In re: F.C.D.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
Nos. COA15-577 and COA15-578
Filed: 1 December 2015
Sampson County, No. 14 JA 24
IN THE MATTER OF: F.C.D., A Juvenile.
___________________________________________________________________________
Sampson County, No. 14 JA 25
IN THE MATTER OF: M.B., A Juvenile.
Appeal by respondents from orders entered 11 February 2015 by Judge Sarah
C. Seaton in Sampson County District Court. Heard in the Court of Appeals 9
November 2015.
Warrick, Bradshaw and Lockamy, P.A., by Frank L. Bradshaw, for petitioner-
appellee Sampson County Department of Social Services.
Richard Croutharmel for respondent-appellant R.D.
Rebekah W. Davis for respondent-appellant M.B.
Parker Poe Adams & Bernstein LLP, by Kiah T. Ford IV, for guardian ad litem
for F.C.D.
Cranfill Sumner & Hartzog LLP, by Jennifer A. Welch, for guardian ad litem
for M.B.
DAVIS, Judge.
IN RE F.C.D.
IN RE M.B.
Opinion of the Court
Respondent R.D. (“Robert”)1 appeals from the trial court’s 11 February 2015
orders in file number 14 JA 24 adjudicating his daughter F.C.D. (“Faye”) to be a
neglected juvenile and ordering that she remain in the legal custody of the Sampson
County Department of Social Services (“DSS”). Respondent M.B. (“Melanie”) appeals
from separate orders entered on 11 February 2015 in file number 14 JA 25
adjudicating her son M.B. (“Michael”) to be an abused and neglected juvenile and
ordering that he remain in the legal custody of DSS and in his current placement
with his maternal grandmother. After careful review, we affirm.
Factual Background
In early 2014, Melanie and Michael resided with Robert and Faye at Robert’s
home in Godwin, North Carolina. While both Melanie and Robert maintained that
they were merely friends, Melanie’s friends and coworkers described the relationship
between Melanie and Robert as a dating relationship.
On 10 March 2014, DSS filed two juvenile petitions alleging that (1) Faye was
a neglected juvenile; and (2) Michael was an abused and neglected juvenile. Both
petitions stated that DSS had received a report of potential abuse and neglect
involving Faye and Michael on 27 February 2014. According to the report, Robert
had told Michael that Michael was “possessed with demons” and had forced Michael
1 Pseudonyms are used throughout the opinion to protect the identity of the minor children
involved in this matter and for ease of reading. N.C.R. App. P. 3.1(b).
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to (1) sleep outside on a cold night; (2) sit on a chair blindfolded and pray that God
would rid him of the demons; and (3) “baptize” himself by submerging his body in a
bathtub filled with water and repeating “Lord just wash me and cleanse me” seven
times. DSS alleged that the “methods of discipline” that had been inflicted on Michael
in Faye’s presence were “cruel and grossly inappropriate, which created an injurious
environment for [Faye].” DSS obtained nonsecure custody of both juveniles on 7
March 2014. Faye was placed in foster care, and Michael was placed with his
maternal grandmother, “Beth.”
On 18 September 2014, DSS filed supplemental juvenile petitions concerning
both Faye and Michael. The petitions stated that DSS had received a report that
Michael had also previously been “kicked, tied to a tree, hit with a sock with soap in
it and . . . forced to sleep outside” and that Faye had been “exposed to this behavior.”
Additionally, the petitions noted that a Child and Family Evaluation conducted with
Robert, Melanie, and both children yielded “findings of neglect in the form of injurious
environment regarding [Faye]” and “findings of emotional abuse and neglect
regarding [Michael].”
The trial court held adjudication and disposition hearings for both Faye and
Michael on 29 October 2014. During the hearings, the trial court also addressed
Melanie’s and Robert’s petitions seeking judicial review of DSS’s determinations that
each was a “responsible individual” as defined by N.C. Gen. Stat. § 7B-101(18a). On
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Opinion of the Court
11 February 2015, the trial court entered orders (1) adjudicating Faye a neglected
juvenile and Michael an abused and neglected juvenile; (2) concluding that Melanie
and Robert were responsible individuals based on its determination that both had
abused and seriously neglected Michael; and (3) directing DSS to place Melanie and
Robert on the Responsible Individuals List pursuant to N.C. Gen. Stat. § 7B-311.
Melanie and Robert appeal from the trial court’s orders concerning their
respective children. Because the matters involve common issues of fact and law, we
consolidated the cases pursuant to Rule 40 of the North Carolina Rules of Appellate
Procedure.
