An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
IN THE MATTER OF:
B.I., Buncombe County
Minor Child. No. 04 J 63
Appeal by respondent mother from order entered 14 September
2004 by Judge Shirley H. Brown in Buncombe County District Court.
Heard in the Court of Appeals 17 November 2005.
John C. Adams, for petitioner-appellee Buncombe County
Department of Social Services.
Judy N. Rudolph, for petitioner-appellee Guardian ad Litem.
Winifred H. Dillon, for respondent-appellant.
H.I. (respondent) appeals from order entered adjudicating
her minor child, B.I., to be neglected. We affirm.
T.I., respondent's first child, was born on 29 April 2002 in
Missouri. When T.I. was nine months old, respondent took T.I. with
her to a doctor's appointment. Respondent's doctor immediately
noticed T.I. exhibited two black eyes and severe bruising on her
arms and the back of her head. Respondent took T.I. to a hospital.
A CT scan revealed that T.I. had suffered multiple skull fractures
and a fractured disk in her neck.
Dr. David Riddle, the emergency room doctor, concluded the
injuries resulted from abuse. Respondent and her husband deniedany wrongdoing. They blamed the injuries on the child's behavior
of banging her head against the side of the crib. They also blamed
T.I.'s maternal grandmother and cited her extensive history with
The pediatric neurosurgeon who treated T.I. opined that the
skull fractures were caused by blunt force trauma. On 30 January
2003, the father admitted he had slapped and shaken T.I. when she
A psychologist evaluated the father and diagnosed him to
suffer from a Bipolar I Disorder, mood-congruent psychotic
features, generalized anxiety disorder, obsessive-compulsive
personality disorder, and problems in almost every aspect of his
life. The psychologist recommended an alternate placement of T.I.
be considered due to potential risks to her health and safety.
Respondent suffers from a disease similar to Muscular
Dystrophy and is bound to a wheel-chair. Respondent was diagnosed
with major affective disorder and a mixed personality disorder with
narcissistic and compulsive features.
Due to the injuries T.I. had suffered, the mental illness of
respondent and the father and the physical inability of respondent
to protect T.I. from abuse, both respondents voluntarily
relinquished their parental rights at the Circuit Court of Johnson
County, Missouri, Juvenile Division.
On 25 March 2004, the Buncombe County Department of Social
Services (DSS) received a Child Protective Services Complaint
that respondent would be delivering a child by caesarean sectionthe following day. The complaint alleged concern with leaving B.I.
in the parent's care due to the family's past history with the
Missouri Division of Family Services.
DSS learned of the injuries T.I. had suffered in Missouri.
The Missouri juvenile file was received into evidence, without
objection. Due to the abuse T.I. had suffered, DSS determined that
B.I. would be at substantial risk if she remained in the custody of
On 26 March 2004, DSS filed a juvenile petition alleging B.I.
lived in an environment injurious to her welfare and was neglected.
DSS obtained non-secure custody and, with no appropriate relative
available to care for her, placed B.I. in foster care. Non-secure
custody hearings were held 29 March 2004, 5 April 2004, and 14
April 2004. At the last hearing, respondent and the father waived
further hearings pending the adjudication hearing.
On 12 May 2004, both parents consented to a finding of neglect
based on the allegations in the petition with additional
stipulations, and the petition was adjudicated. The court entered
an interim disposition and set 28 June 2004 for disposition. The
trial court entered the adjudication judgment on 22 June 2004, ten
days after it was statutorily due. N.C. Gen. Stat. § 7B-807
The dispositional hearing was continued on 30 June 2004 until
12 and 13 August 2004. The court was told of allegations of an
attack upon the guardian ad litem by the father. DSS requested:
(1) respondent and the father no longer be allowed visits withB.I.; (2) they be prohibited from DSS's building; and (3) they not
be allowed to attend team meetings. The court agreed with DSS's
The court heard testimony on 12 and 13 August 2004 and ordered
a dispositional order in which the court determined the best plan
for B.I. was adoption with a concurrent plan of guardianship with
a relative. The court released DSS from further reunification
efforts with respondent and the father. B.I. has remained in DSS's
custody for virtually her entire life, twenty months. The father
did not appeal. Respondent timely appealed.
Respondent argues the trial court's: (1) conclusion that the
juvenile was a neglected juvenile is not supported by the trial
court's findings of fact, notwithstanding the parties' consent; and
(2) finding of fact number twenty three and conclusion of law
number four stating [t]hat the Buncombe County Department of
Social Services made reasonable efforts to prevent removal of the
minor child from the home, but removal was necessary to protect the
safety and health of [B.I.] and, the Buncombe County Department of
Social Services has made reasonable efforts to return [B.I.] to the
home are not supported by the findings of fact or the evidence.
III. Standard of Review
This Court's review of a trial court's conclusion of law is
limited to whether it is supported by the findings of fact. In re
Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Thefindings of fact must be supported by clear and convincing
competent evidence. Id.
