An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1603

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

IN THE MATTER OF:
                                        Chatham County< br> D.G.                                        Nos. 02 J 6 2-64
C.S.
K.G.

    Appeal by respondents from orders entered 6 July 2003 and 15 July 2003 by Judge M. Patricia DeVine in Chatham County District Court. Heard in the Court of Appeals 14 September 2004.

    Lunday A. Riggsbee for petitioner-appellee Chatham County Department of Social Services.

    Karen Davidson for Guardian ad Litem.

    Richard E. Jester for respondent-appellant mother.

    Rebekah W. Davis for respondent-appellant father.

    HUNTER, Judge.

    Respondent-mother and respondent-father appeal from the trial court's order adjudging their minor children abused, neglected, and dependent, and relieving the Chatham County Department of Social Services (“DSS”) of any responsibility of seeking reunification with either parent. After careful review, we reverse the orders finding the children abused, neglected, and dependent as to the mother, and affirm as to the father.

I. Facts

    A.P. (“mother”) is the biological mother of C.S., D.G., and K.G, and E.G. (“father”) is the biological father of the twins,D.G. and K.G. C.S.'s biological father died prior to his birth. At the time of the hearing, C.S. was 8 years old, and the twins, D.G. and K.G., were one year and two months old. The mother and father lived together, but were not married.
A. Facts related to D.G.

    D.G., and his twin, K.G., were born nine weeks premature on 28 November 2001. Between their release from the hospital on 24 December 2001 and their removal from their mother's care on 25 September 2002, the twins had monthly well-baby checks, all required vaccinations, developmental assessments by Duke University Hospital physicians, and routine care for minor ailments. Their mother and maternal grandmother provided the twins' daycare until July 2002 when their father began caring for the children during the day as he was unemployed. The mother worked from 6:45 a.m. until 3:15 p.m. each day at a factory.
    On 25 September 2002, D.G. suffered a severe head injury while in the father's care while the mother was at work. D.G. became limp, he was breathing improperly, and his eyes were half-closed. The father called emergency personnel, and D.G. was airlifted to UNC Hospital. As a result of D.G.'s injuries, he has been diagnosed with a condition similar to cerebral palsy. He has seizures, extensive brain damage, is blind, and will never have meaningful conversations. His stomach has been tied off to prevent reflux, and he is fed by a tube that goes directly into his stomach. D.G. will never be able to sit independently, and he will have to use special wheelchairs and braces.    The treating physician, Dr. Antoinette L. Laskey (“Dr. Laskey”), and the social worker, Millie Enos, interviewed the parents regarding D.G.'s injuries. The mother explained that she fed the twins and placed them back in their cribs prior to going to work at 6:15 a.m. She then reported what happened after she went to work based upon what the father had told her, but had no first- hand knowledge of the events.
    During the interview with the father, he stated D.G. awoke at 8:30 a.m. and was fed. The twins played normally until 11:30 a.m., at which time he fed them and placed them in their cribs for a nap. D.G. would not go to sleep, so D.G. was allowed to continue playing on the living room floor while the father watched t.v. The father indicated D.G. hit his head on a wooden ottoman while playing, but was fine. A minute later, he noticed a small lump on D.G.'s forehead, that D.G.'s eyes were partially closed, he was limp, and was not breathing correctly. After he tried to correct D.G.'s breathing without success, the father ran across the street to the maternal grandmother's home and called the mother and emergency personnel.
    After the initial interviews, the mother continued to question the father as to what occurred. The father changed his account of what happened twice, and the mother immediately informed the social worker of the new information. However, Dr. Laskey indicated that the father's different versions of what happened did not explain how D.G. sustained his injuries as she opined the injuries could not have happened in the manner described.    Dr. Laskey also testified that D.G.'s x-rays indicated he had eleven rib fractures that appeared to be four to six weeks old. The mother indicated that in August 2002 her mother and the twins' father informed her when she came home from work that D.G. had rolled into the ottoman and his ribs were hurting. Concerned that he may have injured his ribs, she took D.G. to his pediatrician for an evaluation on 6 August 2002. The doctor informed her that D.G.'s ribs were not broken.
    After the social worker interviewed the parents regarding what occurred on 25 September 2002, the parents were informed that they could not visit D.G. in the hospital. Dr. Laskey testified the mother would call and inquire about D.G.'s progress and condition every day, and took every opportunity to visit her children.
B. Facts related to K.G.

