Appeal by respondents from order entered 8 March 2007 by Judge
Edward A. Pone in Cumberland County District Court. Heard in the
Court of Appeals 13 November 2007.
Elizabeth Kennedy-Gurnee for petitioner-appellee.
Lisa Skinner Lefler for respondent-appellant mother.
Annick Lenoir-Peek for respondent-appellant father.
Beth A. Hall for guardian ad litem.
Respondent mother is the biological mother of M.G. ("Martin")
and M.B. ("Michelle"). Respondent father is the biological father
of K.R. ("Kristen") and J.R. ("Jack").
(See footnote 1)
Both respondents appeal
from the trial court's order adjudicating all four children abused
(See footnote 2)
We hold that the trial court properly concludedthat the four children were abused as defined by N.C. Gen. Stat. §
7B-101(1)(b) (2005) and neglected as defined by N.C. Gen. Stat. §
7B-101(15). We further affirm the trial court's determination that
Kristen was sexually abused under N.C. Gen. Stat. § 7B-101(1)(d).
Because, however, the trial court improperly allowed petitioner to
amend its petition to add allegations of sexual misconduct as to
Michelle, we must reverse the portion of the order concluding that
Michelle was sexually abused. Moreover, we remand for further
findings of fact regarding the trial court's jurisdiction with
respect to Kristen and Jack.
On 18 May 2006, the Cumberland County Department of Social
Services ("DSS") filed a juvenile petition alleging that Martin,
Michelle, Kristen, and Jack were dependent, neglected, and abused
children. At the time of the petition, Martin was five years old,
Michelle was nine, Kristen was 13, and Jack was 14. That same day,
an order for non-secure custody was entered, and the children were
placed in the custody of DSS.
On 5 December 2006, DSS filed a motion for leave to amend the
petition to add allegations, based on recent disclosures by
Michelle, that she had been sexually abused by respondent father.
A hearing was held on the motion on 4 January 2007, and the court
granted the motion on 21 February 2007.
On 19 and 20 February 2007, a hearing was held on the juvenile
petition. The evidence presented at the hearing indicated thefollowing. Initially, Kristen and Jack had lived with respondent
father, but moved to California to live with their biological
mother and her husband. When their mother divorced their
stepfather, Jack went to live with the stepfather, but Kristen
continued to live with their mother. Jack subsequently moved back
to North Carolina to live with his father in December 2005 or
January 2006. After Jack and Kristen's mother attempted suicide
twice, Kristen also returned to live with her father in February
2006. During Kristen's first night in North Carolina, respondent
father allowed Kristen and Jack to drink beer.
Respondent father was living with respondent mother and her
two children, Martin and Michelle. While all four children were
living with respondents, respondent father often drank alcohol,
especially beer, to excess. Although sometimes he was playful,
other times, he would yell at respondent mother and the children
and chase them. Frequently, Jack would stand up to respondent
father on behalf of respondent mother and Kristen. The children
became afraid of respondent father when he was drunk _ which the
trial court found occurred on a regular and consistent basis.
Respondent father committed acts of domestic violence on
respondent mother in the presence of the children. On one
occasion, respondent father demanded that respondent mother
accompany him to the bedroom. Kristen heard respondent mother
yelling for respondent father to get off of her, and when
respondent mother came out of the bedroom, her lip was "busted" and
her arms, legs, and neck were bruised. Respondent mother toldKristen that respondent father had punched and hit her. On another
occasion, respondent father hit Jack in the chest with his fist,
leaving a bruise.
In addition, respondent father inappropriately slapped Kristen
on the buttocks and called her "bitch" and "Big Titty McGee." On
one occasion, while drunk, respondent father grabbed Kristen from
behind and fondled her breasts, while another time, he
inappropriately touched her in the vaginal area. Not only did
respondent mother not intervene, she also called Kristen a "bitch"
and frequently yelled at her.
Respondent father walked in on Kristen in the bathroom at
least three times when she was taking a shower. Once, while
Kristen was taking a shower, Jack and respondent father decided to
play a trick on her. Respondent father lit a firecracker and threw
it into the bathroom and closed the door.
