In re: J.N.J. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-785
No. COA21-455
Filed 6 December 2022
Guilford County, No. 20 JA 512
IN THE MATTER OF: J.N.J.
Appeal by Respondent-Mother from orders entered 22 July 2020, 29 July 2020,
and 18 May 2021 by Judge Marcus A. Shields in Guilford County District Court.
Heard in the Court of Appeals 9 February 2022.
Mercedes O. Chut for Petitioner-Appellee Guilford County Department of
Health and Human Services.
Kimberly Connor Benton for Respondent-Appellant Mother.
Parker Poe Adams & Bernstein LLP, by Collier R. Marsh, for the Guardian ad
Litem.
JACKSON, Judge.
¶1 Respondent-Mother argues that (1) the trial court’s findings are insufficient
because they merely restate allegations from the Petition and are unsupported by
clear and convincing evidence; (2) the remaining supported findings do not support
an adjudication of neglect and dependency; and (3) the trial court failed to make
necessary constitutional findings in order to properly apply the best interest of the
child standard. First, we hold that while some minor portions of the findings are
unsupported and must be disregarded, the remaining portions are supported by clear
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and convincing evidence. Moreover, despite mirroring language from the Petition,
we are confident that the trial court used a process of logical reasoning when making
its ultimate findings. Second, we hold that these findings support the conclusion that
Jason1 was neglected and dependent, and therefore affirm the trial court’s order on
adjudication. Lastly, because we hold that Respondent-Mother’s constitutional
argument was not properly preserved for our review, we do not address its merits.
I. Background
¶2 On 28 July 2019, Respondent-Mother gave birth to Jason. The following day,
a report was filed with the Guilford County Department of Health and Human
Services (“DHHS”) originating this case because Respondent-Mother had other
children in DHHS custody at the time. Due to his premature birth at 25 weeks, Jason
remained hospitalized for treatment of various medical conditions. Jason was on a
breathing tube and was consequently prohibited from being in contact with smoke,
smoke particulate, and residue due to his respiratory condition. Jason’s home and
any car he traveled in also had to be free of smoke residue. His doctors also required
Jason to be supervised 24 hours a day, necessitating two full-time caretakers.
Because Jason needed a tracheal tube and ventilator, both caretakers needed to be
medically trained to care for him and use the necessary equipment.
1 The parties stipulate to the use of this pseudonym for ease of reading and to protect
the child’s privacy.
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¶3 On 30 July 2019, Social Worker R. Turner visited Jason and Respondent-
Mother at the hospital. During the visit, Respondent-Mother admitted that she had
other children in DHHS custody and did not have visitation with them. Respondent-
Mother also told Social Worker Turner that she did not know who Jason’s father was
and that she believed he was conceived at a party in Atlanta where she had sex with
multiple people while intoxicated. DHHS was concerned about Jason’s medical
issues, Respondent-Mother’s other children in custody, and the circumstances of
Jason’s conception. Based on Respondent-Mother’s history with DHHS, Social
Worker Turner was concerned about Respondent-Mother’s poor decision-making and
lack of improvement after taking mandated parenting classes.
¶4 Eventually, Respondent-Mother identified Jason’s father and provided his
contact information to Social Worker Turner. Respondent-Father2 alleged that he
had instructed Respondent-Mother to lie about Jason’s parentage, specifically
instructing her to tell the story that she had engaged in unprotected sex with multiple
people at a party. Respondent-Mother admitted to following Respondent-Father’s
instruction and lying to DHHS.
¶5 In October 2019, Social Worker Young visited Respondent-Mother’s home to
determine if it would be an appropriate home for Jason when he was released from
2 Respondent-Father is not a party to this appeal.
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the hospital. At this visit, she discovered that Respondent-Mother was living with
an unknown roommate and observed that the home smelled like incense had been
burning, both of which concerned DHHS. Separately, a nurse who visited
Respondent-Mother’s home also detected a “smoky smell.” A home visit was also
conducted by Social Worker Turner for Respondent-Father’s home sometime in
October. At this visit, Social Worker Turner observed multiple ashtrays, a glass bong,
a tobacco smoke odor, and the odor of what could have been marijuana. Although
Respondent-Father denied the bong belonged to him, he admitted to smoking
cigarettes and marijuana.
¶6 A background check was conducted on Respondent-Father, and DHHS
discovered multiple criminal convictions, including assault on a female,
communicating threats, assault with intent to inflict serious injury, misdemeanor
child abuse, contributing to the delinquency of a minor, resisting a public officer,
assault with a deadly weapon on a government official, as well as various drug,
larceny, and robbery convictions. Additionally, during the home visit, Social Worker
asked Respondent-Father about a 911 call for a domestic disturbance, and he advised
that an altercation occurred when the mother of another child of his discovered his
involvement with Respondent-Mother. This altercation between Respondent-Father
and the mother resulted in the 911 call, and the mother and her child moved out of
the home.
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¶7 On 6 December 2019, Social Worker Turner and hospital staff met with
Respondent-Mother and Respondent-Father to discuss Jason’s discharge from the
hospital. Jason’s parents advised DHHS that they were not living together or in a
relationship but would be co-parenting. DHHS was concerned with this
arrangement, because Jason needed two caretakers living in the home with him to
provide 24-hour medical care. Respondent-Father informed DHHS that he had not
yet spoken with his employer about Jason’s needs or his work schedule and that he
“sleeps really hard and has a difficult time with hearing alarms.” Social Worker
Turner asked Respondent-Mother who Jason’s two caretakers would be if placed in
her care, and Respondent-Father instructed Respondent-Mother not to answer the
question. Respondent-Mother did not directly answer the question or identify anyone
by name but vaguely indicated that she had “supports.”
¶8 After the December meeting, Respondent-Father recommended his brother
and sister-in-law as a potential placement option. However, the couple expressed
that they were no longer interested in being caretakers for Jason due to their concerns
with Respondent-Mother’s behavior and the possibility that they were moving to a
new home. Social Worker Turner also contacted Respondent-Father’s mother, who
advised that she could not be a placement option and did not have any other family
members that could be considered for placement. At a later meeting between
Respondent-Mother and Social Worker Turner, Respondent-Mother again failed to
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provide other placement options.
¶9 Meanwhile, while Jason was hospitalized, the case for his sisters was still
pending. A permanency planning hearing for Jason’s sisters was held on 20
November 2019. The permanency planning order,3 entered on 9 December 2019,
changed the primary permanent plan from reunification to adoption, with a
secondary plan of reunification. The sisters remained in DHHS custody. The trial
court found that the barriers to reunification were, inter alia: (1) the juveniles were
afraid to return home; (2) Respondent-Mother’s inability to demonstrate what she
learned in domestic violence classes; (3) Respondent-Mother’s inability to verbalize
why her children came into DHHS custody or her role in that outcome; (4)
Respondent-Mother’s minimization of the effects of domestic violence on her children;
(5) Respondent-Mother’s admission that she had intercourse with an unidentified
man at a party while intoxicated; (6) Respondent-Mother’s honesty; and (7)
Respondent-Mother’s violation of a court order and failure to comply with her case
plan.
¶ 10 The Petition and non-secure custody order for Jason were filed six months after
his birth, on 30 January 2020, while he was still in the hospital. The Petition alleged
3At Jason’s hearing on adjudication, Judge Shields took judicial notice of the
permanency planning order in Jason’s sisters’ pending case, in which he was also the
presiding judge.
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that Jason did not receive proper care, supervision, or discipline, lived in an
environment injurious to his welfare, and Jason’s parents were unable to provide for
his care or supervision and lacked an appropriate childcare arrangement. At the time
the Petition was filed, Respondent-Father had not completed any of the necessary
training to care for Jason, and Respondent-Mother had completed some but not all of
the training. Neither parent had an appropriate, smoke-free home, and the parents
also had not provided an alternative, suitable two-caretaker home to meet Jason’s
medical needs.
¶ 11 At the first non-secure custody hearing in February 2020, both Respondent-
Mother and Respondent-Father were prohibited from visiting with Jason because
they admitted to smoking. At the second non-secure custody hearing in April 2020,
Respondent-Mother was granted supervised visits with Jason at the hospital,
provided she was smoke, particulate, residue, and odor free. She was not permitted
to drive her car to the visit unless she provided DHHS with a receipt showing that it
had been professionally cleaned and was smoke-free. Jason remained hospitalized
until 28 April 2020, when he was placed in a foster home.
