Appeal by respondents from order entered 14 October 2005 by
Judge Resson O. Faircloth in Harnett County District Court. Heard
in the Court of Appeals 2 November 2006.
E. Marshall Woodall and Duncan B. McCormick, for petitioner-
Annick Lenoir-Peek for respondent-appellant mother.
Peter Wood for respondent-appellant father.
Elizabeth Myrick Boone for guardian ad litem.
Respondents appeal from an order of the trial court
adjudicating their youngest child "Eddie"
(See footnote 1)
to be dependent. We
agree with respondents that the trial court's findings of fact are
inadequate to support its conclusion of law that Eddie is a
dependent child because the court failed to address the
availability of appropriate alternative childcare arrangements as
required by N.C. Gen. Stat. § 7B-101(9) (2005). We must,
therefore, reverse and remand for further proceedings.
Respondent mother is the biological mother of six children,
including Eddie, while respondent father is the biological father
of Eddie and three of the remaining five children. On 18 March
2005, the five older children were adjudicated to be neglected
At that time, respondents stipulated that they had failed to
provide proper care, supervision, and discipline for their five
older children and that the children were allowed to live in an
environment injurious to their welfare. Specifically, the parties
stipulated and the trial court found that respondents subjected
their children to unsanitary conditions in the home and exposed the
children to an act of domestic violence. The order also noted that
there were allegations that the respondent father engaged in
inappropriate sexual behavior with the children and improperly
disciplined the children by slapping them on the face, biting two
of them on the arm, and whipping another child with a spoon.
The older children were removed from the home and placed in
the custody of the Harnett County Department of Social Services
("DSS"). The court adopted a reunification plan and ordered the
parents to comply with a family services case plan that included
participation in parenting classes, therapy, and various other
On 27 July 2005, respondent mother gave birth to Eddie. Later
that day, DSS filed a juvenile petition alleging that Eddie was
neglected and dependent. The petition was based primarily on theprior adjudication of respondents' five older children as neglected
and respondents' failure to obtain prenatal care for Eddie. DSS
obtained non-secure custody, and Eddie was placed in foster care.
On 26 August 2005, Judge Resson O. Faircloth conducted a
review hearing for the five older siblings. At that time, the
court ceased reunification efforts as to the older children and
terminated visitation. Upon the conclusion of the review hearing,
the parties proceeded with the adjudication hearing for Eddie.
At the start of that hearing, DSS introduced the adjudication
order as to the five older children and certain medical records.
DSS further requested that the court consider, in connection with
Eddie's adjudication hearing, all evidence presented at the review
hearing. Respondent mother's counsel objected to the introduction
of the adjudication order and the medical records. Respondent
father's counsel did not object, but made a motion to continue the
After overruling respondent mother's objection and denying
respondent father's motion to continue, the court conducted the
adjudication hearing. Respondent mother's counsel re-called the
mother to the stand. No other evidence was presented.
On 14 October 2005, the trial court entered an order
adjudicating Eddie as dependent. The court did not find Eddie to
be neglected. In support of its conclusion of dependency, the
court found that the respondent parents had failed to make
reasonable progress on the plan of reunification for the five older
siblings; had failed to establish a residence of their own, butrather depended on others for shelter and support; had failed to
maintain employment; had failed to participate in suggested
services; had failed to seek prenatal care for Eddie until two
weeks prior to his birth; had given misleading information to DSS
about the expected birth; and had otherwise failed to make
appropriate plans to care for Eddie after birth. The trial court
held a dispositional hearing and concluded that it was in Eddie's
best interest to cease reunification efforts and terminate parental
visitation. Both parents timely appealed to this Court.
Respondents first challenge the trial court's decision to
consider in Eddie's adjudication hearing the evidence presented at
the review of custody hearing for the older children. They contend
that the evidence was incompetent and irrelevant as to Eddie.
Respondent mother also argues that the trial court erred in holding
the adjudication hearing immediately after the review hearing.
Respondents, however, failed to preserve these arguments for
It is well established that "[i]n the absence of an objection
at trial, a question may not be reviewed on appeal." In re L.L.
