An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-407

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006


IN RE K.H.H.                    Anson County
                            No. 03 J 52

    Appeal by respondent mother from order entered 17 September 2004 by Judge Christopher Bragg in Anson County District Court. Heard in the Court of Appeals 17 November 2005.

    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).
    

*** Converted from WordPerfect ***