An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1224


Filed: 17 August 2004

IN THE MATTER OF:                Catawba County
    B.E.L.                    No. 02 J 088
    N.D.                        No. 02 J 324

    Appeal by respondent from orders entered 16 April 2003 by Judge Robert M. Brady in District Court, Catawba County. Heard in the Court of Appeals 26 May 2004.

    J. David Abernethy for petitioner-appellee.

    Michael E. Casterline for respondent-appellant.

    McGEE, Judge.

    Catawba County Department of Social Services (DSS) filed a petition on 22 March 2002 alleging that B.E.L. was abused and neglected by his parents, L.K.D. (respondent mother) and M.C.L. (father) (collectively the parents). Also on that same date, an order was entered whereby B.E.L. was placed in nonsecure custody with DSS until 26 March 2002. In a memorandum of agreement and order entered 26 March 2002, the parents consented to continue nonsecure custody until 9 April 2002. In orders filed 9 April 2002, 23 April 2002, 5 August 2002, and 10 September 2002, the parents repeatedly consented to continue nonsecure custody. At a 10 December 2002 hearing, the parents again consented to continue nonsecure custody until the adjudication hearing scheduled for 23 January 2003.    DSS filed a petition on 4 December 2002 alleging that N.D. was neglected and dependent. On that same date, N.D. was placed in nonsecure custody with DSS. At a hearing on 17 December 2002, the parents consented to continue nonsecure custody until 7 January 2003. In an order filed 7 January 2003, the parents again consented to continue nonsecure custody until the adjudicatory hearing scheduled for 23 and 24 January 2003. In various orders filed between 27 January 2003 and 28 February 2003, the parents consented to the continued nonsecure custody of both B.E.L. and N.D. (collectively the children) until the adjudication hearing scheduled for 12 and 13 March 2003.
    In an order filed 16 April 2003, B.E.L. was adjudicated abused and neglected pursuant to N.C. Gen. Stat. § 7B-101(1) and (15) and reunification efforts with the parents were ordered to cease. In a separate but consolidated order filed 16 April 2003, N.D. was adjudicated neglected pursuant to N.C. Gen. Stat. § 7B-101(15) and reunification efforts with the parents were ordered to cease. Respondent appeals from these two orders.
    The evidence before the trial court tended to show that B.E.L. was born on 7 January 2002 to respondent and M.C.L. Respondent testified that B.E.L. stayed with his paternal grandmother from Saturday, 9 March 2002, from around 9:30 or 10:00 a.m., until respondent picked him up on Sunday afternoon, 10 March 2002. However, we note that the grandmother's testimony conflicts in that she claims she only had B.E.L. in her care until Saturday afternoon. Respondent further testified that B.E.L. woke up "a lotmore than usual" on Sunday night, 10 March 2002. B.E.L. stayed with his father from 9:00 or 10:00 a.m. on Monday, 11 March 2002 until respondent returned home around 2:15 p.m. that afternoon. When respondent returned home, B.E.L. was "screaming and crying whenever [she] came in." Respondent described B.E.L.'s cry as distinctive and she could tell he was in pain. B.E.L.'s father said he did not know why B.E.L. was crying and respondent thought something was wrong with B.E.L.'s arm. Respondent took B.E.L. to the local emergency room where he was diagnosed with "irritability." Respondent had also noticed a "slight twitch," but this was not the reason she took B.E.L. to the emergency room.
Respondent took B.E.L. home and he "cried all night long" and would not take a bottle. Respondent noticed that B.E.L. was "twitching really bad" the next morning, and she took him to Catawba Pediatrics where they diagnosed him with a subdural hematoma. B.E.L. was taken to the local hospital for an MRI on his head and was then transferred to Carolinas Medical Center. Respondent testified that she did not know how the injury happened. However, she did testify that she thought B.E.L.'s grandfather was responsible because the grandfather hated B.E.L.'s father.
Dr. James H. Parrott (Dr. Parrott), a child neurologist, testified that he examined B.E.L. at the local hospital on 12 March 2002 when B.E.L. presented with seizures. He testified that B.E.L. had "a large subdural hematoma" and that the evidence indicated that "[s]haken baby [syndrome]" was the "most common cause" of B.E.L.'s injuries. On cross-examination, Dr. Parrott testifiedthat the injury likely occurred the day before he examined B.E.L.     Dr. Laura Noonan (Dr. Noonan), a general pediatric faculty member at Carolinas Medical Center with extra training in child abuse , testified that B.E.L. suffered from a life-threatening severe closed head injury. She testified that "substantial force" was required to cause this injury but that she could not specify exactly what caused B.E.L.'s injury. However, Dr. Noonan testified that a shake injury was a possibility.
Other witnesses who testified included Phillip A. Borrero (Borrero), a child protective investigator with DSS, and Betsy Stewart (Stewart), a child abuse investigator with DSS. Borrero testified about his interviews with respondent and M.C.L. Stewart testified that she interviewed the parents at the local hospital on 12 March 2002 after receiving a call that the hospital suspected shaken baby syndrome.
The evidence regarding N.D. showed that he was born to respondent and M.C.L. on 30 November 2002. DSS took custody of N.D. at the hospital after his birth. Thus, N.D. has never been in the care of his parents. DSS presented two witnesses, Janine Szymanski (Szymanski), a staff psychologist with Mental Health Services of Catawba County, and Elaine Duff (Duff), a child protective service investigator with DSS.
    Szymanski testified that she performed a psychological evaluation on respondent. She testified that respondent experienced clinically significant depression and anxiety and that respondent reported suicidal ideations. Szymanski was asked, basedon her three-hour evaluation and testing, whether respondent had "the capability to appropriately parent [N.B.]" She responded that it was "not likely." In Szymanski's written report of respondent's psychological evaluation, Szymanski concluded that respondent "is likely to need significant support in order to learn and implement skills to ensure the health and safety of her son." Szymanski further concluded that respondent "is not likely to have the emotional or physical energy needed to attend to the needs of her son" and that she "is likely to find it difficult to mobilize the psychological and physiological energy needed to fulfill her parenting responsibilities."
    Duff testified that after N.D.'s birth, she went to the hospital and discussed with respondent preparations for N.D. to go home. She testified that there was a crib or playpen at the home that had not been set up and that there were no other plans for N.D.'s care. Respondent's sister testified on behalf of respondent that respondent was a "wonderful mother."
Respondent first argues in assignment of error number one that the trial court erred in concluding that B.E.L. was abused. Respondent's argument is based on the assertions that there was insufficient evidence of intentional injury and the trial court did not determine what had happened to the child. For the reasons stated below, we find respondent's argument unpersuasive.
        When an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines the evidence to determine whether there exists clear, cogent and convincing evidence to support the findings. If there is competent evidence, thefindings of the trial court are binding on appeal. Such findings are moreover conclusive on appeal even though the evidence might support a finding to the contrary.

