In re: G.C.

• Court: Court of Appeals of North Carolina
• Decided: July 5, 2022
• Docket: 22-38
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-452

No. COA22-38

Filed 5 July 2022

Cumberland County, No. 20JA111

IN THE MATTER OF: G.C., Juvenile.

Appeal by Respondent from order entered 19 October 2021 by Judge Cheri

Siler Mack in Cumberland County District Court. Heard in the Court of Appeals 7

June 2022.

Patrick A. Kuchyt for Petitioner-Appellee Cumberland County Department of Social Services.

Vitrano Law Offices, by Sean P. Vitrano, for Respondent-Appellant Father.

McGuireWoods LLP, by Anita M. Foss, for guardian ad litem.

HAMPSON, Judge.

Factual and Procedural Background

¶1 Respondent-Father appeals from the trial court’s Adjudication and Disposition

Order adjudicating his child, G.C. (“Glenda”),1 a neglected juvenile. The Record

reflects the following:

1 A pseudonym stipulated to by the parties used for protection of the minor child and for ease of reading. See N.C. R. App. P. 42(b). IN RE: G.C.

Opinion of the Court

¶2 On 13 March 2020, Cumberland County Department of Social Services (DSS)

filed a Petition alleging that Glenda was a neglected and dependent juvenile. The

trial court held adjudication and disposition hearings on 27 August 2021. As part of

the adjudication hearing, the parties submitted a written stipulation of facts focused

primarily on the underlying facts of Respondent-Mother’s previous cases with her two

older children2 and the death of Respondent-Parents’ infant child Gary3, Glenda’s

younger sibling.

¶3 On 19 October 2021, the trial court entered its Adjudication and Disposition

Order adjudicating Glenda a “neglected juvenile within the meaning of N.C. Gen.

Stat. § 7B-101(15), inasmuch as the juvenile did not receive proper care, supervision,

or discipline from their parent, guardian, custodian, or caretaker, and the juvenile

lived in an environment injurious to [her] welfare.”4 In this Order, the trial court

made findings, based on the facts stipulated to by the parties, detailing Mother’s

previous DSS cases with the older children and her conviction of misdemeanor child

abuse.

¶4 In particular, the trial court found: Glenda was approximately 1 ½ years old at

Mother is not a party to this appeal. 2

A pseudonym. See N.C. R. App. P. 42(b). 3 4 The Order also noted DSS was dismissing the allegation G.C. was a dependent

juvenile. IN RE: G.C.

the time of the filing of the Petition.5 Mother has two older children who were

previously adjudicated abused, neglected, and dependent and have been in DSS

custody since 28 December 2017.6 On 6 November 2019, Mother was convicted of

misdemeanor child abuse and placed on probation because of her actions with the two

older children.

¶5 Gary was born in December 2019 to Respondent-Parents. On 12 March 2020,

Mother was caring for Gary while Father was at work. Mother placed Gary in a “

‘Pack n Play’ and propped a bottle for him to feed[.]” Mother came in at one point to

burp Gary, then placed him back in the “Pack n Play” on his side with several

blankets. Approximately three hours later, Mother checked on Gary and found him

unresponsive. Mother ran to the paternal grandmother’s house who lived nearby, and

the grandmother instructed Mother to call 911. Gary was pronounced dead at the

scene. That day, Parents agreed to allow Glenda to temporarily live with her paternal

grandmother.

¶6 In addition to these findings, the trial court also included as findings of fact:

29. Respondent Father and Respondent Mother have been instructed about proper sleeping arrangements for children.

...

5 Finding of Fact 16 contains an apparent typographical error as to G.C.’s birth date. 6 Father is not the father of Mother’s two older children. IN RE: G.C.

32. That when the EMS arrived on the scene, they noticed the juvenile foaming from the nose and the mouth, indicative of asphyxiation.

33. That the Fayetteville Police Department incident report dated 3/12/20 stated, they noticed two used baby bottles and several blankets in the Pack ’n Play.

34. That the medical examiner’s autopsy report on [Gary] dated 3/13/20, stated that “. . . sleeping in an environment with blankets while less than one year of age is a risk factor for an accidental asphyxial event. An asphyxial event cannot be ruled out based on the autopsy findings.” (Emphasis in original).

36. The evidence presented rises to the level of neglect pursuant to N.C. Gen. Stat. § 7B-101(15) in that the juvenile lived in an environment injurious to the juvenile’s welfare; and that the juvenile does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian. Therefore, the juvenile is a neglected juvenile pursuant to N.C. Gen. Stat. § 7B-101(15).