    After D.G. was airlifted to the hospital on 25 September 2002, the social worker visited K.G. and C.S. at the maternal grandmother's home. The social worker noticed that K.G. had bruises on her face, ear, neck, and shoulder. The grandmother explained that K.G. bruised easily and most likely got the bruises from rolling on the floor and bumping into her toys and furniture. Based upon the observations of K.G. and C.S., the social worker decided to take the children to the hospital for further evaluation.
    In addition to multiple bruises on her body, K.G.'s evaluation indicated her head was larger than a typical nine month old infant that was born prematurely. A head CT scan was grossly abnormal,and an MRI indicated K.G. had prior brain injuries which caused brain bleeds. Her mother stated that K.G. had been hospitalized in Randolph County for pneumonia in June 2002. A week later, the mother returned to the hospital because K.G. had been vomiting. While at the hospital, the mother noticed the soft spot on K.G.'s head was bulging. The doctors diagnosed K.G. with viral meningitis. Dr. Laskey testified that a bulging soft spot is a symptom of meningitis. Another Randolph County emergency room doctor asked the twins' pediatrician if there were any concerns about abuse. Her pediatrician said no because she had observed the mother with the twins and did not have any concerns about abuse. After a few days, K.G. improved and was released from the hospital. After reviewing K.G.'s medical records from the June hospitalization, Dr. Laskey believed the physicians at Randolph County Hospital misdiagnosed K.G, and she opined that K.G. had abusive head trauma in June 2002. Dr. Laskey also believed K.G. could not have received the bruises from playing and from having her ears played with by an adult. According to Dr. Laskey, K.G.'s blood work did not indicate any conditions that would cause a susceptibility for bruising. However, K.G.'s medical records indicate that she was born with facial bruising.
    Prior to the 25 September 2002 incident, none of the doctors who treated the twins opined that they were abused. With D.G., the pediatrician did not diagnose his rib fractures in August 2002. As to K.G., the doctors did not diagnose abusive head trauma in June 2002. Indeed, the bulging soft spot was a symptom of viralmeningitis, and as the pediatrician who had performed all of the well-baby checks and had given all of the vaccinations did not see any prior signs of abuse, the doctors diagnosed K.G. with viral meningitis. As explained by the treating physician at UNC Hospital on the day of D.G.'s severe injuries, abusive head trauma is missed in up to thirty-five percent (35%) of cases on initial presentation due to errors in medical diagnostics, such as radiology reports, or inaccurate information given by care providers.
C. Facts related to C.S.

    C.S. was born on 14 October 1994. At the age of three or four, C.S. was diagnosed with Russell-Silver Syndrome, a genetic condition which causes developmental delays and mild to moderate retardation. Due to his condition, C.S. experienced significant delays in talking (age 2 ½), saying complete sentences (age 5 ½), walking (age 3 ½), and potty-training (age 4 ½). C.S. also had problems with eating, had to wear leg braces, and he had an IQ of 45. Because of the problems resulting from his genetic condition, C.S. had several doctor appointments in addition to the normal doctors' visits for check-ups and minor ailments.
    In December 2000, a case of medical neglect was substantiated regarding the mother's care of C.S. Although the DSS records are not in the record, the mother testified that the basis for the neglect determination was several missed doctors' appointments, which were follow-up visits for minor ailments such as colds. The mother had previously lost her job because of absences related to taking C.S. to the doctor. C.S. was placed with the mother's ex-husband for two months and then returned to her. Until the present case, there were no other allegations of neglect.
    C.S. was evaluated by Dr. Laskey on 25 September 2002. The physical exam was consistent with his genetic condition, his skeletal survey was normal, and there were no signs of abusive head trauma. However, the doctor reported several lesions on both of his lower legs that were healing and were perfect circles. The doctor was concerned the lesions were cigarette burns. However, the mother and the social worker testified the lesions were healing bug bites. Because of the injuries to D.G., DSS removed C.S. and K.G. from the home.
D. Procedural history

    A nonsecure custody order was entered on 25 September 2002 granting custody of all three children to DSS. The next day, DSS filed three juvenile petitions alleging D.G. and K.G. were abused, neglected, and dependent, and alleging C.S. was neglected and dependent. On 17 March 2003 and 8 May 2003, an adjudicatory hearing was held in this matter. In separate orders, the trial court determined all three children were abused, neglected, and dependent. The trial court ordered neither parent to have any contact with their children and relieved DSS of responsibility to seek reunification with the mother and father. On 18 September 2003, the father pled guilty to felonious child abuse and was sentenced to nine to twelve years in prison. The mother and father appeal the trial court's orders.
II. The Standard of Review
    “The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-805 (2003). “'A proper review of a trial court's finding of [abuse,] neglect[, and dependency] entails a determination of (1) whether the findings of fact are supported by “clear and convincing evidence,” and (2) whether the legal conclusions are supported by the findings of fact.'” In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566 (2002) (citation omitted). “Clear and convincing evidence 'is greater than the preponderance of the evidence standard required in most civil cases.' It is defined as 'evidence which should “fully convince.”'” In re Smith, 146 N.C. App. 302, 304, 552 S.E.2d 184, 186 (2001) (citations omitted).
III. The Mother's Appeal

    The mother contends the trial court's conclusions of law that her children were abused, neglected, and dependent were not supported by the findings of fact. She also argues that several of the findings of fact were not supported by clear and convincing evidence. Specifically, she argues that (I) she did not physically abuse her children, (II) clear and convincing evidence does not indicate she knew or reasonably should have known of the abuse, and (III) she was a caring mother who attended to her children's needs and sought medical attention for her children when necessary. We agree.
    The mother first challenges Finding of Fact 30, which states:
        This court is not able to determine whether [the mother] either (a) knew of [the father's]abuse of her children and did nothing; or (b) suspected the abuse and did nothing; or (c) knew and/or suspected abuse by [the father] and tried to change [his] behavior; or (d) worked twelve hours a day and was for some reason unable or unwilling to see or to acknowledge what was going on during her absence. In any case, by remaining oblivious or impervious to all three of her children's repeated injuries and distress, she was abdicating her parental responsibilities and was thereby allowing the abuse to continue.

