IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-884
Filed 1 July 2026
Cumberland County, No. 24JA000329-250
IN THE MATTER OF: M.D., Jr.
Appeal by Petitioner Cumberland County Department of Social Services and
the Guardian Ad Litem from an order entered 26 June 2025 by Judge Rosalyn Hood
in Cumberland County District Court. Heard in the Court of Appeals 3 June 2026.
Sydney J. Batch for respondent-appellee mother.
Mary McCullers Reece for respondent-appellee father.
Dawn M. Oxendine for petitioner-appellant Cumberland County Department of
Social Services.
GAL Staff Attorney Brittany T. McKinney for guardian ad litem.
WOOD, Judge.
Petitioner Cumberland County Department of Social Services (“DSS”) and the
Guardian Ad Litem (“GAL”) appeal from the trial court’s order granting RespondentMother’s and Respondent-Father’s (collectively “Parents”) motion to dismiss the
IN RE M.D., JR.
Opinion of the Court
juvenile petition alleging Matthew1 to be an abused and neglected juvenile. For the
reasons discussed below, we affirm the order of the trial court.
I. Factual and Procedural Background
Matthew, born 25 April 2024, is the child of Mother and Father. Parents allege
the following events occurred prior to rushing Matthew to the emergency room at
Womack Hospital on 25 August 2024. Earlier the same day, Father was outside
helping a neighbor when he heard Matthew crying from inside the house; Father
retrieved Matthew, held him in his arms, and went back outside to finish helping the
neighbor. When finished helping the neighbor, Father warmed a bottle for Matthew,
but Matthew was too distracted by the TV to drink it. Father took Matthew to
another room where he took a few gulps from the bottle but then began making
grunting and choking sounds. Father held Matthew upright and began to pat him on
the back; while doing so, Matthew vomited and became limp. Parents reported they
could hear Matthew breathing enroute to Womack Hospital.
Upon arrival at the emergency room, Matthew was in cardiac arrest and not
responsive. Hospital staff resuscitated Matthew; he was then intubated and airlifted
to UNC-Chapel Hill Hospital (“UNC Hospital”) to be cared for by the UNC Chapel
Hill Beacon Team (“UNC Beacon”). Matthew was found to have sustained multiple
1 A pseudonym is used to protect the identity of the juvenile pursuant to N.C. R. App. P.
42(b).
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Opinion of the Court
injuries. On 26 August 2024, DSS received a Child Protective Services (“CPS”)
referral concerning Matthew’s safety.
On 9 September 2024, DSS filed a juvenile petition alleging that Matthew was
an abused and neglected juvenile within the meaning of N.C. Gen. Stat. § 7B-101(1)
and N.C. Gen. Stat. § 7B-101(15). An order granting nonsecure custody was entered
the same day the juvenile petition was filed removing Matthew from Parents’ care.
Over the next nine months, the requisite hearings continuing nonsecure custody were
held and Matthew was placed with paternal relatives. During this time, the UNC
Beacon Team Report, also referred to as the child medical evaluation (“CME”), for the
juvenile was completed which contained opinions from Matthew’s medical providers
about the source and nature of his injuries.
On 3 February 2025, DSS filed a notice of intent to offer evidence, the medical
records from Womack Hospital and UNC Hospital, with authentication by affidavit
pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(6) without any further authentication
during the adjudication proceedings. On 19 May 2025, DSS filed a second notice of
intent to offer evidence, specifically the CME report, with authentication by affidavit
pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(6) without any further authentication
during the adjudication proceedings.
At the adjudication hearing on 2 June 2025, DSS brought two social workers,
Mother, and Father to testify in their case in chief. Testimony by the social workers
was extremely limited due to their lack of first-hand knowledge of Matthew’s medical
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Opinion of the Court
history and medical records. The investigating social worker who filed the petition
retired prior to the hearing. The social workers who testified were the investigating
social worker’s supervisor and a social worker who was present for the CME.
