In re: G.C. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-452
No. COA22-38
Filed 5 July 2022
Cumberland County, No. 20JA111
IN THE MATTER OF: G.C., Juvenile.
Appeal by Respondent from order entered 19 October 2021 by Judge Cheri
Siler Mack in Cumberland County District Court. Heard in the Court of Appeals 7
June 2022.
Patrick A. Kuchyt for Petitioner-Appellee Cumberland County Department of
Social Services.
Vitrano Law Offices, by Sean P. Vitrano, for Respondent-Appellant Father.
McGuireWoods LLP, by Anita M. Foss, for guardian ad litem.
HAMPSON, Judge.
Factual and Procedural Background
¶1 Respondent-Father appeals from the trial court’s Adjudication and Disposition
Order adjudicating his child, G.C. (“Glenda”),1 a neglected juvenile. The Record
reflects the following:
1 A pseudonym stipulated to by the parties used for protection of the minor child and
for ease of reading. See N.C. R. App. P. 42(b).
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
¶2 On 13 March 2020, Cumberland County Department of Social Services (DSS)
filed a Petition alleging that Glenda was a neglected and dependent juvenile. The
trial court held adjudication and disposition hearings on 27 August 2021. As part of
the adjudication hearing, the parties submitted a written stipulation of facts focused
primarily on the underlying facts of Respondent-Mother’s previous cases with her two
older children2 and the death of Respondent-Parents’ infant child Gary3, Glenda’s
younger sibling.
¶3 On 19 October 2021, the trial court entered its Adjudication and Disposition
Order adjudicating Glenda a “neglected juvenile within the meaning of N.C. Gen.
Stat. § 7B-101(15), inasmuch as the juvenile did not receive proper care, supervision,
or discipline from their parent, guardian, custodian, or caretaker, and the juvenile
lived in an environment injurious to [her] welfare.”4 In this Order, the trial court
made findings, based on the facts stipulated to by the parties, detailing Mother’s
previous DSS cases with the older children and her conviction of misdemeanor child
abuse.
¶4 In particular, the trial court found: Glenda was approximately 1 ½ years old at
Mother is not a party to this appeal.
2
A pseudonym. See N.C. R. App. P. 42(b).
3
4 The Order also noted DSS was dismissing the allegation G.C. was a dependent
juvenile.
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
the time of the filing of the Petition.5 Mother has two older children who were
previously adjudicated abused, neglected, and dependent and have been in DSS
custody since 28 December 2017.6 On 6 November 2019, Mother was convicted of
misdemeanor child abuse and placed on probation because of her actions with the two
older children.
¶5 Gary was born in December 2019 to Respondent-Parents. On 12 March 2020,
Mother was caring for Gary while Father was at work. Mother placed Gary in a “
‘Pack n Play’ and propped a bottle for him to feed[.]” Mother came in at one point to
burp Gary, then placed him back in the “Pack n Play” on his side with several
blankets. Approximately three hours later, Mother checked on Gary and found him
unresponsive. Mother ran to the paternal grandmother’s house who lived nearby, and
the grandmother instructed Mother to call 911. Gary was pronounced dead at the
scene. That day, Parents agreed to allow Glenda to temporarily live with her paternal
grandmother.
¶6 In addition to these findings, the trial court also included as findings of fact:
29. Respondent Father and Respondent Mother have been
instructed about proper sleeping arrangements for
children.
...
5 Finding of Fact 16 contains an apparent typographical error as to G.C.’s birth date.
6 Father is not the father of Mother’s two older children.
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
32. That when the EMS arrived on the scene, they noticed
the juvenile foaming from the nose and the mouth,
indicative of asphyxiation.
33. That the Fayetteville Police Department incident
report dated 3/12/20 stated, they noticed two used baby
bottles and several blankets in the Pack ’n Play.
34. That the medical examiner’s autopsy report on [Gary]
dated 3/13/20, stated that “. . . sleeping in an environment
with blankets while less than one year of age is a risk factor
for an accidental asphyxial event. An asphyxial event
cannot be ruled out based on the autopsy findings.”
(Emphasis in original).
...
36. The evidence presented rises to the level of neglect
pursuant to N.C. Gen. Stat. § 7B-101(15) in that the
juvenile lived in an environment injurious to the juvenile’s
welfare; and that the juvenile does not receive proper care,
supervision, or discipline from the juvenile’s parent,
guardian, custodian. Therefore, the juvenile is a neglected
juvenile pursuant to N.C. Gen. Stat. § 7B-101(15).
