Appeal by respondents from judgment entered 24 January 2005 by
Judge Marvin P. Pope, Jr. in Buncombe County District Court. Heard
in the Court of Appeals 22 February 2006.
Lisa M. Morrison for petitioner-appellee Buncombe County
Department of Social Services.
Judy N. Rudolph for Guardian ad Litem.
Winifred H. Dillon for respondent-appellant mother.
Richard Croutharmel for respondent-appellant father.
HUNTER, Judge.
Respondent-mother and respondent-father appeal separately from
a judgment entered 24 January 2005 finding Amy and Alice
(See footnote 1)
abused
and neglected. For the reasons stated herein, we affirm the trial
court's order.
Respondent-mother and respondent-father are the parents of
Amy and Alice. Respondent-parents have a significant history of
involvement with child protective services. On 23 December 2002,
a law enforcement officer spotted respondent-father purchasingcrack cocaine. Respondent-father attempted to evade the officer
and wrecked his car, then abandoned the vehicle with Alice inside.
The Buncombe County Department of Social Services (“DSS”) became
involved, and after conducting a Family Assessment Response,
determined the family was in need of services. Services, including
substance abuse treatment, pest control, therapy for Alice,
parenting classes, and maternity and child care services were
offered and accepted by the family. The case was closed in
November 2003 due to minimal family cooperation. Monitors were
left in place.
In February 2004, DSS received reports that Amy and Alice were
not receiving proper medical care, prior problems with roaches in
the home had returned, and respondent-mother was using a
significant amount of medication. Shortly thereafter, respondent-
mother reported to the emergency room, claiming that respondent-
father had harmed her hand. On 18 March 2004, neglect as to the
children was substantiated based on improper care and injurious
environment due to substance abuse, living conditions, and lack of
understanding regarding child development. The case was
transferred for home case management services.
In May 2004, reports were received that respondent-mother had
taken three to four times the dose of her prescribed medication and
threatened suicide, and that respondent-mother and respondent-
father had fought over the children, pulling on Amy's arms and
legs. An attempt by respondent-father to physically remove the
children from respondent-mother resulted in harm to Amy, who wastreated for breathing difficulties. Investigation by DSS
substantiated neglect due to continued substance abuse by
respondent-parents and domestic abuse. Respondent-mother removed
the children from the home, and a restraining order was entered
limiting respondent-father's contact with the children to
supervised visitation.
Domestic violence continued between the parents and the
restraining order was violated. The children were moved to the
home of the maternal grandmother. Threats were made by respondent-
parents and the paternal family, and the maternal grandmother
returned the children to the custody of DSS, who placed Amy and
Alice in non-family custody.
After a hearing held 3 November 2004, the trial court, in an
order entered 24 January 2005, found that Amy and Alice were
neglected and dependent. The trial court ordered that custody of
the children remain with DSS and that the children remain in foster
care. Respondent-parents appeal from this order.
I.
Respondent-father and respondent-mother both assign as error
the trial court's finding and conclusion that Alice was medically
neglected. Although we agree clear and convincing evidence does
not support some portions of the trial court's findings, the record
contains clear and convincing evidence to support the trial court's
findings and conclusion as to medical neglect.
N.C. Gen. Stat. § 7B-805 (2005) requires that, “[t]he
allegations in a petition alleging abuse, neglect, or dependencyshall be proved by clear and convincing evidence.”
Id. “On
appeal, when a trial court's order is reviewed as not being
supported by the evidence we look to see whether there is clear,
cogent and convincing competent evidence to support the findings.”
In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609 (1982).
“Our review of a trial court's conclusions of law is limited to
whether they are supported by the findings of fact.”
In re Helms,
127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
Respondents first contend that one sentence within the trial
court's Finding of Fact 18 was not supported by the evidence.
Finding of Fact 18 detailed the testimony of Beth Osbahr
(“Osbahr”), a pediatric nurse and expert in the field of child
sexual abuse, regarding her examination of Alice and diagnosis of
a labial adhesion. The trial court found that “[t]his condition
would cause chronic irritation and also severe hygiene issues.”
(R.p. 96) However, a review of the record shows that Osbahr's only
testimony as to this issue stated that, “[i]f [the labial adhesion]
was not there when she was born, then through some kind of chronic
irritation or hygiene issues or possibly trauma, something would
have caused that adhesion to occur.” The trial court's findings as
to health effects the condition would cause are therefore not
supported by clear and convincing evidence. However, we note that
the remainder of the finding, relating Osbahr's conduct of a Child
Medical Evaluation and the results of that evaluation, is supported
by clear and convincing evidence. Respondents next contend that a sentence within Finding of
Fact 19 was also not supported by clear and convincing evidence.
