An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-937

NORTH CAROLINA COURT OF APPEALS

Filed:  16 May 2006

IN THE MATTER OF:
                                        Buncombe County
AM                                        No. 04 J 208
AL
    Minor Children

    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
     Names changed to protect the identity of the juveniles pursuant to N.C.R. App. P. 26(g)(4).

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