¶7 The trial court concluded as a matter of law that Glenda was a neglected
juvenile. In the Disposition portion of the Order, the trial court ordered Glenda
remain in DSS custody and provided for visitation with Respondent-Parents. Father
timely filed Notice of Appeal on 28 October 2021.
Issue
¶8 The dispositive issue on appeal is whether the trial court’s adjudicatory
Findings of Fact support its Conclusion of Law that Glenda is a neglected juvenile.
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
Analysis
¶9 Our review of an adjudication of neglect is constrained to whether the trial
court’s conclusions of law are supported by its findings of fact. See In re Montgomery,
311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) (citation omitted). “[I]n a non-jury
neglect adjudication, the trial court’s findings of fact supported by clear and
convincing competent evidence are deemed conclusive, even where some evidence
supports contrary findings.” In re J.A.M., 372 N.C. 1, 8, 822 S.E.2d 693, 698 (2019)
(citations omitted). “Where no exception is taken to a finding of fact by the trial court,
the finding is presumed to be supported by competent evidence and is binding on
appeal.” In re K.S., 380 N.C. 60, 2022-NCSC-7, ¶ 8. A trial court’s adjudication of
neglect is a conclusion of law that this Court reviews de novo. Id. at ¶ 8 (citation
omitted); In re W.C.T., 280 N.C. App. 17, 2021-NCCOA-559, ¶ 27 (citations omitted).
¶ 10 As an initial matter, as part of his broader challenge to the trial court’s neglect
adjudication, Respondent-Father challenges two of the trial court’s findings: Findings
of Fact 34 and 36. In Finding of Fact 34, the trial court recited7 a portion of the Report
of Autopsy Examination performed on Gary:
34. That the medical examiner’s autopsy report on [Gary]
7 See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (findings
simply reciting the evidence presented at trial are not the required ultimate findings of fact).
However, “[t]here is nothing impermissible about describing testimony, so long as the court
ultimately makes its own findings, resolving any material disputes[.]” In re A.E., 2021-NCSC-
130, ¶ 18 (quoting In re T.N.H., 372 N.C. at 408, 831 S.E.2d at 59).
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
dated 3/13/20, stated that “. . . sleeping in an
environment with blankets while less than one year of
age is a risk factor for an accidental asphyxial event. An
asphyxial event cannot be ruled out based on the autopsy
findings.” (Emphasis in original).
Specifically, Respondent-Father asserts this Finding “omits the Medical Examiner’s
conclusion that it was possible that Gary’s death was caused by sudden infant death
syndrome.” Respondent-Father is correct the Medical Examiner’s report also noted
the findings “could be consistent with a diagnosis of sudden infant death syndrome.”
Indeed, the report concludes “the cause and manner of death are best classified as
undetermined.” However, we do not read Finding 34 as the trial court making any
final determination of Gary’s cause of death. We read it in context with the other
findings that: Respondent-Parents had been instructed on proper sleeping
arrangements for children; later, Gary was found unresponsive in the Pack ‘n’ Play
with blankets; first-responders observed signs consistent with asphyxiation; and the
Medical Examiner noted such a sleeping environment at less than one year old was
a risk factor for asphyxiation and thus could not be ruled out as a cause of death.
Taken together, these Findings tend to show Respondent-Parents caused Gary to be
in an injurious environment at the time of his death.
¶ 11 Finding 36 states:
36. The evidence presented rises to the level of neglect
pursuant to N.C. Gen. Stat. § 7B-101(15) in that the
juvenile lived in an environment injurious to the
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
juvenile’s welfare; and that the juvenile does not receive
proper care, supervision, or discipline from the
juvenile’s parent, guardian, custodian. Therefore, the
juvenile is a neglected juvenile pursuant to N.C. Gen.
Stat. § 7B-101(15).
Although denominated as a Finding of Fact by the trial court, “[t]he determination of
neglect requires the application of the legal principles set forth in [the neglect statute]
and is therefore a conclusion of law.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d
672, 675-76 (1997). Because this Finding is more properly designated a Conclusion
of Law, we treat it as such for the purposes of this appeal. Id. In so doing, we review
it in connection with the trial court’s denominated Conclusion of Law 2 that Glenda
“is a neglected juvenile” and its decree Glenda “is hereby adjudicated a neglected
juvenile[.]”