On at least one occasion, respondent father drove with all
four children after he had consumed a large quantity of alcoholic
beverages. Respondent mother allowed respondent father to take the
children, although she stayed behind. Respondent father drove to
a relative's house where he drank more beer. Respondent father
said that he had heard that Jack was smoking, pulled out a
cigarette, and demanded that Jack smoke the cigarette. Jack
refused. Respondent father also began yelling at Kristen and
threatened to hit her in the face. He insisted that the children
get in the truck to leave. Although they did not want to ride with
respondent father, they obeyed. After stopping at a friend'shouse, respondent father argued with and yelled at the children as
he drove them home.
On other occasions, respondent father gave beer to Kristen and
Jack and offered them marijuana. Jack drank beer at respondent
father's insistence. Both children watched respondent father roll
Respondent father also engaged in sexual activities with
Michelle starting when she was eight or nine years old. On one
occasion, he placed his penis in her mouth. When "stuff came out"
into her mouth, she almost threw up. Another time, respondent
father placed his penis in Michelle's vaginal area, but when
Michelle began to cry because it hurt, respondent father said,
"let's quit." Although Michelle was afraid to tell anyone, she
eventually confided in a family friend and to social workers.
The trial court found that respondent mother observed many of
the incidents in which respondent father consumed alcohol to excess
and "act[ed] out upon her and the children." According to the
trial court, despite respondent mother's knowledge of respondent
father's violent and abusive nature and of his alcohol abuse, she
failed to protect the minor children. When DSS called respondent
father as a witness regarding the petition's allegations, he
invoked the Fifth Amendment and declined to testify.
On 8 March 2007, the trial court concluded that Michelle and
Kristen had been sexually abused as defined by N.C. Gen. Stat. §
7B-101(1)(d). It further concluded that all four children were
abused and neglected as defined in N.C. Gen. Stat. § 7B-101(1)(b)and -101(15), but dismissed the allegations of dependency.
Finally, the court concluded that Kristen and Jack were abused as
defined in N.C. Gen. Stat. § 7B-101(1)(f). After making 36
dispositional findings of fact, the trial court determined that
return of the children to respondents would be contrary to their
best interests and that custody should remain with DSS. The court
further ordered that respondent father have "absolutely no contact
with any of the minor children in this matter." Both respondents
appealed from the trial court's order.
 Respondent father contends that the court lacked subject
matter jurisdiction with respect to Kristen and Jack because North
Carolina did not qualify as Kristen's and Jack's home state under
the Uniform Child-Custody Jurisdiction and Enforcement Act
("UCCJEA"). Under the UCCJEA, a child custody proceeding includes
a proceeding for neglect, abuse, dependency, and termination of
parental rights. See
N.C. Gen. Stat. § 50A-102(4) (2005). Initial
jurisdiction in a child custody proceeding lies in a North Carolina
court only if:
(1) This State is the home state of the child
on the date of the commencement of the
proceeding, or was the home state of the
child within six months before the
commencement of the proceeding, and the
child is absent from this State but a
parent or person acting as a parent
continues to live in this State;
(2) A court of another state does not have
jurisdiction under subdivision (1), or a
court of the home state of the child has
declined to exercise jurisdiction on the
ground that this State is the moreappropriate forum under G.S. 50A-207 or
G.S. 50A-208, and:
a. The child and the child's parents,
or the child and at least one parent
or a person acting as a parent, have
a significant connection with this
State other than mere physical
b. Substantial evidence is available in
this State concerning the child's
care, protection, training, and
(3) All courts having jurisdiction under
subdivision (1) or (2) have declined to
exercise jurisdiction on the ground that
a court of this State is the more
appropriate forum to determine the
custody of the child under G.S. 50A-207
or G.S. 50A-208; or
(4) No court of any other state would have
jurisdiction under the criteria specified
in subdivision (1), (2), or (3).
N.C. Gen. Stat. § 50A-201(a) (2005). The "home state" is defined
as "the state in which a child lived with a parent or a person
acting as a parent for at least six consecutive months immediately
before the commencement of a child-custody proceeding." N.C. Gen.