We conclude that the portion of this finding of fact preceding the sentence beginning “[i]n any case . . .” is not a finding of fact as the trial court did not make a determination of what the mother knew or did based upon the evidence presented and its assessment of the witnesses' credibility. See In re E.N.S., 164 N.C. App. 146, 151, 595 S.E.2d 167, 170 (2004) (citations omitted) (stating “'[f]indings of fact are defined as “[d]eterminations from the evidence of a case . . . concerning facts averred by one party and denied by another”'”). However, the following portion of Finding of Fact 30 is a finding of fact: “In any case, by remaining oblivious or impervious to all three of her children's repeated injuries and distress, she was abdicating her parental responsibilities and was thereby allowing the abuse to continue.” The evidence relevant to this finding indicates that prior to 25 September 2002, there have never been any allegations of abuse regarding the children. As to the lesions on C.S.'s legs, Dr. Laskey could not definitively state whether they were cigarette burns. The social worker and the mother testified the scars were from insect bites. Specifically, the social worker testified that “most notable on [C.S.] was just old scars. Or they looked likelarge insect bites or -- on his legs.” The mother explained that “[t]hey were bug bites that [C.S.] had gotten” and “had scratched until they got infected. And I had took him to the doctor for those.” A 17 May 2002 medical record indicates C.S. sought treatment with his pediatrician for a skin rash, and his pediatrician determined C.S. had insect bites that had been scratched causing an inflammatory reaction. He was prescribed an oral medication to take for five days and a cream to apply to the infected areas on a daily basis.
    As to D.G., prior to his 25 September 2002 injuries, he was seen by either his pediatrician or doctors and specialists at the Duke University Special Infant Care Clinic for development monitoring at least seventeen times according to his medical records. After birth, D.G. was hospitalized for approximately one month and was released into his mother's care on 24 December 2001. Thereafter, he was seen at least once in each month from December 2001 until his injuries on 25 September 2002. For most of these months, he had at least two or three appointments. The mother not only took him for his vaccinations and well-baby checks, she also took him to the doctor for concerns regarding colds, rashes, and congestion. On one occasion, the mother reported to the doctor that she was concerned that a knot in his groin was a hernia as her older son had a similar problem when he was young. After assessment, the doctor determined D.G. had a hernia, and surgery was scheduled at Duke University. On the day of the surgery, a heart murmur was detected. The mother sought treatment with hispediatrician for the heart murmur and took D.G. to Duke University for additional testing with a Duke University cardiologist, and then returned to her pediatrician for a discussion of the results. The mother also took D.G. to the pediatrician after his cousin exposed him to rotavirus, and subsequent testing determined the child had the virus. In August 2002, the mother took D.G. to his pediatrician for her concerns regarding a possible rib injury. The doctor determined D.G. had a contusion and advised the mother to return if he had difficulty breathing. On each of these doctors' visits, the physicians conducted a general assessment of his weight and major organs. At the developmental and well-baby checks, the physicians monitored his physical and mental development. In these medical reports, the doctors did not report any concerns about abuse, did not report any signs of abuse, and indicated D.G. was progressing well.
    Similarly, K.G.'s medical records indicate she had at least sixteen visits to either her pediatrician or Duke University Medical Center for developmental check-ups, well-baby checks, vaccinations, or other ailments, such as a cold or rash. The records indicate the doctors were pleased with her progress and development. In June 2002, she was hospitalized for pneumonia and viral meningitis, according to the medical records. While in the hospital for viral meningitis, a head CT scan indicated a possible hemorrhage that was consistent with meningitis. However, trauma could not be ruled out, and the radiologist advised a clinical correlation to be conducted. The clinical correlation indicated“no known history of any type of trauma or abuse. History is consistent with infection however.” After remaining in the hospital for a few days, she was released and her discharge diagnosis was meningitis.
    Accordingly, a review of the testimony and medical records indicates the twins and their older brother had a caring mother who took them to the doctor when necessary. The mother relied upon the doctors' advice in treating her children and at least seven doctors did not suspect child abuse or had the opinion the children were abused. Indeed, if the doctors had suspected abuse, neglect, or dependency, they were required by law to report their concerns to the department of social services. See N.C. Gen. Stat. § 7B-301. Accordingly, the trial court's finding that the mother abdicated her parental responsibilities, was oblivious to her children's injuries, and that she allowed the children to be abused is not supported by clear and convincing evidence. Moreover, clear and convincing evidence was not presented indicating the mother knew or reasonably should have known the father was physically abusing the children while she was at work.
    Next, the mother contends the trial court ignored evidence and testimony in rendering Finding of Fact 23, which states:
        As of 9/25/02, neither baby could sit up by him/herself. Both babies would roll on the floor, into the ottoman, into the couch, and even under the couch. [K.G.] would most of the time roll under the couch. [The mother] never had lessons in how to deal with two babies, but never felt like they were too much for her.
Although the record does indicate neither child could sit up on their own as of 25 September 2002, the twins' medical records indicate no concern by the attending physicians, as the children were premature and their progress was assessed at an adjusted chronological age. As to the finding that the mother had “never had lessons in how to deal with two babies,” we note that no evidence was offered as to child care classes for twins. Nonetheless, with the exception of the statement regarding baby care classes, this finding of fact is supported by clear and convincing evidence. We do note, however, that the trial court did not consider all of the evidence presented regarding the twins' development.
    Next, the mother challenges Finding of Fact 24, which states:
        With respect to the June incidence when [K.G.] was hospitalized in Randolph County with meningitis-like symptoms and bulging soft-spot on her head, [the mother] now has “no second thoughts” about what happened to the baby. [The mother] did tell Millie Enos, however, that a doctor had told her that summer that [K.G.] might be the victim of shaken baby syndrome.

