An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-106


Filed: 15 November 2005


J.M., D.M. & K.M.,
        Minor Children.

                        Guilford County
                        Nos. 03 J 297, 298 & 299

    Appeal by respondent from orders signed 10 May 2004 and 25 May 2004 by Judge Lawrence C. McSwain in District Court, Guilford County. Heard in the Court of Appeals 21 September 2005.

    Michael K. Newby for petitioner-appellee.

    Joyce L. Terres for guardian ad litem.

    Susan J. Hall for respondent-appellant.

    McGEE, Judge.

    J.F.M. (respondent) is the father of J.M., D.M., and K.M. (the children). Respondent is also the father of J.T.M., who died on 15 May 2003. The mother of all four children is not a party to this appeal.
    The Guilford County Department of Social Services (DSS) filed a juvenile petition on 16 May 2003, alleging that the children were abused, neglected and dependent. Specifically, DSS alleged the children were abused because "a child sustained a serious physical injury by other than accidental means." DSS alleged the children were neglected "in that they [were] less than 18 years of age and [had] been living in an injurious environment in the care of theirmother and father and reside[d] in a home where another juvenile [had] died as a result of suspected abuse or neglect." Finally, DSS alleged the children were dependent because they were minors and had "no parent, guardian or custodian willing or able to provide for their care and supervision and there [was] no known alternative plan." The trial court entered an order for nonsecure custody on 16 May 2003, placing custody of the children with DSS.
    In a pre-trial order, the parties stipulated to the following facts. Rockingham County Department of Social Services (RC DSS) previously had legal custody of all four children from 25 October 2002 until 15 May 2003. The Rockingham County trial court adjudicated all four children as neglected on 19 November 2002 and they were placed in foster care. J.M. and D.M. were moved from foster care to their grandparents' home on 20 December 2002, but K.M. and J.T.M. remained in foster care.
    The Rockingham County trial court allowed the parents to begin overnight visitation with all four children on 13 February 2003. The children initially visited their parents in groups of two. J.T.M. and K.M., who were twins, had regular overnight visitation with their parents from 14 February 2003 until 21 March 2003. The other two children, J.M. and D.M., also had regular overnight visitation with their parents during that period. J.T.M. and K.M. were placed in a full-time trial placement with their parents from 24 March 2003 until 15 May 2003, although J.T.M. was hospitalized from 8 April 2003 until 17 April 2003. There was a trial placement of J.M. and D.M. with their parents from 15 March 2003 until 15 May2003. The Rockingham County trial court returned full custody of all four children to the parents on 15 May 2003.
    At the adjudication hearing, Terry Pruitt (Mr. Pruitt) testified that he was the licensed foster parent of J.T.M. and K.M. from October 2002 until March 2003. Mr. Pruitt testified that on several occasions in February and March 2003, J.T.M. and K.M. had bruises and marks on them when they returned from visitation with their parents. Mr. Pruitt also testified that he informed social workers about the bruises and marks. He testified that K.M. had two dark bruises on the back of his thighs when K.M. returned to the foster home from visiting his parents on 21 February 2003. Mr. Pruitt also testified that on 6 March 2003, J.T.M. returned from visitation with his parents with bruises on his abdomen, on the back of his leg, and near his groin. Mr. Pruitt further testified that J.T.M. had scabs on his ear and elbow on 12 March 2003 when J.T.M. returned from visiting his parents. Mr. Pruitt testified that he visited J.T.M. in the hospital in April 2003 and that the child was very pale and thinner than he had been in March 2003 when J.T.M. left his foster home. He also testified that J.T.M. had a big scab on the end of his nose and multiple sores on his backside.
    According to a 911 tape introduced into evidence at trial, the children's mother called the 911 Center at 10:28 p.m. on 15 May 2003 to report that J.T.M. was not breathing. The children's mother and respondent spoke with the 911 operator while respondent unsuccessfully attempted to administer CPR to J.T.M. The responding paramedic was unable to revive J.T.M. and he was takento the hospital. According to hospital records, J.T.M. arrived at High Point Regional Hospital at 11:11 p.m. Hospital staff members were also unable to revive J.T.M., who was pronounced dead at 11:24 p.m. on 15 May 2003.
    Dr. John D. Butts (Dr. Butts), the Chief Medical Examiner for the State of North Carolina, testified that he conducted an autopsy on J.T.M. Dr. Butts testified that J.T.M. had multiple healing rib fractures, multiple bruises and a healing tear of his mesentery. Dr. Butts testified that the rib fractures occurred at least ten days to two weeks prior to 15 May 2003, the day J.T.M. died. Dr. Butts testified that the patterns of bruising and rib fractures were not consistent with the application of CPR. Dr. Butts further testified that "[J.T.M.] met the criteria for being diagnosed as being a battered child; that is, he had suffered injuries at multiple times; that these injuries were of a nature that they would not have been incurred, in [Dr. Butts'] opinion, in an unintentional or accidental fashion."
    Kimberly Madden, a counselor with the Moses Cone Health System assigned to the Child Evaluation Clinic, testified that she conducted a child medical evaluation of J.M. on 29 May 2003. Kimberly Madden testified that, during the interview, J.M. said that "[respondent] made [J.T.M.] not breathe" and that respondent was mean to J.T.M. The trial court also received into evidence J.M.'s medical report and a video tape recording of J.M.'s child medical evaluation, both of which contained J.M.'s statements.
    The children's mother gave two statements to law enforcement,one on 1 October 2003 and the other on 27 October 2003. In the statements, the children's mother implicated respondent in the physical abuse of J.T.M. and K.M. DSS offered, and the trial court received, the statements into evidence.
    In support of its adjudication order, the trial court made twenty-five findings of fact, which are set forth below:
        1. [J.M., D.M., J.T.M., and K.M.] were in [RC DSS] legal custody from October 25, 2002 to May 15, 2003 having been adjudicated dependent and neglected on November 19, 2002 in Wentworth, North Carolina.

