In re: N.R.R.N.

• Court: Court of Appeals of North Carolina
• Decided: February 5, 2025
• Docket: 24-403
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-403

Filed 5 February 2025

Forsyth County, No. 24 J 001

IN THE MATTER OF: N.R.R.N. aka N.R.N.

Appeal by respondent-parents from order entered 21 February 2024 by Judge

David E. Sipprell in District Court, Forsyth County. Heard in the Court of Appeals

5 November 2024.

Deputy County Attorney Theresa A. Boucher for petitioner-appellee Forsyth County Department of Social Services.

Michelle FormyDuval Lynch for the guardian ad litem.

Edward Eldred for respondent-appellant mother.

Marion K. Parsons for respondent-appellant father.

STROUD, Judge.

Respondent-Parents appeal from an order entered 21 February 2024

adjudicating their infant child abused and neglected and relieving Petitioner Forsyth

County Department of Social Services of efforts to reunify Respondent-Parents with

the child. We affirm the trial court’s adjudication of the infant child to be a neglected

juvenile and affirm in part and vacate in part the trial court’s disposition ceasing

reunification efforts.

I. Background

Respondent-Parents Karema Coleman (“Mother”) and Patrick Nicholson IN RE: N.R.R.N

Opinion of the Court

(“Father”) (collectively, “Parents”) are the mother and father of minor child Nora,1

born January 2024. Two days after Nora’s birth, Forsyth County Department of

Social Services (“DSS”) filed a Juvenile Petition alleging Nora to be an abused and

neglected juvenile. An order for non-secure custody was granted that same day. The

petition’s allegations, and the trial court’s order finding Nora to be abused and

neglected, were based mostly on Parents’ treatment of Nora’s older sister, Nan.

Born at twenty-seven weeks gestation in January 2023, Nan2 remained in

neonatal intensive care until she was released to the care of Parents on 12 April 2023.

Only one week later, Parents returned to the hospital to admit Nan for a “near fatality

event.” Nan was diagnosed with three skull fractures, a large bilateral subdural

hematohygroma, extensive fluid and bleeding around her spinal cord, and more. A

doctor determined:

This constellation of injuries without any accidental explanation is highly concerning for abusive head trauma. These significant concerns are heightened by the information we have regarding very concerning behaviors by [Nan]’s father which were documented while [Nan] was in the NICU. We would consider this a near-fatality for [Nan] and she likely would have died without lifesaving resuscitation in the ED.

In accordance with these findings and others, a trial court adjudicated Nan an abused

and neglected juvenile by order filed on 27 October 2023. Further, on 28 September

1 Stipulated pseudonyms are used to protect the identity of minor children. See N.C. R. App. P. 42. 2 Also a stipulated pseudonym.

-2- IN RE: N.R.R.N

2023, both Mother and Father were charged with Felony Intentional Child Abuse

Inflicting Serious Physical Injury and Felony Intentional Child Abuse Inflicting

Serious Bodily Injury. At the time of Nora’s adjudication hearing on 12 February

2024, Mother had been released on bond for these charges, while Father remained in

the Forsyth County Detention Center awaiting trial.

Parents previously appealed Nan’s adjudication to this Court, in which we

concluded the trial court did not err in finding Nan an abused and neglected juvenile.

See In re N.N., ___ N.C. App. ___, 907 S.E.2d 430 (2024).

As for Nora and the case at hand, the trial court adjudicated her abused and

neglected given both Mother and Father’s felony child abuse charges, finding Nora to

be “at substantial risk of harm based upon the serious physical abuse inflicted on her

sibling which injuries occurred while [Nan] was 3 months old, and she had only been

in the care of [Mother] and [Father] for one week.”

Mother filed notice of appeal on 21 February 2024. Father filed notice of appeal

on 15 March 2024.

II. Standard of Review

In juvenile adjudications of abuse and neglect,

[a]n appellate court reviews a trial court’s adjudication to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law. 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. Conclusions of law made by the trial court are

-3- IN RE: N.R.R.N

reviewable de novo on appeal. An appeal de novo is one in which the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the trial court.

