In re L.B.B.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1260
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
L.B.B. Harnett County
No. 13 J 29
Appeal by respondent-mother from orders entered 14 June and
30 July 2013 by Judge Addie H. Rawls in Harnett County District
Court. Heard in the Court of Appeals 5 May 2014.
Duncan B. McCormick for petitioner-appellee Harnett County
Department of Social Services.
Levine & Stewart, by James E. Tanner, III, for respondent-
appellant mother.
Marie H. Mobley for guardian ad litem.
BRYANT, Judge.
Respondent-mother appeals from orders adjudicating her
daughter Lori1 an abused and neglected juvenile and awarding
1
Lori is a pseudonym used to protect the identity of the
juvenile pursuant to N.C. R. App. P. 3.1(b).
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custody of Lori to the Harnett County Department of Social
Services (“DSS”). Because the District Court’s findings of fact
support an adjudication of abuse and neglect, we affirm the
Court’s orders.
Lori, born in September 2008, lived with her mother
(respondent) and step-father. On the morning of 13 January
2013, Dunn Emergency Services was dispatched to the home after
receiving a 911 call regarding Lori’s seizure activity.
Emergency paramedics reported that upon arriving at the home,
they found
[Lori] on a bed in a de-cerebrate posture
with vomitus noted outside her mouth and she
was making a choking sound. An attempt to
open her airways was not successful because
her jaw was clinched. Bruising of different
coloration was noted on her neck, arms and
chest with battle signs noted behind the
child’s ears. Her right pupil was blown,
the left pupil was constricted; both eyes
were pointing left.
The paramedics concluded that Lori had a serious, life-
threatening injury caused by significant head trauma, and
transported her to Betsy Johnson Regional Hospital. Emergency
room personnel at Betsy Johnson Regional Hospital noted that
Lori remained unresponsive and non-alert during treatment.
After being medicated and intubated at Betsy Johnson
Regional Hospital, Lori was airlifted to Duke University
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Hospital where she subsequently underwent emergency brain
surgery to treat a large subdural hematoma. Lori’s
neurosurgeons noted that the hematoma was so severe it had
pushed her brain from the right to the left side of her skull.
Lori’s subdural hematoma was also found to contain hyper acute
and acute blood, indicating that her subdural bleeding was only
a few hours old at the time of her brain surgery.
DSS filed a juvenile petition on 23 January 2013, alleging
that Lori was an abused and neglected juvenile. DSS alleged
that respondent and the step-father did not have reasonable
explanations for Lori’s life-threatening head trauma and
bruising, and that Lori’s injuries were consistent with a child
who has been abused. DSS took non-secure custody of Lori.
After hearing evidence on 31 May and 14 June 2013, the
District Court adjudicated Lori an abused and neglected juvenile
and awarded custody of Lori to DSS. Respondent appeals.
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Respondent contends the trial court’s determination that
Lori is an abused and neglected juvenile is not supported by the
findings of fact or the evidence. We disagree.
“The purpose of abuse, neglect and dependency proceedings
is for the court to determine whether the juvenile should be
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adjudicated as having the status of abused, neglected or
dependent.” In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395,
399 (2007). Accordingly, the role of this Court in reviewing a
trial court’s adjudication of neglect or abuse is to determine
“(1) whether the findings of fact are supported by ‘clear and
convincing evidence,’ and (2) whether the legal conclusions are
supported by the findings of fact.” In re Gleisner, 141 N.C.
App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted).
If this evidence exists, the findings of the trial court are
binding on appeal, even if the evidence would support a finding
to the contrary. In re McCabe, 157 N.C. App. 673, 679, 580
S.E.2d 69, 73 (2003).
A neglected juvenile is one “who does not receive proper
care, supervision, or discipline” from a parent or caretaker, or
“who lives in an environment injurious to the juvenile’s
welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2013). An abused
juvenile is defined as, inter alia, a juvenile whose 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[.]” Id. § 7B-101(1)(b) (2013).
