In re K.F. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1270
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF: Guilford County
No. 12 JA 532
K.F.
Appeal by respondent-mother and respondent-father from
order entered 30 August 2013 by Judge H. Thomas Jarrell in
Guilford County District Court. Heard in the Court of Appeals 7
April 2014.
Mercedes O. Chut for petitioner-appellee Guilford County
Department of Social Services.
Robert W. Ewing for respondent-appellant mother.
Michael E. Casterline for respondent-appellant father.
Donna Michelle Wright for guardian ad litem.
HUNTER, Robert C., Judge.
Respondent-mother and respondent-father (collectively,
“respondents”) appeal from an order concluding that K.F.
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(“Kendrick”)1 was an abused, neglected, and dependent juvenile.
After careful review, we affirm in part and reverse in part.
Background
On or about 28 November 2012, the Guilford County
Department of Social Services (“DSS”) took fourteen-month-old
Kendrick into nonsecure custody and filed a juvenile petition
alleging that he was abused, neglected, and dependent. The
petition alleged that respondent-father had confessed to killing
Kendrick’s infant brother, Keith, on 27 November 2012. Law
enforcement officers responded to the home, and also noted that
Kendrick had a bruise on his abdomen, had a diaper rash that was
bleeding, and appeared to be dehydrated.
The trial court conducted a hearing on 1 August 2013 and
entered an order on 30 August 2013 concluding that Kendrick was
an abused, neglected, and dependent juvenile within the
definition of N.C. Gen. Stat. § 7B-101(1), (9), and (15). The
trial court made the following pertinent findings of fact in the
adjudicatory portion of its order:
8. The juvenile’s infant sibling, [Keith],
. . . was killed by the juvenile’s
father[.] [Respondent-father]
confessed to killing [Keith] to High
Point Police. [Respondent-father]
1
Pseudonyms are used to protect the identity of the juveniles
involved and for ease of reading.
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indicated that he “snapped” around 5:00
a.m. and reached in and strangled the
baby and began hitting the baby with
his fists. The autopsy report
indicated that [Keith] died as a result
of blunt force trauma to the head and
abdomen.
9. The mother, [], was also in the bedroom
at the time the infant was killed.
Neither parent called 911 until after
3:00 p.m. Both the mother and the
father have been indicted with First
Degree Murder in the death of [Keith]
and are currently in the custody of the
Guilford County Jail.
10. On the night of the murder, [Kendrick]
was left in a car seat from 9:00 p.m.
until 1:00 p.m. the following day.
When officers arrived at the house,
[Kendrick] was bleeding from his
buttocks, had several bruises on his
abdomen, and appeared dehydrated. The
bleeding appeared to be the result of
severe diaper rash.
In the dispositional portion of the order, the trial court
maintained custody of Kendrick with DSS, concluded that
reunification efforts would be futile and inconsistent with
Kendrick’s safety and need for a safe, permanent home within a
reasonable period of time, and changed the permanent plan for
Kendrick to adoption. Respondents timely appealed.
Discussion
On appeal, both respondents challenge the trial court’s
adjudication of dependency, and respondent-mother also
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challenges the adjudication of abuse. “The role of this Court
in reviewing a trial court’s adjudication . . . 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, 343, 648 S.E.2d 519, 523 (2007) (internal quotation
marks omitted), 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. Neither respondent challenges
any of the trial court’s findings of fact. Therefore, the
findings are binding on appeal. See In re M.D., 200 N.C. App.
35, 43, 682 S.E.2d 780, 785 (2009).
I.
First, we turn to respondents’ arguments that the trial
court’s adjudication of dependency is not supported by its
findings of fact. Our juvenile code defines a dependent
juvenile as one “in need of assistance or placement because the
juvenile has no parent, guardian, or custodian responsible for
the juvenile’s care or supervision or whose parent, guardian, or
custodian is unable to provide for the care or supervision and
lacks an appropriate alternative child care arrangement.” N.C.
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Gen. Stat. § 7B-101(9) (2011). In determining whether a
juvenile is dependent, the trial court is required to “address
both[:] (1) the parent’s ability to provide care or supervision,
and (2) the availability to the parent of alternative child care
arrangements.” In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d
403, 406 (2005). “Findings of fact addressing both prongs must
be made before a juvenile may be adjudicated as dependent, and
the court’s failure to make these findings will result in
reversal of the court.” In re B.M., 183 N.C. App. 84, 90, 643
S.E.2d 644, 648 (2007). Respondents both argue that the trial
court failed to make findings of fact establishing that they
lacked an alternative child care arrangement. Respondent-mother
additionally argues that the court failed to make findings of
fact establishing that she was unable to provide care and
supervision for Kendrick.
We agree with respondents’ argument that the trial court
failed to make findings of fact regarding the availability of an
alternative child care arrangement. None of the trial court’s
adjudicatory findings of fact addresses this prong, and DSS
failed to present any evidence on it at the hearing. Yet, at
the conclusion of the adjudicatory portion of the hearing, and
in the order’s conclusions of law, the trial court concluded
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that DSS proved abuse, neglect, and dependency by clear and
convincing evidence. Without the necessary findings in support
of it, this conclusion is in error. See id. (reversing the
trial court’s order where it failed to make any findings
regarding the availability of alternative child care
arrangements).
DSS and the GAL argue that the second prong of the
dependency ground is supported by dispositional finding of fact
number 17, in which the trial court found that “[t]here are no
known or suitable relatives with whom [Kendrick] could be
placed[.]” We disagree. While the trial court did touch on the
availability of alternative child care arrangements in this
finding, it was a dispositional finding of fact and cannot
support the trial court’s adjudication for several reasons.