In re K.S., 380 N.C. 60, 64, 868 S.E.2d 1, 4 (2022) (citations, quotation marks,

brackets, and footnotes omitted). “At the adjudicatory stage, the petitioner bears the

burden of proving by ‘clear, cogent, and convincing evidence’ the existence of one or

more grounds for termination under section 7B-1111(a) of the General Statutes.” In

re A.U.D., 373 N.C. 3, 5-6, 832 S.E.2d 698, 700 (2019) (quoting N.C. Gen. Stat. § 7B-

1109(f)).

“It is well established that ‘clear and convincing’ and ‘clear, cogent, and

convincing’ describe the same evidentiary standard.” In re Montgomery, 311 N.C.

101, 109, 316 S.E.2d 246, 252 (1984). This evidentiary standard is an intermediate

standard “greater than the preponderance of the evidence standard required in most

civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt

required in criminal cases.” Id. at 109-110, 316 S.E.2d at 252 (citing Santosky v.

Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982)).

III. Analysis

Mother and Father present similar arguments on appeal. First, both challenge

the findings of fact based on the claims that the evidence presented at adjudication

was insufficient because DSS presented the verified petition and testimony from DSS

-4- IN RE: N.R.R.N

investigator Natasha Price who verified the petition was true. Second, Parents

contend the findings of fact do not support the adjudication of abuse as they would

“[a]t most” support a conclusion that Nora was only at risk of abuse, and therefore

neglected. Third, Parents contend they were denied their right to effective assistance

of counsel during the 12 February 2024 adjudication hearing. Finally, Parents argue

the trial court erred by ceasing reunification efforts during the initial disposition. We

address each issue in turn.

A. Sufficiency of the Evidence

Both Mother and Father challenge the sufficiency of the evidence relied on by

the trial court in adjudicating Nora to be an abused and neglected juvenile.

Specifically, Parents contend the trial court’s findings of fact “[were] not supported

by clear, cogent, and convincing evidence where the only evidence was the verified

petition and the verifier’s testimony that the information in the petition was true.”

1. Findings of Fact

On appeal, Father argues ten of the fifteen substantive findings made by the

trial court during the adjudicatory phase were insufficient to support abuse and

neglect under the standard of clear and convincing evidence because they were

“verbatim recitations” of the petition’s allegations. In making this argument, Father

cites to this Court’s opinion in In re M.K., which stated

[r]egurgitated allegations do not reflect a reconciliation and adjudication of all the evidence by the trial court to allow this Court to determine whether sufficient findings

-5- IN RE: N.R.R.N

of fact are supported by clear, cogent and convincing evidence. Without adjudicated findings of fact this Court cannot conduct a meaningful review of the conclusions of law and test the correctness of the trial court’s judgment.

In re M.K., 241 N.C. App. 467, 470-71, 773 S.E.2d 535, 538 (2015) (citations, brackets,

and quotation marks omitted). As noted in In re M.K., this Court has “strongly

discouraged” verbatim recitation of “the allegations from the petition.” Id. at 471,

773 S.E.2d at 539. However, this Court in In re M.K. ultimately reviewed the other

“substantive findings of fact, which form[ed] the basis for the trial court’s adjudication

of neglect[,]” id., and concluded that “[t]he trial court’s evidentiary and adjudicatory

findings of fact [were] supported by clear, cogent and convincing evidence[,]” id. at

476, 773 S.E.2d at 541.

This Court has also made it clear

it is not per se reversible error for a trial court’s fact findings to mirror the wording of a petition or other pleading prepared by a party. Instead, this Court will examine whether the record of the proceedings demonstrates that the trial court, through processes of logical reasoning, based on the evidentiary facts before it, found the ultimate facts necessary to dispose of the case. If we are confident the trial court did so, it is irrelevant whether those findings are taken verbatim from an earlier pleading.

....

[I]t would impose an impossible burden on trial court judges if we were to hold that any findings “cut-and-pasted” from a party’s pleading automatically warranted reversal of the order. If a trial court, after carefully considering the evidence, finds that the facts are exactly as alleged in a

-6- IN RE: N.R.R.N

party’s pleading, there is nothing wrong with repeating those same words in an order. The purpose of trial court orders is to do justice, not foster creative writing.

