IN THE MATTER OF:
N.F.
Wake County
No. 01 J 509
Appellant Defender Staples Hughes, by Assistant Appellant
Defender Daniel R. Pollitt, for respondent-appellant.
Wake County Guardian ad Litem, by Attorney Advocate Richard
Croutharmel, for juvenile-appellee.
JACKSON, Judge.
Respondent-mother appeals from an adjudication order entered
10 January 2002 placing N.F. with his maternal grandparents
following hearings on 28 and 29 November and 12 and 13 December
2001. Evidence presented at the hearings tended to show that N.F.
was born 1 June 2001 to respondent and A.F. N.F. suffered fetal
distress during birth and remained at the hospital for five days
before returning to respondent's home. A.F. maintained his own
residence but often stayed at the home of respondent during June
and July of 2001. Although she received psychotherapy and took
anti-depressant medication for her depression, respondent's
condition prevented her from maintaining her career as an attorney. Although A.F. held himself out as N.F.'s father, paternity of N.F.
was never established legally.
N.F. was taken by respondent to the Duke Pediatric Clinic (the
“Clinic”) on 15 August 2001 for a routine check-up and
vaccinations. Before the vaccines were administered, respondent
was advised of several potential adverse reactions that N.F. might
experience as a result of the vaccines including irritability,
uncontrollable crying, seizures, fever, rashes and red patches.
Immediately upon receiving the vaccinations, N.F. began to cry and
wail. Respondent was instructed to administer Tylenol to N.F.
After returning home, N.F. acted sedated and generally seemed out
of sorts and respondent continued to administer Tylenol as
instructed. A.F. spent the night of 15 August at respondent's
apartment.
On the morning of 16 August N.F. woke around 6:00 a.m. and
continued to be fussy and irritable. Respondent fed and cared for
N.F. before finally getting him to sleep around noon. After N.F.
was asleep, respondent left him in A.F.'s care while she went out
to run errands. Respondent returned approximately one hour later
to find A.F. coming out of N.F.'s room. A.F. said that N.F. had
woken up but that he had rocked N.F. back to sleep. Approximately
ten minutes later, N.F. began to cry in a way that respondent had
never heard before except immediately after he had received the
vaccinations on the previous day. When respondent picked N.F. up
he was limp, would not open his eyes, and continued to cry. Respondent called 911 thinking that N.F. was having a severe
reaction to the vaccinations.
A paramedic arrived at the apartment at 2:35 p.m. and found
N.F. crying persistently, irritable and moving around as if trying
to bounce out of respondent's arms. The paramedic did not observe
anything unusual about N.F.'s crying. N.F. was never removed from
respondent's arms for assessment by the paramedic but, from the
assessment that he was able to complete, the paramedic observed
nothing unusual about N.F. Based on his observations and the
information that N.F. had received vaccinations the previous day,
the paramedic did not feel that transporting N.F. to the hospital
was necessary and advised respondent to watch for any further
changes and call 911 or her pediatrician if any were noticed.
N.F. continued to cry throughout the remainder of the
afternoon and that night, slept for only short periods at a time
and refused to eat. About midnight N.F. began to kick and jerk his
leg and seemed to become more lethargic. At 7:30 a.m. on 17
August, respondent called the Clinic and made an appointment for
N.F. that day. N.F. was seen at 9:45 a.m., was initially diagnosed
with a bacterial infection, and immediately transferred to the Duke
University Hospital Emergency Room. N.F. began to have seizures
after reaching the emergency room. N.F. was admitted to the
intensive care unit and hospital officials notified DSS that N.F.
was suspected to have suffered blunt head trauma. N.F. remained in
the hospital for approximately three weeks during which timerespondent spent a great deal of time at the hospital with N.F. and
no inappropriate behavior toward N.F. by respondent was noted.
DSS offered, without objection, Dr. Karen St. Claire (“Dr. St.
Claire”), a pediatrician at Duke University Medical Center, as an
expert in pediatric medicine and child abuse and neglect. Dr. St.
Claire testified that N.F. had a subdural hemorrhage, retinal
hemorrhages and petechia (a particularly concerning type of rash)
on his neck when he was admitted to the hospital. Dr. St. Claire
testified that, after examining N.F. and reviewing all of his
medical records, she determined N.F.'s symptoms were consistent
with non-accidental trauma, specifically shaken baby syndrome. In
making that determination, Dr. St. Claire had considered and ruled
out infectious disease, metabolic disease, respiratory disease, and
cardiac disease as possible causes of the symptoms. Dr. St. Claire
also testified that, in her opinion, the vaccinations received by
N.F. had nothing to do with his head injuries.
