In re K.A.

NO. COA13-972

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

IN THE MATTER OF:

K.A. Mecklenburg County
E.A. Nos. 12 JA 704–06
K.A.

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.

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.

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
 -2-
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 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

1
Pseudonyms are used to protect the juveniles’ identities.
 -3-
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]
 -4-
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
 -5-
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 remain in the legal custody of YFS

and continue treatment “in order to change her false beliefs

2
In the 11 March 2013 order, the court elected to continue
disposition in order to “fully assess the most appropriate way
to achieve the purpose of the [c]ourt’s exercising jurisdiction
over the children [by obtaining] more information about the
needs of the children.” Oddly, the 11 March 2013 adjudication
and disposition order purports to continue the disposition
hearing to 6 March 2013, an obvious impossibility that was
repeated in the 19 April 2013 amended order. In any event, the
14 June 2013 disposition order makes clear that the hearing
occurred on 16 May 2013.
 -6-
about her father so she can be reintegrated into his home.”

Respondent-Mother appeals.

Discussion

Respondent-Mother appeals from the trial court’s

adjudication and disposition orders on grounds that the trial

court (1) erroneously found that Respondent-Mother was

collaterally estopped and/or barred by the doctrine of res

judicata3 from litigating the allegations in the petition that

were addressed in the 19 September 2012 civil custody order or,

in the alternative, (2) failed to make sufficient findings of

fact to support its adjudication order. We reverse the

adjudication and disposition orders on grounds that the trial

court erred by invoking the doctrine of collateral estoppel and

remand for further proceedings consistent with this opinion.

I. Appellate Review

As a preliminary matter, we address YFS’s argument that

Respondent-Mother failed to preserve her first argument for

appellate review because she did not object when the trial court

3
The record indicates that, despite Respondent-Mother’s
argument, the trial court relied exclusively on the doctrine of
collateral estoppel to bar litigation on the relevant
allegations in the petition, not res judicata. Therefore, we
tailor our analysis to her collateral estoppel argument.
 -7-
stated at the beginning of the hearing that collateral estoppel

would work to bar re-litigation of those issues raised and

determined in the custody case. For support, YFS points out

that, during a discussion of res judicata and collateral

estoppel, counsel for Respondent-Mother “state[d] that she [was]

not re-litigating any of the issues decided by Judge Mann” and

even stated in her closing argument that she “obviously

accepted” the collateral estoppel ruling. These statements are

taken out of context and do not accurately represent what

occurred at the hearing.

Rule 10(a)(1) of the North Carolina Rules of Appellate

Procedure provides that

[i]n order to preserve an issue for
appellate review, a party must have
presented to the trial court a timely
request, objection, or motion, stating the
specific grounds for the ruling the party
desired the court to make if the specific
grounds were not apparent from the context.
It is also necessary for the complaining
party to obtain a ruling upon the party’s
request, objection, or motion. . . .

N.C.R. App. P. 10(a)(1).

Relevant to the preservation issue, the following colloquy

occurred between counsel for Respondent-Mother, the father,

counsel for the father, and the court during the 14 January 2013

hearing:
 -8-
[COUNSEL FOR RESPONDENT-MOTHER:] These
allegations, when did they first surface?

[THE FATHER:] Which allegations are you
referring to?

[COUNSEL FOR RESPONDENT-MOTHER:] Sexual
abuse.

[THE FATHER:] Approximately December of
2010.

[COUNSEL FOR RESPONDENT-MOTHER:] And what —
when it surfaced, what did you offer to do?

[COUNSEL FOR THE FATHER]: I’m gonna object.
I don’t know how far we’re gonna go with
this. My understanding is the only
allegation that would be relevant here is
the one that’s in the petition . . . .
Everything else would have been covered by
the previous orders of Judge Christy Mann
and should be collaterally estopped . . . .

THE COURT: All right. So you’re objecting to
this evidence on the basis that [Respondent-
Mother] would be collaterally estopped from
re-litigating it?

[COUNSEL FOR THE FATHER]: Collaterally
estopped or res judicata or beyond the
scope.

