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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF P.M.
Filed: 5 April 2005
1. Appeal and Error--preservation of issues--failure to argue in brief
Although respondent specifically assigned error to three findings of fact, respondent
abandoned her appeal of those findings of fact because she failed to specifically argue in her
brief that they were unsupported by evidence. N.C. R. App. P. 28(b)(6).
2. Child Abuse and Neglect--neglect--lives in home where another juvenile subjected to
The trial court did not err in a child abuse, neglect, and dependency case by concluding
that the minor child was neglected as defined by N.C.G.S. § 7B-101(15), because: (1) the minor
child lives in a home where another juvenile has been subjected to neglect by an adult who
regularly lives in the home, and the weight to be given this factor is a question for the trial court;
and (2) the trial court found the historical facts of the case included the fact that respondent had
twice violated court-ordered protection plans with DSS, once after her four other children had
already been removed from her custody, and was failing to take responsibility for harm that
befell her children as a result of her conduct.
3. Child Abuse and Neglect--dependency--availability of alternative childcare
The trial court erred in a child abuse, neglect, and dependency case by concluding that
the minor child was dependent as defined under N.C.G.S. § 7B-101(9), because the trial court
failed to address the availability of appropriate alternative childcare arrangements.
Appeal by respondent from judgment entered 3 October 2003 by
Judge R. Les Turner in Wayne County District Court. Heard in the
Court of Appeals 4 November 2004.
E.B. Borden Parker for petitioner-appellee.
Susan J. Hall for respondent-appellant.
Respondent mother appeals from an order of the trial court
adjudicating her son P.M. to be neglected and dependent. We hold
that the trial court's findings of fact support its conclusion thatP.M. is neglected, but that they are insufficient to establish
dependency because the court failed to address the availability of
appropriate alternative childcare arrangements. We, therefore,
affirm in part, reverse in part, and remand for further
In a non-jury adjudication of abuse, neglect, and dependency,
"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). This Court reviews the
trial court's conclusions of law to determine whether they are
supported by the findings of fact. Id.
 An appellate court's review of the sufficiency of the
evidence is limited to those findings of fact specifically assigned
as error. See Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d
260, 266 ("A single assignment [of error] generally challenging the
sufficiency of the evidence to support numerous findings of fact .
. . is broadside and ineffective" under N.C.R. App. P. 10.), disc.
review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Since
respondent specifically assigned error to only three of the trial
court's findings of fact, the remaining findings of fact are
binding on this Court. Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding
of fact by the trial court, the finding is presumed to be supported
by competent evidence and is binding on appeal."). Even as to those three findings, respondent has failed to
specifically argue in her brief that they were unsupported by
evidence. She has, therefore, abandoned her appeal of those
findings of fact. N.C.R. App. P. 28(b)(6) ("Assignments of error
not set out in the appellant's brief, or in support of which no
reason or argument is stated or authority cited, will be taken as
abandoned."). Accordingly, our review in this case is limited to
determining whether the trial court's findings of fact support its
conclusions of law that P.M. is a neglected and dependent child.
Respondent is the mother of P.M., who was born 6 June 2003.
P.M.'s father was, at the time of the hearing, incarcerated in the
Department of Correction and facing additional charges. Respondent
is also the mother of four other children, including three
daughters and one son. In other proceedings, respondent was found
to have neglected those four children.
(See footnote 1)
The daughters are now in
the custody of their paternal grandparents and the son, who has a
different father, is in the custody of his paternal grandmother.
Prior to the birth of P.M., P.M.'s father sexually abused one
of respondent's daughters after respondent allowed him to be in the
presence of that daughter, in violation of a safety plan with the
Department of Social Services ("DSS") that prohibited the fatherfrom having contact with that daughter. A psychologist who
evaluated respondent after that event concluded that respondent had
failed to take responsibility for the consequences of her failing
to care for her four children.
On 9 July 2003, a month after the birth of P.M., DSS filed a
petition alleging that P.M. was neglected and dependent based on
the prior adjudications as to respondent's other children and her
current lack of insight into the harm suffered by those children.
Custody, however, remained with respondent after she and DSS
entered into a protection plan providing that respondent's mother
would always be in the home with respondent and P.M. in order to
provide supervision of the care of P.M. Following a pre-
adjudication conference, the trial court entered an order reporting
that DSS had requested that custody of P.M. be placed with
respondent's mother. After finding "[t]hat a protection plan had
been previously agreed to by [respondent] wherein she would have
[her mother] in her presence when the juvenile was in her
presence," the trial court concluded "[t]hat the best interest of
the juvenile will be promoted and served by leaving custody of the
juvenile with [respondent] but the plan should be followed
Subsequently, respondent's mother left respondent's home. In
violation of the plan and the prior order, respondent did not
notify DSS or make arrangements for any other person to be in the
home to assist her and monitor her care of P.M. As a result, DSS
prepared a report recommending that the court consider "changingcustody and placement of [P.M.] if [respondent] continues to
violate the court orders."
