In re K.M.S. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-170
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
IN THE MATTER OF: Haywood County
Nos. 12-JT-95, 12-JT-96
K.M.S., K.A.S.,
Juveniles.
Appeal by respondent from order entered 24 October 2013 by
Judge Donna F. Forga in Haywood County District Court. Heard in
the Court of Appeals 16 June 2014.
Rachael J. Hawes for petitioner-appellee Haywood County
Department of Social Services.
Nelson Mullins Riley & Scarborough LLP, by Wallace C.
Hollowell, III, for guardian ad litem.
Robert W. Ewing for respondent-appellant.
HUNTER, JR. Robert N., Judge.
Respondent is the father of K.M.S. (“Keith”), K.A.S.
(“Kristin”), and a third child, “John,”1 who is deceased.
Respondent appeals from an order terminating his parental rights
to Keith and Kristen. At the time of the hearing on the
1
Names are pseudonyms adopted by the parties for confidentiality
and ease of reading.
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petition to terminate parental rights, respondent was
incarcerated awaiting trial on charges of first degree murder,
felony child abuse with serious bodily injury, and possession of
a firearm by a felon. The charges of first degree murder and
felony child abuse arose out of fatal injuries to John, who had
a different mother than Keith and Kristin. Keith and Kristin’s
mother relinquished her parental rights to them at the close of
the evidence.
The juvenile proceeding at bar was set in motion on the
night of 16 August 2012 when respondent called 911 to report
that his son was not breathing. The first responders to arrive
at respondent’s residence found John lying on the floor in a
hallway. They observed that John was not breathing, his pulse
was very weak, and his color was yellowish-blue. John was
transported by helicopter to Mission Hospital in Asheville but
he died en route. Keith and Kristen were present in the home
with their parents that night.
Nonsecure custody of Keith and Kristen was granted to the
Haywood County Department of Social Services (“DSS”) the
following morning. They were adjudicated abused, neglected, and
dependent juveniles on 12 March 2013 based largely upon findings
that John was beaten by respondent on multiple occasions,
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including the night of his death, and that Keith and Kristen’s
mother was aware of the beatings but failed to intervene or
report them. On the same date, the permanent plan was changed
to termination of parental rights and adoption.
DSS filed petitions to terminate parental rights on 13 May
2013. After conducting an evidentiary hearing over the course
of two days, the court filed an adjudication order on 15 October
2013 concluding the following grounds existed for termination of
respondent’s parental rights: (1) pursuant to N.C. Gen. Stat. §
7B-1111(a)(1), respondent has neglected the children; (2)
pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), respondent has
willfully abandoned the children for at least six consecutive
months immediately preceding the filing of the petitions; and
(3) pursuant to N.C. Gen. Stat. § 7B-1111(a)(8), respondent
murdered the minor children’s half-sibling and the murder was
not committed in self-defense, defense of others, or with any
other justification. On the same date, the court filed a
disposition order concluding that it was in the best interest of
the juveniles to terminate respondent’s parental rights. The
court accordingly terminated respondent’s parental rights. On
24 October 2013, the court filed an amended disposition order
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correcting clerical mistakes. Respondent filed timely notice of
appeal from the amended order on 22 November 2013.
We review a court’s order terminating parental rights to
determine whether the findings of fact are supported by clear,
cogent, and convincing evidence and whether the conclusions of
law are supported by the findings of fact. In re Shepard, 162
N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004). We conduct de novo
review of the court’s conclusions of law. In re S.N., 194 N.C.
App. 142, 146, 669 S.E.2d 55, 59 (2008), aff’d per curiam, 363
N.C. 368, 677 S.E.2d 455 (2009). Furthermore, we need not
review every ground for termination of parental rights concluded
by the trial court to exist if we determine one of the grounds
is supported by the findings of fact. In re Parker, 90 N.C.
App. 423, 424, 368 S.E.2d 879, 880 (1988).
Parental rights may be terminated pursuant to N.C. Gen.
Stat. § 7B-1111(a)(8) if:
[t]he parent has committed murder or
voluntary manslaughter of another child of
the parent or other child residing in the
home; has aided, abetted, attempted,
conspired, or solicited to commit murder or
voluntary manslaughter of the child, another
child of the parent, or other child residing
in the home; has committed a felony assault
that results in serious bodily injury to the
child, another child of the parent, or other
child residing in the home; or has committed
murder or voluntary manslaughter of the
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other parent of the child. The petitioner
has the burden of proving any of these
offenses in the termination of parental
rights hearing by (i) proving the elements
of the offense or (ii) offering proof that a
court of competent jurisdiction has
convicted the parent of the offense, whether
or not the conviction was by way of a jury
verdict or any kind of plea.