Stat. § 50A-102(7).
North Carolina courts may also exercise temporary emergency
jurisdiction if it is "necessary in an emergency to protect the
child because the child . . . is subjected to or threatened with
mistreatment or abuse." N.C. Gen. Stat. § 50A-204(a) (2005).
Further, "[i]f a child-custody proceeding has not been or is not
commenced in a court of a state having jurisdiction under G.S. 50A-
201 through G.S. 50A-203, a child-custody determination made under
this section becomes a final determination if it so provides, andthis State becomes the home state of the child." N.C. Gen. Stat.
In this case, the trial court found as to jurisdiction:
The juveniles are less than 18 years of age,
are physically present in this State and
District and were so at the time the petition
was filed, and this State is the home state of
the juveniles and was so at the time of the
commencement of these proceedings.
Neither respondent challenges the court's jurisdiction under the
UCCJEA with respect to Martin and Michelle. Respondent father,
however, contends that the trial court erred in finding that North
Carolina is the "home state" of Kristen and Jack. We agree.
DSS filed the juvenile petition on 18 May 2006. Kristen came
to live with her father in February 2006, and Jack moved to North
Carolina only one or two months before Kristen. Thus, at the time
the petition was filed, Kristen had been living in North Carolina
for three months and Jack for four or five months. Since neither
child had lived in North Carolina "for at least six consecutive
months immediately before the commencement of" the proceedings, the
trial court incorrectly found North Carolina to be their home
state. N.C. Gen. Stat. § 50A-102(7).
When "the trial court's sole basis for exercising subject
matter jurisdiction is erroneous, we may review the record to
determine if subject matter jurisdiction exists in [the] case."
Foley v. Foley
, 156 N.C. App. 409, 412, 576 S.E.2d 383, 385 (2003).
While N.C. Gen. Stat. § 50A-201(a) provides three other bases under
which a North Carolina court could have jurisdiction, the record
does not contain sufficient evidence from which we can determinewhether jurisdiction in fact exists. Although the information
could have been obtained from respondent father and perhaps from
the two children, who were teenagers, no attempt was made to
inquire whether there were any prior child custody proceedings.
DSS and the guardian ad litem seem to argue that the lack of
evidence in the record is sufficient to support jurisdiction. They
cite no authority in support of this contention. Indeed, under
these circumstances, controlling precedent dictates that we vacate
the decision below as to Kristen and Jack and remand for a
determination of subject matter jurisdiction. See In re J.B.
N.C. App. 394, 397-98, 595 S.E.2d 794, 796-97 (2004) (vacating and
remanding permanency planning order when trial court's findings of
fact did not support conclusion of jurisdiction and record lacked
evidence to make the determination); Foley
, 156 N.C. App. at 413,
576 S.E.2d at 386 (vacating custody order and remanding for
determination of subject matter jurisdiction when basis for
assertion of jurisdiction was in error and record lacked sufficient
evidence for this Court to determine subject matter jurisdiction
existed). See also Brewington v. Serrato
, 77 N.C. App. 726, 729,
336 S.E.2d 444, 447 (1985) ("North Carolina has adhered to the view
that a trial court in assuming jurisdiction of custody matters must
make specific findings of fact supporting its action.").
 Respondent mother raises additional arguments regarding
the trial court's subject matter jurisdiction as to Kristen and
Jack. According to respondent mother, the court lacked subjectmatter jurisdiction because (1) the affidavit of the status of the
minor child required by N.C. Gen. Stat. § 50A-209 (2005)
inaccurately reported that Kristen and Jack had lived with
respondents continuously since 2002, and (2) the petition was not
served on either of the two older children. We find neither
The juvenile petition or an affidavit attached to the petition
must contain "the child's present address or whereabouts, the
places where the child has lived during the last five years, and
the names and present addresses of the persons with whom the child
has lived during that period." N.C. Gen. Stat. § 50A-209(a). Our
Supreme Court has recently held that the failure to comply with §
50A-209(a) does not prevent the court from exercising subject
matter jurisdiction over the juvenile proceeding. In re A.R.G.
