In re D.M.W. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-48
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
IN THE MATTER OF:
D.M.W. Forsyth County
No. 13 J 94
Appeal by mother and father from order entered 9 October
2013 by Judge Denise S. Hartsfield in Forsyth County District
Court. Heard in the Court of Appeals 22 July 2014.
Assistant County Attorney Theresa A. Boucher for Forsyth
County Department of Social Services, appellee.
Womble Carlyle Sandridge & Rice, LLP, by Murray C. Greason,
III for Guardian ad litem.
Batch, Poore & Williams, PC, by Sydney Batch for appellant-
mother.
David A. Perez for appellant-father.
STEELMAN, Judge.
Where the trial court’s unchallenged findings of fact and
findings supported by evidence in the record form a sufficient
basis for its conclusions of law, the trial court did not err.
Where the trial court properly found that a minor child was
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neglected, it did not abuse its discretion in refusing to return
the child to father’s home.
I. Factual and Procedural Background
On 21 May 2013, the Forsyth County Department of Social
Services (“DSS”) filed a juvenile petition alleging D.M.W. was a
neglected juvenile in that she lived in an environment injurious
to her welfare. Specifically, the petition alleged that D.M.W.,
a newborn, would reside in the home where her brother D.N. lived
and was “seriously physically abused in April 2012 by other than
accidental means.” The matter came on for hearing on 26 August
2013. By order entered 9 October 2013, the trial court
adjudicated D.M.W. a neglected juvenile. The trial court
granted legal custody of D.M.W. to DSS and sanctioned the
placement of D.M.W. with her maternal grandmother and step-
grandfather.
Mother and father appeal.
II. Standard of Review
“The role of this Court in reviewing a trial court’s
adjudication of neglect [] is to determine ‘(1) whether the
findings of fact are supported by ‘clear and convincing
evidence,’ and (2) whether the legal conclusions are supported
by the findings of fact[.]’” In re T.H.T., 185 N.C. App. 337,
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343, 648 S.E.2d 519, 523 (2007) (quoting In re Gleisner, 141
N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff’d as
modified, 362 N.C. 446, 665 S.E.2d 54 (2008). “If such evidence
exists, the findings of the trial court are binding on appeal,
even if the evidence would support a finding to the contrary.”
Id.III. Findings of Fact
A. Father’s Arguments
In his first argument on appeal, father contends that the
trial court erred in making certain findings of fact. We
disagree.
The trial court made the following pertinent findings of
fact:
10. On or about May 20, 2013, the Forsyth
County Department of Social Services
received a report alleging [D.M.W.], age 3
days to be a neglected juvenile as she lives
in a home where another child has been
subjected to physical abuse.
11. [D.M.W.] is the newborn infant child of
[mother] and [father]. This child will
reside in the home where her brother, [D.N.]
lived and was seriously physically abused in
April 2012 by other than accidental means.
[D.N.] was examined by Dr. Meggan
Goodpasture on April 30, 2012 at NC Baptist
Hospital and diagnosed with:
 Two large subdural hematomas of mixed
intensity believed to have occurred at
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different times. The subdural hematoma
on the left was more dense and believed
to be more recent likely one week in
age and the subdural hematoma on the
right side of the child’s skull was
less dense and believed to be likely
weeks in age.
 Acute bleeding along the right
occipital lobe; which was likely a
subdural hematoma or potentially a
rebleed secondary to a very large
subdural hematoma or more consistent
with repeat trauma.
 Bilateral retinal hemorrhages that were
determined to be intraretinal.
 Five definite healing rib fractures
(Left anterior healing rib fractures of
the 5th, 6th, 7th, 8th ribs and Left
posterior healing rib fracture of the
11th rib)[.]
12. Based upon the constellation of
injuries, [D.N.] was diagnosed with abusive
head trauma/child physical abuse. The
injuries received by [D.N.] were of
different ages and stages of healing.
13. The primary caregivers of [D.N.] were
his mother, [mother] and her boyfriend, now
husband, [father]. [Mother] worked outside
of the home and [father] was [D.N.’s]
primary caretaker while his mother worked.