Respondent testified that she had not shaken N.F. nor caused
injury to him in any way.
N.F. was adjudicated abused and neglected and relative
placement was ordered by the trial court. Respondent timely
appealed the adjudication order.
On appeal, respondent makes nineteen assignments of error but
presents argument and authority for only four of these assignments
in her brief. The assignments of error for which no argument is
presented are deemed abandoned. N.C. R. App. P. Rule 28(b)(6)
(2005). In one of her remaining assignments of error, respondentassigns error to nineteen findings of fact but only presents
argument in support of this assignment regarding five of those
findings of fact. Pursuant to North Carolina Rules of Appellate
Procedure Rule 28(b)(6), we consider only the findings of fact to
which error is assigned and argument is presented. In yet another
assignment of error, respondent assigns error to the trial court's
conclusions of law numbers 2 through 5, yet only presents argument
and authority regarding the alleged error of conclusions of law
numbers 2 and 3. Accordingly, the portion of respondent's
assignment of error pertaining to conclusions of law numbers 4 and
5 is not considered. N.C. R. App. Rule 28(b)(6). Similarly, no
argument or authority is presented in support of the portion of
respondent's assignment of error regarding the trial court's order
number 2 and it is not considered.
Respondent's remaining assignments of error are: (1) the
trial court committed prejudicial error in conducting an
independent, ex parte investigation of material issues of fact; (2)
the trial court's findings of fact numbers 10, 12, 31, and 34 are
not supported by competent evidence; (3) the trial court's
conclusions of law numbers 2 and 3 are not supported by the
evidence or the court's findings of fact; (4) paragraph 1 of the
trial court's order is erroneous as it is not supported by the
evidence, findings of fact, or conclusions of law; and (5) the
trial court's Order on Adjudication was erroneous as a matter of
law. Findings of fact that are supported by competent evidence are
binding on appeal even if there is some evidence to the contrary.
In re A.D.L., __ N.C. App. __, __, 612 S.E.2d 639, 645, disc.
review denied, __ N.C. __, 619 S.E.2d 402 (2005) (citing In re
Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988)).
Respondent first argues that the portion of the trial court's
finding of fact number 12 “[t]hat from Wednesday, August 17, 2001,
[N.F.] was in the exclusive care of [respondent] . . .” is not
supported by clear and convincing evidence. This assignment of
error is conceded by petitioner as respondent's uncontradicted
testimony was that she had left N.F. in A.F.'s care for
approximately one hour during that period of time.
Respondent next argues that finding of fact number 34
regarding respondent's failure to express concern in court over
N.F.'s condition or prognosis, or anger or outrage that a violent
injury had been inflicted on N.F. by someone is not supported by
the evidence. The majority of the evidence cited by respondent in
support of this argument comes from transcripts of proceedings
prior to the adjudication hearing. Although the trial court does
not indicate specifically that it considered the prior proceedings
in making its determination, it is clear from several references in
its findings of fact to those prior proceedings that they were
considered by the trial court. At the custody hearing held 4
September 2001, respondent testified that she cried when she heard
Dr. St. Claire testify that N.F. could have cerebral palsy or be
mentally retarded as a result of his injuries. During theadjudication hearing, respondent testified that she was angry that
N.F. had to go through this situation. This finding of fact,
therefore, is not supported by the evidence.
Respondent next takes exception to several portions of finding
of fact number 31. Finding of fact number 31 contains several
instances of conflict between respondent's testimony and other
evidence introduced in the proceeding as well as statements made by
respondent that go to the credibility of her testimony. Respondent
first argues that the portion of finding of fact number 31 that she
testified that she observed N.F.'s foot jerking prior to the
morning she took him to the hospital only after hearing Dr. St.
Claire testify that N.F.'s symptoms should have been exhibited
prior to that morning. Respondent did testify at the adjudication
hearing, prior to Dr. St. Claire's testimony at the hearing, that
she felt N.F.'s foot jerking during the night of 16 August 2001 or
early morning of 17 August 2001. Accordingly, this portion of the
finding of fact is not supported by competent evidence.
The next contention regarding this finding of fact raised by
respondent is that the portions of the trial court's findings of
fact regarding her alcohol use were not supported by the evidence.
The portion of finding of fact number 31 which states, “she
testified that she had been drinking a considerable time, as much
as 6-10 beers at a time[,]” actually is a misstatement of
respondent's testimony relating to a report by her psychiatrist
sent to DSS in September 2001. Respondent's actual testimony
regarding the report about her alcohol use was, “He said at timesthat I had consumed six beers or ten beers. I think, as I recall,
that's what it says, because we've talked about that. It's not
anything that I didn't know. But that had not been an occurrence
for quite some time.” Accordingly, this portion of the trial
court's finding of fact is not supported by the evidence.