361 N.C. 392, 398, 646 S.E.2d 349, 353 (2007).
, DSS failed to provide the juvenile's addresses in
the initial petition and failed to attach an affidavit providing
such information. Id.
at 394, 646 S.E.2d at 350. The Court
pointed out that "[n]othing in [N.C. Gen. Stat. § 50A-209] suggests
that the information required is jurisdictional" and, in fact, the
language of the statute indicated to the contrary. Id.
at 399, 646
S.E.2d at 353. The Court further noted that the statute "requires
parties to submit the information" and concluded that "[i]t
would defy reason to suggest that a parent could defeat the
jurisdiction of a trial court by his or her own noncompliance with
the statute." Id.
If a total omission of the address information required by
N.C. Gen. Stat. § 50A-209 does not divest the trial court of
subject matter jurisdiction, then inaccurate information cannot
divest the court of jurisdiction. Although respondent mother
argues that the information was critical in determining who could
have abused the children, the required address information for
Kristen and Jack was known to respondents and was provided during
the course of the hearing. As the Supreme Court reasoned, to hold
that the deficiencies in the DSS petition "could have prevented the
trial court from acquiring subject matter jurisdiction over the
juvenile action would be to elevate form over substance. Such a
holding would additionally impose jurisdictional limitations which
the General Assembly clearly never intended when it sought to
balance the interests of children with the rights of parents in
juvenile actions." A.R.G.
, 361 N.C. at 399, 646 S.E.2d at 353.
 With respect to service of the petition on Kristen and
Jack, respondent mother cites no authority requiring such service
in an initial adjudication. N.C. Gen. Stat. § 7B-406(a) (2005)
provides that in neglect, abuse, and dependency proceedings, only
the "parent, guardian, custodian, or caretaker" must be served with
a summons attaching a copy of the petition. Accordingly, the
failure to serve Kristen and Jack with the petition cannot be a
basis for concluding that the trial court lacked subject matter
 Respondents both contend that the court lacked subject
matter jurisdiction as to all four children because the summons
served on each respondent failed to name all four of the juveniles.
Although the petition listed all four children, the summons served
on respondent mother listed only Martin and Michelle, while the
summons served on respondent father listed only Kristen and Jack.
In support of their argument, respondents cite In re C.T. &
, 182, N.C. App. 472, 475, 643 S.E.2d 23, 25 (2007), in which
this Court vacated the portion of an order terminating a mother's
parental rights relating to R.S. when the summons issued
"referenced" C.T., but did not "mention or reference" R.S. This
Court noted that the controlling statute was N.C. Gen. Stat. § 7B-
1106(a) (2005), which states in pertinent part: "Except as provided
in G.S. 7B-1105, upon the filing of the petition [to terminate
parental rights], the court shall cause a summons to be issued.
The summons shall be directed to the following persons . . . who
shall be named as respondents: (1) The parents of the juvenile . .
. ." After noting that the "failure to issue a summons deprives
the trial court of subject matter jurisdiction," the Court noted
that the appellees had not cited "any case holding that subject
matter jurisdiction existed where a statutorily required summons
was not issued
regarding a proceeding concerning a juvenile, a
situation different from that presented by technical defects in
of a summons." In re C.T. & R.S.
, 182 N.C. App. at 475,
643 S.E.2d at 25. Accordingly, the Court "vacate[d] the order ontermination to the extent it terminates the parental rights of
respondent in R.S." Id.
This case does not involve the termination of parental rights.
The controlling statute is instead N.C. Gen. Stat. § 7B-406(a),
which provides: "Immediately after a petition has been filed
alleging that a juvenile is abused, neglected, or dependent, the
clerk shall issue a summons to the parent, guardian, custodian, or
caretaker requiring them to appear for a hearing at the time and
place stated in the summons. . . . A copy of the petition shall be
attached to each summons." Here, there can be no question that DSS
has complied with § 7B-406(a). DSS filed a petition alleging that
all four children were abused, neglected, and dependent; the clerk
issued a summons to each of the respondent parents; and the summons
attached the petition listing each of the four children.
