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IN RE: V.S.O., C.R.O.
Respondent-Mother appeals from the trial court's orders adjudicating “Connie”1 neglected and her sister “Vera” abused and neglected, and relieving the Yadkin County Human Services Agency of further reunification efforts with Vera. We affirm.
Connie was born on 7 June 2016. Vera was born prematurely on 14 July 2017 after only 30 weeks’ gestation and remained in the neonatal intensive care unit (“NICU”) for approximately three months. Approximately two months into Vera's hospitalization, Yadkin County Human Services Agency (“YCHSA”) received a child protective services (“CPS”) report on 11 September 2017 alleging Respondent had not visited Vera or contacted hospital staff to check on her. After YCHSA spoke to Respondent, she began to have regular contact with Vera and the hospital staff. Although Vera's discharge was delayed several times due to her oxygen levels decreasing, Vera was ultimately released into Respondent's care in early October. YCHSA offered Respondent services to help with parenting, but Respondent declined all services.
After Vera's release from the hospital, Respondent was supposed to take Vera for a follow-up visit with Vera's primary care doctor between 9 and 17 October 2017. However, Respondent did not take Vera to the doctor until 31 October 2017; this delay put Vera at risk for significant undetected complications. At this appointment, Vera was observed to have a bruise over her right eye extending over the bridge of her nose.
On 29 November 2017, Vera was admitted to Brenner Children's Hospital (“BCH”) with traumatic head injuries. Dr. Sarah Northrop, an expert in child abuse pediatrics, examined Vera and found multi-planar, nonpattern bruising on her face; a scleral hemorrhage in her right eye; and “a fairly significant subdural hemorrhage on her brain[.]” The nature of Vera's facial bruises indicated she had been hit in the face “either multiple times or with something flexible[.]” The scleral hemorrhage was also “consistent with trauma.” Dr. Northrop further determined the bleeding in Vera's brain had caused her brain to shift to the left, resulting in seizures. She described Vera's brain injury as “severe” and potentially life-threatening “if her seizures had not been controlled.” Vera was also suffering from a severe diaper rash, causing her skin to erode along her buttocks, and staff further detected a subdural hygroma over Vera's left cerebral convexity which potentially represented a prior brain hemorrhage.
Respondent told Dr. Northrop that she left Vera on a bed “about a foot in” while she briefly left the room to obtain a clean diaper. When she returned, Respondent found Vera “on the floor” and “limp.” Dr. Northrop determined that Vera lacked the ability to roll herself off a bed at her stage of development, and that Vera's injuries could not have been caused by such a fall. She diagnosed Vera with “[p]hysical abuse and medical neglect.”
YCHSA received a CPS report about Vera on 29 November 2017, the day she was admitted to BCH. After speaking with Dr. Northrop and Respondent, YCHSA took Vera and Connie into nonsecure custody and filed a juvenile petition alleging abuse and neglect. Connie was placed with her paternal grandmother. Vera remained in the hospital until 5 December 2017, when she was placed in foster care.
The trial court held an adjudicatory hearing on 9 August 2018. YCHSA presented testimony from Dr. Northrop and CPS Investigator Pamela Herold, as well as Vera's hospital records. At the conclusion of the hearing, the trial court adjudicated Connie neglected and Vera abused and neglected. The trial court received additional evidence and argument for disposition on 16 and 30 August 2018.
On 5 November 2018, the trial court entered separate “Adjudication and Disposition Order[s]” for Connie and Vera. The trial court maintained the children in YCHSA custody and approved their current placements. The trial court allowed Respondent biweekly supervised visitation with each child provided she was not incarcerated. It established a primary permanent plan of reunification for Connie with a secondary plan of guardianship. With regard to Vera, the court relieved YCHSA of further efforts toward reunification pursuant to N.C. Gen. Stat. § 7B-901(c) (Interim Supp. 2018)2 and scheduled a permanency planning hearing for 27 September 2018, which was subsequently continued to 25 October 2018. Respondent filed timely notice of appeal from the two orders.
