IN RE: JAKEL PITTMAN, A Minor Child DOB: 10-03-99
Nash County Department of Social Services, by Jayne B.
Norwood, and Guardian Ad Litem Program, by Attorney Advocate
Judith L. Kornegay, for petitioner-appellees.
Etheridge, Sykes, Britt & Hamlett, LLP, by J. Richard Hamlett,
II, and Massengill & Bricio, PLLC, by Francisco J. Bricio, for
respondent-appellants.
EAGLES, Chief Judge.
James Pittman (“the father”) and Lekeshia Harris (“the
mother”) appeal from a juvenile disposition order granting
continued custody of their son, Jakel Pittman (“Jakel”), to the
Nash County Department of Social Services (“DSS”) and relieving DSS
from making further reunification efforts with both parents. On
appeal, the father and the mother assign error to the trial court's
denial of the mother's motion to suppress and the court's findings
of fact and conclusions of law. After a careful review of the
record, briefs, and arguments of counsel, we affirm.
The evidence tends to show the following. Jakel was born on
3 October 1999. When Jakel was born, the father and the mother
were unmarried, but living together. From 3 October 1999 to 6
January 2000, a three month period, Jakel was cared for by a numberof individuals including the father, the mother, Jessie Pittman
(paternal grandmother), Tecia Bryant, Catherine Carnegie, and
Brenda Williams. As early as November 1999, Jessie Pittman noticed
that Jakel had problems that required medical attention.
Additionally, other caretakers noticed that Jakel experienced
seizures and exhibited evidence of discomfort and distress.
Jakel's caretakers brought his medical condition to both parents'
attention.
On 6 January 2000, Jakel experienced a seizure while he was
with his mother, however, the mother did not seek immediate medical
attention for him. Instead, the mother drove to Rocky Mount, where
she visited with relatives for several hours. Four hours after his
first seizure, Jakel experienced a second seizure. The mother then
took Jakel to Nash General Hospital's emergency room. On 7 January
2000, Jakel, three months old at the time, was transferred and
admitted to Pitt County Memorial Hospital, where he was diagnosed
with injuries to the head, legs (fractures), and spine. Doctors
determined that the fractures of the right leg were older than
those of the left leg. They also deemed Jakel's injuries non-
accidental, and possibly the result of severe shaking, jamming,
pushing, pulling, and jabbing.
Upon receipt of a Child Protective Services' referral, DSS
began investigating Jakel's case. Due to the severe nature of the
injuries, the Sharpsburg Police Department was included in the
investigation. On 12 January 2000, Officer Joel Batchelor of theSharpsburg Police Department and Kendra Holley of DSS interviewed
Jakel's parents. Both parents denied harming the child.
Subsequently, on 27 January 2000, Officer Batchelor
interviewed the parents again. In separate interviews, the father
again denied harming Jakel, however the mother started crying and
signed a statement that stated in part:
Jakel was cr[y]ing and I was tr[y]ing to get
him to sleep. I was having a hard time
getting him to sleep. It was frustrating.
While I was rocking Jakel I rocked and bounced
him to[o] hard. After I calmed down the baby
calmed down. Shortly after this is when the
baby started having seizures. . . . I never
told any of the doctors I rocked and bounced
Jakel to[o] hard. I'm sorry I hurt my baby
and I didn't do it on purpose. I would like
to get some help so I don't hurt my baby any
more.
Though the statement was in Officer Batchelor's handwriting, it was
signed by the mother.
As a result of the investigation, the mother was charged
criminally with felony child abuse, and DSS filed a juvenile
petition alleging that Jakel was abused and neglected. Ultimately,
an adjudicatory hearing for the abuse and neglect allegations was
held on 8 and 16 June 2000 in Nash County District Court, the
Honorable Robert Evans presiding. During the hearing, evidence was
presented that the mother injured Jakel by non-accidental means and
that both parents were negligent and reckless in caring for Jakel.
At the conclusion of the hearing, the trial court entered an
adjudicatory order concluding that
2. The minor child . . . is an abused
juvenile as defined by N.C.G.S. § 7B-101(1)a
in that his mother . . . inflicted upon him aserious physical injury by other than
accidental means.
