IN RE K.H.H. Anson County
No. 03 J 52
Paul S. Prelipp, for Anson County Department of Social
Services.
Richard Croutharmel, for respondent mother.
Sophia Crawford, for respondent father.
Vita Pastorini, for Guardian ad Litem.
LEVINSON, Judge.
This cause came on for an adjudication of a petition alleging
abuse, neglect, and dependency of the minor child K.H.H. filed 25
November 2003. In November of 2003 the minor child, then fifteen
months old, sustained severe injuries in the form of two broken
bones and subdural cranial hemorrhaging, while in the care of
respondent mother (respondent). We affirm in part and reverse in
part.
On 25 November 2003 a petition was filed alleging that K.H.H.
was an abused and neglected juvenile due to severe injuries the
child had sustained, a fracture to the right femur and cranial
bleeding. At the hearing, the trial court heard the testimony of,
among others, respondent mother, the paternal grandmother, DSSworkers assigned to the child's case, and the maternal aunt, and
received into evidence deposition testimony of various health care
professionals responsible for treating the minor child, including
Dr. Carmine L. Talarico, M.D., and Dr. Otwell Dudley Timmons, M.D.
The medical evidence revealed that, on his admission to
Carolinas Medical Center, the minor child had suffered a broken
tibia, a broken femur, and cranial hemorrhaging. The deposition
testimony of Drs. Timmons and Talarico indicated that both
physicians believed the child's injuries were inconsistent with the
accidental fall reported by respondent and were, in fact,
indicative of physical abuse. The minor child's medical records
revealed that the child had been diagnosed with failure to thrive
and had not been seen by a physician from the time he was four
months of age until he was approximately fifteen months of age.
Respondent testified that, since she and K.H.H.'s father
separated when K.H.H. was four months of age, K.H.H. had been in
her sole care and custody. Respondent denied ever striking the
minor child. She testified she believed the child's injuries were
sustained from two accidents the child had in the fall of 2003 on
two separate occasions. The first accident occurred shortly before
14 November 2003. Respondent testified the minor child hurt
himself by falling out of his playpen at night. A few days after
his fall, respondent took the child to the hospital and a cast was
put on his leg. After his first fall, respondent testified, she
put the minor child to bed at night in a crib because she thought
this would be safer than sleeping in his playpen. A few daysthereafter, according to respondent, the minor child fell out of
his crib during the night and sustained the injuries of a second
broken leg and cranial bleeding. Following this second fall,
respondent brought the minor child to the hospital, where he was
treated for a broken femur and subdural hemorrhaging. Respondent
stated the minor child was in her sole care and custody at the time
both falls occurred.
The trial court set forth numerous findings of fact in its
order. Findings 1-12, 48-50 and 52 concern procedural history and
jurisdiction of the court; note the admission into evidence of
videotaped depositions, medical records, and photographs; and note
the admission into evidence and consideration of court summaries
and recommendations relied upon by the trial court in entering a
disposition. The trial court also made the following findings of
fact:
15. That on November 24, 2003 a report was
received alleging that the one year old child
in this matter, [K.H.H.], had a spiral
fracture to his right femur and cranial
bleeding. That said child was initially
treated for the femur break and the cranial
bleeding at the Anson Community Hospital in
Wadesboro, North Carolina.
16. That upon investigation it was discovered that
the minor child, several days earlier on
November 18, 2003 had previously been brought
to the Anson Community Hospital with a broken
left tibia from an injury that had happened
several days prior. That the initial break of
the left tibia was eventually treated at
Carolina Bone and Joint in Monroe, North
Carolina.
17. That on November 24, 2003 the minor child was
assessed for the spiral fracture and cranialbleeding and was sent to Carolinas Medical
Center by the critical care unit.
18. That when the minor child arrived at Carolinas
Medical Center it was determined that he had a
fractured right femur and had a subdural
hematoma between the lobes of his brain.
19. That at the time that all of the injuries
occurred, the minor child, [K.H.H.], was in
the care and custody of the Respondent
mother[.]
20. That the minor child remained hospitalized at
Carolinas Medical Center in Charlotte, North
Carolina from November 24 until December 24,
2003 at which time that minor child was
discharged to his paternal grandmother, . . .
along with her husband[,] . . . residents of
Charlotte, North Carolina.
21. That Dr. Otwell Timmons, MD indicated on
November 25, 2003 that the minor child's
combination of long-bone fractures of various
ages with subdural hemorrhage give him the
medical diagnosis of non-accidental trauma.
22. That the doctor further indicated that the
subdural hemorrhage being in a relatively
protected place makes the diagnosis of non-
accidental trauma all the more certain.
