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1. Appeal and Error--appealability--mootness
Although respondent mother contends the trial court abused its discretion by denying the mother's motion to dismiss the charge of child abuse at the close of petitioner's evidence, this argument is moot because: (1) the trial court dismissed the abuse allegation at the close of all evidence and the issue of whether the trial court should have dismissed the abuse allegation at the close of petitioner's evidence will not have any practical effect on this case; (2) under N.C.G.S. § 1A-1, Rule 41(b), the trial court has the discretion to decline to rule upon a motion to dismiss until the close of all evidence.
2. Child Abuse and Neglect-_proper care and supervision--environment injurious to
Although the trial court did not err by adjudicating the minor child neglected on the grounds that he did not receive proper care and supervision from his father and lived in an environment injurious to his health, it erred by adjudicating that respondent mother neglected the child, because: (1) the trial court's finding that the child had not been appropriately cared for in the past was not supported by clear, cogent, and convincing evidence based upon the parents' habit of placing the child on the sofa without surrounding the infant with pillows or other form of restraint when the infant was unable to roll over and was not otherwise mobile during the prior instances when the parents placed him on the sofa, and further evidence indicated that the child had never missed any appointments with his pediatrician, was developing appropriately, and had no prior injuries; (2) the trial court's finding of fact that respondent was not willing to investigate the needs of the child in a safe environment is not supported by clear, cogent, and convincing evidence when in the one-week allotted time respondent provided DSS with at least four names of individuals who could potentially care for the child; (3) the trial court's findings of fact indicate that respondent was not at home when the child suffered his injuries, she was at the grocery store and summoned medical personnel upon learning of his injuries, and there was no evidence that respondent knew or reasonably should have known the father would harm the child; and (4) there were no allegations, evidence, or findings of fact related to any of the other bases for a finding of neglect as defined under N.C.G.S. § 7B-101(15).
3. Child Abuse and Neglect--dependency--parent capable of providing care and
The trial court erred by adjudicating the minor child dependent and the portion of the order adjudicating him as such is reversed, because respondent mother neither abused nor neglected the child, and thus, the child had a parent capable of providing care and supervision.
4. Child Abuse and Neglect--custody with DSS--no showing of neglect or dependency
The trial court abused its discretion by ordering the minor child's custody should remain with the Department of Social Services (DSS), because: (1) the trial court erred by finding and concluding that respondent mother neglected her son and by adjudicating the child dependent; (2) the record does not indicate that the mother was unwilling to comply with a trial court order directing that the father not have any contact with the child; and (3) at the time of the hearing, respondent was no longer residing with the father and was complying with the DSS family services case plan.
Judge LEVINSON concurring in a separate opinion.
Holland & O'Connor, by W. A. Holland, Jr. and Jennifer S.
O'Connor, for petitioner-appellee Johnston County Department
of Social Services; James D. Johnson, Jr. for Guardian ad
James R. Levinson for respondent-appellee.
Richard Croutharmel for respondent-appellant.
Respondent-mother presents the following issues for our
consideration: Whether the trial court (I) abused its discretion
in denying her motion to dismiss at the close of petitioner's
evidence; (II) erroneously adjudicated her son neglected and
dependent; and (III) abused its discretion in ordering the custody
of her son to remain with the Johnston County Department of SocialServices (hereinafter DSS). After careful review, we reverse in
part the order below.
The pertinent facts of the instant appeal are as follows: DSS filed a juvenile petition on 30 January 2004 concerning J.A.G., a three-month-old infant. In the petition, DSS alleged J.A.G. was abused, in that he had sustained serious physical injuries by other than accidental means. DSS further alleged J.A.G. was neglected, on the grounds he did not receive proper care and supervision and lived in an environment injurious to his health. The petition also alleged the child to be dependent. The trial court issued a nonsecure custody order the same day.
The case came before the trial court for adjudication on 31 March 2004. The evidence presented at the adjudication hearing tended to show that J.A.G. suffered a severe head injury while in the sole care of his father. J.A.G. had no prior injuries and there were no prior concerns regarding abuse, neglect, or dependency. At the time of his injuries, J.A.G. resided with his mother and father, who were unmarried and unemployed.
