In re: C.M.G.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-609
Filed: 6 October 2015
Moore County, No. 14 JA 67
IN THE MATTER OF: C.M.G.
Appeal by respondents from order entered 23 February 2015 by Judge Robert
M. Wilkins in Moore County District Court. Heard in the Court of Appeals 14
September 2015.
R. Ward Medlin for petitioner-appellee Moore County Department of Social
Services.
Womble, Carlyle Sandridge & Rice, LLP, by Janie H. Morgan, for guardian ad
litem.
Wait Law, P.L.L.C., by John L. Wait, for respondent-appellant father.
J. Thomas Diepenbrock for respondent-appellant mother.
DIETZ, Judge.
Respondents appeal from an order adjudicating their son “Carl”1 to be an
abused, neglected, and dependent juvenile. In October 2013, the trial court
1 We use pseudonyms to protect the privacy of C.M.G. and his siblings.
IN RE: C.M.G.
Opinion of the Court
adjudicated two other juveniles then living with Respondents to be abused and
neglected. The trial court found that Respondents had engaged in multiple acts of
domestic violence in front of the juveniles; that Respondent-mother had thrown
objects at the children and otherwise endangered them; and that Respondent-father
had sexually abused one of the juveniles, a five-year-old girl.
Carl was born while court proceedings involving the other juveniles were
ongoing. Respondent-mother concealed her pregnancy from DSS and traveled to a
hospital in another county for Carl’s delivery.
DSS later learned of Carl’s birth, took him into nonsecure custody, and filed a
juvenile petition alleging that he was abused, neglected, and dependent. The trial
court adjudicated Carl abused, neglected, and dependent based on the prior abuse
and neglect of the other juveniles previously under Respondents’ care, as well as the
near total failure of Respondents to address the conditions and safety concerns
identified in that earlier juvenile proceeding.
As explained below, we affirm the trial court adjudications of neglect and
dependency. There is ample evidence in the record to support the trial court’s
findings on those grounds, and those findings, in turn, support the trial court’s
conclusions of law. But we reverse the adjudication of abuse. Unlike the statutory
language governing neglect, the statutory standard for abuse does not provide that
abuse of other juveniles in the same home is automatically relevant. Instead, the
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petitioner must show a connection between the past abuse and the risk of future
abuse to the juvenile in question. Here, the record does not contain sufficient
evidence to support the trial court’s conclusion that, based on Respondent-father’s
past sexual abuse of a five-year-old girl, there was a substantial risk that
Respondents would inflict serious physical injury on infant Carl. Accordingly, we
reverse the adjudication of abuse but affirm all remaining portions of the trial court’s
order.
Facts and Procedural History
Respondents are married. They previously resided with their daughter
“Martha,” who was born in March 2007, and Respondent-mother’s daughter “Beth,”
who was born in May 2000. In January 2013, the Moore County Department of Social
Services (“DSS”) obtained nonsecure custody of Martha and Beth after initiating
juvenile abuse and neglect proceedings. In October 2013, the trial court adjudicated
Martha to be neglected and Beth to be neglected and abused. The court found that
Respondents had engaged in multiple acts of domestic violence in front of the girls;
that Respondent-mother had thrown objects at both girls and particularly at Beth;
that Respondents had operated a “sham” home school since July 2011, leaving both
girls “substantially behind and below grade level[;]” and that Respondent-father had
sexually abused five-year-old Martha “on more than one occasion.” Based on these
adjudications, the court ordered Respondents to be placed on the list of responsible
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Opinion of the Court
individuals maintained by the Department of Human Services pursuant to N.C. Gen.
Stat. § 7B-311(b) (2013).
Respondents refused to cooperate with DSS or comply with the trial court’s
orders and they failed to obtain the necessary evaluations, treatment, and other
services required for reunification with Martha and Beth. On 5 March 2014, DSS
moved to terminate Respondents’ parental rights as to Martha and Beth. The trial
court entered orders on 14 May 2014 terminating Respondents’ parental rights on
grounds of neglect, dependency, and willful failure to make reasonable progress to
correct the conditions that led to Martha and Beth’s removal from their home. See
N.C. Gen. Stat. § 7B-1111(a)(1), (2), (6) (2013).
