Appeal by respondent mother from judgment entered 31 May 2005
by Judge Mary F. Covington in Davidson County Superior Court.
Heard in the Court of Appeals 14 August 2006.
Charles E. Frye III, for petitioner Davidson County Department
of Social Services, and Laura B. Beck, Guardian ad Litem
Attorney Advocate for appellees.
Susan J. Hall for respondent-appellant.
MARTIN, Chief Judge.
Respondent-mother appeals from adjudication and disposition
orders adjudicating minor child J.P.H. a neglected and abused
juvenile and A.A.D. a neglected juvenile, and ordering the Davidson
County Department of Social Services (D.S.S.) to cease
reunification efforts. For the reasons set forth below, we affirm.
On 1 May 2004, respondent and her boyfriend (now husband),
Justin Burris, brought J.P.H. to the Emergency Room of the
Lexington Memorial Hospital. His vital signs were unstable and his
pulse rate was low. After having been stabilized and intubated,J.P.H. was transferred to the Wake Forest University Baptist
Medical Center and admitted to the Pediatric Intensive Care Unit.
X-rays revealed that the child had two fractured ribs, sternal
trauma, and two broken fingers, which were in different stages of
healing. His body temperature was 91.3 degrees, he was bleeding
internally, and had hemorrhages in both eyes.
On 4 May 2004, petitioner Davidson County Department of Social
Services removed J.P.H. and his brother, A.A.D., from respondent's
care and filed for protective custody. Pending further hearings,
physical custody of A.A.D. was placed with his father, and physical
custody of J.P.H. was placed with maternal relatives.
An adjudication and dispositional hearing was held on 4
October 2004. Dr. Sarah H. Sinal, Professor of Pediatrics and
Family Medicine at the Wake Forest University School of Medicine,
offered expert testimony on behalf of DSS. She had assumed care of
J.P.H. following his admission to the hospital. In Dr. Sinal's
opinion, the combination of rib fractures, bilateral subdural
hematomas, brain infarction and retinal hemorrhages which she
observed were consistent with a diagnosis of battered child
syndrome and shaken baby syndrome, indicating severe child abuse.
She further opined that the history provided by respondent-mother
and Mr. Burris did not adequately explain the child's injuries.
Given the injuries, Dr. Sinal was of the opinion that J.P.H. would
never be a normal child.
The trial court adjudicated J.P.H. an abused and neglected
juvenile and A.A.D. a neglected juvenile, as defined by N.C.G.S. § 7B-101(5) and § 7B-101(1). The court proceed to a disposition
hearing and concluded that the best interest of the minor children
would be served by their custody remaining with D.S.S. and that
D.S.S was relieved of the obligation to continue reasonable efforts
to reunify the children with respondent. The court also ordered
that Mr. Burris have no contact with the children. Respondent-
While the respondent's appeal was pending before this Court,
the respondent mother stipulated to some of the DSS charges in a
subsequent hearing on a different matter. DSS filed a Motion to
Dismiss Appeal, contending that the respondent's subsequent
stipulations had rendered the appeal moot.
At the outset, we note that D.S.S. has moved to dismiss the
instant appeal. D.S.S. avers that it filed a juvenile petition on
19 September 2005 alleging neglect by respondent-mother of a third
juvenile, J.L.B., who was born on 18 September 2005. The petition
was based on the allegation that respondent-mother had tested
positive for marijuana use when she entered the hospital for
J.L.B.'s birth. D.S.S. asserts that respondent-mother, in that
proceeding, had stipulated that J.L.B. is a neglected and dependent
juvenile and that such stipulation was based, in part, on facts
established, and found by the trial court, in the proceeding from
which respondent-mother now appeals. Thus, D.S.S. contends,
respondent-mother's stipulation may be equated with a stipulation
that the trial court's findings in this case were accurate,rendering the appeal moot and any ruling by this Court merely a
determination of abstract propositions of law.
For the following reasons, we deny the motion to dismiss this
appeal. First, we note that respondent-mother has raised issues in
this appeal relating to procedural errors in the trial court which,
if found to be meritorious, would not be mooted by the stipulation
entered in the later proceeding involving J.L.B. In addition, we
do not view respondent-mother's stipulations as a new, independent
adjudication of the neglect issue . . . [that would cause] any
resolution of the issues raised in this appeal [to] . . . have no
practical effect on the existing controversy, and become moot. In
, 163 N.C. App. 182, 183, 592 S.E.2d 597, 598
(2004)(citation omitted). Respondent-mother's stipulations in the
subsequent action acknowledge the adjudication and disposition
orders in the instant appeal, but do not amount to an admission of
the truth of the trial court's findings of fact nor the accuracy of
its conclusions of law. Thus, the stipulations may not be
considered admissions of fact rendering this appeal moot.
