Supreme Court - Digested Index

6 May 2022

Appeal and Error

Preservation of issues—constitutional issue—child abuse and neglect proceeding—In an abuse and neglect proceeding, a father failed to preserve his constitutional argument that it was error for the trial court to grant guardianship to his children's grandparents without first concluding that the father was an unfit parent or had acted inconsistently with his constitutional right to parent. The father had ample notice that the department of social services was recommending that the permanent plan be changed from reunification to guardianship, he failed to make any argument that guardianship with the grandparents would be inappropriate on constitutional grounds, and the issue was not automatically preserved. In re J.N., No. 132PA21 (N.C. May. 6, 2022)

Preservation of issues—timely objection—grounds for objection—clear from context—In his trial for driving while impaired, defendant properly preserved the issue of whether a police officer gave improper lay opinion testimony–his opinion that defendant was the driver of a crashed moped–by timely objecting to the testimony. Defense counsel was not required to clarify the grounds for the objection because it was reasonably clear from the context. State v. Delau, No. 30A21 (N.C. May. 6, 2022)

Standard of review—conclusion that factual basis exists to support guilty plea—de novo—A trial court's conclusion regarding the sufficiency of a factual basis to support a defendant's guilty plea requires an independent judicial determination and, as such, is subject to de novo review on appeal. State v. Robinson, No. 533A20 (N.C. May. 6, 2022)

Assault

Guilty plea—multiple charges—factual basis—no evidence of distinct interruption in assault—The factual basis for defendant's guilty plea to multiple assaults was insufficient to support the trial court's decision to accept the plea and sentence defendant to three separate and consecutive assault sentences based on an assaultive episode in which defendant grabbed the victim's neck, punched her multiple times, and strangled her. Although the victim stated that defendant had held her captive for three days, the evidence as presented to the trial court did not describe any distinct interruptions between the assaults–whether a lapse in time, a change in location, or other intervening event–but instead indicated a confined and continuous attack. State v. Robinson, No. 533A20 (N.C. May. 6, 2022)

Child Abuse, Dependency, and Neglect

Guardianship—best interests of the child standard—findings of fact—support for conclusions—The trial court in a neglect case properly applied the "best interests of the child" standard in awarding guardianship of a mother's two children to the paternal grandmother after properly determining that the mother had acted inconsistently with her constitutionally protected parental status. Further, the guardianship award was appropriate where the court's factual findings supported its conclusions that the conditions leading to the children's removal continued to exist (the mother's substantial compliance with her family services agreement did not overcome the initial concerns prompting the children's removal–her relinquishment of custody to the grandmother for three years–and she failed to obtain suitable housing until nineteen months after social services' involvement) and that social services had made reasonable efforts toward reunifying the children with their mother (regardless of social services "abruptly" moving for guardianship after initially recommending a trial home placement). In re B.R.W., No. 310A21 (N.C. May. 6, 2022)

Permanency planning—guardianship—constitutionally protected parental status—indefinitely ceding custody to nonparent—The trial court properly awarded guardianship of two neglected children to their paternal grandmother where the court's findings supported its conclusion that their mother had acted inconsistently with her constitutionally protected status as a parent by voluntarily ceding custody of the children–then ages one and four years old–to the grandmother for three years until social services assumed custody. Although the mother made demonstrable progress in her family services plan, the fact that she made minimal contact with the children throughout that three-year period (during which the children developed a stronger bond with the grandmother than with the mother) and made no attempts to regain custody until social services got involved indicated that she intended for the grandmother to serve indefinitely as the children's primary caregiver. In re B.R.W., No. 310A21 (N.C. May. 6, 2022)

Civil Procedure

Motion to dismiss—matters outside the pleadings—arguments of counsel not evidence—no conversion to motion for summary judgment—On a motion to dismiss a medical negligence claim pursuant to Civil Procedure Rule 12(b)(6), where the trial court did not consider matters outside the pleadings, it was not required to convert the motion to one for summary judgment under Civil Procedure Rule 56, which would have necessitated giving the parties additional time to conduct discovery and present evidence. Although plaintiff's counsel made several factual assertions in his memorandum of law and during the hearing, arguments of counsel are not evidence, and no evidentiary materials were submitted. The matter was remanded to the Court of Appeals for consideration of two remaining issues. Blue v. Bhiro, No. 26A21 (N.C. May. 6, 2022)

Constitutional Law

Right to speedy trial—Barker factors—evaluation of prejudice to defendant—misapplication of correct standard—In a prosecution for charges stemming from a fatal car accident, where more than six years passed before defendant's case was brought to trial, the trial court misapplied the proper standard for determining whether the delay prejudiced defendant pursuant to Barker v. Wingo, 407 U.S. 514 (1972), by first finding that the State had been prejudiced by the delay, and by determining that the prejudice factor weighed against defendant because he did not demonstrate actual prejudice. The constitutional right to a speedy trial is granted to defendants to protect against prosecutorial delay, and prejudice may be shown by presumptive rather than actual prejudice. State v. Farook, No. 457PA20 (N.C. May. 6, 2022)