In re J.W., 241 N.C. App. 44, 48-49, 772 S.E.2d 249, 253 (2015).

In In re J.W., this Court concluded the trial court “through processes of logical

reasoning, based on the evidentiary facts before it, found the ultimate facts necessary

to support its conclusions of law,” even though some findings had been “cut-and-

pasted” wording from the juvenile petition. Id. at 49, 772 S.E.2d at 254. In support

of these findings being ultimate facts, this Court noted the trial court heard four days

of testimony corroborating the allegations before making its final adjudication. See

id. “Accordingly, we will only consider those findings that are, in fact, supported by

evidence in the record regardless of whether they mirror the language used in the

petition.” In re L.C., 253 N.C. App. 67, 71, 800 S.E.2d 82, 86 (2017).

Mother also argues that the findings of fact were not supported by clear, cogent

and convincing evidence. Mother contends that in reviewing findings of fact which

must be based upon clear, cogent, and convincing evidence, the appellate court should

“account for the ‘level of confidence’ the trial court’s standard of proof demands[,]”

basing her argument on a case from the California Supreme Court which clarified

“how an appellate court is to review the sufficiency of the evidence associated with a

finding made by the trier of fact pursuant to the clear and convincing standard.” See

Conservatorship of O.B., 9 Cal. 5th 989, 995, 470 P.3d 41, 44 (2020). The California

Supreme Court in O.B. stated:

-7- IN RE: N.R.R.N

We now dispel this uncertainty over the proper manner of appellate review by clarifying that an appellate court evaluating the sufficiency of the evidence in support of a finding must make an appropriate adjustment to its analysis when the clear and convincing standard of proof applied before the trial court. In general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.

Id. at 1005, 470 P.3d at 50-51 (footnote omitted).

Mother contends “California’s analysis is instructive and persuasive” and that

“no North Carolina case performs such an exhaustive analysis[.]” Mother may be

correct that no North Carolina case addresses how an appellate court should review

findings as extensively as O.B., but this Court is still bound to follow North Carolina

law. The California Supreme Court’s extensive analysis was required by splits of

authority in cases decided by different divisions of the intermediate appellate courts

in California: “There is a split of opinion over how an appellate court should address

a claim of insufficient evidence such as the one advanced here.” Id. at 995, 470 P.3d

at 44. But North Carolina has no such split of authority to address, and this Court

is bound by precedent from our Supreme Court. See State v. Ledbetter, 243 N.C. App.

746, 751, 779 S.E.2d 164, 168 (2015) (“We are bound by the decisions of our Supreme

Court and by prior decisions of another panel of our Court addressing the same

question, unless overturned by an intervening decision from a higher court.” (citation

-8- IN RE: N.R.R.N

omitted)).

Mother’s main substantive argument based on North Carolina law is that

DSS’s reliance on the allegations of the petition cannot meet the standard of clear,

cogent, and convincing evidence. In In re Z.G.J., our Supreme Court held that the

evidence was sufficient to support adjudication of grounds for termination of parental

rights where DSS presented the petition and testimony from a DSS representative

“adopting the allegations” of the petition:

In this case, DSS called Johnson as a witness and tendered her to give testimony. While Johnson’s testimony was not extensive, she orally reaffirmed, under oath, all of the allegations from the termination petition. Respondent was given the opportunity to cross-examine Johnson with respect to any of these allegations, and she declined to do so. In light of Johnson’s testimony, the trial court conducted a proper adjudication hearing in accordance with N.C.G.S. § 7B-1109(e), and it did not err by relying on Johnson’s testimony adopting the allegations in the termination petition when it entered its adjudication order.

In re Z.G.J., 378 N.C. 500, 508, 862 S.E.2d 180, 187 (2021). Mother tries to

distinguish this case from In re Z.G.J. by arguing that here, Ms. Price “did not adopt

the petition’s allegations as her testimony. She merely testified the information in

the petition was true.” Also, Mother claims the respondent in In re Z.G.J. did not

challenge the sufficiency of the evidence to support the findings of fact.