We acknowledge that, in determining whether a parent has
neglected a juvenile, a prior
adjudication of neglect involving
that parent is a relevant factor to consider, and the trial judge
is afforded some discretion in determining the weight to be given
such evidence. In re Nicholson
, 114 N.C. App. 91, 94, 440 S.E.2d
852, 854 (1994) (emphasis added); see also
N.C. Gen. Stat. § 7B-
101(15) (2003). Although a subsequent adjudication of neglect
might be relevant to a trial court, it cannot be considered here. Our standard of review is confined to the findings of fact and
conclusions of law of the trial court from which the issues on
appeal originate. The appellate court cannot consider arguments
based upon issues which were not presented or adjudicated by the
trial tribunal. See Crouch v. Crouch
, 14 N.C. App. 49, 51, 187
S.E.2d 348, 350, cert. denied
, 281 N.C. 314, 188 S.E.2d 897 (1972).
Thus, we proceed to consider respondent-mother's appeal on its
Respondent-mother presents four arguments in support of
thirty-nine of the forty-four assignments of error contained in the
record on appeal. We will not consider nor discuss the remaining
assignments of error. N.C. R. App. P. 28(a).
In her first argument, respondent-mother contends the trial
court failed to state, in its order, that the allegations in the
petition were proven by clear, cogent and convincing evidence, as
§§ 7B-805 and 7B-807 (2005). Thus, citing In
, 164 N.C. App. 699, 596 S.E. 2d 851 (2004), and In re
, 87 N.C. App. 189, 360 S.E.2d 458 (1987), she contends the
order of adjudication is erroneous as a matter of law. However,
there is no requirement as to where or how such a recital of the
standard of proof should be included, and a trial court's statement
that it reached its conclusions through clear, cogent and
convincing evidence is sufficient to meet the requirement of
N.C.G.S. § 7B-807. In re J.D.S.
, 170 N.C. App. 244, 252-53, 612
S.E.2d 350, 356 (2005). The trial court specifically prefaced its
findings on the record by stating that it had determined its factsand the following conclusions of law on clear, cogent and
convincing evidence. Accordingly, we overrule this argument.
Next, respondent argues the trial court erred by failing to
enter its adjudication and disposition orders within thirty days of
the completion of the hearing as required by N.C.G.S. §§ 7B-807 and
7B-905(a)(2005). However, in order to require reversal of a trial
court's order for failure to enter it within the thirty-day
requirement, an appellant must demonstrate prejudice caused by the
delay. In Re L.E.B, K.T.N.
, 169 N.C. App. 375, 378-79, 610 S.E.2d
424, 426 (2005).
Respondent-mother contends she suffered prejudice because of
(1) harm to the children (2) violation of her due process rights
and (3) delay in permanent placement. However, the record reflects
that the mother's visits, strictly supervised by court order, were
more problematic for the children than was their placement with
their father and other relatives. With respect to permanent
placement of the children, a permanency planning hearing was held
within 30 days of the adjudication hearing and the court ordered
permanent plans for each. These permanent plans were placed into
effect at the next hearing. Respondent-mother has not appealed
from either order. Thus, respondent-mother has shown no harm to
the children resulting from the delay in entering the adjudication
and neglect orders. Though she asserted a violation of her due
process rights, respondent-mother has provided neither argument nor
authority in support of her assertion, and, therefore, we do notconsider her bare assertion. Bursell v. General Elec. Co.
N.C. App. 73, 77, 616 S.E.2d 342, 345-46 (2005).
By her third and fourth arguments, respondent-mother asserts
the trial court abused its discretion in finding that she had
neglected and/or abused the children since there was insufficient
evidence for the trial court to make such determinations. We
reject these arguments as well.
Both arguments are predicated on respondent-mother's first
argument, i.e., that the trial court erred in not stating the
standard of proof it utilized in arriving at its factual findings,
which we have already rejected for the reasons stated earlier.
Moreover, we have reviewed the evidence and conclude the record
manifestly supports the trial court's findings of fact, which, in
turn, support its conclusions of abuse and neglect.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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