In re: D.S. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-674
No. COA22-190
Filed 18 October 2022
Cumberland County, No. 20 JA 271
IN THE MATTER OF: D.S.
Appeal by respondent father from order entered 8 November 2021 by Judge
Luis J. Olivera in District Court, Cumberland County. Heard in the Court of Appeals
20 September 2022.
Parent Defender Wendy C. Sotolongo, by Assistant Parent Defender Jacky
Brammer, for respondent-father.
Parker Poe Adams & Bernstein LLP, by Eric H. Cottrell, for guardian ad litem.
Patrick A. Kuchyt, for appellee Cumberland County Department of Social
Services.
STROUD, Chief Judge.
¶1 Respondent Father appeals from an order adjudicating his infant son neglected
and dependent. Father argues the trial court erred by adjudicating his son neglected
because his son was not put at a substantial risk of harm by Respondent parents’
conduct and the trial court failed to make findings of fact required to adjudicate his
son neglected. Father also argues the trial court erred by adjudicating his son
dependent because Father “presented an approved alternative caregiver pre-petition”
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and the statutory requirements to adjudicate a juvenile dependent were unmet.
Because the evidence and findings of fact do not support the trial court’s conclusions
of law, we reverse the trial court’s adjudications of neglect and dependency.
I. Background
¶2 On 17 August 2020, Dallas1 was born to Respondent Mother and Respondent
Father. Around the time of Dallas’s birth Mother lived in Cumberland County and
Father lived in Bladen County. Shortly after Dallas was born both Mother and Dallas
tested positive for THC, a metabolite of marijuana. Dallas was also placed in the
NICU due to low blood sugar before he was discharged from the hospital, and the
Cumberland County Department of Social Services (“CCDSS”) received a Child
Protective Services referral the day after Dallas was born. Ultimately, Mother agreed
to place Dallas with Father after he was discharged from the hospital; after Dallas
was discharged he lived with Father in Bladen County.
¶3 Approximately two weeks after Dallas was discharged from the hospital, on 2
September 2020, Social Worker V.C. contacted law enforcement in Bladen County
and requested a “courtesy check” on Father and Dallas. A Bladen County Sheriff’s
Office deputy assisted a Bladen County CPS social worker in performing the
“courtesy check” on 2 September 2020 at approximately 6 p.m. An Incident Report
1 We use the pseudonym stipulated to by the parties.
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filed by the deputy after the courtesy check stated the deputy first drove past Father’s
residence to confirm the address, and when the deputy drove by the residence the
deputy “did see what appeared to be a black male standing in the yard.” The deputy
continued driving and waited at a nearby intersection for the social worker to arrive.
“After approximately three minutes,” the social worker arrived and the deputy
“escorted her to the residence to attempt to make contact with” Father. The deputy
knocked on the door of the residence twice, then walked around the side of the house
when no one answered. The deputy “located a vehicle” and “was about to run the
vehicle information to confirm if [the deputy and the social worker] were at the right
address” when Father arrived. The deputy informed Father of the courtesy call, and
Father allowed the deputy and social worker inside the residence to “observe[ ] a
newborn infant sleeping in a crib.” The social worker then contacted CCDSS and
“made the decision to have the infant removed from the home.” Father’s cousin
arrived at the residence and took Dallas to her home. The deputy estimated in the
Incident Report that the deputy and social worker arrived at the residence
“approximately five minutes” before Father. A case report filed by the Bladen County
CPS social worker confirmed the deputy’s recitation of the 2 September 2020 incident
and also stated that Father asked the deputy while the deputy was in the home if the
deputy saw Father “standing outside in the yard” when the deputy initially drove by.
The deputy answered “he did see someone when he went by but that he could not tell
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if” the person in the yard was Father. The CPS document stated the social worker
estimated “there was about 7 minutes that there was no one home with the baby.”
¶4 On 4 September 2020, CCDSS filed a petition alleging Dallas was a neglected
juvenile (1) because he “[did] not receive proper care, supervision, or discipline” from
Father and (2) because he “live[d] in an environment injurious to [his] welfare.” The
petition also alleged Dallas was a dependent juvenile because his “parent, guardian,
or custodian [was] unable to provide for the care or supervision of [Dallas] and
lack[ed] an appropriate alternative child care arrangement.” As to neglect the
petition alleged:
1. The Cumberland County Department of Social Services
(CCDSS) received a Child Protective Services (CPS)
referral on 8/18/2020 concerning the safety of the
juvenile.
2. Respondent Mother has prior CPS history for neglect in
September of 2019, due to substance abuse and
unstable housing.
3. Respondent Mother tested positive for THC when the
child was born. Respondent Mother initially refused for
the minor child to be tested. However, she later agreed,
and he also tested positive for THC.
4. The minor child was placed in the NICU due to low
blood sugar.
5. Respondent Mother indicated that she had appropriate
housing and employment. However, [Social Worker G.]
has not been able to see the home or verify employment.
6. Respondent Mother agreed to place the minor child with
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Respondent Father upon his discharge from the
hospital.
7. [Social Worker V.C.] contacted Bladen County on
9/2/2020 to ask for a courtesy check on the Respondent
Father.
8. Law Enforcement for Bladen County arrived first, and
no one was home. The [social worker] for Bladen
County arrived several minutes later. A few minutes
later the Respondent Father pulled into the yard.