172 N.C. App. 689, 696, 616 S.E.2d 392, 396 (2005). In order to
preserve a question for appellate review, "a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context." N.C.R. App. P. 10(b)(1). At the onset of Eddie's adjudication hearing, DSS introduced
the adjudication order from the older siblings' case. Counsel for
DSS stated: "We'd also introduce into evidence the medical records,
and you have heard from the parents and also from [the] Department.
We would take the position you'd consider that evidence that's
already before the Court." Respondent mother's counsel indicated
that she "would oppose the introduction of the adjudication in the
prior [children's case] at this point." Counsel argued further:
This baby has just been born and there has
been no evidence _ nothing since this child
has been born tha[t] can even possibly prove
neglect, abuse, or even dependency upon this
child. This child hasn't even had the
opportunity to go into the home of the
[parents]. And if they're trying to take
custody of this child, I just don't think you
can base it upon a previous adjudication, not
when this child has not even been in the home.
Respondent father's counsel did not make any objection at all, but
simply stated: "Your Honor, I just wanted to make a motion to
continue at least for the record . . . ."
Counsel for DSS then stated: "I'm formally asking that the
evidence that's already been heard be considered in this hearing."
In response, respondent mother's counsel stated only: "Well, Your
Honor, as far as the medical records for [Eddie], I believe,
there's no doctor here to authenticate those records. So we would
oppose any such introduction at this time." Neither of
respondents' counsel otherwise objected to the introduction of the
review hearing evidence.
The very specific objections of respondent mother and the
conclusory motion to continue by respondent father cannotreasonably be construed as objecting to the introduction of the
review hearing evidence or to the mother's objecting to the court's
proceeding with the adjudication hearing immediately after the
review hearing. Accordingly, these issues have not been properly
preserved for review by either parent, and these assignments of
error are, therefore, overruled.
Respondent father next argues that the trial court erred by
denying his motion to continue the adjudication hearing.
Respondent mother did not join in this motion and, therefore,
cannot rely upon it as a basis for reversing the trial court's
The denial of a motion to continue is reviewed under an abuse
of discretion standard. In re Humphrey
, 156 N.C. App. 533, 538,
577 S.E.2d 421, 425 (2003). N.C. Gen. Stat. § 7B-803 (2005)
provides that the trial court may grant a continuance "to receive
additional evidence, reports, or assessments that the court has
requested, or other information needed in the best interests of the
juvenile." The party seeking a continuance has the burden of
showing sufficient grounds for it. Humphrey
, 156 N.C. App. at 538,
577 S.E.2d at 425.
Here, counsel for respondent father made a timely motion to
continue "for the record," but did not provide any explanation as
to why a continuance was necessary. In the absence of a
specification of grounds for a continuance, we cannot conclude that
the trial court abused its discretion in denying the unsupportedrequest. See
N.C.R. App. P. 10(b)(1) (requiring as a prerequisite
for appellate review that the party not only present an issue to
the trial court first, but that he or she also "stat[e] the
specific grounds for the ruling the party desired the court to
make"); see also In re Mitchell
, 148 N.C. App. 483, 486, 559 S.E.2d
237, 240 (holding that a motion to continue was properly denied
when, contrary to N.C. Gen. Stat. § 7B-803, "[n]othing in the
record indicat[ed] that the court requested or needed additional
information in the best interests of the children, that more time
was needed for expeditious discovery, or that extraordinary
circumstances necessitated a continuance"), rev'd per curiam on
, 356 N.C. 288, 570 S.E.2d 212 (2002). We, therefore,
overrule this assignment of error.
Respondents next challenge the trial court's determination
that Eddie is a dependent child. When reviewing a non-jury
adjudication of dependency, this Court must determine (1) whether
the findings of fact are supported by clear and convincing
competent evidence and (2) whether the legal conclusions are
supported by the findings of fact. In re Gleisner
, 141 N.C. App.
475, 480, 539 S.E.2d 362, 365 (2000). Where supported by competent
evidence, the trial court's findings of fact are deemed conclusive,
even when some evidence would support contrary findings. In re
, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
Respondents challenge a number of findings of fact on the
basis that the review hearing evidence was inadmissible and shouldnot have been considered by the trial court. As we have rejected
that argument, we do not need to further address these assignments
With respect to certain other findings of fact, although
respondent father assigned error to them, he then failed to present
any argument in his brief as to why those findings were not
supported by the evidence. "Assignments of error not set out in
the appellant's brief, or in support of which no reason or argument
is stated . . . will be taken as abandoned." N.C.R. App. P.