The trial court made the following pertinent findings of
fact:
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11. Dunn Emergency Services Agency received
a call for emergency services to the home at
[] Dunn, NC at approximately 11:54 am
January 13, 2013, with the 911 call
referenc[ing] seizures. The agency’s
personnel arrived at the above residence at
approximately 11:59 am and found the
juvenile herein on a bed in a de-cerebrate
posture with vomitus noted outside her mouth
and she was making a choking sound. An
attempt to open her airways was not
successful because her jaw was clinched.
Bruising of different coloration was noted
on her neck, arms and chest with battle
signs noted behind the child’s ears. Her
right pupil was blown, the left pupil was
constricted; both eyes were pointing left.
The EMS personnel immediately noticed that
the injuries sustained by the minor child
were life threatening, picked up the child
and carried her to the ambulance, and
transported her to Betsy Johnson Regional
Hospital Emergency Room. During the time
the emergency personnel were attending the
juvenile[] she was unresponsive and not
alert.
12. The juvenile was received at the
emergency room of Betsy Johnson Hospital at
approximately 12:08 pm January 13, 2013 in
an unresponsive state; the juvenile’s step
father is recorded to have stated to the EMS
that the juvenile “was in the car and she
fell over and started having a seizure.”
The juvenile was lethargic and had de-
cerebrate posturing and was observed to have
multiple areas of bruising to the body to
include the left jaw, neck and behind the
ear and to the left abdomen, []upper arm
thoracic area of the back, hip/flank area
with small abrasion, left knee and to sup
pubic area. Contact was made with
physicians at Duke Hospital [and the
juvenile] was accepted for transfer at
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approximately 12:55 pm January 13, 2013.
The juvenile was treated, medicated and
intubated for air flight to Duke Hospital,
whose life flight unit arrived for transport
at approximately 13:28 (1:28 pm) and the
juvenile was flown to Duke.
13. The juvenile was admitted to Duke
Hospital at approximately 3:07 pm January
13, 2013 by Duke Life Flight. Upon her
arrival at Duke, the juvenile underwent an
emergency neurosurgical procedure due to a
life threatening, large right side bleed in
the subdural space between her brain and the
inner surface of her skull. The mass effect
of the subdural blood caused the child’s
brain to shift slightly from right to left
within her skull (herniation of her brain).
The subdural hematoma contained hyper acute
and acute blood which indicated that her
subdural bleed began close to the time she
was presented to Betsy Johnson Hospital —
thought to be during the early morning on
January 13, 2013 and not later than the
night before — the bleed being a few hours
old at the time of her neurosurgical
procedure.
. . .
15. The juvenile’s step father provided the
following history of events concerning the
juvenile to the medical providers, to wit:
On the day of January 13, 2013, the family
slept until approximately 11 am; after
getting up, the stepfather and the child
decided to get some coffee. He reported
that [Lori] had unbuckled her seat belt and
“she stuck her hand in the door wedge,
reaching out” and he “heard a shuffle.” He
did not see [Lori] fall, but when he turned
around he “saw her laying on the ground, on
her back” with her head “facing the front of
the car.” She looked like “she was rolling
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over onto her side and attempting to get
up.” [Lori] “grimaced,” but she didn’t cry.
The step father rubbed the back of her head
and noted “it was huge. Like something
swelling.” He buckled [Lori] in her car
seat and as he drove home [he heard] a loud
“EEEeeee noise” and saw that “[Lori] threw
her arm up.” He pulled [Lori] into the front
seat and tried to open her mouth and “blew
air into her mouth.” He stopped the car and
“took both hands and tried to pry open her
jaw.” He “spread her body out” and “tried
to force air manually. Took her lips and
blew. Took a fist on her chest and tried to
push.” When he “heard a snore come out of
her mouth” he held her and drove home. He
“ran inside, told [respondent] and laid
[Lori] on the bed.” An ambulance was called
and took [Lori] to the hospital. The
stepfather told [respondent] that while at
the gas station, [Lori] went to climb in the
car and while shutting the door, she fell
out of the car. He picked her up and on the
way home she began having a seizure. He
took her into the front seat and began CPR.
. . .