Carl was born in April 2014, approximately one month before the hearing on
DSS’s petition to terminate Respondents’ parental rights to Martha and Beth.
Respondent-mother concealed her pregnancy from DSS, traveling to a hospital in
another county for Carl’s delivery. When she was placed in jail for indirect contempt
of court on 9 July 2014, Respondent-mother left Carl with Respondent-father.
On 11 July 2014, DSS received a child welfare report regarding an infant child
in Respondent-father’s care. DSS located Carl in Mecklenburg County, North
Carolina on 15 July 2014, took him into nonsecure custody, and filed a juvenile
petition alleging that he was abused, neglected, and dependent. The petition cited
Respondents’ prior abuse and neglect of Carl’s sisters and Respondents’ subsequent
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Opinion of the Court
failure to address the conditions and safety concerns that led to the termination of
their parental rights as to the two girls.
After hearing evidence on 8 and 9 January 2015, the trial court entered an
order adjudicating Carl an abused, neglected, and dependent juvenile on 23 February
2015. The court maintained Carl in DSS custody and granted Respondents two hours
of weekly supervised visitation. Respondents each filed timely notices of appeal from
the adjudication and disposition order.
Analysis
I. Appellate Jurisdiction
Respondent-mother has filed a petition for writ of certiorari to review the trial
court’s order in the event we find a jurisdictional defect in her notice of appeal. By
order entered 13 August 2015, this Court denied the guardian ad litem’s motion to
dismiss Respondent-mother’s appeal for failure to file a properly signed notice within
the thirty-day period prescribed by N.C. Gen. Stat. § 7B-1001(b) (2013).
Under N.C.R. App. P. 3.1(a), a respondent’s notice of appeal in an abuse,
neglect, or dependency proceeding must be signed by both the respondent and her
trial counsel, if she is represented by counsel. However, “if a party technically fails
to comply with procedural requirements in filing [a notice of appeal] with the court,
the court may determine that the party complied with the rule if the party
accomplishes the ‘functional equivalent’ of the requirement.” Von Ramm v. Von
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Ramm, 99 N.C. App. 153, 157, 392 S.E.2d 422, 424 (1990) (quoting Torres v. Oakland
Scavenger Co., 487 U.S. 312, 317, 101 L.Ed.2d 285, 291 (1988)).
Here, Respondent-mother filed two timely notices of appeal from the order
entered on 23 February 2015. The first notice is only signed by Respondent-mother,
while the second notice is only signed by counsel. We conclude that Respondent-
mother’s two timely filed notices—each bearing one of the two signatures required by
Rule 3.1(a)—amount to the “functional equivalent” of a proper notice of appeal.
Accordingly, we deny Respondent-mother’s petition for writ of certiorari as moot.
II. Challenged Factual Findings
This Court reviews an adjudication of abuse, neglect, or dependency under
N.C. Gen. Stat. § 7B-807 (2013) to determine whether the trial court’s findings of fact
are supported by “clear and convincing competent evidence” and whether the court’s
findings, in turn, support its conclusions of law. In re Helms, 127 N.C. App. 505, 511,
491 S.E.2d 672, 676 (1997). Findings supported by competent evidence as well as all
uncontested findings are binding on appeal. Id. We review a trial court’s conclusions
of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
We agree with Respondent-mother’s observation that several of the trial
court’s findings of fact amount to conclusions of law, specifically those portions of
Findings 65, 66, 68, 69, and 71 stating that Carl meets the legal standards for abuse,
neglect, and dependency under N.C. Gen. Stat. § 7B-101(1), (9) and (15) (2013).
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Typically, however, a trial court’s misclassification of conclusions of law as findings
of fact “is merely an inconvenience” to the reviewing court. State ex rel. Utilities
Comm’n v. Eddleman, 320 N.C. 344, 352, 358 S.E.2d 339, 346 (1987). If a contested
finding is more properly characterized as a conclusion of law, we will apply the
appropriate standard of review and determine whether the remaining facts found by
the court support the conclusion. See In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d
404, 409 (2007).
