Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1169


Filed: 03 July 2007

E.R.R. & H.A.,
Minor Children.

                        Yancey County            
                            No.     05 J 72
                                05 J 73

    Appeal by respondent-mother and respondent-father from order entered 16 February 2006 by Judge Kyle D. Austin in Yancey County District Court. Heard in the Court of Appeals 22 March 2007.

    Hockaday & Hockaday, P.A., by Daniel M. Hockaday, for petitioner-appellee, Yancey County Department of Social Services.

    Tracie M. Jordan, for appellee-Guardian Ad Litem.

    Richard E. Jester for respondent-father.

    Kathleen Arundell Widelski, for respondent-mother.

    STEELMAN, Judge.

    The testimony and reports of expert doctors support, by clear, cogent and convincing evidence, the court's finding of fact that E.R.R.'s broken femur could not have occurred by accidental means. Further, because the trial court's findings were supported by clear and convincing evidence , the court did not err by ceasing reunification efforts as to an incarcerated respondent-father.
    Minor child, H.A., was born on 27 June 2002, to Heather S. (“mother”) and Robert A., whose whereabouts were unknown at thetime of these proceedings. Minor child, E.R.R., was born on 30 August 2004 to mother and Anthony R. (“father”).     On 30 October 2005, E.R.R. was brought to a hospital emergency room with a fractured femur. E.R.R. was one year old. Mother explained: “I was holding [E.R.R.'s ankles] up and . . . putting her clean diaper underneath her[,] and she was moving around and I heard a pop in her leg and she was screaming.” Mother stated that the child was wiggling from left to right, trying to get away as she attempted to change her diaper. She stated, “[E.R.R.] does not like her diaper changed and never has since the day she was born[.]” Mother was the only person present when E.R.R.'s leg was broken. Father was outside working on his car at the time. He heard E.R.R. crying, came into the home, and took the child to the hospital.
    While at the hospital, mother “was . . . abusive toward hospital staff, her husband and her children.” Yancey County Department of Social Services (“DSS”) reported that “her behavior raised so much concern, the doctor on call believed it necessary to make a report.”
    On 1 November 2005, DSS filed a juvenile petition, alleging that E.R.R. was an abused juvenile, in that E.R.R.'s parents “inflicted or allowed to be inflicted on [E.R.R.] a serious physical injury by other than accidental means[,]” and that E.R.R. was a neglected juvenile in that E.R.R. lived “in an environment injurious to [E.R.R.'s] welfare.” On the same day, DSS also filed a juvenile petition alleging that H.A. was a neglected juvenile, in that H.A. lived “in an environment injurious to [H.A.'s]welfare[.]” H.A. resided in the same home with E.R.R., and furthermore, father had taken “H.A. and fled with her, purchased and used crack cocaine and alcohol while he was the child's sole caregiver.” (R11)
    On 1 November 2005, the children were taken into custody by DSS.
    On 26 November 2005, father was arrested in Rutherford County for robbery. He was convicted and sentenced to eighteen months imprisonment. At the time of the adjudication hearing, on 6 February 2006, father's projected release date was April 2007.
    On 6 January 2006, the children were placed into foster care.     At the adjudication hearing on 8 February 2006, Dr. Cynthia Brown testified that E.R.R.'s fractured femur was highly suspicious of abuse, because substantial force was necessary to break the femur of a child that age. Brown also testified concerning the medical reports regarding E.R.R.'s injury, written by Dr. Christopher Elder and Dr. Russell Flint. The court also heard testimony from three DSS employees and mother.
    On 16 February 2006, the trial court entered an order adjudicating E.R.R. to be an abused and neglected juvenile and H.A. to be a neglected juvenile. A court granted continued custody of the juveniles to DSS, and ordered that the permanent plan for the juveniles was reunification with mother, and concurrently, adoption. The court ordered that reunification efforts as to father should cease.
    From this order, both mother and father appeal.