23. That Dr. Otwell Timmons, MD indicated that
when he was initially assessing the minor
child and talking with the parents that he
brought up his opinion and that he felt that
there was a situation of abuse and that the
Respondent mother became defensive and
modified her story and continued to add facts
to her explanation of the multiple injuries of
the minor child.
24. That Dr. Carmine Talarico, Pediatric
Radiologist and Director of Pediatric
Radiology at Carolinas Medical Center reviewed
all of the x-rays and CAT scans that were
taken of the minor child and indicated that
the x-rays and CAT scans reflects [sic]
suspicions of inflicted trauma and that the
injury to the brain, the injury to the tibia
and the fracture to the femur are all veryuncommon injuries to occur from a fall from a
crib.
25. That Dr. Talarico also indicated that the bone
mineralization for the minor child was good
and that there was no suggestion of bone
disease which would essentially eliminate
brittle bone disease as being a reason for
this minor child's injuries.
26. That Dr. Otwell Timmons, an expert in
pediatric trauma studied the medical records
and x-rays and the minor chid and indicated
that the subdural hematoma was complex due to
the location of the hematoma being between the
two lobes of the brain. That Dr. Timmons also
consulted with Dr. McLanahan, Pediatric
Neurosurgeon who indicated that the injury to
the brain had different ages of blood.
27. That in Dr. Timmons' opinion, the explanations
given by the mother were not consistent with
the injuries exhibited in the minor child and
that there was no indication of brittle bone
disease.
28. That Dr. Timmons indicated that the
explanations given by the mother after the
injuries to [K.H.H.'s] legs were inconsistent
with the injuries as medically determined.
. . . .
30. That Dr. Butler's records reflect that the
minor child had not received his immunizations
prior to the age of six months and that . . .
the Respondent mother had not taken her child
for routine medical services from the time she
separated from the Respondent father until
November, 2003.
31. That Dr. Timmons, in explaining the subdural
hematoma and the possible explanations for
said injury indicated that the medical
literature and his experience indicated that
the overwhelming majority of these injuries
are from child abuse.
32. That Dr. Timmons indicated that the subdural
hematoma was not just on the outer surface of
the brain but also between the two lobes ofthe brain in a fairly protected area against
direct impact.
33. That Dr. Timmons indicated that this sort of
an injury could come from either a high speed
car crash or some other kind of rotational
force. That this injury could likely result
from a shaking or some kind of abusive
situation in which typically an angry adult
will take the child by the body and shake and
in the process of shaking impart enough force
back and forth, that the lobes of the brain
rotate inside of the skull.
34. That associated injuries with this sort of
shaking could be that of corner fracture or
bucket handle fractures of the bones of the
arms and the legs. That the minor child had
those associated injuries and that the minor
child had a bucket handle fracture of his left
tibia.
35. That Dr. Timmons indicated that it is possible
for there to be a subdural hematoma from a
rotational force such as shaking without
having retinal hemorrhages.
36. That the minor child was grossly under weight
for his age.
37. That the doctors involved, concluded that any
question of hyper-thyroid condition had no
impact on the minor child in this matter.
38. That Dr. Timmons indicated that when you take
the mother's explanation regarding the
injuries to the minor child which was
essentially a fall from a short height, no
more than five feet, that a subdural
hemorrhage in between the two lobes of the
brain would be unheard of in a fall from that
height.
39. That Dr. Timmons, an expert in pediatric
trauma indicated that the association of so
many injuries, the corner fracture, spiral
fracture of the femur, subdural hemorrhage,
the existence of subdural hemorrhage between
the lobes of the brain, statistically it would
be impossible to have all of those injuries in
one child at one time from an insult other
than abuse.
40. That the Pediatric Radiologist, Dr. Carmine
Talarico explained the nature of the different
breaks in the minor child's bones, indicating
that both [were] indicative of abuse.
41. That Dr. Talarico indicated that the corner
fractures and the spiral fractures in the
minor child's bones could come from very few
sources and indicated that in this case where
we are dealing with a child who has a brain
injury, a child who has a suspicious fracture
of the distal tibia and a child who has a
fracture of the femur which is one of the
strongest bones in the body, and getting this
spectrum of injuries from a fall would be very
uncommon.
42. That Dr. Talarico indicated that it would be
likely that this injury could come from a
fairly significant shaking, grabbing, or blow
type injury to the minor child.
43. That Dr. Talarico indicated that these
injuries as he observed them would not be
consistent with falling off a couch or out of
a crib.