Analysis
I. Melanie’s Appeal
A. Adjudication of Abuse as to Michael
In her first argument on appeal, Melanie contends that the trial court erred in
adjudicating Michael an abused juvenile. We disagree.
When reviewing a trial court’s order adjudicating a juvenile abused, neglected,
or dependent, this Court’s duty 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) (citation, quotation marks, and brackets omitted), aff’d as modified,
362 N.C. 446, 665 S.E.2d 54 (2008). If supported by competent evidence, the trial
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Opinion of the Court
court’s findings are binding on appeal even if the evidence would also support
contrary findings. In re A.R., 227 N.C. App. 518, 519-20, 742 S.E.2d 629, 631 (2013).
Its conclusions of law, however, are reviewed de novo. In re H.H., ___ N.C. App. ___,
___, 767 S.E.2d 347, 349 (2014).
The Juvenile Code defines an abused juvenile as one whose parent, guardian,
custodian, or caretaker “[c]reates or allows to be created a substantial risk of serious
physical injury to the juvenile by other than accidental means; . . . [u]ses or allows to
be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly
inappropriate devices to modify behavior; . . . [or c]reates or allows to be created
serious emotional damage to the juvenile.” N.C. Gen. Stat. § 7B-101(1) (2013).
Here, the trial court made the following pertinent findings of fact in support of
its conclusion that Michael was an abused juvenile:
13. That since 2012, [Melanie’s] personality has changed
and she has referred to [Robert] as a “prophet” and a
“healer” and stated [Robert] could cast demons out of
people and that the Federal Bureau of Investigation and
the Central Intelligence Agency were looking for them.
14. That [Melanie] has informed co-workers of her belief
that [Michael] is possessed with demons and that when she
looked at him on occasion his face would “change” and that
it would no longer look like her son.
15. That [Melanie] noticed [Michael] doing a “dance” and
she researched the dance on the Internet herself and
determined that it was a demonic dance.
16. That [Melanie] has made statements that she would
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Opinion of the Court
give [Michael] up to God.
17. That [Melanie] has shown additional signs of
confusion and paranoia and told her mother that her
mother’s property had been taken from someone else and
also reported to her mother than [Melanie’s] feet were
“sticking to the floor,” resulting in [Melanie] fleeing the
home.
18. That while residing at the home of [Robert] with
[Melanie] . . . [Michael] was forced to sleep at least two
nights outside and this occurred in the month of February,
2014, during a very cold period of time.
....
20. That [Robert] ordered [Michael] to go walk in the
woods and pray and gave the instructions while holding a
firearm, causing [Michael] distress.
21. That [Robert] and [Melanie] have, on numerous
occasions, accused [Michael] of having demons inside of
him and also told him demons were swirling around over
his head.
22. That based upon the accusations and repeated
statements of [Robert] and [Melanie,] [Michael] began to
believe he had a demon inside of him.
23. That [Michael] likes to dance and on at least one
occasion he was dancing and [Robert] and [Melanie]
accused him of doing a demonic dance.
24. That [Michael] has been blindfolded and instructed to
baptize himself by going under water in a bathtub seven
times and while under saying “save me” seven times.
25. That [Michael] was also forced to sit on a stool and put
his foot on a rock.
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26. That [Melanie] has struck [Michael] with a belt
repeatedly and [Michael] attempted to dodge the belt but
[Melanie] would keep attempting to strike him resulting in
[Michael] being hit all over his body, including his head.
27. That [Melanie] and [Robert] have tied [Michael] to a
tree using duct tape.
Because Melanie has not challenged findings 13, 18, 20, 24, 25 or 26, they are
binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991) (“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.”).
Melanie does, however, challenge the trial court’s findings of fact 14, 15, 16, 17, 21,
22, 23, and 27 as not supported by evidence, and we proceed to address each in turn.
With regard to finding of fact 14, Melanie “excepts to this finding to the extent
that it implies that there were multiple conversations over a period of time during
which the mother was convincing Michael and others that Michael was possessed.”
We do not read finding 14 as suggesting that Melanie continually and repeatedly
engaged in conversations with her colleagues about her belief that her son was
“possessed.” Rather, we read the finding as signifying precisely what it states — that
Melanie informed several co-workers that her son was possessed by demons. This
finding is supported by competent evidence as two of Melanie’s co-workers testified
that Melanie had told each of them that Michael “has demons,” his facial features
would change at times, and that he suffered from “demonic possession.”
