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1. Child Abuse and Neglect_neglect of third child_injuries to first child_responsibility of parents_collateral estoppel
Respondent parents in a child neglect case involving their third child were collaterally estopped from denying responsibility for shaken baby syndrome injuries suffered by their first child where, in an order terminating their parental rights to the first child, the trial court found that the first child was an abused child in that she suffered physical injuries by other than accidental means while in the care of her parents.
2. Child Abuse and Neglect_child neglect_findings of fact_supporting evidence
The evidence in a child neglect case supported findings by the trial court that respondent parents failed to cooperate with DSS and failed to make reasonable progress on improving their parenting skills; respondents had not engaged in treatment services and continued to deny responsibility for injuries suffered by another child after their parental rights to that child were terminated for causing nonaccidental injuries to the child; respondents failed to participate in the Family PRIDE Program as directed by court order; respondents refused to schedule home visits by DSS even though the DSS social worker offered to come after regular hours; and respondents were consistently late to visitations with the child.
3. Child Abuse and Neglect_-neglected child_failure to order kinship placement
The trial court did not err by declining a kinship placement for a neglected child where DSS completed kinship assessments with all relatives suggested by respondent parents, and family placement was inappropriate because the family members did not believe that the child was in need of protection and it would therefore not ensure the child's safety.
4. Child Abuse and Neglect_child neglect_risk of future abuse or neglect_injuries to
another child_other factors
The trial court did not err by adjudicating respondents' third child to be a neglected juvenile based on the high risk of future abuse or neglect where, in addition to the fact that respondents' parental rights to their first child had been terminated on the ground that respondents were responsible for shaken baby and other nonaccidental injuries suffered by that child, the trial court also considered respondents'failure to participate in the PRIDE program, respondents' attempts to hide the fact of the mother's pregnancy, respondents' failure to inform DSS of a change of address, respondents' continued refusal to accept responsibility for the first child's injuries, respondents' failure to participate in anger managment classes, respondents' consistent tardiness to visits, respondents' attempts to discourage home visits from DSS, and evidence of recidivism rates.
5. Child Abuse and Neglect_neglected child_ceasing of reunification efforts and
The trial court in a child neglect case involving respondents' third child did not abuse it discretion by concluding that reunification efforts would be futile and that reunification efforts and visitation should cease where the evidence supported a finding by the court that DSS hadbeen involved with respondents for several years when their first child was placed into protective custody; respondents failed to cooperate with the various social workers, failed to comply with family service plans, and did not make reasonable efforts at reunification with their first child; respondents concealed the birth of their third child from DSS; respondents have not recognized their responsibility for nonaccidental injuries to their first child; and respondents have failed to cooperate with DSS and comply with their case plan for obtaining parental education, supervision, instruction and behavioral counseling.
Judge TYSON dissenting.
E. Marshall Woodall and Duncan B. McCormick, for petitioner-
appellee Harnett County Department of Social Services.
Sofie W. Hosford, for respondent-appellant mother.
Lisa Skinner Lefler, for respondent-appellant father.
Elizabeth Myrick Boone, for guardian ad litem.
On 24 October 2005, the Harnett County Department of Social Services (DSS) filed a juvenile petition alleging that N.G. was a neglected child. DSS claimed that N.G. was not receiving proper medical care due to respondents' desire to conceal the child's existence from DSS. DSS alleged that respondents concealed the pregnancy and birth of the child due to the family's history with the agency. Specifically, DSS noted that respondents' parental rights had been terminated with respect to their first child, and that their second child was in DSS custody. DSS further stated that respondents' first child, L.G., sustained injuries associated with shaken baby syndrome and that the injuries were deemed non-accidental. Respondents' second child was removed based on the assessment that the home environment being assessed as injurious to the child's welfare. DSS alleged that N.G. also lived in an environment injurious to her welfare due to the significance of L.G.'s injuries, respondents' lack of cooperation with DSS, and their inability to take responsibility or explain L.G.'s injuries. A non-secure custody order was entered and N.G. was removed from respondents' home.
An adjudicatory and dispositional hearing was held on 20 September 2006. On 30 January 2007, the trial court entered the written adjudicatory and disposition order. The trial court found that N.G. was a neglected juvenile in that she lived in an environment injurious to her welfare. The trial court awarded custody to DSS, concluded that reunification would be futile, and ceased visitation. Respondents appeal.
Allegations of neglect must be proven by clear and convincing
evidence. In a non-jury neglect adjudication, the trial court's
findings of fact supported by clear and convincing competentevidence are deemed conclusive, even where some evidence supports
contrary findings. In re Helms, 127 N.C. App. 505, 511, 491
S.E.2d 672, 676 (1997)(citations omitted).