¶7 The trial court concluded as a matter of law that Glenda was a neglected

juvenile. In the Disposition portion of the Order, the trial court ordered Glenda

remain in DSS custody and provided for visitation with Respondent-Parents. Father

timely filed Notice of Appeal on 28 October 2021.

Issue

¶8 The dispositive issue on appeal is whether the trial court’s adjudicatory

Findings of Fact support its Conclusion of Law that Glenda is a neglected juvenile. IN RE: G.C.

Analysis

¶9 Our review of an adjudication of neglect is constrained to whether the trial

court’s conclusions of law are supported by its findings of fact. See In re Montgomery,

311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) (citation omitted). “[I]n a non-jury

neglect adjudication, the trial court’s findings of fact supported by clear and

convincing competent evidence are deemed conclusive, even where some evidence

supports contrary findings.” In re J.A.M., 372 N.C. 1, 8, 822 S.E.2d 693, 698 (2019)

(citations omitted). “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.” In re K.S., 380 N.C. 60, 2022-NCSC-7, ¶ 8. A trial court’s adjudication of

neglect is a conclusion of law that this Court reviews de novo. Id. at ¶ 8 (citation

omitted); In re W.C.T., 280 N.C. App. 17, 2021-NCCOA-559, ¶ 27 (citations omitted).

¶ 10 As an initial matter, as part of his broader challenge to the trial court’s neglect

adjudication, Respondent-Father challenges two of the trial court’s findings: Findings

of Fact 34 and 36. In Finding of Fact 34, the trial court recited7 a portion of the Report

of Autopsy Examination performed on Gary:

34. That the medical examiner’s autopsy report on [Gary]

7 See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (findings simply reciting the evidence presented at trial are not the required ultimate findings of fact). However, “[t]here is nothing impermissible about describing testimony, so long as the court ultimately makes its own findings, resolving any material disputes[.]” In re A.E., 2021-NCSC- 130, ¶ 18 (quoting In re T.N.H., 372 N.C. at 408, 831 S.E.2d at 59). IN RE: G.C.

dated 3/13/20, stated that “. . . sleeping in an environment with blankets while less than one year of age is a risk factor for an accidental asphyxial event. An asphyxial event cannot be ruled out based on the autopsy findings.” (Emphasis in original).

Specifically, Respondent-Father asserts this Finding “omits the Medical Examiner’s

conclusion that it was possible that Gary’s death was caused by sudden infant death

syndrome.” Respondent-Father is correct the Medical Examiner’s report also noted

the findings “could be consistent with a diagnosis of sudden infant death syndrome.”

Indeed, the report concludes “the cause and manner of death are best classified as

undetermined.” However, we do not read Finding 34 as the trial court making any

final determination of Gary’s cause of death. We read it in context with the other

findings that: Respondent-Parents had been instructed on proper sleeping

arrangements for children; later, Gary was found unresponsive in the Pack ‘n’ Play

with blankets; first-responders observed signs consistent with asphyxiation; and the

Medical Examiner noted such a sleeping environment at less than one year old was

a risk factor for asphyxiation and thus could not be ruled out as a cause of death.

Taken together, these Findings tend to show Respondent-Parents caused Gary to be

in an injurious environment at the time of his death.

¶ 11 Finding 36 states:

36. The evidence presented rises to the level of neglect pursuant to N.C. Gen. Stat. § 7B-101(15) in that the juvenile lived in an environment injurious to the IN RE: G.C.

juvenile’s welfare; and that the juvenile does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian. Therefore, the juvenile is a neglected juvenile pursuant to N.C. Gen. Stat. § 7B-101(15).

Although denominated as a Finding of Fact by the trial court, “[t]he determination of

neglect requires the application of the legal principles set forth in [the neglect statute]

and is therefore a conclusion of law.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d

672, 675-76 (1997). Because this Finding is more properly designated a Conclusion

of Law, we treat it as such for the purposes of this appeal. Id. In so doing, we review

it in connection with the trial court’s denominated Conclusion of Law 2 that Glenda

“is a neglected juvenile” and its decree Glenda “is hereby adjudicated a neglected

juvenile[.]”