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Opinion of the Court
In findings 15 and 23, the trial court described an incident where Melanie
concluded that her son’s dancing was a “demonic dance.” In her brief, she asserts
that the testimony at trial showed that Michael’s dance “did not seem to be an issue”
with her. However, the evidence of record shows that Melanie — while visibly upset
— told one of her coworkers that her son had performed “a dance move, and it was
Googled on the Internet and it was some type of demonic move.” Michael likewise
testified that he had been accused of performing a demonic dance when he had
showed Melanie and Robert a “pop robotic” dance move to dubstep music. Thus, the
trial court’s findings that Melanie had determined that Michael’s dance move was a
demonic dance based on her Internet search and that Robert and Melanie had
accused Michael of performing a demonic dance are supported by the evidence.
Melanie next argues that findings 16 and 17 — which refer to instances
described by her mother Beth where Melanie displayed unusual behavior — are not
indicative of Melanie suffering from paranoia or confusion and instead merely
indicate the contentious relationship between the two women. However, Beth’s
testimony regarding her daughter’s behavior supports the trial court’s findings
concerning these incidents, and it was the trial court’s duty to determine what
inferences should be drawn from that testimony. See In re Whisnant, 71 N.C. App.
439, 441, 322 S.E.2d 434, 435 (1984) (explaining that trial judge has responsibility to
“weigh and consider all competent evidence, and pass upon the credibility of the
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Opinion of the Court
witnesses, the weight to be given their testimony and the reasonable inferences to be
drawn therefrom”). Moreover, two other witnesses, one being a licensed psychologist,
described Melanie as paranoid.
Findings 21, 22, and 27 describe both Robert and Melanie accusing Michael of
being possessed by demons and tying him to a tree. Melanie argues that these
findings are inaccurate because “[Robert] did all of these things, not [her].” An
examination of the record, however, reveals that Melanie told her son and other
people that he was possessed by demons and that Michael had started to believe he
was, in fact, “possessed” based on Robert’s and Melanie’s statements and actions
towards him, which included their act of tying him to a tree with duct tape. Thus,
these findings are also supported by the evidence and are binding on appeal. See
A.R., 227 N.C. App. at 519-20, 742 S.E.2d at 631.
As we have determined that each of the challenged findings was supported by
competent evidence, we now turn to whether these findings supported the trial court’s
conclusion that Michael was an abused juvenile. As discussed above, a child is an
abused juvenile if his parent, guardian, custodian, or caretaker “[u]ses or allows to be
used upon [him] cruel or grossly inappropriate procedures or cruel or grossly
inappropriate devices to modify behavior.” N.C. Gen. Stat. § 7B-101(1)(c).
Recently, in H.H., our Court observed that a “review of the case law reveal[ed]
only three cases, all unpublished and thus lacking precedential value, in which this
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Court has considered what actions constitute ‘cruel or grossly inappropriate
procedures or cruel or grossly inappropriate devices to modify behavior.’” H.H., ___
N.C. App. at ___, 767 S.E.2d at 350. We noted that two of these three cases involved
extreme examples of discipline. In the first case, a child was choked, threatened with
eating dog feces, and had a firearm pointed at him. Id. at ___, 767 S.E.2d at 350. In
the second case, the juvenile was forced to stand in a “T-Shape” for up to five minutes
with duct tape over his mouth while being struck with “a belt, paddle, switch, or other
object.” Id. at ___, 767 S.E.2d at 350. The third case involved allegations of abuse
stemming from an incident where the child had been hit in the face and then kicked
in the stomach by her mother. Id. at ___, 767 S.E.2d at 350. We concluded that the
circumstances existing in H.H. — where the trial court found that the child had been
struck “five times with a belt, leaving multiple bruises on the inside and outside of
his legs which were still visible the following afternoon” — were sufficient to warrant
a finding of abuse. Id. at ___, 767 S.E.2d at 350.
Here, the trial court’s findings establish that Michael was (1) forced to sleep
outside on at least two cold nights during the month of February; (2) bound to a tree;
(3) required to participate in a “self-baptism” in a bathtub full of water; (4) ordered
by Robert to pray while Robert was brandishing a firearm; (5) struck with a belt “all
over his body”; and (6) repeatedly told by Robert and Melanie that he was possessed
by demons to the point that he himself began to believe it to be true. We hold that
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the trial court’s findings concerning these incidents — all of which are supported by
evidence of record — demonstrate that Michael was an abused juvenile in that he
was subjected to cruel or grossly inappropriate procedures or devices to modify
behavior.