        2. J.M. and D.M. were moved from foster care to their grandparents' home on December 20, 2002, but the two younger children remained in foster care until March 24, 2003.

        3. On February 13, 2003 at the initial post adjudication review, the Rockingham County [Trial] Court approved a consent order allowing overnight visitation for the [parents] with the above-named children with those children going to stay with their parents in groups of two with the oldest two alternating with the twins and the oldest two always visiting during the day on each Saturday.

        4. There was a trial placement of J.M. and D.M. with [their parents] on March 15, 2003 until the case closed on May 15, 2003. From February 13, 2003 the [parents] had regular overnight unsupervised visitation with the twins, J.T.M. and K.M. on the following schedule:
            FROM                    TO

            2/14/03                2/21/03
            2/24/03                2/26/03
            3/04/03                3/07/03
            3/10/03                3/12/03
            3/14/03                3/17/03
            3/19/03                3/21/03

        5. The twins were placed in a full-time trial placement with [their parents] on March 24,2003 and remained there until the case closed in Rockingham County on May 15, 2003.

        6. Subsequently, J.T.M. was hospitalized in Eden at Morehead Memorial Hospital from April 8, 2003 until April 17, 2003 suffering from what was diagnosed as a rotovirus infection and a failure to thrive.

        7. The Rockingham County [Trial] Court returned full custody of all four children to the [parents] on May 15, 2003.

        8. At 10:28 p.m. on May 15, 2003, the Guilford County 911 Center received a call from the [parents] indicating that the child, J.T.M. was not breathing.

        9. Both the second responding fireman and the later arriving paramedic testified that [respondent] was acting suspicious upon their arrival. They further testified that [respondent] indicated the child had stopped breathing while he was feeding him. Both indicated that upon examination the airway was clear.