Respondent's final argument relating to finding of fact number
31 is that the portion stating, “[Respondent] testified that she
would not talk with Child Protective Services about their
investigation[,] but she would discuss a care plan[,]” is not
supported by the evidence and violated her right to due process of
law. During the custody hearing on 4 September 2001, respondent
testified that she was willing to discuss N.F.'s care with the
social worker, but not the investigation of the case, without her
attorney present. This portion of the finding of fact, therefore,
is supported by the evidence.
Although some portions of the trial court's findings of fact
were not supported by the evidence as noted supra, those findings
are not sufficient to constitute reversible error as the remaining
findings of fact are sufficient to support the trial court's
conclusions of law.
Respondent contends that the trial court's reference to her
assertion of her rights to remain silent and to the presence of
counsel denied her due process of law. “It is well-established
that 'a defendant's exercise of his constitutionally protected
rights to remain silent and to request counsel during interrogation
may not be used against him at trial.'” State v. Rashidi, __ N.C.App. __, __ 617 S.E.2d 68, 75 (2005) (quoting State v. Elmore, 337
N.C. 789, 792, 448 S.E.2d 501, 502 (1994) (citation omitted)).
However, in a civil proceeding, the finder of fact may use a
party's exercise of her Fifth Amendment privilege against self-
incrimination to infer that her truthful statements would have been
unfavorable to her case. Davis v. Town of Stallings Bd. of
Adjustment, 141 N.C. App. 489, 494, 541 S.E.2d 183, 187 (2000)
(citing Fedoronko v. American Defender Life Ins. Co., 69 N.C. App.
655, 657-58, 318 S.E.2d 244, 246 (1984)).
The context of this finding of fact was the trial court's
observations pertaining to the weight and credibility of
respondent's testimony. Accordingly, the trial court's use of
respondent's exercise of her Fifth Amendment privilege was proper.
This assignment of error is overruled.
Respondent's final argument regarding the trial court's
findings of fact is that its finding of fact that A.F. moved out of
respondent's apartment on 8 August and did not return until the
night of 15 August 2001 was not supported by the evidence. A.F.'s
presence in respondent's apartment prior to 15 August is immaterial
as it is conceded by all parties that he was present during the
time relevant to N.F.'s injury. Accordingly, even if this finding
of fact is not supported by the evidence, it cannot impact the
validity of the trial court's order.
Respondent next assigns error to the trial court's ex parte
factual investigation of the symptoms of shaken baby syndrome. A
trial court's findings of fact cannot be based on informationobtained by the judge through an ex parte investigation. State v.
Crocker, 239 N.C. 446, 453, 80 S.E.2d 243, 248 (1954). Respondent
argues that the court's findings of fact regarding N.F.'s symptoms
and their significance “were surely based on” the information which
resulted from the ex parte investigation. However, respondent
identifies no findings of fact that allegedly were based upon the
results of the trial court's ex parte investigation. In fact, all
of the court's findings of fact regarding N.F.'s symptoms and their
significance were consistent with the testimony of Dr. St. Claire.
Therefore, there is nothing to suggest that the trial court
improperly relied upon the results of its ex parte investigation in
making its findings of fact.
It also is significant to note that respondent did not object
nor request a mistrial when the trial court disclosed that it had
conducted such an investigation. This issue was, therefore, not
properly preserved for appeal. N.C. R. App. P Rule 10(b)(1)
(2005); Scoggins v. Jacobs, 169 N.C. App. 411, 416-17; 610 S.E.2d
428, 433 (2005). This assignment of error is overruled.
Respondent next contends that the trial court's conclusion of
law number 2 is legally incorrect. Our review of a trial court's
conclusion of law is limited to whether the conclusion is supported
by the findings of fact. In re Montgomery, 311 N.C. 101, 111, 316
S.E.2d 246, 253 (1984). The definition of an abused juvenile upon
which the trial court apparently relied is: any juvenile under
eighteen years of age whose parent “[i]nflicts or allows to beinflicted upon the juvenile a serious physical injury by other than
accidental means.” N.C. Gen. Stat. . 7B-101(a)(1) (2003).