In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (citations omitted).
    N.C. Gen. Stat. § 7B-101 defines an abused juvenile as one whose parent "[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means[.]" N.C. Gen. Stat. § 7B-101(1) (2003). Allegations of abuse and neglect must be proven by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2003). See also In re Pittman, 149 N.C. App. 756, 763, 561 S.E.2d 560, 566, disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003). In this case, respondent argues error because the trial court was unable to specify which parent engaged in the conduct that resulted in B.E.L.'s injury. Rather, the trial court made the following findings of fact:
        2.    On or about March 12, 2002, the minor child (infant) was found to have a subdural hematoma on the left side of his skull and to have seizure activity. The explanations provide[d] by the parents for possible injury to the infant are inconsistent with the injury that the child has suffered.

        3.    The Court has heard various explanations or possibilities of how the injury to the minor child could have occurred. None of the possible scenarios offered by either parent through interviews with law enforcement and through interviews with Child Protective Services investigators or provided to Physicians is logical and is inconsistent with the clear medical conclusion drawn by Dr. Noonan and theChild Abuse Team at Carolina[s] Medical Center.

        4.    The Court is of the opinion, and so finds with emphasis added, that both of the Respondents know what happened to this child.

        5    The Court cannot find by the evidence presented which parent specifically engaged in the conduct that resulted in the severe cerebral injury to the child.

        6.    The Court finds a lot of the testimony of the Respondent Mother was not credible.

        7.    The Court is of the opinion, and so finds, that the Mother knows what happened to the child and when and is not being candid with the Court, Doctors or Investigators. The Court bases this on a number of factors but specifically the number of stories the Mother told over a period of time, including, but not limited to her observations of the child, the nature of the child and the child having a broken arm, twitching, throwing up blood. The Mother has told various stories at various times.

        8.    The Court finds that any possible explanations or scenarios that included a time period prior to Monday, March 11, 2002 is completely inconsistent with the medical testimony.

        9.    The Court finds that from the tests of Dr. Parrott and Dr. Noonan that this injury did not occur with the Respondents slamming on their brakes in the car and the car seat moving. This injury did not occur as a result of the Mother laying the baby down hard on the sofa. The lapse of time between these incidents and the child's injuries was too great.

        10.    The Court finds that there is likelihood that because the reporting to the medical personnel was not accurate on Monday, March 11, 2002, that the injury was exacerbated by a greater than necessary delay before appropriate treatment wasrendered.