To begin, a proceeding to adjudicate a juvenile neglected,
abused, or dependent involves a two-stage process: the
adjudication stage governed by N.C. Gen. Stat. § 7B-805 and the
disposition stage governed by N.C. Gen. Stat. § 7B-901. See In
re O.W., 164 N.C. App. 699, 701, 596 S.E.2d 851, 853 (2004).
Although this Court has held there is no requirement that the
two hearings be conducted at two separate times, see id., the
trial court is required to apply different standards of proof at
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the two stages. Id. At the adjudication stage, “[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 (2011). However, the
dispositional hearing “may be informal,” the court “may consider
any evidence, including hearsay evidence . . . that the court
finds to be relevant, reliable, and necessary to determine the
needs of the juvenile and the most appropriate disposition,” and
the court’s placement determination at disposition is
discretionary. N.C. Gen. Stat. § 7B-901 (2011); see O.W., 164
N.C. App. at 701, 596 S.E.2d at 853. Thus, a dispositional
finding of fact does not satisfy the statutory requirement that
the adjudication order “contain appropriate findings of fact and
conclusions of law.” N.C. Gen. Stat. § 7B–807(b) (2011).
Furthermore, the nature of the trial court’s hearing in
this particular matter makes it difficult for this Court to
simply “relabel” a dispositional finding of fact, as DSS
suggests we do. Only one DSS social worker testified at the
adjudicatory hearing, and her testimony did not address the lack
of an alternative child care arrangement. Nonetheless, the
trial court adjudicated Kendrick neglected, abused, and
dependent. The trial court then proceeded to disposition, where
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the GAL and another DSS social worker testified. Again, none of
the testimony addressed lack of an alternative child care
arrangement. At the conclusion of the hearing, the trial court
adopted DSS’s court summary; however, the court summary was for
dispositional purposes, and it is not clear that the trial court
admitted it into evidence. Based on the foregoing, it is
apparent that the trial court adjudicated Kendrick dependent
without considering any evidence pertaining to the availability
of an alternative child care arrangement. And, to the extent
that the trial court considered any such evidence, the incorrect
standard of proof was employed for the purpose of adjudicating
Kendrick dependent.
Based on the foregoing, we are compelled to reverse the
trial court’s adjudication of dependency and remand for further
proceedings. See In re K.D., 178 N.C. App. 322, 329, 631 S.E.2d
150, 155 (2006) (“[T]he trial court’s language in the
adjudication order tracks the first prong of the definition of
dependency, but ignores the second. We, therefore, reverse as
to K.D.’s dependency, and remand to the trial court for further
findings as to whether K.D. lacks ‘an appropriate alternative
child care arrangement.’”). Because we reverse based on the
lack of findings pertaining to the second prong of dependency,
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we need not address respondent-mother’s challenge to the first
prong.
II.
Next, we turn to respondent-mother’s argument that the
trial court erred in adjudicating Kendrick to be an abused
juvenile. Our juvenile code defines an abused juvenile as,
inter alia, “[a]ny juvenile less than 18 years of age whose
parent . . . [i]nflicts or allows to be inflicted upon the
juvenile a serious physical injury by other than accidental
means” or “[c]reates or allows to be created a substantial risk
of serious physical injury to the juvenile by other than
accidental means[.]” N.C. Gen. Stat. § 7B-101(1)(a), (b)
(2011). Respondent-mother argues that the only evidence of any
alleged abuse against Kendrick is the fact that he was left in a
car seat for sixteen hours. Respondent-mother contends that
this does not amount to serious physical injury, and, therefore,
the evidence cannot sustain a conclusion that Kendrick was
abused.
Respondent-mother’s argument fails for several reasons.
First, we note that N.C. Gen. Stat. § 7B-101(1) does not define
“serious physical injury.” And, we have stated that “the nature
of an injury is dependent upon the facts of each case and, based
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on the evidence before us in [each] case.” In re L.T.R., 181
N.C. App. 376, 383, 639 S.E.2d 122, 126 (2007). Second,
respondent-mother appears to overlook the fact that the
statutory definition of abuse under N.C. Gen. Stat. § 7B-
101(1)(b) does not require actual injury. Under this
subsection, “a substantial risk of serious physical injury” is
sufficient. N.C. Gen. Stat. § 7B-101(1)(b) (emphasis added).
This Court has sustained an adjudication of abuse where the
parent was aware of the existence of a risk to the child but
failed to “take the necessary steps to protect the minor
[child].” In re M.G., 187 N.C. App. 536, 549, 653 S.E.2d 581,
589 (2007) (internal quotation marks omitted), rev’d in part on
other grounds, 363 N.C. 570, 681 S.E.2d 290 (2009). Indeed,
DSS’s petition alleges abuse based on substantial risk of
physical injury.
After reviewing the record, we conclude that the trial
court’s findings were sufficient to establish that respondent-
mother, at minimum, subjected Kendrick to substantial risk of
physical injury. The findings establish that fourteen-month-old
Kendrick was left in a car seat for sixteen hours, which
resulted in bruising to Kendrick’s abdomen. During this time,
respondents failed to change his diaper or feed him, which
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resulted in severe diaper rash and dehydration. In fact, his
diaper rash was so severe that Kendrick’s bottom was bleeding.
Based on the foregoing, we hold that the trial court did not err
in concluding that Kendrick was an abused juvenile pursuant to
N.C. Gen. Stat. § 7B-101(1).
Conclusion
Based on the foregoing reasons, we affirm in part and
reverse in part the trial court’s order, and we remand for
further proceedings as to dependency.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).