9. [Bladen County social worker] asked Respondent
Father where the minor child was, and he indicated
that he was inside the home. Respondent Father went
inside and retrieved the minor child. When asked who
was with the minor child the Respondent Father
indicated no one was with the minor child and that he
was gone “30 seconds”.
10. Based on the allegations herein, the juvenile(s) are at
risk of imminent irreparable harm if they are returned
to the physical custody of Respondents.
11. Based on the allegations herein, the Petitioner cannot
ensure the safety of the juvenile(s) and is in need of a
Non-Secure Custody Order in favor of the Petitioner.
The petition repeated identical allegations when alleging Dallas was a dependent
juvenile.
¶5 On 4 September 2020, the Cumberland County District Court entered a
nonsecure custody order in favor of CCDSS. Dallas was placed with a “suitable
relative” pursuant to a “Temporary Safety Placement agreement” that Dallas’s
parents could remove him from “at any time without court involvement.” The
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nonsecure custody order did not identify that relative and the record does not contain
the “Temporary Safety Placement agreement” referred to by the trial court. On 9
September 2020, the trial court held a review hearing and entered an order for
continued nonsecure custody on 28 October 2020. The trial court incorporated the
factual basis from the petition as alleged by CCDSS and concluded Dallas should
remain in foster care while CCDSS attempted to find him an alternative placement.
The order set a hearing on continued nonsecure custody for 14 September 2020. The
case was heard on 14 September, Dallas remained in CCDSS custody, and an order
was entered 23 October 2020. The trial court set the initial date for an adjudication
hearing for 20 October 2020.
¶6 The adjudication hearing was repeatedly continued through 2020 and 2021.2
During this time Father was incarcerated for 40 days for “assault[ing] a Cumberland
County Sheriff’s Deputy as they attempted to arrest him” for being disruptive during
a hearing in this matter on 20 October 2020; Father completed a mental health
2 There were significant delays between hearings in the District Court and the entry
of orders in this case. The adjudication was continued after the 20 October 2020 hearing in
an order entered 25 November 2020; after a 17 November 2020 hearing in an order entered
1 February 2021; after a 20 January 2021 hearing in an order entered 19 February 2021;
after a 17 February 2021 hearing in an order entered 15 March 2021; after a 17 March 2021
hearing in an order entered 27 April 2021; after a 14 April 2021 hearing in an order entered
7 June 2021; after a 12 May 2021 hearing in an order with an illegible file stamp, signed on
23 August 2021; after a 9 June 2021 hearing in an order entered 1 September 2021 in
which Judge Olivera was substituted for the previously presiding judge; and after a 14 July
2021 hearing in an order also entered 1 September 2021.
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assessment and was later allowed visitation again; Mother was arrested; and Dallas
was ultimately placed in foster care.3 Both CCDSS and Father filed motions for
review; CCDSS filed its first motion on or about 1 March 2021 and its second motion
approximately 4 June 2021.4 Father apparently filed his motion for review prior to
the 9 June 2021 hearing but the record does not indicate this motion was ever heard
by the trial court and the trial court’s order does not address the motion. CCDSS’s
first motion was granted after Mother’s arrest and Dallas was removed from her
home, CCDSS took a voluntary dismissal on its second motion at the 9 June 2021
hearing, and the record does not show whether Father’s motion for review was ever
ultimately heard or ruled upon by the trial court.
¶7 Almost one year after the filing of the petition, the adjudicatory hearing was
finally held 17 August 2021 in Cumberland County District Court.5 The trial court
3 The trial court’s orders on continued nonsecure custody which continued the
adjudicatory hearing in this case are not discussed in full here because the trial court did
not incorporate these prior orders into its final Adjudication and Disposition Order.
4 CCDSS’s second motion for review and Father’s motion for review are not in the
record on appeal. CCDSS’s second motion is discussed in the trial court’s 1 September 2021
order from the 9 June 2021 hearing. Father’s motion came up for hearing on both 9 June
2021 and again on 14 July 2021. The trial court’s orders for both of these hearing dates are
dated 1 September 2021, and neither order addresses Father’s motion for review.
5 Our record does not provide any satisfactory reason for the delay of a year. This
hearing is required by law to be held within 60 days from the filing of the petition. “(c) The
adjudicatory hearing shall be held in the district at such time and place as the chief district
court judge shall designate, but no later than 60 days from the filing of the petition unless
the judge pursuant to G.S. 7B-803 orders that it be held at a later time.” N.C. Gen. Stat. §
7B-801 (2021) (effective 1 October 2011). We note that the multiple continuances through
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received stipulations of fact under North Carolina General Statute § 7B-807(a), as
stated in a written stipulation dated 21 July 2021:
1. The Cumberland County Department of Social Services
(CCDSS) received a Child Protective Services (CPS)
referral on 8/18/2020 concerning the safety of the
juvenile.
2. Respondent Mother has prior CPS history for neglect in
September of 2019, due to substance abuse and
unstable housing. The Disposition for that case was
heard on June 15, 2020; the Disposition Order was filed
on July 14, 2020.
3. Respondent Mother tested positive for THC when the
child was born. Respondent Mother initially refused for
the minor child to be tested. However, she later agreed,
and he also tested positive for THC.
4. The minor child was placed in the NICU due to low
blood sugar.
5. REMOVED.
6. Respondent Mother agreed to place the minor child with
Respondent Father upon his discharge from the
hospital.