44. That the Court took testimony from numerous
witnesses, including Nancy Robinson, Anson
County Department of Social Services Child
Protective Services Supervisor, Sherry Ponds,
Department of Social Services Investigator,
Steve Ermiczheck, Detective from the Anson
County Sheriff's Department, and [respondent
mother].
45. That the Court reviewed all of the submitted
medical records, videotaped depositions, and
transcripts in this matter.
46. That the Court, after considering the totality
of the evidence in this matter finds that the
minor child, [K.H.H.], is an abused juvenile
as defined by N.C.G.S. [§] 7B-101(1) in that
his mother . . . inflicted upon that juvenile
several serious injuries by other than
accidental means, including but not limited
to, a broken tibia, a broken femur, and a
serious subdural hematoma.
47. That the minor child, [K.H.H.], is a neglected
juvenile as defined by N.C.G.S. [§] 7B-101(15)in that the juvenile does not receive proper
care, supervision or discipline from the
juvenile's mother and that the minor child has
not been provided necessary medical care and
that the minor child lives in an environment
injurious to the juvenile's welfare and that
the minor child has been abused and inured
[sic] by the Respondent mother. . . .
The trial court concluded, inter alia, that K.H.H. was an
abused and neglected juvenile pursuant to N.C.G.S. §§ 7B-101(1) and
(15), but not a dependent juvenile. As a part of its order on
disposition, the trial court concluded that it was in the best
interests of the juvenile that physical and legal custody be
granted to the paternal grandparents, and decreed that “any
visitation between the Respondent mother and the minor child shall
be at the discretion of [the paternal grandparents].”
From this order, respondent appeals.
_________________________________
On appeal, respondent (1) challenges numerous findings of fact
as unsupported by the evidence; (2) contends the findings of fact
do not support the conclusions of law that K.H.H. was an abused and
neglected juvenile; and (3) asserts the trial court erred by
ordering respondent mother's visitation be at the absolute
discretion of the paternal grandparents.
As a preliminary matter, we set forth our well-established
standard of review:
In a non-jury adjudication of abuse, neglect,
and dependency, “the trial court's findings of
fact supported by clear and convincing
competent evidence are deemed conclusive, even
where some evidence supports contrary
findings.” This Court reviews the trial
court's conclusions of law to determinewhether they are supported by the findings of
fact.
In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005)
(quoting In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676
(1997) (citations omitted)).
Respondent first argues that findings 21-28, 31-33, 35, and
37-43 are either not supported by the evidence in the record, or
constitute mere recitations of the testimony of witnesses and are
therefore not valid “findings of fact.” We agree.
“'[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)).
Findings of fact 21-28, 31-33, 35, and 37-43 are mere
recitations of the evidence and do not constitute “findings”.
Indeed, these “findings” merely state what witness X or Y
“indicated” or “felt” or what these persons' opinions were. In the
same way, these “findings” recite what we can easily discern from
the evidence ourselves _ what records “reflect” or what certain
witnesses said or opined given certain records, examination(s), and
injuries. We easily conclude that paragraphs 21-28, 31-33, 35, and
37-43 are neither evidentiary nor ultimate findings of fact that
are useful in determining whether the abuse and neglect conclusions
of law are properly sustained. We next address finding number 30. We observe that the
underlined portion of number 30 is a finding of fact, while the
remaining portion merely purports to recite the evidence:
30. That Dr. Butler's records reflect that the
minor child had not received his immunizations
prior to the age of six months and that . . .
the Respondent mother had not taken her child
for routine medical services from the time she
separated from the Respondent father until
November, 2003.
Preliminarily, we note that the portion of number 30 purporting to
recite the content of Dr. Butler's records is not a correct
statement of the evidence presented. Dr. Butler's records indicate
that certain immunizations were administered to the minor child at
the time he was seen by Dr. Butler, and that a notation was made
for the child's immunizations to be updated “in 4 weeks.” But
there is nothing in Dr. Butler's records to indicate either that
the immunizations administered were overdue, or that the minor
child had not received his immunizations prior to the age of six
months. The underlined portion of number 30, which is an actual
finding, is supported by the evidence.
We next address finding of fact number 46. We observe that
the underlined portion of number 46 is a finding of fact, while the
balance is a conclusion of law:
46. That the Court, after considering the totality
of the evidence in this matter finds that the
minor child, [K.H.H.], is an abused juvenile
as defined by N.C.G.S. § 7B-101(1) in that his
mother . . . inflicted upon that juvenile
several serious injuries by other than
accidental means, including but not limited
to, a broken tibia, a broken femur, and a
serious subdural hematoma. The evidence supporting this finding of fact may be summarized
as follows: The minor child was in the care of respondent at the
time these injuries occurred. Upon K.H.H.'s admission to Carolinas
Medical Center, K.H.H. was diagnosed with a subdural hemotoma
between the lobes of his brain, a fracture of the left distal
tibia, and a fracture of the right femur. According to Dr.