Criminal Law

Guilty plea—multiple assault charges—insufficient factual basis—remedy—entire plea vacated—Where there was an insufficient factual basis to support defendant's plea of guilty to multiple assaults–because defendant committed one continuous assault–the appropriate remedy was to vacate the entire plea and remand to the trial court for further proceedings. State v. Robinson, No. 533A20 (N.C. May. 6, 2022)

Evidence

Attorney-client privilege—speedy trial claim—defense attorney testified for State regarding trial strategy—plain error—In a prosecution for charges stemming from a fatal car accident, where more than six years passed before defendant's case was brought to trial, during which he was represented by four different attorneys, the trial court committed plain error by allowing one of defendant's attorneys to testify for the State regarding trial strategy to counter defendant's claim that his right to a speedy trial was violated. The attorney's testimony regarding delay tactics divulged privileged communications in the absence of any waiver by defendant of the attorney-client privilege; defendant's pro se claim for ineffective assistance of counsel regarding his attorney's delays was invalid for having been filed when defendant was represented by counsel and therefore could not constitute a waiver or justification. The matter was remanded for the trial court to reweigh any admissible evidence submitted by the State to justify the delay as part of the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972). State v. Farook, No. 457PA20 (N.C. May. 6, 2022)

Lay opinion—assumed error—prejudice analysis—Even assuming that admission of an officer's allegedly improper lay opinion testimony–his belief that a crashed moped was driven by defendant–was error, defendant could not prove prejudice where other evidence admitted at his trial for driving while impaired included substantially similar information. Specifically, the warrant application (to draw defendant's blood) and defense counsel's cross-examination of the officer put essentially the same information before the jury. State v. Delau, No. 30A21 (N.C. May. 6, 2022)

Real Property

Good faith purchaser for value—fraudulent intention—imputation of knowledge—agency principles—In plaintiff's action pursuant to the Uniform Voidable Transactions Act–in which plaintiff, a nonprofit community organization, challenged a real estate transfer of land which it had previously owned and to which it had a potential claim under a separate lawsuit–defendants were not entitled to the protections afforded good faith purchasers for value where they purchased the land in a private sale from another developer with which defendants had formed a joint real estate development venture. Pursuant to principal-agent law and the doctrine of imputed knowledge, defendants were charged with the knowledge of their co-principal's fraudulent intent to shield the land from plaintiff as a creditor, which was accomplished by transferring title of the subject property–the co-principal's last substantial asset–to defendants without public notice, appraisal, or negotiation during the pendency of plaintiff's appeal from the related lawsuit. Cherry Cmty. Org. v. Sellars, No. 141PA20 (N.C. May. 6, 2022)

Search and Seizure

Vehicle checkpoint—reasonableness—Brown factors—A police checkpoint was lawful under the Fourth Amendment pursuant to Brown v. Texas, 443 U.S. 47 (1979), where the checkpoint's purpose–ensuring that each driver had a valid driver's license and was not intoxicated–operated to advance public safety and was reasonable; the checkpoint was conducted on a major thoroughfare during early morning hours conducive to catching intoxicated drivers; and the checkpoint caused only a small amount of traffic backup, it was visible to approaching drivers, and it was conducted in accordance with a plan under a supervising officer with specific restraints on time, location, and officer conduct. State v. Cobb, No. 28A21 (N.C. May. 6, 2022)

Termination of Parental Rights

Best interests of the child—support for written findings—variation from oral findings—The trial court did not abuse its discretion by determining that it was in the child's best interests to terminate his mother's parental rights, where the court's findings of fact (with one exception) were supported by competent evidence and where those findings demonstrated a proper analysis of the dispositional factors set forth in N.C.G.S. § 7B-1110(a). The court was not bound by its oral statements at the dispositional hearing–regarding the parent-child bond and the mother's efforts toward reunification–when entering its final order, and therefore there was no error where the court's oral findings varied from its written findings. Further, the court was not required to enter any findings regarding dispositional alternatives to termination, such as guardianship. In re S.D.C., No. 274A21 (N.C. May. 6, 2022)

Findings of fact—sufficiency of evidence—compliance with case plan—In an appeal from an order terminating a father's parental rights in his daughter, many of the trial court's findings of fact were disregarded because they lacked the support of clear, cogent, and convincing evidence–including findings that the father failed to comply with portions of his case plan, that he lied about his drug use, that he failed to demonstrate the ability to provide appropriate care for his daughter, that he was in arrears in child support payments, and that he failed to seek assistance to find appropriate housing. In re A.N.H., No. 123A21 (N.C. May. 6, 2022)

