NO. COA13-972

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

IN THE MATTER OF:

K.A.

E.A.

Mecklenburg County

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 HollingsworthRichardson 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 
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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. 
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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]
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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 relitigating 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 
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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.
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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. 
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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: 
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[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 [RespondentMother] 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 
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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 [RespondentMother] 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. 
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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.
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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 relitigating 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 
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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, 
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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 
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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, 
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“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. 
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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. 
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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 
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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.