In re: J.S.C. , 253 N.C. App. 291 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1222
Filed: 2 May 2017
New Hanover County, No. 15 JA 248
IN THE MATTER OF: J.S.C.
Appeal by respondent-mother from orders entered 8 August 2016 and 6
September 2016 by Judge J.H. Corpening, II in New Hanover County District Court.
Heard in the Court of Appeals 17 April 2017.
Regina Floyd-Davis for petitioner-appellee New Hanover County Department of
Social Services.
Marie H. Mobley for guardian ad litem.
Richard Croutharmel for respondent-appellant mother.
ZACHARY, Judge.
Respondent-mother appeals from a consent order adjudicating her son
“Jonah”1 an abused and neglected juvenile, together with the resulting dispositional
order that maintained the child in the custody of New Hanover Department of Social
Services (“DSS”) and directed DSS to cease efforts toward reunification. Respondent-
father has withdrawn his appeal by filing notice in the trial court pursuant to N.C.
R. App. P. 37(e).
1 We use this pseudonym to protect the juvenile’s identity and for ease of reading.
IN RE: J.S.C.
Opinion of the Court
On 23 September 2015, DSS filed a juvenile petition claiming that seven-
month-old Jonah was abused and neglected. The petition alleged that respondents
brought Jonah to the hospital for “leg and arm spasms . . . similar to seizures.” The
spasms had been occurring for a period of two to three weeks. An initial examination
revealed that Jonah had experienced two “brain bleeds, one appearing old in nature,
the other appearing of a more recent nature.” X-rays also showed a possible skull
fracture. Jonah was transferred to UNC-Chapel Hill Medical Center, where doctors
found injuries consistent with
significant high impact trauma to the head. There is an
old injury to the right side of the head manifested by the
appearance of old blood and dead tissue with shrinkage of
the brain noted. This is demonstrative of an injury which
occurred weeks to months earlier. There is a very large
amount of fluid on the brain, representative of an injury
which occurred days to weeks earlier. The MRI revealed
evidence of possible shearing injuries.
A doctor described Jonah’s injuries to DSS as “very significant for non-accidental
trauma.” According to the petition, respondents were unable to account for “the
severity of the injuries that [Jonah] has sustained.” They cited several instances of
Jonah falling from his bed, changing table, or stroller, as well as one occasion when
a recoiling screen door had struck the child in the head.
Both respondents were charged with felonious child abuse. In July 2016,
respondent-mother pleaded guilty to child abuse by grossly negligent omission
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IN RE: J.S.C.
Opinion of the Court
resulting in serious bodily injury to the child. N.C. Gen. Stat. § 14-318.4(a4) (2015).
She was sentenced to an active prison term of twenty-five to forty-two months.
On 8 August 2016, respondents appeared in court and tendered a “Consent
Order on Adjudication” signed by all parties and their counsel.2 The order provides
that the parties “have stipulated and agreed to the entry of this Order which provides
for the following facts, conclusions of law and order” adjudicating Jonah as neglected
and abused. Among the parties’ stipulated facts are the following:
4. [Jonah] is a neglected and abused juvenile in that a
parent, guardian, custodian or caretaker has inflicted or
allowed to be inflicted a serious physical injury by other
than accidental means, in that on or about September 22,
2015, [Jonah] was diagnosed with a possible skull fracture
and two brain bleeds and said injury has been determined
to be non-accidental by his treating physicians.
...
6. The enormity and consequences of the injuries to the
minor child were increased as a result of one or both
parents failing to seek medical treatment in a timely
manner.
7. The parents were subsequently charged with having
committed felonious assault on the child. Respondent
Father is presently awaiting trial . . . . Respondent Mother
entered into a plea agreement on or about July 21, 2016
wherein she pled guilty to one count of felony child abuse-
neglect- serious bodily injury.
...
2 The transcript reflects that respondent-father and his counsel signed the consent
adjudication order during the hearing.
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IN RE: J.S.C.
Opinion of the Court
13. The stipulations and agreements made regarding the
factual circumstances set forth herein are made by the
parents after thoughtful consideration as to the best
interest of their child and for the purposes of resolving this
case in the most expeditious manner.
The order reserved the rights of all parties “to present any further evidence or reports
. . . at the disposition hearing.”
After signing the consent adjudication order, the trial court proceeded to
disposition. It received written reports prepared by DSS and the guardian ad litem
and heard arguments from counsel. In its “Order on Disposition” entered 6
September 2016, the court maintained Jonah in DSS custody, ceased reunification
efforts with the parents, and scheduled a permanency planning hearing for 15
September 2016. Respondents were each awarded one hour per month of supervised
visitation upon their release from confinement.
In her lone argument on appeal, respondent-mother challenges the validity of
the “Consent Adjudication Order” based on the trial court’s failure to state that the
adjudicatory findings of fact were made under the “clear and convincing evidence”
standard of proof required by N.C. Gen. Stat. § 7B-805 (2015). She cites our decision
in In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000), in which we reversed an
ordering terminating parental rights due to the failure of the “trial court to
affirmatively state in its order the standard of proof utilized in the termination
proceeding.” Id. at 657, 525 S.E.2d at 480; see also N.C. Gen. Stat. § 7B-1109(f) (2015)
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IN RE: J.S.C.
Opinion of the Court
(requiring petitioner to prove facts by “clear, cogent, and convincing evidence” at the
adjudicatory stage of a termination proceeding); In re D.R.B., 182 N.C. App. 733, 739,
643 S.E.2d 77, 81 (2007) (citation omitted) (requiring termination order to “indicate
the evidentiary standard under which the court made its adjudicatory findings of
fact”). Respondent-mother further states that this Court has applied the holding in
In re Church to an initial adjudication of abuse, neglect, or dependency under N.C.