Adjudication and Disposition:
    In their first argument on appeal, respondents contend that findings of fact number five and six in the order adjudicating the juveniles abused and neglected are not supported by clear, cogent and convincing evidence, as required by N.C. Gen. Stat. §§ 7B-805 and 7B-807 (2005), and the findings do not support the trial court's conclusions of law. We disagree.
    A proper review of a trial court's adjudication of abuse and neglect entails a determination of “whether the findings of fact are supported by clear and convincing evidence,” and “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) (quotation omitted). “The clear and convincing standard is greater than the preponderance of the evidence standard required in most civil cases.” In re J.A.G., 172 N.C. App. 708, 712, 617 S.E.2d 325, 329 (2005) (quotation omitted). “Clear and convincing evidence is evidence which should fully convince.” Id. (quotation omitted).
A: Abuse
    Mother first challenges the trial court's determination that E.R.R. was an abused juvenile. A juvenile is abused if a parent “[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means[.]” N.C. Gen. Stat. . 7B-101(1)(a).
    Mother specifically argues that finding of fact, number five, is not supported by clear, cogent and convincing evidence:
        [T]he opinions from the doctors referenced above have indicated that this type of injury would be inconsistent with the respondent mother's statements as to how the injury occurred[.]

Dr. Cynthia Brown, the Medical Director of the Child Maltreatment Evaluation Program at Mission Children's Clinic in Asheville, testified that “the amount of force required to break the femur would not occur in the routine handling a child whose diaper is being changed[.]” Dr. Brown also said that a child of this weight and age did not have sufficient motor strength nor weight to cause the break. Such a break “would require force from another source.” Dr. Brown explained that:
        The femur is the largest bone in the body and it's not an easy bone to break. It takes a great deal of force to break it so when we see a fracture there we know that there was a great deal of force applied to the bone to cause it to fracture.
When counsel for mother specifically asked Dr. Brown whether the break could have occurred because the “child [was] kicking and moving rapidly,” Dr. Brown responded, “[a]gain, with appropriate amount of force holding the child's leg, I don't see that that would cause enough force to break the femur.” When counsel urged, “[i]sn't it the bottom line that this could have happened accidentally and nobody knows and you can't say really for sure[,]” Dr. Brown responded, “No.”
    Counsel for mother also asked whether E.R.R. could
particularly be “more susceptible to break[s] . . . than your typical child,” and Dr. Brown responded that E.R.R. “didn't appear from the x-rays and blood work . . . to be a child that had anykind of bone disorder.”
    Dr. Brown also gave testimony regarding the reports by Dr. Christopher Elder, an orthopedic physician at Asheville Orthopaedic Associates, and Dr. Russell Flint, an orthopedic physician at Spruce Pine Community Hospital, with regard to E.R.R.'s injury. Dr. Elder reported, “this fracture pattern is very suspicious for child abuse[.]” Dr. Flint's report similarly stated that “this is a fracture pattern recognized in the medical literature as being highly suggestive of abuse.”
    Respondents specifically argue that the finding incorrectly states that all the doctors' opinions were the same when, in fact, Dr. Elder's opinion differed from the opinion of Dr. Brown and Dr. Flint. However, the evidence provided by the testimony of Dr. Brown and the reports of Dr. Elder and Dr. Flint, support the finding that mother's explanation that the break occurred during a diaper change was not plausible. The opinions of the three doctors need not be identical to find clear and convincing evidence for the challenged finding of fact. Rather, where clear and convincing evidence exists to support the finding, it is deemed conclusive on appeal, even where other evidence supports contrary findings. In re A.J.M., 177 N.C. App. 745, __, 630 S.E.2d 33, 35 (2006).
    We hold that there was clear and convincing evidence supporting finding of fact number five.
B: Neglect
    Mother next challenges the trial court's determination that H.A. was a neglected juvenile. A neglected juvenile is defined byN.C. Gen. Stat. § 7B-101(15) (2005) as “[a] juvenile . . . who lives in an environment injurious to the juvenile's welfare[.]” Id. The statute further provides:
        In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