Mother is correct that the social workers who testified in In re Z.G.J. did not

use the exact same words as the witness in this case to confirm that they had verified

the petitions and that the information in the petitions was true, but there is no

-9- IN RE: N.R.R.N

substantive difference in the meaning of their testimony. The Court in In re Z.G.J

did not hold that social workers must use magic words to testify in support of the

contents of the petition. In both In re Z.G.J. and this case, the testifying social

workers confirmed that the information in the petitions were true and accurate, and,

in both cases, the petition was then received into evidence with no objection. See id.

at 507, 862 S.E.2d at 186. There is no substantive difference between this case and

In re Z.G.J. as to the testimony of the social worker who verified the petitions.3

Mother then tries to distinguish In re Z.G.J. by arguing respondent in that

case “did not challenge the sufficiency of the evidence to support the findings[]”

beyond her challenge to the presentation of evidence by the social worker’s testimony

confirming the petition. But Mother likewise presents no substantive challenge to

the findings of fact other than claiming the trial court should not have relied on the

petition’s allegations. Father also presents no substantive challenges to the findings

3 In In re Z.G.J., the Supreme Court remanded because the issues in that case required findings

addressing circumstances at the time of the hearing, but the social worker’s testimony and allegations of the petition addressed only events as of the date of filing of the petition: However, the only evidence offered by DSS at adjudication was Johnson’s testimony adopting the termination petition, which was filed on 21 August 2018. The termination hearing did not occur until more than thirteen months later, on 24 September 2019. Thus, the allegations in the petition do not shed any light on respondent’s fitness to care for Ann at the time of the termination hearing, and the trial court erred by relying on the stale information in the petition as its only support for this ground. In re Z.G.J., 378 N.C. at 509-10, 862 S.E.2d at 188 (citation omitted). Here, the adjudication was properly based upon facts as of the date of the filing of the petition, and Ms. Price testified that the petition was “still true and accurate today as it was on the day [she] filed the petition.” Ms. Price also testified that neither parent had provided “an explanation as to how [Nan] had received her non- accidental trauma injuries in April of 2023.”

- 10 - IN RE: N.R.R.N

beyond contending only five of the findings “are not verbatim recitations of the

petition’s contents” and two others are really conclusions of law, not findings of fact.

Here, after examination of the entire record before us, we are satisfied the trial

court independently found the ultimate facts of the case based on sufficient evidence,

even though many of its substantive findings were verbatim recitations of the

wording in the petition. During the hearing, the court heard testimony from Ms.

Price, the Forsyth County DSS worker who signed and filed the juvenile petition

relating to Nora. Ms. Price testified to the truth and accuracy of the allegations

within the petition at the time of filing and attested to their truth and accuracy at

the time of trial. Ms. Price also testified neither Mother nor Father ever provided

any explanation to DSS as to how Nan received her injuries in April of 2023.

Following this testimony, neither counsel for Mother nor Father objected to the

admission of the juvenile petition into evidence, presented any evidence opposing the

petition and its allegations, nor elected to cross-examine Ms. Price. The trial court

noted the absence of objection and presentation of evidence opposing the petition in

its substantive adjudicatory findings of fact.

The trial court exercised logical reasoning and the competent evidence

supported its findings of fact. Along with the sworn testimony of Ms. Price, the record

on appeal also indicates the trial court relied on the prior adjudication and disposition

of Nan. The prior order regarding the abuse and neglect of Nan was part of the

evidence supporting the trial court’s findings regarding Nora. Where a prior order

- 11 - IN RE: N.R.R.N

adjudicates a sibling to be abused and neglected, and DSS relies upon the prior order

in allegations regarding another sibling’s risk of being subjected to similar harms,

the trial court may rely upon this evidence in making its findings of fact. See In re

N.G., 186 N.C. App. 1, 9, 650 S.E.2d 45, 50 (2007). Father’s argument the trial court’s

findings are insufficient because some are verbatim recitations of the petition’s

wording is without merit.

Father also argues two of the trial court’s findings are actually conclusions of

law. Specifically, Father challenges Findings 18 and 29, which read:

18. The Court finds that [Nora] is an abused and neglected juvenile as pursuant to N.C.G.S. 7B-101(1) and 7B-101(15).

29. Based upon the foregoing, the Court finds by clear, cogent and convincing evidence that [Nora] is an abused and neglected juvenile in that her parents have created or allowed to be created a substantial risk of serious physical injury by other than accidental means. Also, the parents of [Nora] have created or allowed to be created a living environment that is injurious to the child’s welfare.