 In findings of fact numbers 5 and 7, the trial court found that N.G. lived in an environment injurious to her welfare because she was allowed to live in a home where an older sibling had been subjected to abuse and respondents had not adequately addressed the conditions that led to the abusive acts. Further, the trial court found that L.G. suffered physical injuries by other than accidental means while in respondents' care. The court then listed L.G.'s many injuries, including intracranial injuries, skull fractures, fractured ribs, and fractured tibias. In finding of fact number 9, the trial court found:
The rib injuries . . . were consistent with being caused by direct impact or from forceful squeezing or compression of her ribs. The injuries to her tibias were likely caused by forceful twisting or torques of those bones. The head injuries were caused by [L.G.] being shaken violently and/or from a forceful impact to her head.
Respondents contend that petitioner failed to present clear, cogent, and convincing evidence that either respondent caused the injuries. However, in the order terminating respondents' parental rights to L.G., the trial court made almost identical findings, and found that L.G. was an abused child in that she suffered physical injuries by other than accidental means while in the care of her parents. The doctrine of collateral estoppel operates to preclude parties 'from retrying fully litigated issues that were decided in any prior determination and were necessary to the priordetermination.' In re Wheeler, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987)(quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Therefore, respondents are estopped from denying responsibility for L.G.'s injuries.
 Respondents next challenge findings made by the trial court relating to their cooperation with DSS and completion of their case plan. In finding of fact number 12, the trial court found that respondents failed to cooperate with DSS and made no progress on taking steps to improve their parenting skills. In findings of fact numbers 23 and 24, the trial court found that respondents failed to make reasonable progress on improving their parenting skills and abilities and had not engaged in treatment services as ordered by the court and have continued to deny any responsibility for the injuries involving the older sibling . . . or acknowledge any wrongdoings involving that child. In dispositional finding of fact number 6, the trial court found that respondents had failed to cooperate with the various social workers and failed to fully cooperate with family service plans, and that respondents had failed to take responsibility for L.G.'s injuries and blamed others for the injuries without any reliable evidence to support their claims. In dispositional finding of fact number 7, the trial court found that respondents were directed . . . to participate in the Family PRIDE Program to include individual counseling or therapy for each parent by a therapist approved by DSS and the [guardian ad litem].
Respondents assert that they made efforts at cooperating withsocial workers and complying with their case plan. Respondents note that prior orders of the court allowed them to participate in comparable programs approved by DSS and the guardian ad litem. Respondents contend that they sought approval of alternative programs and attended these programs, but that their attempts at gaining approval of these programs were ignored. Finally, respondent-mother argues that she should not be faulted for refusing to admit that she injured the older sibling, noting that she has steadfastly maintained her innocence and is not required to prove her innocence.
We find respondents' arguments unpersuasive. Maria Mucciacciaro, a DSS social worker, testified that she met with respondents and specifically told them that the classes they were taking would not be accepted as an alternative to the Family PRIDE program. Mucciacciaro testified that DSS was aware of the program attended by respondents, and that although she and her supervisor reviewed the program, [they] did not feel that this program would be a good program for [respondents], nor did [they] feel like there would be any success rate with it. Among the reasons stated by Mucciacciaro were that the program attended by respondents did not do drug testing, there were concerns whether the teacher of the class was qualified, and the program was not as in-depth a program in comparison to the PRIDE program.
Furthermore, as we have noted, respondents are estopped from arguing that they were not responsible for L.G.'s injuries. Dr. Sharon Cooper testified that: If you have a parent who is unable ever to acknowledge culpability with respect to the severe injuries that a previous child has had, as is the case in this circumstance, the risk for injury of subsequent infants is significantly elevated, and it is for that particular reason _ according to the literature, if a person has shaken a baby once, their risk for re-injury is 77 percent, three out of four times. They must come to an understanding that shaking the infant is causing the infant harm.
Therefore, we conclude that there was clear, cogent, and convincing evidence in the record to support the trial court's adjudicatory findings of fact numbers 12, 23 and 24, and dispositional findings numbers 6 and 7.
In finding of fact number 18, the trial court found that respondents refused (discouraged) to allow home visitation by the social worker after August 2005. Similarly, in finding of fact number 25(iv), the court found that [h]ome visits were discouraged by the mother. We find sufficient evidence in the record to support the trial court's findings. Mucciacciaro testified that in June, 2005, she attempted to set up a home visit with respondents but was told that it wasn't convenient. Mucciacciaro offered to come after regular hours, but was again told that it wasn't convenient. Mucciacciaro finally asked if there was any time that she could come, and was told, No, it's not convenient. Similarly, in August, 2005, Mucciacciaro attempted to set up home visits, and respondents told her, It's a bad week . . . . Again, Mucciacciaro offered to visit after regular hours, but respondents continued to tell her it was a bad week. Mucciacciaro testified that I don't think I was ever able to schedule a visit _ homevisit after that.