Respondents have pointed to no authority _ and we have found
none _ suggesting that the trial court lacks subject matter
jurisdiction in an abuse, neglect, or dependency proceeding because
of a failure to list all of the children on all of the summonses
when each child has been listed on the summons for his or her
biological parents. It is established that even when a summons is
issued to only one parent of a child, the court still has
jurisdiction to determine the status of the child in an abuse,
neglect, and dependency proceeding. In re Poole
, 151 N.C. App.
472, 476-77, 568 S.E.2d 200, 203 (2002) (Timmons-Goodson, J.,
dissenting) (holding that the failure to issue and serve summons on
respondent father did not divest court of subject matterjurisdiction to find child dependent when summons was issued and
served on mother), adopted per curiam
, 357 N.C. 151, 579 S.E.2d 248
(2003). Thus, even assuming without deciding, that C.T.
relevant to § 7B-406(a) and requires a summons referencing each
child, allocation of the names of the children among summonses
based on who is the biological parent of the particular child is
sufficient to vest the trial court with subject matter jurisdiction
over that child.
Further, as this Court recently held, in these types of
proceedings _ in contrast to termination of parental rights
proceedings _ the trial court is not required to determine the
culpability of each parent as to each child. In re J.S.
, 182 N.C.
App. 79, 86, 641 S.E.2d 395, 399 (2007). The Court explained:
The purpose of abuse, neglect and
dependency proceedings is for the court to
determine whether the juvenile should be
adjudicated as having the status of abused,
neglected or dependent. . . . The purpose of
the adjudication and disposition proceedings
should not be morphed on appeal into a
question of culpability regarding the conduct
of an individual parent.
As a result, there is no need to tie each child to each
respondent, especially when the issue is only the caption of a
summons that attaches the petition identifying all the children.
Accordingly, the nature of the captions of the summonses in this
case did not result in a lack of subject matter jurisdiction over
(See footnote 3)
 Respondents next contend that the trial court erred in
allowing DSS to amend its petition to add allegations regarding the
sexual abuse of Michelle. N.C. Gen. Stat. § 7B-800 (2005)
specifies that "[t]he court may permit a petition to be amended
when the amendment does not change the nature of the conditions
upon which the petition is based." Respondents contend that the
original petition did not allege that Michelle was sexually abused
and, therefore, the amendment necessarily changed "the conditions"
upon which the petition was based as to Michelle. We agree.
In In re D.C.
& C.C., 183 N.C. App. 344, 346-47, 644 S.E.2d
640, 641 (2007), the initial petition alleged that D.C. was a
neglected and dependent juvenile based on a lack of supervision and
domestic violence. The respondent mother subsequently gave birth
to C.C. and, two weeks later, the petitioner filed a petition
alleging that C.C. was dependent. Id.
at 346, 644 S.E.2d at 642.
At trial, however, the petitioner proceeded on a theory of neglect
as to C.C., and the trial court concluded that C.C. was indeed a
neglected child. Id.
at 349-50, 644 S.E.2d at 643. In reversing
the order to the extent that it found C.C. to be neglected, this
Court first held that the trial court "essentially amended the
juvenile petition by allowing DSS to proceed on a condition not
alleged in the petition." Id.
(internal quotation marks omitted).
The Court then concluded that adding the ground of neglect when the
petition alleged only dependency violated N.C. Gen. Stat. § 7B-800.
In this case, the original petition contained no allegations
of sexual abuse as to Michelle, although it contained allegations
that Kristen had been sexually abused. The abuse allegations
relating to Michelle involved placement of Michelle and Martin with
a person who left them in the care of someone whose home "was
deplorable," respondent father's use of alcohol and marijuana, and
respondents' domestic violence. Based on the same factual
allegations, the petition also alleged that Michelle was a
neglected and dependent child. The motion for leave to amend this
petition sought to add allegations regarding recent disclosures
that respondent father had inappropriate sexual conduct with
Michelle that resulted in criminal charges.