Our Supreme Court has recently reiterated the distinction between ultimate

facts and conclusions of law:

There are two kinds of facts: Ultimate facts, and evidentiary facts. Ultimate facts are the final facts required to establish the plaintiff’s cause of action or the defendant’s defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts.

Ultimate facts are those found in that vaguely defined area lying between evidential facts on the one side

- 12 - IN RE: N.R.R.N

and conclusions of law on the other. In consequence, the line of demarcation between ultimate facts and legal conclusions is not easily drawn. An ultimate fact is the final resulting effect which is reached by processes of logical reasoning from the evidentiary facts. Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning or by an application of fixed rules of law.

When the statements of the judge are measured by this test, it is manifest that they constitute findings of ultimate facts, i.e., the final facts on which the rights of the parties are to be legally determined.

In re G.C., 384 N.C. 62, 66, n. 3, 884 S.E.2d 658, 661, n. 3 (2023) (citation, quotation

marks, and ellipses omitted).

We agree with Father’s contention that Finding 18 is a conclusion of law but

Finding 29 is a finding of ultimate fact. See id. at 67, 884 S.E.2d at 662 (“Here, the

trial court specifically found that Glenda ‘lived in an environment injurious to [her]

welfare; and that [she] does not receive proper care, supervision, or discipline from

[her] parent, guardian, [or] custodian.’ These findings are properly characterized as

ultimate findings and satisfy the statutory definition of neglected juvenile. The

ultimate findings of fact that Glenda does not receive proper care, supervision, or

discipline from her parents is supported by the trial court’s evidentiary findings of

fact and reached by natural reasoning from the evidentiary findings of fact.” (brackets

in original)). The mislabeling of conclusions of law as findings of fact, however, does

not defeat the issue for appellate review. See City of Charlotte v. Health, 226 N.C.

750, 755, 40 S.E.2d 600, 604 (1946) (“The label of fact put upon a conclusion of law

- 13 - IN RE: N.R.R.N

will not defeat appellate review.”); see also Stan D. Bowles Distributing Co. v. Pabst

Brewing Co., 69 N.C. App. 341, 344, 317 S.E.2d 684, 686 (1984) (“If the finding of fact

is essentially a conclusion of law, however, it will be treated as a conclusion of law

which is reviewable on appeal.” (citations omitted)). Father makes no argument

beyond those already addressed as to Finding 29, and this finding is supported by

evidentiary findings and by the evidence. We will address Finding 18 below as a

conclusion of law.

2. Conclusions of Law

We next address Parents’ challenges to the trial court’s conclusions of law that

Nora was a neglected and abused juvenile. Mother essentially concedes that the

findings of fact would support the conclusion that “Nora was at risk of being abused;

i.e., that she was neglected[]” and both Parents focus most of their argument upon

the adjudication of Nora’s status as an abused juvenile. We will first address the trial

court’s conclusion of law that Nora was a neglected juvenile.

a. Neglect Adjudication

Our North Carolina General Assembly has defined a neglected juvenile to

include a minor whose parent, guardian, or caretaker “[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)(e) (2023).

A court may not adjudicate a juvenile neglected solely based upon previous Department of Social Services involvement relating to other children. Rather, in

- 14 - IN RE: N.R.R.N

concluding that a juvenile lives in an environment injurious to the juvenile’s welfare, the clear and convincing evidence in the record must show current circumstances that present a risk to the juvenile.

In re J.A.M., 372 N.C. 1, 9, 822 S.E.2d 693, 698 (2019) (citations and quotation marks

omitted). “The neglect statute neither dictates how much weight should be given to

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

Rather, the statute affords the trial judge some discretion in determining the weight

to be given such evidence.” Id. (citations and quotation marks omitted).