3. The minor child . . . is an abused
juvenile as defined by N.C.G.S. § 7B-101(1)b
in that his father . . . created or allowed to
be created a substantial risk of serious
physical injury to the juvenile by other than
accidental means.
4. The minor child . . . is a neglected
juvenile as defined by § 7B-101(15) in that
his parents . . . do not provide him with
proper care and in that he lives in an
environment injurious to his welfare,
and ordering custody of Jakel remain with DSS pending disposition.
On 18 July 2000, a dispositional hearing was held before Judge
Evans. By order entered 5 September 2000, the trial court
concluded that it was in the best interest of Jakel that he remain
in the legal custody of DSS, and the court relieved DSS of further
reunification efforts with the parents. Both parents appeal.
As a preliminary matter, we note that both the father's and
the mother's notices of appeal indicate that the parents are
appealing from the trial court's dispositional order entered on 5
September 2000. However, in their briefs, the parties assert and
argue alleged error arising from the trial court's earlier
adjudicatory order. Nevertheless, in our discretion under Rule 2
of the North Carolina Rules of Appellate Procedure, we choose to
address the merits of the parents' appeal.
In the parents' first assignment of error, the mother argues
that the trial court erred in denying her motion to suppress the
statement that she made to Officer Batchelor. Specifically, the
mother contends that the statement was obtained in violation of herFifth Amendment right against self-incrimination as defined by
Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 706-07
(1966). We disagree.
Here, the issue is whether Miranda is applicable to a civil
juvenile abuse and neglect proceeding. See State v. Adams, 345
N.C. 745, 748, 483 S.E.2d 156, 157 (1997) (“The filing of a
petition alleging abuse and neglect commences a civil proceeding”).
The Fifth Amendment of the United States Constitution provides that
no person “shall be compelled in any criminal case to be a witness
against himself.” (Emphasis added.) By its own terms, the Fifth
Amendment applies only to criminal cases.
In our legal system, a criminal defendant is entitled under
the Fifth Amendment, “as incorporated by the Fourteenth Amendment,
to remain silent and to refuse to testify.” State v. Ward, 354
N.C. 231, 250, 555 S.E.2d 251, 264 (2001); N.C. Const. art. I, §
23. To ensure these rights, the United States Supreme Court
developed procedural safeguards to protect a person's right not to
be compelled to incriminate himself under the Fifth Amendment.
Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 706-07. These Miranda
warnings are required when a criminal defendant is subjected to a
custodial interrogation, and failure to give the required warnings
prior to interrogation precludes admission of statements obtained
during the interrogation. See State v. Young, 65 N.C. App. 346,
348, 309 S.E.2d 268, 269 (1983).
Generally, Miranda applies only when the defendant is subject
to a criminal proceeding. 2 Wayne R. LaFave, Criminal Procedure §6.10(e), at 625-26 (2d ed. 1999). Because a juvenile abuse and
neglect proceeding is a civil proceeding, we hold that Miranda is
inapplicable. See State v. Adams, 345 N.C. 745, 483 S.E.2d 156
(holding defendant's Sixth Amendment right to counsel, which
applies only to criminal cases, did not attach when juvenile
petition for abuse and neglect was filed).
We acknowledge the mother's argument that because an abuse and
neglect proceeding can result in removal of a child from a parent's
custody, a parent's constitutionally protected interest is at
stake. However, the common thread running throughout the Juvenile
Code, § 7B-100 et seq., is that the court's primary concern must be
the child's best interest. See In re Shue, 63 N.C. App. 76, 81,
303 S.E.2d 636, 639 (1983), modified, 311 N.C. 586, 319 S.E.2d 567
(1984). When determining the best interest of a child,
any evidence which is competent and relevant
to a showing of the best interest of that
child must be heard and considered by the
trial court, subject to the discretionary
powers of the trial court to exclude
cumulative testimony. Without hearing and
considering such evidence, the trial court
cannot make an informed and intelligent
decision concerning the best interest of the
child.
