IN RE:
S.S. Buncombe County
Minor Child. No. 06 JT 120
Charlotte W. Nallan, for Buncombe County Department of Social
Services, petitioner-appellee.
Michael N. Tousey for Guardian ad Litem.
Betsy J. Wolfenden for respondent-appellant.
ELMORE, Judge.
Respondent is the mother of S.S., a child born in March, 2006.
The Buncombe County Department of Social Services (petitioner)
received notification of the child's birth on 31 March 2006, the
day respondent and the child were discharged from the hospital.
Petitioner had a prior history with respondent, who had lost
custody of two older children on the grounds of abuse and neglect.
Social workers located the child at the mobile home respondent
shared with the child's father (Smith), and removed the child from
the home, placing him with the father's mother and stepfather.
On 4 April 2006, petitioner filed a juvenile petition alleging
that the child is a neglected juvenile because she lives in an
environment injurious to her welfare. Following an adjudicationand disposition hearing, the trial court entered an order on 21
August 2006 adjudicating the child neglected. The court granted
full legal permanent guardianship of the child to her paternal
grandmother. Respondent filed notice of appeal from this order on
23 August 2006.
The findings of fact to which respondent has not assigned
error and disputed in her brief show that on 15 December 2003,
respondent assaulted her younger son, aged twenty months at the
time, inflicting extensive facial bruises and injuries. She also
assaulted her older son, aged two years and nine months at the
time, while at the urgent care center treating the injuries to her
younger son. On 17 May 2004, respondent entered an Alford plea to
felony child abuse inflicting serious injury and to misdemeanor
child abuse. The criminal court imposed an active sentence of
twenty to thirty-three months, suspended the sentence for a period
of sixty months, and placed respondent on supervised probation. By
orders of the juvenile court, the two older children are in the
custody of their biological father, who is not the biological
father of S.S., and respondent has no visitation rights to these
children.
In April of 2005, respondent began cohabiting with Smith in a
home he shared with his mother and stepfather. They subsequently
moved into a mobile home co-owned by the child's paternal
grandmother about a mile from the paternal grandmother's residence.
After she gave birth to S.S. and petitioner intervened, respondent
and Smith voluntarily consented to kinship placement of S.S. withher paternal grandmother. The child has remained in the care of
the paternal grandmother since that time. Respondent has
supervised visits with the child.
Respondent contends that the court erred by concluding that
the child is neglected. She argues that the findings of fact and
evidence do not support a conclusion that the child was neglected
at the time of the filing of the petition. She further argues that
the adjudication of neglect is improperly based solely upon
evidence of past neglect or abuse of two other children.
Appellate review of an order concluding that a child is
neglected involves determining (1) whether the findings of fact are
supported by clear and convincing evidence, and (2) whether the
conclusions of law are supported by the findings of fact. In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). We
are “bound by the trial court['s] findings of fact where there is
some evidence to support those findings, even though the evidence
might sustain findings to the contrary.” In re Montgomery, 311
N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984) (citations
omitted).
A “neglected juvenile” is defined as “[a] juvenile who does
not receive proper care, supervision, or discipline from the
juvenile's parent, guardian, custodian, or caretaker; . . . or who
lives in an environment injurious to the juvenile's welfare . . .
.” N.C. Gen. Stat. § 7B-101(15) (2005). A relevant consideration
in determining whether a juvenile is neglected is whether the
juvenile “lives in a home where another juvenile has been subjectedto abuse or neglect by an adult who regularly lives in the home.”
Id. The statute “does not require the removal of all other
children from the home once a child has . . . been subjected to
sexual or severe physical abuse. Rather, the statute affords the
trial judge some discretion in determining the weight to be given
such evidence.” In re Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d
852, 854 (1994).
In applying the statutory definition of neglect, “this Court
has consistently required that there be some physical, mental, or
emotional impairment of the juvenile or a substantial risk of such
impairment as a consequence of the failure to provide proper care,
supervision, or discipline.” In re Safriet, 112 N.C. App. 747,
752, 436 S.E.2d 898, 901-02 (1993) (citations and quotations
omitted). When an allegation of neglect is based upon prior
neglect or abuse of another child, “the decision of the trial court
must of necessity be predictive in nature, as the trial court must
assess whether there is a substantial risk of future abuse or
neglect of a child based on the historical facts of the case.” In
re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
A case similar to the case at bar is In re E.N.S., 164 N.C.