Respondent argues that the trial court's conclusion and
judgment that B.I. was a neglected juvenile, is not supported by
the trial court's findings of fact, notwithstanding the parties'
consent. We disagree.
The North Carolina Juvenile Code defines a neglected
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not 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) (emphasis supplied).
Allegations of neglect must be proven by clear and convincing
evidence. In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676.
This intermediate standard is greater than the preponderance of
the evidence standard required in most civil cases, but not as
stringent as the requirement of proof beyond a reasonable doubt
required in criminal cases. In re Montgomery, 311 N.C. 101, 109-
10, 316 S.E.2d 246, 252 (1984). Additionally, this Court held that
to adjudicate a child to be neglected the child must be in dangerof physical, mental, or emotional impairment. In re Helms, 127
N.C. App. at 511, 491 S.E.2d at 676.
In In re Helms, the respondent mother argued that the trial
court erred in adjudicating her minor child neglected. 127 N.C.
App. at 511, 491 S.E.2d at 676. This Court affirmed the trial
court's judgment. Id. at 512, 491 S.E.2d at 676. This Court found
that the respondent exposed the child to risk by allowing her
extended contact with the child's biological father and maternal
grandfather. Id. Both men had abused the respondent. Id. The
maternal grandfather used cocaine and attempted to sexually assault
the respondent. Id. The respondent also violated her protection
plan by residing with the child's abusive father. Id. This Court
stated, [i]n this case, clear and convincing competent evidence
supports the trial court's findings of fact. Id.
In the case at hand, clear and convincing competent evidence
supports the trial court's findings of fact. Id. The department
took B.I. into custody immediately after her birth at the hospital.
In the adjudication judgment, the trial court found and concluded
5. That all parties consent that the minor
child is a neglected child based on the
allegations contained in the Juvenile
Petition, and upon additional stipulations
consented to by all parties.
. . . .
9. That Robert['s] and Hester['s] first child
is in the custody of Johnson County Missouri
Children's Division. Both parents voluntarily
consented to termination of their parental
rights for adoption. This termination was
granted by their Juvenile Court in September2003. This child at the age of 8 months was
found to have suffered serious abuse including
skull fracture, a fractured vertebrae, and
contusions on the face and arms while in the
mother's and father's care.
. . . .
BASED ON THE ABOVE FINDING OF FACTS THE
COURT CONCLUDES AS A MATTER OF LAW:
. . . .
2. That the Court finds by clear, cogent and
convincing evidence that the minor child is a
neglected child pursuant to N.C. Gen. Stat. §
7B-101(15) in that the minor child will not
receive proper care and supervision from the
parents and would be exposed to a substantial
risk of potential serious injury in their
Respondent consented in the adjudication judgment that the
minor child is a neglected child. Respondent contends that
evidence of T.I.'s prior abuse by itself is insufficient to support
a conclusion that B.I. is neglected.
Even if it has been established that a child has suffered
physical abuse in a home, that finding does not require the
removal of all other children from the home . . . Rather, the
statute affords the trial judge some discretion in determining the
weight to be given such evidence. In re Nicholson and Ford, 114
N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994). This Court affirmed
the trial court's decision in Nicholson when it stated that the
statute allows the trial court some discretion in determining
whether children are at risk for a particular kind of harm given
their age and the environment in which they reside. In re Mclean,
135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999). Our Supreme Court stated in Montgomery:
the Court of Appeals vacated the trial judge's
order to terminate the respondents' parental
rights based upon its determination that there
was insufficient evidence of neglect to
support the judge's findings and conclusions.
After giving careful consideration to the
entire record, we hold that there exists
substantial evidence in support of the neglect
findings and conclusions.
311 N.C. at 111, 316 S.E.2d at 253. The trial court made the
following findings regarding the neglect of the minor children in
1 -- Failure to send the three school age
children to school with resulting poor grades.
The children each missed school for over 30
4 -- Prior adjudication of neglect.
5 -- The mother was unstable, delusional
(believed that she could have a baby even
though she had had a hysterectomy and believed
that someone or something was trying to get
inside of her) was nervous, failed to take
medicine to control her condition and gets
angry at her children when she does not take
her medicine and that this condition causes
problems between her and her husband when the
children lived with them and that she yells at
the children because of it.
Id. at 112, 316 S.E.2d 253. The trial court in Montgomery made
numerous findings of fact to support the adjudication of neglect.
311 N.C. at 112, 316 S.E.2d at 253. Our Supreme Court held the
evidence was sufficient and reversed this Court's determination of
insufficient evidence of neglect. Id.
Here, while the trial court based its conclusion on a shorter
list of findings, the findings were sufficient to adjudicate B.I.
neglected. T.I., an infant and B.I.'s older sibling, sufferedserious abuse while under respondent's supervision. The trial
court complied with the statute and properly considered whether
B.I. 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). B.I. would have been exposed to a
substantial risk of serious injury while in respondent's care.