Here, Respondent-mother claims that Finding of Fact 69 is not supported by
the evidence because the trial court refers to a “failure of the parents to pursue
recommended services to alleviate safety concerns.” Finding 69 reads as follows:
That the juvenile [Carl]’s physical mental and emotional
status is substantially at risk of future neglect based on the
historical facts of cases involving [Martha] and [Beth] and
the failure of the parents to pursue recommended services
to alleviate safety concerns; there is a substantial
likelihood of future neglect.
Respondent-mother does not contest that Respondents failed to comply with the
services recommended to alleviate the safety concerns for Martha and Beth. But she
contends that there is no evidence that respondents “have failed to pursue
recommended services in this case . . . .” (Emphasis added). We reject this argument
because the trial court need not limit its findings to services recommended to address
the safety of Carl. Respondents’ failure to address safety concerns for Martha and
Beth while those children lived with Respondents led, at least in part, to the
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termination of their parental rights to those children. Accordingly, Finding 69 is
relevant to determining whether there is a likelihood of future neglect with respect
to Carl.
Respondent-mother next challenges the portion of Finding of Fact 68 stating
that Carl was “living in a home where another juvenile, namely [Martha] had been
Abused and where [Martha] and [Beth] had been Neglected.” At the beginning of
Carl’s adjudicatory hearing on 8 January 2015, the trial court admitted into evidence
certified copies of the adjudicatory, permanency planning, and termination orders
entered in that earlier proceeding. Although Respondent-father challenged the
relevance of the permanency planning order,2 Respondents did not object to the
orders addressing Martha and Beth’s original adjudications and the subsequent
termination of Respondents’ parental rights. We thus find ample competent evidence
to support the contested Finding.
III. Challenged Conclusions of Law
In challenging the trial court’s conclusions that Carl is abused, neglected, and
dependent, respondents raise the general complaint that the court based these
2 Respondent-father challenged the relevance of the order due to the lesser standard of proof
applicable to permanency planning hearings and the “lapse of time” since the hearing. The trial court
overruled his objections, concluding that “[t]he issue as to the standard of proof goes to the weight of
the evidence not its admissibility.” While respondent-mother does not expressly raise the issue as a
basis for her appeal, it is well established that the trial court “is presumed to have disregarded any
incompetent evidence” when taking judicial notice of findings of fact in its prior orders. In re W.L.M.,
181 N.C. App. 518, 523, 640 S.E.2d 439, 442 (2007).
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Opinion of the Court
adjudications largely upon findings made in its previous orders relating to Martha
and Beth. We note, however, that the court did not rely wholly on its prior orders
but received live testimony from multiple witnesses, including Respondents. Cf. In
re A.M., 192 N.C. App. 538, 542, 665 S.E.2d 534, 536 (2008) (concluding that “the
trial court failed to hold a proper, independent termination hearing” where DSS
called no witnesses and the court relied “solely on the written reports of DSS and
the guardian ad litem, prior court orders, and oral arguments by the attorneys”).
The mere fact that the court made certain findings about respondents’ prior conduct
based on its previous orders does not render its adjudications invalid.
A. Adjudication of Neglect
Respondents both argue that the trial court’s findings do not support its
conclusion that Carl was a neglected juvenile. Respondent-father claims that the
trial court relied entirely upon “evidence stemming from the prior cases” involving
Martha and Beth and that “there was no other evidence that Carl was neglected at
the time DSS filed its petition.” While Respondent-mother concedes that “the prior
orders contain findings and conclusions which are relevant to the issues of whether
Carl is an abused, neglected and dependent juvenile,” she contends that these prior
proceedings “are by no means dispositive.”
Our juvenile code defines a neglected juvenile, inter alia, as one “who does not
receive proper care, supervision, or discipline from the juvenile’s parent . . . or who
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Opinion of the Court
lives in an environment injurious to the juvenile’s welfare.” N.C. Gen. Stat. § 7B-
101(15). The juvenile must experience “some type of physical, mental, or emotional
impairment or a substantial risk of such impairment” in order to be adjudicated
neglected. In re C.M., 183 N.C. App. 207, 210, 644 S.E.2d 588, 592 (2007). However,
“[i]n 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).
