Child Abuse and Neglect--neglect--failure to distinguish between findings of fact and
conclusions of law--clear, cogent, and convincing evidence
The trial court erred in a child neglect case by adjudicating respondent mother's minor
child as neglected and dependent and the case is remanded for further proceedings, because: (1)
the order does not distinguish between findings of fact and conclusions of law and does not
reference any of the several statutory grounds for determining neglect; (2) the trial court relied
upon the adjudication of respondent's other two children as neglected in determining that the
youngest child was neglected and dependent; and (3) the fact that the order for the two older
children has been remanded for adequate findings of fact and conclusions of law means the trial
court's determination in this case is not supported by clear, cogent, and convincing evidence.
Pitt County Legal Department, by Janis Gallagher, for
petitioner-appellee Pitt County Department of Social Services.
Wanda Naylor for Guardian ad Litem.
Gaylord, McNally, Strickland & Holscher, by Emma Holscher, for
respondent-appellee Octavious Matthews.
Terry F. Rose for respondent-appellant Erica Moore.
HUNTER, Judge.
E.M., the mother of T.M., appeals from the trial court's order
adjudicating T.M. neglected and dependent on 2 April 2003. T.M.
was born on 12 June 2002 and was removed from his mother's care the
next day. A petition alleging T.M. was a neglected and dependent
juvenile was filed on 13 June 2002 and amended on 18 June 2002.
The adjudication and disposition hearing was held on 6 March 2003. At the hearing, the Pitt County Department of Social Services
(“DSS”) asked the court to take judicial notice of court orders and
evidence submitted in the matters of T.S. and S.M., the older
siblings of T.M. After taking judicial notice, the trial court
adjudged T.M. neglected and dependent and “adopt[ed] the findings
in the orders entered by the judges” in the prior orders. After
the written order was filed on 2 April 2003, the mother appealed.
T.S. and S.M. had been adjudicated neglected on 22 January
2002 and custody had been granted to DSS. The mother appealed the
22 January 2002 order. On 20 April 2004, this Court rendered an
opinion in In re T.S., 163 N.C. App. 783, 595 S.E.2d 239 (2004)
(unpublished) in which we held: “[T]his Court remands the case to
the trial court 'with instructions to make ultimate findings of
fact based on the evidence and to enter clear and specific
conclusions of law based on the findings of fact.'” Id. (quoting
In re Gleisner, 141 N.C. App. 475, 480-81, 539 S.E.2d 362, 366
(2000)) In our analysis, we stated:
When reviewing an adjudication of
neglect, our Court must determine whether the
trial court's findings of fact are supported
by clear and convincing evidence and whether
the trial court's conclusions of law are
supported by those findings of fact. In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d
362, 365 (2000). In the case before us, the
trial court's order did not distinguish
between findings of fact and conclusions of
law, thus hindering the ability of this Court
to conduct a review of the trial court's
reasoning in determining the children were
neglected. Id. at 480-81, 539 S.E.2d at 366.
The better practice would have been for the
trial court to distinguish its findings of
fact from its conclusions of law so that this
Court could conduct a meaningful review.
After determining what appears to be the
trial court's conclusions of law, we find that
the trial court summarily declared the
children to be neglected, but made no
reference to the statutory basis for its
conclusion, nor did it cite any one incident
or a series of incidents as a basis for its
determination of neglect. N.C.G.S. §
7B-101(15) provides several grounds for
determining neglect; however, the trial court
made no reference to the statutory grounds.
In re T.S., 163 N.C. App. 783, 595 S.E.2d 239.
Similarly, the order in this case does not distinguish between
findings of fact and conclusions of law and does not reference any
of the several statutory grounds for determining neglect.
Moreover, the trial court relied upon the adjudication of T.S. and
S.M. as neglected in determining T.M. was neglected and dependent.
Specifically, the trial court stated in its order: “19. That the
court had previously found by clear, cogent and convincing evidence
that respondent mother was unable to provide a safe and appropriate
home her two other children; and respondent mother provided no
other appropriate, alternative plan of care for this juvenile.”
The trial court also incorporated the contents of the juvenile
files regarding T.S. and S.M. into its order and included several
facts from the 22 January 2002 order in the order at issue in this
case. As this Court has determined the 22 January 2002 order was
deficient because it did not contain ultimate findings of fact and
specific conclusions of law, we conclude the trial court's
determination that T.M. was neglected and dependent, based upon an
order which has been remanded for adequate findings of fact and
conclusions of law, is not supported by clear, cogent and
convincing evidence. Moreover, we conclude that several of theproblems identified by this Court in its 20 April 2004 opinion in
In re T.S., are present in the trial court's order in this case.
Specifically, the order does not distinguish between the findings
of fact and conclusions of law and the trial court does not
reference any of the statutory grounds for a neglect determination.
Accordingly, we remand for further proceedings consistent with this
opinion.
Remanded.
Judges WYNN and THORNBURG concur.
Judge Thornburg concurred in this opinion prior to 31 December
2004.
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