¶ 12 Respondent-Father argues the trial court erred in making these legal
conclusions and adjudicating Glenda as neglected because “Mother’s previous cases
and convictions of misdemeanor child abuse involving her other children do not
support an adjudication of current or future neglect as to Glenda.” DSS, for its part,
“does not take a position” on whether the trial court’s Findings support its neglect
adjudication. The Guardian ad Litem, however, contends the Findings of Fact do
support an adjudication of neglect.
¶ 13 A “[n]eglected juvenile” is defined, in relevant part, as “[a]ny juvenile less than
18 years of age . . . whose parent, guardian, custodian, or caretaker . . . [d]oes not
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
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) (2021). Relevant to the determination of a neglected juvenile is “whether that
juvenile lives in a home where another juvenile has died as a result of suspected abuse
or neglect or lives in a home where another juvenile has been subjected to abuse or
neglect by an adult who regularly lives in the home.” Id.
¶ 14 “The neglect statute ‘neither dictates how much weight should be given to a
prior neglect adjudication, nor suggests that a prior adjudication is determinative.’ ”
In re J.A.M., 372 N.C. at 9, 822 S.E.2d at 698 (quoting In re A.K., 360 N.C. 449, 456,
628 S.E.2d 753, 757 (2006)). “ ‘Rather, the statute affords the trial judge some
discretion in determining the weight to be given such evidence.’ ” Id. (quoting In re
Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994). However, “[a] court may
not adjudicate a juvenile neglected solely based upon previous Department of Social
Services involvement relating to other children.” Id.¶ 15 “Rather, in concluding that a juvenile ‘lives in an environment injurious to the
juvenile’s welfare,’ N.C.G.S. § 7B-101(15), the clear and convincing evidence in the
record must show current circumstances that present a risk to the juvenile.” Id.
Indeed, our Courts have “additionally ‘required that there be 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” ’ in
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
order to adjudicate a juvenile neglected.” In re Helms, 127 N.C. App. 505, 511, 491
S.E.2d 672, 676 (1997) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898,
901–02 (1993)) (emphasis in original). “[A] prior and closed case with other children
. . . standing alone, cannot support an adjudication of current or future neglect.” In re
J.A.M. 372 N.C. at 9, 822 S.E.2d at 699 (internal quotations omitted) (citation
omitted) (emphasis in original). “Instead, we ‘require[ ] the presence of other factors
to suggest that the neglect or abuse will be repeated.’ ” Id. at 9–10, 822 S.E.2d at 699
(quoting In re J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 487, 489 (2014)).
¶ 16 Likewise, this Court has recognized that in determining whether a juvenile is
neglected based on prior abuse or neglect of other children by an adult who regularly
lives in the home: “The decision of the trial court regarding whether the other children
in the home are neglected, ‘must of necessity be predictive in nature, as the trial court
must assess whether there is a substantial risk of future abuse or neglect of a child
based on the historical facts of the case.’ ” In re S.M.L., 272 N.C. App. 499, 515 , 846
S.E.2d 790, 801 (2020) (quoting In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d
121, 127 (1999)). “If the trial court relies on instances of past abuse or neglect of other
children in adjudicating a child neglected, the court is required to find ‘the presence
of other factors to suggest that the neglect or abuse will be repeated.’ ” Id. at 516,
846 S.E.2d at 801 (quoting In re J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 487, 489
(2014)).
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
¶ 17 In this case, the trial court made no finding or determination Glenda suffered
any physical, mental, or emotional impairment or that Glenda was at a substantial
risk of such impairment as a consequence of any failure to provide proper care,
supervision, or discipline to support the adjudication of Glenda as a neglected
juvenile. See In re: J.A.M., 372 N.C. at 9, 822 S.E.2d at 698. Instead, the existing
Findings show the trial court adjudicated Glenda neglected solely based on its
findings of the prior DSS involvement with Respondent-Mother’s older children and
the circumstances surrounding the death of Respondent-Parent’s infant son Gary.
