a requirement of collateral estoppel, the trial

court erroneously applied the doctrine because of the different

burdens     of     proof   used    in     custody      and       neglect    hearings.      As

Respondent-Mother points out and the Guardian ad Litem concedes,
                                             -15-
“case    law    is        well[ ]settled      that     collateral          estoppel     cannot

apply    where       the     proceedings       involve       a     different       burden       of

proof.” See, e.g., State v. Safrit, 154 N.C. App. 727, 729, 572

S.E.2d 863, 865 (2002) (“It is clear that the difference in the

relative burdens of proof in the criminal and civil actions

precludes       the        application       of     the     doctrine        of     collateral

estoppel.”) (citations and internal quotation marks omitted),

disc. review denied, 357 N.C. 65, 579 S.E.2d 571 (2003). YFS’s

unsupported assertion that “civil actions intertwined around the

best interest[s] of the juveniles” are somehow exempt from this

precept is without merit.

      Here,     the        burden    of     proof    in     the    custody        action    was

preponderance         of    the     evidence.       N.C.    Gen.    Stat.     §    50-13.5(a)

(2013) (“The procedure in actions for custody and support of

minor children shall be as in civil actions . . . .”); McCorkle

v.   Beatty,        225     N.C.     178,    181,     33    S.E.2d     753,       755   (1945)

(“Ordinarily,         in     civil    matters,       the    burden    of     the    issue       is

required to be carried only by the preponderance or greater

weight     of       the    evidence       . . . .”)        (citations       omitted).           The

standard       of    proof     for    an    adjudicatory           order    entered        on    a

petition alleging abuse, neglect, or dependency in a juvenile

matter, however, is “clear and convincing evidence.” N.C. Gen.
                                             -16-
Stat. § 7B-805 (2013); In re C.B., 180 N.C. App. 221, 222, 636

S.E.2d 336, 337 (2006) (citation omitted), affirmed per curiam,

361 N.C. 345, 643 S.E.2d 587 (2007). Therefore, we hold that the

trial     court     erred        by     applying    the    doctrine    of   collateral

estoppel       in   this    case        to   bar    Respondent-Mother’s        questions

because the neglect hearing was held pursuant to a different

burden of proof. See Safrit, 154 N.C. App. at 729, 572 S.E.2d at

865.

       Nevertheless, the Guardian ad Litem and YFS contend that

such error was harmless. In support of this point, the Guardian

ad Litem notes that “the trial court . . . properly found Karen

to be neglected and dependent and the issue as to the neglect of

Elliot and Katie is now moot.” In addition, YFS points out that

the trial court received “other items” into evidence beyond the

testimony that was barred on grounds of collateral estoppel.

Specifically, YFS points out that the court properly considered

the     father’s     mediated            agreement,       the    father’s   testimony,

testimony of the YFS social worker, and the Respondent-Mother’s

own evidence in determining that Katie and Elliot were neglected

and     that    Karen      was        both   neglected     and    dependent.    We   are

unpersuaded.
                                -17-
    When the appellant in a civil case is seeking a new trial

pursuant to prejudicial error, as here, the appealing party must

“enable the Court to see that [s]he was prejudiced and that a

different result would have likely ensued had the error not

occurred.” Hasty v. Turner, 53 N.C. App. 746, 750, 281 S.E.2d

728, 730 (1981). Respondent-Mother argues on appeal that she was

prejudiced by the trial court’s erroneous application of the

collateral estoppel rule in this case because

         the trial court sustained objections to
         questions asked by [Respondent-Mother] . . .
         to the point that the court limited the
         evidence to those orders in the [c]ustody
         [a]ction. The court did not allow any
         questioning   of  the   allegations  in  the
         petition to the extent that they    mirrored
         or related to the findings of fact made in
         orders in the [c]ustody [a]ction.

This comports with our reading of the transcript. The trial

court’s erroneous application of the collateral estoppel rule

made it impossible for Respondent-Mother to effectively contest

the allegations made in the petition under the higher, clear and

convincing   evidence   standard.4   For   this   reason,   we   cannot



4
  The Guardian ad litem asserts that the trial court’s order was
nonetheless correct because it is permissible to take judicial
notice of findings of fact made in a previous order, which was
decided under a different, lower standard of review, citing In
re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005)
[hereinafter J.B.]. This is incorrect. In J.B. we held that a
trial court may take judicial notice of “prior disposition
                                      -18-
conclude   that,      if     Respondent-Mother       had   been     given     the

opportunity    to    contest    all   of    the    allegations    made   in   the

petition, a different result might not have ensued. Therefore,

we   reverse   the   trial     court’s     order   and   remand   for    further

proceedings consistent with this opinion.5

      REVERSED and REMANDED.

      Judges CALABRIA and ELMORE concur.




orders” even though such orders were based on a lower
evidentiary standard. Id. Taking judicial notice of the
existence of an order or the disposition in that order is not
the same thing as taking judicial notice of each of the facts
resolved in that order. Here, the court did the latter.
5
  Because we resolve this case on collateral estoppel grounds, we
need   not   address   Respondent-Mother’s  second,   alternative
argument.