7. [Social Worker V.C.] contacted Bladen County on
9/2/2020 to ask for a courtesy check on the Respondent
2020 appear based on North Carolina General Statute § 7B-506 (establishing procedures for
continuing hearings on nonsecure custody), but none of the trial court’s orders continuing
the adjudication reference North Carolina General Statute § 7B-803, which governs
continuances of adjudication hearings. See N.C. Gen. Stat. § 7B-803 (2021) (effective 1
October 2013) (allowing an adjudication hearing to be continued “for good cause . . . as long
as is reasonably required to receive additional evidence, reports, or assessments . . . in the
best interests of the juvenile . . . . Otherwise, continuances shall be granted only in
extraordinary circumstances when necessary for the proper administration of justice or in
the best interests of the juvenile.”).
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Father.
8. Bladen Co law enforcement arrived on the scene first.
The Bladen County Social Worker arrived a few
minutes later. They knocked on the door for a period of
time, but no one came to the door. A few minutes later,
Respondent Father pulled into the yard.
9. The Social Worker asked where the juvenile was;
Respondent Father said that the juvenile was inside of
the home. Law enforcement, the Social Worker, &
Respondent Father went inside; law enforcement & the
Social Worker observed the child in the room. When
asked, Respondent Father said that the juvenile was
under supervision & that Respondent Father was only
gone “for 30 seconds.” Neither law enforcement nor the
Social Worker saw anyone else present in the home.
(Emphasis removed.) The stipulated facts were signed by the social worker, a CCDSS
staff attorney, both parents, counsel for both parents, and the GAL attorney advocate.
The stipulated facts do not include the date Dallas was discharged from the hospital
after his birth on 17 August. In addition to the stipulated facts, the trial court also
“accepted and incorporated into evidence” Father’s Exhibit 1, comprised of the
“Bladen County Incident Report” from the Bladen County Sheriff’s Office, “Pictures
of Respondent Father’s home,” and the “Bladen County Social Worker Dictation.”
¶8 Aside from the findings on the stipulated facts and exhibits, the trial court’s
order made one additional substantive finding, apparently based upon the evidence
submitted by Father for purposes of establishing a factual basis for the adjudicatory
portion of the hearing:
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10. On September 2, 2020, Deputy [ ] and a Bladen County
Social Worker arrived at Respondent Father’s
residence. Respondent Father arrived approximately
five (5) minutes after Deputy [ ] and the Bladen County
Social Worker arrived. Once inside the residence,
Deputy [ ] and the Bladen County Social Worker
observed no one else to be in the home with the juvenile.
Based on these findings, the Court finds that the
juvenile was left unsupervised in Respondent Father’s
home.
¶9 Based solely upon these facts, the trial court adjudicated Dallas both neglected
and dependent. The trial court entered an “Adjudication and Disposition Order”
(“ADO”), (capitalization altered), on 8 November 2021 reflecting its findings from the
adjudicatory hearing on 17 August 2021.6 The trial court adopted the stipulated facts
as findings of fact “by clear, cogent, and convincing evidence,” and based upon these
stipulated facts adjudicated Dallas “dependent and neglected as defined under 7B[,]”
and moved on to the dispositional phase of the hearing. Based on the adjudicatory
findings, the trial court concluded:
1. The evidence presented rises to the level of neglect
pursuant to N.C. Gen. Stat. § 7B-101(15) in that the
juvenile did not receive proper care, supervision, or
6 We note the ADO was entered nearly 90 days after the hearing. “The order shall
be reduced to writing, signed, and entered no later than 30 days following the completion of
the hearing. If the order is not entered within 30 days following completion of the hearing,
the clerk of court for juvenile matters shall schedule a subsequent hearing at the first
session of court scheduled for the hearing of juvenile matters following the 30-day period to
determine and explain the reason for the delay and to obtain any needed clarification as to
the contents of the order. The order shall be entered within 10 days of the subsequent
hearing required by this subsection.” N.C. Gen. Stat. § 7B-807(b) (2021) (effective 1 October
2013).
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discipline from their parent, guardian, custodian, or
caretaker, and the juvenile lived in an environment
injurious to their welfare due to: Respondent Mother’s
history of substance abuse, the juvenile and Respondent
Mother testing positive for THC at the time of the
juvenile’s birth, and the juvenile being left
unsupervised by Respondent Father. . . . .
2. The evidence presented rises to the level of dependency
pursuant to N.C. Gen. Stat. § 7B-101(9) in that the
juvenile’s parent, guardian, or custodian is unable to
provide for the care or supervision of the juvenile and
lacks an appropriate alternative child care
arrangement due to: Respondent Mother’s history of
substance abuse, the juvenile and Respondent Mother
testing positive for THC at the time of the juvenile’s
birth, and the juvenile being left unsupervised by
Respondent Father. . . .
...
4. The juvenile [Dallas] is a neglected juvenile within the
meaning of N.C. Gen. Stat. § 7B-101(15), in that at the
time of the filing of the Petition, 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 their
welfare.
5. The juvenile [Dallas] is a dependent juvenile within the
meaning of N.C. Gen. Stat. § 7B-101(9) in that the
juvenile’s parent, guardian, or custodian is unable to
provide for the care or supervision of the juvenile and
lacks an appropriate alternative childcare
arrangement.
¶ 10 Father appealed and only challenges the adjudicatory portion of the ADO.
Mother did not appeal.