As discussed supra, K.G. was hospitalized and diagnosed with viral meningitis in June 2002. The alternate causation of trauma was considered but ruled out by the treating physicians at that time.
    Prior to the mother's testimony in the adjudication hearing, no one testified that K.G. was misdiagnosed with meningitis in June 2002. After the mother testified, Dr. Laskey testified that K.G.'s doctors misdiagnosed K.G.'s meningitis. After this testimony, no one asked the mother if she had a change of opinion regarding whathappened to her daughter in June 2002. Furthermore, no one informed the mother that K.G. had been misdiagnosed with meningitis before the hearing. Thus, this finding of fact is unsupported by clear and convincing evidence.
    The mother also challenges the finding that “[the mother] did tell Millie Enos, however, that a doctor had told her that summer that [K.G.] might be the victim of shaken baby syndrome.” She contends the finding was based upon hearsay testimony provided by the social worker. The social worker testified:
        A    According to [the mother] she indicated that one ER doctor said it was shaken baby. But due to Dr. Hodges' - -

            THE COURT: (Interposing) Of course, no wonder you fought so hard. All right.

        A    But due to Dr. Hodges' stating that she knew [the mother] as a parent and that she was a good parent --

The social worker did not complete her statement.
    Although the trial court admitted the testimony under the present sense impression exception to the hearsay rule, N.C. Gen. Stat. § 8C-1, Rule 803(1), this testimony did not qualify for admission under this hearsay exception. See Hargett v. Insurance Co., 258 N.C. 10, 12-13, 128 S.E.2d 26, 28-29 (1962) (stating that for a statement to be admitted as a present sense impression, “it must be relevant, it must be so spontaneous in character as to safeguard its trustworthiness, preclude the likelihood of reflection and fabrication, and render it instinctive rather than narrative, and it must be contemporaneous with the transaction, or so closely connected with the main fact as to be practicallyinseparable therefrom”). The mother's statement was not made contemporaneously with the June 2002 emergency room treatment, it was not spontaneous, and it was more narrative than instinctive. Therefore, the trial court erroneously admitted the mother's statement under the present sense impression exception to the hearsay rule. See State v. Smith, 152 N.C. App. 29, 36, 566 S.E.2d 793, 798 (2002); State v. Clark, 128 N.C. App. 722, 724, 496 S.E.2d 604, 606 (1998).
    However, if evidence is improperly admitted under one rule, but could have been properly admitted under another rule, this Court may sustain the admission of the evidence under the proper rule. See State v. McGraw, 137 N.C. App. 726, 730-31, 529 S.E.2d 493, 497-98 (2000). In this case, the mother's statements to the social worker were admissible under N.C. Gen. Stat. § 8C-1, Rule 801(d) (2003), which states: “A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity[.]” The mother's statement that she was informed that a doctor believed her child had been the victim of abuse is probative of whether the mother allowed her children to be abused. As an abuse determination may be based upon a parent allowing their child to be abused, we conclude her statement to the social worker qualifies as a statement against interest.
    However, we conclude that the finding the mother had been informed in June 2002 that K.G. might be the victim of shaken baby syndrome is unsupported by clear and convincing evidence. Themother testified she told the social worker that during her daughter's hospitalization in June 2002, an emergency room physician asked her daughter's pediatrician whether she believed K.G. had been abused. According to the mother, the doctor did not suspect abuse because she had observed the mother as a mother and did not find any signs of abuse in the child's medical history. This testimony is supported by the medical records which indicates the radiologist indicated the daughter's injuries could be the result of meningitis or trauma and advised a clinical correlation. Subsequent medical records indicate abuse was ruled out as a diagnosis.   (See footnote 1) 
    Next, the mother challenges Finding of Fact 27, which states: “There is no evidence before this court that [the mother] has admitted to anyone, at any time, that she believes [the father] harmed her children.” The record indicates that the mother was never asked if she believed the father harmed her children. Moreover, none of the witnesses stated whether or not the mother believed the father harmed her children. The record indicates that after D.G. was admitted to the hospital on 25 September 2002, the mother called the social worker and told her that the father was ready to tell the truth as to what occurred. In her testimony, themother explained that she and her mother, the children's grandmother, continued to question the father to find out what caused her children's injuries. Upon learning of a different explanation, the mother immediately called the social worker. While technically the trial court's finding of fact that no evidence was presented indicating the mother had admitted to anyone the father had harmed her children is correct, the evidence indicates the mother was not indifferent to her children's injuries and the need to determine the actual cause of the injuries.
    The mother also challenges Finding of Fact 26, which states: “On the occasion when [K.G.] was rushed to the hospital in June of 2002, and then again on September 25, 2002, the children had been alone with [the father].” While this finding of fact is accurate, it is not probative evidence tending to indicate the mother allowed her children to be abused. On the prior occasions when the mother sought medical treatment for her children, the doctors did not diagnose abuse. After D.G.'s severe injuries on 25 September 2002, Dr. Laskey reviewed the medical records and concluded a different diagnosis was appropriate. Dr. Laskey determined K.G. had been abused in June 2002 instead of suffering from meningitis and determined D.G. had broken ribs in August 2002 when his pediatrician indicated his ribs were fine. While in hindsight a doctor opined the children were the victims of abuse, several treating physicians did not diagnose abuse while occurring.
    The mother also challenges the portion of Finding of Fact 20, which states “[s]he was working twelve hours a day up to a monthbefore 9/25/02.” According to the mother's testimony, she routinely worked from 6:45 a.m. until 3:15 p.m., eight and a half hours. During the previous year, the mother worked a twelve hour day for approximately one week. Accordingly, this finding of fact is not supported by clear and convincing evidence.
    Finally, the mother contends the trial court's conclusions of law that her children were abused, neglected, and dependent are not supported by the findings of fact. First, we note that the trial court improperly concluded C.S. was abused as the petition filed by DSS did not allege abuse, and the petition was not amended. See In re Ivey, 156 N.C. App. 398, 401, 576 S.E.2d 386, 389 (2003); In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003). As to the remaining conclusions of law as to the mother, (1) D.G. and K.G. were abused, and (2) D.G., K.G., and C.S. were neglected and dependent, we conclude they were not supported by the findings of fact.
    In pertinent part, N.C. Gen. Stat. § 7B-101(1) (2003) defines an abused juvenile as:
        Any juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker:

