No. COA18-1147
Filed: 19 November 2019
Lincoln County, Nos. 17 JA 72-74
IN THE MATTER OF: S.G., A.G., and F.C.
Appeal by Respondents from order entered 28 June 2018 by Judge Ali B.
Paksoy and order entered 27 July 2018 by Judge Jeannette R. Reeves in District
Court, Lincoln County. Heard in the Court of Appeals 3 October 2019.
Lauren Vaughan for Petitioner-Appellee Lincoln County Department of Social Services.
J. Thomas Diepenbrock for Respondent-Appellant Father.
Parent Defender Wendy C. Sotolongo, by Deputy Parent Defender Annick Lenoir-Peek, for Respondent-Appellant Mother.
Parker Poe Adams & Bernstein LLP, by Michael J. Crook and Joshua J. Morales, for Guardian ad Litem.
McGEE, Chief Judge.
Respondents appeal from an order adjudicating the minor child F.C. to be an abused, neglected, and dependent juvenile and the minor children S.G. and A.G. to be neglected and dependent juveniles. Respondents also appeal from a disposition
and permanency planning order requiring them to engage in services and establishing visitation. We affirm the adjudication order, affirm in part and vacate
IN RE: S.G., A.G., & F.C. Opinion of the Court
in part the disposition/permanency planning order, and remand for entry of an appropriate visitation order. I. Background Respondent-Mother is the mother of all three children. She is in a relationship with Respondent-Father, who is the father of S.G. and A.G. F.C.’s father is deceased. On 18 July 2017, the Lincoln County Department of Social Services (“DSS”) received a report alleging that three-year-old F.C. was seen with a black eye that resulted from Respondent-Father pushing him down and hitting him. A social worker went to Respondents’ home to investigate, but Respondents appeared to be intentionally evading the social worker, until the social worker called law enforcement, and Respondents finally opened their door. Respondents both denied to the social worker that Respondent-Father hit F.C., instead claiming that F.C. had been running through the house with the dog when he tripped and hit his head on a coffee table. The social worker informed Respondent-Father that he would have to leave the residence while the matter was being investigated. The social worker stayed at the home until Respondent-Father left. The next day, another social worker informed Respondent-Mother that Respondent-Father could not have contact with F.C. until F.C. was given a forensic interview. F.C. was seen by Dr. Melissa Will (“Dr. Will”), who found “a red patterned bruise covering [F.C.’s right] forehead (pattern of rectangle with 3 vertic[al] lines within it), also unpatterned bruise lateral to this; also bruise of his upper eyelid[.]” IN RE: S.G., A.G., & F.C. Opinion of the Court
[*2]It was Dr. Will’s opinion that the unusual pattern of the bruise was inconsistent with Respondent-Mother’s explanation that F.C. hit his head on a coffee table. DSS decided that Respondent-Father could not have any contact with the children. “Respondent-Mother was asked to take all three children and keep [] Respondent-Father away from them. [] Respondent-Mother wanted to be with [Respondent-Father] and preferred that [Respondent-Father] come home and the three children go somewhere else. [] Respondent-Mother would not agree to keep the children away from [Respondent-Father].” The children were placed with a paternal relative, who later became unable to care for them. On 24 July 2017, DSS filed petitions alleging that F.C. was an abused, neglected, and dependent juvenile; and alleging that S.G. and A.G. were neglected and dependent juveniles. DSS obtained nonsecure custody of the children the same day. The trial court held an adjudicatory hearing on 20 February and 15 April 2018, after which the trial court entered a 28 June 2018 order adjudicating F.C. to be abused and all three children to be neglected and dependent. The trial court conducted a disposition and permanency planning hearing on 17 July 2018. The trial court’s 27 July 2018 order established a visitation plan of “one visit each month” with Respondents’ respective children. Contact between Respondent-Father and F.C. was to be based on the recommendations of F.C.’s therapist. The trial court also ordered Respondents to submit to substance abuse and mental health assessments and follow all recommendations, participate in parenting IN RE: S.G., A.G., & F.C. Opinion of the Court
[*3]classes and demonstrate skills learned during visits, obtain and maintain safe and stable housing, and submit to random drug screens. Respondents appeal. II. Adjudication Respondent-Father argues that the trial court erred by adjudicating F.C. as an abused juvenile.[1] Both Respondents argue that the trial court erroneously adjudicated S.G. and A.G. as neglected juveniles. We address each argument in turn. A. Standard of Review When reviewing an adjudication of abuse, neglect, or dependency, this Court determines whether the trial court’s findings of fact are supported by clear and convincing evidence and whether the trial court’s legal conclusions are supported by its findings of fact. See In re C.M. & M.H.M., 198 N.C. App. 53, 59, 678 S.E.2d 794, 798 (2009). Findings of fact which are “supported by clear and convincing competent evidence are deemed conclusive [on appeal], even where some evidence supports contrary findings.” Id. (quotation marks and citation omitted). The trial court’s conclusions of law are reviewed de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (citation omitted). B. Abuse IN RE: S.G., A.G., & F.C. Opinion of the Court