In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574.
Here, the child's interest in being protected from abuse and
neglect is paramount. While the mother is not prevented from
attempting to suppress her statement to Officer Batchelor in any
subsequent criminal proceeding, the mother is barred from doing so
in this civil proceeding where the protection of the child's
interests, as distinguished from the mother's interests, is theoverriding consideration. See Price v. Howard, 346 N.C. 68, 72,
484 S.E.2d 528, 530 (1997) (a parent's well-established
constitutional “interest in the custody and care of the child is
balanced against the state's well-established interest in
protecting the welfare of children”).
Additionally, we note the mother's contention that G.S. § 7A-
631 applies to protect her right against self-incrimination.
Section 7A-631 provided that the trial court in an adjudicatory
hearing shall protect a parent's privilege against self-
incrimination, inter alia; however, § 7A-631 was repealed effective
1 July 1999. 1998 N.C. Sess. Laws ch. 202, § 5. Here, the events
surrounding Jakel's injuries and the trial all transpired after 1
July 1999. Hence, we are not persuaded by the mother's argument.
Nevertheless, even assuming arguendo that Miranda applies
here, we still hold that the mother's statement is admissible
because the mother is not a criminal defendant in this proceeding,
she was not in custody when she gave the statement, and the
statement was voluntarily given. Prior to the adjudicatory
hearing, the mother filed a motion to suppress her statement to
Officer Batchelor on the grounds that her Miranda rights were
violated and the statement was “involuntary and coerced.” After a
voir dire hearing on the motion, the trial court denied the motion
to suppress and found that the mother “voluntarily gave” the
statement and concluded that “[l]ooking at the totality of the
circumstances . . . I am going to allow the statement in.” This Court's review of a trial court's denial of a motion to
suppress in a criminal proceeding is strictly limited to a
determination of whether the court's findings are supported by
competent evidence, even if the evidence is conflicting, and in
turn, whether those findings support the court's conclusions of
law. See State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d
892, 893 (1993); see also State v. Buchanan, 353 N.C. 332, 336, 543
S.E.2d 823, 826 (2001). The review here, assuming arguendo that
Miranda applies, should be no less stringent.
On appeal, the mother first argues that the trial court erred
in failing to find whether she was “in custody.” The appropriate
inquiry in determining whether a defendant is “in custody” for
purposes of Miranda is, based on the totality of the circumstances,
whether there was a “formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.” Buchanan,
353 N.C. at 339, 543 S.E.2d at 828.
Our review of the record shows that on 27 January 2000,
Officer Batchelor telephoned the mother and asked her to come to
the police station. The mother agreed and voluntarily drove
herself there. Once she arrived, Officer Batchelor took her to his
office for questioning. During the questioning, the mother again
denied harming Jakel. Then, in the mother's presence, Officer
Batchelor asked another officer to pick up the father and bring him
in for questioning. When the father arrived, the mother was
accompanied by an officer to a neighboring building where she wasleft by herself in an unlocked room. During his questioning, the
father again denied harming Jakel.
After questioning the father, Officer Batchelor went to the
neighboring building to accompany the mother back to his office.
While walking back to the office, the mother saw the father getting
into a police squad car. During her subsequent questioning, the
mother started crying and gave a statement to Officer Batchelor,
which he reduced into writing and she signed, admitting that she
injured Jakel by non-accidental means.
We recognize that the mother presented testimony that Officer
Batchelor used duress, coercion, and harassment to obtain her
statement. However, Officer Batchelor testified and denied the
mother's claims. “If there is a conflict between the state's
evidence and defendant's evidence on material facts, it is the duty
of the trial court to resolve the conflict and such resolution will
not be disturbed on appeal.” State v. Chamberlain, 307 N.C. 130,
143, 297 S.E.2d 540, 548 (1982). Here, the trial court resolved
the conflict by finding the mother's testimony about alleged
duress, coercion, and harassment not credible.