        a.    Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means;

        b.    Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means;

        c.    Uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grosslyinappropriate devices to modify behavior[.]

Id. First, neither the findings of fact nor the evidence presented to the trial court indicate the mother physically abused her children. Second, no evidence, including medical records, indicates the children were diagnosed as having been abused prior to the 25 September 2002 incident, despite regular care by physicians. Thus the medical treatment and reassurances by physicians that there was no evidence of abuse preclude a finding that the mother knew or reasonably should have known her children were being abused by their father while she was at work. Finally, the trial court's finding of fact that the mother abdicated her parental responsibilities and ignored her children's injuries and distress was not supported by clear and convincing evidence, and the statement in the findings of fact that the mother allowed the abuse to occur or continue was not a proper finding of fact. Accordingly, the trial court's conclusion that the mother abused D.G. and K.G. is not supported by the findings of fact or the evidence presented to the trial court.
    The trial court also concluded D.G., K.G., and C.S. were neglected juveniles. Pursuant to N.C. Gen. Stat. § 7B-101(15) (2003), a neglected juvenile is:
        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 provided necessary 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 determiningwhether 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.

Id. The mother provided her children with necessary medical and remedial care as discussed supra. Further, the mother arranged for daycare with family members, the grandmother and the father, while she was at work. Prior to 25 September 2002, there were no allegations or suspicions of abuse. Without any episodes of abuse, allegations or suspicions of abuse, or concerns of parental unfitness, this Court is not prepared to say a parent or guardian who works is not providing proper supervision for their child because the child is abused by someone providing daycare, unless there is clear and convincing evidence the parent knew or reasonably should have known the abuse was occurring.
    As to C.S., the record indicates he was seen at least six times by either his pediatrician or emergency room doctors during the year preceding 25 September 2002. The mother sought treatment for rashes, insect bites, and a shoulder injury that occurred when C.S. fell on his school bus. As for C.S.'s genetic condition, he was receiving special education within the public school system for his learning disabilities. Prior to going to school, the record indicates the mother worked with social services to receive special therapy for her son, and that she worked with her son's physicians to help him learn to walk and eat properly.    As indicated in Finding of Fact 21, however, in November 2000, DSS substantiated a case of neglect as to C.S., based upon nineteen missed doctor's appointments and unstable living conditions. “In determining neglect, the trial judge must find evidence of neglect at the time of the termination proceeding.”   (See footnote 2)  In re Blackburn, 142 N.C. App. 607, 611, 543 S.E.2d 906, 909 (2001). However, “[a] prior adjudication of neglect cannot be the sole basis of a termination proceeding, although it may be relevant evidence.” Id. at 610-11, 543 S.E.2d at 909. Furthermore, “[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Since the November 2000 case of substantiated neglect, C.S. had been returned to his mother, there were no new allegations of missed doctor's appointments, the mother had stable housing, C.S. received medical care from his pediatrician, and he attended school on a regular basis. Therefore, there was clear and convincing evidence of changed circumstances. Moreover, the trial court did not find that a repetition of neglect was probable.
    The definition of neglect also provides that it is relevant if the juvenile lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home. At the time of the petition, the mother and the twins'biological father, were adults regularly living in the home. As explained, the mother did not abuse or neglect her children, and there was no competent, clear, and convincing evidence presented indicating the mother knew or reasonably should have known her children were being abused by their father. As explained infra, the father did abuse his children. However, the father is no longer an individual who regularly lives in the home, and there is no indication he still lived in the home at the time of the hearing. Indeed, he pled guilty to felonious child abuse and was sentenced on 18 September 2003 to nine to twelve years in prison. Accordingly, the trial court erroneously concluded the mother neglected C.S., D.G., or K.G.
    Finally, the trial court concluded D.G., K.G., and C.S. were dependent juveniles, defined as “[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose 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). The majority of the proper findings of fact relate to the allegations of physical abuse and the injuries suffered by the children. These injuries were not inflicted by the mother and, as previously stated, there were no instances, allegations or suspicions of abuse prior to the 25 September 2002 incident. The mother provided a clean home for the children, and the medical reports indicated the children were developing appropriately. The oldest child, C.S., attended schoolregularly and his teachers indicated the mother was appropriately concerned about his progress in school and helped him with his homework. While the mother worked, the twins were cared for by their grandmother and father. Prior to the 25 September 2002 incident, there was no indication that this arrangement was potentially harmful to the twins. Finally, the mother had sought medical treatment for her children when necessary or required. As such, the trial court erroneously concluded the children were dependent.
    Accordingly, the trial court's conclusions of law that the children were abused, neglected, and dependent by their mother was not supported by the findings of fact. It is unnecessary to address the mother's remaining arguments regarding the trial court's disposition order which ordered DSS to cease reunification efforts with the mother. As explained in N.C. Gen. Stat. § 7B- 807(a) (2003), “[i]f the court finds that the allegations have not been proven, the court shall dismiss the petition with prejudice, and if the juvenile is in nonsecure custody, the juvenile shall be released to the parent, guardian, custodian, or caretaker.” As we have concluded the allegations of abuse, neglect, and dependency have not been substantiated as to the mother, we vacate and set aside the adjudication and disposition orders for the three children, and remand to the trial court for dismissal of the petition with prejudice in regards to the mother only. See N.C. Gen. Stat. § 7B-807.
IV. The Father's Appeal
    The father first contends the trial court should not have considered Dr. Laskey's conclusion that the twins had been subjected to physical abuse. Specifically, the father argues Dr. Laskey's conclusions were erroneously based upon a presumption of abuse and he contends Dr. Laskey was biased because she volunteered as a guardian ad litem and had an interest in child abuse.
        A qualified expert . . . may give opinion testimony on scientific matters if it will assist the trier of fact to understand the evidence or determine a fact in issue. The decision as to whether scientific opinion evidence is sufficiently reliable and relevant remains largely with the discretion of the trial judge.

