kind analysis in North Carolina

2017Stat. § 7B-101(15) (2015) defines a neglected juvenile as one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care[.]" Where a child has not been in the custody of the parents for a significant period of time prior to the TPR hearing, "the trial court must employ a different kind of analysis *62 to determine whether the evidence supports a finding of neglect." In re Pierce , 146 N.C.App. 641 , 651, 554 S

2017Stat. § 7B-101(15) (2015) defines a neglected juvenile as one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care[.]" Where a child has not been in the custody of the parents for a significant period of time prior to the TPR hearing, "the trial court must employ a different kind of analysis *62 to determine whether the evidence supports a finding of neglect." In re Pierce , 146 N.C.App. 641 , 651, 554 S

2015In such cases, a trial court may terminate parental rights based upon prior neglect of the juvenile if "the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents." In re Reyes, 136 N.C.App. 812 , 815, 526 S.E.2d 499 , 501 (2000).

2015In such cases, a trial court may terminate parental rights based upon prior neglect of the juvenile if "the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents." In re Reyes, 136 N.C.App. 812 , 815, 526 S.E.2d 499 , 501 (2000).

2002Further, in State v. Payne, 328 N.C. 377 , 402 S.E.2d 582 (1991), the Supreme Court stated: Whether this kind of error is harmless depends, we conclude, on whether the questioning of prospective jurors in defendant’s absence might have resulted in a jury composed differently from one which defendant might have obtained had he been present and participated in the process.

2002Further, in State v. Payne, 328 N.C. 377 , 402 S.E.2d 582 (1991), the Supreme Court stated: Whether this kind of error is harmless depends, we conclude, on whether the questioning of prospective jurors in defendant’s absence might have resulted in a jury composed differently from one which defendant might have obtained had he been present and participated in the process.

1923S. v. Burnette, 184 N. C., 783 -784.

1923S. v. Burnette , 184 N.C. 783 -784.

1904J. , in McNair v. Pope , 100 N.C. 404 , says: "But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing." In Summerlin v. Cowles , 101 N.C. 473 , it is said: "To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact." In Cobb v . *Page 295 Edwards , 117 N.C. 244 , Avery, J. , says: "Where the jud

1904J., in McNair v. Pope, 100 N. C., 404 , says: “But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing.” In Summerlin v. Cowles, 101 N. C., 473 , it is said: “To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact.” In Cobb v. Edwards, 117 N. C., 244 , Avery, J., says: “Where the Judge is not

1904J. , in McNair v. Pope , 100 N.C. 404 , says: "But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing." In Summerlin v. Cowles , 101 N.C. 473 , it is said: "To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact." In Cobb v . *Page 295 Edwards , 117 N.C. 244 , Avery, J. , says: "Where the jud

1904J., in McNair v. Pope, 100 N. C., 404 , says: “But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing.” In Summerlin v. Cowles, 101 N. C., 473 , it is said: “To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact.” In Cobb v. Edwards, 117 N. C., 244 , Avery, J., says: “Where the Judge is not

1904J. , in McNair v. Pope , 100 N.C. 404 , says: "But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing." In Summerlin v. Cowles , 101 N.C. 473 , it is said: "To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact." In Cobb v . *Page 295 Edwards , 117 N.C. 244 , Avery, J. , says: "Where the jud

1904J., in McNair v. Pope, 100 N. C., 404 , says: “But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing.” In Summerlin v. Cowles, 101 N. C., 473 , it is said: “To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact.” In Cobb v. Edwards, 117 N. C., 244 , Avery, J., says: “Where the Judge is not

1895Where the Judge is not at liberty to say that there is no evidence of the kind required by the rule of law prescribed in such cases, it is his duty to tell the jury that the law requires clear, strong and convincing proof to show the agreement as well as the subsequent acts or admissions, and that it is their province to say whether that offered does so convince them of its truth. *Page 173 In Berry v. Hall , 105 N.C. 154 , following Ferral v. Broadway , 95 N.C. 551 , and in Helms v. Green , 105 N.C. 251 , this Court has declared that expressions used by the Judges when discussing the facts as

1895In Berry v. Hall, 105 N. C., 154 , following Ferral v. Broadway, 95 N. C., 551 , and in Helms v Green, 105 N. C., 251 , this Court has declared that expressions used by the Judges when discussing the facts as Chancellors in cases where it was proposed to impress a trust on deeds, were not to be considered as legal directions tojuries exercising a similar province under the new system.