THE COURT: All right. The objection is
sustained.

[COUNSEL FOR RESPONDENT-MOTHER]: May I be
heard?

THE COURT: Yes. What is your argument for
the admissibility of this evidence?

[COUNSEL FOR RESPONDENT-MOTHER]: Well, the
issue I’m trying to ask him about actually
 -9-
was not provided in any of the orders. I
asked him what he did. There’s nothing about
what he did.

And my position is collateral estoppel does
not apply or res judicata in these
proceedings. For res judicata or collateral
estoppel to apply, the [c]ourt has to find
that the parties are identical, the issues
are identical, and we don’t have that here.
You had a — you had a civil action between
[the father] and [Respondent-Mother] in
civil court.

In this court, you have — and that was with
[Respondent-Mother] as the plaintiff and
[the father] as the defendant. We are in
juvenile court. A different statute applies,
which is the 7B statute. You have different
parties now. You don’t have [Respondent-
Mother] bringing an action against [the
father].

You have [YFS] as the petitioner in this
case. You have the Guardian ad Litem’s
office . . . representing the children. You
have the mother and the father . . . as
respondents in this action. So I say there
is no identity of parties. The issues are
not the same.

I’m not re-litigating anything, and there
are additional allegations in the petition
that are not referenced here. . . .

I met with [counsel for YFS] on Friday when
I was getting my discovery, and I said, I
don’t have any police reports, I don’t have
any of this. [He s]aid, well, I’m not going
to be offering any of those. And now we have
a stipulation dealing with police reports.
And if the [c]ourt adopts that stance,
[Respondent-Mother] cannot litigate
anything.
 -10-

I say there’s no identity of parties and
there’s no res judicata as far as what I’m
questioning. There’s some things that I’m
not going to be re-litigating, but I asked
him specifically when the allegations
surfaced what did you do. He took certain
steps that I know weren’t reflected in any
of the orders, and I think I should be
allowed to ask that.

And I clearly wasn’t a party to that
proceeding. My client was unrepresented in
the civil proceeding.

THE COURT: All right. Well, the Honorable
Christy T. Mann presided over a hearing July
10th through 11th, 2012. . . .

. . .

And so I’m going to conclude that
[Respondent-Mother] should not be allowed to
re-litigate those factual allegations in
this proceeding . . . . So the objection is
sustained.

(Italics added). Later, in her closing argument, counsel for

Respondent-Mother made the following comment:

[COUNSEL FOR RESPONDENT MOTHER]: . . .

While I feel that the Court has ruled that
we can’t litigate anything because of
collateral estoppel and res judicata, which
obviously we have accepted, I feel my hands
are tied. I’m not really properly able to
argue but . . . that the petition be
dismissed. . . .

(Italics added). This is clearly sufficient to preserve review

of the collateral estoppel issue under Rule 10.
 -11-
When counsel for the father sought to halt questioning on

the issue of the alleged abuse, counsel for Respondent-Mother

made a clear, cogent argument for why she objected to the trial

court’s application of the collateral estoppel rule. Afterward,

the court specifically ruled against her. As the hearing

continued, counsel for Respondent-Mother maintained that she did

not believe her line of questioning was barred by the doctrines

of res judicata or collateral estoppel. Indeed, a reading of

counsel’s closing argument in context makes it clear that she

“accepted” the trial court’s ruling only to the extent that she

had to do so in order to try the case, not because she believed

the ruling was correct. For these reasons, we hold that this

issue was properly preserved for appellate review under Rule 10.

Therefore, YFS’s preservation argument is overruled.