[*4]The trial court concluded that F.C. was abused under N.C.G.S. § 7B-101(1)(a) and (b) (2017). These subsections define an abused juvenile, in relevant part, as one whose parent: a. Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means; b. Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means[.] Id. Respondent-Father first contends that neither the evidence nor the trial court’s findings support its conclusion that F.C. suffered a “serious physical injury.” He argues that F.C. did not suffer the type of “significant physical injuries” that provided support for the abuse adjudications upheld by this Court in cases such as In re Hayden, 96 N.C. App. 77, 83, 384 S.E.2d 558, 562 (1989) (child “suffered multiple burns over a wide portion of her body”) and In re T.H.T., 185 N.C. App. 337, 345-46, 648 S.E.2d 519, 525 (2007) (child suffered skull fracture), aff’d as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). However, the cases cited by Respondent-Father did not establish a minimum threshold for a serious injury. As this Court has explained, “the nature of an injury is dependent upon the facts of each case[.]” In re L.T.R. & J.M.R., 181 N.C. App. 376, 383, 639 S.E.2d 122, 126 (2007). Using this standard, we previously upheld an abuse IN RE: S.G., A.G., & F.C. Opinion of the Court
[*5]adjudication when a three-year-old child suffered “a dark, six-inch bruise, which lasted well over one week, on his right thigh.” Id. at 382, 639 S.E.2d at 126. In this case, the trial court made a number of findings about three-year-old F.C.’s injury. He “had a significant bruise on his forehead, above his eye” when a DSS social worker observed him on the night of 18 July 2017. Then, during a medical examination the following day, F.C. was found to have “bruising on his right forehead with an unusual pattern[.] It was a red patterned bruise covering his right forehead, the pattern of a rectangle with three vertical lines within it. There was also a patterned bruise lateral to this, in addition to a bruise on his upper eyelid.” A 21 July 2017 examination “revealed bruising to the right eyelid and on [F.C.’s] forehead was a knot, raised, with a very distinct patterned bruise.” Finally, the trial court found that “[t]he bruise was visible at least four days after the incident.” These findings were sufficient to support the trial court’s conclusion that F.C. suffered a serious injury. Respondent-Father next contends that neither the evidence nor the trial court’s findings support the conclusion that F.C.’s injury or risk of injury occurred through non-accidental means. He argues that “cases involving an adjudication of physical abuse typically include medical opinions . . . that the injuries were inflicted by non-accidental means” and that such opinions were absent here. Respondent-Father cites three cases to support his contention: In re L.Z.A., 249 N.C. App. 628, 792 S.E.2d 160 (2016); C.M., 198 N.C. App. 53, 678 S.E.2d 794; and IN RE: S.G., A.G., & F.C. Opinion of the Court
[*6]T.H.T., 185 N.C. App. 337, 648 S.E.2d 519. While he is correct that each of these cases, in upholding abuse adjudications, noted there was medical testimony that the child suffered a non-accidental injury, these cases do not hold that similar medical testimony is a requirement. In this case, no medical expert explicitly testified that F.C.’s injuries occurred through non-accidental means, but there was ample medical evidence from which the trial court could determine that F.C.’s injuries were not caused by accident. Dr. Will testified that Respondent-Mother’s claim that F.C.’s injury resulted from falling and hitting his head on the coffee table was inconsistent with the nature of the injuries. Moreover, a forensic nurse examiner testified that F.C.’s bruising was “definitely consistent with having been hit with a belt buckle[,]” rather than consistent with F.C.’s head hitting a wall, a table, or the floor. When presented photographs of the table during the adjudication hearing, the nurse testified, “I don’t see anything on that table that would intimate to me that that pattern would have shown up from being hit.” Based on the unobjected-to testimony of the two medical professionals above, the trial court found that F.C.’s bruise “was consistent with having been hit with a belt buckle” and “was not consistent with the child’s head hitting a table, a wall, or the floor.” This finding, coupled with the findings about the severity of F.C.’s injury, fully supported the trial court’s determination that “Respondents have inflicted or allowed to be inflicted on [F.C.] a serious physical injury by other than accidental IN RE: S.G., A.G., & F.C. Opinion of the Court
[*7]means.” Thus, the trial court appropriately adjudicated F.C. as an abused juvenile. Respondent-Father’s arguments are overruled. C. Neglect The Juvenile Code defines a neglected juvenile, in relevant part, as one Who does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian, or caretaker; . . . 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.G.S. § 7B-101(15) (2017).2 “Since the statutory definition of a neglected child includes living with a person who neglected [or abused] other children[,]” “the trial judge has discretion in determining the weight to be given” to evidence of another child’s abuse or neglect in determining whether a child is neglected. In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (quotation marks and citation omitted). “In order to adjudicate a child to be neglected, the failure to provide proper care, supervision, or discipline must result in some type of physical, mental, or emotional impairment or a substantial risk of such impairment.” In re C.M., 183 N.C. App. 207, 210, 644 S.E.2d 588, 592 (2007) (emphasis added) (citation omitted). 2This definition has been amended, in a manner not relevant to this case, by legislation that became effective after the entry of the trial court’s order. See 2018 N.C. Sess. 68 § 8.1(b).