Timmons, the pediatric specialist in charge of K.H.H.'s care while
K.H.H. was in the intensive care unit at Carolinas Medical Center,
it was impossible for a hemorrhage between the two lobes of the
brain to occur from a fall from furniture. Dr. Timmons concluded
that “because . . . of the association of so many injuries, the
corner fracture, spiral fracture of the femur, the subdural
hemorrhage, the existence of subdural hemorrhage between lobes of
the brain, statistically it would be impossible to have all of
those injuries in one child at one time from an insult other than
abuse.”
Dr. Carmine Talarico, the director of pediatric radiology at
Carolinas Medical Center who had reviewed the x-rays of the minor
child, testified that:
[W]e were dealing with a child who has a brain
injury, a child who has a suspicious fracture
of the distal tibia and a child who has a
fracture of the femur, one of the strongest
bones in the bodies, and getting this spectrum
of injuries from a fall would be very, very
uncommon. . . . [W]e are taught that, when you
have three injuries that are highly suspicious
for the diagnosis of non-accidental trauma or
child abuse, . . . then putting those
together, then you have to raise a very red
flag and say that there's a high likelihood
that this was inflicted trauma.
We conclude that there was clear, cogent and convincing
evidence to support the portion of paragraph 46 that is a finding
of fact.
We next address paragraph number 47. We observe that the
underlined portion of number 47 is a finding of fact, while the
balance is a conclusion of law:
47. That the minor child, [K.H.H.], is a neglected
juvenile as defined by N.C.G.S. § 7B-101(15)
in that the juvenile does not receive proper
care, supervision or discipline from the
juvenile's mother and that the minor child has
not been provided necessary medical care and
that the minor child lives in an environment
injurious to the juvenile's welfare and that
the minor child has been abused and inured
[sic] by the Respondent mother. . . .
The evidence supporting this finding may be summarized as
follows: The child was in the care of respondent at the time the
injuries occurred. As set forth above, the testimonies of Drs.
Timmons and Talarico support the finding that K.H.H.'s injuries
were intentionally inflicted. Based on the foregoing evidence, we
conclude that the portion of paragraph 47 that is a finding of fact
is supported by clear, cogent and convincing evidence.
We summarily conclude that the evidence supports, by the
requisite standard, findings of fact 34 and 36.
We next address respondent's contention that the trial court's
findings of fact do not support the conclusions of law that K.H.H.
was an abused and neglected juvenile.
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[.]
N.C. Gen. Stat. § 7B-101(15) (2003) defines a neglected
juvenile as:
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. . . .
Evidence that a child's injuries were intentionally inflicted
is sufficient to support an adjudication of neglect and abuse. See
In re Hughes, 74 N.C. App. 751, 330 S.E.2d 213 (1985) (affirming
trial court's conclusion that a juvenile was abused and neglected
based on finding that mother inflicted non-accidental burns on the
child). We conclude that the actual findings of fact which are
supported by the evidence, including the portions of paragraphs 46
and 47 that are findings, support the trial court's conclusions
that K.H.H. was an abused and neglected juvenile. The relevant
assignments of error are overruled.
We next address respondent's contention that the trial court
erred by ordering that visitation between the child and respondent
be at the discretion of paternal relatives vested with legal and
physical custody.
When custody of a child is not awarded to a county DSS and
there are no findings that the parent has either forfeited his orher right to visitation, or that visitation is not in the best
interests of the minor child, then “'the court should safeguard the
parent's visitation rights by a provision in the order defining and
establishing the time, place[,] and conditions under which such
visitation rights may be exercised.'” In re E.C., ___ N.C. App.
___, ___, ___ S.E.2d ___, ___ (filed November 15, 2005) (COA05-218)
(quoting In re Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849
(1971)). In the case sub judice, the trial court decreed that the
visitation between respondent and the minor child be at the sole
discretion of the custodians of the child, the paternal
grandparents. This runs afoul of this Court's holding set forth in
In re E.C.
DSS nonetheless argues that statements by the trial court in
open court, that the paternal grandparents “be liberal with the
visitation” and for all the parties to “get along” cured any
deficiencies in the court order regarding visitation. We are
unpersuaded, and conclude the portion of the dispositional order
giving the paternal grandparents discretion to determine
respondent's visitation must be reversed.
We have reviewed respondent's remaining argument and conclude
it is without merit. On remand, it is within the trial court's
discretion whether to take additional evidence.
Affirmed in part and reversed in part.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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