We hold that adding the allegations of Michelle's sexual abuse
changed the nature of the conditions relied upon in the original
petition as to Michelle. Although DSS argued to the trial court
and urges on appeal that the petition contained allegations of
sexual misconduct with respect to Kristen, this argument ignores
the fact that an abuse, neglect, and dependency proceeding focuses
on the status of the child and not on the culpability of the
parent. See In re J.S.
, 182 N.C. App. at 86, 641 S.E.2d at 399.
Because the new allegations gave rise to a different status for
Michelle than alleged in the original petition, they violated N.C.
Gen. Stat. § 7B-800, even though the original petition alleged
inappropriate sexual conduct by respondent father towards another
child. Pursuant to D.C.
, we must, therefore, vacate that portion
of the order concluding that Michelle is a sexually abused juvenileas defined by N.C. Gen. Stat. § 7B-101(1)(d). In re D.C. & C.C.
183 N.C. App. at 349-50, 644 S.E.2d at 643.
(See footnote 4)
Respondents next challenge the merits of the trial court's
determination that the children were neglected and abused.
(See footnote 5)
role of this Court in reviewing an initial adjudication of neglect
and abuse is to determine (1) whether the findings of fact are
supported by clear and convincing evidence, and (2) whether the
legal conclusions are supported by the findings of fact." In re
, 181 N.C. App. 715, 717-18, 641 S.E.2d 18, 20 (2007)
(internal quotation marks omitted). "'In a non-jury neglect [and
abuse] adjudication, the trial court's findings of fact supported
by clear and convincing competent evidence are deemed conclusive,
even where some evidence supports contrary findings.'" Id.
18, 641 S.E.2d at 21 (quoting In re Helms
, 127 N.C. App. 505, 511,
491 S.E.2d 672, 676 (1997)).
 Although respondent mother has assigned error to certain
of the trial court's findings of fact and listed those assignments
of error under the headings of the argument section of her brief,
she has provided no argument as to why these findings were notsupported by competent evidence. "Assignments of error not set out
in the appellant's brief, or in support of which no reason or
argument is stated or authority cited
, will be taken as abandoned."
N.C.R. App. P. 28(b)(6) (emphasis added). Consequently, respondent
mother's assignments of error as to the findings of fact are deemed
abandoned. See In re A.H.
, 183 N.C. App. 609, 613, 644 S.E.2d 635,
638 (2007) ("Although respondent assigned error to many of the
trial court's findings of fact, claiming that they were unsupported
by competent evidence, those assignments of error were not brought
forward in her brief. They are, therefore, deemed abandoned.").
 With respect to the court's conclusion that the minor
children were abused, respondent mother argues only that "[i]n this
case, [respondent father] is accused of hitting [Jack] and sexually
abusing [Michelle] and [Kristen]. The only direct allegation
against [respondent mother] is that she hit [Kristen] after
[Kristen] was disrespectful. [Jack], [Kristen's] brother,
testified that [Kristen] was a troublemaker." As we have
discussed, however, J.S.
confirms that in an abuse, neglect, and
dependency proceeding, the question is whether the children were
abused and not whether respondent mother committed the abuse.
Nevertheless, the definition of an abused child includes one
whose parent, guardian, custodian, or caretaker "[c]reates or
allows to be created a substantial risk of serious physical injury
to the juvenile by other than accidental means." N.C. Gen. Stat.
§ 7B-101(1)(b). The trial court found that respondent mother "knew
of [respondent father's] violent and abusive nature, his alcoholabuse, and she failed to take the necessary steps to protect the
minor children. [Respondent mother] also witnessed many of the
incidents where [respondent father] would consume alcohol to excess
and act out upon her and the children." Further, respondent mother
allowed respondent father to drive the children after he had
consumed a large quantity of alcoholic beverages. These findings
of fact are sufficient to support a determination that respondent
mother "allow[ed] to be created a substantial risk of serious
physical injury to the juvenile by other than accidental means."