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II. Jurisdiction
¶ 11 The ADO is a final judgment appealable by right. N.C. Gen. Stat. § 7A-27(b)(2)
(2021) (effective 1 July 2021) (“[A]ppeal lies of right directly to the Court of Appeals
in any of the following cases: . . . (2) From any final judgment of a district court in a
civil action.); N.C. Gen. Stat. § 7B-1001(a)(3) (2021) (effective 1 October 2021) (“In a
juvenile matter under [Subchapter 1. Abuse, Neglect, Dependency], only the following
final orders may be appealed directly to the Court of Appeals: . . . (3) Any initial order
of disposition and the adjudication order upon which it is based.”). The ADO was
filed 8 November 2021 and Father timely filed his Notice of Appeal on 8 December
2021, but the Certificate of Service for Father’s Notice of Appeal was filed on 20
December 2021 and shows the Notice of Appeal was untimely served on 15 December
2021. See N.C. R. App. P. 3.1(b) (requiring a notice of appeal to conform with N.C.
Gen. Stat. § 7B-1001); N.C. Gen. Stat. § 1A-1, Rule 5 (2021).
¶ 12 Father filed a Petition for Writ of Certiorari pursuant to Rule 21
acknowledging his “right to prosecute an appeal has been lost by failure to take timely
action.” Neither CCDSS or the Guardian ad litem filed a response to Father’s PWC.
We exercise our discretion and grant Father’s petition. See N.C. R. App. P. 21; State
v. Gardner, 225 N.C. App. 161, 165, 736 S.E.2d 826, 829 (2013).
III. Standard of Review
¶ 13 Father alleges the trial court erred by adjudicating Dallas neglected and
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dependent because the findings of fact do not support the trial court’s conclusions as
to neglect and dependency.
In North Carolina, juvenile abuse, neglect, and dependency
actions are governed by Chapter 7B of the General
Statutes, commonly known as the Juvenile Code. Such
cases are typically initiated when the local department of
social services (DSS) receives a report indicating a child
may be in need of protective services. See N.C.G.S. §§ 7B–
301, –302 (2005). DSS conducts an investigation, and if the
allegations in the report are substantiated, it files a
petition in district court alleging abuse, dependency, or
neglect. See Id. §§ 7B–302, –400, –403 (2005). The first
stage in such proceedings is the adjudicatory hearing. See
Id. § 7B–807 (2005). If DSS presents clear and convincing
evidence of the allegations in the petition, the trial court
will adjudicate the child as an abused, neglected, or
dependent juvenile. Id. § 7B–807(a). If the allegations in
the petition are not proven, the trial court will dismiss the
petition with prejudice and, if the juvenile is in DSS
custody, returns the juvenile to the parents. Id.
In re A.K., 360 N.C. 449, 454-55, 628 S.E.2d 753, 756-57 (2006). “The role of this
Court in reviewing a trial court’s adjudication of neglect and [dependency] is to
determine ‘(1) whether the findings of fact are supported by “clear and convincing
evidence,” and (2) whether the legal conclusions are supported by the findings of
fact[.]’” In re T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) (quoting In
re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)). “Clear and
convincing evidence is evidence which should fully convince. Whether a child is
[neglected or] dependent is a conclusion of law, and we review a trial court’s
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conclusions of law de novo.” In re N.K., 274 N.C. App. 5, 8, 851 S.E.2d 389, 392 (2020)
(quoting In re M.H., [272] N.C. App. [283], [286], 845 S.E.2d 908, 911 (2020)).
IV. Adjudication
A. Neglect
¶ 14 Father argues “[t]he adjudicatory evidence and findings raise two possible
concerns[,]” that Dallas was left alone for five minutes and Mother tested positive for
THC at Dallas’s birth, and “[t]aken together, both concerns are insufficient as a
matter of law to support a neglect adjudication.”
¶ 15 When the petition was filed, North Carolina General Statute § 7B-101(15)
defined a neglected juvenile as:
Any juvenile less than 18 years of age (i) who is found to be
a minor victim of human trafficking under G.S. 14-43.15 or
(ii) whose parent, guardian, custodian, or caretaker does
not provide proper care, supervision, or discipline; . . . or
who lives in an environment injurious to the juvenile’s
welfare . . . . In determining whether a juvenile is a
neglected juvenile, it is relevant whether that juvenile lives
in a home . . . where another juvenile has been subjected to
abuse or neglect by an adult who regularly lives in the
home.
N.C. Gen. Stat. § 7B-101(15) (2021) (effective 1 December 2019 to 30 September
2021). Our courts have expanded upon § 7B-101(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
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‘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 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).
In re G.C., 2022-NCCOA-452, ¶ 15. “This Court has also stated, however, ‘[w]here
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.” In re B.P.,
257 N.C. App. 424, 433, 809 S.E.2d 914, 919 (2018) (quoting In re Padgett, 156 N.C.
App. 644, 648, 577 S.E.2d 337, 340 (2003)).
¶ 16 As to Mother’s prior CPS involvement, this Court has noted that prior closed
cases, standing alone, cannot support a new adjudication of neglect as to another
child:
“[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. [1, ] 9, 822 S.E.2d [693, ]
699 [(2019)] (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)).
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
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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., ¶¶ 15-16 (emphasis in second paragraph added).
¶ 17 Father stipulated to the adjudicatory facts and does not specifically challenge
any finding of fact; the findings are therefore binding on appeal. In re R.S., 254 N.C.