¶ 12 The hearing on adjudication was held over two days, on 5 June 2020 and 1 July
2020. Two social workers, R. Turner and K. Young, testified on behalf of DHHS. On
22 July 2020, the trial court adjudicated Jason a neglected and dependent juvenile.
An amended adjudication order was filed on 29 July 2020 to correct the file number.
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The trial court conducted a hearing on disposition on 12 February and 12 March 2021.
On 18 May 2021, the disposition order was entered. Respondent-Mother timely filed
a Notice of Appeal from the adjudication and disposition orders and an Amended
Notice of Appeal to include the amended adjudication order.
II. Discussion
¶ 13 Respondent-Mother argues that (1) the trial court’s findings are insufficient
because they merely restate allegations from the Petition and are unsupported by
clear and convincing evidence; (2) the remaining supported findings do not support
an adjudication of neglect and dependency; and (3) the trial court failed to make
necessary constitutional findings in order to properly apply the best interest of the
child standard. We address each argument in turn.
A. Standard of Review
¶ 14 For adjudications in abuse, neglect, or dependency cases, the standard of
review is whether the findings of fact are supported by clear and convincing evidence.
In re J.A.M., 372 N.C. 1, 8, 822 S.E.2d 693, 698 (2019). See N.C. Gen. Stat. § 7B-805
(2021). However, we do not review challenged findings that are unnecessary to
support a trial court’s determination. See In re S.R.F., 376 N.C. 647, 654, 656, 2021-
NCSC-5, ¶ 16, 19. See also In re C.J., 373 N.C. 260, 262, 837 S.E.2d 859, 860 (2020)
(declining to review challenged findings unnecessary to support the grounds for
adjudication). Unsupported findings or portions of findings are disregarded, and we
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review only the proper findings when determining whether the findings of fact
support the conclusions of law. See S.R.F., 376 N.C. at 654, 656, 2021-NCSC-5 ¶ 16,
19. Findings of fact supported by clear and convincing evidence are “deemed
conclusive even if the record contains evidence that would support a contrary
finding.” In re B.O.A., 372 N.C. 372, 379, 831 S.E.2d 305, 310 (2019). Conclusions of
law are reviewed de novo. In re M.H., 272 N.C. App. 283, 286, 845 S.E.2d 908, 911
(2020) (citation omitted).
B. Findings of Fact
¶ 15 Respondent-Mother argues that the trial court’s findings are insufficient
because they merely restate allegations from the petition and are unsupported by
clear and convincing evidence. While we agree that portions of the trial court’s
findings are unsupported, we hold that the remaining supported findings are
sufficient to support the trial court’s adjudication of Jason as neglected and
dependent.
¶ 16 The Juvenile Code provides that adjudication orders “shall be in writing and
shall contain appropriate findings of fact and conclusions of law.” N.C. Gen. Stat.
§ 7B-807(b) (2021). These factual findings “must be the specific ultimate facts[,]
sufficient for the appellate court to determine that the judgment is adequately
supported by competent evidence.” In re H.P., 278 N.C. App. 195, 202, 2021-NCCOA-
299, ¶ 23 (internal marks and citation omitted).
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¶ 17 Acknowledging the reality that trial courts in our State have “little or no
support staff to assist with order preparation,” we have repeatedly held that
it is not per se reversible error for a trial court’s fact
findings to mirror the wording of a petition or other
pleading prepared by a party. Instead, this Court will
examine whether the record of the proceedings
demonstrates that the trial court, through processes of
logical reasoning, based on the evidentiary facts before it,
found the ultimate facts necessary to dispose of the case. If
we are confident the trial court did so, it is irrelevant
whether those findings are taken verbatim from an earlier
pleading.
In re J.W., 241 N.C. App. 44, 48-49, 772 S.E.2d 249, 253 (2015).
¶ 18 Here, the following relevant findings were not challenged by Respondent-
Mother, are supported by clear and convincing evidence from the Record, and are
therefore binding on appeal:
8. [Respondent-Mother] has two (2) other minor
children who are not the subject of this proceeding . . . .
The juveniles are currently in the custody of the Guilford
County Department of Health and Human Services,
pursuant to a Petition and non-secure custody order filed
April 20, 2019, alleging neglect and dependency. The
current plan for the juveniles was changed to adoption
pursuant to a Permanency Planning Hearing on November
20, 2019 with the Order for that hearing entered by the
Court on December 11, 2019. Pursuant to that Order, the
plan was changed to adoption based on [Respondent-
Mother’s] lack of compliance with the majority of her case
plan for those juveniles, which include the mother’s failure
to successfully demonstrate improvement in her decision-
making regarding parenting and relationships; the
mother’s understanding of domestic violence; and the
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mother’s ability to properly vet partners. The Court took
judicial notice of the Permanency Planning Hearing Order
entered on December 11, 2019 pursuant to the hearing held
on November 20, 2019 in the companion sibling case.
...
11. No appropriate relative placements have been
identified.
¶ 19 Respondent Mother, however, challenges Findings of Fact 14 through 27 of the
trial court’s order on adjudication. Specifically, she argues that “Findings of Fact
#14-27 are nothing more than mere reiterations of statements to [DHHS] and are not
supported by the evidence, and there is no evidence the trial court used any logical
reasoning to make its ultimate findings of fact.” While Respondent-Mother “does not
deny [DHHS] presented some evidence” at the hearing, she takes issue with the fact
that “[t]he court verbatim adopted its findings of fact from Exhibit A” and, in her
view, “failed to use logical reasoning to make findings of the ultimate facts.”
¶ 20 Omitting minor unsupported details, we hold that the following challenged
findings are supported by clear and convincing evidence:
14. The Guilford County Department of Health and
Human Services received a report on July 29, 2019.
Reporter stated that [Respondent-Mother] gave birth to a
newborn baby on July, 28 2019. Reporter stated that the
infant was born at 25 weeks and will remain in the NICCU
[sic] for a while. Reporter advised [Respondent-Mother]
has other kids in the custody of GCDHHS. At that time,
[Respondent-Mother] refused to give the name of the
biological father.
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15. On July 30, 2019 Social Worker Turner went to the
Greensboro Women’s Hospital and spoke with
[Respondent-Mother] . . . . Social Worker Turner
addressed the allegations and inquired about [Respondent-
Mother’s] plan. [Respondent-Mother] advised that she
currently has a foster care case with her two daughters
. . . . [Respondent-Mother] shared that visitation was
stopped by the Department . . . . Social Worker Turner
asked for the name of [Jason’s] father, and [Respondent-
Mother] stated that she honestly did not know because it
could be one of several men with whom she had intercourse
at a party in a different state during the holiday season of
2018. Social Worker Turner requested any names or any
information she could recall, and [Respondent-Mother]
stated that she had no information.
16. On August 16, 2019, the Department held a Child
and Family Team Meeting (CFT) . . . . During this meeting
the issues discussed were as follows: (1) CPS report
received on July 29, 2019; (2) newborn child was born with
medical issues; (3) [Respondent-Mother’s] other children
currently in DSS custody[;] and (4) safety concerns for this
child. [Respondent-Mother] stated that she has worked her
case plan, and her situation is not the same as when her
other children came into custody. The Department was
also concerned as to who the father is of this child.
[Respondent-Mother] stated that she did not know who the
father was . . . . [Respondent-Mother] gave [] names, one
of which . . . she advised was the homeowner of where the
party was where she became heavily intoxicated and
engaged in sexual relations. [Respondent-Mother] stated
that it was an emotional time for her as her children were
taken into custody, so she went out on the town in Atlanta.
[Respondent-Mother] appeared to know nothing about the
men she slept with. [Respondent-Mother] stated that she
just signed a lease to her new house. [Respondent-Mother]
presented a copy of the lease. [DHHS] explained that the
Department continues to be concerned about the choices
that she is making and concerned about her not
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demonstrating parenting skills that she has learned in her
parenting classes. . . . [Respondent-Mother] is currently in
therapy with Ms. [M.] Seeley and there have been concerns
by the Department as to whether she is providing
appropriate treatment to [Respondent-Mother].
[Respondent-Mother] was asked about the current status
of her newborn and she advised that he is in the NICU born
at 25 weeks, currently 28 weeks gestational. Not ready for
discharge for 6 more weeks. [Respondent-Mother] was
breast feeding. . . . [Jason was] on a breathing machine
until he can breathe on his own. . . .