Gen. Stat. § 7B-805. See In re E.N.S., 164 N.C. App. 146, 152, 595 S.E.2d 167, 171
(noting “there is clear case law that holds the order of the trial court must
affirmatively state the standard of proof utilized”), disc. review denied, 359 N.C. 189,
606 S.E.2d 903-04 (2004) (citation omitted). However, we find Church and its progeny
distinguishable from the present case.
Article 8 of the Juvenile Code provides two procedural paths for an
adjudication of abuse, neglect, or dependency: an adjudicatory hearing or an
adjudication by consent. As we explained in In re K.P., __ N.C. App. __, 790 S.E.2d
744 (2016):
When a juvenile is alleged to be abused, neglected, or
dependent, N.C. Gen. Stat. § 7B-802 (2015) requires the
court to conduct an “adjudicatory hearing” in the form of “a
judicial process designed to adjudicate the existence or
nonexistence of any of the conditions alleged in a petition.”
. . . “[T]he allegations in a petition alleging that a juvenile
is abused, neglected, or dependent shall be proved by clear
and convincing evidence.” N.C. Gen. Stat. § 7B-805 (2015).
...
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IN RE: J.S.C.
Opinion of the Court
“An adjudication of abuse, neglect or dependency in the
absence of an adjudicatory hearing is permitted only in
very limited circumstances.” N.C. Gen. Stat. § 7B-801(b1)
(2015) authorizes the court to enter “a consent adjudication
order” only if: (1) all parties are present or represented by
counsel, who is present and authorized to consent; (2) the
juvenile is represented by counsel; and (3) the court makes
sufficient findings of fact.
Id. at __, 790 S.E.2d at 747 (quoting In re Shaw, 152 N.C. App. 126, 129, 566 S.E.2d
744, 746 (2002)) (emphasis added).
The statute upon which respondent-mother relies, N.C. Gen. Stat. § 7B-805, is
titled “Quantum of proof in adjudicatory hearing.” Id. (emphasis added). In In re
Church and each additional case cited by respondent-mother, the trial court entered
its order after an adjudicatory hearing – either at the initial adjudication stage under
Article 8 or in a termination of parental rights proceeding under Article 11, see N.C.
Gen. Stat. § 7B-1109 (2015). In re J.D.S., 170 N.C. App. 244, 247, 253, 612 S.E.2d
350, 353, 356, disc. review denied, 360 N.C. 64, 623 S.E.2d 584 (2005); E.N.S., 164
N.C. App. at 148, 152, 595 S.E.2d at 169, 171; Church, 136 N.C. App. at 655, 525
S.E.2d at 479.
Here, the trial court entered a consent adjudication order pursuant to N.C.
Gen. Stat. § 7B-801(b1), without an adjudicatory hearing and based entirely on
stipulated facts. See generally In re I.S., 170 N.C. App. 78, 86, 611 S.E.2d 467, 472
(2005). (“ ‘[S]tipulations are judicial admissions and are therefore binding in every
sense, preventing the party who agreed to the stipulation from introducing evidence
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IN RE: J.S.C.
Opinion of the Court
to dispute it and relieving the other party of the necessity of producing evidence to
establish an admitted fact.’ ” (quoting Thomas v. Poole, 54 N.C. App. 239, 241, 282
S.E.2d 515, 517 (1981))). As there was no adjudicatory hearing, the court did not
receive or weigh evidence, assess the credibility of witnesses, or otherwise engage in
the process of fact-finding. See generally In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365 (2000) (noting “the duty of the trial judge to consider and weigh all
of the competent evidence, and to determine the credibility of the witnesses and the
weight to be given their testimony”). The court thus had no occasion to apply the
“clear and convincing evidence” standard of proof or any other standard. Under these
circumstances, we decline to extend our holding in In re Church to find reversible
error based on the failure of the consent adjudication order to state the evidentiary
standard contained in N.C. Gen. Stat. § 7B-805.3
Respondent-mother does not challenge the sufficiency of the stipulated
findings to support Jonah’s adjudication as an abused and neglected juvenile. See
3 Another statute in Article 8, N.C. Gen. Stat. § 7B-807 (2015) (“Adjudication”), expressly
provides that “[i]f the court finds from the evidence, including stipulations by a party, that the
allegations in the petition have been proved by clear and convincing evidence, the court shall so state.”
(Emphasis added); see also Church 136 N.C. App. at 657, 525 S.E.2d at 480 (citing the statutory
forebear to § 7B-807 to “note the legislature has specifically required the standard of proof utilized by
the trial court be affirmatively stated in the context of . . . abuse, neglect and dependent proceedings”).
Here, the trial court did not make any findings of fact, in that the parties consented to and
stipulated to the entire order. Accordingly, section 7B-807 does not appear to be applicable. Moreover,
respondent-mother does not cite to section 7B-807 in her principal brief, and her reference to the
statute in her reply brief is insufficient to present a claim on appeal. Larsen v. Black Diamond French
Truffles, Inc., __ N.C. App. __, __, 772 S.E.2d 93, 96 (2015) (holding that “where a party fails to assert
a claim in its principal brief, it abandons that issue and cannot revive the issue via reply brief”).
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IN RE: J.S.C.
Opinion of the Court
N.C. Gen. Stat. § 7B-801(b1) (requiring consent adjudication order to contain
“sufficient findings of fact”). Nor does she claim error with regard to the court’s
dispositional order. Accordingly, both orders are affirmed.
AFFIRMED.
Judges ELMORE and HUNTER, JR. concur.
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