App. 678, 680, 802 S.E.2d 169, 171 (2017) (“Uncontested findings of fact are
‘presumed to be supported by competent evidence and [are] binding on appeal.’”
(quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991))). We
review the trial court’s conclusions de novo to determine if they are supported by the
trial court’s findings of fact. See In re T.H.T., 185 N.C. App. at 343, 648 S.E.2d at
523; In re M.H., 272 N.C. App. at 286, 845 S.E.2d at 911.
¶ 18 The trial court accepted the stipulation, see generally N.C. Gen. Stat. § 7B-
807(a) (2021) (establishing requirements for a trial court to utilize stipulated facts in
an adjudicatory hearing), and found:
[8]a. The Cumberland County Department of Social
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Services (CCDSS) received a Child Protective Services
(CPS) referral on 8/18/2020 concerning the safety of the
juvenile.
[8]b. Respondent Mother has prior CPS history for neglect
in September of 2019, due to substance abuse and unstable
housing. The disposition for that case was heard on June
15, 2020, and the dispositional order was filed on July 14,
2020.
[8]c. Respondent Mother tested positive for THC when the
child was born. Respondent Mother initially refused for the
minor child to be tested. However, she later agreed, and he
also tested positive for THC.
[8]d. The minor child was placed in the NICU due to low
blood sugar.
[8]e. Respondent Mother agreed to place the minor child
with Respondent Father upon his discharge from the
hospital.
[8]f. [Social Worker V.C.] contacted Bladen County on
9/2/2020 to ask for a courtesy check on Respondent Father.
[8]g. Bladen County Law Enforcement arrived [at Father’s
residence] first and a Bladen County Social Worker arrived
a few minutes later. They knocked at the door for a period
of time, but no one came to the door. A few minutes later
Respondent Father pulled into the yard.
[8]h. [The Social Worker] asked Respondent Father where
the minor child was, and he indicated that he was inside
the home. Law Enforcement, the Social Worker, and
Respondent Father went inside. Law Enforcement and the
Social Worker observed the juvenile in his room. When
asked who was with the minor child the Respondent Father
indicated the juvenile was under supervision and that
Respondent Father was only gone for thirty seconds.
Neither law enforcement nor the Social Worker saw anyone
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else present in the home at that time.
(Original italics and formatting altered.) The trial court also found Father arrived at
the home “approximately five (5) minutes” after the Bladen County deputy and social
worker. The trial court then concluded:
1. The evidence presented rises to the level of neglect
pursuant to N.C. Gen. Stat. § 7B-101(15) in that 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 their welfare due to: Respondent Mother’s
history of substance abuse, the juvenile and Respondent
Mother testing positive for THC at the time of the
juvenile’s birth, and the juvenile being left
unsupervised by Respondent Father. Therefore, the
juvenile is a neglected juvenile within the meaning of
N.C. Gen. Stat. § 7B-101(15).
...
4. The juvenile [Dallas] is a neglected juvenile within the
meaning of N.C. Gen. Stat. § 7B-101(15), in that at the
time of the filing of the Petition, 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 their
welfare.
¶ 19 The trial court’s findings of fact do not support its conclusions of law. Finding
8(b) does not support the court’s conclusions Dallas was neglected for several reasons.
First, the stipulations did not address when the prior DSS involvement with Mother
began or what happened, other than the general reference to substance abuse and
unstable housing. The trial court’s findings do not address “‘the presence of other
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factors to suggest that the neglect or abuse’” from Mother’s prior case would be
repeated, and the court did not “assess whether there is a substantial risk of future
abuse or neglect of [Dallas] based on the historical facts of [that] case.” See In re G.C.,
¶ 16 (quotation omitted). Upon his release from the hospital after his birth, Dallas
was placed with Father, with DSS’s knowledge, and not with Mother, because both
she and Dallas tested positive for THC. There was no indication of prior DSS
involvement or drug use as to Father; instead, Dallas went home with Father when
he was released from the hospital.
¶ 20 Assuming Findings 8(c) and 8(d) are true and accurate, as we must, the trial
court does not show how these findings constitute “some physical, mental, or
emotional impairment of the juvenile or” how these findings present “a substantial
risk of such impairment as a consequence of the failure to provide ‘proper care,
supervision, or discipline’” of Dallas as to render his environment “injurious to [his]
welfare.” See id., ¶ 15 (emphasis removed); N.C. Gen. Stat. § 7B-101(15). The trial
court simply states that both Mother and Dallas tested positive for THC and that
Dallas had low blood sugar at birth. There is no finding of any relationship between
low blood sugar at birth and the positive THC test, nor how a low blood sugar level
at birth is relevant to the child’s condition months later, nor how a low blood sugar
level months prior to the petition created a “substantial risk of such impairment” at
the time the petition was filed. Nor do these findings show that Mother “[d]oes not
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provide proper care, supervision, or discipline” to Dallas or that Dallas lives in an
“environment injurious to [his] welfare.” N.C. Gen. Stat. § 7B-101(15). The trial court
must find that there were “current circumstances” that rendered Dallas’s
environment unsafe, see In re G.C., ¶ 15, and there is a logical step missing from the
trial court’s findings. Additionally, when we review “all the evidence” that might
support a finding Dallas was impaired or at substantial risk of impairment, see In re
B.P., 257 N.C. App. at 433, 809 S.E.2d at 919, the evidence does not support such a
finding. The sum of the evidence regarding Mother’s drug use and Dallas’s low blood
sugar was as recited in the trial court’s findings; there is no additional adjudicatory
evidence showing Dallas was at any further risk of harm from Mother’s prior drug
use after he was discharged from the hospital and placed in Father’s care. The
adjudicatory evidence is instead limited to these stipulations and the incident on 2
September 2020 when Dallas was briefly left alone by Father, which we address in
greater detail below.7 Findings 8(b), 8(c), and 8(d) do not support the court’s
conclusion Dallas was a neglected juvenile.