17. [I]n August . . . 2019, [Social Worker] Turner
received an email from [Respondent-Mother] advising that
she found the father of [Jason] and provided his contact
information.
18. [I]n August . . . 2019, [Social Worker] Turner . . . met
with [Respondent-Father] and collected a DNA sample to
determine paternity. [Social Worker] Turner inquired
about his plan for the child and any other placement
options for him. [Respondent-Father] advised that he
would be taking care of [Jason] and maybe [Respondent-
Father’s] mother, but he was not certain if she could. . . .
[Respondent-Father’s] criminal record . . . reflects various
larceny and robbery charges as well as assault with a
deadly weapon on a government official, resisting public
officer, . . . contributing to the delinquency of a minor, . . .
assault on a female, communicating threats, assault with
intent to inflict serious injury, and misdemeanor child
abuse.
...
21. . . . Social Worker Turner conducted a home visit
with [Respondent-Father] and noted that the home had an
odor of lingering smoke residue [and] that of cigarettes and
what appeared to be marijuana. Social Worker Turner
noticed various ashtrays . . . and a glass bong in a back
room/den area of the home. [Social Worker] Turner
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addressed the smoke odors and smoking paraphernalia.
[Respondent-Father] denied owning the glass bong pipe
but stated that he does engage in marijuana and cigarette
use. Social Worker Turner inquired about the status of his
relationship with [Respondent-Mother]. He advised that
they were in [a]. . . relationship . . . . [Respondent-Father]
advised that he knew [Respondent-Mother] was pregnant
from the beginning of her pregnancy and he has always
known that the child was his. . . .
22. On November 20, 2019, Social Worker Turner was
informed that the plan for [Respondent-Mother’s]
daughters had been changed to adoption due to
[Respondent-Mother] being out of compliance with the
majority of her case plan, including not being able to
successfully demonstrate a change in improving her
decision-making regarding parenting and relationships,
understanding of domestic violence and properly vetting
partners.
23. On December 6, 2019, a Child and Family Team
meeting (CFT) was held at Wake Forest Baptist Hospital
NICU. The attendees included: [Respondent-Father],
[Respondent-Mother], . . . [R.] Miller- MD-Neonatology, [J.]
Kerth-Nurse Practitioner-Pediatric Pulmonology, [S.]
Crabtree-Pediatric Pulmonology Attending . . . . The
medical team advised of the child’s medical needs including
a tracheal tube, a ventilator and ongoing developmental
needs due to underdeveloped airways and his premature
status. Medical Staff advised that there would need to be
2 fully trained 24-hour caregivers prior to discharge.
Restrictions included no smoking in the home, vehicles or
smoke residue on the hands or clothes of anyone providing
care for or being with [Jason]. [Respondent-Father]
advised that he needed to take some time and consider the
information and speak with his employer. He shared that
he is a very hard sleeper and doesn’t hear alarms while
sleeping . . . . During the CFT, [Respondent-Father] stated
that he encouraged [Respondent-Mother] to be dishonest
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with the Department about her initial story about [Jason’s]
conception and naming the father. [Respondent-Mother]
advised that this was true. Social Worker Turner inquired
about the current status of their relationship and their
plan for his care. [Respondent-Mother] advised that they
were only co-parenting. Social Worker Turner asked what
that meant and what that looked like . . . . Social Worker
Turner asked who the trained caretakers would be for
[Jason] as [Respondent-Father] expressed his plan to care
for him. Social Worker Turner asked whose home would
be the primary residence and whether the other parent
would join them at that home. [Respondent-Father]
instructed [Respondent-Mother] not to answer Social
Worker Turner. After the CFT was concluded, Nurse
Merrill advised that when she visited [Respondent-
Mother’s] home, there was a “smokey [sic] smell” that she
would be working with [Respondent-Mother] on the smell.
24. [I]n December . . . 2019, a meeting was held with
[Respondent-Mother] per her request . . . . The
Department’s concerns were re-explained to [Respondent-
Mother] as well as other placement options including
transfer of custody to caretakers identified by [Respondent-
Father] and she was asked if she had any other placement
options for the child and she advised she did not have any
additional placement options.
25. . . . Social Worker Turner spoke with . . .
[Respondent-Father’s] sister in-law and identified
caretaker. [Respondent-Father’s sister in-law] advised
that . . . she and her husband felt that there were too many
concerns regarding [Respondent-Mother], and they would
no longer [be] interested in being the caretakers for
[Jason].
26. . . . Social Worker Turner called and spoke with . . .
[Respondent-Father’s] brother and desired potential
caretaker. [Respondent-Father’s brother] advised that he
and his wife have decided to no longer be the caretakers for
[Jason]. . . . [Social Worker] Turner asked if their mother
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would be an option and [Respondent-Father’s brother]
stated that they had not discussed it since she was caring
for another grandchild and they did not want to add
additional burdens to her[.]
27. . . . Social Worker Turner phoned . . . paternal
grandmother of [Jason] and inquired about her interest
and ability to be a possible caretaker and placement option
for [Jason]. [She] advised that she would not be able to care
for or be a placement option for [Jason].
¶ 21 Respondent-Mother relies primarily on In re H.P., 278 N.C. App. 195, 2021-
NCCOA-299, to support her argument that these findings, which closely track the
language of Exhibit A to the Petition, are mere recitations that do not demonstrate
that the trial court exercised logical reasoning. However, in In re H.P., this Court
held that the trial court did not “through the process of logical reasoning, find the
ultimate facts necessary to dispose the case” where “no evidence to support the
allegations in Exhibit A was presented at the adjudication and disposition hearing,
and several of the allegations in Exhibit A could not be substantiated[.]” 278 N.C.
App. at 204, 2021-NCCOA-299 at ¶ 26 (internal marks and citation omitted)
(emphasis added). In addition to many of the findings being “mere recitations” from
the petition’s exhibit, this Court held that (1) “[f]our of the trial court’s findings
expressly state that ‘there was not evidence’ to support other allegations the trial
court found as fact in the adjudication order”; (2) “three other findings of fact by the
trial court recognize that there was insufficient evidence to support the allegations
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accepted as fact in other findings”; (3) many of the statements included in the findings
“were not corroborated by any of the testimony given at the adjudication hearing”;
and (4) “[t]he contents of Exhibit A[,]” where the language was lifted for the findings
of fact, “are contradictory on its face and, therefore, not competent evidence.” Id. at
203-04, 2021-NCCOA-299 at ¶ 24-28.
¶ 22 Here, unlike in In re H.P., many of the allegations in Exhibit A to the Petition
were supported by evidence presented at the hearing. At the hearing on adjudication,
which spanned two days, DHHS presented the testimony of two social workers, one
of whom corroborated many of the allegations in the Petition. Although some minor
details from the Petition were not supported by testimony at the hearing, including,
inter alia, specific dates, names of persons, and a handful of statements, these
unsupported details, which were omitted from our recitation above, were not
necessary to adjudicate Jason as neglected or dependent, as demonstrated further
below. Moreover, unlike In re H.P., here, the findings of fact were not self-
contradictory and did not depend on allegations that lacked sufficient evidence.
¶ 23 We therefore hold that all of the above findings are supported by the social
workers’ testimony at the adjudicatory hearing. Based on this evidence and the trial
court’s detailed orally rendered judgment, “the record of the proceedings
demonstrates that the trial court, through processes of logical reasoning, based on
the evidentiary facts before it, found the ultimate facts necessary to dispose of the
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case.” In re J.W., 241 N.C. App. at 48-49, 772 S.E.2d at 253. Because we are
confident that the trial court used logical reasoning to reach its findings, “it is
irrelevant whether those findings are taken verbatim from an earlier pleading.” Id.
Further, because we do “not review challenged findings that are unnecessary to
support the trial court’s determination[,]” and unsupported findings or portions of
findings are similarly disregarded, In re S.R.F., 376 N.C. at 654, 656, 2021-NCSC-5
¶ 16, 19, we will review only the above findings when determining whether the
findings of fact supported the trial court’s determination that Jason was neglected
and dependent.