With respect to the conclusion that the children were
neglected juveniles, respondent mother makes no specific argument
as to how the findings of fact fail to meet the following
definition of a neglected child:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15). Accordingly, respondent mother has
failed to demonstrate that the trial court erred in concluding that
Martin, Michelle, Kristen, and Jack were abused and neglected
juveniles.  Respondent father also contends that the trial court's
findings of fact are insufficient to support its conclusion that
the children were abused as defined by N.C. Gen. Stat. § 7B-
101(1)(b). He focuses, however, only on the finding of fact that
respondent father hit Jack in the chest leaving a bruise. He
overlooks the findings of fact regarding his domestic violence,
alcohol abuse, and driving the children while intoxicated. Those
findings, fully supported by the evidence, in turn provide ample
support for the determination that respondent father "created a
substantial risk of serious physical injury" to the children. N.C.
Gen. Stat. § 7B-101(1)(b).
Respondent father also contends that the trial court erred in
concluding that Kristen and Jack were abused pursuant to N.C. Gen.
Stat. § 7B-101(1)(f), which permits an adjudication of abuse for a
child whose parent "[e]ncourages, directs, or approves of
delinquent acts involving moral turpitude committed by the
juvenile." The court made the following findings of fact pertinent
to this issue:
20. That [respondent father] gave beer to his
children [Kristen] and [Jack] and offered
them marijuana. Both of the minor
children [Kristen] and [Jack] have
observed [respondent father] roll
marijuana cigarettes in their presence.
[Jack] drank beer at [respondent
father's] request and his insistence.
21. . . . . He told the minor child [Jack]
that he heard he had been smoking. He
proceeded to pull out a cigarette, put it
in front of the minor child and demanded
that he smoke it. The minor child [Jack]
refused to smoke the cigarette. . . .
Respondent father does not dispute that the record contains
evidence to support these findings.
Respondent father, however, points to testimony by Kristen
that her father said "I would rather you come home and before you
do your homework you ask me to get high and we'll go get high and
then you can go do your homework, and I don't want you going out
and getting high with your friends and going on the highway and
going 90 miles an hour and dying, or getting in a car wreck." He
then argues that he was making "an ill-attempted effort to show his
children that they would not enjoy these activities" _ conduct he
contends may amount to neglect, but does not amount to abuse under
N.C. Gen. Stat. § 7B-101(1)(f).
The dispositive question is whether underage drinking,
underage smoking, and marijuana use constitute "acts involving
moral turpitude." We have been unable to find any authority and
appellees have cited none suggesting that the conduct at issue in
this case falls within the traditional definition of acts involving
moral turpitude. Crimes involving moral turpitude include "'act[s]
of baseness, vileness, or depravity in the private and social
duties that a man owes to his fellowman or to society in general.'"
Dew v. State ex rel. N.C. Dep't of Motor Vehicles
, 127 N.C. App.
309, 311, 488 S.E.2d 836, 837 (1997) (quoting Jones v. Brinkley
174 N.C. 23, 27, 93 S.E. 372, 373 (1917)). See also State v. Mann
317 N.C. 164, 170, 345 S.E.2d 365, 369 (1986) (reaffirming this
definition of moral turpitude). Alternatively, moral turpitude isconsidered "[c]onduct that is contrary to justice, honesty, or
morality." Black's Law Dictionary
, 1030 (8th ed. 2004).
The conduct approved by respondent father is certainly
illegal, but our courts have not equated illegality with moral
turpitude. While drug dealing would amount to an act involving
moral turpitude, see Dew
, 127 N.C. App. at 312, 488 S.E.2d at 838
("We hold as a matter of law that the felony of 'conspiracy to
possess with intent to distribute marijuana' is a crime involving
moral turpitude."), we have found no cases suggesting that illegal
substance use standing alone rises to the same level. We agree
that the trial court's findings of fact regarding respondent
father's encouragement of smoking, drinking, and marijuana use by
Kristen and Jack support a determination that they are neglected
children, but hold that the conduct does not constitute abuse as
defined in N.C. Gen. Stat. § 7B-101(1)(f). We, therefore, reverse
that portion of the order concluding that Kristen and Jack were
abused under N.C. Gen. Stat. § 7B-101(1)(f).