At the time of [D.N.’s] hospitalization,
[mother] reported that the child’s only
caretakers in addition to she and [father]
were the maternal grandmother, [M.N.], who
had watched the baby the weekend before his
hospitalization, and her brother’s
girlfriend, [S.R.] (whose last name she did
not know at the time) who had cared for the
baby in March 2012. [M.N.] was a retired
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pediatric nurse who first noticed [D.N.’s]
head growing larger and insisted that the
mother take the child to the doctor.
. . . .
22. [D.M.W.] is an infant child as was
[D.N.] when he was seriously physically
abused in the home.
. . . .
41. [Mother] reports that she suspects
[S.R.] may have caused the injuries to
[D.N.]. [Mother] reports that [S.R.]
babysat with [D.N.] on two occasions which
she definitively report [sic] were February
2, 2012 and March 2, 2012. Dr. Goodpasture
has indicated that [D.N.’s] subdural
hematomas are difficult to date [and] could
be as recent as one to two weeks old or up
to two months old. In her expert opinion,
there could have been multiple head traumas
suffered by [D.N.]. Retinal hemorrhages
although also difficult to date generally
resolve within one month. In Dr.
Goodpasture’s expert opinion, rib fractures
are easier to date. The rib fractures of
[D.N.] upon presentation to the hospital on
April 26, 2012 were 2 to 4 weeks old. The
rib fractures suffered by [D.N.] could not
have occurred while he was in the care of
[S.R.] on February 2, 2012 or March 2, 2012.
To this day no one has come forward to
accept the responsibility for the injuries
that were caused to [D.N.] but it has been
determined that [mother] and [her] husband
were the primary caretakers. The Court is
concerned for the safety of any child in the
home as no one has accepted responsibility
for the injuries that were caused to [D.N.]
when he was three months old. [S.R.] could
not have caused all of the injuries to the
child.
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As an initial matter, we note that mother and father
challenge many of the trial court’s findings of fact as not
being supported by competent evidence. However, we do not
address all of the challenged findings of fact. See In re T.M.,
180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (“[W]e agree
that some of [the challenged findings] are not supported by
evidence in the record. When, however, ample other findings of
fact support an adjudication of neglect, erroneous findings
unnecessary to the determination do not constitute reversible
error.”).
Although father challenges findings of fact 10, 11, 12, and
22, mother does not. Findings of fact 13 and 41 are not
challenged by either mother or father and are deemed supported
by competent evidence. See Koufman v. Koufman, 330 N.C. 93, 97,
408 S.E.2d 729, 731 (1991).
Father contends that finding of fact 10 “seems to be a
finding for which there is no basis in competent evidence.” We
do not agree. Dr. Goodpasture testified that she was an
attending and supervising physician in the newborn nursery at
the time D.M.W. was born. The physician who provided care for
D.M.W. was on Dr. Goodpasture’s team. Based upon her knowledge
of D.N., Dr. Goodpasture recommended that the physician make a
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child protective services report to DSS, and that report was
made. Dr. Goodpasture testified that she had “significant
concern for [D.M.W.’s] safety” if she were placed in the same
environment where D.N. resided.
Father next challenges finding of fact 11. Father contends
that “since [S.R.] and the maternal grandmother had access to
[D.N.] during the time period in which he may have suffered
these severe injuries, it was erroneous for the trial court to
find [D.M.W.] would reside in the same home in which [D.N.]
lived when abused[.]” Father contends “there is no competent
evidence to suggest that the potential perpetrators, [S.R.] or
the maternal grandmother, resided in [mother and father’s]
home.” Father also challenges finding of fact 22 on the same
grounds. Father contends there is no competent evidence to show
that D.N. was seriously physically abused in mother and father’s
home as S.R. or the maternal grandmother may have been the
perpetrators of the abuse.
Father’s contentions are feckless.