Mother’s and Father’s testimonies were also limited, but both provided some
explanation for Matthew’s injuries. The trial court admitted into evidence nearly
1500 pages of medical records from Womack Hospital and UNC Hospital. Notably,
DSS did not call any expert witness to testify to Matthew’s medical history or medical
records or to give an opinion on the nature and cause of Matthew’s injuries. Further,
due to the lack of expert witness available at the hearing to testify, DSS was not
successful in admitting the CME report into evidence.
Testimony by the social workers revealed that DSS received a report making
them aware of a child who arrived at the Womack Hospital emergency room
unresponsive due to “some type of choking that may have occurred at the home.”
Further, the child was found to have “a subdural hematoma, a skull fracture to the
right side of the skull, several healing stages of rib fractures, and a blotted spot in
the right eye, hematoma”; the child was airlifted from Womack Hospital to UNC
Hospital. DSS was informed that “Mom did state that she had to have help delivering
the baby . . . [s]o she indicated that could have been one of the indications of injuries
towards [Matthew].” One social worker testified Father performed CPR on Matthew
prior to arriving to the hospital, “[b]ut he wasn’t sure how to do it on an infant” and
“he did his best.”
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Opinion of the Court
DSS called Father and Mother to testify. Father testified that he did not know
the primary cause of Matthew’s cardiac arrest; however, when asked, “[s]o you
indicated after the MRIs and CAT scans came back that you had hit your child’s head
on a door frame; is that correct?” he answered “Yes.” Mother testified that she was
advised vacuum-assisted delivery would not cause the type of injuries Matthew
sustained and that to her knowledge, Matthew was born healthy. However, when
asked, “You’ve also both been advised that even just doing CPR could have caused a
lot of these injuries, correct?” Mother answered “Yes.”
While the nearly 1500 pages of medical records from Womack Hospital and
UNC Hospital were ultimately admitted as business records, Mother’s counsel
objected to their admission and accused DSS of refusing to subpoena the medical
providers and “trying to use the business records self-authentication affidavit to
basically backdoor in expert witness testimony to avoid having to pay expert witness
fees.” The trial court explained, however, that while these records were being
admitted, their usefulness was limited:
THE COURT: [O]bjection is overruled. Unfortunately,
[Mother’s counsel], the legislator, legislation have carved
out an opportunity for these records to come in because of
the burden it is on the system and pulling doctors out of
much needed operation rooms, and whatever else their
reasons are for those records to come in generally.
Now, furthermore, if you have been given proper notice
that they were coming in, then the burden shifted to you to
be able to call in and subpoena anybody to cross-examine
on this matter.
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I will say that I’m not a medical provider, and I’m not a
medical expert. So what good does it do to give me a report
with all this big language that I may or may not
understand. I don’t even know how helpful it would be to
the Department. But . . . it comes in.
At the close of DSS’ evidence, Parents’ counsel made a joint motion to dismiss
the petition for failure to prove the allegations. Mother’s counsel persuasively
argued:
[MOTHER’S COUNSEL]: Oh. Your Honor, if you just go
through the allegations, basically the only thing that’s been
proven today is that this young infant had a medical
emergency, was rushed to the hospital, and then was
rushed to UNC, and had some injuries. There’s been no
indication of anything beyond the parents doing everything
improper. And if you just go down these allegations one by
one, other than proving that there was injuries and medical
treatment sought, they have proved nothing. They’ve
asked questions about what other people might have
advised. But the parents were informed of some potential
injuries. The parents gave their explanations for that.
Your Honor, the only actual testimony as to the cause of
these injuries today in this courtroom is from the parents.
And all these allegations about how those injuries could not
have been caused by those mechanisms are not before the
Court.
Your Honor, I understand we are limited in resources and
economy. But at the end of the day, when you file a Petition
that could potentially lead to termination of parental
rights, potential criminal charges, being on the responsible
individual list - - which we really heard they’re not on, the
matter is still pending - - Your Honor, there is a level of
evidence that you must meet. It’s clear, cogent and
convincing. So right below reasonable doubt. Not quite
that high, but clear, cogent and convincing. And Your
Honor, all they’ve proven is that some type of injury
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occurred, or some type of medical emergency and medical
treatment was immediately sought. That’s it. That’s all
they’ve proven.
