                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA17-1433

                                      Filed: 19 June 2018

Brunswick County, No. 17 JA 84

IN THE MATTER OF: R.L.G.


       Appeal by respondent-mother from orders entered 13 September 2017 by

Judge W. Fred Gore in Brunswick County District Court. Heard in the Court of

Appeals 31 May 2018.


       Elva L. Jess for petitioner-appellee Brunswick County Department of Social
       Services.

       Anné C. Wright for respondent-appellant.

       Poyner Spruill LLP, by Kate C. Dewberry and Dylan J. Castellino, for guardian
       ad litem.


       DAVIS, Judge.


       This case requires us to examine (1) the requirements for a valid consent

adjudication order in an abuse, neglect or dependency case; and (2) the extent to

which findings in a pre-hearing order can be used to support an adjudication of

neglect. A.F. (“Respondent”) appeals from adjudication and disposition orders finding

her daughter R.L.G. (“Rory”)1 to be a neglected juvenile and continuing her custody

with the Brunswick County Department of Social Services (“DSS”). Because we


       1 Pseudonyms and initials are used throughout this opinion for ease of reading and to protect
the juvenile’s privacy.
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conclude the trial court’s determination that Rory was a neglected juvenile was not

supported by sufficient evidence or findings of fact, we vacate the adjudication and

disposition orders and remand the case to the trial court for further proceedings.

                      Factual and Procedural Background

      Respondent is the mother of Rory, who was born in August 2006.                 On

25 June 2017, DSS obtained non-secure custody of Rory and filed a petition in

Brunswick County District Court alleging that she was a neglected and dependent

juvenile. In its petition, DSS stated that in 2013 the Bladen County Department of

Social Services had substantiated allegations that Rory was sexually abused by

Respondent’s boyfriend. The petition further asserted that the boyfriend lived in

Respondent’s home with Rory and that Respondent had not expressed any concerns

regarding the abuse. In addition, the petition alleged that Rory had also recently

been the victim of sexual abuse inflicted by a family friend. According to the petition,

Respondent did not seek therapy for Rory as recommended by DSS and failed to meet

with the District Attorney’s office on two occasions to assist with the prosecution of

the case. Finally, the petition stated that Respondent had been unable to provide

Rory with an alternative childcare arrangement since 2013.

      On 6 July 2017, DSS filed a motion to amend the 25 June 2017 petition to

include additional allegations. The amended petition stated, inter alia, that Rory was

absent from school for twenty-five days during the 2016-17 school year and was tardy



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on thirty-seven occasions.           The motion to amend the petition was subsequently

allowed by the court.

        The trial court conducted a pre-adjudication hearing on 12 July 2017, and on

21 July 2017 the trial court entered an “Order on Pre-Hearing.” An adjudication

hearing was held on 16 August 2017.                 At this hearing, DSS read the following

prepared admission by Respondent into the record:

                  That admission is that the juvenile is a neglected juvenile
                  in that she did not receive proper care and supervision by
                  her mother in that her mother did not ensure the child
                  attended school regularly, having missed 25 days during
                  the 2016-17 calendar year and having been tardy 37 times.
                  The child did not pass the core classes of English, science,
                  and social studies, and a copy of the report card is tendered
                  in support of said admission. In addition, the mother has
                  not taken the child to well care visits with a physician to
                  address her medical needs.

        Respondent stated under oath her agreement to the truth of the above-quoted

admission. At that point, the trial court stated that it would “accept the admission

and adjudicate based upon the neglect.”2 Morgan Traynham (a social worker for DSS)

and Roberta Lerner (the guardian ad litem for Rory) testified with regard to a

potential trial home placement with Rory’s father and the possibility of supervised

visitation between Respondent and Rory.