            Of particular importance here, . . . , is the requirement that the scientific technique on which the expert bases the proffered opinion be recognized as reliable. We note, however, that absolute certainty of result is not required. The technique must have achieved general acceptance in the relevant scientific community and provide scientific assurance of accuracy and reliability.

State v. Catoe, 78 N.C. App. 167, 168-69, 336 S.E.2d 691, 692 (1985) (citations omitted).
    The record indicates Dr. Laskey was qualified and received by the court as an expert in the area of child abuse and neglect, and injuries seen in children who are suspected of having been abused. During cross-examination, defense counsel asked Dr. Laskey to read an excerpt from The Journal of the American Academy of Pediatrics, a learned treatise in her field. According to this excerpt:
        “Physical abuse is the leading cause of serious head injury in infants. Although physical abuse in the past has been a diagnosis of exclusion, data regarding the nature and frequency of head traumaconsistently support the need for a presumption of child abuse when a child younger than one year has suffered an intracranial injury.”

Dr. Laskey testified this statement accurately stated the standard of care in pediatrics regarding children under the age of one with intracranial head injuries. She indicated the doctors immediately suspect physical abuse and continue to look for causes other than abuse, such as the child was involved in a car accident. As Dr. Laskey indicated this is the methodology recognized as reliable in her field, we conclude her expert opinion was admissible under our rules of evidence. Moreover, Dr. Laskey gave lengthy testimony of how she reviewed MRI and CT scans of the twins, blood test results, other medical test results, reviewed their medical records, interviewed the parents about the twins' medical history and activities, and consulted with other doctors regarding the twins' condition. Thus, we conclude Dr. Laskey's expert opinion that the twins were subjected to abusive head trauma was admissible.
    The father also contends Dr. Laskey was biased because she volunteered as a guardian ad litem in Orange County. Dr. Laskey testified that she was obtaining a masters degree in public health and that by volunteering as a guardian ad litem she was fulfilling a graduate school requirement. Dr. Laskey also testified that she was a member of two organizations dedicated to the prevention of child abuse. Assuming these facts were evidence of bias, it does not effect the admissibility of the expert opinion. Rather, the trial court as trier of fact determines the weight to give an expert opinion, and any evidence of bias should be considered bythe trier of fact in determining the credibility of and weight to assign an expert opinion. See DOT v. Haywood Co., ___ N.C. App. ___, 604 S.E.2d 338, 341 (2004) (stating “[t]here is in fact an important difference between the admissibility of evidence and the weight that is assigned the evidence following admission. Traditionally, it is the jury that determines the weight”); Thompson v. Bradley, 142 N.C. App. 636, 642, 544 S.E.2d 258, 262 (2001) (indicating evidence of expert bias and credibility is a proper subject for the trier of fact). Accordingly, we conclude the trial court properly admitted Dr. Laskey's expert opinion.
    The father next challenges Findings of Fact 7 and 8 because they are based upon Dr. Laskey's testimony. He argues that because Dr. Laskey was biased and relied upon a presumption in her expert opinion, these findings of fact were improper. As we have concluded Dr. Laskey did not erroneously rely upon a presumption and that the bias evidence was for the trier of fact to resolve, we conclude Findings of Fact 7 and 8 were proper.
    The father next challenges Finding of Fact 14 regarding Dr. Meisburger's testimony and her child mental health evaluation of C.S. The father contends the testimony and report were based upon hearsay, lacked trustworthiness, and were highly prejudicial. He also contends the trial court erroneously adopted the report as a finding of fact. Finding of Fact 14 states:
        Dr. Diana Meisburger interviewed [C.S.] in October and November following the September hospitalization of the babies. Her testimony and her written report indicate that a prior report of neglect was substantiated against [the mother] in December 2000 due to numerousmissed medical appointments for [C.S.] who has been diagnosed with Russell-Silver syndrome, moderate mental retardation and developmental delays. [The mother] told Dr. Meisburger that these appointments were “re-check appointments for infections that had cleared up,” and that her job was in jeopardy at the time due to so many medical appointments. Both [the mother] and her mother reported that [C.S.] did not like to be alone with [the father]. There was an incident (one of many) where [C.S.] had wet his pants at school. He “pitched a fit” when told he would have to go straight home to [the father] because [the father] would make [C.S.] stand in the corner for thirty minutes, or go to bed if he didn't listen. In addition, [C.S.] demonstrated real terror at the prospect of being bathed by his foster father and then did not want to talk about being bathed by [the father] to Dr. Meisburger. [C.S.] curled up in a fetal position when asked to demonstrate this. He told her that [the father] had “hurt him.” He has never been able to give the details. [C.S.]'s foster parents believe the child had never had a hot dog or oatmeal or pancakes, due to his reaction to these foods when they were first presented to him. When he first came into foster care, [C.S.] only ate mayonnaise sandwiches and lay on his back playing with his feet. During the weeks just prior to the events of 9/25/02, [C.S.]'s teachers noticed a change in his attitude: he was having more trouble focusing on his work, had begun to “back talk” and had begun to keep three of his fingers in his mouth. When [C.S.] first came to Chatham County with [his mother], he was in great need of in-home physical therapy services since he was not walking at all and did not truly crawl. Due to [the mother]'s work schedule, it was difficult for her to receive these services for him. Dr. Meisburger has concluded that [C.S.] presented as a traumatized child and is at high risk for maltreatment due to the significant and pervasive delays in his development. Dr. Meisburger also noted that [C.S.] is still afraid and is guarded and withholding of information about his experiences in his family. She further notes that it is difficult to assess [C.S.]'s safety with [his mother]: [name omitted], the grandmother, hadtold Dr. Meisburger that both she and [the mother] were “trying to figure out what happened to the babies,” despite the reports from the UNC doctors.