The statute thus “allows the trial court to consider the substantial risk of impairment
to the remaining children when one child in a home has been subjected to abuse or
neglect.” In re McLean, 135 N.C. App. 387, 394, 521 S.E.2d 121, 126 (1999). The trial
court has discretion in determining the weight to be given evidence of prior neglect of
another child in the home. Id., 135 N.C. App. at 395, 521 S.E.2d at 126.
The trial court concluded that Carl was a neglected juvenile because, “at the
time of the filing of the petition,” he “did not or would not receive proper care,
supervision, or discipline from [his] parent or caregiver and lives or would live in an
environment injurious to his welfare . . . .” The court went on to weigh the significance
of Respondents’ prior abuse and neglect of Martha and Beth, a proper exercise of its
discretion in applying N.C. Gen. Stat. § 7B-101(15):
13. That NCGS 7B-101(15) does not mandate a conclusion
of neglect, but allows discretion in determining the weight
to be given to such evidence, and based upon the evidence
presented, the Court concludes that the juvenile is a
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neglected juvenile and there is a substantial risk of future
abuse or neglect based on the historical facts of the case.
14. That based upon the failures of the parents to access
services and follow through with treatment
recommendations or work their respective case plans there
is a high probability of repeat abuse and neglect of the
juvenile [Carl].
We hold that the trial court’s findings are sufficient to support its conclusion
that Carl was neglected within the meaning of N.C. Gen. Stat. § 7B-101(15). The
findings recount Respondent-father’s sexual abuse of Martha; the girls’ exposure to
Respondents’ recurrent domestic violence, including violence by Respondent-mother
toward Beth; and Respondents’ denial of an education to the girls through a “sham”
home school. The court made additional findings regarding Respondents’ refusal of
services, including Respondent-mother’s failure to obtain a psychological assessment
and Respondent-father’s failures to obtain a Sex Offender Specific Evaluation or to
obtain treatment for domestic violence and his diagnoses of post-traumatic stress
disorder, depression, and “delusional disorder, persecutory type.” The findings
further note Respondents’ attempts to deceive the trial court through the submission
of fraudulent documents and false testimony, as well as Respondent-mother’s
concealment of Carl’s existence from DSS and her placement of infant Carl in
Respondent-father’s care when she was jailed for contempt in July 2014. These
findings support the trial court’s conclusion of neglect.
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B. Adjudication of Abuse
Respondents next contest Carl’s adjudication as an abused juvenile. Claiming
the trial court relied “only on [his] prior alleged sexual misconduct” with Martha,
Respondent-father argues that the court heard no evidence and made no findings
tending to show “that Carl was at a substantial risk of also suffering abuse” or that
Respondent-father “was at risk of sexually assaulting a boy instead of a girl.” He also
points to the court’s own finding “that there was no evidence showing that Carl had
been mentally, physically, or emotionally abused by [Respondents].” Respondent-
mother echoes these arguments and cites the testimony of DSS social worker
supervisor Beth Riley that Carl “looked fine” and did not show any signs of
mistreatment when he was taken into custody in July 2014. The GAL responds that
Respondent-mother’s act of leaving Carl “in the sole care of [Respondent-father] . . .
who had sexually abused Martha supports the trial court’s conclusion that there was
a substantial risk of serious injury to Carl.”
The trial court based its adjudication of abuse on N.C. Gen. Stat. § 7B-
101(1)(b), under which a juvenile is deemed to be “abused” if his parent or caretaker
“[c]reates or allows to be created a substantial risk of serious physical injury to the
juvenile by other than accidental means[.]” In support of its conclusion that
Respondents “created or allowed to be created a substantial risk of serious physical
injury to [Carl] by other than accidental means,” the court found as follows:
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60. . . . [Respondent-father] previously sexually assaulted
[Martha] on more than one occasion; there were multiple
acts of domestic violence between the respondent [m]other
and respondent father in the presence of [Martha] and
[Beth]; that the respondent mother threw items at [Beth]
and that the mother left her three (3) month old child [Carl]
alone and in the sole care of [respondent-father] who had
been identified as a sex offender and had not complied with
the court order to secure a Sex Offender Specific
Evaluation and treatment.