C. Neglect
¶ 24 A “neglected juvenile” is defined by statute as “[a]ny juvenile . . . whose parent,
guardian, custodian, or caretaker does . . . not provide proper care, supervision, or
discipline[,]” or “[c]reates or allows to be created a living environment that is injurious
to the juvenile’s welfare.” N.C. Gen. Stat. § 7B-101(15)(a), (e) (2021). “In neglect
cases involving newborns,” or in Jason’s case as a medically fragile infant, “the
decision of the trial court must of necessity be predictive in nature, as the trial court
must assess whether there is a substantial risk of future abuse or neglect based on
the historical facts of the case.” In re J.A.M., 372 N.C. 1, 9-10, 822 S.E.2d 693, 699
(2019) (internal quotation marks and citation omitted).
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¶ 25 “To adjudicate a juvenile neglected, 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 is required.” In re R.B.,
280 N.C. App. 424, 432, 2021-NCCOA-654, ¶ 18 (internal quotation and citation
omitted). See also In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003)
(“Where there is no finding that the juvenile has been impaired or is at substantial
risk of impairment, there is no error if all the evidence supports such a finding.”).
“Similarly, in order for a court to find that the child resided in an injurious
environment, evidence must show that the environment in which the child resided
has resulted in harm to the child or a substantial risk of harm.” In re K.J.B., 248
N.C. App. 352, 354, 797 S.E.2d 516, 518 (2016) (citation omitted). A court “need not
wait for actual harm to occur to the child if there is a substantial risk of harm.” In re
D.B.J., 197 N.C. App. 752, 755, 678 S.E.2d 778, 780 (2009) (quotation and citation
omitted).
¶ 26 The prior adjudication of a sibling as neglected may not, standing alone,
support an adjudication of neglect. In re J.A.M., 372 N.C. at 9-10, 822 S.E.2d at 699
(2019). Instead, additional factors must be present “‘to suggest that the neglect . . .
will be repeated.’” Id. (citing In re J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 213(2014). A parent’s failure to correct the conditions that lead to the prior adjudication
of neglect, including the failure to address domestic violence, may support the
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Opinion of the Court
likelihood of the repetition of neglect. See In re D.L.W., 368 N.C. 835, 843-44, 788
S.E.2d 162, 167-68 (2016) (holding that the trial court’s findings regarding ongoing
domestic violence in the home after the prior adjudication of neglect “support[ed] the
conclusion that there would be a repetition of neglect based upon the juveniles’ living
in an environment injurious to their welfare”) (cleaned up).
¶ 27 Here, the trial court adjudicated Jason neglected, as defined by N.C. Gen. Stat.
§ 7B-101(15).
¶ 28 We are “required to consider the totality of the evidence to determine whether
the trial court’s findings sufficiently support its ultimate conclusion that” Jason is a
neglected juvenile. In re F.S., 268 N.C. App. 34, 43, 835 S.E.2d 465, 471 (2019). As
described above, because of his premature birth, Jason was a medically fragile
juvenile. Even when the Petition was filed six months after his birth, Jason remained
hospitalized for his safety. Jason had difficulty breathing on his own, and hospital
staff advised that in order for him to be released from the NICU, Jason needed two
full-time caretakers medically trained to use and monitor his breathing equipment.
Jason was not permitted to be near smoke odor, residue, or particulate in his home
or transportation, which would interfere with his health and ability to breathe.
Therefore, his caretakers had to be clean of smoke odor, residue, and particulate as
well.
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¶ 29 First, the trial court properly concluded that Respondents were unable to
provide proper care and supervision for Jason. The trial court found that neither
Respondent-Mother nor Respondent-Father had completed the necessary medical
training to care for Jason at the time the Petition was filed. Although Respondent-
Mother points out that she completed “some” of the training for Jason’s care during
his six months in the NICU, this incomplete training was not sufficient for Jason to
be discharged to her care. Moreover, even if Respondent-Mother had completed the
necessary training, she would still not be capable of providing proper care on her own,
as she did not have a second caretaker with the necessary medical training living in
the home where she planned to raise Jason. Although Respondent-Mother indicated
that she planned to “co-parent” with Respondent-Father, she refused to tell Social
Worker Turner which home would be Jason’s primary residence or whether both
parents would reside with Jason in the home. The trial court repeatedly found that
no additional caretakers were presented by Respondent-Mother.
¶ 30 Second, the trial court properly concluded that Jason was neglected due to an
injurious environment. Based on the trial court’s findings, Respondent-Mother’s
home had a “smoky smell” when one of Jason’s nurses conducted a home visit, and
Respondent-Father’s home also had a smoke odor and contained various smoking
paraphernalia, including ashtrays and a bong. Both parents also admitted to
smoking, which is why they were not permitted to visit with Jason. Therefore, had
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Jason been allowed to return home to live with Respondent-Mother or Respondent-
Father, due to the presence of smoke odor and his respiratory condition, his home
environment would result in a substantial risk of his physical impairment.
¶ 31 In addition to the presence of smoke odor in Jason’s environment, Respondent-
Mother repeatedly engaged in relationships with domestic violence and failed to learn
from her parenting and domestic violence courses. As demonstrated by the
adjudication of Jason’s siblings as neglected, Respondent-Mother’s history of poor
decision-making and domestic violence contributed to Jason’s sisters being removed
from her custody and recommended for adoption. Additionally, in Jason’s case,
Respondent-Mother’s relationship with Respondent-Father was a concern to DHHS
and the trial court. The trial court expressed concern that “based upon her previous
history of domestic violence, and having taken classes for domestic violence and was
in therapy, . . . that [Respondent-Mother] was able to conceive a child with someone
she did not know all of the background, who had a violent history or tendencies
related to violence, specifically had [an] assault on a female conviction[,]” in addition
to a misdemeanor child abuse conviction.
¶ 32 Although according to Respondent-Mother, Respondents were not in a
relationship, the findings reflect that Respondent-Father instructed Respondent-
Mother to lie to DHHS about Jason’s paternity, inventing the story about having
intercourse with strangers at a party in Atlanta, and then further instructed
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Respondent-Mother not to answer Social Worker Turner’s questions regarding their
co-parenting plan. The trial court again expressed concern that Respondent-Mother
“was able to be controlled by [Respondent-Father]” when “a component of the therapy
is the Crossroads program in her other case, which identifies domestic violence skills,
especially for battered women[,]” and Respondent-Father’s control over her “resulted
in her telling the [D]epartment false information . . . , and [] it took her almost a
month to tell the truth” about Respondent-Father’s paternity. The court further
stated that Respondent-Mother “was unable to use the skills that she developed in
her therapy and services provided to give truthful information or to assess intimate
partners that she might come in contact with.” Given that Jason’s sisters were also
removed from Respondent-Mother’s care over domestic violence concerns
contributing to their injurious environment, these findings regarding Respondent-
Mother’s involvement with Respondent-Father amply support a failure to address
these concerns and a repetition of that neglect.
¶ 33 We therefore hold, in light of the trial court’s supported findings, Jason was
properly adjudicated a neglected juvenile.
D. Dependency
¶ 34 A “dependent juvenile” is defined by statute as a “juvenile in need of assistance
or placement because . . . the juvenile’s parent, guardian, or custodian is unable to
provide for the juvenile’s care or supervision and lacks an appropriate alternative
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child care arrangement.” N.C. Gen. Stat. § 7B-101(9) (2021). Therefore, a child is not
dependent so long as there is one parent who can either care for the child or make
appropriate alternative childcare arrangements for the child. In re Q.M., 275 N.C.
App. 34, 42, 852 S.E.2d 687, 693 (2020). “Adjudicatory hearings for dependency are
limited to determining only the existence or nonexistence of any of the conditions
alleged in the petition.” Id. at 39, 852 S.E.2d at 691 (internal marks and quotation
omitted). We have previously held that “the trial court must consider ‘the conditions
as they exist at the time of the adjudication as well as the risk of harm to the child
from return to a parent.’” In re F.S., 268 N.C. App. at 46, 835 S.E.2d at 473 (citation
omitted).
¶ 35 Here, the trial court found that Jason should be adjudicated “dependent, as the
parents lack an appropriate child care arrangement,” and thereby concluded that
Jason was dependent as defined by N.C. Gen. Stat. § 7B-101(9). Because the trial
court’s findings also addressed whether Respondents were “unable to provide proper
care and supervision[,]” they supported the trial court’s adjudication of dependency.