22. Pursuant to an exam by Duke
Ophthalmology of the bruising around the
juvenile’s right eye, a small number of
intra-retinal hemorrhages were observed in
her right eye (same side as the subdural
bleed) which is consistent with an impact
injury to the head.
. . .
27. The life threatening head injury to
[Lori], resulting in subdural bleeding and
right to left herniation of her brain is not
adequately explained by the alleged falling
out [of] the back seat of the family car.
The respondent mother and stepfather have
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denied that [Lori] had other recent falls or
accidents. [Lori’s] head injury and
subdural bleeding began a few hours prior to
her presentation at Betsy Johnson and Duke
Hospitals. The subdural bleeding and the
brain injury are consistent with head trauma
by non-accidental means.
28. The Respondent mother and stepfather
have been the primary caretakers of the
juvenile since August 2012 and especially
for the period of the week prior to January
13, 2013.
29. Juvenile [Lori] suffered significant
loss of speech and language skills as a
result of the injuries she received. The
juvenile benefitted greatly with the therapy
sessions received at the Vidant center and
was discharged from that center on March 12,
2013.
30. The injuries sustained by the juvenile
on or about January 13, 2013 were the result
of non-accidental trauma. But for the
immediate medical attention given to the
child by the emergency response team, the
child would have either died or been in a
vegetative state.
Of the above findings of fact, respondent challenges
finding of fact 27 as not supported by the evidence. We
conclude the finding is based upon the testimony of Dr. Karen
St. Claire, an expert in child abuse and pediatric medicine and
Director of the Duke Child Protection Team, who consulted with
Lori’s neurosurgeon Dr. Herbert Fuchs. Dr. St. Claire testified
on direct examination as follows:
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Her head injury is an injury that would
have taken [] what we call focal force, an
impact force to create. I can’t rule out
that there were rotational forces with that.
It took a fair amount of force to cause the
shearing and tearing of the vessels that
caused this large subdural hematoma.
The history of this child falling out
of the car, she may or may not have fallen
out of a car, but it’s not felt that that
short fall has created this serious head
injury with the shearing of these vessels.
And again, Dr. Fuchs’s opinion is consistent
with that, and he was able to see the actual
bleeding vessels that were causing the
subdural hematoma, and the timing for that
would’ve been around a few hours prior to
her presenting to our hospital and our
operating room, and we felt that this was
not from a simple, short fall.
Dr. St. Claire further testified on cross-examination:
Certainly my training and expertise
tell me that most children who have short
falls, most of them will not have serious
brain damage or bleeding around their brain,
that, if they do, it tends to be minimal,
not requiring surgery.
So this is something that’s not typical
for accidental short fall. Dr. Fuchs’s
opinion was also that this was not
consistent with a simple, short fall due to
the amount of trauma that she had sustained.
. . .
[Lori’s head injury] is not consistent with
an accidental injury, short fall as
described.
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Based upon Dr. St. Claire’s testimony, the trial court did
not err in making finding of fact 27, and respondent’s argument
is without merit.
Respondent challenges additional findings of fact made by
the trial court. We need not address respondent’s additional
arguments, however, as the trial court’s other findings of fact
are unnecessary to support its ultimate conclusions, and any
error in them would not constitute reversible error. In re
T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240—41 (2006).
Indeed, the uncontested findings of fact, together with the
finding affirmed above, establish that Lori was airlifted to
Duke University Hospital for a life-threatening head injury;
that Dr. St. Claire concluded the head injury and subdural
bleeding were caused by non-accidental means; that neither
respondent’s nor the step-father’s explanation was consistent
with the injuries observed; that respondent and the step-father
were Lori’s primary caretakers when the injuries occurred; and
that Lori’s speech and language skills were impaired due to the
injury. These findings support the trial court’s conclusions of
law that Lori was an abused juvenile in that respondent created
or allowed to be created a substantial risk of serious physical
injury to Lori by other than accidental means, and Lori was a
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neglected juvenile in that she did not receive proper care or
supervision from respondent. Accordingly, the trial court did
not err in its adjudication, and the trial court’s orders are
affirmed.
Affirmed.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).