        2   DSS took a voluntary dismissal as to the allegation of dependency that was contained in the
petition.

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      On 13 September 2017, the trial court entered an order (the “Adjudication

Order”) adjudicating Rory to be a neglected juvenile. That same day, the trial court

entered a separate disposition order that (1) continued custody of Rory with DSS; (2)

granted Respondent supervised visitation; and (3) ordered DSS to pursue the goal of

reunification with Respondent. Respondent filed a timely notice of appeal.3

                                               Analysis

I.   Trial Court’s Order as a Consent Adjudication Order

      “[T]he Juvenile Code provides two procedural paths for an adjudication of

abuse, neglect, or dependency: an adjudicatory hearing or an adjudication by

consent.” In re J.S.C., __ N.C. App. __, __, 800 S.E.2d 126, 128 (2017). A consent

adjudication “is the agreement of the parties, their decree, entered upon the record

with the sanction of the court[.]” In re Thrift, 137 N.C. App. 559, 562, 528 S.E.2d 394,

396 (2000) (citation and quotation marks omitted). N.C. Gen. Stat. § 7B-801(b1)

permits a trial 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-801(b1) (2017).

      Separate and apart from the statutory authorization for consent adjudication

orders contained in N.C. Gen. Stat. § 7B-801(b1), a different statute — N.C. Gen.



      3   Rory’s father is not a party to this appeal.

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Stat. § 7B-807 — allows factual stipulations made by a party to be used in support of

an adjudication. In such cases, a record of the stipulation “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) (2017).

      The initial question before us is whether the trial court’s 13 September 2017

order was a valid consent adjudication order such that no additional evidence of

neglect needed to be introduced at the adjudication hearing and no further

substantive findings of fact by the trial court establishing neglect were necessary to

support its adjudication as to Rory. We find our decision in In re L.G.I., 227 N.C.

App. 512, 742 S.E.2d 832 (2013), to be particularly instructive.          In L.G.I., an

adjudicatory hearing took place during which the trial court “read the facts into the

record[,]” noting that the juvenile in that case had tested positive for morphine at

birth and that the respondent-mother had used illegal substances during her

pregnancy. Id. at 515, 742 S.E.2d at 835 (citation, quotation marks and brackets

omitted). The respondent-mother then agreed under oath to those facts. On appeal,

however, she argued that this stipulation was not sufficient to convert the trial court’s

adjudication order into a consent adjudication order. We agreed with this argument,




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concluding that “[a]t most, respondent-mother entered into a stipulation as to certain

facts during the adjudication phase of the hearing.” Id.

      In re K.P., __ N.C. App. __, 790 S.E.2d 744 (2016), involved a challenge by the

respondent-mother to the trial court’s order adjudicating her children to be neglected

and dependent in which she contended that the order was not a valid consent

adjudication order. Id. at __, 790 S.E.2d at 747. The parties had attended a Child

Planning Conference prior to an adjudication hearing.           At the hearing, the

department of social services submitted a report to the trial court indicating that a

“Consent Agreement could not be reached at the conference.” Id. at __, 790 S.E.2d at

748 (quotation marks omitted). The trial court then entered an order adjudicating

the children to be neglected and dependent “supported solely by two written reports

submitted by DSS at the hearing.” Id. at __, 790 S.E.2d at 748.

      On appeal, DSS argued that the trial court’s order was, in fact, a valid consent

adjudication order.   The order, however, contained no findings that the parties

“consented to the children being adjudicated as neglected and dependent.” Id. at __,

790 S.E.2d at 749.    Nor was there any evidence in the record “that a consent

agreement had been reached for adjudication or that a consent order had been

drafted. . . . Specifically, 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.” Id. at __, 790 S.E.2d at 749. Consequently, we held that the trial



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court’s order failed to meet the requirements of a valid consent adjudication order.

Id. at __, 790 S.E.2d at 749.

       Based on the principles set out in L.G.I. and K.P., we conclude that the trial

court’s Adjudication Order here was not a valid consent adjudication order under N.C.

Gen. Stat. § 7B-801(b1).        Instead, the Adjudication Order simply contained a

stipulation by the parties as to certain facts. Therefore, having determined that the

Adjudication Order failed to meet the requirements for a consent adjudication order,

we must next consider whether it contained sufficient findings of fact based on

competent evidence to support the trial court’s determination that Rory was a

neglected juvenile.

II.   Sufficiency of Findings of Fact in Adjudication Order

       We review a trial court’s adjudication of neglect “to 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 519, 523 (2007) (citation, quotation marks, and brackets

omitted), aff’d as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). “The findings need

to be stated with sufficient specificity in order to allow meaningful appellate review.”