        11.    The minor child was injured by other th[a]n accidental means and the minor child was injured while in the care of one or both parents.
    As stated above, under N.C. Gen. Stat. § 7B-101(1), a child is considered abused if a parent "[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means[.]" In the case before us, the trial court concluded that B.E.L. was abused within the meaning of this definition. Although the trial court did not make a specific finding that respondent abused B.E.L., the findings the trial court did make support the conclusion that B.E.L. was abused. Specifically, in finding number eleven, the trial court found that B.E.L. was injured by other than accidental means while in the care of one or both of his parents. Further, in finding number five, the trial court found that it could not determine which of B.E.L.'s parents inflicted the injury. However, the implication from the combination of these findings is that one of B.E.L.'s parents inflicted the injury he suffered. This is all that is required for a trial court to adjudicate a child abused under N.C. Gen. Stat. § 7B-101(1). Accordingly, we overrule this argument.
    Respondent next argues in assignment of error number two that the trial court erred in concluding that N.D. was neglected when the only evidence to support neglect was the order adjudicating N.D.'s older sibling, B.E.L., to be abused and neglected. Respondent essentially argues that there is no evidence that she and M.C.L. failed to provide proper care for N.D. since the childnever lived with them. Respondent asserts that N.D.'s alleged neglect was "premised entirely on the parents' actions which occurred prior to the birth of this child."
    A neglected juvenile is defined as one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker[.]" N.C. Gen. Stat. 7B-101(15) (2003). In addition, in order to adjudicate a juvenile neglected, "this Court has consistently required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide 'proper care, supervision, or discipline.'" In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (quoting N.C. Gen. Stat. [§ 7B-101(15)]). See also In re McLean, 135 N.C. App. 387, 390, 521 S.E.2d 121, 123 (1999). Furthermore, "[i]n determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home . . . where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." N.C. Gen. Stat. § 7B-101(15). "Whether a child is 'neglected' is a conclusion of law which must be supported by adequate findings of fact." McLean, 135 N.C. App. at 390, 521 S.E.2d at 123.
    In this case, the trial court made the following findings of fact:
        2.    That the Mother has substantial mental health issues that render her incapable of providing for the proper care of the minor child including, but not limited to, suicidal ideations and disassociative behaviors. The Mother has failed to meetconsistently with her therapist regarding these issues and is not taking medication as prescribed. The Mother's IQ is approximately 76. The Mother has not set up appropriate furniture to care for the minor child.

        3.    That the Court considered the hearing and subsequent Order . . . wherein the minor child's sibling was adjudicated to be abused and neglected. . . . The Court takes judicial notice of that file in the cause of the sibling and incorporates the file herein for purposes of this hearing and finds relevant the issues of abuse and neglect of the minor child's sibling in the household.

        . . . .

        6.    The Court has no doubt that the Mother and Father both love this child, however the Court finds as a fact that the Mother has significant limitations. . . . Based on . . . the Mother is co-depend[e]nt. . . . History is likely to repeat itself and the Mother will continue to associate with individuals not in her best interest and certainly not in the best interest of the minor child.

        . . . .

        9.    There is too much uncertainty and too many variables with both parents or either one to be a viable placement for the minor child. The likelihood is too high for danger to the minor child in light of the Mother and Father's psychological evaluations.

        . . . .

        11.    The Court is of the opinion that because of the posture of the case regarding the minor child's sibling, that to place this child with either parent would be inviting potential emotional and psychological and physical injury to this child as well.

