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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 03 July 2007
IN THE MATTER OF:
E.R.R. & H.A.,
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
Tracie M. Jordan, for appellee-Guardian Ad Litem.
Richard E. Jester for respondent-father.
Kathleen Arundell Widelski, for respondent-mother.
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
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
On 1 November 2005, the children were taken into custody by
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
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.
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
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.
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
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.
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)
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
juvenile's health, safety, and the need for a permanent home are
the paramount concern
the trial court did not err by
reunification efforts as to the incarcerated father.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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