¶ 36 As described above, the trial court properly found that Respondents were
unable to provide the proper care and supervision Jason needed in his medically
fragile state, due to the dangers posed by the smoke odor in their homes, their
inability to complete the necessary medical training, and their inability to articulate
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how, in their plan to “co-parent,” that Jason would be supervised full-time in the home
by two trained caretakers as medically required for his release.
¶ 37 Likewise, the trial court properly found that the parents lacked an appropriate
child care arrangement. Respondent-Father proposed his brother and sister-in-law,
who later told Social Worker Turner that they were not willing to be Jason’s
caretakers. Respondent-Father’s mother also indicated she did not want to be
considered as a caretaker and that she had no other family interested. Respondent-
Father proposed no other possible caretakers. While Respondent-Mother vaguely
indicated that she had “supports,” when asked for specific names by Social Worker
Turner, she repeatedly failed to name any potential caretakers for Jason. Although
Respondent-Mother argues on appeal that she suggested either her friend or sister to
DHHS, social worker testimony demonstrated that neither Respondent-Mother’s
friend or sister were approved by DHHS in the case involving Respondent-Mother’s
other children, and therefore they were not considered in Jason’s case. Moreover, and
more importantly, none of Respondent-Mother’s proposed arrangements accounted
for the two full-time, live-in caretakers that were medically required for Jason’s care,
and this is adequately reflected in the trial court’s findings.
¶ 38 Therefore, in light of the trial court’s supported findings, neither parent could
care for Jason or make appropriate childcare arrangements for him, and Jason was
properly adjudicated a dependent juvenile.
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E. Constitutionally Required Findings
¶ 39 After adjudicating Jason neglected and dependent, the trial court found that it
was “contrary to [his] health and safety to be returned to the custody of a parent” at
that time, and that it was “in the best[] interest of the juvenile to remain in the legal
and physical custody of” DHHS. Respondent-Mother argues that the trial court
incorrectly applied the best interest of the child standard in “awarding custody of
Jason” to DHHS without first making a finding that Respondent-Mother was “unfit”
or “acted inconsistently with her constitutionally protected rights” as a parent.
Respondent-Mother contends that her constitutional argument is automatically
preserved under N.C. R. App. P. 10(a)(1). We disagree.
¶ 40 Parents have several constitutional protections arising from the Due Process
and Equal Protection clauses of the Fourteenth Amendment, as well as the Ninth
Amendment to the United States Constitution, as recognized by our Supreme Court
in Petersen v. Rogers, 337 N.C. 397, 401, 445 S.E.2d 901, 903 (1994). However,
[n]othing in Petersen serves to negate our rules on the
preservation of constitutional issues. Thus, a parent’s
argument concerning his or her paramount interest to the
custody of his or her child, although afforded constitutional
protection, may be waived on review if the issue is not first
raised in the trial court.
In re J.N., 381 N.C. 131, 133, 2022-NCSC-52, ¶ 8.
¶ 41 In In re J.N., our Supreme Court rejected an argument nearly identical to
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Respondent-Mother’s. In that case, the respondent likewise argued that “the trial
court erred by granting guardianship without first concluding that respondent was
an unfit parent or had acted inconsistently with his constitutional right to parent[,]”
and that this argument was “automatically preserved under N.C. R. App. P.
10(a)(1)[.]” Id. at 132-33, 2022-NCSC-52 at ¶ 5-6. Our Supreme Court was not
persuaded, and instead affirmed a unanimous decision from this Court, In re J.N.,
276 N.C. App. 275, 2021-NCCOA-76, ¶ 8 (unpublished), ultimately holding that,
because the respondent “failed to assert his constitutional argument in the trial
court[,]” despite the respondent’s opportunity to do so, he had not properly preserved
his constitutional argument for appeal. In re J.N., 381 N.C. at 133-34, 2022-NCSC-
52 at ¶ 9-10.
¶ 42 Here, like the respondent in In re J.N., despite the trial court affording all
parties an opportunity to present closing arguments at the conclusion of each hearing,
Respondent-Mother did not raise a constitutional argument at either the adjudicatory
or dispositional hearings. DHHS acknowledged that while reunification was still the
goal of Jason’s permanent plan, DHHS recommended that he remain in DHHS
custody for his health and safety. Although Respondent-Mother argued, inter alia,
that she was capable of providing a safe, permanent home for Jason and wanted face-
to-face visitation with him, she did not at any point argue that leaving Jason in DHHS
custody was a violation of her constitutional rights. Therefore, because Respondent-
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Opinion of the Court
Mother was afforded an opportunity to raise her constitutional argument at trial and
did not do so, we conclude that she has waived this argument for our review.
III. Conclusion
¶ 43 Because the trial court used logical reasoning to make adequate factual
findings, supported by clear and convincing evidence, that supported an adjudication
of Jason as neglected and dependent, the trial court’s order on adjudication is
AFFIRMED.
Judge DIETZ concurs.
Judge MURPHY dissents by separate opinion.
No. COA21-455 – In re: J.N.J.
MURPHY, Judge, dissenting.
¶ 44 Though not addressed at length in the preceding opinion, I would first like to
underscore the unprecedented nature of the Majority’s decision to base its
determination, in any part, on findings of fact in an “orally rendered judgment” that
does not appear in the trial court’s order. See supra ¶ 23. This is a remarkable
departure from our ordinary review process which, having now been written into our
precedent, will present an unworkable burden to future litigants challenging a trial
court’s findings of fact—now, appellants must not only challenge findings committed
to writing by the trial court, but also those the trial court declined to include in its
order. While In re J.W. does allow for a degree of pragmatic leniency in our review,
nowhere does it authorize us to upend the procedural norms of our abuse, neglect,
and dependency jurisprudence by basing our review on findings outside the trial
court’s written order.4 See In re J.W., 241 N.C. App. 44, 48-49, disc. rev. denied, 368
N.C. 290 (2015),
¶ 45 Furthermore, while a trial court may quote a juvenile petition verbatim in its
findings of fact without committing reversible error, it cannot do so at the expense of
4 This is especially troubling given the stringency with which we typically limit the
scope of our review on the basis that “unchallenged findings of fact are presumed to be
supported by competent evidence and are binding on appeal.” In re R.D.B., 274 N.C. App.
374, 379-80 (2020). While I do not dispute the practical necessity of that procedural rule, it
strikes me as profoundly unprincipled that we would underscore the formal importance of
the trial court’s written findings of fact when individual appellants might benefit from
flexibility and leniency, only to treat the same findings with flexibility and leniency when
appellants might benefit from formality.
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having found the ultimate facts necessary to dispose of the case through a process of
logical reasoning based on the evidentiary facts before it. When, on the other hand,
a trial court’s findings of fact deviate from the evidence before it so significantly that
whether its findings were based on logical reasoning becomes unclear, it reversibly
errs. Here, in quoting the juvenile petition verbatim, the trial court based its
reasoning in the adjudication order so heavily on information that was not presented
to the trial court as evidence that the central logic of its position became
compromised. This was reversible error, and I would remand for adequate
factfinding.
BACKGROUND
¶ 46 As discussed by the Majority, Jason was born prematurely in July 2019 at 25
weeks and was placed in the newborn intensive care unit (“NICU”) to address his
health needs related to his underdeveloped respiratory system. The following day,
the Guilford County Department of Health and Human Services (“DHHS”) received
a child protective services report indicating that Jason was born prematurely and
placed into the NICU, that he would remain there for some time, and Respondent-
Mother had other children in the custody of DHHS.
¶ 47 One day later, at the hospital where Respondent-Mother had given birth, a
DSS employee spoke with Respondent-Mother regarding the allegations in the report.
Over the following six months, DHHS had several meetings with Respondent-Mother
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and Respondent-Father, including two Child and Family Team (“CFT”) meetings.
Over the course of the meetings, DHHS determined that Jason was a neglected and
dependent juvenile and, on 30 January 2020, filed a juvenile petition.
¶ 48 The trial court entered a non-secure Custody Order on 30 January 2020. After
an evidentiary hearing, the trial court entered its Adjudication Order on 22 July 2020,
finding Jason to be neglected and dependent pursuant to N.C.G.S. § 7B-807. See
N.C.G.S. § 7B-807 (2021); see also N.C.G.S. § 7B-101 (2021). On 29 July 2020, the
trial court entered its Amended Adjudication Order, with the only amendment being
a change to the file number in the order. On 18 May 2021, the trial court entered its
Disposition Order that ordered legal and physical custody of Jason remain with
DHHS and kept him in his foster placement. Respondent-Mother timely appeals.