And so, Your Honor, we contend that to prove allegations
of serious physical abuse, which is what they alleged, it
takes far more than that. They’ve alleged inflicts or allows
to be inflicted upon the juvenile a serious criminal injury;
creates or allows to be created a substantial risk of physical
injury. Where, where is the evidence of that, Your Honor?
What we contend what they’re asking you to do today is
just say the injury inherently means there must have been
some type of abuse and neglect. Injury, there is an
explanation, they just don’t like it. So injury, we don’t like
their explanation, abuse or neglect. Your Honor, they could
have easily proven that. And I think my colleagues in the
courtroom probably would have liked to. All they had to do
was get the right people here to testify. At the end of the
day they didn’t.
So, Your Honor, we’re moving to dismiss. I just don’t see
how there’s been anywhere near enough evidence to
approve, to prove abuse and neglect. So we move that it be
dismissed for insufficient evidence, Your Honor.
DSS and the GAL, in contrast, argued that the burden for proving neglect and
abuse was met by the admission of the medical records and testimony of Parents.
Mother’s counsel continued to advocate zealously that DSS failed to meet their
burden of proof by stating that “if this is such a significant case then [DSS should]
have the significant witnesses here to prove that.” Mother’s counsel further argued
that Parents gave explanations for Matthew’s injuries and the only thing DSS had
proven was that Matthew got hurt and his parents rushed him to the hospital.
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Opinion of the Court
The trial court found DSS had failed to meet their burden to prove by clear and
convincing evidence that Matthew was an abused or neglected juvenile. The trial
court further found that, “It is not beyond reason that Respondent Father’s poor
attempt to provide CPR to the juvenile, as well as the hospital staff administering
CPR, and the juvenile’s seizure activity could have been some of the reason for the
juvenile’s fractured bones.” On 26 June 2025, the trial court entered its order
dismissing the juvenile petition.
DSS and the GAL filed notice of appeal on 2 and 18 July 2025, respectively.
II. Analysis
DSS argues the trial court erred by acting “under multiple misapprehensions
of law” when it granted Parents’ motion to dismiss because involuntary dismissal of
a juvenile petition is generally disfavored at this stage and is only appropriate “in the
clearest of cases in which [DSS] had shown no right for relief” and “this was not the
clearest of cases.” DSS contends they presented medical records and testimony from
social workers and Matthew’s parents that show he suffered “unexplained
nonaccidental trauma resulting in severe injury while in the custody of his parents”;
therefore, it was erroneous to conclude that DSS failed to meet their burden to “show
by clear, cogent, and convincing evidence that Matthew was abused and neglected”
pursuant to N.C. Gen. Stat. § 7B-101(1) and N.C. Gen. Stat. § 7B-101(15). We
disagree.
A. Standard of Review
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Opinion of the Court
Cases of juvenile abuse, neglect, and dependency “are typically initiated when
the local department of social services (DSS) receives a report indicating a child may
be in need of protective services.” In re A.K., 360 N.C. 449, 454, 628 S.E.2d 753, 756-57 (2006). “DSS conducts an investigation, and if the allegations in the report are
substantiated, it files a petition in district court alleging abuse, dependency, or
neglect”; the next stage in such proceedings is an adjudication hearing. Id. at 454,
628 S.E.2d at 757.
“If DSS presents clear and convincing evidence of the allegations in the
petition” at the adjudication hearing, “the trial court will adjudicate a child as an
abused, neglected, or dependent juvenile.” Id. at 454-55, 628 S.E.2d at 757. However,
if DSS fails to prove the allegations in the petition, the trial court will dismiss the
petition with prejudice, and the juvenile shall return to its parents. Id. at 455, 628
S.E.2d at 757; N.C. Gen. Stat. § 7B-807(a). Importantly, at an adjudication hearing,
all the rules of evidence in civil cases apply and “statements that constitute
inadmissible hearsay are not clear, cogent, and convincing evidence on which the trial
court may rely.” In re A.J., 386 N.C. 409, 412, 904 S.E.2d 707, 711 (2024); N.C. Gen.