    "Where the trial court sits without a jury and hears theevidence in a neglect adjudication, the facts found by the trial court are binding on an appellate court if supported by clear and convincing competent evidence." McLean, 135 N.C. App. at 394, 521 S.E.2d at 125. In the case before our Court, respondent does not take exception to any of the findings of fact made by the trial court. Respondent argues, however, that the findings made by the trial court do not support the conclusion that N.D. is a neglected juvenile. She argues that the trial court erred in basing its decision solely upon the alleged abuse of B.E.L. prior to N.D.'s birth, as evidenced by the trial court's third finding of fact stated above.
    A similar argument was made by the appellant in McLean. In McLean, the respondents were the parents of a three-month old child who died as a result of shaken baby syndrome. Id. at 388, 521 S.E.2d at 122. Subsequently, a second child was born to the respondents and the Harnett County DSS filed a petition alleging neglect "because when [the newborn] left the hospital she would be residing in the same home where [her sibling] died due to non-accidental injuries" and her sibling died while in the sole care of the respondent father. Id. As a result of the petition, DSS gained custody of the newborn and the newborn never resided with her parents. Id. at 389, 521 S.E.2d at 123.
    The appellant mother in McLean argued that it was error for the trial court to base its decision that the newborn was neglected solely on the death of the newborn's sibling prior to the newborn's birth. However, this Court overruled the respondent's argumentholding that "[b]ecause the neglect statute 'affords the trial judge some discretion in determining the weight to be given such evidence,' . . . the findings of fact taken in their entirety are sufficient to support the conclusion that [the newborn] was a neglected child." McLean, 135 N.C. App. at 396, 521 S.E.2d at 127 (quoting In re Nicholson and Ford, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)).
    As in McLean, we recognize that "[i]n cases of this sort, the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." McLean, 135 N.C. App. at 396, 521 S.E.2d at 127. Here, the trial court took judicial notice of the file in B.E.L.'s case, incorporated the file for purposes of the hearing regarding N.D., and found that the abuse and neglect of B.E.L. was relevant. The trial court had found in B.E.L.'s case that B.E.L. suffered from a subdural hematoma; that the explanations given by the parents were inconsistent with the injury B.E.L. suffered; that both parents knew what happened to B.E.L.; that B.E.L.'s injury was not accidental and that it occurred while in the care of one or both parents.
    In addition to the evidence regarding the abuse of B.E.L., as set forth in the findings of fact stated above, the trial court also found that respondent has mental health issues and that she has failed to meet consistently with her therapist and has failed to take her medication; that respondent failed to set upappropriate furniture to care for N.D.; that respondent has significant limitations; that respondent will continue to associate with persons not in her best interest or in the best interest of N.D.; that even though the parents are not living together, they remain emotionally connected to one another; that there is too much uncertainty and too many variables for either parent to provide placement for N.D.; that the trial court was concerned about the parents' lack of recognition and responsibility for the injuries to B.E.L.; and that placing N.D. with either parent would pose a risk for emotional, psychological, and physical injury to N.D. Based on these findings, the trial court concluded that N.D. was neglected and that it would be contrary to his safety, health, and welfare to be placed with either parent. We hold that the trial court's findings are adequate to support the conclusion that N.D. was a neglected juvenile within the meaning of the statute. Respondent's argument is overruled.
    Respondent last argues in assignments of error numbers three and four that the trial court erred in ordering that reunification efforts should cease when respondent had made some progress with the case plan prior to the adjudication hearing. Respondent points to the following as indications of her efforts to "improve [her] parenting skills to better meet the needs of the child": completion of a psychological evaluation and commencement of treatment, attendance of parenting classes, and completion of anger management classes. Respondent further notes that she had been visiting B.E.L., the visits had gone well, and that she had securedboth housing and employment.
    Pursuant to N.C. Gen. Stat. § 7B-507(b) (2003), "the [trial] court may direct DSS to cease reunification efforts with a parent." In re Everett, 161 N.C. App. 475, 478, 588 S.E.2d 579, 582 (2003). This statute provides that reunification efforts can be ordered to cease "if the court makes written findings of fact that: (1) Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time[.]" N.C. Gen. Stat. 7B- 507(b)(1) (2003). In both orders in the present case, the trial court made the requisite finding of fact. With regard to B.E.L., finding number twenty-five states that "[e]fforts to reunify the minor child with either parent would clearly be futile and would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time." Similarly, regarding N.D., finding number thirteen recites the appropriate statutory language about the futility of attempting to reunify N.D. with either parent.
"All dispositional orders of the trial court after abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing." In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). "A trial court's findings of fact are conclusive if supported by competent evidence in the record." In re H.W., ___ N.C. App. ___, ___, 594 S.E.2d 211, 213, disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2004). Thus, the question for our Court is whetherthese findings about ceasing reunification efforts are supported by competent evidence. For the reasons stated below, we hold that they are supported by competent evidence.
    Regarding B.E.L., evidence to support cessation of reunification efforts with the parents was as follows: that B.E.L. suffered from a subdural hematoma while in the care of one or both parents; that respondent lost a job because of anger management problems; that respondent suffers from mental illness and has problems tending to B.E.L.'s needs; and that respondent attends therapy only sporadically. In addition, the trial court specifically found as facts that respondent had been attending parenting classes and anger management groups and that respondent's visits with B.E.L. had been positive. However, the trial court weighed this evidence and concluded that reunification efforts should cease.
    Regarding N.D., there was again sufficient evidence to support the finding that reunification efforts should cease. The trial court incorporated the file from the matter involving B.E.L. In addition to the evidence from B.E.L.'s matter, there was other evidence supporting the cessation of reunification efforts including the following: that respondent suffered from mental health problems and failed to meet consistently with her therapist; that respondent was not taking her prescribed medication; that respondent had failed to set up furniture for N.D. prior to his birth; that respondent was co-dependent with significant limitations; and that respondent had a tendency to associate withindividuals not in her best interest.
    We hold that the evidence with respect to B.E.L. and N.D. is sufficient to support the findings that reunification efforts with both parents should cease. Accordingly, respondent's argument is without merit.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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