Accordingly, we conclude that based on the totality of the
circumstances the mother was not subjected to a “formal arrest or
restraint on freedom of movement of the degree associated with a
formal arrest.” In fact, the mother admitted on two occasions
during her voir dire testimony that she believed that she was free
to leave the police station at any time. Since the mother did not
argue custody below and competent evidence supports the fact thatthe mother was not “in custody,” we conclude that the trial court
did not err in failing to make explicit findings on the custody
issue. See State v. Hicks, 79 N.C. App. 599, 601, 339 S.E.2d 806,
808 (1986) (“Where the court's decision is clear from the record,
the absence of a formal ruling is not prejudicial”).
The mother next argues that the trial court erred in denying
her motion to suppress the statement based on voluntariness. The
test to determine the admissibility of a defendant's confession
under Miranda is whether the confession is voluntary under the
totality of the evidence in the case. See State v. Leak, 90 N.C.
App. 351, 354, 368 S.E.2d 430, 432 (1988). Here, competent
evidence in the record reflects that based on the totality of the
evidence the mother voluntarily drove herself to the police station
and voluntarily gave the statement. Accordingly, we conclude that
the trial court's findings are supported by competent evidence and
those findings support the court's conclusions in denying the
motion to suppress.
In the parents' remaining assignments of error, the father and
the mother contend that there was insufficient evidence to support
certain findings of fact and conclusions of law of the trial court.
After careful review, we disagree.
Allegations of abuse and neglect must be proven by clear and
convincing evidence. See G.S. § 7B-805. “A proper review of a
trial court's finding of [abuse and] neglect entails a
determination of (1) whether the findings of fact are supported by
'clear and convincing evidence,' and (2) whether the legalconclusions are supported by the findings of fact.” In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
(citations omitted). “In a non-jury [abuse and] neglect
adjudication, the trial court's findings of fact supported by clear
and convincing competent evidence are deemed conclusive, even where
some evidence supports contrary findings.” In re Helms, 127 N.C.
App. 505, 511, 491 S.E.2d 672, 676 (1997). “Our review of a trial
court's conclusions of law is limited to whether they are supported
by the findings of fact.” Id.
Here, the parents argue that the evidence was insufficient to
support the following findings of the trial court: (1) that the
“parents were unable to reconstruct for social worker Kendra
Holley, law enforcement, and medical personnel with consistent
credible information who cared for [Jakel] during that three month
period, which given the child's young age the court finds
incredible;” (2) that the parents could not construct for the court
a scenario whereby Jakel could have sustained such serious physical
injuries; (3) that the manner in which the parents sought out care
for Jakel was negligent, reckless, and inconsistent with the proper
care and nurturing of an infant Jakel's age; (4) that Jakel did not
receive proper care from his parents and lived in an environment
injurious to his welfare; (5) that given Jakel's age, the nature of
his injuries, and the volatile relationship between the parents,
the father knew or should have known, and created or allowed to be
created, a substantial risk of serious physical injury to Jakel by
other than accidental means; (6) that the father knew or shouldhave known that Jakel was in need of medical attention; (7) that on
the day Jakel was admitted to the hospital, the mother did not
immediately seek medical attention but rather visited with
relatives for four hours before taking Jakel for medical care; (8)
that the mother inflicted upon Jakel serious physical injury by
other than accidental means; (9) that the mother freely and
voluntarily, without coercion, gave a statement to law enforcement
admitting that she had shaken Jakel too hard and that she never
told doctors that she had injured Jakel; and (10) that in light of
her admission, the mother failed to give medical personnel
sufficient information to make medical decisions regarding Jakel.
Additionally, the parents object to the court's conclusions of law
that Jakel was abused and neglected within the meaning of G.S. §§
7B-101(1)a, 7B-101(1)b, and 7B-101(15). After a careful review of
the record, we conclude that the parents' arguments are without
merit.
While there may be some evidence in the record that might
support contrary findings, the whole record presents clear,
convincing, competent evidence to support the trial court's
ultimate findings, and the trial court's findings support its
conclusions. Here, the parents stipulated at the adjudicatory
hearing that “there are days, and . . . even weeks, where the
investigation will not be able to answer . . . who had possession
[of Jakel] other than the days [social worker Holley] indicated.”