¶ 21 Findings 8(g) and 8(h) are the only findings relevant to Father’s actions. These
7 The trial court’s prior orders indicate Mother drove with Dallas while possibly
inebriated and injured a law enforcement officer when the officer attempted to take
possession of Dallas on 24 February 2021. However, the trial court did not incorporate any
of its prior orders for adjudicatory purposes. The court only found “The facts as admitted by
the parties, constitute the factual basis for this adjudication . . . .”
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address the 2 September 2020 incident when Dallas was left unattended in his crib
at Father’s home for “approximately five (5) minutes.” As to whether Findings 8(g)
and 8(h) support the trial court’s conclusion that Dallas was neglected, both Father
and the guardian ad litem discuss this Court’s decision in In re D.C., 183 N.C. App.
344, 644 S.E.2d 640 (2007), in which the trial court adjudicated a child neglected after
her mother left her alone in a hotel room for at least 30 minutes. See id. at 351-52,
644 S.E.2d at 644. When her child was “approximately sixteen months old, [the
mother] left [the child] unsupervised in a motel room where she was later found by a
motel employee.” Id. at 347, 644 S.E.2d at 641. An employee entered the mother’s
motel room after other motel guests reported the child had been “crying continuously”
and found the child alone. Id. The motel employee contacted the police, and the
mother returned after the police arrived and stated “she had been gone for only ten
or fifteen minutes.” Id. DSS took nonsecure custody of the child and filed a petition
alleging the child was neglected; the trial court later adjudicated the child and her
sibling neglected. Id. at 347-48, 644 S.E.2d at 641-42.
¶ 22 This Court held the motel incident, alongside “numerous additional findings[,]”
proved by clear and convincing evidence, could “support [the trial court’s] conclusion
that [the child] is a neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(15).”
Id. at 351, 644 S.E.2d at 644. In In re D.C., there was clear and convincing evidence
the mother left the child at the motel. A hotel clerk testified he found the child
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“sitting alone on the floor beside the door crying[,]” and “approximately thirty
minutes elapsed between the time he received the complaint and the time he called
the police[,] [and] [the mother] did not return to the motel before the police arrived.”
Id. at 351-52, 644 S.E.2d at 644. The incident also occurred at approximately 4 a.m.
Id. at 353, 644 S.E.2d at 645. The trial court made four findings detailing the
incident, and this Court found the findings supported the conclusion the child was
neglected because the child was exposed to “an injurious environment that put [her]
in an unacceptable risk of harm and emotional distress.” Id. (alteration in original).
¶ 23 This case is distinguishable from In re D.C. Here, the stipulated facts indicate
Dallas was alone, sleeping in his crib at his Father’s home, for a very brief period of
time. The trial court found “Respondent Father arrived approximately five (5)
minutes after” the Bladen County deputy and social worker arrived. The five-minute
period Dallas was unsupervised is notably less than the 30-minute period testified to
by the clerk in In re D.C. Additionally, the child in In re D.C. was left in a hotel room
at 4:00 a.m., not her own crib at home in the early evening. At 16 months old, the
child in In re D.C. was capable of exploring and encountering various hazards and
was in significant distress when she was found by the front desk clerk. See id. at 351,
644 S.E.2d at 644 (“When [the clerk] entered room 214 he found [the child] sitting
alone on the floor beside the door crying.”). Here, the stipulated facts state the Bladen
County deputy and social worker simply “observed the child in the room.” There is
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no indication Dallas was in distress or in circumstances where he may be subject to
risk from being left alone for five minutes. The trial court did not make any finding
that Dallas was impaired or disturbed by his Father’s brief absence, unlike the child
in In re D.C. The trial court also did not make any finding that Dallas was at a
“substantial risk of harm” as a consequence of Father’s brief absence, see In re G.C.,
¶ 15; the court’s Finding 10 merely states Dallas was “left unsupervised.” Indeed,
based upon the stipulations and other adjudicatory evidence, there is no indication
Dallas was at any more risk than he would have been if Father were sleeping in
another room of the house. The trial court’s Findings 8(g), 8(h), and 10 do not support
its conclusions that Dallas was a neglected juvenile.
¶ 24 CCDSS, relying on N.C. Gen. Stat. § 14-318 (2021) (establishing a Class 1
misdemeanor for leaving a child under 8 years old alone while confined in a building
or dwelling due to the potential risk of exposing the child to fire), argues it “would be
reasonable to conclude that leaving a juvenile under the age of eight (8) in a home
unsupervised is per se neglect when taking into account the criminal statute.