 Finally, respondent father contends that the trial court
erred in concluding that Kristen is sexually abused as defined by
N.C. Gen. Stat. § 7B-101(1)(d). Under that subsection, a child is
abused if her parent, guardian, custodian, or caretaker
[c]ommits, permits, or encourages the
commission of a violation of the following
laws by, with, or upon the juvenile:
first-degree rape, as provided in G.S.
14-27.2; second degree rape as provided in
G.S. 14-27.3; first-degree sexual offense, as
provided in G.S. 14-27.4; second degree sexual
offense, as provided in G.S. 14-27.5; sexual
act by a custodian, as provided in G.S.
14-27.7; crime against nature, as provided inG.S. 14-177; incest, as provided in G.S.
14-178; preparation of obscene photographs,
slides, or motion pictures of the juvenile, as
provided in G.S. 14-190.5; employing or
permitting the juvenile to assist in a
violation of the obscenity laws as provided in
G.S. 14-190.6; dissemination of obscene
material to the juvenile as provided in G.S.
14-190.7 and G.S. 14-190.8; displaying or
disseminating material harmful to the juvenile
as provided in G.S. 14-190.14 and G.S.
14-190.15; first and second degree sexual
exploitation of the juvenile as provided in
G.S. 14-190.16 and G.S. 14-190.17; promoting
the prostitution of the juvenile as provided
in G.S. 14-190.18; and taking indecent
liberties with the juvenile, as provided in
N.C. Gen. Stat. § 7B-101(1)(d).
In this case, the trial court concluded that there had been a
violation of N.C. Gen. Stat. § 14-202.1 (2005), the taking of
indecent liberties. In reaching this conclusion, the trial court
found that respondent father "became drunk, walked up to the minor
child [Kristen], grabbed her from behind and fondled her breasts;"
that despite Kristen's objection, "he continued to grope the
minor;" and that "[o]n another occasion, [respondent father]
inappropriately touched the minor [Kristen] in the vaginal area."
Respondent father admits that these findings are supported by
Kristen's testimony, but argues that "[n]othing in the evidence or
findings supports that they were made for any sexual
gratification." Our courts have, however, held that such conduct
is sufficient to establish a violation of N.C. Gen. Stat. § 14-
202.1. See, e.g.
, State v. Bruce
, 90 N.C. App. 547, 551, 369
S.E.2d 95, 98 (concluding that when evidence indicated that on one
occasion, defendant started rubbing victim under her shirt, "jurycould properly infer that defendant's action in rubbing the
victim's breasts was for the purpose of arousing or gratifying his
sexual desire" and violated N.C. Gen. Stat. § 14-202.1), disc.
, 323 N.C. 367, 373 S.E.2d 549 (1988); State v. Slone
76 N.C. App. 628, 631, 334 S.E.2d 78, 80 (1985) (holding that
evidence that defendant placed his hand between victim's legs and
"rubbed her vagina with his finger" was sufficient "to warrant the
inference that the defendant willfully took indecent liberties with
the child for the purpose of arousing or gratifying his sexual
desire" within the meaning of N.C. Gen. Stat. § 14-202.1).
Accordingly, the trial court in this case could properly conclude
that Kristen was a sexually abused juvenile.
We affirm the order to the extent that it concludes that
Martin, Michelle, Kristen, and Jack were neglected juveniles; that
Martin, Michelle, Kristen, and Jack were abused as defined by N.C.
Gen. Stat. § 7B-101(1)(b); and that Kristen was sexually abused as
defined by N.C. Gen. Stat. § 7B-101(1)(d). We reverse the order to
the extent that it concludes that Michelle was sexually abused and
that Kristen and Jack were abused as defined by N.C. Gen. Stat. §
7B-101(1)(f). Neither respondent has made any argument regarding
the dispositional portion of the order, and, therefore, it is
affirmed. Finally, we remand for findings of fact regarding the
trial court's subject matter jurisdiction under the UCCJEA with
respect to Kristen and Jack.
Affirmed in part; reversed in part; remanded in part. Judges WYNN and STEELMAN concur.