{ "id": 11094756, "name": "IN THE MATTER OF: THRIFT, minor child TERISA SNOW THRIFT, Respondent v. BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and GUARDIAN AD LITEM", "name_abbreviation": "Thrift v. Buncombe County Department of Social Services", "decision_date": "2000-04-18", "docket_number": "No. COA99-291", "first_page": "559", "last_page": "564", "citations": [ { "type": "official", "cite": "137 N.C. App. 559" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "454 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "holding that where a consent judgment is entered against two parties with the consent of only one, the trial court must set the consent judgment aside as to both parties" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916992 ], "year": 1995, "pin_cites": [ { "parenthetical": "holding that where a consent judgment is entered against two parties with the consent of only one, the trial court must set the consent judgment aside as to both parties" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0138-01" ] }, { "cite": "422 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "332 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503783 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0663-01" ] }, { "cite": "414 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524830 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0651-01" ] }, { "cite": "495 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "128 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656309 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/128/0631-01" ] }, { "cite": "419 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "Greene, J., concurring" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313413 ], "year": 1992, "pin_cites": [ { "parenthetical": "Greene, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0574-01" ] }, { "cite": "417 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313441 ], "year": 1992, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0480-01" ] }, { "cite": "47 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1948, "pin_cites": [ { "page": "31" }, { "page": "31" } ], "opinion_index": 0 }, { "cite": "228 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628175 ], "year": 1948, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0714-01" ] } ], "analysis": { "cardinality": 505, "char_count": 11969, "ocr_confidence": 0.778, "pagerank": { "raw": 3.574060034989393e-07, "percentile": 0.8864296721546314 }, "sha256": "72309fa005bcfde7967a6da7143eec37c4264f0c16f2a709497f5930e6ad8290", "simhash": "1:bc8bc00ef67fdc46", "word_count": 1932 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "IN THE MATTER OF: THRIFT, minor child TERISA SNOW THRIFT, Respondent v. BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and GUARDIAN AD LITEM" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nTerisa Snow Thrift (\u201crespondent\u201d) appeals from an order adjudicating her minor child, Brandon Thrift (\u201cBrandon\u201d or \u201cthe child\u201d), a neglected child pursuant to North Carolina General Statutes section 7A-517(21).\nThe facts pertinent to the case on appeal are as follows. On 19 June 1998, the Buncombe County Department of Social Services (\u201cpetitioner\u201d) filed a verified juvenile petition alleging that Brandon was a neglected child in that he lived in an environment injurious to his welfare. The Buncombe County District Court entered a non-secure custody order for the child and he was taken into petitioner\u2019s custody. On 6 July 1998, a non-secure hearing was conducted by the court to determine whether the child should remain in the custody of petitioner. Although respondent had been properly served with the petition and summons, she did not appear at the non-secure hearing. An adjudicatory and dispositional hearing was held on 11 September 1998. Respondent was not present at the hearing. However, respondent was represented at the hearing by counsel, Michael E. Casterline (\u201ccounsel\u201d).\nCounsel stated that he had not had contact with respondent for three weeks and that he was not authorized to consent to an adjudication of neglect. When the case came on for hearing, neither respondent nor petitioner offered evidence. Edward Thrift, the father of the child, was present at the hearing and consented to a finding of neglect. The trial court adjudicated the child neglected on the basis of the verified petition, as demonstrated by the following exchange:\nCourt: All right. We\u2019ll just make those findings without [respondent\u2019s] consent and note that she was well aware of today\u2019s court date.\n[Counsel For Respondent]: Well, your Honor, I would object to us doing it without evidence.\nCourt: Well, we have a sworn petition. Is that not enough for you?\nAlthough counsel objected to an entry by the trial court of an adjudicatory order without hearing evidence, the trial court adjudicated Brandon to be a neglected child as alleged in the petition and proceeded to disposition. The trial court ordered that the child remain in petitioner\u2019s custody with placement in the discretion of petitioner. Respondent appeals from the adjudicatory and disposi-tional order.