Stat. § 7B-804.
When an appeal is made from an adjudication order we review it “to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law.” In re G.C., 384 N.C. 62, 65, 884 S.E.2d 658,
661 (2023). Because conclusions of law are reviewed under the de novo standard, our
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task would generally be to determine whether or not, from our own view, the findings
of fact made by the trial court supported its conclusion of abuse, neglect, or
dependency. Id. at 65-66, 884 S.E.2d at 661 (under the de novo standard, “the
appellate court ‘freely substitutes’ its conclusion for the trial court’s conclusion
concerning whether the findings of fact support or do not support” that the child is an
abused, neglected, or dependent juvenile). However, here, Parents’ counsel made a
motion to dismiss at the close of DSS’ evidence pursuant to Rule 41(b). Because the
trial court granted Parents’ motion to dismiss, Parents did not present any evidence
of their own. This distinction is important because it alters the standard of review
we must apply.
In adjudication proceedings, dismissal under Rule 41(b) is left to the discretion
of the trial court as the trier of fact. See Walsh v. Jones, 263 N.C. App. 582, 586, 824
S.E.2d 129, 133 (2019). “A dismissal under Rule 41(b) should be granted if the
plaintiff has shown no right to relief or if the plaintiff has made out a colorable claim
but the court nevertheless determines as the trier of fact that the defendant is
entitled to judgment on the merits.” Id. at 587, 824 S.E.2d at 133 (quoting Hill v.
Lassiter, 135 N.C. App. 515, 517, 520 S.E.2d 797, 800 (1999)). This Court has stated
that except in the clearest of cases, the trial court should defer judgment until the
close of all evidence. Id. at 586, 824 S.E.2d at 132. Rule 41(b) states in relevant part:
After the plaintiff, in an action tried by the court without a
jury, has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in
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the event the motion is not granted, may move for a
dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of
the facts may then determine them and render judgment
against the plaintiff or may decline to render any judgment
until the close of all the evidence.
N.C. Gen. Stat. § 1A-1, Rule 41(b).
In the case sub judice, the motion to dismiss was made at the close of DSS’
case2 alleging insufficient evidence had been presented to support the allegations;
therefore, the trial court had to “consider and weigh all competent evidence before” it
as the trier of fact and the evidence was not to be taken in the light most favorable to
DSS. See Walsh, 263 N.C. App. at 586, 824 S.E.2d at 133. Since the trial court
rendered judgment against DSS, it was required to make findings of fact and
conclusions of law to support the determination. N.C. Gen. Stat. § 1A-1, Rule 41(b).
We review a trial court’s ruling on a motion to dismiss pursuant to Rule 41(b)
for an abuse of discretion. See Walsh, 263 N.C. App. at 587, 824 S.E.2d at 133. A trial
court abuses its discretion when its ruling is “manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a reasoned decision.” In re Will
of Howell, 294 N.C. App. 162, 171, 903 S.E.2d 197, 204 (2024) (cleaned up).
B. Competent Evidence at the Adjudication Hearing
On appeal, DSS and the GAL contend the trial court misapprehended the law
2 Notably, as we discuss further below, DSS called both Mother and Father to testify during
their case in chief.
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Opinion of the Court
because it required DSS to prove that Matthew’s parents intentionally caused his
injuries and required a medical expert to testify as to the contents of the Womack
Hospital and UNC Hospital medical records that were admitted into evidence.
Specifically, they contest the trial court’s findings of fact thirteen and sixteen and
assert that these findings demonstrate the trial court’s misapprehension of law:
13. [DSS] introduced the juvenile’s medical records into
evidence; however, the Department did not offer the
testimony of any medical personnel or expert to provide an
explanation for the injuries.
