An adjudicatory hearing in an abuse, neglect, or dependency action is “a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in the petition.” G.S. 7B-802. The conditions refer to whether the juvenile is abused, neglected, or dependent. Because of the statutory language of G.S. 7B-802, the general rule created by the appellate courts is that post-petition evidence is not considered at an adjudicatory hearing. However, the court of appeals has stated this rule is “not absolute.” In re V.B., 239 N.C. App. 340, 344 (2015). In the last several years, the court of appeals has carved out 3 exceptions to the rule that allow for post-petition evidence: (1) a neglect adjudication when there is a long period of separation between the child and parent before the petition is filed, (2) dependency adjudications, and (3) evidence of fixed and ongoing circumstances, such as paternity and mental illness. In November 2022, the North Carolina Supreme Court in In re L.N.H., 382 N.C. 536 (2022) addressed one of those exceptions, the dependency adjudication exception, and determined the court of appeals exception was error. So, what is the rule regarding post-petition evidence? It’s a little murky now. Continue Reading
What happens if a court report is distributed to the parties and the court in an abuse, neglect, and dependency case, but the report is never formally offered or admitted into evidence? What if, despite never being admitted into evidence, the court relies on the report in its order? Can a party appeal due to the report never having been admitted? Is there anything a party must do to preserve this issue for appeal? This post will explore the answers to these questions in light of a recent N.C. Supreme Court decision in In re S.M., 375 N.C. 673 (2020).Continue Reading
Episode 3, “The Trial: Adjudicating Neglect,” for our Beyond the Bench Season 2 podcast is available now! This episode picks up where episode 2 ended, with the adjudicatory hearing for alleged child neglect in our two different cases. Spoiler Alert! There are different outcomes.
Listed in order of appearance, featured guest interviewees include:Continue Reading
Depositions are primarily a discovery tool. When it comes to trial, live witness testimony is “more desirable,” Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 690 (1992), and Rule of Civil Procedure 43 states that, “[i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules.” In “sharply limited” circumstances, however, deposition testimony may be used at trial, Warren v. City of Asheville, 74 N.C. App. 402, 408 (1985), and Rule 32 of the North Carolina Rules of Civil Procedure sets out (most of) those circumstances.
Under Rule 32, deposition testimony may be used at trial if it meets three criteria:
- It is being used against a party who was present or represented at or had reasonable notice of the deposition;
- It falls within one of the categories in Rule 32(a)(1) through (a)(4); and
- It is admissible under the Rules of Evidence (applied as though the witness were present and testifying).
Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services? Continue Reading
During deliberations in a motorcycle accident trial, the jury asks to view and discuss some exhibits in the jury room: a series of admitted photos depicting part of the accident scene. May the judge allow the jury to take the photos into the jury room? As with most things, it depends.
This question used to be governed by the “well-settled” rule in Nunnery v. Baucom, 135 N.C. App. 556 (1999), that “trial exhibits introduced into evidence may not be present in the jury room during deliberations unless both parties consent.” For civil cases, the “consent required” rule was replaced in October 2007 by G.S. 1-181.2, which governs both open-court and jury room evidence review. Although this statute is now a few years old, it is perhaps not as widely-known as it could be. For a recent case in point, see Redd v. Wilcohess, LLC, 745 S.E.2d 10 (N.C. App. 2013). So, here’s a review of the standards established by G.S. 1-181.2.