The trial court found that mother and father were D.N.’s
primary caretakers and that S.R. could not have caused all of
the injuries to D.N. These findings are not challenged by
mother or father on appeal. Moreover, mother and father both
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testified that they did not believe the maternal grandmother
hurt D.N. Mother and father intended to take D.M.W. home to
live with them upon her discharge from the hospital. Thus,
D.M.W. would have resided in the same home in which D.N. had
lived. The trial court did not err in making these findings.
Father also challenges the subparagraphs of finding of fact
11. He contends that Dr. Goodpasture’s testimony does not
support the specificity of the injuries sustained by D.N. as set
forth in the order. We agree that some of the language used in
the subparagraphs was not identical to that used by Dr.
Goodpasture in her testimony. However, we disagree that her
testimony does not support the specific injuries set forth in
the finding. Dr. Goodpasture testified in great detail about
D.N.’s injuries. Dr. Goodpasture testified that D.N. was
diagnosed with five rib fractures. The fractures were on the
left fifth, sixth, seventh, eighth, and eleventh ribs. She
further testified that D.N. had large subdural hemorrhages on
both sides of the brain that required surgical intervention, and
retinal hemorrhages in both eyes.
Father further contends that finding of fact 12 is not
supported by competent evidence. Again, we disagree. Dr.
Goodpasture testified that “[i]n the absence of any accidental
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mechanism to explain the[] injuries in a three month old with
serious and severe bilateral subdural hemorrhages, bilateral
retinal hemorrhages and five rib fractures, . . . the injuries
were consistent with child physical abuse.” Dr. Goodpasture
also gave detailed testimony about the possible ages and stage
of healing of the various injuries to D.N.
These arguments are without merit.
B. Mother’s Arguments
Mother contends that the trial court failed to make
sufficient findings of fact to support its conclusion that
D.M.W. was a neglected juvenile. Mother contends that the trial
court “cut and pasted the allegations in the juvenile petition
and statements from the DSS court summary into its adjudicatory
order[,]” and failed to make independent findings of fact from
the evidence presented at the hearing. Mother further contends
that since the trial court failed to make independent findings
of fact, “this Court cannot determine whether the trial court
performed its duty to determine whether the allegations were
proven by clear, cogent and convincing evidence.” We disagree.
Although the language in some of the findings does
correspond to the allegations in the juvenile petition, we
conclude that findings of fact 10, 11, 12, 13, 22, and 41 are
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supported by competent evidence. Moreover, these findings of
fact are sufficiently specific to allow this Court to review the
trial court’s decision to adjudicate D.M.W. neglected.
This argument is without merit.
IV. Neglected Juvenile
Finally, with regard to the adjudication of neglect, mother
and father each contend that the trial court erred in finding
and concluding that D.M.W. was neglected where the court relied
solely on the past abuse of D.N. We disagree.
The Juvenile Code defines a neglected juvenile as:
A juvenile who does not receive proper care,
supervision, or discipline from the
juvenile’s parent, guardian, custodian, or
caretaker; or who has been abandoned; or who
is not provided necessary medical care; or
who is not provided necessary remedial care;
or who lives in an environment injurious to
the juvenile’s welfare; or who has been
placed for care or adoption in violation of
law. In determining whether a juvenile is a
neglected juvenile, it is relevant whether
that juvenile lives in a home where another
juvenile has died as a result of suspected
abuse or neglect or 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) (2013) (emphasis added).
“We are aware that while the abuse of a child in the home
is clearly relevant in determining whether another child is
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neglected, the statute ‘does not require the removal of all
other children from the home once a child has . . . been
subjected to . . . severe physical abuse.’” In re McLean, 135
N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999) (quoting In re
Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)).