On 22 January 2004, J.A.G. was returned home at approximately 5:00 p.m. after spending the previous night with his maternal grandmother. J.A.G. was acting normally and appeared to be fine. The maternal grandmother informed J.A.G.'s mother that she had observed J.A.G. roll over. This was the first time anyone hadobserved J.A.G. roll over on his own. Later that evening, J.A.G.'s mother went to the grocery store with her sister and niece at approximately 8:30 p.m. J.A.G.'s father remained at home and took care of his son. J.A.G.'s father contended he placed J.A.G. on the sofa and went to the kitchen to prepare a bottle for the child. When the father returned to the sofa, he found the baby on the carpeted floor, lying on his back and crying. The baby's arms and legs began to twitch. After J.A.G. began to twitch, his father called J.A.G.'s mother on her cellular telephone and explained what happened. As J.A.G.'s father did not speak English very well, J.A.G.'s mother called emergency personnel and immediately went home. While awaiting the arrival of the ambulance, J.A.G. began having a seizure. The paramedics determined J.A.G. needed to be airlifted to Pitt Memorial Hospital for assessment and treatment.
Dr. Elaine Cabinum-Foeller testified she assessed J.A.G. and determined that he had a subdural hemorrhage in the front part of his brain, swelling, and a prominent retinal hemorrhage. In her expert opinion, J.A.G's injuries were not consistent with a short fall off of a sofa onto a rug and carpet; rather, his injuries were caused by an inflicted traumatic brain injury. She testified that, due to his injuries, J.A.G. was at risk for developmental problems and that long-term monitoring would be required. A social worker for DSS testified that J.A.G. had no visible external injuries andthat he was moving his extremities as would be expected for a child his age (six months old).
While J.A.G. was in the hospital, DSS informed his mother that he would not be allowed to return home and asked for names of individuals who could appropriately care for J.A.G. The mother provided DSS with several names; however, DSS determined none of the potential placements were appropriate, and J.A.G. entered foster care after his discharge from the hospital. Shortly after J.A.G.'s release from the hospital, his father was arrested and charged with felony child abuse.
At the conclusion of the evidence, the trial court entered an order concluding there was clear, cogent, and convincing evidence that J.A.G. was neglected [and dependent] . . . as it pertains to both parents and abused . . . as it pertains to the father[.] (R.p.53) The trial court entered a disposition order placing legal and physical custody of J.A.G. with DSS and relieving DSS of any reunification efforts with the father. The trial court did not cease reunification efforts with the mother, and she was allowed visitation. J.A.G.'s father has not appealed from the orders of adjudication and disposition. Respondent-mother now appeals from the adjudication and disposition orders of the trial court.
LEVINSON, Judge concurring.
I concur in the lead opinion, but write separately to explain
the unusual appellate posture of this matter more fully, and to
comment generally on the trial court's role in adjudicating
petitions alleging abuse, neglect, and dependency.
As a preliminary matter, I first review the trial court's conclusions of law and the limited issues preserved for our consideration. The trial court concluded J.A.G. was a dependent juvenile as to both parents and, further, that the child was (1) neglected as to mother, and (2) neglected and abused as to father. Mother's appeal challenges, as unsupported, the conclusion of law that J.A.G. was a dependent juvenile, and that J.A.G. was neglected as to her. In making these arguments on appeal, she neither assigns error to, nor argues that (1) many findings related to father's conduct are unsupported by the evidence, or (2) the conclusions of law that J.A.G. was neglected and abused as to father are somehow infirm. In her brief, mother presented the following question for review concerning whether the conclusion of neglect as to her could be sustained on appeal:
Did the trial court commit reversible error and violate Respondent-Mother's substantial rights when it found and concluded that she had neglected the child?
The following is illustrative of mother's arguments on appeal, which focus on whether the juvenile can even attain the status of a neglected juvenile without first considering her own conduct:
An abuse, neglect or dependency proceeding is inherently a multi-party case involving the petitioner, the respondent-parents, and the child. Thus, treating the outcome only as a conclusion of the child's status is inappropriate. In order for a parent to abuse, neglect, or render dependent a child, there must be some nexus between the child's injuries and a parent's act or failure to act.
Here, the evidence showed that Respondent- Mother neither harmed the child nor did she have any idea that [father] could have or would have harmed the child. . . . Borrowing a page from tort law, a master is not responsible for an agent's intentional tort where the agent's act is outside the scope of the master's business, the master has not authorized the agent to act tortiously, and the master has not ratified the agent's tortious act. Snow v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937). Likewise, here Respondent-Mother did not condone or authorize an assault on the child, if that is in fact what happened.
One must assume that the trial court believed JAG's injuries were non-accidental and thatRespondent-Father was the perpetrator of JAG's injuries. . . . However, . . . there is no evidence showing that Respondent-Mother had previously failed to supervise JAG properly[.]
In support of her argument that the trial court may conclude that a child is abused, neglected, or dependent as to a parent, mother cites only In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003). The McCabe panel did hold that there was clear, cogent and convincing evidence to support the trial court's adjudication of neglect and abuse by respondent. Id. at 680, 580 S.E.2d at 74 (emphasis added). The fact the McCabe panel utilized the words by respondent is not persuasive authority that this Court evinced an intention to convert the subject of these adjudications _ the status of the juvenile _ into an inquiry about the individual or individuals who may or may not have contributed to the circumstances which support the juvenile's status as abused, neglected, or dependent. Moreover, mother's use of master-servant concepts from our body of tort law is, of course, completely inapposite to these juvenile matters.