        10. From all the witnesses presented, none of the health care professionals indicated that they ever discovered anything obstructing the airway although an ambulance narrative report indicated: ". . . suction airway 10-20 cc of thick white fluid airway cleared[.]"

        11. Melissa Edwards, Emergency Room Nurse, also testified that no one at the hospital found any obstruction in the child's breathing airway or had to clear the airway. She also spoke of the extensive bruising on the child and [lacerated] rectum as illustrated by the photographs entered into evidence. She also testified to [respondent's] violent behavior at the hospital in that [he] turned over a piece of furniture and had to be restrained by the chaplain upon learning of the death of his child. The court notes that respondent['s] father[] testified in direct contradiction to the nurse as he indicated that [respondent] did not turn over a chair but that it was slid back by the grandfather as he caught [respondent] when [respondent] fell into his arms upon hearing that the baby was dead.
        12. State Medical Examiner, John D. Butts, M.D., testified that pursuant to the autopsy which he had performed on the infant, that he determined that the child had healing fractures of the 7th, 8th, 9th and llth ribs. Further, the child had recent fractures of the 7th rib. Also, there were numerous scattered bruises of the abdominal wall, head, cheek, legs and trunk region. Also, there was an old healing tear of the small intestine as well as a recent trauma to the same region. Further, there was a laceration or wound of some kind on the child's heel. Dr. Butts gave his opinion that the pattern of bruises and fractures were inconsistent with . . . respondent['s] . . . explanation that they occurred while he was attempting CPR. He also gave his analysis that the old fractures and lacerated portion of the small intestine could have been incurred prior to April 8th and that some of these old fractures were also over two weeks to a month old on April 8th. Although, from the physical evidence, Dr. Butts was not able to determine the immediate cause of death, he did conclude that as a result of the series of unexplained non-accidental injuries the child suffered from battered child syndrome.

        13. Respondent's expert witness, Doctor Richard Jason, M.D., also acknowledged the injuries as described above. However, he concluded that the child did not suffer from battered child syndrome and, in fact, died from choking on formula. He also contended that the pattern of bruises in the abdominal region was a result of botched CPR. However, he was unable to explain the old injuries, old fractured ribs, torn small intestine or the bruises to the head, upper body and legs.

        14. Ms. D'Jarkata Solomon, the . . . DSS worker who interviewed [respondent] the day after the child's death testified that [respondent] indicated that he was performing CPR on the baby and that he called 911. He stated that he panicked because the child was not breathing and hit the baby on his leg, side and back with his hand.

        15. Testimony was also received [concerning] a child medical evaluation on the minor child,J.M. (J.T.M.'s sibling) in which [J.M.] said, "Daddy made J.T.M. stop breathing and Daddy was mean to J.T.M." The Court notes that there was no specific time frame or explanation for [J.M.'s] statement offered with the evidence.

        16. Evidence from two prior statements made by the [children's] mother . . . while she was in police custody in which she described [respondent] as physically abusing J.T.M. as well as sometimes choking K.M. The [children's] mother in those statements had said that on May 15th [respondent] had been choking J.T.M. prior to his request that she call 911.

        17. Testimony was received from the deceased infant's foster care foster parent who testified to a pattern of bruises and other injuries, which occurred while its parents were exercising unsupervised visitation.

        18. In particular, the Court finds that on March 7, 2003 . . . K.M. had severe bruising on his thighs and . . . J.T.M. had a bruise on his forehead. On March 12th, J.T.M. had a scrape on the tip of his ear and a mark on his finger. On March 14th, J.T.M. had a mark on his elbow. On March 17th, J.T.M. had a bruise on the back of his head as well as severe diaper rash. On March 21st, J.T.M. had a large bruise in his groin area. On April 1st, J.T.M. had diaper rash, sunburned nose and a bruise on his chin.

        19. Rockingham County Social Worker, Susan Irving, [corroborated] Mr. Pruitt's . . . [testimony] concerning the bruising. This witness offered explanations for the various injuries as reflected in her DSS case notes also introduced into evidence.