N.C. Gen. Stat. § 7B-1111(a)(8) (2013). The adjudication order
at bar contains the following conclusions of law:
7. There are sufficient grounds to
terminate the parental rights of the
Respondent Father, pursuant to N.C.G.S. 7B-
1111(a)(8), in that he committed murder of
the minor children’s 4 year old half-sibling
and the murder was not committed in self
defense or in the defense of others or with
any other justification.
8. The Respondent Father committed murder of
another child of the Parent or other child
residing in the home in that he did
unlawfully, willfully, and feloniously, and
of malice aforethought did kill and murder
[John]. The Respondent Father did show
malice in his actions in that he
intentionally inflicted wounds on [John]
that resulted in [John’s] death.
9. In the alternative, the Respondent
Father committed murder of another child of
the Parent or other child residing in the
home in that he did unlawfully kill another
human being, to wit [John], with malice but
without premeditation or deliberation. The
Respondent Father did show malice in his
actions in that he intentionally inflicted
wounds on [John] that resulted in [John’s]
death.
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10. In the alternative, that the Respondent
Father committed voluntary manslaughter of
another child of the Parent or other child
residing in the home in that he did
unlawfully kill another human being, to wit
[John], without malice and without
premeditation or deliberation.
11. The Respondent Father committed felony
child abuse on [John] in that he was a
Parent or person providing care or
supervision to a child less than 16 years of
age, to wit [John], [and] who intentionally
inflicted serious physical injuries upon
that child and who intentionally committed
an assault upon that child which resulted in
serious physical injuries to that child. In
committing the offense, the Respondent
Father used his hands, feet, and belt in
such a manner as to constitute a deadly
weapon.
Respondent contends the trial court erred by concluding
that he committed first degree murder, second degree murder,
voluntary manslaughter, and felony child abuse based upon the
same transaction. He argues the court could not properly
conclude that he committed all of these offenses because
elements of these offenses materially conflict with each other.
Given that N.C. Gen. Stat. § 7B-1111(a)(8) requires the
juvenile court to make a finding that the parent perpetrated one
of the listed criminal offenses, we look to our criminal
jurisprudence for guidance in addressing respondent’s argument.
We note that “a defendant may be found guilty of multiple crimes
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arising from the same conduct so long as each crime requires
proof of an additional or separate fact.” State v. James, 182
N.C. App. 698, 704, 643 S.E.2d 34, 38 (2007). A defendant tried
upon an indictment “may be convicted of the crime charged
therein or of a less degree of the same crime, or of an attempt
to commit the crime so charged, or of an attempt to commit a
less degree of the same crime.” N.C. Gen. Stat. § 15-170(2013). If an appellate court subsequently “finds that the
evidence with regard to a charge is insufficient as a matter of
law, the judgment must be reversed and the charge must be
dismissed unless there is evidence to support a lesser included
offense.” N.C. Gen. Stat. § 15A-1447(c) (2013). If there is
evidence to support a lesser offense, N.C. Gen. Stat. § 15A-
1447(c) provides for a new trial on the lesser offense as an
available form of relief. Id. However, our Supreme Court
recently reiterated that an appellate court may alternatively
remand for entry of judgment on the lesser offense if, in
finding a defendant guilty of the greater offense, the jury
necessarily found the existence of the elements of the lesser
offense. State v. Stokes, ___ N.C. ___, ___, 756 S.E.2d 32, 36–
38 (2014).
To charge a person with homicide, an indictment
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is sufficient in describing murder to allege
that the accused person feloniously,
willfully, and of his malice aforethought,
did kill and murder (naming the person
killed) . . . and it is sufficient in
describing manslaughter to allege that the
accused feloniously and willfully did kill
and slay (naming the person killed) . . .
and any bill of indictment containing the
averments and allegations herein named shall
be good and sufficient in law as an
indictment for murder or manslaughter, as
the case may be.
N.C. Gen. Stat. § 15-144 (2013). “An indictment for homicide in
the words of G.S. § 15-144 will support a verdict of murder in
the first degree, murder in the second degree, or manslaughter.”