In re S.C.R., 217 N.C. App. 166, 168, 718 S.E.2d 709, 712 (2011) (citation omitted).

       N.C. Gen. Stat. § 7B-101 defines a “neglected juvenile” as follows:

             A juvenile who does not receive proper care, supervision, or
             discipline from the juvenile’s parent, guardian, custodian,


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             or caretaker; or who has been abandoned; or who is not
             provided necessary medical care; or who is not provided
             necessary remedial care; or who lives in an environment
             injurious to the juvenile’s welfare; or the custody of whom
             has been unlawfully transferred under G.S. 14-321.2; or
             who has been placed for care or adoption in violation of law.

N.C. Gen. Stat. § 7B-101(15) (2017).

      In order for a child to be properly adjudicated as neglected, “this Court has

consistently required that there be 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 re Safriet, 112 N.C. App. 747,

752, 436 S.E.2d 898, 901-02 (1993) (citation and quotation marks omitted). “Whether

a child is neglected is a conclusion of law which must be supported by adequate

findings of fact.” In re McLean, 135 N.C. App. 387, 390, 521 S.E.2d 121, 123 (1999)

(citation and quotation marks omitted).

      In the present case, the findings of fact contained in the trial court’s

Adjudication Order consisted entirely of the following:

             1. That the petition alleging the child to be a neglected and
                dependent juvenile was filed on May 4, 2017 and an
                order was entered placing the juvenile in the physical
                and legal custody of [DSS]. The petition was properly
                signed by the social worker and verified by the Deputy
                Clerk of Superior Court.

             2. A pre-hearing was conducted on [12 July] 2017 when
                the Court addressed jurisdictional issues as required by
                7B-800.1. The order was entered and filed on July 21,
                2017. The findings in said order are incorporated


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                herein by reference as if set out in full.

             3. The mother, under oath and with the advice of counsel,
                acknowledged and admitted that the juvenile is a
                neglected juvenile as defined by N.C. Gen. Stat. § 7B-
                101(15) in that she did not receive proper care and
                supervision by her mother as her mother did not insure
                that the child attended school regularly, having missed
                twenty-five days during the 2016-17 calendar year and
                having been tardy thirty-seven times. The child did not
                pass the core classes of English, Science, and Social
                Studies.    A copy of the child’s report card was
                introduced into evidence in support of said admission.
                In addition, the child was not taken to well care visits
                with a physician to address her medical needs.

             4. The child’s father does not oppose the admission
                entered by [Respondent].

             5. That [DSS], in open court, took a voluntary dismissal of
                the allegation of dependency without prejudice.

      Thus, the specific findings purporting to support the court’s conclusion of

neglect are contained solely in Finding No. 3. First, the trial court stated that

Respondent had admitted Rory was a “neglected juvenile.”                However, the

determination of whether a juvenile is neglected within the meaning of N.C. Gen.

Stat. § 7B-101(15) is a conclusion of law. See In re Everette, 133 N.C. App. 84, 86, 514

S.E.2d 523, 525 (1999) (“Determination that a child is not receiving proper care,

supervision, or discipline, requires the exercise of judgment by the trial court, and is

more properly a conclusion of law.”). It is well established that “stipulations as to

questions of law are generally held invalid and ineffective, and not binding upon the



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courts, either trial or appellate.” In re A.K.D., 227 N.C. App. 58, 60, 745 S.E.2d 7, 9

(2013) (citation, quotation marks, and brackets omitted).          Consequently, any

“admission” by Respondent that Rory was a neglected juvenile was ineffective to

support the trial court’s adjudication of neglect.

      Second, the trial court stated in Finding No. 3 that (1) Respondent had failed

to ensure Rory attended school regularly; (2) Rory had not passed three core classes;

and (3) Rory was not taken to “well care visits” with a physician in connection with

her “medical needs.”

      In In re McMillan, 30 N.C. App. 235, 226 S.E.2d 693 (1976), this Court upheld

an adjudication of neglect where a father refused to allow his children to attend school

at all. Id. at 236, 226 S.E.2d at 694. In McMillan, the father was Native American

and testified that he would not send his children to school because he believed they

would not be taught about “Indians and Indian heritage and culture.” Id. In addition,

this Court determined that the children were not provided with “any sufficient

alternative education or training” at home. Id. at 238, 226 S.E.2d at 695. In affirming

the trial court’s neglect determination, we concluded that “[i]t is fundamental that a

child who receives proper care and supervision in modern times is provided a basic

education[,]” and that “when [a child] is deliberately refused this education,” she is

neglected within the meaning of the Juvenile Code. Id.