28(b)(6). We therefore deem the father's assignments of error as
to the remaining findings of fact abandoned.
Respondent mother, however, specifically argued in her brief
that findings of fact seven through nine were not supported by
competent evidence. Those findings of fact stated:
7. Since March 18, 2005, respondents have
failed to make reasonable progress on the
plan of reunification of the [five older
juveniles found to be neglected] (Foster
Care Case Plan).
8. The respondents have failed to establish
a residence of their own and have not
maintained a stable home environment but
have elected to depend on others for
their shelter and support, have failed to
maintain employment to be able to support
the juvenile and establish a home, failed
to participate in suggested services
offered and generally failed to make
reasonable progress on the plan of
9. The respondent parents have failed to
extend proper care to the juvenile in
a. The parents did not seek pre-natal
care until two weeks prior to birth;
b. The parents gave incorrect
information to DSS about the
juveniles and the expected birth;
c. The parents did not make appropriate
plans for the care of the juvenile
after his birth.
A review of the record, however, establishes that each of these
findings of fact is supported by competent evidence presented in
the review hearing for the five older siblings and in the mother's
testimony during Eddie's adjudication hearing. While respondent
mother disagrees with the trial court's interpretation of that
evidence, the trial court was entitled, based on the evidence, to
reach the factual conclusions that it did.
In addition, respondents argue that the trial court's findings
of fact were insufficient to support a determination of dependency.
A dependent child is defined as a "juvenile in need of assistance
or placement because the juvenile has no parent, guardian, or
custodian responsible for the juvenile's care or supervision or
whose parent, guardian, or custodian is unable to provide for the
care or supervision and lacks an appropriate alternative child care
arrangement." N.C. Gen. Stat. § 7B-101(9). Prior to concluding
that a child is dependent, the trial court must, therefore, address
both (1) the parents' ability to provide care or supervision and
(2) the availability to the parents of alternative child care
arrangements. In re P.M.
, 169 N.C. App. 423, 427, 610 S.E.2d 403,
406 (2005). Here, while the trial court found that Eddie would be subject
to a substantial risk of inappropriate care, supervision, or
discipline if he were placed with his parents, the court failed to
address the availability of appropriate alternative child care
arrangements. Our review of the adjudication hearing transcript
indicates that the trial court made an oral statement to the effect
that respondents lacked appropriate alternative child care. The
court, however, failed to reduce this observation to writing in the
adjudication order, as required by N.C. Gen. Stat. § 7B-807 (2005).
We acknowledge that the trial court's written dispositional
order does include findings of fact as to the lack of available
alternative child care arrangements. Nevertheless, those
dispositional findings are insufficient to support an adjudication
of dependency. It is settled law that a proceeding adjudicating
dependency, neglect, or abuse involves two independent and distinct
stages: the adjudication stage governed by N.C. Gen. Stat. § 7B-805
(2005) and the disposition stage governed by N.C. Gen. Stat. § 7B-
901 (2005). In re O.W.
, 164 N.C. App. 699, 701, 596 S.E.2d 851,
853 (2004). Accordingly, a finding of fact on disposition does not
satisfy the statutory requirement that the adjudication order
"contain appropriate findings of fact and conclusions of law."
N.C. Gen. Stat. § 7B-807(b).
When the trial court fails to make a finding of fact as to the
availability of alternative child care arrangements in the
adjudication order, an adjudication of dependency should be
reversed and the case remanded to the trial court for furtherfindings of fact. See In re K.D.
, __ N.C. App. __, __, 631 S.E.2d
150, 155 (2006) ("[T]he trial court's language in the adjudication
order tracks the first prong of the definition of dependency, but
ignores the second. We, therefore, reverse as to K.D.'s
dependency, and remand to the trial court for further findings as
to whether K.D. lacks 'an appropriate alternative child care
arrangement.'"). Accordingly, we are compelled to reverse the
trial court's adjudication of dependency and remand for further
proceedings. In light of our resolution of this appeal, we need
not address respondents' remaining arguments.
Affirmed in part, reversed in part, and remanded.
Judges LEVINSON and JACKSON concur.
Report per Rule 30(e).