Melanie argues that the factual findings made by the trial court were taken
out of context in that the court described the incidents “as if Michael had not
[previously] exhibited behavioral and mental health issues which prompted some of
the actions.” We reject this contention. First, Melanie cites no legal authority in
support of her argument on this point. See N.C.R. App. P. 28(b)(6) (“Issues not
presented in a party’s brief, or in support of which no reason or argument is stated,
will be taken as abandoned.”). Second, we are unpersuaded by the implication of her
argument, which is that Michael’s preexisting behavioral problems rendered the
“discipline” inflicted upon him appropriate. The definition of abuse in this subsection
of the statute focuses on the severity and brutality of the procedures and devices
employed by the parent or caretaker against the juvenile rather than the juvenile’s
behavior that those procedures and devices were designed to correct. See N.C. Gen.
Stat. § 7B-101(1)(c).
Thus, the trial court did not err in concluding that Michael was subjected to
cruel or grossly inappropriate procedures or devices such that he was an abused
juvenile as defined by N.C. Gen. Stat. § 7B-101(1). Because this ground standing
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alone is sufficient to support the adjudication of abuse, we need not address the trial
court’s two other grounds for adjudicating Michael an abused juvenile.
B. Placement on the Responsible Individuals List
A “responsible individual” is statutorily defined as “[a] parent, guardian,
custodian, or caretaker who abuses or seriously neglects a juvenile.” N.C. Gen. Stat.
§ 7B-101(18a). The Department of Health and Human Services maintains a registry
of responsible individuals and “may provide information from this list to child caring
institutions, child placing agencies, group home facilities, and other providers of
foster care, child care, or adoption services that need to determine the fitness of
individuals to care for and adopt children.” N.C. Gen. Stat. § 7B-311(b) (2013). An
individual may be placed on this list — known as the Responsible Individuals List
(“RIL”) — if (1) the individual is given notice pursuant to N.C. Gen. Stat. § 7B-320
that he or she has been identified as a responsible individual by a director of a county
department of social services in conjunction with an investigative assessment of
abuse or serious neglect; and (2) “[t]he court determines that the individual is a
responsible individual as a result of a hearing on the individual’s petition for judicial
review.” Id. At such a hearing, “the director shall have the burden of proving by a
preponderance of the evidence the abuse or serious neglect and the identification of
the individual seeking judicial review as a responsible individual.” N.C. Gen. Stat. §
7B-323(b) (2013).
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Melanie contends that the trial court’s placement of her name on the RIL
constituted error because (1) the hearing in the trial court failed to safeguard her
right to due process of law; and (2) the evidence did not support a conclusion that she
abused or seriously neglected Michael. Melanie asserts that because the RIL hearing
was “conflated with the adjudication,” she was deprived of her right to present sworn
evidence, represent herself or obtain the services of an attorney at her own expense,
and cross-examine witnesses and make a closing argument as provided for in N.C.
Gen. Stat. § 7B-323(c). We disagree.
The issue of whether Michael was an abused and neglected juvenile and the
issue of whether Melanie was a responsible individual were heard together.
Melanie’s attorney represented her on both matters by presenting evidence, cross-
examining witnesses, and making arguments to the court. Indeed, the transcript
reveals that during closing arguments Melanie’s counsel expressly argued that
Melanie’s placement on the RIL would be improper. Moreover, Melanie never
asserted during the proceedings that she wished to represent herself on the RIL issue.
Thus, we conclude that Melanie was not deprived of the rights guaranteed by N.C.
Gen. Stat. § 7B-323(c).
We are also satisfied that the trial court’s conclusion that Melanie should be
placed on the RIL is supported by its findings, which, in turn, are supported by
competent evidence. As discussed in detail above, the evidence at trial demonstrated
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that Melanie “used or allowed to be used upon [Michael] cruel or grossly
inappropriate devices or procedures to modify behavior” such that Michael was an
abused juvenile. Thus, Melanie is a parent “who abuse[d] . . . a juvenile,” and the
trial court therefore did not err in ordering that her name be placed on the RIL. N.C.
Gen. Stat. § 7B-101(18a) (defining responsible individual as “[a] parent, guardian,
custodian, or caretaker who abuses or seriously neglects a juvenile”).
II. Robert’s Appeal
On 20 March 2015, Robert gave notice of appeal from the trial court’s 11
February 2015 orders adjudicating Faye to be a neglected juvenile and ordering that
she remain in the legal custody of DSS. However, this notice of appeal was untimely.
On 15 June 2015, Robert filed a petition for writ of certiorari with this Court seeking
our review of the merits of his appeal despite the fact that the notice of appeal was
filed beyond the applicable deadline. On 29 June 2015, Faye’s guardian ad litem filed
a motion to dismiss Robert’s appeal based on his untimely notice of appeal.