        20. Testimony from several witnesses indicated that prior to May 15th they had . . . seen the baby and handled the baby, J.T.M., and had not seen extensive bruising that was present at the hospital. In particular, Bobby Woods, the [parents'] neighbor, testified that she kept the children in the morning of May 15th and that she did not see any bruises on J.T.M. in the morning, northe injury to his foot.

        21. Therefore, the parents were the sole caretakers of the dead infant prior to the 911 call which led to his transportation to High Point Regional Hospital where the extensive bruising was observed and recorded.

        22. From all the evidence presented the Court finds that from all this evidence that there were substantial injuries to the dead infant J.T.M. such as the older rib fractures and a perforated small intestine which was present as early as April 8th as well as more, fracturing and very fresh injuries including fractures, extensive bruising and more injury to the small intestine.

        23. Further, the Court finds that these injuries were non-accidental [and] occurred during periods of time when the parents had supervision over the dead infant and over an extended period of time, consequently, they conformed to the recognized definition of battered child syndrome and that therefore, the infant J.T.M. was an abused juvenile.

        24. Since the infant J.T.M. suffered abuse, the other children who were residing in that home, J.M., D.M., and K.M., were neglected under the provisions of N.C.G.S. 7B-101(15).
        25. The Court finds that [DSS] was unable to prevent the filing of the petition and the removal of the [children] or make reasonable efforts due to the imminent threat of harm as described in the reasonable efforts report filed in this cause.
    The trial court adjudicated the children as neglected in an order signed 10 May 2004. The trial court ordered that the children "remain in the physical and legal custody of [DSS]" in a dispositional order signed 25 May 2004. Respondent appeals from both orders.


    Respondent first argues "the trial court abused its discretionin concluding as a matter of law that the [children] were neglected as defined by [N.C. Gen. Stat. § 7B-101(15)] due to insufficiency of the evidence." The appellate standard of review of a conclusion of law is limited to whether the conclusion is supported by the findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Findings of fact not excepted to are presumed to be supported by competent evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Therefore, our only inquiry is whether the findings of fact support the conclusions of law. A neglected juvenile is defined as follows:
        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 determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen. Stat. § 7B-101(15) (2003).
    In the present case, findings of fact 1, 3, 4, 5, 7, 18, 21, 22, 23 and 24 support the trial court's conclusion that the children were neglected juveniles. Pursuant to the definition of a neglected juvenile, evidence that J.T.M. was abused is relevant to a determination of whether the other children residing in the home were neglected. The findings clearly establish that thedeceased child, J.T.M., had substantial, non-accidental injuries that occurred while J.T.M. and the other children were in their parents' physical custody. The injuries indicated that J.T.M. suffered from battered child syndrome. The parents had abundant visitation with all four children in the months preceding J.T.M.'s death. All four children were in full-time trial placement with their parents from 24 March 2003 until 15 May 2003, the date J.T.M. died. Therefore, the findings of fact support the conclusion that the children were neglected juveniles.