Id. Mother specifically argues that finding of fact number six is not supported by clear, cogent and convincing evidence:
        “[O]n or about 20 May, 2004, [H.A.] was slapped on the left side of her face, leaving linear bruising by the respondent mother[.]”
    Initially, we conclude that regardless of whether this finding of fact is supported by clear, cogent and convincing evidence, there is sufficient evidence to support the finding that “this juvenile lived in an environment injurious to her welfare” in that “[E.R.R.] was abused[,] . . . and [H.A.] resided in the home[.]” See In re P.M., 169 N.C. App. 423, 426-27, 610 S.E.2d 403, 405-06 (2005); N.C. Gen. Stat. § 7B-101(15) .
    This notwithstanding, there is evidence in the record that supports the finding as to H.A. First, Ms. Stacy Buchanan, employed by the Yancey County Department of Social Services testified that she observed a red bruise on the left side of H.A.'s head and face, on H.A.'s temple, which “appeared in the shape of a handprint.” When Buchanan told mother about the mark, mother said, “I don't hit my daughter if that's what you're accusing me of.” Mother explained that “the child had fallen on the porch.”    Dr. Brown testified that photographs of the bruising showed “linear bruising in a hand pattern on the left cheek that extended into the hairline[,]” specifically stating that the bruise “was in the shape of the hand[,] . . . a classic slap mark.” Brown testified that the injury was not consistent with mother's explanation that “this child had fallen on the porch and bruised herself in that way[.]”
We conclude that findings of fact five and six are each supported by clear and convincing evidence. We further hold that the trial court's findings of fact support the conclusions of law that E.R.R. was an abused and neglected juvenile, and that H.A. was a neglected juvenile. The assignments of error associated with this argument are without merit.
II: Reasonable Efforts
    Father next challenges findings of fact numbers eight and ten and conclusion of law number nine of the trial court's order, arguing that the findings are not supported by clear, cogent and convincing evidence and that the findings do not support the trial court's conclusions that DSS made reasonable efforts as to father and may cease reunification efforts as to father. We disagree.
    N.C. Gen. Stat. § 7B-507(d) states that “[i]n determining reasonable efforts to be made with respect to a juvenile and in making such reasonable efforts, the juvenile's health and safety shall be the paramount concern.” The trial court has the authority to cease reunification efforts pursuant to section 7B-507(b):
        (b)     In any order placing a juvenile in the custody or placement responsibility of acounty department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:

            (1)     Such efforts clearly would be futile or would be inconsistent with the juvenile's health, safety, and need for a safe, permanent home within a reasonable period of time.
Id. In order to cease reunification efforts, the trial court must find “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) (citation omitted).
    In the instant case, father argues that the court's findings of fact were not based on clear and convincing evidence, and the findings did not support the trial court's conclusions of law that DSS made reunification efforts and that reunification efforts were no longer required:
        8. That the following services have been provided by [DSS] to prevent or eliminate the need for placement of the juvenile: CPS investigations; in-home services; child medical exams; follow up physical exams; psychologicals; referrals for substance abuse assessments and counseling; mental health counseling; CDSA; WIC; parenting classes; anger management referral; daycare; kinship; supervised visitations; and all other routine and standard foster care services.

        9. That reasonable efforts have been made to prevent or eliminate the need for placement of the juveniles but the return of the juveniles to the home of the respondents at this time is contrary to the welfare and best interest ofthe juveniles at this time.
        10. That [DSS] has requested it be relieved of providing further reasonable efforts with respect to the respondent [father] to the youngest juvenile since he is incarcerated with the NC Department of Corrections and [DSS][;] . . . that the Court finds that further reasonable efforts would clearly be futile or inconsistent with the juveniles' need for a safe, permanent home within a reasonable period of time and reasonable efforts are no longer required with respect to [father] for this reason due to the length of time he will be incarcerated.
Our review of the record reveals that the findings are supported by sufficient evidence and support the court's legal conclusions. See In re Eckard, 144 N.C. App. 187, 199, 547 S.E.2d 835, 842 (2001) (stating that the trial court can only order the cessation of reunification efforts when it makes findings based upon sufficient evidence to support the conclusion that it is in the juvenile's best interest to cease reunification efforts). B ecause the juvenile's health, safety, and the need for a permanent home are the paramount concern , the trial court did not err by ceasing reunification efforts as to the incarcerated father.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***