\nThe dispositive issue on appeal is whether the trial court erred by finding that the allegations of neglect contained in the petition had been proved by clear and convincing evidence.\nRespondent argues that her failure to be present at the adjudicatory hearing did not relieve the trial court of its duty to find based on competent evidence that the allegations of neglect contained in the petition were supported by clear and convincing evidence. We agree.\nA neglected juvenile is one who \u201cdoes not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; or who . .. lives in an environment injurious to the juvenile\u2019s welfare[.]\u201d N.C. Gen. Stat. \u00a7 7A-517(21), repealed effective 1 July 1999, S.L. 1998-202, s.5. When a child is alleged to be neglected, the trial court must conduct an adjudicatory hearing designed to determine the existence or nonexistence of any of the conditions alleged in the petition. N.C. Gen. Stat. \u00a7 7A-631, repealed effective 1 July 1999, S.L. 1998-202, s.5. The allegations contained in a petition may be admitted or denied. See N.C. Gen. Stat. \u00a7 7A-633, repealed effective 1 July 1999, S.L. 1998-202, s.5. At the hearing, the trial court must protect the due process rights not only of the child, but also of the parent.\nThe adjudicatory hearing shall be a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in a petition. In the adjudicatory hearing, the judge shall protect the following rights of the juvenile and his parent to assure due process of law: the right to written notice of the facts alleged in the petition, the right to counsel, the right to confront and cross-examine witnesses, the privilege against self-incrimination, the right of discovery and all rights afforded adult offenders except the right to bail, the right of self-representation, and the right of trial by jury.\nN.C.G.S. \u00a7 7A-631. \u201cWhere the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply.\u201d N.C. Gen. Stat. \u00a7 7A-634(b), repealed effective 1 July 1999, S.L. 1998-202, s.5. The allegations of a petition alleging neglect must be proved by clear and convincing evidence. N.C. Gen. Stat. \u00a7 7A-635, repealed effective 1 July 1999, S.L. 1998-202, s.5.\nNorth Carolina General Statutes section 7A-641 authorizes consent orders in limited instances:\nNothing in this Article precludes the judge from entering a consent order or judgment on a petition for abuse, neglect or dependency when all parties are present, the juvenile is represented by counsel and all other parties are either represented by counsel or have waived counsel, and sufficient findings of fact are made by the judge.\nN.C. Gen. Stat. \u00a7 7A-641, repealed effective 1 July 1999, S.L. 1998-202, s.5. \u201cA judgment by consent is the agreement of the parties, their decree, entered upon the record with the sanction of the court[,]\u201d McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31 (1948), and operates as a judgment on the merits, id. at 719-20, 47 S.E.2d at 31.\nPetitioner argues that the trial court was authorized to enter in essence a default judgment based on the allegations contained in the verified petition, the stipulations of the father, the absence of respondent, and the failure of her counsel to present any evidence. For the reasons that follow, we are compelled to disagree.\nAccording to Rule 12(c) of the North Carolina Rules of Civil Procedure, the trial court may, upon motion of any party, enter judgment solely on the pleadings. N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c) (1999). The Rules of Civil Procedure apply \u201cin the district court division of the General Court of Justice,\u201d unless otherwise provided in a pertinent provision of Chapter 7A. N.C. Gen. Stat. \u00a7 7A-193, repealed effective 1 July 1999, S.L. 1998-202, s.5. Therefore, unless the provisions of Chapter 7A, Hearing Procedures, explicitly or implicitly provide otherwise, Rule 12(c) applies in the case at bar.\nIn the present case, the trial court incorrectly assumed that it could, on its own motion, accept the verified petition and enter judgment on the petition. The trial court was not authorized to enter judgment on the pleadings pursuant to Rule 12(c) because neither party moved for judgment on the pleadings. N.C.G.S. \u00a7 1A-1, Rule 12(c). Furthermore, we believe that judgment on the pleadings was implicitly precluded by the provisions of Chapter 7A, Hearing Procedures. As stated above, the trial court must conduct a hearing to adjudicate the existence or nonexistence of the conditions of neglect alleged in the petition. N.C.G.S. \u00a7 7A-631. The quantum of evidence at the hear-, ing is clear and convincing evidence. N.C.G.S. \u00a7 7A-635.