It is well established that this Court may, in its discretion, issue a writ of
certiorari “when the right to prosecute an appeal has been lost by failure to take
timely action.” N.C.R. App. P. 21(a)(1). We agree that Robert’s appeal must be
dismissed as untimely, but, in our discretion, we grant his petition for writ of
certiorari for the purpose of considering the merits of his arguments.
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Robert’s sole contention on appeal is that the trial court erred by adjudicating
Faye a neglected juvenile. We disagree.
A neglected juvenile is defined in N.C. Gen. Stat. § 7B-101(15) as
[a] juvenile who does not receive proper care, supervision,
or discipline from the juvenile's parent, guardian,
custodian, or caretaker; or who has been abandoned; or
who is not provided necessary medical care; or who is not
provided necessary remedial care; or who lives in an
environment injurious to the juvenile’s welfare; or who has
been placed for care or adoption in violation of law. 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) (emphasis added).
Our Court has previously explained that this definition of neglect affords “the
trial court some discretion in determining whether children are at risk for a
particular kind of harm given their age and the environment in which they reside.”
In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999). A child may be
adjudicated a neglected juvenile if the injurious environment or the parent’s failure
to provide proper care causes the juvenile some physical, mental, or emotional
impairment or creates “a substantial risk of such impairment.” In re Safriet, 112 N.C.
App. 747, 752, 436 S.E.2d 898, 901-02 (1993).
Here, the trial court made the following pertinent findings of fact in support of
its determination that Faye was neglected:
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17. That while residing at the home of [Robert] and
[Faye], [Michael] was forced to sleep at least two nights
outside and this occurred in the month of February, 2014,
during a very cold period of time.
....
19. That [Robert] ordered [Michael] to go walk in the
woods and pray and gave the instructions while holding a
firearm, causing [Michael] distress.
20. That [Robert] and [Melanie] have, on numerous
occasions, accused [Michael] of having demons inside of
him and also told him demons were swirling around over
his head.
21. That based upon the accusations and repeated
statements of [Robert] and [Melanie,] [Michael] began to
believe he had a demon inside of him.
22. That [Michael] has been blindfolded and instructed to
baptize himself by going under water in a bathtub seven
times and while under saying “save me” seven times.
23. That [Robert] and [Melanie] have tied [Michael] to a
tree using duct tape.
24. That [Faye] has been exposed to the abuse and neglect
of [Michael] despite the fact [Faye] herself has not been
physically harmed by [Robert] or [Melanie].
Based on these findings, the trial court concluded as a matter of law that Faye
lived in an environment injurious to her welfare and was therefore a neglected
juvenile.
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Robert argues that the trial court’s conclusion of neglect is unsupported
because the abuse of Michael does not demonstrate that Faye was at risk of physical,
mental, or emotional impairment. This argument is meritless.
First, the record contains ample evidence that Faye witnessed and was exposed
to Michael’s abuse and neglect. Michael testified that Faye was either physically
present for or at least aware of: (1) Robert conducting an “exorcism” to rid Michael
of his demons; (2) Michael being blindfolded and “baptized” in the bathtub; and (3)
Robert making Michael “do facial expressions,” which led to Robert concluding that
Michael was possessed by demons and forcing him to sleep outside in the cold while
wearing only pajama pants, flip-flops, and a sleeveless t-shirt.
Admittedly, the trial court failed to make an express finding that Faye was at
risk of impairment based on her exposure to Michael’s abuse. However, in cases
“[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 Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). Moreover, this Court
has held that the exposure of a child to the “infliction of injury by a parent to another
child or parent, can be conduct causing or potentially causing injury” to that child. In
re W.V., 204 N.C. App. 290, 294, 693 S.E.2d 383, 386 (2010).
In the present case, Kristy Matala, a licensed psychologist who had conducted
the child family evaluations for both Faye and Michael, testified that Faye’s exposure
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to Michael’s neglect and abuse “would be distressing for her” and “could cause her
fear and worry about something like that happening to her.” She further expressed
her opinion that exposing a child to the “paranoid ideation” displayed by Robert and
Melanie would cause that child “to feel unnecessary fear” and categorized such
behavior as “emotional abuse.”
Because of the clear evidence demonstrating that Faye lived in an injurious
environment and faced a substantial risk of physical, mental, or emotional
impairment, the trial court’s adjudication of Faye as a neglected juvenile did not
constitute error. Accordingly, we affirm the trial court’s adjudication and disposition
orders concerning Faye.
Conclusions
For the reasons stated above, we affirm the trial court’s orders in file numbers
14 JA 24 and 14 JA 25.
AFFIRMED.
Judges CALABRIA and STROUD concur.
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