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      The facts of the present case are easily distinguishable from McMillan. Here,

no evidence was presented that Rory was “deliberately refused” an education by

Respondent. Furthermore, the trial court made no findings as to the reasons for

Rory’s missed classes and tardiness or as to how many of Rory’s absences were

excused. Moreover, the trial court did not expressly find that Rory’s failure to pass

three classes directly resulted from her absences or from Respondent’s failure to

provide proper care, supervision, or discipline.          Therefore, the stipulated facts

regarding Rory’s missed classes and the accompanying findings by the trial court fall

far short of the scenario presented in McMillan and are insufficient to support the

conclusion that Rory was a neglected juvenile.

      Finally, although N.C. Gen. Stat. § 7B-101(15) includes in its definition of a

neglected juvenile one who does not receive “necessary medical care,” the trial court’s

bare finding that Rory was not taken to “well care visits” — without more — is

insufficient to support a finding of neglect. There are no findings as to the actual

number of missed visits, the reasons they were missed, the medical conditions that

necessitated the visits, or the nature or existence of any accompanying adverse effects

on Rory’s health. Accordingly, we hold that the trial court’s findings on this issue are

likewise inadequate to support its adjudication of neglect.

      DSS makes the following two arguments as to why the trial court’s

Adjudication Order should nevertheless be upheld: (1) any error by the trial court



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was “invited” by Respondent; and (2) a finding contained in the Order on Pre-Hearing

was sufficient to support the adjudication of neglect. We address each of these

arguments in turn.

      DSS initially contends that Respondent is prohibited from challenging the trial

court’s adjudication because she “invited the outcome reached by the trial court” by

stipulating to the allegation of neglect. The doctrine of invited error applies to “a

legal error that is not a cause for complaint because the error occurred through the

fault of the party now complaining.” Sain v. Adams Auto Grp., Inc., 244 N.C. App.

657, 669, 781 S.E.2d 655, 663 (2016) (citation and quotation marks omitted); see also

Frugard v. Pritchard, 338 N.C. 508, 512, 450 S.E.2d 744, 746 (1994) (“A party may

not complain of action which he induced.” (citation omitted)).

      In arguing that Respondent invited the trial court to adjudicate Rory as a

neglected juvenile, DSS relies on In re K.C., 199 N.C. App. 557, 681 S.E.2d 559 (2009).

In that case, the respondent-mother argued on appeal that the trial court erred by

“failing to adopt an appropriate visitation plan in its disposition order.” Id. at 561,

681 S.E.2d at 563.    However, the court found that the respondent-mother had

“disclaimed any interest in seeing the children until DSS ‘fixed’ them” and that she

had “flatly refused to work with DSS towards reunification even though DSS has

offered such things as visitation.” Id. at 563-64, 681 S.E.2d at 564 (quotation marks

and brackets omitted). As a result, this Court held that the respondent-mother was



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not entitled to appellate relief because she “specifically invited the trial court to honor

her wishes by not providing for visitation between herself and the children[.]” Id. at

564, 681 S.E.2d at 564.

      K.C. is clearly distinguishable from the present case. Here, the record is devoid

of any indication that Respondent requested the trial court to adjudicate Rory as a

neglected juvenile or remove her daughter from her care.             Rather, she merely

stipulated to certain facts concerning Rory’s school attendance, grades, and missed

medical visits. Therefore, the doctrine of invited error is inapplicable.