App. 146, 595 S.E.2d 167, disc. review denied, 359 N.C. 189, 606
S.E.2d 903 (2004), in which the infant child at issue was taken
from the mother before the child was discharged from the hospital
following his birth. Id. at 148, 595 S.E.2d at 168. Although the
child had never spent a minute in the mother's home, this Court
upheld the trial court's adjudication of the child as neglectedbecause “the trial court carefully weighed and assessed the
evidence regarding a past adjudication of neglect and the
likelihood of its continuation in the future before concluding that
E.S. would be at risk if allowed to remain with respondent.” Id.
at 151, 595 S.E.2d at 170.
The findings of fact in the case at bar show that although
respondent pled guilty to the criminal charges, she denied harming
the children or having any intent to harm them. From the time the
children were injured until the present adjudication hearing,
respondent continued to claim that the older child injured the
younger child. At the adjudication hearing respondent acknowledged
for the first time under oath that she personally inflicted the
injuries upon the children. Respondent had consistently told
professionals who had been working with her that the older child
inflicted the injuries. After respondent began cohabiting with
Smith, the couple engaged in domestic squabbles and Smith would
call the paternal grandmother to intervene and cause respondent to
leave the premises. The paternal grandmother observed domestic
violence between respondent and Smith. The paternal grandmother
saw respondent kick Smith on at least one occasion. Respondent
also wrote in a personal journal, and admitted in an entry dated 18
May 2004 that she had battered or committed other violent acts
against her partner, her children, her parents, and others. She
wrote in this same journal that she “lost control, snapped and
kicked her son when he was beating up his brother and misbehaving.”
The court also found 27. There is a substantial risk of future
neglect for the minor child based on the
historical facts concerning her other
children, [Z] age 20 months, and the toddler,
[A] age 32 months when they were removed from
her custody. When those minor children were
removed from the custody of the respondent
mother neither child was capable of protecting
himself from the abuse and neglect perpetrated
upon them by the respondent mother, and each
was abused and neglected. The abuse of [Z]
was very severe and could have caused
permanent damage.
28. At this time the minor child is, at the
age of four months, physically unable to
protect herself, unable to report any abuse
and unable to flee from any abuse.
29. The respondent mother is continuing to
engage in denial of her former behavior to
employers, friends and other persons with whom
she comes into contact.
In its penultimate finding, the court found in pertinent part
with respect to respondent:
33. ... The risk of physical abuse is high due
to the age of the minor child, the minor
child's inability to protect herself or report
abuse, [and] the respondent mother's ongoing
difficulties with stress and domestic
violence, . . . . In addition, the respondent
mother has failed to appropriately participate
in services to address her responsibility for
the abuse and neglect of her other children
until after this petition was filed, and she
has continued to deny and minimize her abuse
and neglect of her other children until this
hearing. The respondent mother will need
extensive mental health treatment, and be
highly motivated to change, before she will be
able to provide minimally acceptable parenting
for the minor child. . . .
We find ample evidentiary support in the record for these
findings. We hold the findings support the court's conclusion of
law that the child is neglected. Respondent's remaining contention posits that the court erred
by awarding permanent guardianship to the paternal grandmother (1)
without making findings as to whether petitioner made reasonable
efforts to prevent or eliminate removing S.S. from the home, and
(2) without holding a permanency planning hearing.
The record does not support the first part of this contention
as the court did find, in finding of fact number 32 of the
adjudication portion of the order and in finding of fact number 12
of the dispositional portion of the order, that petitioner “made
reasonable efforts to prevent taking custody of the child” and
“made reasonable efforts to prevent removal of the minor child from
the home . . . .” Respondent states in her brief that these
findings of fact are actually conclusions of law, but does not
argue why this was error. Because respondent did not present a
legal argument for our review, we do not address this issue. See
N.C.R. App. P. 28(b)(6) (2007).
The second part of this contention is not raised by an
assignment of error. In none of respondent's thirty-eight
assignments of error listed in the record on appeal does she
contend that the court erred by awarding permanent guardianship to
the paternal grandmother without holding a permanency planning
hearing. “
The scope of appellate review is limited to the issues
presented by assignments of error set out in the record on appeal;
where the issue presented in the appellant's brief does not
correspond to a proper assignment of error, the matter is not
properly considered by the appellate court.
” Bustle v. Rice, 116N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994) (citations omitted).
As respondent's argument does not correspond to an assignment of
error, we decline to address it. Seay v. Wal-Mart Stores, Inc.,
N.C. App. , , 637 S.E.2d 299, 304 (2006).
The court's order is affirmed.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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