II. Vera's Disposition
Respondent does not challenge the trial court's adjudication of Vera as abused and neglected. Respondent does argue that the trial court abused its discretion at the dispositional stage by ceasing efforts to reunify Vera with Respondent.
“We review a trial court's disposition order only for an abuse of discretion.” In re L.Z.A., 249 N.C. App. 628, 641, 792 S.E.2d 160, 170 (2016). By design, the dispositional stage is less formal and allows the trial court greater discretion in fact-finding to ensure the entry of a disposition that serves the best interests of the affected juvenile.3 See N.C. Gen. Stat. § 7B-901(a) (Interim Supp. 2018); see also N.C. Gen. Stat. § 7B-1110(a) (2017). Accordingly,
[a]ll dispositional orders of the trial court after abuse, neglect[,] and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing. If the trial court's findings of fact are supported by competent evidence, they are conclusive on appeal.
In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003) (internal citations omitted).
Subsection 7B-901(c) outlines the trial court's authority to cease reunification efforts as part of an initial disposition following an adjudication of abuse, neglect, or dependency. In pertinent part, the statute provides:
(c) If the disposition order places a juvenile in the custody of a county department of social services, the court shall direct that reasonable efforts for reunification as defined in [N.C. Gen. Stat. §] 7B-101 shall not be required if the court makes written findings of fact pertaining to any of the following, unless the court concludes that there is compelling evidence warranting continued reunification efforts:
(1) A court of competent jurisdiction determines or has determined that aggravated circumstances exist because the parent has committed or encouraged the commission of, or allowed the continuation of, any of the following upon the juvenile:
b. Chronic physical or emotional abuse.
f. Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect.
(3) A court of competent jurisdiction determines or has determined that [ ] the parent ․ (iii) has committed a felony assault resulting in serious bodily injury to the child or another child of the parent ․
N.C. Gen. Stat. § 7B-901(c).
In this case, the trial court relieved YCHSA of further reunification efforts based on N.C. Gen. Stat. § 7B-901(c)(1)b., (c)(1)f., and (c)(3)(iii), concluding as follows:
7. The multiplanar facial bruising on [Vera's] right cheek extending down to her mouth and the inner right portion of her eye, the right-sided subdural hemorrhage with midline shift of [Vera's] brain resulting in seizures, and the scleral hemorrhage to [Vera's] right eye constitute “serious bodily injury” as that term is defined by N.C. Gen. Stat. § 14-32.4. By inflicting these injuries upon [Vera], [Respondent] committed a felony assault resulting in serious bodily injury.
8. Pursuant to N.C. Gen. Stat. § 7B-901(c)(3)(iii), reunification efforts with [Respondent] are not required as aggravating circumstances exist in that [she] has committed a felony assault resulting in serious bodily injury to the child.
9. Pursuant to N.C. Gen. Stat. § 7B-901(c)(1)b., reunification efforts with [Respondent] are not required as aggravating circumstances exist in that [she] has committed or allowed the continuation of chronic abuse of the minor child.
10. Pursuant to N.C. Gen. Stat. § 7B-901(c)(1)f., and in light of [Respondent's] continued refusal to acknowledge any responsibility for [Vera's] injuries, reunification efforts with [Respondent] are not required as aggravating circumstances exist in that [her] conduct has increased the enormity and added to the injurious consequences of the abuse of the minor child.
Though labeled as conclusions of law by the trial court, the statute characterizes these determinations as findings of fact. See N.C. Gen. Stat. § 7B-901(c) (“reunification as defined in [N.C. Gen. Stat. §] 7B-101 shall not be required if the court makes written findings of fact pertaining to any of the following ․”) (emphasis added). Accordingly, we review these findings to determine whether they are supported by credible and competent evidence. Weiler, 158 N.C. App. at 477, 581 S.E.2d at 137.