“[T]he statute ‘affords the trial judge some discretion in
determining the weight to be given such evidence,’ and allows
the trial court some discretion in determining whether children
are at risk for a particular kind of harm given their age and
the environment in which they reside.” Id.In the present case, the trial court found that D.M.W.
would reside in the home where D.N. had lived and was physically
abused; that D.M.W. was an infant just as D.N. was at the time
he was injured; that mother and father were the primary
caretakers of D.N.; that no one had accepted responsibility for
D.N.’s injuries; and that the court was concerned for the safety
of any child in the home since no one had accepted
responsibility for D.N.’s injuries. These findings demonstrate
that the trial court weighed and assessed the evidence, and
concluded that D.M.W. would be at risk if allowed to reside with
mother and father. We hold that the findings of fact support
the conclusion that D.M.W. was neglected.
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This argument is without merit.
Mother and father next challenge the dispositional portion
of the trial court’s order. They contend that the trial court
erred in conducting a dispositional hearing in which no
testimony was taken and where the trial court based its findings
of fact on court reports and statements made by counsel. Mother
and father contend the trial court delegated its duty as the
finder of fact by incorporating the reports as its findings of
fact. These arguments are without merit.
The dispositional hearing following an
abuse, neglect, or dependency adjudication
may be informal and the court may consider
written reports or other evidence concerning
the needs of the juvenile. In dispositional
hearings, trial courts may properly consider
all written reports and materials submitted
in connection with said proceedings. Thus,
at a dispositional hearing, [a] trial court
may consider written reports and make
findings based on these reports so long as
it does not broadly incorporate these
written reports from outside sources as its
findings of fact.
In re J.N.S., 207 N.C. App. 670, 679, 704 S.E.2d 511, 517 (2010)
(citations and quotation marks omitted). “Evidence heard or
introduced throughout the adjudicatory stage, as well as any
additional evidence, may be considered by the court during the
dispositional stage.” In re Blackburn, 142 N.C. App. 607, 613,
543 S.E.2d 906, 910 (2001).
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In this case, the trial court considered the written
reports, incorporated the written reports, and made findings
based upon the reports. The trial court also made other
findings based on the evidence presented during the adjudication
stage. The trial court did not broadly incorporate the facts in
the reports as its only findings of fact, nor did it use the
reports as a substitute for its own independent review.
Therefore, the trial court did not err in conducting the
disposition hearing and entering the disposition order.
Mother also contends that the trial court ignored its oral
ruling as evidenced by the written order. Specifically, mother
contends that the judge said she was not going to make drug
testing mandatory; however, in the written order, mother and
father are ordered to submit to drug screens, and if they do not
submit then the missed drug screen would be considered a
positive test. We disagree with mother’s contention since our
review indicates that the trial court’s written order does not
differ in substance from its oral rendering in open court. See
In re Brim, 139 N.C. App. 733, 739, 535 S.E.2d 367, 370 (2000)
(finding the trial court did not err where the written order
later entered did not differ in substance from the order
announced in open court).
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Mother further contends the trial court’s directive that
mother and father be more forthcoming with the court as to how
D.N. was abused is inappropriate and should not be permissible.
Again, we disagree. In this case, the trial court was concerned
about D.M.W.’s safety based upon the injuries D.N. sustained and
the lack of an explanation as to how D.N. was injured.
Accordingly, we conclude it was not inappropriate for the trial
court to seek further explanation about this matter.
Lastly, father contends the trial court abused its
discretion at disposition in granting continuing legal custody
of D.M.W. to DSS and not placing her back in father’s home. We
disagree.
“The district court has broad discretion to fashion a
disposition from the prescribed alternatives in N.C. Gen. Stat.
§ 7B-903(a), based upon the best interests of the child.” In re
B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008)
(citation omitted). “We review a dispositional order only for
abuse of discretion.” Id. “A trial court may be reversed for
abuse of discretion only upon a showing that its actions are
‘manifestly unsupported by reason.’” Davis v. Davis, 360 N.C.
518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark,
301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
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Here, the trial court was authorized to place D.M.W. in the
custody of DSS and not return her to father. See N.C. Gen.
Stat. § 7B-903(a)(2)(b) (2013). Given the evidence before the
court, we discern no abuse of discretion in the trial court’s
decision not to return D.M.W. to father.
AFFIRMED.
Judges McGEE and ERVIN concur.
Report per Rule 30(e).