    Under N.C. Gen. Stat. § 8C-1, Rule 702(a) (2003):
        If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.

Id. As explained in N.C. Gen. Stat. § 8C-1, Rule 705 (2003):
            The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion.

Id. Disclosure of the basis of an expert opinion is often essential to the factfinder's assessment of the credibility and weight to be given to it. State v. Jones, 322 N.C. 406, 412, 368 S.E.2d 844, 847 (1988). However, the underlying data and facts used to form the expert opinion are admissible only for the limited purpose of showing the basis of the expert opinion and not as substantive evidence. Id. at 413-14, 368 S.E.2d at 848. If the underlying data and facts qualify for admission as evidence under an independently recognized principle, such as an exception to the hearsay rule, then it may be considered substantively. 2 Henry Brandis and Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 188 (6th ed. 2004).    In Finding of Fact 14, the trial court listed statements from Dr. Meisburger's testimony and her written report regarding statements made by C.S.'s grandmother, mother, and foster parents, facts taken from other written reports, and her personal observations during her interview with C.S. These facts and data form the basis of Dr. Meisburger's expert opinion that C.S. was traumatized and at a high risk of maltreatment due to the significant and pervasive delays in his development. However, the underlying facts and data were not substantive evidence, and the trial court could not rely upon it in rendering its findings of fact and conclusions of law, unless the underlying data and facts were admissible under another rule of evidence.
    DSS contends the testimony and written report were admissible under N.C. Gen. Stat. § 8C-1, Rule 803(4) and Rule 803(6) (2003). Under Rule 803(4), “[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id. “Rule 803(4) requires a two-part inquiry: (1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment.” State v. Hinnant, 351 N.C. 277, 284, 523 S.E.2d 663, 667 (2000). “The text of the rule makes it quite clear that only the statements of the person being diagnosed or treated are excepted from the prohibitionagainst hearsay.” State v. Jones, 339 N.C. 114, 146, 451 S.E.2d 826, 842 (1994). As Dr. Meisburger testified regarding statements made by the grandmother, mother, and foster parents describing their observations of C.S. and opinions, Dr. Meisburger's testimony and report were not admissible under Rule 803(4).
    Under N.C. Gen. Stat. § 8C-1, Rule 803(6), Records of Regularly Conducted Activity:
            “Business records are admissible as an exception to the hearsay rule if '(1) the entries are made in the regular course of business; (2) the entries are made contemporaneously with the events recorded; (3) the entries are original entries; and (4) the entries are based upon the personal knowledge of the person making them.'”

State v. Friend, 164 N.C. App. 430, 436, 596 S.E.2d 275, 280 (2004) (citations omitted). In this case, the child mental health evaluation report contained information that was not based upon Dr. Meisburger's personal knowledge. The statements in the report were based upon descriptions of statements made by the mother, grandmother, teachers, school guidance counselors, foster parents, DSS investigators and social workers. Accordingly, the statements in the child mental health evaluation that were not based upon Dr. Meisburger's personal knowledge were inadmissible under Rule 803(6).     Based upon this discussion of the admissibility of Dr. Meisburger's testimony, the following portions of Finding of Fact 14 were admissible as substantive evidence:
        Dr. Diana Meisburger interviewed [C.S.] in October and November following the September hospitalization of the babies[;]
        [C.S.] . . . did not want to talk about being bathed by [the father] to Dr. Meisburger. [C.S.] curled up in a fetal position when asked to demonstrate this[; and]

        Dr. Meisburger has concluded that [C.S.] presented as a traumatized child and is at high risk for maltreatment due to the significant and pervasive delays in his development.

    We also note that Finding of Fact 14 was not a finding of fact; rather, it was a mere recitation of the testimony and evidence presented.
        In a nonjury trial, it is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony. If different inferences may be drawn from the evidence, the trial judge must determine which inferences shall be drawn and which shall be rejected. Where there is directly conflicting evidence on key issues, it is especially crucial that the trial court make its own determination as to what pertinent facts are actually established by the evidence, rather than merely reciting what the evidence may tend to show.