We first address Respondent's exception to the trial court's finding that she “committed or allowed the continuation of chronic abuse of the minor child.” Respondent specifically argues that she did not commit chronic abuse upon Vera as “one cannot infer that [Vera]’s injuries were of long duration.”
The term chronic, although not defined in section 7B, is commonly defined as “lasting a long time or recurring often.” Chronic, Webster's New World College Dictionary (5th ed. 2014). The evidence presented at the hearing, including testimony from Dr. Northrop and Pamela Herold as well as Vera's hospital records, shows the following: Vera was born prematurely on 14 July 2017 and was hospitalized in the NICU until early October. Respondent failed to visit Vera during the first two months of Vera's life, between 14 July and 11 September 2017. Vera was released into Respondent's care, but Respondent “failed to bring Vera to an important follow-up appointment within the time-frame specified by her doctors,” thereby putting Vera at risk for having significant undetected complications. When Vera was finally seen by a doctor on 31 October 2017, Vera had a bruise over her right eye extending over the bridge of her nose. Less than a month later, on 29 November 2017, Vera arrived via ambulance at the BCH with bruising on her face; scleral hemorrhage in her right eye; a subdural hemorrhage on her brain, which resulted in her brain shifting to the left side of her skull and caused her to suffer seizures; severe diaper rash in the form of skin erosion; and a subdural hygroma over her left cerebral convexity.
The evidence presented at the hearing further shows that the bruising on Vera's face and scleral hemorrhage in her right eye were consistent with multiple impacts to her face or with an impact by a flexible object, such as an adult human's hand. The subdural hemorrhage on her brain was most consistent with shaking, and also consistent with an impact injury. Her injuries were not the result of an accidental fall off of a bed, as alleged by Respondent, but were instead the result of Respondent physically striking Vera, shaking Vera, or a combination of both. The subdural hygroma over her left cerebral convexity potentially represented a prior brain hemorrhage.
This credible and competent evidence illustrates that Respondent's abuse of Vera persisted over Vera's entire life, and thus supports the trial court's finding that Respondent committed chronic abuse upon Vera within the meaning of N.C. Gen. Stat. § 7B-901(c)(1)b. This finding in turn supports the trial court's conclusion that “[p]ursuant to N.C. Gen. Stat. § 7B-901(c)(1)b., reunification efforts with [Respondent] are not required ․”
As the trial court did not conclude that “there is compelling evidence warranting continued reunification efforts,” N.C. Gen. Stat. § 7B-901(c), the trial court was required to direct YCHSA to cease reunification efforts based on its finding of chronic abuse under N.C. Gen. Stat. § 7B-901(c)(1)b. Accordingly, we need not address Respondent's challenges to the trial court's additional bases for ceasing reunification efforts pursuant to N.C. Gen. Stat. § 7B-901(c)(1)f. and (c)(3)(iii).
Because the trial court did not abuse its discretion in ceasing reunification efforts for Vera at her initial dispositional hearing pursuant to N.C. Gen. Stat. § 7B-901(c), we affirm the “Adjudication and Disposition Order” entered in file number 17 JA 51.
III. Connie's Adjudication
Respondent also argues that the trial court erred in adjudicating Connie neglected because the evidence and the trial court's findings do not establish neglect as defined by N.C. Gen. Stat. § 7B-101(15) (2017).4
We review an adjudication under N.C. Gen. Stat. § 7B-807 (2017) to determine whether the trial court's findings are supported by “clear and convincing evidence,” id., and whether the findings support the trial court's conclusions of law. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Uncontested findings of fact are “presumed to be supported by competent evidence and [are] binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted). The determination that a child is neglected within the meaning of the juvenile code is a conclusion of law we review de novo. In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158, aff'd per curiam, 354 N.C. 359, 554 S.E.2d 644 (2001).
