In re B.W.

665 S.E.2d 462, 190 N.C. App. 328, 2008 N.C. App. LEXIS 889
CourtCourt of Appeals of North Carolina
DecidedMay 6, 2008
DocketNo. COA07-1579.
StatusPublished
Cited by27 cases

This text of 665 S.E.2d 462 (In re B.W.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re B.W., 665 S.E.2d 462, 190 N.C. App. 328, 2008 N.C. App. LEXIS 889 (N.C. Ct. App. 2008).

Opinion

BRYANT, Judge.

Respondent K.P.,1 mother of the minor child B.W., appeals from an order adjudicating the child an abused and neglected juvenile and ceasing efforts to reunify him with his parents. Respondent-father S.W. is not a party to this appeal.

Facts and Procedural History

The Catawba County Department of Social Services (DSS) obtained non-secure custody of B.W. on 11 May 2007, after an examination at Frye Medical Center revealed injuries consistent with child abuse, including cuts, bruises, bite marks, a fractured skull, and multiple rib and leg fractures of varying ages. The minor child was less than eight weeks old and had been in his parents' care since leaving the hospital after his premature birth at thirty-six weeks' gestation. DSS filed a juvenile petition alleging abuse and neglect on 11 May 2007.

At an adjudicatory hearing held 27 August 2007, respondents stipulated that B.W. had suffered "a skull fracture and multiple fractures of varying ages to his ribs and legs[,]" as alleged by DSS. They further stipulated the following:

It is the opinion of Dr. David Berry of Frye Regional Medical Center, to a reasonable degree of medical certainty that these injuries occurred on multiple occasions and were caused by chest squeezing *464and rough handling of [the] minor child. Dr. Berry has noted that these findings are suggestive of abuse. The parents have related no events which could have caused the child's injuries.

The minor child is the only child of his parents and has been in their care and custody since [he] was born. Ms. Pearl Morton, a relative of the father, is the only other person residing in the dwelling. The parents report that [she] occasionally has acted as caretaker for the child.

At present, the parents of the minor child do not have their own independent stable housing. The parents and child had been residing in [Morton's] home....

Based on these undisputed findings, the court concluded that the minor child was abused and neglected within the meaning of N.C. Gen.Stat. § 7B-101(1), (15) (2007).

At disposition, the court heard testimony from forensic psychologist Dr. H.D. Kilpatrick, an expert in child custody and maltreatment who performed forensic evaluations of the parents; pediatric nurse practitioner Elizabeth Osbahr, FNP, (Ms. Osbahr) who examined B.W. at the Children's Advocacy Center; DSS investigator Shannon Roberts; and L.P. (the grandmother), B.W.'s maternal grandmother. The court received written reports from Dr. Kilpatrick, Ms. Osbahr, DSS and the Guardian ad Litem, as well as the minor child's medical records from Frye Regional Medical Center. Neither parent testified. Counsel for respondent-father informed the court that she had advised her client not to testify, in light of the criminal charges pending against him.

In its dispositional findings, the court described the multiple injuries observable on B.W. at the time DSS received a child protective services report on 10 May 2007. The court found that the parents "declined having knowledge of these abrasions and bruising, ... except for the cut on the nose which reportedly occurred when the father dropped a telephone on the less-than-two-month-old child's head." It then listed the child's internal injuries, including a "closed fracture of the skull, subarachnoid subdural and extradural hemorrhage," posterior fractures of the 5th, 6th, 7th, and 8th ribs and anterior fractures of the 4th, 5th, and 6th ribs of varying ages, a closed fracture of the upper tibia, and a fractured fibula. The court noted that the minor child was also diagnosed "to be malnourished, underweight, and to suffer from Failure to Thrive," and that he "demonstrated a pain response to palpations of the chest and skull." The medical evidence was found by the court to be "consistent with B[.W.] having suffered physical abuse on multiple occasions."

Based on the results of their psychological evaluations, the court found that "[n]either parent acknowledged or suggested that B.[W.] had experienced pain or suffering" as a result of his injuries. Nor had either parent expressed empathy or concern for the child at any time during their respective interviews with Dr. Kilpatrick. The psychological tests administered to the parents failed to "disclose any valid results as a result of the parents' attempt to present themselves in the most favorable light." In addition to describing respondent as "complacent and nonreactive" to questions about the nature and source of B.W.'s injuries, Dr. Kilpatrick averred "that the flat affect, and lack of empathy, [and] the defensive and inconsistent responses were problematic for both parents." Deeming "not viable" any "suggestion that B[.W.] did not suffer pain and that his injuries were caused by someone other than either parent[,]" the court found that "efforts to reunify B.[W.] with the ... parents would clearly be futile and inconsistent with [his] health, safety and need for a permanent home[.]"

The court ordered that B.W. remain in DSS custody and approved his continued placement with his foster family. Concluding that "[t]he injuries sustained by this child constitute aggravated circumstances as defined by N.C. Gen.Stat. § 7B-101(2) [(2007),]" and that "[f]urther efforts to reunify the child with either parent would clearly be futile and inconsistent with [his] need for a safe permanent home with in [sic] a reasonable period of time[,]" the court ordered that further efforts to reunify B.W. with the parents cease. It separately found that placing the minor child with his maternal grandparents *465would be "contrary to [his] best interest[,]" in light of "the parents' and grandparents' unwillingness to consider or explain the source of the [child's] injuries." The court noted that such a placement would also "place[] the maternal grandparents in the untenable position of having to exclude their daughter from their home for the next seventeen and a half years in order to provide any hope of safety to this child." Respondent appeals.

Respondent raises three issues on appeal: (I) Whether the trial court's findings numbered 29, 30, 34 and 35 are supported by competent evidence; (II) Whether the trial court abused its discretion by declining to place the child with the maternal grandparents; and (III) Whether the trial court's conclusion to cease reunification efforts is supported by competent evidence. For the reasons given below, we affirm the order of the trial court.

I

On appeal, respondent challenges four of the district court's dispositional findings of fact. Under the Juvenile Code, the court must support its disposition in an abuse and neglect proceeding with "appropriate findings[,]" N.C. Gen.Stat. § 7B-905 (2007), based on "credible evidence presented at the hearing." In re K.S, 183 N.C.App. 315, 323, 646 S.E.2d 541, 545 (2007) (quotation omitted). "The standard of review that applies to an assignment [of error] challenging a dispositional finding is whether the finding is supported by competent evidence." In re C.M., 183 N.C.App.

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Bluebook (online)
665 S.E.2d 462, 190 N.C. App. 328, 2008 N.C. App. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bw-ncctapp-2008.