concurring in part and dissenting in part.
I agree with the majority that the trial court erred in determining that the child was not competent to testify based on the inadequate inquiry. However, I disagree that the error can be cured by conducting a new competency hearing and, in the event that the trial court determines anew that the child is incompetent to testify, retroactively applying the new determination to the former hearing. I believe that the juvenile is entitled to a new trial on the charges of first degree sexual offense and indecent liberties.
Specifically, I disagree with that portion of the majority opinion which concludes:
We remand to the juvenile court, for a determination consistent with this opinion, the issue of D.R.’s competency to testify. If, after conducting an appropriate voir dire of D.R., the juvenile court determines that D.R. is incompetent to testify, the adjudicatory and dispositional order filed 23 March 1999 is affirmed. If, however, after proper inquiry, the juvenile court determines that D.R. is competent to testify, the juvenile shall be entitled to a new adjudicatory hearing on the charges of first degree sexual offense and indecent liberties.
*69Whether a witness is qualified to testify is a preliminary question. N.C. Gen. Stat. § 8C-1, Rule 104(a) (1999). As such, I do not believe it would be proper, as the majority suggests, to conduct such an inquiry following the trial. To affirm the 23 March 1999 order if the child is found, over one year later, to be incompetent to testify is to place the proverbial cart before the horse. This is especially true in a case involving a young child who experiences significant developmental changes within a short time span.
After the trial court determined that the juvenile was not competent to testify at trial, the State offered the testimony of witnesses regarding out of court statements made by the child. The juvenile court may not admit proffered hearsay evidence without making a preliminary determination that such evidence is “more probative on the issue than any other evidence which the proponent can procure through reasonable efforts[.]” Smith, 315 N.C. at 95, 337 S.E.2d at 846.1 agree with the majority’s conclusion that “the juvenile court disqualified D.R. without making an appropriate inquiry into her competency to testify.” Having failed to satisfy the threshold test set forth in Smith, the trial court erred in admitting the hearsay statements of D.R. under the residual hearsay exception, section 8C-1, Rule 803(24).
The hearsay statements which the trial court improperly admitted were highly prejudicial in that they identified the juvenile as the perpetrator and included descriptions of the injuries he allegedly inflicted on D.R. See State v. Fearing, 315 N.C. 167, 172, 337 S.E.2d 551, 554 (1985).
In Fearing, our Supreme Court held that the trial court improperly concluded that a child victim was incompetent to testify where the trial court judge had not personally observed the child’s demeanor, but had instead adopted counsel’s stipulation that the child was incompetent to testify. Because the trial court relied on the improperly based conclusion that the child was not competent to testify in admitting prejudicial hearsay testimony, the Fearing court arrested the convictions for rape, incest, and indecent liberties with a minor and remanded the matter to the Superior Court for a new trial.
In the case at bar, in light of the fact that highly prejudicial testimony was erroneously admitted on the basis of the improper conclusion regarding the competency of the child to testify, I would hold that the interests of justice require a new trial.