II. Collateral Estoppel

In her first argument on appeal, Respondent-Mother contends

the trial court prejudicially erred by finding in the 19 April

2013 neglect order that she was collaterally estopped from re-

litigating the issues addressed in the 19 September 2012 civil

custody order because the neglect hearing and the custody

hearing involved different parties and different burdens of

proof. In response, YFS asserts that (1) mutuality of parties is
 -12-
no longer a requirement for collateral estoppel, (2) North

Carolina law allows the application of the collateral estoppel

doctrine despite the different burdens of proof in juvenile

cases under Chapters 7B and 50, and (3) any error that the trial

court made in applying the doctrine of collateral estoppel is

harmless. The Guardian ad Litem contends that, even though

mutuality is no longer a requirement for collateral estoppel,

the trial court erred in applying the doctrine because of the

different burdens of proof between this case and the civil

custody case. Nonetheless, the Guardian ad Litem asserts that

the trial court’s error is harmless. After a thorough review of

the case, we conclude that the trial court prejudicially erred

in applying the doctrine of collateral estoppel. Accordingly, we

reverse the order of the trial court and remand for further

proceedings.

Under the traditional definition of collateral estoppel,

our Supreme Court has said in Thomas M. McInnis & Assocs., Inc.

v. Hall that “a final judgment on the merits prevents

re[-]litigation of issues actually litigated and necessary to

the outcome of the prior action in a later suit involving a

different cause of action between the parties or their privies.”

318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986) (“Traditionally,
 -13-
courts limited the application of both [res judicata and

collateral estoppel] to parties or those in privity with them by

requiring so-called ‘mutuality of estoppel:’ both parties had to

be bound by the prior judgment.”) (citation omitted). After

explaining the traditional definition of collateral estoppel,

however, the Supreme Court went on to decide that there was “no

good reason for continuing to require mutuality of estoppel” and

abolished the requirement as a defensive tactic. Id. at 434, 349

S.E.2d at 560. Relying on that decision, this Court has since

stated that “mutuality of parties is no longer required when

invoking either offensive or defensive collateral estoppel,”

intending to abolish the element altogether. Rymer v. Estate of

Sorrells, 127 N.C. App. 266, 269, 488 S.E.2d 838, 840 (1997).

These are the cases relied on by the Guardian ad Litem and YFS

to support their assertion that mutuality is no longer an

element of collateral estoppel.

Inexplicably, however, our Supreme Court has since defined

the doctrine of collateral estoppel using the traditional

definition, providing a lengthy analysis of the mutuality

element. See State v. Summers, 351 N.C. 620, 626, 528 S.E.2d 17,

22 (2000) (holding that “the elements of collateral estoppel

were satisfied” when, inter alia, “the district attorney is in
 -14-
privity with the Attorney General”). Though the Summers court

cites Hall, it does not discuss the apparent divergence from

Hall and Rymer on the issue of mutuality. See id. at 622, 528

S.E.2d at 20. The result is that our courts have defined

collateral estoppel variously, applying the privity element in

some cases and refraining to do so in others. See, e.g., Youse

v. Duke Energy Corp., 171 N.C. App. 187, 192–93, 614 S.E.2d 396,

401 (2005) (defining collateral estoppel without the privity

element); Bee Tree Missionary Baptist Church v. McNeil, 153 N.C.

App. 797, 799, 570 S.E.2d 781, 783 (2002) (“For collateral

estoppel to bar [the] plaintiff’s action, [the] defendants must

show . . . (4) both parties are either identical to or in

privity with a party or the parties from the prior suit.”)

(citations omitted); In re Foreclosure of Azalea Garden Bd. &

Care, Inc., 140 N.C. App. 45, 54, 535 S.E.2d 388, 395 (2000)

(“[M]utuality of parties is no longer required when invoking

either offensive or defensive collateral estoppel . . . .”).

We need not resolve the mutuality issue here. Even if

privity is not a requirement of collateral estoppel, the trial

court erroneously applied the doctrine because of the different

burdens of proof used in custody and neglect hearings. As

Respondent-Mother points out and the Guardian ad Litem concedes,
 -15-
“case law is well[ ]settled that collateral estoppel cannot

apply where the proceedings involve a different burden of

proof.” See, e.g., State v. Safrit, 154 N.C. App. 727, 729, 572

S.E.2d 863, 865 (2002) (“It is clear that the difference in the

relative burdens of proof in the criminal and civil actions

precludes the application of the doctrine of collateral

estoppel.”) (citations and internal quotation marks omitted),

disc. review denied, 357 N.C. 65, 579 S.E.2d 571 (2003). YFS’s

unsupported assertion that “civil actions intertwined around the

best interest[s] of the juveniles” are somehow exempt from this

precept is without merit.