Therefore, the trial court properly concluded that Dallas received improper
supervision and was exposed to a substantial risk of harm.” This argument is not
persuasive. First, CCDSS did not make this argument before the trial court. On
appeal, CCDSS argues we should use the criminal statutes to define what constitutes
neglect of a juvenile, but the definition of neglect is provided by North Carolina
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General Statute § 7B-101(15). Certainly, evidence of the actual commission of a crime
involving a child may be relevant to an adjudication of neglect or dependency, but
CCDSS’s argument here is merely hypothetical. The purpose of Chapter 7B is to
“provide procedures for the hearing of juvenile cases,” to “develop a disposition in
each juvenile case that reflects consideration of the facts,” to protect juveniles by
means that respect traditional family rights, to “provide standards for the removal,
when necessary, of juveniles from their homes . . . consistent with preventing the
unnecessary or inappropriate separation of juveniles from their parents,” and to
“provide standards . . . ensuring that the best interests of the juvenile are of
paramount consideration by the court . . . .” N.C. Gen. Stat. § 7B-100 (2021)
(emphasis added). Section 14-318 does not establish standards applicable to juvenile
proceedings under Chapter 7B, and we do not read § 7B-101(15) to require the use of
criminal statutes to define neglect because our General Assembly has expressly
divided the two without reference to each other. To illustrate, § 7B-101(1) extensively
utilizes General Statutes Chapter 14 to define “abused juveniles,” but § 7B-101(15)
does not reference any section of Chapter 14 other than § 14-43.15 (establishing child
trafficking as grounds for neglect), which is inapplicable here. See generally N.C.
Gen. Stat. § 7B-101. We see no reason to link two distinct Chapters of our General
Statutes when our legislature intentionally drafted § 7B-101(15) without reference to
Chapter 14 when it easily could have chosen to, particularly where this connection
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was first argued on appeal. See Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d
513, 517 (2001) (“The principal goal of statutory construction is to accomplish the
legislative intent.”).
¶ 25 Second, Father asserts, and we agree, that a per se rule of neglect as proposed
by CCDSS would result in harsh, undesirable consequences. Under CCDSS’s
proposed per se rule even a moment’s lack of supervision could result in an
adjudication of neglect under Chapter 7B every time a juvenile’s parent or parents
stepped outside for a few minutes to check the mail, let out a pet dog, or bring in the
groceries from the car. Such a rule is directly contrary to the purpose of Chapter 7B
as described in § 7B-100, “[t]o provide standards for the removal, when necessary, of
juveniles from their homes and for the return of juveniles to their homes consistent
with preventing the unnecessary or inappropriate separation of juveniles from their
parents.” N.C. Gen. Stat. § 7B-100 (emphasis added). CCDSS’s proposed rule would
result in “neglect” every time a juvenile’s parent steps out of the home to complete
the most minimal of household tasks, even if the child is left safely sleeping in his
crib. “[W]here a literal interpretation of the language of a statute will lead to absurd
results, or contravene the manifest purpose of the Legislature, as otherwise
expressed, the reason and purpose of the law shall control and the strict letter thereof
shall be disregarded.” Mazda Motors of America, Inc. v. Southwestern Motors, Inc.,
296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979) (quoting State v. Barksdale, 181 N.C.
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621, 107 S.E. 505 (1921)). Chapter 7B is not intended to punish parents; it is intended
to ensure the wellbeing of juveniles. See In re Montgomery, 311 N.C. 101, 109, 316
S.E.2d 246, 252 (1984) (holding, in a termination of parental rights case, “In
determining whether a child is neglected, the determinative factors are the
circumstances and conditions surrounding the child, not the fault or culpability of the
parent.” (emphasis added)).
¶ 26 The trial court’s findings do not support its conclusions that Dallas was
neglected. The findings do not establish Father did not provide “proper care,
supervision, or discipline” to Dallas or that Dallas “lives in an environment injurious
to [his] welfare[.]” N.C. Gen. Stat. § 7B-101(15). The findings at most support the
conclusion that Dallas’s Mother had a prior substance abuse problem and Dallas was
exposed to THC during the pregnancy, but Dallas was then discharged from the
hospital into Father’s care. There are no findings that Father’s home was
inappropriate in any way and no findings of substance abuse by Father. Instead,
Dallas was left unattended for “approximately five (5) minutes” in his own home and
nothing more. We decline to adopt CCDSS’s proposed per se rule as to juvenile neglect
based upon a child being left unsupervised in a safe place in his own home for five
minutes because it is inconsistent with the purposes of Chapter 7B. The portion of
the order adjudicating Dallas neglected is reversed.
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B. Dependency
¶ 27 Father also challenges the trial court’s adjudication of Dallas as a dependent
juvenile. Again, the trial court’s findings of fact do not support its conclusions
adjudicating Dallas dependent.
¶ 28 A dependent juvenile is “in need of assistance or placement because (i) the
juvenile has no parent, guardian, or custodian responsible for the juvenile’s care or
supervision or (ii) the juvenile’s parent, guardian, or custodian is unable to provide
for the juvenile’s care or supervision and lacks an appropriate alternative child care
arrangement.” N.C. Gen. Stat. § 7B-101(9) (2021) (effective 1 December 2019 to 30
September 2021). “In determining whether a juvenile is dependent, the trial court
must address both (1) the parent’s ability to provide care or supervision, and (2) the
availability to the parent of alternative childcare arrangements.” In re Q.M., 275
N.C. App. 34, 38-39, 852 S.E.2d 687, 691 (2020) (emphasis in original) (quoting In re
T.B., C.P., & I.P., 203 N.C. App. 497, 500, 692 S.E.2d 182, 184 (2010)). “Findings of
fact addressing both prongs must be made before a juvenile may be adjudicated as
dependent, and the court’s failure to make these findings will result in reversal of the
court.” Id. at 42, 852 S.E.2d at 693. “‘Moreover, although N.C.G.S. § 7B-101(9) uses
the singular word “the [ ] parent” when defining whether “the [ ] parent” can provide
or arrange for adequate care and supervision of a child, our caselaw has held that a
child cannot be adjudicated dependent where she has at least “a parent” capable of
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doing so.’” Id. (quoting In re V.B., 239 N.C. App. [340, ] 342, 768 S.E.2d [867, ] 868
[(2015)]).
