In re K.F.

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1270
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.

NO. COA13-1270 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

IN THE MATTER OF: Guilford County No. 12 JA 532 K.F.

Appeal by respondent-mother and respondent-father from

order entered 30 August 2013 by Judge H. Thomas Jarrell in

Guilford County District Court. Heard in the Court of Appeals 7

April 2014.

Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services.

Robert W. Ewing for respondent-appellant mother.

Michael E. Casterline for respondent-appellant father.

Donna Michelle Wright for guardian ad litem.

HUNTER, Robert C., Judge.

Respondent-mother and respondent-father (collectively,

“respondents”) appeal from an order concluding that K.F. -2- (“Kendrick”)1 was an abused, neglected, and dependent juvenile.

After careful review, we affirm in part and reverse in part.

Background

On or about 28 November 2012, the Guilford County

Department of Social Services (“DSS”) took fourteen-month-old

Kendrick into nonsecure custody and filed a juvenile petition

alleging that he was abused, neglected, and dependent. The

petition alleged that respondent-father had confessed to killing

Kendrick’s infant brother, Keith, on 27 November 2012. Law

enforcement officers responded to the home, and also noted that

Kendrick had a bruise on his abdomen, had a diaper rash that was

bleeding, and appeared to be dehydrated.

The trial court conducted a hearing on 1 August 2013 and

entered an order on 30 August 2013 concluding that Kendrick was

an abused, neglected, and dependent juvenile within the

definition of N.C. Gen. Stat. § 7B-101(1), (9), and (15). The

trial court made the following pertinent findings of fact in the

adjudicatory portion of its order:

8. The juvenile’s infant sibling, [Keith], . . . was killed by the juvenile’s father[.] [Respondent-father] confessed to killing [Keith] to High Point Police. [Respondent-father]

1 Pseudonyms are used to protect the identity of the juveniles involved and for ease of reading. -3- indicated that he “snapped” around 5:00 a.m. and reached in and strangled the baby and began hitting the baby with his fists. The autopsy report indicated that [Keith] died as a result of blunt force trauma to the head and abdomen.

9. The mother, [], was also in the bedroom at the time the infant was killed. Neither parent called 911 until after 3:00 p.m. Both the mother and the father have been indicted with First Degree Murder in the death of [Keith] and are currently in the custody of the Guilford County Jail.

10. On the night of the murder, [Kendrick] was left in a car seat from 9:00 p.m. until 1:00 p.m. the following day. When officers arrived at the house, [Kendrick] was bleeding from his buttocks, had several bruises on his abdomen, and appeared dehydrated. The bleeding appeared to be the result of severe diaper rash.

In the dispositional portion of the order, the trial court

maintained custody of Kendrick with DSS, concluded that

reunification efforts would be futile and inconsistent with

Kendrick’s safety and need for a safe, permanent home within a

reasonable period of time, and changed the permanent plan for

Kendrick to adoption. Respondents timely appealed.

Discussion

On appeal, both respondents challenge the trial court’s

adjudication of dependency, and respondent-mother also -4- challenges the adjudication of abuse. “The role of this Court

in reviewing a trial court’s adjudication . . . 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) (internal quotation

marks omitted), aff’d as modified, 362 N.C. 446, 665 S.E.2d 54

(2008). “If such evidence exists, the findings of the trial

court are binding on appeal, even if the evidence would support

a finding to the contrary.” Id. Neither respondent challenges

any of the trial court’s findings of fact. Therefore, the

findings are binding on appeal. See In re M.D., 200 N.C. App.

35, 43, 682 S.E.2d 780, 785 (2009).

I.