Finding of Fact 19 states that “Al[ice] . . . did not receive
proper medical attention to address the issues of her labial
adhesion.” A review of the record shows that Osbahr, who provided
the only evidence as to the Alice's labial adhesion, testified such
a condition was a non-specific finding some children were born
with, and that “[i]t's possible that she'd had checkups and nobody
just looked close enough to see that -- that that adhesion was
there. So it's hard to know.” Such testimony does not provide
clear and convincing evidence to support the finding that
respondent-parents failed to provide proper medical treatment for
Alice as to her labial adhesion.
Respondent-father also contends that Finding of Fact 17,
detailing reports to DSS of potential child abuse, are mere
allegations and not specific findings of fact.
“When a trial court is required to make findings of fact, it
must make the findings of fact specially.”
In re Harton, 156 N.C.
App. 655, 660, 577 S.E.2d 334, 337 (2003). “The trial court may
not simply 'recite allegations,' but must through '“processes of
logical reasoning from the evidentiary facts”' find the ultimate
facts essential to support the conclusions of law.”
Id. (quoting
In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)).
In
Harton, the trial court found only a single evidentiary fact and
adopted DSS and guardian ad litem reports for the remaining facts,
which this Court found were not “'specific ultimate facts . . . sufficient for this Court to determine that the judgment is
adequately supported by competent evidence.'”
Harton, 156 N.C.
App. at 660, 577 S.E.2d at 337 (citation omitted).
Here, however, the trial court's findings recite the
allegations of abuse specifically denied by respondents as
evidentiary facts related to the investigation into the alleged
abuse, and the trial court's ultimate findings that insufficient
evidence existed to conclude the child was sexually abused. As
such, the trial court's factual findings here are more than a
“recitation of allegations.”
Anderson, 151 N.C. App. at 97, 564
S.E.2d at 602.
Notwithstanding that clear and convincing evidence does not
support the trial court's finding as to the possible health effects
caused by Alice's labial adhesion, or that respondent-parents
failed to provide proper medical treatment as to that medical
condition, the record contains other unchallenged findings which
support the trial court's conclusion as to medical neglect.
Unchallenged findings of fact as to respondent-parents' failure to
provide proper care for both children's asthma and to follow
through with recommended treatments for both children support the
trial court's ultimate conclusion that respondent-parents failed
“to ensure their children's medical needs were met[,]” and that
conclusion need not be disturbed. The unchallenged findings of
fact support the trial court's conclusion of medical neglect.
Respondents' assignment of error is overruled.
II.
Respondent-father next contends that the trial court abused
its discretion when it suspended his visitation with Alice. We
disagree.
N.C. Gen. Stat. § 7B-905(c) (2005) specifically states in part
that:
Any dispositional order under which a juvenile
is removed from the custody of a parent,
guardian, custodian, or caretaker, or under
which the juvenile's placement is continued
outside the home shall provide for appropriate
visitation as may be in the best interests of
the juvenile and consistent with the
juvenile's health and safety. If the juvenile
is placed in the custody or placement
responsibility of a county department of
social services, the court may order the
director to arrange, facilitate, and supervise
a visitation plan expressly approved by the
court. If the director subsequently makes a
good faith determination that the visitation
plan may not be in the best interests of the
juvenile or consistent with the juvenile's
health and safety, the director may
temporarily suspend all or part of the
visitation plan. The director shall not be
subjected to any motion to show cause for this
suspension, but shall expeditiously file a
motion for review.
Id. Respondent-father relies on the case of
In re E.C., ___ N.C.
App. ___, 621 S.E.2d 647 (2005). This Court held in
In re E.C.:
In the absence of findings that the
parent has forfeited their right to visitation
or that it is in the child's best interest to
deny visitation “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.”
Id. at ___, 621 S.E.2d at 652 (quoting
In re Custody of Stancil, 10
N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971)). Here, respondent-father requested that he be permitted to
resume visitation with Alice, after such visitation had been halted
by a prior court order. Unlike in
In re E.C., the trial court
found, however, “[t]hat it is in the best interest of the minor
child[] . . . that there should be no visitation between the
respondent father and the minor child, Al[ice.]” As the trial
court made findings that such visitation was not in Alice's best
interest, as required by N.C. Gen. Stat. § 7B-905(c), we find no
abuse of discretion. This assignment of error is overruled.