On 4 September 2003, Judge R. Les Turner conducted an initial
adjudication hearing attended by both respondent and P.M's father.
On 3 October 2003, the trial court entered an order that
adjudicated P.M. as dependent and neglected. The court placed
custody of P.M. with DSS, but authorized DSS "to leave the juvenile
in the home of the mother provided that an appropriate caretaker
will be in the home of the mother at all times to monitor the care
that the mother gives the juvenile." The court required that this
"caretaker" must be "someone approved by the Wayne County
Department of Social Services." Respondent mother has appealed
from this order.
 Respondent first challenges the trial court's
determination that P.M. is a neglected child. Respondent points
out that the trial court found "[t]hat no one testified that the
juvenile was not healthy and no one testified that the juvenile
appeared not to be well cared for." The court nonetheless found
that P.M. was neglected because "he resides in the home where
siblings and half-siblings have been determined to be abused and or
neglected . . . ."
N.C. Gen. Stat. § 7B-101(15) (2003) defines a neglected
A juvenile 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 providednecessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
(Emphasis added.) Respondent argues that the italicized language
does not apply because P.M.'s father, who committed the abuse, does
not reside in the home with P.M. Respondent, however, overlooks
the fact that a court determined that she neglected her four other
children. Accordingly, P.M. "lives in a home where another
juvenile has been subjected to . . . neglect by an adult who
regularly lives in the home." Id.
Respondent also argues that the prior adjudications are
insufficient to support a conclusion of neglect. In considering
the identically-worded predecessor statute, this Court held,
however, that while this language regarding neglect of other
children "does not mandate" a conclusion of neglect, the trial
judge has "discretion in determining the weight to be given such
evidence." In re Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852,
854 (1994). Since the statutory definition of a neglected child
includes living with a person who neglected other children and
since this Court has held that the weight to be given that factor
is a question for the trial court, the court, in this case, was
permitted, although not required, to conclude that P.M. was
neglected. In In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d121, 127 (1999), this Court explained: "In 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."
Here, as the trial court found, the historical facts of the
case included the fact that respondent had twice violated court-
ordered protection plans with DSS _ once after her four other
children had already been removed from her custody _ and was
failing to take responsibility for harm that befell her children as
a result of her conduct. We hold that these findings of fact taken
in their entirety are sufficient to support the conclusion that
P.M. is a neglected child. See In re E.N.S., 164 N.C. App. 146,
150, 595 S.E.2d 167, 170 (affirming conclusion of neglect "based
primarily on events that took place before [the child's] birth, in
particular, the circumstances regarding respondent's oldest child
being adjudicated neglected and dependent" and a subsequent failure
to demonstrate stability), disc. review denied, 359 N.C. 189, 606
S.E.2d 903 (2004).
 The mother also contends that the trial court erred in
concluding that P.M. is a dependent child. A dependent child is
defined as "[a] juvenile in need of assistance or placement because
. . . [the juvenile's] parent, guardian, or custodian is unable to
provide for the care or supervision and lacks an appropriate
alternative child care arrangement." N.C. Gen. Stat. § 7B-101(9)(2003). Under this definition, the trial court must address both
(1) the parent's ability to provide care or supervision, and (2)
the availability to the parent of alternative child care
We hold the trial court did not make sufficient findings to
support its conclusion that P.M. was a dependent child. In this
case, the trial court found that: " the juvenile is dependent based
on the fact that he does not have a parent who is capable of
properly caring for him in that his father is incarcerated and his
mother does not comply with Court ordered protection plans set out
for the protection of the juvenile." Although a failure to comply
with court-ordered protection plans may establish an inability to
care for or supervise a child if the plans were adopted to ensure
proper care and supervision of the child, the trial court never
addressed the second prong of the dependency definition. The trial
court made no finding that respondent lacked "an appropriate
alternative child care arrangement." We observe that an earlier
order in this case stated that respondent's mother "was willing to
take custody of the juvenile to keep the juvenile from going into
Accordingly, we affirm the trial court's conclusion that P.M.
is a neglected child. We reverse, however, as to the conclusion
that P.M. is a dependent child and remand for further findings of
fact on that issue.
Affirmed in part, reversed in part, and remanded.
Judges TIMMONS-GOODSON and TYSON concur.
Although the record contains extensive evidence regarding the
abuse and neglect of the children, the trial court did not make any
findings of fact regarding that evidence.
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