First, we turn to respondents’ arguments that the trial

court’s adjudication of dependency is not supported by its

findings of fact. Our juvenile code defines a dependent

juvenile as one “in need of assistance or placement because the

juvenile has no parent, guardian, or custodian responsible for

the juvenile’s care or supervision or whose parent, guardian, or

custodian is unable to provide for the care or supervision and

lacks an appropriate alternative child care arrangement.” N.C. -5- Gen. Stat. § 7B-101(9) (2011). In determining whether a

juvenile is dependent, the trial court is required to “address

both[:] (1) the parent’s ability to provide care or supervision,

and (2) the availability to the parent of alternative child care

arrangements.” In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d

403, 406 (2005). “Findings of fact addressing both prongs must

be made before a juvenile may be adjudicated as dependent, and

the court’s failure to make these findings will result in

reversal of the court.” In re B.M., 183 N.C. App. 84, 90, 643

S.E.2d 644, 648 (2007). Respondents both argue that the trial

court failed to make findings of fact establishing that they

lacked an alternative child care arrangement. Respondent-mother

additionally argues that the court failed to make findings of

fact establishing that she was unable to provide care and

supervision for Kendrick.

We agree with respondents’ argument that the trial court

failed to make findings of fact regarding the availability of an

alternative child care arrangement. None of the trial court’s

adjudicatory findings of fact addresses this prong, and DSS

failed to present any evidence on it at the hearing. Yet, at

the conclusion of the adjudicatory portion of the hearing, and

in the order’s conclusions of law, the trial court concluded -6- that DSS proved abuse, neglect, and dependency by clear and

convincing evidence. Without the necessary findings in support

of it, this conclusion is in error. See id. (reversing the

trial court’s order where it failed to make any findings

regarding the availability of alternative child care

arrangements).

DSS and the GAL argue that the second prong of the

dependency ground is supported by dispositional finding of fact

number 17, in which the trial court found that “[t]here are no

known or suitable relatives with whom [Kendrick] could be

placed[.]” We disagree. While the trial court did touch on the

availability of alternative child care arrangements in this

finding, it was a dispositional finding of fact and cannot

support the trial court’s adjudication for several reasons.

To begin, a proceeding to adjudicate a juvenile neglected,

abused, or dependent involves a two-stage process: the

adjudication stage governed by N.C. Gen. Stat. § 7B-805 and the

disposition stage governed by N.C. Gen. Stat. § 7B-901. See In

re O.W., 164 N.C. App. 699, 701, 596 S.E.2d 851, 853 (2004).

Although this Court has held there is no requirement that the

two hearings be conducted at two separate times, see id., the

trial court is required to apply different standards of proof at -7- the two stages. Id. At the adjudication stage, “[t]he

allegations in a petition alleging that a juvenile is abused,

neglected, or dependent shall be proved by clear and convincing

evidence.” N.C. Gen. Stat. § 7B-805 (2011). However, the

dispositional hearing “may be informal,” the court “may consider

any evidence, including hearsay evidence . . . that the court

finds to be relevant, reliable, and necessary to determine the

needs of the juvenile and the most appropriate disposition,” and

the court’s placement determination at disposition is

discretionary. N.C. Gen. Stat. § 7B-901 (2011); see O.W., 164

N.C. App. at 701, 596 S.E.2d at 853. Thus, a dispositional

finding of fact does not satisfy the statutory requirement that

the adjudication order “contain appropriate findings of fact and

conclusions of law.” N.C. Gen. Stat. § 7B–807(b) (2011).

Furthermore, the nature of the trial court’s hearing in

this particular matter makes it difficult for this Court to

simply “relabel” a dispositional finding of fact, as DSS

suggests we do. Only one DSS social worker testified at the

adjudicatory hearing, and her testimony did not address the lack

of an alternative child care arrangement. Nonetheless, the

trial court adjudicated Kendrick neglected, abused, and

dependent. The trial court then proceeded to disposition, where -8- the GAL and another DSS social worker testified. Again, none of

the testimony addressed lack of an alternative child care

arrangement. At the conclusion of the hearing, the trial court

adopted DSS’s court summary; however, the court summary was for

dispositional purposes, and it is not clear that the trial court

admitted it into evidence. Based on the foregoing, it is

apparent that the trial court adjudicated Kendrick dependent

without considering any evidence pertaining to the availability

of an alternative child care arrangement. And, to the extent

that the trial court considered any such evidence, the incorrect

standard of proof was employed for the purpose of adjudicating

Kendrick dependent.