[*8]IN RE: S.G., A.G., & F.C. Opinion of the Court
Respondents contend that there was no evidence that S.G. or A.G. suffered any impairment or substantial risk of impairment, and that their neglect adjudication was based solely on the fact they lived with F.C. However, in addition to the findings relevant to its conclusion that F.C. was an abused juvenile, the trial court made additional findings of fact supporting its determination that S.G. and A.G. were neglected juveniles: 27. After the CAC interview with the minor child, [F.C.], which was on July 20, 2017, [DSS] determined that [] Respondent[-]Father could not be around the children. [] Respondent[-]Mother was asked to take all three children and keep [] Respondent[-]Father away from them. [] Respondent[-]Mother wanted to be with [Respondent- Father] and preferred that [Respondent-]Father come home and the three children go somewhere else. [] Respondent[-]Mother would not agree to keep the children away from [Respondent-]Father. .... 40. After the CAC interview on July 20, 2017, [] Respondent[-]Mother did not believe what the child reported. []Respondent[-]Mother believed [] Respondent[- ]Father’s story over the child’s and wanted [] Respondent[- ]Father back in the home. [] Respondent[-]Mother did not believe she could protect the children from [] Respondent[- ]Father. There were no other placement options found and [] Respondent[-]Mother would rather have the children leave and [] Respondent[-]Father come home. .... 44. Respondent[s] have continued to deny any responsibility for the injuries to [F.C.].
[*9]IN RE: S.G., A.G., & F.C. Opinion of the Court
45. That the failure to acknowledge responsibility, . . . [Respondent-Mother’s] inability to protect the children, [Respondents’] avoidance of DSS workers, and the other facts of this case lead to the conclusion that there is a risk of future harm to the children. 46. That the juveniles, [S.G.] and [A.G.], have lived in a home where another juvenile, their older brother [F.C.], had been subjected to abuse and neglect by adults who regularly live in the home. Based on these findings, the trial court concluded that the children “have not received proper care, supervision or discipline from [Respondents] and they have lived in an environment injurious to [their] welfare.” The trial court’s findings above were supported by competent evidence3 and show that, contrary to Respondents’ arguments, the trial court’s conclusion that S.G. and A.G. were neglected juveniles was not supported solely by its finding that they lived in a home where F.C. was abused and neglected. Rather, the trial court also considered that Respondent-Father had not been allowed to have contact with the children and, therefore, could not provide care and that Respondent-Mother chose to be with Respondent-Father rather than to provide housing, care, and love to the children. Furthermore, even after medical professionals provided unobjected-to opinion testimony that F.C.’s injuries could not have occurred in the way Respondents 3Respondents challenge findings and portions of findings not quoted above. Since the quoted findings were sufficient to support the court’s neglect adjudication, we do not address these challenges. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (“When, however, ample other findings of fact support an adjudication . . ., erroneous findings unnecessary to the determination do not constitute reversible error.”). - 10 - IN RE: S.G., A.G., & F.C. Opinion of the Court described, Respondents still refused to take any responsibility for F.C.’s injuries. After the incident where F.C. was abused, Respondent-Mother would not care for the children if it meant she could not be with Respondent-Father. Considered together, these factors support the trial court’s determination that there was a risk of future harm to the children if they remained in Respondents’ care. Accordingly, the trial court did not err by concluding S.G. and A.G. were neglected juveniles. III. Disposition Respondents contend that the trial court erred in ordering them to engage in services that were not necessary to remedy the conditions that led or contributed to the adjudications. Specifically, Respondents contest the trial court’s authority to order them to: (1) complete a substance abuse assessment and follow all recommendations; (2) complete a mental health assessment and follow all recommendations; (3) obtain and maintain safe and stable housing; and (4) submit to random drug screens. The North Carolina General Statutes permit the trial court at its discretion to determine whether the best interests of the juvenile require that the parent . . . undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile’s adjudication or to the court’s decision to remove custody of the juvenile from the parent. . . . If the court finds that the best interests of the juvenile require the parent . . . [to] undergo treatment, it may order that individual to comply with a plan of treatment[.] - 11 - IN RE: S.G., A.G., & F.C. Opinion of the Court In re A.S.