\nThis Court has adopted a similar line of reasoning in cases pertaining to termination of parental rights. In In re Tyner, 106 N.C. App. 480, 483, 417 S.E.2d 260, 261 (1992), this Court held that the respondent\u2019s failure to file an answer did not authorize the trial court to enter a \u201cdefault type\u201d order terminating the respondent\u2019s parental rights. See also In re Quevedo, 106 N.C. App. 574, 419 S.E.2d 158 (1992) (Greene, J., concurring).\nJust as a default judgment or judgment on the pleadings is inappropriate in a proceeding involving termination of parental rights, it is equally inappropriate in an adjudication of neglect. We note that an adjudication of neglect constitutes grounds for terminating parental rights and is frequently the basis for a termination proceeding. N.C. Gen. Stat. \u00a7 7A-289.32(2), repealed effective 1 July 1999, S.L. 1998-202, s.5. As the link between a parent and child is a fundamental right worthy of the highest degree of scrutiny, In re Baby Girl Dockery, 128 N.C. App. 631, 495 S.E.2d 417 (1998), 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.\nFinally, our decision in the present case is consistent with this Court\u2019s holding in In re Murphy, 105 N.C. App. 651, 414 S.E.2d 236, aff\u2019d, 332 N.C. 663, 422 S.E.2d 577 (1992). In Murphy, the respondent was incarcerated at the time his parental rights were terminated. At issue on appeal was whether he had a right to be present at the hearing. This Court stated:\nWhen, as here, a parent is absent from a termination proceeding and the trial court preserves the adversarial nature of the proceeding by allowing the parent\u2019s counsel to cross examine witnesses, with the questions and answers being recorded, the parent must demonstrate some actual prejudice in order to prevail upon appeal.\nId. at 658, 414 S.E.2d at 400. While Murphy indicates that the trial court must allow counsel for the absent parent to cross-examine witnesses, respondent\u2019s counsel in the present case was denied the opportunity to cross-examine witnesses, compromising the \u201cadversarial nature of the proceeding.\u201d Id.\nPetitioner argues that the father\u2019s stipulation supported an adjudication of neglect. While North Carolina General Statutes section 7A-641 authorizes judgments on a petition, consent judgments are appropriate only in limited instances. According to the mandates of section 7A-641, all parties must be present in order for the trial court to enter a consent judgment. In the case at bar, respondent was not present and, as such, no valid consent judgment could be entered. See also Brundage v. Foye, 118 N.C. App. 138, 454 S.E.2d 669 (1995) (holding that where a consent judgment is entered against two parties with the consent of only one, the trial court must set the consent judgment aside as to both parties). We conclude that the father\u2019s purported consent was not sufficient to support a finding of neglect.\nFor the reasons stated herein, we hold that the trial court erred in finding the allegations of neglect contained in the petition had been proved by clear and convincing evidence. The judgment of the trial court is therefore reversed and the matter is remanded for a trial.\nReversed and remanded.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Buncombe County Department of Social Services, by Charlotte A. Wade, for petitioner-appellee.", "Michael E. Casterline for respondent-appellant.", "Kyle W. King as Guardian ad Litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: THRIFT, minor child TERISA SNOW THRIFT, Respondent v. BUNCOMBE COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and GUARDIAN AD LITEM\nNo. COA99-291\n(Filed 18 April 2000)\n1. Child Abuse and Neglect\u2014 adjudication on verified petition \u2014 not sufficient\nThe trial court erred in a neglected child proceeding by finding that the allegations in the petition had been proved by clear and convincing evidence where respondent was not present, defense counsel objected to entry of an adjudicatory order without hearing evidence, and the court adjudicated the child neglected based upon the verified petition. The trial court incorrectly assumed that it could accept the verified petition and enter judgment on the petition on its own motion, judgment on the pleadings was implicitly precluded by Chapter 7A, and respondent\u2019s counsel was denied the opportunity to cross-examine witnesses.\n2. Child Abuse and Neglect\u2014 mother not present \u2014 father\u2019s stipulation \u2014 not sufficient\nAn adjudication that a child was neglected was not supported by the father\u2019s stipulation where the mother was not present. Under N.C.G.S. \u00a7 7A-641, all parties must be present in order for the trial court to enter a consent judgment.\nAppeal by respondent from judgment entered 24 November 1998 by Judge Shirley H. Brown in District Court, Buncombe County. Heard in the Court of Appeals 7 December 1999.\nBuncombe County Department of Social Services, by Charlotte A. Wade, for petitioner-appellee.\nMichael E. Casterline for respondent-appellant.\nKyle W. King as Guardian ad Litem." }, "file_name": "0559-01", "first_page_order": 591, "last_page_order": 596 }