1895Where the Judge is not at liberty to say that there is no evidence of the kind required by the rule of law prescribed in such cases, it is his duty to tell the jury that the law requires clear, strong and convincing proof to show the agreement as well as the subsequent acts or admissions, and that it is their province to say whether that offered does so convince them of its truth. *Page 173 In Berry v. Hall , 105 N.C. 154 , following Ferral v. Broadway , 95 N.C. 551 , and in Helms v. Green , 105 N.C. 251 , this Court has declared that expressions used by the Judges when discussing the facts as

1895In Berry v. Hall, 105 N. C., 154 , following Ferral v. Broadway, 95 N. C., 551 , and in Helms v Green, 105 N. C., 251 , this Court has declared that expressions used by the Judges when discussing the facts as Chancellors in cases where it was proposed to impress a trust on deeds, were not to be considered as legal directions tojuries exercising a similar province under the new system.

1895Where the Judge is not at liberty to say that there is no evidence of the kind required by the rule of law prescribed in such cases, it is his duty to tell the jury that the law requires clear, strong and convincing proof to show the agreement as well as the subsequent acts or admissions, and that it is their province to say whether that offered does so convince them of its truth. *Page 173 In Berry v. Hall , 105 N.C. 154 , following Ferral v. Broadway , 95 N.C. 551 , and in Helms v. Green , 105 N.C. 251 , this Court has declared that expressions used by the Judges when discussing the facts as

1895In Berry v. Hall, 105 N. C., 154 , following Ferral v. Broadway, 95 N. C., 551 , and in Helms v Green, 105 N. C., 251 , this Court has declared that expressions used by the Judges when discussing the facts as Chancellors in cases where it was proposed to impress a trust on deeds, were not to be considered as legal directions tojuries exercising a similar province under the new system.

2025That was so, this Court explained, because the plaintiff brought a particular kind of claim for “breach of contract of agency.” Id. at 604 .

2025The insured sued the agent for “negligent failure to perform a duty he had undertaken and assumed as agent.” Id. at 602 .

2017It is simply about whether a certain kind of claim arising under Section 2 of the FAA—namely, a “claim[ ] of fraud in the inducement of [a] contract generally,” id. at 404—should be resolved by an arbitrator or by a court, id. at 396-97 .

2017It is simply about whether a certain kind of claim arising under Section 2 of the FAA—namely, a “claim[ ] of fraud in the inducement of [a] contract generally,” id. at 404—should be resolved by an arbitrator or by a court, id. at 396-97 .

2002However, this kind of error “is subject to harmless error analysis, the burden being upon the State to demonstrate the harmlessness beyond a reasonable doubt.” Williams, 339 N.C. at 29 , 452 S.E.2d at 262 .

2002Our Supreme Court has found such error harmless beyond a reasonable doubt where “ ‘the transcript reveals the substance of the conversations, or the substance is adequately reconstructed by the trial judge at trial,’ ” State v. Adams, 335 N.C. 401, 409 , 439 S.E.2d 760, 763 (1994) (quoting State v. Boyd, 332 N.C. 101, 106 , 418 S.E.2d 471, 474 (1992)), and “it is manifest from the transcript that defendant was not harmed because his presence would have made no difference in the outcome of the conversation .. . .” Williams, 339 N.C. at 29 , 452 S.E.2d at 262 .

2002Nobles, 350 N.C. at 494 , 515 S.E.2d at 892 .

2002Nobles, 350 N.C. at 494 , 515 S.E.2d at 892 .

1994Huff, 325 N.C. at 30 , 318 S.E.2d at 651.

1991The present case is very similar to that of State v. Bailey, 76 N.C.

1988This kind of presumption, found to be a violation of the Due Process Clause in Francis v. Franklin, 471 U.S. 307 , 85 L.Ed. 2d 344 (1985), was described in that case as follows: A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of their affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.

1988This kind of presumption, found to be a violation of the Due Process Clause in Francis v. Franklin, 471 U.S. 307 , 85 L.Ed. 2d 344 (1985), was described in that case as follows: A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of their affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.

1988Cf. State v. Bindyke, 288 N.C. 608 , 220 S.E.2d 521 (1975) (presence of alternate juror during deliberations violated state constitutional guarantees and was prejudicial per se).

1988Cf. State v. Bindyke, 288 N.C. 608 , 220 S.E.2d 521 (1975) (presence of alternate juror during deliberations violated state constitutional guarantees and was prejudicial per se).

1987State v. Parrish, 275 N.C. 69 , 165 S.E.2d 230 (1969).

1987State v. Parrish, 275 N.C. 69 , 165 S.E.2d 230 (1969).