& M.J.W., 181 N.C. App. 706, 712, 640 S.E.2d 817, 821 (2007) (quoting N.C.G.S. § 7B-904(c) (2005)). N.C.G.S. § 7B-904 also allows the trial court to order a parent to “take appropriate steps” in order to achieve reunification. N.C.G.S. § 7B- 904(d1)(3) (2017). “For a court to properly exercise the authority permitted by this provision, there must be a nexus between the step ordered by the court and a condition that is found or alleged to have led to or contributed to the adjudication.” In re T.N.G., 244 N.C. App. 398, 408, 781 S.E.2d 93, 101 (2015) (citation omitted); In re B.O.A., __ N.C. __, __, 831 S.E.2d 305, 314-15 (2019). However, the trial court is not limited to ordering services which directly address the reasons for the children’s removal from a parent’s custody. It may also order services which could aid “in both understanding and resolving the possible underlying causes” of the actions that contributed to the trial court’s removal decision. In re A.R., 227 N.C. App. 518, 522, 742 S.E.2d 629, 632-33 (2013). Further: [N.C.G.S.] § 7B-901 provides that the “dispositional hearing may be informal and the court may consider written reports or other evidence concerning the needs of the juvenile[.] The court may consider any evidence, including hearsay evidence as defined in G.S. 8C–1, Rule 801[.]” “We review a dispositional order only for abuse of discretion. ‘An abuse of discretion occurs when the trial court’s ruling is so arbitrary that it could not have been the result of a reasoned decision.’” T.N.G., 244 N.C. App. at 408, 781 S.E.2d at 100 (citations omitted). - 12 - IN RE: S.G., A.G., & F.C. Opinion of the Court In this case, the children were removed primarily as a result of F.C.’s non- accidental injuries, Respondents’ refusal to accept responsibility therefore, and Respondent-Mother’s refusal to care for the children if it meant that Respondent- Father could not remain in the home with her. DSS also alleged in the juvenile petitions that it received reports from several sources that Respondents “were using unidentified illegal substances.” Based on the allegations in the petition and the facts found in the adjudication order, the trial court acted within its discretion by requiring Respondents to receive and comply with mental health and substance abuse evaluations and submit to drug screens. These directives would, at minimum, assist the trial court, DSS, and Respondents in understanding whether substance abuse or mental health issues were underlying causes for F.C.’s abuse and the children’s neglect. See A.R., 227 N.C. App. at 522–23, 742 S.E.2d at 632–33 (concluding that mental health assessments, substance abuse evaluations, and drug screens would assist “in both understanding and resolving the possible underlying causes of respondents’ domestic violence issues”). Thus, the trial court did not abuse its discretion in setting these requirements, as they are “reasonably related to aiding [R]espondents in remedying the conditions which led to the children’s removal[.]” Id. at 522, 742 S.E.2d at 632. Respondents further argue that the trial court erred in ordering them to “obtain and maintain safe and stable housing[,]” because this condition was not related to the issues resulting in the children’s removal. Respondent-Mother - 13 - IN RE: S.G., A.G., & F.C. Opinion of the Court contends “there were no findings of fact addressing the lack of safe and stable housing[,]” and that ‘[t]he entire adjudication was premised on F.C.’s injury, and not on the status of the house as unsuitable.” Relying on N.C.G.S. § 7B-904, Respondent- Father also contends that because the adjudication order did not include findings that that the children’s housing was a factor in the adjudications of abuse, neglect, and dependency, the trial court was without authority to order Respondents to obtain and maintain safe and stable housing. It is true that this Court has held the trial court erred in ordering conditions concerning a respondent-parent’s housing when “the petitions did not allege and the district court did not find as fact that [housing] issues led to the juveniles’ removal from [the respondent’s] custody or formed the basis for their adjudications.” In re H.H., 237 N.C. App. 431, 440, 767 S.E.2d 347, 353 (2014); see also In re W.V., 204 N.C. App. 290, 297, 693 S.E.2d 383, 388 (2010) (vacating the portion of the dispositional order requiring the parent to obtain and maintain stable employment where “[n]othing in the record suggests that respondent’s employment situation, or lack thereof, led to or contributed to the juvenile’s adjudication”). However, in 2019, our Supreme Court in B.O.A. overruled this Court’s narrow application of N.C.G.S. § 7B-904.4