N.C. Gen. Stat. § 7B-101(15) defines a neglected juvenile as one who does not receive
proper care, supervision, or discipline; ․ or who lives in an environment injurious to the juvenile's welfare[.] 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.
N.C. Gen. Stat. § 7B-101(15) (emphasis added). “This Court has additionally 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 order to adjudicate a juvenile neglected.” In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676 (internal quotation marks and citation omitted); see also In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (listing cases holding that a substantial risk of impairment is sufficient to show neglect).
Vera was adjudicated abused and neglected; Respondent does not challenge Vera's adjudication. Moreover, in its order adjudicating Connie neglected, the trial found, inter alia:
7. The YCHSA has the following prior history with the family: on September 11, 2017, the YCHSA received a report alleging neglect of [Connie's] younger sister, [Vera], in that [Vera] had been born 10 weeks prematurely and was hospitalized due to her status as a premature infant but that [Respondent] had not been visiting [Vera] in the hospital and had not been communicating with hospital staff regarding [Vera's] care. After the YCHSA became involved, [Respondent] began visiting [Vera] more frequently and [Vera] was eventually discharged into [Respondent's] care. [Respondent] was offered services by the YCHSA including a referral to the Nurturing Parenting Program but [she] declined such services.
8. Pursuant to the Juvenile Petition filed in this matter on November 29, 2017, removal of the juvenile was necessary because the juvenile lives in an environment that is injurious to the juvenile's welfare and the juvenile lives in a home where another juvenile has been subjected to abuse and neglect by an adult who regularly lives in the home. The Court finds by clear, cogent, and convincing evidence as follows:
a. [Connie's] sister, [Vera], was born prematurely on July 14, 2017, after only 30 weeks of gestation and spent an extended amount of time in the NICU after her birth. However, after being discharged from the NICU, [Respondent] failed to bring [Vera] to an important follow-up appointment. Specifically, [Vera] was supposed to be seen for a follow-up appointment between October 9 and October 17, 2017. [Respondent] did bring [Vera] to a follow-up appointment on October 31, 2017. This put [Vera] at risk for having significant undetected complications.
b. On November 29, 2017, the YCHSA received a Child Protective Services Report alleging that [Vera] had suffered severe injuries to her head that were inconsistent with the mother's explanation for how said injuries were to have occurred.
c. Specifically, on or about November 29, 2018, [Respondent] took [Vera] to Yadkin Medical Associates which, in turn, transferred [Vera] to Brenner's Children's Hospital (“BCH”) via ambulance. When she arrived at BCH, [Vera] was admitted into the intermediate care unit for concerns of non-accidental trauma.
d. BCH staff initiated its “Child Abuse Protocol” and [Vera] was assessed by Sarah Northrop, M.D., a member of the BCH Child Protection Team, on November 30, 2017.
e. BCH staff found that [Vera] had multiple severe injuries to her head including multiplanar facial bruising on her right cheek extending down to her mouth and the inner right portion of her eye, a right-sided subdural hemorrhage on her brain, and a scleral hemorrhage to her right eye. [Vera] was also suffering from a severe diaper rash in the form of skin erosions along her buttocks.
f. [Vera's] subdural hemorrhage resulted in her brain shifting to the left side of her skull and caused her to suffer seizures. This subdural hemorrhage could have been life-threatening if [Vera's] seizures had not been controlled.
g. It is not possible to determine whether [Vera's] seizures caused her any pain. However, the bruising to her face, the cut in her eye, and the subdural hemorrhage on her brain, as well as the strikes, blows, or shaking that inflicted those injuries, “would have been painful to [Vera].”
h. [Vera] was hospitalized for approximately one week while she was treated for the aforementioned injuries by BCH staff.
i. BCH staff diagnosed [Vera] as physically abused and medically neglected. [Vera] was ultimately discharged into foster care but she will need to be followed and monitored long-term by neurology professionals to determine whether she sustained any permanent injuries.