In finding of fact number 25(iii), the trial court found that respondents were consisitently [sic] 15 minutes late to the visitations over the last several months for the announced reason that traffic had made them late. We find sufficient evidence in the record to support the trial court's finding. A DSS court report stated that while respondents attended all visitations, over the last several months they are consistently on average 15 minutes late to the visitations, most of the time saying that traffic had made them late. Additionally, Mucciacciaro testified that respondents consistently visited N.G., but were late some. Moreover, respondent-father admitted at the hearing that they were late for visits because they had to drive from New Jersey.
Respondents additionally challenge dispositional finding of fact number 5, in which the trial court stated that it had reviewed the exhibits offered by the parents but [did] not find the same to be credible on the issue of the juvenile's safety and best interest. Respondent-mother contends that the evidence was competent, and that she cannot determine on what basis these exhibits were not 'credible' . . . . We hold that the trial court did not err. It is the judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984)(citation omitted).
In finding of fact number 27, the trial court found that DSSwas unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile. Similarly, adjudicatory conclusion of law number 3 states that DSS was unable to prevent placement of the juvenile into out of home care, and the filing of the petition was necessary to protect the juvenile and the placement of the juvenile in care could not be prevented. Respondents contend that N.G. was being appropriately cared for and removal was not necessary for her protection. We disagree. As we have noted, respondents' arguments regarding L.G.'s injuries are not persuasive. Furthermore, Dr. Cooper testified that respondents' failure to acknowledge culpability for L.G.'s injuries put N.G. at risk of injury. When combined with the fact that respondents did not cooperate with DSS and failed to improve their parenting skills, the evidence supports the trial court's finding of fact and conclusion of law.
In dispositional findings of fact 6, 8, and 9, the trial court found that a plan of reunification would be futile, custody should be awarded to DSS, and visitation should be terminated. Respondent-mother renews her contention that her unwillingness to admit causing L.G.'s injuries should not result in the cessation of reunification efforts. Respondent-mother also argues that she should not be faulted for DSS's refusal to approve alternative programs. Respondent-mother finally asserts that the trial court should have considered a kinship placement. We find respondent- mother's arguments unpersuasive. The question of fault for L.G.'sinjuries is not before this court. Moreover, DSS presented evidence that these alternative programs were not comparable.
 The trial court also did not err by declining a kinship placement. DSS completed kinship assessments with all relatives suggested by respondents. Indeed, the record shows that all suggested kinship placements have been exhausted. Family placement was inappropriate because the family members did not believe that N.G. was in need of protection, and relative placement would therefore not ensure the child's safety. Accordingly, because competent evidence in the record supports the trial court's findings of fact and conclusions of law, the assignments of error are overruled.
N.C. Gen. Stat. § 7B-507(b)(2005). The trial court may only order
the cessation of reunification efforts when it finds facts based
upon credible evidence presented at the hearing that support its
conclusion of law to cease reunification efforts. In re Weiler,
158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). This Court
reviews an order that ceases reunification efforts to determine
whether the trial court made appropriate findings, whether the
findings are based upon credible evidence, whether the findings of
fact support the trial court's conclusions, and whether the trial
court abused its discretion with respect to disposition. In re
C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007). At the
disposition stage, the trial court solely considers the best
interests of the child. Nonetheless, facts found by the trial
court are binding absent a showing of an abuse of discretion. In
re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002)
(citations and quotations omitted). An abuse of discretion occurs
when the trial court's ruling is so arbitrary that it could not
have been the result of a reasoned decision. In re Robinson, 151
N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002)(citations and
Here, the trial court found in dispositional finding of fact number 6 that:
DSS has been involved with the respondentparents since 2001 when their first child was placed into protective custody. They have failed to cooperate with the various social workers and failed to fully comply with family service plans. They did not make reasonable efforts at reunification in their first child's care. Although they entered into a service agreement (updates) with their second child, they have not met the goals outlined in the service plans within a reasonable time. They concealed their third child from DSS and expressly failed to tell the truth about the possible pregnancy. The parents have not recognized appropriate responsibility or involvement in the injuries to their first child. They deny responsibility or involvement with the injuries but placed the blame for the injuries on others without any reliable evidence being produced. They refused an appropriate course of treatment to obtain parental education, supervision, instruction and behavioral counseling. There has not been an adequate attempt on their behalf to cooperate with a safety plan to assure the juvenile's safety. Their lack of candor, truthfulness and cooperation further complicates the issue of the juvenile's safety if placed with the parents.
As discussed previously, we have concluded that dispositional finding of fact number 6 was supported by clear, cogent, and convincing evidence in the record. We further conclude that the finding supports the trial court's conclusion that reunification efforts would be futile.