In the adjudication judgment and dispositional order filed 12
May 2004, respondent stipulated that T.I. had suffered serious
abuse including skull fracture, a fractured vertebrae, and
contusions on the face and arms while in the mother's care.
Respondent also stipulated [t]hat based on the information that is
currently available it would be contrary to the welfare and best
interest of [B.I.] to remain in the custody of [respondent and the
father] as she would be exposed to a substantial risk of potential
serious injury in their care.
The fact that B.I. was taken from respondent two days after
her birth does not negate the fact that she lives in an
environment injurious to the juvenile's welfare. Id. Nor does
the fact that the abuse of T.I. took place prior to any physical
injury to B.I. lessen the likelihood that B.I. could suffer a
substantial risk of serious injury.
In In re E.N.S., the respondent mother argued: (1) the trial
court erred in concluding the minor child was living in an
environment injurious to the his welfare since the minor child was
taken from her immediately following his birth; and (2) the trial
court erred when it relied on events that took place before theminor child's birth to adjudicate the child to be neglected. 164
N.C. App. 146, 149, 595 S.E.2d 167, 169, disc. rev. denied, 359
N.C. 189, 606 S.E.2d 903 (2004). This Court affirmed the trial
court's judgment that adjudicated the minor neglected. The Court
held that it is important for a trial court to consider whether
there is a likelihood of future abuse. Id. The Court stated:
Here, the trial court carefully weighed and
assessed the evidence regarding a past
adjudication of neglect and the likelihood of
its continuation in the future before
concluding that [the minor child] would be at
risk if allowed to remain with respondent.
Because the neglect statute affords the trial
judge some discretion in determining the
weight to be given such evidence, we hold that
the findings of fact taken in their entirety
are sufficient to support the conclusion that
[the minor child] was a neglected child. This
assignment of error is overruled.
Id. at 151, 595 S.E.2d 169 (internal quotation and citation
The trial court did not commit reversible error when it
adjudicated B.I. neglected. This assignment of error is overruled.
V. Findings of Fact
Respondent argues that the trial court's finding of fact
number twenty-three and conclusion of law number four are not
supported by the findings of fact or the evidence.
Finding of fact number twenty-three and conclusion of law
number four state:
That the Buncombe County Department of Social
Services made reasonable efforts to prevent
removal of the minor child from the home, but
removal was necessary to protect the safety
and health of the child, and, the Buncombe
County Department of Social Services has madereasonable efforts to return the child to the
N.C. Gen. Stat. § 7B-507(a)(2) (2003) mandates:
(a) 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:
. . . .
(2) Shall contain findings as to whether
a county department of social services has
made reasonable efforts to prevent or
eliminate the need for placement of the
juvenile, unless the court has previously
determined under subsection (b) of this
section that such efforts are not required or
N.C. Gen. Stat. § 7B-101(18) (2003) defines reasonable efforts
The diligent use of preventive or
reunification services by a department of
social services when a juvenile's remaining at
home or returning home is consistent with
achieving a safe, permanent home for the
juvenile within a reasonable period of time.
If a court of competent jurisdiction
determines that the juvenile is not to be
returned home, then reasonable efforts means
the diligent and timely use of permanency
planning services by a department of social
services to develop and implement a permanent
plan for the juvenile.
Even if DSS failed to make reasonable efforts to prevent
B.I.'s removal, the trial court possessed the power to place B.I.
in the department's custody. N.C. Gen. Stat. § 7B-507 (a)
A finding that reasonable efforts have not
been made by a county department of social
services shall not preclude the entry of anorder authorizing the juvenile's placement
when the court finds that placement is
necessary for the protection of the juvenile.
Where efforts to prevent the need for the
juvenile's placement were precluded by an
immediate threat of harm to the juvenile, the
court may find that the placement of the
juvenile in the absence of such efforts was
Although parents maintain constitutionally protected rights to
the care, custody, and control of their children, N.C. Gen. Stat.
§ 7B-507, reiterates the well established principle . . . in
determining placement issues is [to consider] the welfare of the
child. In re J.J.L, ___ N.C. ___, 612 S.E.2d 404, 407 (2005).
In the case at hand, the department made reasonable efforts to
prevent B.I.'s removal from respondent's custody. The department:
(1) considered the Missouri child protective case whereby
respondent voluntarily gave up her parental rights to T.I.; (2)
referred respondent and the father to Dr. Robert McDonald for
psychological evaluation; and (3) provided them with visitation and
team meetings. This assignment of error is overruled.
The trial court's conclusion and judgment that B.I. was a
neglected juvenile is supported by the trial court's findings of
fact. The trial court's conclusion of law number four is supported
by the findings of fact and clear, competent, and convincing
evidence. The trial court's order is affirmed.
Judges HUDSON and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***