III.
Respondent-father next contends the trial court abused its
discretion when it ordered that visitation between respondent-
father and Amy be at the discretion of the Child and Family Team.
As noted above, N.C. Gen. Stat. § 7B-905(c) states that when
a juvenile is placed in the custody of a county department of
social services, “the court may order the director to arrange,
facilitate, and supervise a visitation plan expressly approved by
the court.”
Id. The statute further specifies that “[i]f the
director subsequently makes a good faith determination that the
visitation plan may not be in the best interests of the juvenile or
consistent with the juvenile's health and safety, the director may
temporarily suspend all or part of the visitation plan.”
Id.
Respondent-father contends that the trial court may not
delegate its judicial authority to a third party, as stated in
In
re Custody of Stancil, 10 N.C. App. at 552, 179 S.E.2d at 849. We
note that
Stancil did not arise from an abuse and neglectproceeding, but rather a custody determination between parents.
Further, in
Woncik v. Woncik, 82 N.C. App. 244, 346 S.E.2d 277
(1986), this Court noted that when a trial court was specific as to
the time and duration of the non-custodial parent's visitations, a
further provision allowing termination of visitation under certain
conditions to prevent a situation detrimental to the child's
welfare was not an abuse of discretion.
Id. at 250-51, 346 S.E.2d
at 281.
Here, the trial court concluded that it would be “in the best
interest of the minor children to continue to sanction the
supervised visitation plan that has already been court ordered
between the respondent father and the minor child, Am[y], with
visitation being in the discretion of the Child and Family Team
with input from the therapist[.]” We find that the trial court did
not impermissibly delegate its judicial authority in recognizing
the discretion provided to the custodial agency by statute. We
therefore find no abuse of discretion in the trial court's order as
to respondent-father's visitation with Amy.
IV.
Respondent-father finally contends that the trial court abused
its discretion in ordering that respondent-father have an
abbreviated time in which to reunify with his children. We
disagree.
In Conclusion of Law 2, the trial court concluded:
2. That the best plan to achieve a safe,
permanent home for the minor children within a
reasonable period of time is reunification;
however, there are multiple issues that needto be addressed with this family including,
but not limited to, domestic violence and
substance abuse. The Court is willing to
continue the plan of reunification at this
point but is putting the respondent parents on
notice that due to the age of the minor
children and the severity of the conditions
that they suffered in the home of the
respondent parents, the Court is going to give
the parents an abbreviated period of time in
order to effectuate reunification. If the
respondent parents are not successful in
complying with all of the services that the
Court has ordered then the Court will consider
changing the plan from reunification to an
alternate plan at the next permanency planning
hearing.
Respondent-father contends that the trial court's conclusion of law
should be read as a decree or order, rather than conclusion, and
that such an order is not permissible within a disposition order.
N.C. Gen. Stat. § 7B-904 (2005) grants the trial court
authority over the parents of juveniles adjudicated as abused or
neglected. Under the statute, the trial court may order the parent
to undergo care to address behaviors related to the juvenile's
adjudication, to attend and participate in parental responsibility
classes, and to take proper steps to remedy conditions in the home
which led to the juvenile's adjudication, among other actions.
N.C. Gen. Stat. § 7B-904(c)-(d1).
We do not find the trial court's conclusion to rise to the
level of the prejudicial statements made in the case respondent-
father cites as analogous,
In re McLean, 135 N.C. App. 387, 521
S.E.2d 121 (1999). In
McLean, the trial court made oral statements
referring to the family as “'ridiculous,'” and characterizing the
respondent mother as abnormal.
Id. at 399, 521 S.E.2d at 129. Here, the trial court ordered respondent-mother and respondent-
father to complete several items in order to address conditions
which led to the adjudication of Alice and Amy as neglected and
dependant, as permitted by N.C. Gen. Stat. § 7B-904. The trial
court's statement that failure to comply with the ordered services
would lead to consideration of an alternate plan other than
reunification was not prejudicial to respondent-father.
We find clear and competent evidence supports the trial
court's unchallenged findings, which in turn support the conclusion
of neglect, notwithstanding certain incorrect findings. We further
find that the trial court did not abuse its discretion in the
dispositional order regarding visitation between respondent-father
and the children, and that there was no prejudice in the trial
court's conclusions as to respondent-parents' time for compliance.
Affirmed.
Judges HUDSON and BRYANT concur.
Report per Rule 30(e).
Footnote: 1