    Respondent next argues the trial court abused its discretion by relying upon hearsay statements in concluding that the children were neglected. Specifically, respondent challenges the admission of (1) J.M.'s statements during a child medical evaluation and (2) statements of the children's mother to law enforcement. The trial court incorporated the challenged statements into its order as purported findings of fact fifteen and sixteen. Respondent argues the trial court abused its discretion by relying upon those purported findings in concluding the children were neglected.
    Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2003), "In all actions tried upon the facts without a jury . . . the [trial] court shall find the facts specially and state separately its conclusions of law . . . ." However, a trial court need only make findings regarding the ultimate facts which are essential to support its conclusions of law. In re C.L.C., ___ N.C. App. ___, ___, 615 S.E.2d 704, 708 (2005) (citing Quick v. Quick, 305 N.C.446, 451-52, 290 S.E.2d 653, 657-58 (1982)). A trial court need not find make findings on the evidentiary facts. Id. "'[R]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge, because they do not reflect a conscious choice between the conflicting versions of the incident in question which emerged from all the evidence presented.'" Moore v. Moore, 160 N.C. App. 569, 571-72, 587 S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195 n.1 (1984)) (emphasis in original).
    In the case before us, the trial court began its adjudication order by finding the foundational facts in findings one through eight. The trial court then recited the testimony of the witnesses. In findings nine to seventeen, nineteen and twenty, the trial court illustrated the competing versions of events presented by respondent and DSS and the guardian ad litem. The trial court then complied with statutory mandates by resolving the factual discrepancies in making findings eighteen and twenty-one through twenty-four. The challenged findings, findings fifteen and sixteen, are merely recitations of trial testimony. They are not ultimate findings of fact necessary to support the trial court's conclusion that the children were neglected. Therefore, the trial court did not abuse its discretion by including them in its order as recitations of trial testimony.
    Assuming arguendo that the challenged evidence was inadmissible hearsay, "[t]he mere admission by the trial court of incompetent evidence over proper objection does not requirereversal on appeal." In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000), disc. review denied, 353 N.C. 374, 374, 547 S.E.2d 9, 9-10 (2001). An appellant must also show he was prejudiced by the admission of the incompetent evidence by demonstrating that the trial court relied on the incompetent evidence in making its findings. Id. Here, the trial court merely recited the challenged testimony. Furthermore, because the other findings adequately support the conclusion that respondent neglected the children, respondent has failed to demonstrate prejudicial error.

    Finally, respondent argues the trial court failed to make sufficient findings of fact pursuant to N.C. Gen. Stat. § 7B- 507(a)(1) and (3) in its dispositional order. We disagree. N.C. Gen. Stat. § 7B-507(a) (2003) states:
        An order placing or continuing the placement of a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order:

            (1)    Shall contain a finding that the juvenile's continuation in or return to the juvenile's own home would be contrary to the juvenile's best interest;
            . . . 

            (3)    Shall contain findings as to whether a county department of social services should continue to make reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined or determines under subsection (b) of this sectionthat such efforts are not required or shall cease[.]
    In the present case, the trial court complied with N.C.G.S. § 7B-507(a)(1). The trial court determined that "[i]t [was] contrary to the best interest of the [children] to be returned to the caretaker's home at the present time[.]" Whether we label this a finding of fact or a conclusion of law, it is clear that the trial court made the requisite determination. We recognize that the better practice would have been for the trial court to have made this determination as both a finding and a conclusion. However, we need not remand the case for a restatement of the same determination.
    The trial court also complied with N.C.G.S. § 7B-507(a)(3). A dispositional order need not contain a formal listing of the N.C.G.S. § 7B-507(a) criteria as long as the trial court makes findings regarding the relevant criteria. See In re M.R.D.C., 166 N.C. App. 693, 696, 603 S.E.2d 890, 892 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005). In its dispositional order, the trial court found:
        [The parents] and their attorneys will co- operate with DSS reunification efforts and in particular the parties have agreed to DVIP counseling, supervised visitation; STAR participation parenting assessment and mental health assessment; supervised visitation and participation and co-operate with the UNC-CH School of Psychiatry Child Mal-Treatment Team evaluation and to sign all necessary information releases. The court notes the plan of reunification may be augmented pending the results of the UNC-CH School of Psychiatry Mal-Treatment Team's recommendation.

These findings comply with the requirements of N.C.G.S. § 7B-507(a)(3). The findings detail the reasonable efforts DSS was required to make in a continuing effort to prevent the need for placement of the children. The trial court even noted that the plan of reunification could be augmented pending the results of the UNC-CH School of Psychiatry Child Mal-Treatment Team evaluation.
    Respondent fails to set forth arguments pertaining to his remaining assignments of error and we deem them abandoned pursuant to N.C.R. App. P. 28(b)(6).
    Judges McCULLOUGH and JACKSON concur.
    Report per Rule 30(e).

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