Appeal by respondent from orders entered 22 September 2004 by
Judge M. Patricia DeVine in Orange County District Court. Heard in
the Court of Appeals 26 January 2006.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H.
Cabe, for petitioner-appellee.
Annick Lenoir-Peek for respondent-appellant.
Nelson Mullins Riley & Scarborough LLP, by Lisa R. Gordon, for
guardian ad litem.
Respondent mother J.B.L. appeals from orders terminating her
parental rights with respect to her three minor children: J.J.A.L.
("Jack"), age eight; M.F.A.L. ("Molly"), age five; and C.A.L.
("Cindy"), age three.
(See footnote 1)
These three appeals were consolidated for
hearing and are now consolidated for decision.
This appeal involves a tragic situation: the mother was in
this country illegally with the father of the children, was thevictim of serious physical abuse by the father, and was unable to
survive independent of the father. Ultimately, the mother was
convicted and incarcerated for physically abusing Jack by scalding
him with boiling water. Upon her release, the mother was deported.
Although the circumstances of this case are particularly poignant
_ as noted by the district court _ we hold that the mother has
failed to present any argument on appeal warranting reversal of the
trial court's order terminating her parental rights.
Before addressing the merits of the appeal, we first note that
counsel for the mother has failed to comply with N.C.R. App. P.
3(b). At the time of the filing of the record on appeal and the
mother's brief, that rule provided:
For appeals [involving termination of parental
rights and other juvenile matters], the name
of the juvenile who is the subject of the
action, and of any siblings or other household
members under the age of eighteen, shall be
referenced by the use of initials only in all
filings, documents, exhibits, or arguments
submitted to the appellate court with the
exception of sealed verbatim transcripts
submitted pursuant to Rule 9(c). In addition,
the juvenile's address, social security
number, and date of birth shall be excluded
from all filings, documents, exhibits, or
arguments with the exception of sealed
verbatim transcripts submitted pursuant to
N.C.R. App. P. 3(b). Counsel failed to mask the identifying
information regarding the children in the record on appeal. We
wish to stress the seriousness of this violation of the appellate
rules. It is vital that all participants in appeals such as these
honor and protect the privacy of the children.
On 19 March 2003, petitioner Orange County Department of
Social Services ("DSS") learned that Jack was hospitalized in the
University of North Carolina Burn Unit with second and third degree
burns on his arms, hands, and back. Although the mother asserted
that the burns were the result of Jack's pulling a pot of boiling
water off the stove, Jack's treating physicians did not find this
explanation credible and instead determined that the burns were the
result of Jack's being intentionally submerged in scalding water.
The severity of the burns ultimately required Jack to remain in the
hospital for two months.
In addition to his burns, Jack had extensive bruising on his
neck, arms, face, chest, and one of his legs. Doctors concluded
that the bruises demonstrated "a pattern of beatings" that were
"potentially life-threatening" and that the bruising on Jack's neck
was the result of an attempted strangulation.
Because of Jack's injuries, the mother was convicted of felony
child abuse and incarcerated. An assessment during the mother's
incarceration showed that she interacted appropriately with the
children during visitation, although she showed very little emotion
upon the children's arrival and departure. A psychiatric
evaluation revealed that the mother had originally left Mexico for
the United States to be with the children's father, who was both
regularly unfaithful and physically abusive to the mother. The
mother reported that the two frequently argued and that the
children's father, who drank heavily, would often pull her hair,slap her, throw her about, and otherwise abuse her. Although the
mother separated herself and the children from their father for
brief periods, she never became self-sufficient and always returned
to him, despite repeated episodes of domestic violence. Upon her
release from prison, the mother was deported to Mexico.
On 21 March 2003, DSS filed a petition alleging that Jack was
an abused and neglected juvenile and that Molly and Cindy were
(See footnote 2)
On the same date, the district court entered
an order placing the three children in the non-secure custody of
DSS. Pursuant to this order, DSS placed Molly and Cindy into
foster care immediately. Jack was placed into foster care upon his
discharge from the hospital. The children's maternal grandmother
was subsequently permitted to intervene in the proceedings and seek
custody of the children. Only Jack had ever met his grandmother
before being placed into foster care. DSS permitted the
grandmother to have visitation with all of the children.
On 12 May 2003, the trial court adjudicated Jack to be an
abused juvenile and Molly and Cindy to be neglected juveniles. On
22 September 2004, following a motion by DSS to terminate the
mother's parental rights, the trial court concluded that all three
children were neglected and that both Jack and Molly were abused.