Based on the foregoing, we are compelled to reverse the

trial court’s adjudication of dependency and remand for further

proceedings. See In re K.D., 178 N.C. App. 322, 329, 631 S.E.2d

150, 155 (2006) (“[T]he trial court’s language in the

adjudication order tracks the first prong of the definition of

dependency, but ignores the second. We, therefore, reverse as

to K.D.’s dependency, and remand to the trial court for further

findings as to whether K.D. lacks ‘an appropriate alternative

child care arrangement.’”). Because we reverse based on the

lack of findings pertaining to the second prong of dependency, -9- we need not address respondent-mother’s challenge to the first

prong.

II.

Next, we turn to respondent-mother’s argument that the

trial court erred in adjudicating Kendrick to be an abused

juvenile. Our juvenile code defines an abused juvenile as,

inter alia, “[a]ny juvenile less than 18 years of age whose

parent . . . [i]nflicts or allows to be inflicted upon the

juvenile a serious physical injury by other than accidental

means” or “[c]reates or allows to be created a substantial risk

of serious physical injury to the juvenile by other than

accidental means[.]” N.C. Gen. Stat. § 7B-101(1)(a), (b)

(2011). Respondent-mother argues that the only evidence of any

alleged abuse against Kendrick is the fact that he was left in a

car seat for sixteen hours. Respondent-mother contends that

this does not amount to serious physical injury, and, therefore,

the evidence cannot sustain a conclusion that Kendrick was

abused.

Respondent-mother’s argument fails for several reasons.

First, we note that N.C. Gen. Stat. § 7B-101(1) does not define

“serious physical injury.” And, we have stated that “the nature

of an injury is dependent upon the facts of each case and, based -10- on the evidence before us in [each] case.” In re L.T.R., 181

N.C. App. 376, 383, 639 S.E.2d 122, 126 (2007). Second,

respondent-mother appears to overlook the fact that the

statutory definition of abuse under N.C. Gen. Stat. § 7B-

101(1)(b) does not require actual injury. Under this

subsection, “a substantial risk of serious physical injury” is

sufficient. N.C. Gen. Stat. § 7B-101(1)(b) (emphasis added).

This Court has sustained an adjudication of abuse where the

parent was aware of the existence of a risk to the child but

failed to “take the necessary steps to protect the minor

[child].” In re M.G., 187 N.C. App. 536, 549, 653 S.E.2d 581,

589 (2007) (internal quotation marks omitted), rev’d in part on

other grounds, 363 N.C. 570, 681 S.E.2d 290 (2009). Indeed,

DSS’s petition alleges abuse based on substantial risk of

physical injury.

After reviewing the record, we conclude that the trial

court’s findings were sufficient to establish that respondent-

mother, at minimum, subjected Kendrick to substantial risk of

physical injury. The findings establish that fourteen-month-old

Kendrick was left in a car seat for sixteen hours, which

resulted in bruising to Kendrick’s abdomen. During this time,

respondents failed to change his diaper or feed him, which -11- resulted in severe diaper rash and dehydration. In fact, his

diaper rash was so severe that Kendrick’s bottom was bleeding.

Based on the foregoing, we hold that the trial court did not err

in concluding that Kendrick was an abused juvenile pursuant to

N.C. Gen. Stat. § 7B-101(1).

Conclusion

Based on the foregoing reasons, we affirm in part and

reverse in part the trial court’s order, and we remand for

further proceedings as to dependency.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Judges GEER and McCULLOUGH concur.

Report per Rule 30(e).