Grounds for termination—neglect—failure to make reasonable progress—compliance with case plan—some drug use—An order terminating a father's parental rights on the grounds of neglect and failure to make reasonable progress was vacated and remanded where, after unsupported factual findings were disregarded, the remaining factual findings showed that the father complied with almost all of the requirements of his case plan, and no findings supported a conclusion that his continued drug use would result in the impairment or a substantial risk of impairment of his daughter. In re A.N.H., No. 123A21 (N.C. May. 6, 2022)

Grounds for termination—neglect—inability to parent—likelihood of future neglect—The trial court's order terminating a mother's parental rights on the grounds of neglect was affirmed where the court's finding that she was incapable of parenting her child (who had been adjudicated as neglected) was supported by clear, cogent, and convincing evidence–including testimony from her therapist and her own admission to her social worker–and where the court's determination that there was a likelihood of future neglect was supported by numerous findings–including those related to her inability to care for the child at the time of the hearing and her failure to make progress on her case plan. In re B.R.L., No. 141A21 (N.C. May. 6, 2022)

Grounds for termination—neglect—likelihood of future neglect—pattern of domestic violence—In an order terminating respondent-father's parental rights to his four-year-old son on the ground of neglect (N.C.G.S. § 7B-1111(a)(1)), the trial court's determination that there was a likelihood of repetition of neglect if the child were returned to respondent's care was supported by unchallenged findings regarding the long history of domestic violence between respondent and the child's mother, respondent's violation of domestic violence protective orders, and respondent's aggression toward a social worker and display of a knife at a supervised visit. Although respondent made some progress on his case plan, his repeated denials that domestic violence occurred or that it was the reason for the child's removal gave rise to a justifiable concern about the possibility of future neglect. In re K.Q., No. 191A21 (N.C. May. 6, 2022)

Grounds for termination—willful abandonment—sufficiency of findings—The trial court properly terminated a father's parental rights to his daughter on the ground of willful abandonment (N.C.G.S. § 7B-1111(a)(7)) where its findings, which were supported by clear, cogent, and convincing evidence, showed respondent's willful intention to forego all parental responsibilities by his complete lack of contact with his daughter for far longer than the determinative six-month period, his failure to inquire about the child by contacting her mother despite having multiple avenues to do so, and his written response to the mother that he was unwilling to provide any financial support. In re B.E.V.B., No. 328A21 (N.C. May. 6, 2022)

Motion to continue—beyond ninety days after initial petition—extraordinary circumstances—notice of hearing—In a private termination of parental rights action, the trial court did not abuse its discretion in denying a mother's motion for a continuance beyond the statutory ninety-day period where there were no extraordinary circumstances to justify a continuance. While the mother claimed that it was difficult for her to travel from Ohio on such short notice (she claimed she received notice of the hearing date only five days in advance), she knew more than sixty days in advance which week the hearing would occur. In re L.A.J., No. 217A21 (N.C. May. 6, 2022)

Motion to continue—extraordinary circumstances—incarcerated parent—COVID-19 lockdown—The trial court erred by denying a father's motion to briefly continue the adjudicatory hearing on a petition to terminate his parental rights where the prison in which the father was incarcerated was under lockdown due to COVID-19, preventing him from preparing for the hearing with his attorney and testifying on his own behalf. The lockdown at the prison was an "extraordinary circumstance" allowing the hearing to be continued beyond the statutory ninety-day period; the father's absence created a meaningful risk of error that undermined the fundamental fairness of the hearing because the father could not meet with counsel before the hearing, each of the four grounds for termination required a careful assessment of his conduct in prison, and no other witness was available to testify as to that information; and the error was prejudicial. In re C.A.B., No. 138A21 (N.C. May. 6, 2022)

Workers' Compensation

Jurisdiction—timeliness of filing—N.C.G.S. § 97-24—standard of review—de novo—The Industrial Commission's determination of whether an injured employee's application for worker's compensation benefits was timely filed pursuant to N.C.G.S. § 97-24 constituted a jurisdictional fact and, therefore, was subject to de novo review on appeal. Cunningham v. Goodyear Tire & Rubber Co., No. 465A20 (N.C. May. 6, 2022)

Timeliness of filing—last payment of medical compensation—chronic back pain—related to prior injury—A claim for worker's compensation benefits filed by a press operator at a tire factory (plaintiff) was not time-barred pursuant to N.C.G.S. § 97-24 because she filed it within two years of the last payment of medical compensation by her employer–for a back injury she suffered in 2014–which occurred in 2017, not 2015 as found by the Industrial Commission. Records and testimony from plaintiff and multiple doctors demonstrated that plaintiff's medical treatment for chronic back pain in 2017 was related to her 2014 injury and was not due solely to injuries she sustained in 2011 (claims for which were settled in 2012). Cunningham v. Goodyear Tire & Rubber Co., No. 465A20 (N.C. May. 6, 2022)


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