The court further found, with respect to the grandmother, that Jack
does not want to see his grandmother, that the grandmother cannot
communicate with him because Jack refuses to speak Spanish, thatMolly and Cindy do not have a relationship with their grandmother,
and that Molly tries to leave and Cindy cries during the
grandmother's visits. The court noted that a home study with
respect to the grandmother established that, if granted custody,
the grandmother planned to take the children to Mexico and reunite
them with their mother. Further, there was "no indication that
[the grandmother] believed that her daughter had abused [Jack] and
no indication that she would or could protect the children from
further abuse and neglect by their mother." The court, therefore,
concluded that it was in the best interests of the children to
terminate the mother's parental rights. The mother timely appealed
from that order.
The mother first argues that the trial court erred by failing
to appoint her a guardian ad litem
under N.C. Gen. Stat. § 7B-1101
(See footnote 3)
In In re J.A.A.
, ___ N.C. App. ___, 623 S.E.2d 45 (2005),
this Court, after reviewing the prior case law, set forth the
analytical framework to be applied in determining whether a trial
court is required to appoint a guardian ad litem
for a parent.
, a court must first review the petition or motion
to terminate parental rights to determine whether it contains an
allegation under N.C. Gen. Stat. § 7B-1111(a)(6) (2005) that theparent is incapable of providing proper care and support to the
children, such that the children are dependent within the meaning
of N.C. Gen. Stat. § 7B-101 (2005). Id.
at ___, 623 S.E.2d at 48.
According to J.A.A.
, "[a]n allegation under N.C. Gen. Stat. § 7B-
1111(a)(6) serves as a triggering mechanism, alerting the trial
court that it should conduct a hearing to determine whether a
guardian ad litem
should be appointed." Id.
This Court has
previously held that failure to appoint a guardian ad litem
the petition alleges dependency is reversible error. In re Estes
157 N.C. App. 513, 518, 579 S.E.2d 496, 499 ("We hold that where,
as here, the allegations contained in the petition or motion to
terminate parental rights tend to show that the respondent is
incapable of properly caring for his or her child because of mental
illness, the trial court is required to appoint a guardian ad litem
to represent the respondent at the termination hearing."), disc.
, 357 N.C. 459, 585 S.E.2d 390 (2003).
If, however, the petition or motion contains no allegation of
incapacity to parent, the court may nonetheless be required to
conduct a hearing if the respondent parent specifically requests
the appointment of a guardian ad litem
or if "the trial court had
a duty to appoint a guardian ad litem
to represent respondent under
Rule 17 of the Rules of Civil Procedure." J.A.A.
, ___ N.C. App. at
___, 623 S.E.2d at 49. Rule 17 provides that, in civil litigation,
an incompetent person must be defended by a guardian ad litem
N.C.R. Civ. P. 17(b)(2), and, therefore, "[a] trial judge has a
duty to properly inquire into the competency of a litigant in acivil trial or proceeding when circumstances are brought to the
judge's attention, which raise a substantial question as to whether
the litigant is non compos mentis
, ___ N.C. App. at ___,
623 S.E.2d at 49. "'Whether the circumstances . . . are sufficient
to raise a substantial question as to the party's competency is a
matter to be initially determined in the sound discretion of the
trial judge.'" Id.
(quoting Rutledge v. Rutledge
, 10 N.C. App.
427, 432, 179 S.E.2d 163, 166 (1971)).
In this case, the petition did not allege an incapacity to
parent and the mother did not seek appointment of a guardian ad
. Therefore, in deciding whether the trial judge abused her
discretion in not sua sponte
appointing a guardian ad litem
must consider whether the circumstances brought to the judge's
attention raised a substantial question as to whether the mother
While the record does contain a psychological evaluation _
conducted in connection with the mother's criminal proceedings _
indicating that she suffered from depression, nothing in the
evaluation suggests that the mother meets the standard for legal
N.C. Gen. Stat. § 35A-1101(7) (2005) (defining
"incompetent adult" as an adult "who lacks sufficient capacity to
manage the adult's own affairs or to make or communicate important
decisions concerning the adult's person, family, or property").
See also J.A.A.
, __ N.C. App. at __, 623 S.E.2d at 48 ("[T]he trial
court is not required to appoint a guardian ad litem
'in every case
where substance abuse or some other cognitive limitation isalleged.'" (quoting In re H.W.