¶ 12 Respondent-Father argues the trial court erred in making these legal

conclusions and adjudicating Glenda as neglected because “Mother’s previous cases

and convictions of misdemeanor child abuse involving her other children do not

support an adjudication of current or future neglect as to Glenda.” DSS, for its part,

“does not take a position” on whether the trial court’s Findings support its neglect

adjudication. The Guardian ad Litem, however, contends the Findings of Fact do

support an adjudication of neglect.

¶ 13 A “[n]eglected juvenile” is defined, in relevant part, as “[a]ny juvenile less than

18 years of age . . . whose parent, guardian, custodian, or caretaker . . . [d]oes not IN RE: G.C.

provide proper care, supervision, or discipline . . . [or] [c]reates or allows to be created

a living environment that is injurious to the juvenile’s welfare.” N.C. Gen. Stat. § 7B-

101(15) (2021). Relevant to the determination of a neglected juvenile is “whether that

juvenile lives in a home where another juvenile has died as a result of suspected abuse

or neglect or lives in a home where another juvenile has been subjected to abuse or

neglect by an adult who regularly lives in the home.” Id.

¶ 14 “The neglect statute ‘neither dictates how much weight should be given to a

prior neglect adjudication, nor suggests that a prior adjudication is determinative.’ ”

In re J.A.M., 372 N.C. at 9, 822 S.E.2d at 698 (quoting In re A.K., 360 N.C. 449, 456,

628 S.E.2d 753, 757 (2006)). “ ‘Rather, the statute affords the trial judge some

discretion in determining the weight to be given such evidence.’ ” Id. (quoting In re

Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994). However, “[a] court may

not adjudicate a juvenile neglected solely based upon previous Department of Social

Services involvement relating to other children.” Id.

¶ 15 “Rather, in concluding that a juvenile ‘lives in an environment injurious to the

juvenile’s welfare,’ N.C.G.S. § 7B-101(15), the clear and convincing evidence in the

record must show current circumstances that present a risk to the juvenile.” Id.

Indeed, our Courts have “additionally ‘required that there be some physical, mental,

or emotional impairment of the juvenile or a substantial risk of such impairment as

a consequence of the failure to provide “proper care, supervision, or discipline” ’ in IN RE: G.C.

order to adjudicate a juvenile neglected.” In re Helms, 127 N.C. App. 505, 511, 491

S.E.2d 672, 676 (1997) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898,

901–02 (1993)) (emphasis in original). “[A] prior and closed case with other children

. . . standing alone, cannot support an adjudication of current or future neglect.” In re

J.A.M. 372 N.C. at 9, 822 S.E.2d at 699 (internal quotations omitted) (citation

omitted) (emphasis in original). “Instead, we ‘require[ ] the presence of other factors

to suggest that the neglect or abuse will be repeated.’ ” Id. at 9–10, 822 S.E.2d at 699

(quoting In re J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 487, 489 (2014)).

¶ 16 Likewise, this Court has recognized that in determining whether a juvenile is

neglected based on prior abuse or neglect of other children by an adult who regularly

lives in the home: “The decision of the trial court regarding whether the other children

in the home are neglected, ‘must of necessity be predictive in nature, as the trial court

must assess whether there is a substantial risk of future abuse or neglect of a child

based on the historical facts of the case.’ ” In re S.M.L., 272 N.C. App. 499, 515 , 846

S.E.2d 790, 801 (2020) (quoting In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d

121, 127 (1999)). “If the trial court relies on instances of past abuse or neglect of other

children in adjudicating a child neglected, the court is required to find ‘the presence

of other factors to suggest that the neglect or abuse will be repeated.’ ” Id. at 516,

846 S.E.2d at 801 (quoting In re J.C.B., 233 N.C. App. 641, 644, 757 S.E.2d 487, 489

(2014)). IN RE: G.C.

¶ 17 In this case, the trial court made no finding or determination Glenda suffered

any physical, mental, or emotional impairment or that Glenda was at a substantial

risk of such impairment as a consequence of any failure to provide proper care,

supervision, or discipline to support the adjudication of Glenda as a neglected

juvenile. See In re: J.A.M., 372 N.C. at 9, 822 S.E.2d at 698. Instead, the existing

Findings show the trial court adjudicated Glenda neglected solely based on its

findings of the prior DSS involvement with Respondent-Mother’s older children and

the circumstances surrounding the death of Respondent-Parent’s infant son Gary.