ANALYSIS
¶ 49 Respondent-Mother argues (A) the trial court erred in adjudicating Jason
neglected because “it failed to make findings of fact based upon clear and convincing
evidence”; (B) the trial court committed reversible error in adjudicating Jason
neglected and dependent because it “failed to make necessary findings of fact, there
was insufficient evidence to support the findings of fact, and the findings which are
supported by the evidence are insufficient to support its conclusions of law”; and (C)
the trial court “incorrectly applied the best interest of the child standard in awarding
custody of [Jason] to [DHHS] without first finding [Respondent-Mother] was unfit or
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had acted inconsistently with her constitutionally protected rights as a parent.” I
would remand on the basis of Respondent-Mother’s first argument and, as a result,
would not reach her remaining arguments on appeal.
¶ 50 “The role of this Court in reviewing a trial court’s adjudication of neglect and
abuse 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 (2007) (quoting In re Gleisner,
141 N.C. App. 475, 480 (2000)), aff’d as modified, 362 N.C. 446 (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.¶ 51 However, as we discussed in In re H.P., the trial court’s findings of fact must
display a “process[] of logical reasoning[] based on the evidentiary facts before it” that
results in a finding of “the ultimate facts necessary to dispose of the case”:
The Juvenile Code provides that adjudication orders “shall
contain appropriate findings of fact and conclusions of law.”
[N.C.G.S.] § 7B-807(b) [(2021)]. Rule 52 of our rules of civil
procedure mandates the trial court make findings of “facts
specially and state separately its conclusions of law
thereon . . . .” [N.C.G.S.] § 1A-1, Rule 52 [(2021)]. “[T]he
trial court’s factual findings must be more than a recitation
of allegations. They must be the specific ultimate facts . . .
sufficient for the appellate court to determine that the
judgment is adequately supported by competent evidence.”
In re Anderson, 151 N.C. App. 94, 97[] . . . (2002) (citing
Montgomery v. Montgomery, 32 N.C. App. 154, 156-57[] . .
. (1977)). It is “not per se reversible error for a trial court’s
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fact findings to mirror the wording of a petition or other
pleading prepared by a party . . . . this Court will examine
whether the record of the proceedings demonstrates that
the trial court, through processes of logical reasoning,
based on the evidentiary facts before it, found the ultimate
facts necessary to dispose of the case.” In re J.W., 241 N.C.
App. 44, 48-49, . . . disc. review denied, 368 N.C. 290[] . . .
(2015). “Ultimate facts are the final resulting effect
reached by processes of logical reasoning from the
evidentiary facts.” In re Anderson, 151 N.C. App. at 97[;] .
. . see also In re H.J.A., 223 N.C. App. 413, 418[] . . . (2012).
In re H.P., 278 N.C. App. 195, 2021-NCCOA-299, ¶ 23, appeal dismissed, 379 N.C.
155 (2021).
¶ 52 In that case, “the trial court made forty-seven findings of fact in the
adjudication order”; however, “many of the findings of fact in the adjudication order
[were] mere recitations of the allegations in Exhibit A that was attached to the
juvenile petition.” Id. at ¶ 24. “Several of the trial court’s findings [were] verbatim
recitations of the allegations in the juvenile petition. Four of the trial court’s findings
expressly state[d] that ‘there was not evidence’ to support other allegations the trial
court found as fact in the adjudication order.” Id. “Although not explicitly stated,
three other findings of fact by the trial court recognize[d] that there was insufficient
evidence to support the allegations accepted as fact in other findings.” Under the
circumstances, we held that the findings of fact were mere recitations of allegations
because there was no evidence presented to support the allegations otherwise. Id. at
¶ 26. We also held “the trial court did not, through the process of logical reasoning,
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find ultimate facts necessary to dispose of the case.” Id. (marks omitted).
¶ 53 The Majority correctly points out that, when reviewing the trial court’s
factfinding, pragmatism requires that we do not review challenged findings that are
unnecessary to support a trial court’s determination and that we review only the
proper findings when determining whether the findings of fact support the
conclusions of law. See supra ¶¶ 14, 17. However, I do not believe—as it is clear we
did not believe in In re H.P.—that the limitation of our review to the dispositive
features of the findings of fact frees the trial court from its duty to issue its orders
above a minimum standard of clarity and coherence. The limitation of our analysis
to the facts necessary to support the trial court’s determination is, as I understand it,
an exercise in resolving factual disagreement; it operates similarly to surplusage in
a criminal indictment, freeing the judicial system from the need to undo and redo
procedures simply because a document was more specific than necessary. See State
v. Bollinger, 192 N.C. App. 241, 246 (2008) (“Allegations beyond the essential
elements of the crime sought to be charged are irrelevant and may be treated
as surplusage.”), aff’d, 363 N.C. 251 (2009); see also Surplusage, Black’s Law
Dictionary (9th ed. 2009) (“1. Redundant words in a statute or legal instrument;
language that does not add meaning . . . 2. Extraneous matter in a pleading . . . .”).
¶ 54 Conversely, the trial court’s responsibility to “find ultimate facts necessary to
dispose of the case” through a “process of logical reasoning” necessarily reflects a
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concern not only for whether the facts found were actually supported, but also
whether the trial court evaluated the case with adequate care and consideration. In
re H.P., 2021-NCCOA-299 at ¶ 26. If it were truly the case that the trial court’s
findings of fact could be upheld as liberally as the Majority claims, then this
requirement would have virtually no meaning; any amount of disarray or patent
absence of logic in a trial court’s factfinding would be tolerable as long as some subset
of propositions cherry-picked from the document—no matter how small—could
amount to a justification of the result. Whatever description may apply to such a
scenario, it would not be a “process[] of logical reasoning . . . .” Id.¶ 55 Bearing the above in mind, I turn to Respondent-Mother’s specific argument
on appeal. She contends that Findings of Fact 14 through 27 are “mere recitations of
statements made to [DHHS] and are not supported by the evidence.” Here, the
challenged findings of fact state:
14. The Guilford County Department of Health and Human
Services received a report on [29 July 2019]. Reporter
stated that [Respondent-Mother] gave birth to a newborn
baby on [28 July 2019]. Reporter stated that the infant was
born at 25 weeks and will remain in the NICCU [sic] for a
while. Reporter advised [Respondent-Mother] has other
kids in the custody of GCDHHS. At that time,
[Respondent-Mother] refused to give the name of the
biological father.
15. On [30 July 2019] [DSS employee] Turner went to the
Greensboro Women’s Hospital and spoke with
[Respondent-Mother] and observed the infant in the
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incubator in the NICU with [Respondent-Mother]. [DSS
employee] Turner addressed the allegations and inquired
about [Respondent-Mother’s] plan. [Respondent-Mother]
advised that she currently has a foster care case with her
two daughters due to them being present during a domestic
violence incident with her boyfriend at that time. [DSS
employee] Turner inquired about [Respondent-Mother’s]
case plan with her daughters, and [Respondent-Mother]
stated that she has done everything that was required of
her by the Department including domestic violence classes,
drug reassessment classes, therapy and parenting classes.
[Respondent-Mother] stated that she has not had contact
with her abuser, she moved, changed her phone number
and blocked him on all social media. [Respondent-Mother]
shared that visitation was stopped by the Department
because she asked her daughter how her father was doing
and told her to tell him she said hello. [Respondent-
Mother] received an email afterwards stating that she
would no longer have visitation due to her mentioning the
child’s father. [Respondent-Mother] explained her
interpretation of the rules was that she was not supposed
to ask about his visitation and did not know she could not
ask anything or mention him at all; and because it was
unclear, her visits were taken. [DSS employee] Turner
explained that a Child and Family Team Meeting (“CFT”)
would have to be scheduled to address the plan for the
child. [Respondent-Mother] advised that she does not want
[Jason] in foster care and would prefer for him to go to a
family member and listed her sister . . . . [DSS employee]
Turner asked for the name of [Jason’s] father, and
[Respondent-Mother] stated that she honestly did not
know because it could be one of several men with whom she
had intercourse at a party in a different state during the
holiday season of 2018. [DSS employee] Turner requested
any names or any information she could recall, and
[Respondent-Mother] stated that she had no information.