, 163 N.C. App. 438, 447, 594 S.E.2d
211, 216, disc. review denied
, 358 N.C. 543, 599 S.E.2d 46, 603
S.E.2d 877 (2004))). Indeed, as the trial court was aware, the
mother had recently been tried criminally without any question as
to her competency being raised. We have found no other evidence in
the record _ and the mother points to none _ that raises a
substantial question regarding the mother's competency and her need
for a guardian ad litem
under N.C.R. Civ. P. 17.
We can see no basis for holding that the trial court was
required to appoint a guardian ad litem sua sponte
"divest the parent of [her] fundamental right to conduct . . . her
litigation according to [her] own judgment and inclination."
, __ N.C. App. at __, 623 S.E.2d at 48. This assignment of
error is, therefore, overruled.
The mother next argues that, given the medical testimony
regarding Jack's burns, any probative value of photographs of those
burns was substantially outweighed by the danger of unfair
prejudice under N.C.R. Evid. 403, and the trial court, therefore,
erred in admitting the photographs. Whether to exclude evidence
under Rule 403 is a matter within the discretion of the trial
judge, and an "abuse of that discretion will be found on appeal
only if the ruling is manifestly unsupported by reason or is so
arbitrary it could not have been the result of a reasoned
decision." State v. White
, 349 N.C. 535, 552, 508 S.E.2d 253, 264(1998) (internal quotation marks omitted), cert. denied
, 527 U.S.
1026, 144 L. Ed. 2d 779, 119 S. Ct. 2376 (1999).
Initially, the trial judge stated that she would wait to see
how the evidence developed before deciding whether to view the
photographs. In the course of the hearing, Jack's treating
physician from the UNC Burn Unit, Dr. Michael Peck, testified
regarding Jack's injuries. Dr. Peck explained that the burns could
not have been accidental because of their "confluence," lack of
"splatter marks, run marks, drip marks," and an "absence of the
unevenness in burn depth distribution that [is] typically see[n]
with accidental scalds." Subsequently
, the trial judge asked
whether the mother was willing to admit that Jack's burns were not
accidental. When the mother's counsel was unwilling to make this
concession, the trial court announced that she would review the
photographs "to see in what ways they corroborate and illustrate
the testimony of Dr. Peck with respect to specific indications of
markings on this child which go to the fact that the injuries were
We can perceive no abuse of discretion in the trial court's
decision. While Dr. Peck's testimony was cogent and explanatory,
the pictures illustrated that testimony in a non-inflammatory way
and provided important support for Dr. Peck's opinion that the
characteristics of the burns suggested a non-accidental source for
the burns and for DSS' position that other injuries revealed in the
photographs indicated that the scalding was not the only instance
of physical abuse. Further, any prejudice arising from thephotographs was due to the seriousness of the injuries and thus
does not constitute unfair prejudice in this case. By being able
to view the actual nature of the injuries, the trial judge was in
a better position to assess the seriousness of any abuse _ a
relevant consideration in deciding whether to terminate the
mother's parental rights. We, therefore, hold that the trial
judge's decision to view the photographs was reasonable. This
assignment of error is overruled. See State v. Chapman
, 359 N.C.
328, 351, 611 S.E.2d 794, 813 (2005) (finding no abuse of
discretion in admission of autopsy photographs because they "tended
to explain and support" the medical examiner's testimony as to
cause of death).
The mother next argues that the trial court erred in
concluding that Molly was abused when DSS' petition regarding Molly
alleged only neglect and not abuse. We disagree.
In In re A.D.L.
, 169 N.C. App. 701, 612 S.E.2d 639, disc.
, 359 N.C. 852, 619 S.E.2d 402 (2005), the respondent
mother challenged a trial court's termination of her parental
rights on the ground of neglect "because the petition failed to
allege that respondent had neglected the child." Id.
at 709, 612
S.E.2d at 644. This Court rejected that argument, noting that DSS'
"factual allegations were sufficient to give respondent notice
regarding the issue of neglect," irrespective of whether the
petition specifically alleged neglect. Id.
, 612 S.E.2d at 645. In this case, DSS' motion in the cause regarding Molly
specifically described the physical abuse of Jack and alleged that
this severe abuse, in combination with the domestic violence
committed against the mother, "subjected [Molly] to the risks of
physical and emotional harm and created an environment injurious to
her welfare." See
N.C. Gen. Stat. § 7B-101(1)(b) (defining abused
juveniles as including any juvenile whose parent creates or allows
to be created "a substantial risk of serious physical injury to the
juvenile by other than accidental means"). These factual
allegations were sufficient to give the mother notice regarding the
issue of abuse in relationship to Molly. This assignment of error
is, therefore, overruled.
