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.
Affirmed.
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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