16. On [16 August 2019], the Department held a Child and
Family Team Meeting (CFT) facilitated by Supervisor
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Rhonda Oboh, present were: [DSS employee] Turner,
Supervisor Sherline McLean, [DSS employee] Kimberly
Young, Supervisor Rose Cromartie, [Respondent-Mother],
Godmother [], maternal aunt . . . , friend . . . , friend . . . and
friend . . . . During this meeting the issues discussed were
as follows: (1) CPS report received on [29 July 2019]; (2)
newborn child was born with medical issues; (3)
[Respondent-Mother’s] other children currently in DSS
custody[;] and (4) safety concerns for this child.
[Respondent-Mother] stated that she has worked her case
plan, and her situation is not the same as when her other
children came into custody. The Department was also
concerned as to who the father is of this child. [Respondent-
Mother] stated that she did not know who the father was,
there were the potential of 2 fathers. [Respondent-Mother]
gave two names, one of which . . . she advised was the
homeowner of where the party was where she became
heavily intoxicated and engaged in sexual relations.
[Respondent-Mother] stated that it was an emotional time
for her as her children were taken into custody, so she went
out on the town in Atlanta. [Respondent-Mother] appeared
to know nothing about the men she slept with.
[Respondent-Mother] stated that she just signed a lease to
her new house. [Respondent-Mother] presented a copy of
the lease. Ms. McLean explained that the Department
continues to be concerned about the choices that she is
making and concerned about her not demonstrating
parenting skills that she has learned in her parenting
classes. It was stated that at that time [Respondent-
Mother] could not have unsupervised visits with her
children in custody based on the last court hearing. The
next court date was [23 October 2019]. The children had
been in custody for 16 months, and [Respondent-Mother]
had two violations since the children came into custody.
[Respondent-Mother] was concerned that someone told her
children that she had a new baby and she instructed the
[DSS employee] and supervisor not to tell her children
about the baby. Ms. McLean explained that [neither] she
nor [DSS employee] Young told the children about the
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baby. Ms. McLean asked [Respondent-Mother] if she told
the therapist, Lisa Partin. [Respondent-Mother] stated no.
[Respondent-Mother] is currently in therapy with Ms.
Michelle Seeley and there have been concerns by the
Department as to whether she is providing appropriate
treatment to [Respondent-Mother]. [Respondent-Mother]
was asked about the current status of her newborn and she
advised that he is in the NICU born at 25 weeks, currently
28 weeks gestational. Not ready for discharge for 6 more
weeks. [Respondent-Mother] was breast feeding. He
weighed 1 lb. at birth and at the time of this CFT, he
weighed 2 lbs. 5 oz. with no special needs except for him
being on a breathing machine until he can breathe on his
own. [DSS employee] Turner sent a diligent efforts search
for [the man identified as the potential father].
17. On [19 August 2019], [DSS employee] Turner received
an email from [Respondent-Mother] advising that she
found the father of [Jason] and provided his contact
information.
18. On [27 August 2019], [DSS employee] Turner and
Social Worker Supervisor Cromartie met with
[Respondent-Father] and collected a DNA sample to
determine paternity. [DSS employee] Turner inquired
about his plan for the child and any other placement
options for him. [Respondent-Father] advised that he
would be taking care of [Jason] and maybe [Respondent-
Father’s] mother, but he was not certain if she could. [DSS
employee] Turner asked about the status of the
relationship with [Respondent-Mother] and he advised
that they are in a relationship and had been for
approximately 1 year. [DSS employee] Turner inquired
about his criminal background and he advised that he has
had several charges and convictions including assault on a
female and was just released from prison not long ago.
[Respondent-Father’s] criminal record dates back to 2003
and reflects various larceny and robbery charges as well as
assault with a deadly weapon on a government official,
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resisting public officer, felony and misdemeanor probation
violations, contributing to the delinquency of a minor,
traffic violations, flee and eluding arrest, possession with
intent to distribute marijuana, cocaine, and possession of
marijuana charges, possession of firearm by felon, assault
on a female, communicating threats, assault with intent to
inflict serious injury, and misdemeanor child abuse.
19. On [17 September 2019], [DSS employee] Turner
received the DNA test results which confirmed by 99.99%
probability of paternity that [Respondent-Father] is the
biological father of [Jason].
20. On [30 October 2019], [DSS employee] Turner called
[Respondent-Father] after reviewing missed calls from the
number provided for him, although the phone number ID
reflected [Respondent-Mother’s] name. [DSS employee]
Turner spoke with him and requested to visit his home.
[DSS employee] Turner requested to visit his home on [1
November 2019] at 1pm and [Respondent-Father] agreed.
On [1 November 2019], [DSS employee] Turner and
GCDHHS Nurse Brown went to the home for the
appointment and discovered that no one was home.
21. On [7 November 2019], [DSS employee] Turner
conducted a home visit with [Respondent-Father] and
noted that the home had an odor of lingering smoke residue
that of cigarettes and what appeared to be marijuana. [DSS
employee] Turner noticed various ashtrays full of cigarette
butts and a glass bong in a back room/den area of the home.
[DSS employee] Turner addressed the smoke odors and
smoking paraphernalia. [Respondent-Father] denied
owning the glass bong pipe but stated that he does engage
in marijuana and cigarette use. [DSS employee] Turner
inquired about the status of his relationship with
[Respondent-Mother]. He advised that they were in an on
and off relationship over the last year. However, he
advised that he “can’t deal with her and all that drama and
attitude” and he is no longer in a relationship with her.
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[DSS employee] Turner asked when he became aware that
[Respondent-Mother] was pregnant and when he became
aware that the infant might be his biological child.
[Respondent-Father] advised that he knew [Respondent-
Mother] was pregnant from the beginning of her pregnancy
and he has always known that the child was his. He stated
that [Respondent-Mother] called him one day stressing
that the Department was repeatedly requesting the name
of the father. He advised that he instructed [Respondent-
Mother] to tell the Department that he is the father since
it was the truth and they both knew he is the father.
22. On [20 November 2019], [DSS employee] Turner was
informed that the plan for [Respondent-Mother’s]
daughters had been changed to adoption due to
[Respondent-Mother] being out of compliance with the
majority of her case plan, including not being able to
successfully demonstrate a change in improving her
decision-making regarding parenting and relationships,
understanding of domestic violence and properly vetting
partners.
23. On [6 December 2019], a Child and Family Team
meeting (CFT) was held at Wake Forest Baptist Hospital
NICU. The attendees included: [Respondent-Father],
[Respondent-Mother], Lee Daniels -Hospital [Social
Worker], Rachel Miller- MD-Neonatology, Julie Kerth-
Nurse Practitioner-Pediatric Pulmonology, Shana
Crabtree-Pediatric Pulmonology Attending, Theresa
Merrill- RN CC4C Case Nurse Manager, Rykiell Turner-
CPS [DSS employee], Susie Edwards-CPS Social Worker
Supervisor[,] [and several family friends or relatives]. The
medical team advised of the child’s medical needs including
a tracheal tube, a ventilator and ongoing developmental
needs due to underdeveloped airways and his premature
status. Medical Staff advised that there would need to be
2 fully trained 24-hour caregivers prior to discharge.
Restrictions included no smoking in the home, vehicles or
smoke residue on the hands or clothes of anyone providing
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MURPHY, J., dissenting
care for or being with [Jason]. [Respondent-Father]
advised that he needed to take some time and consider the
information and speak with his employer. He shared that
he is a very hard sleeper and doesn’t hear alarms while
sleeping. [Respondent-Mother] and her supports
recommended that the child be placed in her care. The
Department noted ongoing concerns and provided various
options for the care and placement of [Jason]. During the
CFT, [Respondent-Father] stated that he encouraged
[Respondent-Mother] to be dishonest with the Department
about her initial story about [Jason’s] conception and
naming the father. [Respondent-Mother] advised that this
was true. [DSS employee] Turner inquired about the
current status of their relationship and their plan for his
care. [Respondent-Mother] advised that they were only co-
parenting. [DSS employee] Turner asked what that meant
and what that looked like, and [Respondent-Mother]
advised that they communicate regarding [Jason’s] care
and updates. [DSS employee] Turner asked who the
trained caretakers would be for [Jason] as [Respondent-
Father] expressed his plan to care for him. [DSS employee]
Turner asked whose home would be the primary residence
and whether the other parent would join them at that
home. [Respondent-Father] instructed [Respondent-
Mother] not to answer [DSS employee] Turner. After the
CFT was concluded, Nurse Merrill advised that when she
visited [Respondent-Mother’s] home, there was a “smokey
smell” that she would be working with [Respondent-
Mother] on the smell.