Finally, the mother challenges the trial court's conclusions
of law that Jack and Molly were abused and that all three children
were neglected. A termination of parental rights proceeding is
conducted in two phases, an adjudication phase and a disposition
phase. In re Blackburn
, 142 N.C. App. 607, 610, 543 S.E.2d 906,
908 (2001). The mother contests the trial court's conclusions of
law in the adjudication phase only.
In her assignments of error, the mother stated solely that
each conclusion of law "is not supported by competent evidence."
She specified no other basis for challenging the conclusions of
law. Although she also specifically assigned error to many of the
findings of fact forming the basis for the conclusions of law, the
mother did not bring those assignments of error forward in herbrief. The Appellate Rules provide that "[a]ssignments of error
not set out in the appellant's brief . . . will be taken as
abandoned." N.C.R. App. P. 28(b)(6).
Since the mother abandoned her assignments of error regarding
the findings of fact, those findings are binding on appeal and
ordinarily our review would be "limited to determining whether the
trial court's findings of fact support its conclusions of law . .
. ." In re P.M.
, 169 N.C. App. 423, 424, 610 S.E.2d 403, 405
(2005). The mother has not, however, asserted in any assignment of
error or argued in her appellate brief that the findings of fact
fail to support the conclusions of law. We are, therefore,
precluded from reviewing that issue. See Viar v. N.C. Dep't of
, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It is not
the role of the appellate courts . . . to create an appeal for an
The mother argues in her brief instead that the conclusion of
law determining that Jack and Molly were abused under N.C. Gen.
Stat. § 7B-101(1) "mistates [sic] the current law" and "just finds
that two of the children are abused without concluding that the
ground for termination has been proven." With respect to the
conclusion regarding neglect, the mother argues that it is "not
tailored to address the facts presented in this case" and "just
finds that the children are neglected without specifics as to how
they were neglected." The mother asserts that the conclusions of
law "do not reference the proper statute and are a mere repetition
of the language of the statute." Since these arguments are not the subject of an assignment of
error, they are not properly before us. See
N.C.R. App. P. 10(a)
("Except as otherwise provided herein, the scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record on appeal in accordance with this Rule 10.").
Even if, however, the arguments contained in the mother's brief
were the subject of an assignment of error, we would still uphold
the decision below.
While the conclusion of law regarding abuse inexplicably does
cite to the law applicable prior to 1 July 1999, it also
specifically concludes that "[t]he minor children, [Jack and
Molly], have been abused by the Respondent/Mother within the
meaning of N.C.G.S. 7B-101," the current applicable statute.
Regardless, the trial court also concluded that all three children
were neglected and recited the proper definition of neglect. See
In re C.L.C.
, 171 N.C. App. 438, 447, 615 S.E.2d 704, 709 (2005)
(holding that since one of the grounds for termination relied upon
by the trial court was valid, the validity of the other two grounds
was immaterial), aff'd per curiam in part, disc. review
improvidently allowed in part
, __ N.C. __, __ S.E.2d __, No.
467A05, 2006 N.C. LEXIS 37, 2006 WL 1195808 (May 5, 2006). We
nonetheless urge parties and trial courts to be careful to ensure
that they are citing and discussing the applicable statutory law _
especially given the numerous amendments to the Juvenile Code
adopted over the years by the General Assembly. In addition, although the trial court failed to specifically
state that grounds for termination existed, its conclusion that
"[t]he minor children have been neglected by the Respondent/Mother
within the meaning of N.C.G.S. 7B-101" is a sufficient conclusion
of law. Section 7B-1109 of the North Carolina General Statutes
mandates that the trial court "adjudicate the existence or
nonexistence of any of the circumstances
set forth in G.S. 7B-1111
which authorize the termination of parental rights of the
respondent." N.C. Gen. Stat. § 7B-1109(e) (2005) (emphasis added).
The conclusion that the children have been neglected is a
sufficient adjudication of the existence of circumstances set forth
in N.C. Gen. Stat. § 7B-1111(a)(1) (providing that the court may
terminate parental rights upon a finding that "[t]he parent has
abused or neglected the juvenile"). Further, while the neglect
conclusion of law goes on to recite the statutory definition of
neglect under N.C. Gen. Stat. § 7B-101(15) and includes language
inapplicable to this case, the factual detail that the mother
contends is missing regarding the nature of the neglect is supplied
by the findings of fact that have not been challenged on appeal.
The mother has, therefore, presented no basis for overturning the
trial court's conclusions of law.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).