Crucially, as in In re S.M.L. and In re J.C.B. and unlike in J.A.M., the trial court

failed to find “the presence of other factors” indicating a present risk to Glenda when

it reached its conclusion that Glenda was neglected as a matter of law. See id. at 10,

822 S.E.2d at 698. Thus, the trial court’s Findings do not support its Conclusion

adjudicating Glenda as a neglected juvenile. Therefore, the trial court erred in

adjudicating Glenda as a neglected juvenile. Consequently, the trial court’s

Adjudication and Disposition Order must be vacated and this matter remanded to

the trial court to determine whether facts supporting an adjudication of neglect may

be found by clear and convincing evidence on the existing record.8 If so, the trial court

8 We acknowledge the majority of the trial court’s key evidentiary findings at adjudication are grounded in the stipulated facts and, as a result, there is a limited evidentiary record for the trial court to draw upon in making additional findings. IN RE: G.C.

should enter a new adjudication of neglect supported by such Findings of Fact and

then proceed to a new disposition hearing. If not, the trial court should dismiss the

Petition.

Conclusion

¶ 18 Accordingly, for the foregoing reasons, we vacate the trial court’s Adjudication

and Disposition Order and remand this matter to the trial court for a determination

of whether additional adjudicatory findings may be made on the existing record as

set forth above.

VACATED AND REMANDED.

Judge INMAN concurs.

Judge GRIFFIN dissents. No. COA22-38 – In re G.C.

GRIFFIN, Judge, dissenting.

¶ 19 It is clear from our precedent that previous DSS involvement with other

children is not by itself a sufficient basis to adjudicate a juvenile neglected and that,

“[i]nstead, we require [] the presence of other factors to suggest that the neglect . . .

will be repeated.” Matter of J.A.M., 372 N.C. at 9–10, 822 S.E.2d at 699 (citation and

internal quotation marks omitted). Contrary to the majority’s position, while the trial

court made findings relating to Mother’s older children’s adjudications of abuse,

neglect, and dependent “based on one of the children [being] severely malnourished

because [Mother] and those children’s father failed to feed the child[,] [and] [t]hat

child also had bruises on him[,]” this was not the sole basis of its determination of

neglect. Rather, the “other factors” that the court relied on were the specific findings

relating to the circumstances of Gary’s death, a child who DSS had no previous

involvement with, under Mother’s supervision, in the home that Glenda also resided

in. In relation to Gary’ death, the trial court found:

29. Respondent Father and Respondent Mother have been instructed about proper sleeping arrangements for children.

32. That when the EMS arrived on the scene, they noticed the juvenile foaming from the nose and the mouth, indicative of asphyxiation.

33. That the Fayetteville Police Department incident IN RE G.C.

GRIFFIN, J., dissenting.

report dated 3/12/20 stated, they noticed two used baby bottles and several blankets in the Pack ’n Play.

34. That the medical examiner’s autopsy report on [Gary] dated 3/13/20 stated that “. . . sleeping in an environment with blankets while less than one year of age is a risk factor for an accidental asphyxial event. An asphyxial event cannot be ruled out based on the autopsy findings.”

(Emphasis in original). The trial court’s findings reflect that Mother has not only had

previous issues with neglecting her older children, but now, under the current

circumstances that Glenda resided in, a child died under Mother’s supervision. These

findings taken together “suggest that the neglect . . . will be repeated.” Matter of

J.A.M., 372 N.C. at 9–10, 822 S.E.2d at 699 (citation and internal quotation marks

omitted).

¶ 20 Additionally, while the trial court did not make a specific finding that Glenda

was at a substantial risk of harm due to a failure to provide proper care, supervision,

or discipline, this Court has concluded that such a finding is unnecessary where it is

clear from the evidence. Matter of K.S., 380 N.C. 60, 2022-NCSC-7, ¶ 9; Matter of

Safriet, 112 N.C. App. 747, 753, 436 S.E.2d 898, 902 (1993) (“Although the trial court

failed to make any findings of fact concerning the detrimental effect of [the mother]’s

improper care on [the juvenile]’s physical, mental, or emotional well-being, all the

evidence supports such a finding.” (citation omitted)). Consistent with the analysis

above, the evidence is clear that Glenda is at a substantial risk of harm in the Parents’ IN RE G.C.

home based upon the trial court’s findings about Mother’s older children, showing a

history of neglecting children, and the findings detailing the circumstances around

Gary’s death, evidencing current issues with supervision and care in Parents’ home.

¶ 21 For these reasons, I respectfully dissent.