16. Based on the evidence presented, there is no evidence
that the juvenile’s injuries are the result of intentional
wrongdoing or other than accidental means on the part of
the parents.
To the contrary, it is DSS and the GAL who misapprehend the law.
At adjudication, the burden is on DSS to prove the allegations set forth in the
petition by “clear and convincing evidence” and the trial court, in the case sub judice,
was tasked with weighing all competent evidence before it. N.C. Gen. Stat. § 7B-805
(emphasis added). Thus, “[t]he trial court must pass upon the credibility of the
witnesses, the weight to be given their testimony and the reasonable inferences to be
drawn from them.” Walsh, 263 N.C. App. at 586, 824 S.E.2d at 133. Our review of
the record and the trial court’s findings and conclusions establish that the trial court
did not abuse its discretion by finding DSS failed to meet its burden to prove to the
trial court by clear and convincing evidence that Matthew should be adjudicated an
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abused and neglected juvenile.
An abused juvenile is one “whose parent, guardian, custodian, or caretaker
inflicts or allows to be inflicted upon the juvenile a serious physical injury by other
than accidental means or creates or allows to be created a substantial risk of serious
physical injury to the juvenile by other than accidental means.” In re L.B., 296 N.C.
App. 498, 501, 909 S.E.2d 711, 714 (2024) (cleaned up). A neglected juvenile is one
“whose parent, guardian, custodian, or caretaker does not provide proper care,
supervision, or discipline, has abandoned the juvenile, or creates or allows to be
created a living environment that is injurious to the juvenile’s welfare.” Id. at 505,
909 S.E.2d at 716 (cleaned up).
At the hearing, the trial court explained its ruling and how it weighed the
evidence presented:
I have reviewed, to the best of my ability, the medical
record submitted from Womack, considered the arguments
of counsel and evidence presented in this, this case. The
Court cannot at this time find evidence presented as to the
actual legitimate reason for injuries to this child.
The Court understands that, based on what was presented,
that a child was choking; the child previously considered
born healthy; and that the Respondent-Father attempted
CPR, albeit not knowing how to properly do that. Once at
the hospital, initially Womack, that there were some
fractures to the . . . some fractures and some medical
concerns concerning the child’s skull, ribs, a right eye spot.
And this Court’s review of the medical records, which was
all that’s submitted to this Court without any medical
personnel or expert explanation, my reading of that, it’s not
beyond reason that a attempted, poor attempt at CPR by
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the father could very well have been some reason for some
fracturing.
Then I read there that there was another two minutes. I
don’t know how long Dad attempted to do it, but there was
another two minutes of CPR properly done, I would
assume, by medical professionals. And this is on a fourmonth-old. There were follow-on seizure activity for this
child.
But in all of that and the evidence that is presented I
cannot find that there were any intentional wrongdoing on
the part, on the parts of the parents. And there’s been
nothing else presented other than, you know, there’s some
fracturing, we don’t know the cause. Could possibly be
other than accidental means. But there’s no evidence to
prove what some other accidental means would be.
While DSS was successful in entering the medical records into evidence under
the business record hearsay exception, the trial court rightly explained that without
an expert witness the medical records usefulness was limited, stating, “I’m not a
medical provider, and I’m not a medical expert. So what good does it do to give me a
report with all this big language that I may or may not understand.” See N.C. Gen.
Stat. § 8C-1, Rule 803(6). Additionally, DSS attempted, but failed, to enter into
evidence the CME report; a CME report is:
“a type of exam that is very detailed and thorough that is
set forth from the State Department of Social Services
using a program that was established by UNC Chapel
Hill.” The purpose of a child medical evaluation is to
determine the child’s needs, and to diagnose and treat the
child accordingly.
State v. Corbett, 269 N.C. App. 509, 532, 839 S.E.2d 361, 383 (2020).