The trial court's function, when confronted with petitions for abuse, neglect, and/or dependency, is to adjudicate whether the subject juvenile has the status of one or more of these conditions. See N.C.G.S. § 7B-101(1) (2003) (abused juvenile); N.C.G.S. § 7B- 101(9) (2003) (dependent juvenile); and N.C.G.S. § 7B-101(15)(2003) (neglected juvenile). In doing so, the trial court will oftentimes make findings related to the commission and/or omission of acts on the part of parent(s) or other caretakers. This, however, changes neither the nature of what the court is adjudicating, nor the central issue on appeal: the juvenile's status. Indeed, the presence or absence of culpability of a particular parent or other caretaker in an adjudication of abuse, neglect, or dependency is not necessarily associated with whether the statutory thresholds of these conditions are present. Compare N.C.G.S. § 7B-1111 (2003) (in termination of parental rights proceeding, petitioner must prove that the parent's individual conduct satisfies one or more grounds). Alternatively stated, it doesn't necessarily matter who did what. This has long been the law in North Carolina:
In determining whether a child is neglected,
the determinative factors are the
circumstances and conditions surrounding the
child, not the fault or culpability of the
In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984)(discussing neglect generally). In my view, the same holds true of adjudications of abuse and dependency.
Frankly, it is as unsound for adjudications to be as to any parent or caretaker, as it is equally clear that findingsconcerning persons' individual responsibility or culpability are relevant to the disposition. In short, mother's argument, that for a parent to abuse, neglect, or render dependent a child, there must be some nexus between the child's injuries and a parent's act or failure to act[,] misses entirely the nature of these adjudication proceedings. Accepting mother's argument would amount to recasting adjudications into hearings about the adult caretakers in J.A.G.'s life when these In re proceedings are, instead, about the conditions and circumstances surrounding the child. In her brief, mother boldly asserts that treating the outcome only as a conclusion of the child's status is inappropriate. This contention is, in my view, simply contrary to the law of North Carolina.
When a parent takes an appeal from the order on adjudication and disposition of a petition alleging abuse, neglect, and/or dependency, and she challenges the adjudicatory conclusions of law, it necessarily follows that the status of the juvenile is before this Court irrespective of whether the same depended, in part or in full, on the appealing parent's individual conduct. Notwithstanding the dual as to conclusions of law by the trial court in the instant case, mother could nonetheless have challenged all the findings of fact and conclusions of law in the order on adjudication and disposition. Fashioning adjudication orders on abuse, neglect, and dependency as to anyone misapprehends our juvenile statutes. In my view, the words as to are nothing more than surplusage. Our trial courts should avoid fashioning adjudication orders in this way and should, instead, continue to follow the paramount practice of not concluding juveniles are anything as to anyone. Although our panel endeavored to resolve the issue of whether mother's conduct contributed to the status of neglect in this appeal, subsequent appeals that do not fully preserve for appellate review the juvenile's status as abused, neglected, or dependent may yield dismissals by this Court.
Finally, I review the status of this juvenile matter. In addition to reversing the trial court's conclusion that mother's conduct contributed to the circumstances giving rise to J.A.G.'s status as a neglected juvenile, this Court has also reversed the court's conclusion that J.A.G. was a dependent juvenile. The findings of fact that we have concluded are unsupported by the evidence, and the conclusions of law reversed by this Court, cannot be utilized in later juvenile proceedings to collaterally establish any one or more of these things. J.A.G. retains his status as an abused and neglected juvenile by virtue of conclusions of law that are not challenged on appeal. Moreover, while I have agreed with my colleagues that the current record on appeal only supports thereturn of custody of J.A.G. to mother, it is also my view that, because the order of disposition was based, in large measure, on findings and conclusions of law that have now been reversed on appeal, the trial court should necessarily be directed to enter a new disposition order after giving all persons an opportunity to be heard. Significantly, though, in reversing the order of disposition insofar as it continued custody of J.A.G. with DSS, this Court has not held that the trial court either lacks jurisdiction over this child, see N.C.G.S. § 7B-201 (2003), or that it does not still have the authority and means to fashion a new dispositional order and subsequent custody review orders that comport with the best interests of the juvenile. See N.C.G.S. § 7B-903 (2003) (dispositional alternatives); N.C.G.S. § 7B-1000 (2003) (modification); N.C.G.S. § 7B-906 (2003) (custody review).
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