In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365-66 (2000) (citations omitted). The trial court is required to make findings of fact on the ultimate facts. See In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (citations omitted) (stating “the trial court's factual findings must be more than a recitation of allegations. They must be the 'specific ultimate facts . . . [which] are the final resulting effect reached by processes of logical reasoning from the evidentiary facts'”); see also In re E.N.S., 164 N.C. App. at 151, 595 S.E.2d at 170 (citations omitted) (stating “'[f]indings of fact are defined as“[d]eterminations from the evidence of a case . . . concerning facts averred by one party and denied by another”'”).
    Finding of Fact 14 is a summary of testimony and a statement of evidentiary facts, not an ultimate finding of fact based upon the trial court's reasoning from evidentiary facts. The finding lists what people believe occurred, states that the doctor is unable to assess C.S.'s safety with his mother, and indicates that C.S. is withholding information. Instead of determining the disputed facts, the trial court indicated it was unable to determine the facts because either the child withheld information or the doctor could not make an assessment. Accordingly, we conclude the only proper aspect of Finding of Fact 14 is Dr. Meisburger's opinion that C.S. was traumatized and at high risk of maltreatment due to his developmental delays.
    Next, the father challenges Finding of Fact 24, which addresses the mother's alleged statement to the social worker that an emergency room physician told her K.G. might be the victim of shaken baby syndrome. The father's argument is identical to the argument presented by the mother in her appeal. Based upon our analysis in the mother's appeal, we agree with the father's contentions.
    The father also argues Findings of Fact 28 and 29 are not proper findings of fact but are conclusions of law. These findings stated:
        28.    The court finds as a fact that [the father] physically abused both of his babies, [K.G.] and [D.G.], by causing the injuries described above.
        29.    The court further finds that [the father] emotionally abused [C.S.] by creating or allowing to be created serious emotional damage to this juvenile, as evidence by his severe anxiety, and by using grossly inappropriate devices to modify the child's behavior.

As explained in Montgomery v. Montgomery:
        A “conclusion of law” is the court's statement of the law which is determinative of the matter at issue between the parties. A conclusion of law must be based on the facts found by the court and must be stated separately. The conclusions of law necessary to be stated are the conclusions which, under the facts found, are required by the law and from which the judgment is to result.

Montgomery v. Montgomery, 32 N.C. App. 154, 157, 231 S.E.2d 26, 28- 29 (1977) (citations omitted). Clearly, Finding of Fact 28 is more accurately described as a conclusion of law because the trial court stated it determined the father abused the twins based upon the injuries described in other findings of fact. Similarly, the statement the “father emotionally abused C.S.” is a conclusion of law based upon the evidence of C.S.'s severe anxiety. Therefore, the father is correct is his argument that these purported findings of fact are actually conclusions of law. Nonetheless, if these conclusions of law are supported by the findings of fact, the conclusions may be considered by the trial court in its determination of whether the children were abused, neglected, and dependent.
    Finally, the father contends the trial court's determination that the children were abused, neglected, and dependent is not supported by the findings of fact. First, the juvenile petitiondid not allege C.S. was abused and the petition was not amended. See In re Ivey, 156 N.C. App. at 401, 576 S.E.2d at 389; In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793. Thus, the trial court did not have the authority to conclude the father abused C.S. However, the findings of fact do support the conclusion that K.G. and D.G. were abused and neglected by the father. Dr. Laskey's expert opinion that the children were subjected to abusive head trauma, the description of the twin's severe injuries, the fact that the father lied to the social worker about the cause of the injuries, and the fact that the father was alone with the children when the injuries occurred support the determination that K.G. and D.G. were abused and neglected. Based upon these conclusions and the fact that the father physically abused K.G. and D.G., the trial court also properly determined C.S. was neglected. However, we conclude the children were not dependent because their mother was capable of providing adequate care and supervision.
    In sum, we conclude the trial court erroneously concluded the children were abused, neglected, and dependent in regards to the mother. However, the trial court did not erroneously conclude the father neglected C.S., and abused and neglected K.G. and D.G. The trial court's conclusion that the children were dependent was not supported by the findings of fact, and the trial court did not have authority to conclude C.S. was abused as the petition did not allege abuse. Accordingly, we affirm in part the trial court's orders as to the father, but we reverse the orders as to the mother. Thus, the trial court's adjudication and dispositionorders are vacated as to the mother and we remand to the trial court for dismissal with prejudice of the petition alleging abuse, neglect, and dependency by the mother. N.C. Gen. Stat. § 7B-807.
Affirmed in part, reversed and remanded in part.
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).


Footnote: 1
     Moreover, the social worker was providing testimony similar to the mother's explanation of what occurred in June 2002 prior to being cut off by the trial court and attorneys. After the social worker testified an E.R. doctor indicated K.G. may have been the victim of shaken baby syndrome, the social worker then stated, “[b]ut due to Dr. Hodges' [the pediatrician] stating that she knew [the mother] as a parent and that she was a good parent--.” This statement is similar to what the mother testified occurred.
Footnote: 2
     Although we acknowledge this is not a termination of parental rights proceeding, we are utilizing case law from a termination of parental rights context as our research does not reveal any cases addressing the relevancy of a prior adjudication of neglect in a non-termination case.

*** Converted from WordPerfect ***