State v. Talbert, 282 N.C. 718, 721, 194 S.E.2d 822, 825 (1973).
Second degree murder, voluntary manslaughter, and involuntary
manslaughter are lesser included offenses of first degree
murder. State v. Thomas, 325 N.C. 583, 591, 386 S.E.2d 555, 559
(1989).
In comparison, the offense of felony child abuse contains
additional or different elements. A person is guilty of felony
child abuse if the person is the parent of a child less than 16
years of age and the person “intentionally inflicts any serious
physical injury upon or to the child or . . . intentionally
commits an assault upon the child which results in any serious
physical injury to the child.” N.C. Gen. Stat. § 14-318.4(a)
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(2013). Serious physical injury is a physical injury “that
causes great pain and suffering” and “includes serious mental
injury.” N.C. Gen. Stat. § 14-318.4(d)(2).
We conclude that by phrasing its conclusions of law “[i]n
the alternative,” the court sought to inform a reviewing court
that it found respondent committed the elements of two lesser
offenses of first degree murder—namely, second degree murder and
voluntary manslaughter—should the appellate court determine that
the evidence did not support a verdict of first degree murder
but did support a verdict upon one or more of the lesser
offenses. The court also informed the appellate court that it
found respondent committed felony child abuse, a separate
criminal offense. We accordingly overrule respondent’s argument
that the conclusions of law are inconsistent.
We now examine the findings of fact at bar and determine
whether they support the court’s conclusion that defendant
murdered John. We are bound by 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).
Findings of fact are also binding if they are not challenged on
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appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991).
Here, respondent does not challenge findings of fact
indicating that an autopsy revealed that John had multiple
bruises over his body, particularly his face, back, buttocks,
arms, and legs. The bruises had been inflicted over a course of
several days, the oldest bruising being four days old and the
freshest being less than four hours old. The injuries to his
buttocks were linear, suggesting they had been inflicted by some
sort of cylindrical object such as a belt that would whip the
skin. John had lacerations in the upper and lower portion of
the inside of his mouth on his lips. Altogether, John had 64
separate injuries to his body.
When confronted by investigators about inconsistencies
between her statements and respondent’s, Keith and Kristen’s
mother admitted that John had been staying with them for a
month, though the respondent had instructed her to say the prior
Friday. On Sunday or Monday, 12 or 13 August, respondent beat
John with a belt and belt buckle leaving bruises on the child’s
buttocks. After this incident, she saw respondent take John
into a bedroom. Before John went into the bedroom, he did not
have any bruises on his face. She heard respondent beating
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John’s head into the wall. When John came out of the bedroom,
he had bruising on his face. After this incident, respondent
beat John again with a belt and belt buckle. On the night of
John’s death, respondent took the boy into the bathroom. She
heard respondent tell the boy to put his head under the faucet.
She did not hear anything else until she heard respondent
yelling at her to call 911.
The autopsy disclosed that John died as a result of
subdural hematomas and brain swelling due to one or a series of
blunt force injuries to the head. The pathologist who performed
the autopsy opined that the child’s injuries were consistent
with a statement given by Keith and Kristen’s mother indicating
that respondent beat the child on multiple occasions over a span
of several days using a belt, a belt buckle, and slamming the
child’s head into a wall. The pathologist found a pattern
bruise on John’s left temple that strongly resembled the shape
of a belt and buckle seized from respondent. The pathologist
also discovered at least two traumatic brain injuries, one
occurring days prior to John’s death and the other occurring at
the time of death.
Although respondent had reported that the child had fallen
in the bathtub, the first responders noted that John was
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completely dry and his body and feet were dirty. They also
noted that the towel on the floor was dry. Respondent also made
other inconsistent or conflicting statements to EMS and law
enforcement personnel.
We conclude that the foregoing findings support a
conclusion of law that respondent murdered John and committed
felony child abuse by intentionally and repeatedly inflicting
injuries to the boy’s body and to his head over the course of a
few days leading to John’s death. Because we hold the findings
of fact support termination of parental rights pursuant to N.C.
Gen. Stat. § 7B-1111(a)(8), we need not consider respondent’s
arguments concerning the other grounds of neglect and
abandonment.
The adjudication and disposition orders terminating
respondent’s parental rights are affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).