Furthermore, as evidenced in DSS reports, social worker Holley's
testimony, Officer Batchelor's testimony, Dr. Rebecca Coker'stestimony, and Jakel's medical records, the parents failed to
furnish a detailed account or proper medical history to credibly
explain Jakel's injuries.
Moreover, the record reflects that Jakel was three months old
when he was admitted to the hospital; that the father, the mother,
and Jakel lived in the same residence; that the father and the
mother had a volatile relationship and were involved in multiple
arguments; that both parents were aware that Jakel had a medical
condition; that on 6 December 1999, the father was contacted and
notified that Jakel “stiffened up like he wasn't breathing;” that
the father took Jakel to the hospital; that on 3 January 2000 the
father and the mother took Jakel to the emergency room because
Jakel “stiffen[ed] up and was crying almost inconsolably;” that
after several hours the parents left the emergency room without
Jakel being seen by medical personnel because they were “tired of
waiting;” that neither parent obtained later treatment for Jakel
after the 4 January visit; that on 6 January 2000 Jakel had two
seizures; that the mother visited with relatives for four hours
before taking Jakel to the hospital; that the nature of Jakel's
injuries was serious; and that Jakel's injuries had been inflicted
over a period of time as shown by their different stages of
healing. This clear and competent evidence supports the trial
court's findings. Additionally, the remaining findings regarding
the mother's statement to police and the mother's non-accidental
injuring of Jakel, which we discussed in depth above, are supported
by ample clear, convincing, competent evidence in the record. Accordingly, we hold that there was sufficient competent evidence
to support the trial court's ultimate findings of fact. We also
hold that the trial court's findings support its conclusions that
Jakel was abused and neglected within the meaning of G.S. §§ 7B-
101(1)a, 7B-101(1)b, and 7B-101(15).
We have considered the father's argument that the evidence was
insufficient to support the findings and conclusions that he
abused, neglected, or negligently provided care for Jakel.
However, there is competent evidence showing that the father lived
in the same residence with Jakel; that the father knew his son had
a medical condition; that the father took Jakel to the hospital;
that the father left the hospital on a second occasion without
Jakel being seen; that the father did not obtain subsequent medical
treatment for his son; and that Jakel's injuries were serious and
had been inflicted over a period of time. “In general, treatment
of a child which falls below the normative standards imposed upon
parents by our society is considered neglectful.” In re Thompson,
64 N.C. App. 95, 99, 306 S.E.2d 792, 794 (1983). Moreover, “[i]t
is settled law that nonfeasance as well as malfeasance by a parent
can constitute neglect.” In re Adcock, 69 N.C. App. 222, 224, 316
S.E.2d 347, 348 (1984). Here, evidence of the father's nonfeasance
supports the court's findings and conclusions as to him.
Finally, the mother argues that the evidence was insufficient
to support certain findings of fact and conclusions of law in the
trial court's dispositional order. At the disposition stage, the
trial court solely considers the best interests of the child. SeeIn re Dexter, ___ N.C. App. ___, ___, 553 S.E.2d 922, 924 (2001);
see also G.S. § 7B-1110. “Nonetheless, facts found by the trial
court are binding absent a showing of an abuse of discretion.” Id.
at ___, 553 S.E.2d at 924-25. Here, we conclude that the trial
court did not abuse its discretion, and there is sufficient
evidence to support the trial court's findings and conclusions on
disposition.
In sum, we hold that a parent is prevented from invoking
Miranda in a civil juvenile abuse and neglect proceeding. Here,
even assuming arguendo that Miranda applies, we conclude that the
trial court made appropriate findings of fact and conclusions of
law in ruling that the mother's rights under Miranda were not
violated. Additionally, we hold that the trial court's findings of
fact are supported by clear, competent evidence in the record, and
the trial court's findings support its conclusions. Thus, we
affirm the trial court's adjudication and disposition in this
matter.
Affirmed.
Judges CAMPBELL and SMITH concur.
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