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On appeal, DSS argues and is correct that this Court has “previously upheld
abuse adjudications where a child sustains unexplained, non-accidental injuries.” In
re L.Z.A., 249 N.C. App. 628, 637, 792 S.E.2d 160, 168 (2016). However, this Court
explained in In re L.B.:
“This Court has previously upheld adjudications of abuse
where a child sustains non-accidental injuries, even where
the injuries were unexplained, where clear and convincing
evidence supported the inference that the respondentparents inflicted the child’s injuries or allowed them to be
inflicted.” However, “in each of these cases, though the
exact cause of the child’s injury was unclear, the trial
court’s findings of fact—or other evidence in the record—
supported the inference that the respondent-parents were
responsible for the unexplained injury.”
L.B., 296 N.C. App. at 502, 909 S.E.2d at 714 (quoting In re K.L., 272 N.C. App. 30,
39-40, 845 S.E.2d 182, 190-91 (2020)). The record in the case sub judice is devoid of
clear and convincing evidence that Matthew’s injuries “are the result of intentional
wrongdoing or other than accidental means on the part of the parents.” While DSS
alleged in its petition that “[d]ue to the severity of the injuries there is a high concern
that the juvenile suffered these injuries by non-accidental trauma,” DSS did not
present evidence that allowed even the inference to be made that Matthew’s injuries
were caused by non-accidental means by his parents.
At the adjudication hearing, DSS called two social workers—neither of whom
filed the juvenile petition or acted as the main investigating social worker—and
Matthew’s parents to testify. It is important to recognize in this case that because
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Mother and Father testified as DSS’ witnesses, the explanations they provided for
Matthew’s injuries are part of DSS’ case in chief. Thus, while DSS alleged in their
petition that “[d]ue to the severity of the injuries there is a high concern that the
juvenile suffered these injuries by non-accidental trauma,” they provided testimony
that Matthew’s injuries were caused by accidental means but provided no testimony
to explain why these injuries might suggest they were the result of non-accidental
means or inflicted by his parents.
The GAL on appeal identifies several places within the nearly 1500 pages of
medical records, that were properly admitted as business records, as support for
Matthew’s injuries being the result of non-accidental means and argues the trial court
did not “resolve[] the conflicting evidence as the factfinder.” However, the trial court’s
explanation shows that it did consider and weigh the evidence; the trial court
reviewed the medical records to the best of its ability but ultimately gave greater
weight to the testimony of Mother and Father, DSS’ own witnesses, who offered
explanations for Matthew’s injuries. DSS may not have believed Parents’
explanations, but DSS did not call anyone, specifically a medical provider or expert
witness, who could testify to the contents of the medical records or offer any opinion
about what the records might reveal about the nature of Matthew’s injuries. The
trial court did not misapprehend the law by concluding it could not interpret the
medical records without an expert medical witness testifying. The medical records
delineate Matthew’s injuries, but only an expert could have interpreted the records
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to give an opinion as to the proximate cause of the injuries; without an expert’s
opinion, the trial court was left with only Parents’ explanation of the injuries. See
Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC, 240 N.C. App. 337,
342, 770 S.E.2d 159, 163 (2015) (stating the requirement that a “medical negligence
plaintiff must rely on expert opinion testimony to establish proximate causation of
the injury” and noting that expert witness testimony is generally necessary to prove
causation when matters go beyond the knowledge of a layman). As Mother’s counsel
stated at the hearing, “there is an explanation, [DSS and the GAL] just don’t like it.”
III. Conclusion
For the foregoing reasons, we hold the trial court did not abuse its discretion
by granting Parents’ motion to dismiss the petition alleging Matthew to be an abused
and neglected juvenile because the ruling is not manifestly unsupported by reason.
The trial court acted within its discretion by determining DSS failed to meet its
burden of proof by clear and convincing evidence. Therefore, we affirm the order of
the trial court dismissing the juvenile petition.
AFFIRMED.
Judges CARPENTER and FLOOD concur.
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