24. On [18 December 2019], a meeting was held with
[Respondent-Mother] per her request and present were,
CC4C Nurse Manager Merrill, [DSS employee] Turner,
Social Worker Supervisor Susie Edwards, Foster Care
[DSS employee] Kimberly Young, Program Manager
Carole Allison, Foster Care Program Manager Karen
Williamson, the father was not in attendance. The
Department’s concerns were re-explained to [Respondent-
Mother] as well as other placement options including
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MURPHY, J., dissenting
transfer of custody to caretakers identified by [Respondent-
Father] and she was asked if she had any other placement
options for the child and she advised she did not have any
additional placement options.
25. On [14 January 2020], [DSS employee] Turner spoke
with . . . [Respondent-Father’s] sister in-law and identified
caretaker. [Respondent-Father’s sister in-law] advised
that although she still wanted to be the caretaker for
[Jason], she and her husband felt that there were too many
concerns regarding [Respondent-Mother], and they would
no longer [be] interested in being the caretakers for
[Jason].
26. On [23 January 2020], [DSS employee] Turner called
and spoke with . . . [Respondent-Father’s] brother and
desired potential caretaker. [Respondent-Father’s brother]
advised that he and his wife have decided to no longer be
the caretakers for [Jason]. [Respondent-Father’s brother]
advised that he had not heard from his brother regarding
any other plans. [DSS employee] Turner asked if their
mother would be an option and [Respondent-Father’s
brother] stated that they had not discussed it since she was
caring for another grandchild and they did not want to add
additional burdens to her. [DSS employee] Turner called
[Respondent-Father] and was unable to leave a voicemail
as it was not set up. [DSS employee] Turner sent
[Respondent-Father] a text requesting that he contact
[DSS employee] Turner to address a plan of care for [Jason]
with no response as of [30 January 2020].
27. On [24 January 2020], [DSS employee] Turner phoned
. . . paternal grandmother of [Jason] and inquired about her
interest and ability to be a possible caretaker and
placement option for [Jason]. [She] advised that she would
not be able to care for or be a placement option for [Jason].
These findings are nearly identical to paragraphs 4 through 17 of Exhibit A of the
juvenile petition, although the language has been updated in most places to remove
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MURPHY, J., dissenting
abbreviations. Additionally, of the three handwritten edits to Exhibit A, only one was
incorporated into the findings of fact.
¶ 56 Bearing in mind the principles of In re: H.P., I agree with Respondent-Mother.
Against a comprehensive review of the Record and the transcript of the adjudicatory
hearing, a significant portion of these findings of fact are entirely unsupported by the
evidence at the adjudicatory hearing. These unsupported aspects include, in
significant part, Respondent-Mother’s alleged statements about the status of her case
involving her daughters in Finding of Fact 15; the attendees of the Child and Family
Team Meetings, the information regarding Respondent-Mother’s daughters and
therapist Lisa Partin, Jason’s weights, and the reference to the diligent efforts search
in Finding of Fact 16; the status of Respondent-Mother’s and Respondent-Father’s
relationship, Respondent-Father’s statements regarding his criminal history, and
several of the crimes included in his criminal record in Finding of Fact 18; the entirety
of Findings of Fact 19 and 20; the status of Respondent-Mother and Respondent-
Father’s relationship, Respondent-Father’s statements concerning the relationship,
and some of Respondent-Father’s statements concerning the false paternity story in
Finding of Fact 21; some of the attendees of the CFT meeting, Respondent-Mother’s
recommendation for the child’s placement, and the statement that there was a smoky
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smell in Respondent-Mother’s home5 in Finding of Fact 23; the attendees of the
meeting that Respondent-Mother requested in Finding of Fact 24; Respondent-
Father’s brother’s statements regarding other plans and the difficulty reaching
Respondent-Father in Finding of Fact 26; and the dates provided in Findings of Fact
17 through 22 and 25 through 27.
¶ 57 Here, like in In re H.P., I struggle to conclude that “the record of the
proceedings demonstrates that the trial court, through processes of logical reasoning,
based on the evidentiary facts before it, found the ultimate facts necessary to dispose
of the case.” Id. at ¶ 23 (quoting In re J.W., 241 N.C. App. at 48-49). While “[i]t is
not per se reversible error for a trial court’s fact findings to mirror the wording of a
petition or other pleading prepared by a party,” the trial court’s findings of fact that
mirror the juvenile petition in this case so frequently contain statements unsupported
by evidence on the Record that they do not appear to reflect the trial court’s own
“processes of logical reasoning.” Id.
5 I note that there was some discussion of this statement by Nurse Merrill on cross-
examination only. There was also some indication that the house smelled like incense from
DSS employee Young; however, the allegations of the juvenile petition do not mention
Respondent-Mother’s smelling of smoke other than in reference to Nurse Merrill. See In re
A.B., 179 N.C. App. 605, 609 (2006) (emphasis added) (“Unlike in the dispositional stage,
where the trial court's primary consideration is the best interest of the child and any
evidence which is competent and relevant to a showing of the best interest of that child
must be heard and considered by the trial court, evidence in the adjudicatory hearing is
limited to a determination of the items alleged in the petition.”).
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¶ 58 Admittedly, this case is distinct from In re H.P. in two ways. First, the findings
of fact did not undermine other findings of fact. Second, DHHS’s case was not limited
to Exhibit A as DHHS presented the testimony of two DSS employees that included
matters outside the scope of Exhibit A. Nonetheless, our task is to determine
“whether the record of the proceedings demonstrates that the trial court, through
processes of logical reasoning, based on the evidentiary facts before it, found the
ultimate facts necessary to dispose of the case.” Id. (quoting In re J.W., 241 N.C. App.
at 48-49); see also In re Anderson, 151 N.C. App. at 97 (“Ultimate facts are the final
resulting effect reached by processes of logical reasoning from the evidentiary facts.”).
And, reviewing the findings of fact holistically, it did not.6 The findings of fact in the
6 I also note that the facts of this case are similar to those of In re O.W. See
generally In re O.W., 164 N.C. App. 699 (2004). In In re O.W., we reversed an adjudication
order based on the respondent-mother’s argument that the trial court erred by failing to
make ultimate findings of fact. The order in In re O.W. contained “twenty findings of fact,
fifteen of [which] [were] a verbatim recitation of the facts stated in [the] petition for abuse
and neglect, some of which [were] unsupported by any evidence.” Id. at 702. We noted that
several of the findings of fact were simple recitations of what someone else had told the
DSS and that there was a lack of clarity regarding whether the trial court found an event
had occurred or found DSS concluded there was an injurious environment based upon what
someone told them. Id. We held:
[T]he trial court’s findings are not “specific ultimate facts,”
which are sufficient for this Court to determine that the
adjudication of abuse and neglect is adequately supported by
competent evidence. We remand this order to the trial court to
make appropriate findings of fact, not inconsistent with this
opinion. It is unnecessary for us to address the remainder of
[the] respondent’s [issues on appeal].
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trial court’s Amended Adjudication Order in this case were not “specific ultimate
facts,” and the Record does not demonstrate “that the trial court, through processes
of logical reasoning, based on the evidentiary facts before it, found the ultimate facts
necessary to dispose of the case.” In re H.P., 278 N.C. App. 195, 2021-NCCOA-299 at
¶ 23. As a result, I would remand this order to the trial court to make appropriate
findings of fact based upon the evidence, and I need not reach the other issues on
appeal.
CONCLUSION
¶ 59 The trial court’s Amended Adjudication Order quoted the language included in
the juvenile petition verbatim, including information not presented at the
adjudicatory hearing at any point and only presented in the juvenile petition. Due to
the pervasive reference to information that was not presented at the hearing, I cannot
conclude “that the trial court, through processes of logical reasoning, based on the
evidentiary facts before it, found the ultimate facts necessary to dispose of the case.”
Id. This constituted reversible error, and I would vacate the Amended Adjudication
Order and related Disposition Order and remand for the entry of appropriate findings
of fact based upon the evidence. Furthermore, for the reasons stated in the first
Id. at 704.
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paragraph of this opinion, I would not allow the trial court’s “orally rendered
judgment” to play any role in our review.
¶ 60 For these reasons, I respectfully dissent.