¶ 29 Father again does not challenge any specific findings of fact. Father raises
general arguments that “the adjudicatory evidence and the court’s findings” do not
support its conclusions. The trial court’s conclusions of law must be supported by its
findings of fact. See id. The trial court’s findings are binding on appeal, see In re
R.S., 254 N.C. App. at 680, 802 S.E.2d at 171; Koufman 330 N.C. at 97, 408 S.E.2d at
731 (“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.”), and
thus we address whether the trial court’s conclusions are supported by the findings.
¶ 30 The trial court’s conclusions as to dependency state:
2. The evidence presented rises to the level of dependency
pursuant to N.C. Gen. Stat. § 7B-101(9) in that the
juvenile’s parent, guardian, or custodian is unable to
provide for the care or supervision of the juvenile and
lacks an appropriate alternative child care
arrangement due to: Respondent Mother’s history of
substance abuse, the juvenile and Respondent Mother
testing positive for THC at the time of the juvenile’s
birth, and the juvenile being left unsupervised by
Respondent Father. Therefore, the Court finds that the
juvenile is dependent within the meaning of N.C. Gen.
Stat. § 7B-101(9).
...
5. The juvenile [Dallas] is a dependent juvenile within the
meaning of N.C. Gen. Stat. § 7B-101(9) in that the
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juvenile’s parent, guardian, or custodian is unable to
provide for the care or supervision of the juvenile and
lacks an appropriate alternative childcare
arrangement.
The trial court repeats the same findings to support its conclusions Dallas was
dependent as it did to support its conclusions that Dallas was neglected.
These findings do not address the requirements of North Carolina General Statute §
7B-101(9), and do not support the trial court’s conclusions. See In re Q.M., 275 N.C.
App. at 38-39, 852 S.E.2d at 691 (“In determining whether a juvenile is dependent,
the trial court must address both (1) the parent’s ability to provide care or
supervision, and (2) the availability to the parent of alternative childcare
arrangements.”).
¶ 31 The trial court’s findings recite that Mother had prior CPS history, she and
Dallas tested positive for THC at Dallas’s birth, Dallas was placed in the NICU
because he had low blood sugar, and that after Dallas was discharged from the
hospital Father briefly left the home at the same time a courtesy check was made by
a Bladen County deputy and social worker. These findings show Mother was not
capable of providing care for Dallas when he was discharged from the hospital, but
she did have an appropriate “alternative childcare arrangement”: Father. Dallas was
discharged into his care. The only finding regarding Father is that he left Dallas
alone in his crib for “five minutes.” There was no indication his home was
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inappropriate or that Father had not provided proper care for Dallas since his release
from the hospital. There was no indication Dallas was subjected to any risk from the
five minutes alone in his room. We do not suggest a parent should leave a newborn
alone in the home for any particular period of time, but under the minimal facts as
stipulated here, these findings do not establish both of Dallas’s parents (1) were
incapable of providing care or supervision to Dallas and (2) lacked appropriate
alternative childcare arrangements. See N.C. Gen. Stat. § 7B-101(9); In re Q.M., 275
N.C. App. at 38-39, 852 S.E.2d at 691.
A review of the adjudication and disposition order entered
in the instant case reveals that the court failed to make any
findings regarding the availability to the parent of
alternative child care arrangements. Where previous case
law makes clear that such a finding is required, we must
reverse the lower court as to the finding and conclusion
that [Dallas] is a [neglected and] dependent juvenile . . . .
In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d 644, 648 (2007) (emphasis added).
Because the findings do not establish either prong required by N.C. General Statute
§ 7B-101(9) and our case law, where they must address both, see In re Q.M., 275 N.C.
App. at 38-39, 852 SE.2d at 691, the trial court’s conclusions adjudicating Dallas
dependent are unsupported and must be reversed. See id. at 42, 852 S.E.2d at 693-
94.
V. Disposition
¶ 32 Because we reverse the adjudicatory portion of the trial court’s ADO, there is
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no legal basis for disposition and we must also necessarily vacate the dispositional
portion. See id. at 42-43, 852 S.E.2d at 694 (citing In re S.C.R., 217 N.C. App. 166,
170, 718 S.E.2d 709, 713 (2011)).
VI. Conclusion
¶ 33 We conclude the trial court’s findings do not support its conclusions
adjudicating Dallas neglected and dependent. We reverse the trial court’s conclusions
in the ADO as to the adjudications of neglect and dependency of Dallas. The trial
court’s findings were inadequate to establish Dallas neglected under § 7B-101(15) or
dependent as defined by § 7B-101(9). The adjudicatory portion of the ADO is
reversed, and the dispositional portion of the ADO is necessarily vacated.
REVERSED IN PART; VACATED IN PART.
Judges ZACHARY and MURPHY concur.