j. [Respondent's] explanation for [Vera's] injuries was that she had placed [Vera] on a bed to change her diaper, approximately one foot from the edge of the bed, briefly walked out of the room to retrieve a diaper, and when she returned she found [Vera] limp and laying face-down on the floor. The top of the bed was no more than 18” high. The floor consisted of carpet over concrete.
k. At the time of her injuries, [Vera] was unable to roll as she was born prematurely at 30 weeks and was developmentally delayed. Hence, she was unable to roll off of the bed and onto the floor contrary to [Respondent's] explanation for how she sustained said injuries.
l. A fall from a bed 18” off of the ground onto a carpeted floor is inconsistent with the multiplanar injuries to [Vera's] face and the subdural hemorrhage on her brain.
m. The bruising on [Vera's] face and the scleral hemorrhage in her right eye are consistent with multiple impacts to her face or with an impact by a flexible object, such as an adult human's hand.
n. The subdural hemorrhage on [Vera's] brain is most consistent with shaking, but is also consistent with an impact injury.
o. At the time the aforementioned injuries were inflicted on [Vera], the following two adults were in the home: [Respondent] and Howie Livengood. However, Mr. Livengood was not in the vicinity of [Vera] when she sustained the aforementioned injuries. Moreover, Mr. Livengood did not provide care for [Vera].
p. The Court finds that [Vera's] injuries are not the result of an accidental fall off of a bed but are instead the result of [Respondent] physically striking [Vera], shaking [Vera], or a combination of both.
q. [Vera] has a history of injuries in the home. On October 31, 2017, at her first medical appointment since being discharged from the NICU, [Vera] was observed to have a bruise over her right eye extending over the bridge of her nose.
r. On or about November 29, 2017, BCH staff further observed [Vera] to have a subdural hygroma over her left cerebral convexity which potentially represents a prior brain hemorrhage.
s. Pursuant to BCH's Child Abuse Protocol, [Connie] was given a skeletal exam to check for possible signs of abuse, however, said skeletal exam did not produce evidence of abuse of [Connie].
These findings are unchallenged and are therefore binding upon us. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Additionally, the trial court made the following conclusion of law:
4. The minor child is at a substantial risk of physical, mental, or emotional impairment as a result of living in an environment that is injurious to her welfare and residing in an environment where another child has been subjected to physical abuse and neglect.
Though labeled a conclusion of law, we have more commonly characterized this determination as a finding of fact. See, e.g., In re C.C., 817 S.E.2d 894, 897 (N.C. Ct. App. 2018) (“Although the trial court failed to make an ultimate finding that [the juvenile] ․ was at substantial risk of impairment ․, we are satisfied that the evidence here was sufficient to support [such a finding.]”). Accordingly, we apply our standard of review for adjudicatory findings—whether the trial court's findings are supported by “clear and convincing evidence,”—to address Respondent's exception. See N.C. Gen. Stat. § 7B-807(a).
The evidence presented at the hearing, including testimony from Dr. Northrop and Pamela Herold as well as Vera's hospital records, show that Respondent left Vera in the hospital for the first two months of her life without visiting her; Respondent failed to obtain the necessary follow-up medical care for Vera; Vera had bruising on her head when she was taken to the doctor on 31 October 2017; Vera was admitted to BCH on 29 November 2017 with traumatic head injuries; Respondent proffered a false story to disclaim responsibility for Vera's injuries; and Connie is approximately 13 months older than Vera. We conclude this clear and convincing evidence supports the trial court's finding that Connie was placed at a substantial risk of physical, mental, or emotional impairment as a result of Respondent's abuse and neglect of Vera.