Respondents further contend that the trial court erred by ceasing visitation. This Court reviews the trial court's dispositional orders of visitation for an abuse of discretion. In re C.M., 183 N.C. App. at 215, 644 S.E.2d at 595. In light of the historical facts of the case, respondents' failure to accept responsibility for L.G.'s injuries, their failure to cooperate with DSS and comply with their case plan, and the trial court'sconclusion that reunification efforts should cease, we hold that the trial court's decision to cease visitation was not manifestly unsupported by reason. Accordingly, we hold that the court did not abuse its discretion in finding it to be in the best interests of the juvenile to cease reunification efforts and visitation.
Judge McGEE concurs.
Judge TYSON dissents by separate opinion.
TYSON, Judge dissenting.
The majority's opinion holds that: (1) DSS presented clear, cogent, and convincing evidence to support the trial court's findings of fact and conclusions of law; (2) the trial court did not err by adjudicating N.G. to be a neglected juvenile; and (3) the trial court did not abuse its discretion in finding reunification efforts to be futile and that it was in N.G.'s best interests to cease reunification efforts and visitation with respondents. I disagree and respectfully dissent.
If DSS makes no showing that neglect has continued at the time
of the hearing, evidence of changed circumstances must be
considered in light of the evidence of prior neglect and the
probability of a repetition of neglect. In re Ballard, 311 N.C.
708, 715, 319 S.E.2d 227, 232 (1984). Here, DSS made no showing of
any neglect of N.G. prior to or at the time of the hearing and
respondents have proved they made reasonable efforts and received
adequate treatment to alleviate the conditions that led to N.G.'s
removal from their home. Id.
N.G. was healthy and uninjured when she was removed from respondents' home and placed into DSS's care at two months of age. All allegations of neglect were derived and solely based upon another child having been previously removed from respondents' home.
Respondents completed parenting, domestic violence, and anger management classes after L.G. was removed from the respondents'home. Respondents moved to New Jersey in September 2005 and have been commuting to North Carolina for their weekly visits with N.G. since that time. Respondents have not missed any scheduled visits. Adjudicatory finding of fact numbered 5 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary finding.
The trial court's adjudicatory finding of fact numbered 27 states, [DSS] was unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile.
No family services case plan was established for N.G. The case plan cited by the trial court in its adjudicatory order pertained to J.G., respondents' second child. This case plan was established prior to DSS obtaining custody of N.G. The record shows DSS made no attempt to implement or restate this case plan for N.G.
The case plan for J.G. states that [respondents] shall participate in Pride program or other comparable program[s] in Cumberland Co. or other area program upon consultation with DSS [and Guardian ad Litem]. (Emphasis supplied). DSS claimed that all other programs were not comparable because, inter alia, those programs did not require random drug testing. No allegations were made and no evidence was shown of any drug abuse by either of respondents. Respondents were not required by the case plan or order to submit to random drug testing. Respondents were unable to participate in the Family PRIDE program due to scheduling conflictsof that program with respondent-father's work schedule.
DSS refused to respond to suggestions and requests to review multiple alternative agencies and providers whose programs would allow respondents to maintain employment. Undisputed evidence shows respondents submitted two written requests for DSS to review listed programs as comparable substitutes for the Family PRIDE Program. The first request, dated 10 November 2005, listed fourteen agencies and providers conducting parenting and anger management classes. The second request, dated 7 December 2005, listed eleven additional possible programs. No evidence in the record shows DSS ever reviewed or responded to any of respondents' requests.
Respondents attended and successfully completed parenting, domestic violence, and anger management classes as required by J.G.'s case plan with Multicultural Community Development Services, a parenting and family development center. While DSS never deemed Multicultural Community Development Services to be a comparable provider, the record shows DSS never made any attempt to advise or help respondents find an alternative program that did not conflict with respondent-father's employment; and consequently, respondents' ability to maintain housing and basis of support for their family. Adjudicatory finding of fact numbered 27 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary result and admonition to DSS to consult, respond, and cooperate with respondents on alternative treatment programs.
Reviewed de novo, the trial court's adjudicatory conclusionsof law numbered 2 and 3 state:
2. [N.G.] is a neglected as defined by N.C. Gen. Stat. 7B-101(15) because the juvenile has been allowed to live in an environment injurious to the juvenile's welfare.
3. [DSS] was unable to prevent placement of [N.G.] into out of home care, and the filing of the petition was necessary to protect [N.G.] and the placement of [N.G.] in care could not be prevented.
Since adjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence, these findings cannot support the trial court's conclusions of law. Under de novo review, the trial court's conclusions of law are not supported by the findings of fact based upon clear, cogent, and convincing evidence and are error. The trial court's unsupported conclusions and adjudication of N.G. to be a neglected juvenile should be reversed.
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