The court acknowledged the lack of “actual evidence of physical or mental or
emotional abuse to [Carl] at this time,” but nonetheless found “that his physical,
mental and emotional condition is endangered to becoming impaired.”
Unlike the statutory definition of “neglected juvenile,” the definition of “abused
juvenile” in N.C. Gen. Stat. § 7B-101(1) does not expressly state that the fact that the
juvenile lives in the home where another juvenile has been subjected to abuse by an
adult who regularly lives in the home is relevant to the analysis. As a result, the past
abuse of another juvenile living in the home can support an adjudication of abuse
only if there is evidence connecting that past abuse with a likelihood of future abuse
to the juvenile in question. Here, the record does not contain sufficient evidence to
suggest that Respondent-father’s past sexual abuse of Martha created a substantial
risk that Respondent-father would inflict “serious physical injury” on Carl.
Accordingly, we reverse the adjudication of abuse.
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C. Adjudication of Dependency
Respondents also challenge the sufficiency of the trial court’s factual findings
in support of its conclusion that Carl is a dependent juvenile as defined by N.C. Gen.
Stat. § 7B-101(9) (2013). A “dependent juvenile” is defined, in pertinent part, as one
whose “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). In order to sustain an adjudication of dependency, “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 child care arrangements.” In re P.M., 169
N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).
Respondent-father argues that the trial court “made no ultimate finding
explaining why [Respondents] would be incapable of providing care and supervision”
for Carl. Therefore, he contends, “the findings of fact in this case fail to support a
conclusion that Carl was dependent.” Respondent-mother likewise asserts that,
“other than a conclusory statement that the parents were incapable of caring for Carl,
there w[ere] no specific findings to support that conclusion.” Neither Respondent
contests the sufficiency of the court’s findings regarding the second prong of
dependency, i.e., their lack of an alternative child care arrangement for Carl.
We reject Respondents’ arguments and hold that the trial court’s findings
support its conclusion of dependency. Those findings recount Respondents’ history
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of domestic violence and neglectful and abusive conduct toward Carl’s sisters which
resulted in the termination of their parental rights as to the girls in May 2014. The
findings further reflect Respondents’ refusal to address the issues that led to Martha
and Beth’s removal from their home, as well as their repeated attempts to deceive
DSS and the court and their deliberate concealment of Carl’s birth in April 2014. At
the time DSS filed the juvenile petition in this case, Respondent-mother was in jail
and had yet to obtain a court-ordered psychological evaluation. Respondent-father
had failed to pursue recommended treatment for domestic violence and his serious
mental health diagnoses. Moreover, having sexually abused his five-year-old
daughter, Respondent-father had refused to obtain a sex offender evaluation to assess
his risk of recidivating with other children. The trial court’s findings also note that
Carl “exhibit[ed] some developmental delays with respect to mobility, swallowing and
hearing” at the time he was taken into DSS custody.
We hold that these findings are sufficient to support the court’s conclusion
that respondents “are unable to appropriately supervise” Carl for purposes of N.C.
Gen. Stat. § 7B-101(9). See In re T.B., 203 N.C. App. 497, 506, 692 S.E.2d 182, 188
(2010) (developmental delays can support conclusion that parent is unable to care for
a child); see also In re P.M., 169 N.C. App. at 428, 610 S.E.2d at 406 (“a failure to
comply with court-ordered protection plans may establish an inability to care for or
supervise a child”).
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Conclusion
For the reasons discussed above, we reverse the trial court’s adjudication that
Carl is an abused juvenile under N.C. Gen. Stat. 7B-101(1)(b). In all other respects,
we affirm the trial court’s order.
AFFIRMED IN PART; REVERSED IN PART.
Judges ELMORE and DILLON concur.
Report per Rule 30(e).
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