Crucially, as in In re S.M.L. and In re J.C.B. and unlike in J.A.M., the trial court
failed to find “the presence of other factors” indicating a present risk to Glenda when
it reached its conclusion that Glenda was neglected as a matter of law. See id. at 10,
822 S.E.2d at 698. Thus, the trial court’s Findings do not support its Conclusion
adjudicating Glenda as a neglected juvenile. Therefore, the trial court erred in
adjudicating Glenda as a neglected juvenile. Consequently, the trial court’s
Adjudication and Disposition Order must be vacated and this matter remanded to
the trial court to determine whether facts supporting an adjudication of neglect may
be found by clear and convincing evidence on the existing record.8 If so, the trial court
8 We acknowledge the majority of the trial court’s key evidentiary findings at
adjudication are grounded in the stipulated facts and, as a result, there is a limited
evidentiary record for the trial court to draw upon in making additional findings.
IN RE: G.C.
2022-NCCOA-452
Opinion of the Court
should enter a new adjudication of neglect supported by such Findings of Fact and
then proceed to a new disposition hearing. If not, the trial court should dismiss the
Petition.
Conclusion
¶ 18 Accordingly, for the foregoing reasons, we vacate the trial court’s Adjudication
and Disposition Order and remand this matter to the trial court for a determination
of whether additional adjudicatory findings may be made on the existing record as
set forth above.
VACATED AND REMANDED.
Judge INMAN concurs.
Judge GRIFFIN dissents.
No. COA22-38 – In re G.C.
GRIFFIN, Judge, dissenting.
¶ 19 It is clear from our precedent that previous DSS involvement with other
children is not by itself a sufficient basis to adjudicate a juvenile neglected and that,
“[i]nstead, we require [] the presence of other factors to suggest that the neglect . . .
will be repeated.” Matter of J.A.M., 372 N.C. at 9–10, 822 S.E.2d at 699 (citation and
internal quotation marks omitted). Contrary to the majority’s position, while the trial
court made findings relating to Mother’s older children’s adjudications of abuse,
neglect, and dependent “based on one of the children [being] severely malnourished
because [Mother] and those children’s father failed to feed the child[,] [and] [t]hat
child also had bruises on him[,]” this was not the sole basis of its determination of
neglect. Rather, the “other factors” that the court relied on were the specific findings
relating to the circumstances of Gary’s death, a child who DSS had no previous
involvement with, under Mother’s supervision, in the home that Glenda also resided
in. In relation to Gary’ death, the trial court found:
29. Respondent Father and Respondent Mother have been
instructed about proper sleeping arrangements for
children.
...
32. That when the EMS arrived on the scene, they noticed
the juvenile foaming from the nose and the mouth,
indicative of asphyxiation.
33. That the Fayetteville Police Department incident
IN RE G.C.
2022-NCCOA-452
GRIFFIN, J., dissenting.
report dated 3/12/20 stated, they noticed two used baby
bottles and several blankets in the Pack ’n Play.
34. That the medical examiner’s autopsy report on [Gary]
dated 3/13/20 stated that “. . . sleeping in an environment
with blankets while less than one year of age is a risk factor
for an accidental asphyxial event. An asphyxial event
cannot be ruled out based on the autopsy findings.”
(Emphasis in original). The trial court’s findings reflect that Mother has not only had
previous issues with neglecting her older children, but now, under the current
circumstances that Glenda resided in, a child died under Mother’s supervision. These
findings taken together “suggest that the neglect . . . will be repeated.” Matter of
J.A.M., 372 N.C. at 9–10, 822 S.E.2d at 699 (citation and internal quotation marks
omitted).
¶ 20 Additionally, while the trial court did not make a specific finding that Glenda
was at a substantial risk of harm due to a failure to provide proper care, supervision,
or discipline, this Court has concluded that such a finding is unnecessary where it is
clear from the evidence. Matter of K.S., 380 N.C. 60, 2022-NCSC-7, ¶ 9; Matter of
Safriet, 112 N.C. App. 747, 753, 436 S.E.2d 898, 902 (1993) (“Although the trial court
failed to make any findings of fact concerning the detrimental effect of [the mother]’s
improper care on [the juvenile]’s physical, mental, or emotional well-being, all the
evidence supports such a finding.” (citation omitted)). Consistent with the analysis
above, the evidence is clear that Glenda is at a substantial risk of harm in the Parents’
IN RE G.C.
2022-NCCOA-452
GRIFFIN, J., dissenting.
home based upon the trial court’s findings about Mother’s older children, showing a
history of neglecting children, and the findings detailing the circumstances around
Gary’s death, evidencing current issues with supervision and care in Parents’ home.
¶ 21 For these reasons, I respectfully dissent.