We already have held that finding of fact number 12, that N.F.
was in the exclusive care of respondent from 15 August 2001 until
17 August 2001 (which is the period during which N.F. suffered his
injury) is not supported by the evidence. However, that holding is
based upon evidence that A.F. had the juvenile in his exclusive
care for approximately one hour during that period. This was the
only evidence offered by respondent that challenges this finding of
fact. Accordingly, it is undisputed that during the time in which
the juvenile's injury occurred he was in the exclusive care of
either respondent or A.F. The trial court's finding of fact,
number 24 stated that N.F. suffered serious injuries by other than
accidental means. These findings of fact, taken together, support
the trial court's conclusion of law that N.F. was an abused
juvenile as defined by North Carolina General Statutes, section 7B-
101(a)(1). Accordingly, this assignment of error is overruled.
Respondent also argues that conclusion of law number 3, that
N.F. was a neglected juvenile, is not supported by clear and
convincing evidence. A neglected juvenile is defined by North
Carolina General Statutes, section 7B-101(15) (2003), in relevant
part, as one “who lives in an environment injurious to the
juvenile's welfare . . . .” Respondent's basis for this argument
is that the trial court made no finding or conclusion that
respondent ever caused, or allowed to be caused, intentional injury
to the child. This argument appears to be based on amisapprehension of the law. The proper determinative factors in
evaluating allegations of neglect “are the circumstances and
conditions surrounding the child, not the fault or culpability of
the parent.” Montgomery, 311 N.C. at 109, 316 S.E.2d at 252.
Accordingly, our review is limited to whether the trial
court's findings of fact support the conclusion that N.F. lived in
an environment injurious to his welfare. Respondent argues that
the only evidence in the record that tends to prove that N.F. was
neglected was the testimony of Dr. St. Claire, which she now
contends is not credible as Dr. St. Claire was a “classic
interested witness” due to her employment at Duke where the
vaccinations were administered. However, respondent offered no
objection to the admission of Dr. St. Claire as an expert at trial,
nor did she object to any of Dr. St. Claire's testimony on the
basis of credibility or bias. Accordingly, these arguments have
not been properly preserved for appeal and are not considered.
Further, respondent's only preserved assignment of error
pertaining to Dr. St. Claire's testimony does not challenge the
trial court's findings of fact regarding the doctor's testimony in
any way. The only assignment of error related to Dr. St. Claire's
testimony merely challenges the portion of a finding of fact that
respondent's testimony regarding the timing of the onset of N.F.'s
seizures changed after hearing Dr. St. Claire's testimony. Where
no exception is taken to findings of fact, they are presumed to be
supported by clear and convincing evidence and are, therefore,binding upon appeal. In re J.D.S., ___ N.C. App. ___, ___, 612
S.E.2d 350, 355 (2005).
The trial court's uncontroverted findings of fact pertinent to
this assignment of error are: that the child suffered a serious
physical injury; that the injury was suffered by other than
accidental means; and that the child “lived in an environment where
his caretakers were unable to provide for his basic health and
safety and in an environment injurious to his welfare.” These
uncontested findings of fact, coupled with the trial court's
findings of fact regarding N.F. being in the exclusive care and
custody of either respondent or A.F. during the time period in
which the injury was likely to have occurred, clearly support the
conclusion that N.F. was a neglected juvenile. Therefore, this
assignment of error is overruled.
Respondent's final assignment of error is that the trial
court's Order on Adjudication was erroneous as a matter of law.
Respondent argues that, because the trial court failed to state
that the allegations in the petition had been proven by clear and
convincing evidence, the Order on Adjudication was erroneous as a
matter of law. “If the court finds that the allegations in the
petition have been proven by clear and convincing evidence, the
court shall so state.” N.C. Gen. Stat. . 7B-807(a) (2003).
“Failure by the trial court to state the standard of proof applied
is reversible error.” In re O.W., 164 N.C. App. 699, 702, 596
S.E.2d 851, 853 (2004) (citing In re Wheeler, 87 N.C. App. 189,
193, 360 S.E.2d 458, 461 (1987)). “However, there is norequirement as to where or how such a recital of the standard
should be included.” Id. In In re O.W., this Court held that the
use of the words “concludes through clear, cogent convincing
evidence,” was sufficient to satisfy the requirements of North
Carolina General Statutes, section 7B-807. Id.
In the case sub judice, the trial court stated in its order,
before its findings of fact, that the court “makes the following
findings of fact by clear, cogent and convincing evidence.” After
its findings of fact, the trial court stated, “[b]ased upon the
foregoing findings of fact, this Court concludes as a matter of law
. . .” As the trial court stated the proper standard of proof
prior to its findings of fact and the facts found by the trial
court, upon which its conclusions of law were based, were
determined pursuant to that standard of proof, we hold that the
trial court's order satisfied the requirements of section 7B-807.
Accordingly, this assignment of error is overruled.
Affirmed.
Judges McGEE and McCullough concur.
Report per Rule 30(e).
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