      Next, DSS argues that a finding contained in the trial court’s Order on Pre-

Hearing supported a finding of neglect as to Rory based on allegations of sexual

abuse. In making this argument, DSS directs our attention to the last sentence of

Finding No. 2 of the Adjudication Order, which provides that “[t]he findings in [the

Order on Pre-Hearing] are incorporated herein by reference as if set out in full.” DSS

then points to Finding of Fact No. 9 of the Order on Pre-Hearing, which stated as

follows:

             9. There is no reasonable means other than continued
                custody with [DSS] to protect the juvenile and ensure
                her safety and the custody order should continue in
                effect. Efforts to prevent removal of the child from her
                parents’ custody and care were precluded by an
                immediate threat of harm to the juvenile, and
                placement of the juvenile in the absence of such efforts
                was reasonable. [DSS], during an investigation based
                upon allegations received on June 23, 2017, found that
                [Respondent’s] boyfriend, who has been identified as a


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                sexual perpetrator against [Rory], was living in the
                home. [Respondent] did not find this to be a concern.

      The Adjudication Order did not contain any specific references at all to Rory

being sexually abused or indicate any concerns on this subject. Nor was any evidence

offered on this issue at the adjudication hearing. Nevertheless, DSS contends that

the trial court’s wholesale incorporation by reference of the findings from the Order

on Pre-Hearing properly served as the basis for the adjudication of neglect based on

the proposition that Rory was sexually abused by a person living in Respondent’s

home. We disagree.

      The trial court’s Order on Pre-Hearing was issued pursuant to N.C. Gen. Stat.

§ 7B-800.1, which provides, in pertinent part, as follows:

             (a) Prior to the adjudicatory hearing, the court shall
                 consider the following:

                (1)   Retention or release of provisional counsel.

                (2)   Identification of the parties to the proceeding.

                (3)   Whether paternity has been established or efforts
                      made to establish paternity, including the identity
                      and location of any missing parent.

                (4)   Whether relatives, parents, or other persons with
                      legal custody of a sibling of the juvenile have been
                      identified and notified as potential resources for
                      placement or support.

                (5)   Whether all summons, service of process, and
                      notice requirements have been met.



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                (5a) Whether the petition has been properly verified
                     and invokes jurisdiction.

                (6)   Any pretrial motions, including (i) appointment of
                      a guardian ad litem in accordance with G.S. 7B-
                      602, (ii) discovery motions in accordance with G.S.
                      7B-700, (iii) amendment of the petition in
                      accordance with G.S. 7B-800, or (iv) any motion for
                      a continuance of the adjudicatory hearing in
                      accordance with G.S. 7B-803.

                (7)   Any other issue that can be properly addressed as
                      a preliminary matter.

N.C. Gen. Stat. § 7B-800.1 (2017).

      As an initial matter, we observe that the trial court did not indicate in Finding

No. 2 — or in any other finding — of the Adjudication Order that it believed any

specific provisions of the Order on Pre-Hearing were relevant to its determination of

neglect. Instead, as noted above, the only substantive findings in the Adjudication

Order related to missed classes and medical visits. Given that the Adjudication Order

describes the Order on Pre-Hearing as having addressed “jurisdictional issues[,]”

there is no indication that the court intended for any of the provisions of the Order

on Pre-Hearing to constitute a substantive basis for the adjudication of neglect.

      Moreover, it is important to note that the portion of Finding of Fact No. 9 in

the Order on Pre-Hearing upon which DSS relies is not actually a “finding” at all.

Instead, the court simply stated that DSS made the finding referenced therein. This

Court has held that “[i]n juvenile proceedings, it is permissible for trial courts to



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consider all written reports and materials submitted in connection with those

proceedings. Nevertheless, despite this authority, the trial court may not delegate

its fact finding duty by relying wholly on DSS reports and prior court orders.” In re

Z.J.T.B., 183 N.C. App. 380, 386-87, 645 S.E.2d 206, 211 (2007) (internal citations,

quotation marks, and brackets omitted); see also In re Harton, 156 N.C. App. 655,

660, 577 S.E.2d 334, 337 (2003) (stating that trial court may not simply recite

allegations but must instead find facts that support its conclusions of law). Therefore,

for all of these reasons, Finding of Fact No. 9 in the Order on Pre-Hearing did not

serve as a valid basis for the trial court’s adjudication of Rory as a neglected juvenile.

                                          Conclusion

       For the reasons stated above, we vacate the trial court’s 13 September 2017

adjudication and disposition4 orders and remand for further proceedings not

inconsistent with this opinion.

       VACATED AND REMANDED.

       Judges DILLON and BERGER concur.




       4  Because we are vacating the trial court’s adjudication order, we must likewise vacate its
disposition order.

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