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In re K.A.

Court of Appeals of North Carolina

April 1, 2014


Heard in the Court of Appeals February 27, 2014.

Mecklenburg County. Nos. 12 JA 704-06.

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. Judges CALABRIA and ELMORE concur.


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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.

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 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

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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 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] 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 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 re

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main in the legal custody of YFS and continue treatment " in order to change her false beliefs about her father so she can be reintegrated into his ...

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