Moreover, while the language regarding abuse or neglect of other children “does not mandate” the trial court's conclusion of neglect, the trial court has “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) (construing the identically worded statutory predecessor to § 7B-101). Since the statutory definition of a neglected child includes living with a person who has abused or neglected other children, and since this Court has held that the weight to be given that factor is a question for the trial court, the trial court, in this case, was permitted, although not required, to conclude that Connie was neglected based on evidence that Respondent had abused Vera. In re C.M., 198 N.C. App. 53, 65-66, 678 S.E.2d 794, 801 (2009). See, e.g., In re A.S., 190 N.C. App. 679, 691, 661 S.E.2d 313, 321 (2008) (affirming the trial court's adjudication of neglect of one child based on evidence that respondent had abused another child by intentionally burning her), aff'd per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009); In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of neglect of one child based on prior adjudication of neglect with respect to other children and lack of accepting responsibility). With the trial court's unchallenged determination that Vera was properly adjudicated abused and neglected, any weight given by the trial court to the abuse adjudication in determining Connie's neglect was proper. In re C.M., 198 N.C. App. at 66, 678 S.E.2d at 801.
In summary, the evidence supports the trial court's findings of fact that, inter alia, Connie lives in an environment that is injurious to her welfare and in a home where another juvenile has been subjected to abuse and neglect by an adult who regularly lives in the home, and that Connie is at a substantial risk of physical, mental, or emotional impairment as a result. The findings of fact in turn support the trial court's conclusion of law that Connie was a neglected juvenile pursuant to N.C. Gen. Stat. § 7B-101(15). Respondent's arguments to the contrary are overruled.
Respondent does not separately challenge the trial court's disposition for Connie. We thus affirm the “Adjudication and Disposition Order” entered in file number 17 JA 52.
As the trial court did not abuse its discretion in ceasing reunification efforts for Vera, and as clear and convincing evidence supports the findings of fact which support the trial court's conclusion of law that Connie was a neglected juvenile, we affirm the “Adjudication and Disposition Order[s]” entered in file numbers 17 JA 51-52.
Report per Rule 30(e).
1. Pseudonyms have been used throughout the opinion to protect the identity of the juveniles and for ease of reading. See N.C. R. App. P. 42(b).
2. The 2018 amendments to subsection 7B-901(c) became effective 25 June 2018 and apply “to dispositional orders effective on or after that date.” An Act to Provide that an Order or Judgment Pertaining to the Validity of a Premarital Agreement May Be Immediately Appealed and to Clarify Findings of Fact Requirements Made in Dispositional Orders Where Reasonable Efforts for Reunification Are Not Required, S.L. 2018-86, §§ 2-3 (June 25, 2018).
3. A limited exception exists when a dispositional order awards custody or guardianship of a juvenile to a non-parent in derogation of a “natural parent's paramount constitutional right to custody and control of his or her children.” Adams v. Tessener, 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001). Under the Due Process Clause, “the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody or where the parent's conduct is inconsistent with his or her constitutionally protected status.” Id. (citations omitted). Moreover, the finding that a parent is unfit or has acted in a manner inconsistent with his or her constitutionally protected status “must be supported by clear and convincing evidence.” Id. at 63, 550 S.E.2d at 503. “While this analysis is often applied in civil custody cases under Chapter 50 of the North Carolina General Statutes, it also applies to custody awards arising out of juvenile petitions filed under Chapter 7B.” In re D.M., 211 N.C. App. 382, 385, 712 S.E.2d 355, 357 (2011); see also In re S.J.T.H., 811 S.E.2d 723, 725 (2018).
4. Subsection 7B-101(15) was amended effective 1 October 2018. See An Act to Amend Various Provisions Under the Laws Governing Adoptions and Juveniles, S.L. 2018-68, §§ 8.1(b), 9.1 (June 25, 2018). We apply the version of the statute extant at the time YCHSA filed the petition and the trial court held the adjudicatory hearing. We note the 2018 amendment made no substantive change to the relevant portions of subsection 7B-101(15).
Chief Judge McGEE and Judge MURPHY concur.
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Docket No: No. COA19-87
Decided: November 05, 2019
Court: Court of Appeals of North Carolina.
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