Here, the burden of proof in the custody action was

preponderance of the evidence. N.C. Gen. Stat. § 50-13.5(a)

(2013) (“The procedure in actions for custody and support of

minor children shall be as in civil actions . . . .”); McCorkle

v. Beatty, 225 N.C. 178, 181, 33 S.E.2d 753, 755 (1945)

(“Ordinarily, in civil matters, the burden of the issue is

required to be carried only by the preponderance or greater

weight of the evidence . . . .”) (citations omitted). The

standard of proof for an adjudicatory order entered on a

petition alleging abuse, neglect, or dependency in a juvenile

matter, however, is “clear and convincing evidence.” N.C. Gen.
 -16-
Stat. § 7B-805 (2013); In re C.B., 180 N.C. App. 221, 222, 636

S.E.2d 336, 337 (2006) (citation omitted), affirmed per curiam,

361 N.C. 345, 643 S.E.2d 587 (2007). Therefore, we hold that the

trial court erred by applying the doctrine of collateral

estoppel in this case to bar Respondent-Mother’s questions

because the neglect hearing was held pursuant to a different

burden of proof. See Safrit, 154 N.C. App. at 729, 572 S.E.2d at

865.

Nevertheless, the Guardian ad Litem and YFS contend that

such error was harmless. In support of this point, the Guardian

ad Litem notes that “the trial court . . . properly found Karen

to be neglected and dependent and the issue as to the neglect of

Elliot and Katie is now moot.” In addition, YFS points out that

the trial court received “other items” into evidence beyond the

testimony that was barred on grounds of collateral estoppel.

Specifically, YFS points out that the court properly considered

the father’s mediated agreement, the father’s testimony,

testimony of the YFS social worker, and the Respondent-Mother’s

own evidence in determining that Katie and Elliot were neglected

and that Karen was both neglected and dependent. We are

unpersuaded.
 -17-
When the appellant in a civil case is seeking a new trial

pursuant to prejudicial error, as here, the appealing party must

“enable the Court to see that [s]he was prejudiced and that a

different result would have likely ensued had the error not

occurred.” Hasty v. Turner, 53 N.C. App. 746, 750, 281 S.E.2d

728, 730 (1981). Respondent-Mother argues on appeal that she was

prejudiced by the trial court’s erroneous application of the

collateral estoppel rule in this case because

the trial court sustained objections to
questions asked by [Respondent-Mother] . . .
to the point that the court limited the
evidence to those orders in the [c]ustody
[a]ction. The court did not allow any
questioning of the allegations in the
petition to the extent that they mirrored
or related to the findings of fact made in
orders in the [c]ustody [a]ction.

This comports with our reading of the transcript. The trial

court’s erroneous application of the collateral estoppel rule

made it impossible for Respondent-Mother to effectively contest

the allegations made in the petition under the higher, clear and

convincing evidence standard.4 For this reason, we cannot

4
The Guardian ad litem asserts that the trial court’s order was
nonetheless correct because it is permissible to take judicial
notice of findings of fact made in a previous order, which was
decided under a different, lower standard of review, citing In
re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005)
[hereinafter J.B.]. This is incorrect. In J.B. we held that a
trial court may take judicial notice of “prior disposition
 -18-
conclude that, if Respondent-Mother had been given the

opportunity to contest all of the allegations made in the

petition, a different result might not have ensued. Therefore,

we reverse the trial court’s order and remand for further

proceedings consistent with this opinion.5

REVERSED and REMANDED.

Judges CALABRIA and ELMORE concur.

orders” even though such orders were based on a lower
evidentiary standard. Id. Taking judicial notice of the
existence of an order or the disposition in that order is not
the same thing as taking judicial notice of each of the facts
resolved in that order. Here, the court did the latter.
5
Because we resolve this case on collateral estoppel grounds, we
need not address Respondent-Mother’s second, alternative
argument.