In re N.G.

650 S.E.2d 45, 186 N.C. App. 1
Court of Appeals of North Carolina·Decided September 18, 2007·No. No. COA07-369.·Published·Cited by 58 cases

Opinions

ELMORE, Judge.

On 24 October 2005, the Harnett County Department of Social Services (DSS) filed a juvenile petition alleging that N.G. was a neglected child. DSS claimed that N.G. was not receiving proper medical care due to respondents' desire to conceal the child's existence from DSS. DSS alleged that respondents concealed the pregnancy and birth of the child due to the family's history with the agency. Specifically, DSS noted that respondents' parental rights had been terminated with respect to their first child, and that their second child was in DSS custody. DSS further stated that respondents' first child, L.G., sustained injuries associated with "shaken baby syndrome" and that the injuries were deemed non-accidental. Respondents' second child was removed based on the assessment that the home environment being assessed as injurious to the child's welfare. DSS alleged that N.G. also lived in an environment injurious to her welfare due to the significance of L.G.'s injuries, respondents' lack of cooperation with DSS, and their inability to take responsibility or explain L.G.'s injuries. A non-secure custody order was entered and N.G. was removed from respondents' home.

An adjudicatory and dispositional hearing was held on 20 September 2006. On 30 January 2007, the trial court entered the written adjudicatory and disposition order. The trial court found that N.G. was a neglected juvenile in that she lived in an environment injurious to her welfare. The trial court awarded custody to DSS, concluded that reunification would be futile, and ceased visitation. Respondents appeal.

I.

Respondents first argue that adjudicatory findings of fact numbers 5, 7, 9, 10, 12, 18, 24, 25, and 27, as well as dispositional findings of fact numbers 5, 6, 7, 8, and 9, are contrary to the evidence presented. Respondents further challenge the trial court's adjudicatory conclusions of law.

"Allegations of neglect must be proven by clear and convincing evidence. In 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 Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations omitted).

In findings of fact numbers 5 and 7, the trial court found that N.G. lived in an environment injurious to her welfare because she was allowed to live in a home where an older sibling had been subjected to abuse and respondents had not adequately addressed the conditions that led to the abusive acts. Further, the trial court found that L.G. suffered physical injuries by other than accidental means while in respondents' care. The court then listed L.G.'s many injuries, including *48intracranial injuries, skull fractures, fractured ribs, and fractured tibias. In finding of fact number 9, the trial court found:

The rib injuries . . . were consistent with being caused by direct impact or from forceful squeezing or compression of her ribs. The injuries to her tibias were likely caused by forceful twisting or torques of those bones. The head injuries were caused by [L.G.] being shaken violently and/or from a forceful impact to her head.

Respondents contend that petitioner failed to present clear, cogent, and convincing evidence that either respondent caused the injuries. However, in the order terminating respondents' parental rights to L.G., the trial court made almost identical findings, and found that L.G. was "an abused child in that she suffered physical injuries by other than accidental means while in the care of her parents." "The doctrine of collateral estoppel operates to preclude parties `from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.'" In re Wheeler, 87 N.C.App. 189, 194, 360 S.E.2d 458, 461 (1987)(quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Therefore, respondents are estopped from denying responsibility for L.G.'s injuries.

Respondents next challenge findings made by the trial court relating to their cooperation with DSS and completion of their case plan. In finding of fact number 12, the trial court found that respondents failed to cooperate with DSS and made no progress on taking steps to improve their parenting skills. In findings of fact numbers 23 and 24, the trial court found that respondents "failed to make reasonable progress on improving their parenting skills and abilities" and had "not engaged in treatment services as ordered by the court and have continued to deny any responsibility for the injuries involving the older sibling . . . or acknowledge any wrongdoings involving that child." In dispositional finding of fact number 6, the trial court found that respondents had failed to cooperate with the various social workers and failed to fully cooperate with family service plans, and that respondents had failed to take responsibility for L.G.'s injuries and blamed others for the injuries without any reliable evidence to support their claims. In dispositional finding of fact number 7, the trial court found that respondents were "directed . . . to participate in the Family PRIDE Program to include individual counseling or therapy for each parent by a therapist approved by DSS and the [guardian ad litem]."

Respondents assert that they made efforts at cooperating with social workers and complying with their case plan. Respondents note that prior orders of the court allowed them to participate in "comparable" programs approved by DSS and the guardian ad litem. Respondents contend that they sought approval of alternative programs and attended these programs, but that their attempts at gaining approval of these programs were ignored. Finally, respondent-mother argues that she should not be faulted for refusing to admit that she injured the older sibling, noting that she has steadfastly maintained her innocence and is not required to prove her innocence.

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In re N.G., 650 S.E.2d 45, 186 N.C. App. 1 (N.C. Ct. App. 2007).

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