Here, Parents argue the trial court improperly relied on the prior adjudication

of Nan in concluding Nora to also be a neglected and abused juvenile, contending

there were no other factors to support such conclusions. Our Supreme Court in In re

A.J.L.H. explained

[a]lthough a trial court cannot rely solely on abuse of another child in the home as a basis for a neglect adjudication, we have emphasized that a trial court need not wait for actual harm to occur to the child if there is a substantial risk of harm to the child in the home. This is particularly true for very young children, where the evaluation 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 A.J.L.H., 384 N.C. 45, 55, 884 S.E.2d 687, 694 (2023) (citations and quotation

marks omitted).

We agree with Parents’ claim the prior adjudication of Nan, standing alone,

cannot serve as grounds to adjudicate Nora as a neglected juvenile. We disagree,

- 15 - IN RE: N.R.R.N

however, with their claims that no other factors were present to support the trial

court’s conclusion of Nora to be a neglected juvenile. As our Supreme Court in In re

A.J.L.H. further explained:

When determining the weight to be given to a finding of abuse of another child in the home, a critical factor is whether the respondent indicates a willingness to remedy the injurious environment that existed with respect to the older child. Facts that can demonstrate a parent’s unwillingness to remedy the injurious environment include failing to acknowledge the older child’s abuse or insisting that the parent did nothing wrong when the facts show the parent is responsible for the abuse.

Id. at 56, 884 S.E.2d at 694-95 (emphasis added). In In re A.J.L.H., our Supreme

Court affirmed a trial court’s adjudication of a neglected juvenile, based on past abuse

of a sibling, on grounds that “[t]he key ‘other factor’ in this case, beyond the abuse of

[the fellow sibling], is respondents’ inability to recognize that it was abuse, and their

corresponding inability to commit to never repeating it.” Id. (emphasis in original).

Here, the trial court’s findings indicated neither Mother nor Father had

acknowledged the injurious environment created for Nan, nor had they taken any

steps to remedy this environment to ensure any potential future harm to Nora.

Specifically, in Finding 24, the trial court found “[d]uring the period from April 12-

19, 2023, [Nan] was in the exclusive care custody and control of her parents[.] Neither

parent has provided an explanation for the child’s injuries consistent with the medical

findings.” The unwillingness to acknowledge the abuse and take steps to ensure it

will never happen again is further supported by the trial court’s finding that, during

- 16 - IN RE: N.R.R.N

the hearing, Parents stood mute to the allegations of the petition and presented no

evidence in opposition.

Under precedent established by our Supreme Court, here, the trial court did

not have to wait for Nora to be subjected to similar harms faced by her sister before

adjudicating her neglected. See id. (“[T]he trial court was not required to wait for

Chris and Anna to reach the same age as Margaret before determining that they, too,

face a substantial risk of harm from these cruel and inappropriate disciplinary

measures.”). According to the trial court’s findings, Nan was only in the care of her

parents a little over a week following her birth before she was immediately re-

admitted to the hospital for her life-threatening injuries. Following Nora’s birth, a

little over a year after Nan’s, Parents had still provided no explanation for Nan’s

injuries. As Nora was around the same age as Nan when Nan sustained her injuries,

there was a substantial risk of physical harm to Nora, and the trial court is not

required to wait for this harm to occur before adjudicating Nora to be a neglected

juvenile. We affirm the trial court’s adjudication of Nora as a neglected juvenile.

b. Abuse Adjudication

Along with the trial court’s adjudication of Nora to be a neglected juvenile, the

trial court also determined her to be an abused juvenile under North Carolina

General Statute Section 7B-101(1). Parents argue, as they did with the neglect

adjudication, the evidence was insufficient to support the adjudication of Nora to be

an abused juvenile. We agree.

- 17 - IN RE: N.R.R.N

Section 7B-101(1) defines an “abused” juvenile as one whose “parent, guardian,

custodian, or caretaker:”

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;

c. Uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;

d. Commits, permits, or encourages the commission of a violation of [one or more of the included sexual offenses] by, with, or upon the juvenile . . . ;

e. Creates or allows to be created serious emotional damage to the juvenile . . . ; or

f. Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile.

N.C. Gen. Stat. § 7B-101(1) (2023). As noted by our Supreme Court in In re M.G.,

“[t]here is a commonality present in these criteria. Each definition states that a

juvenile is abused when a caretaker harms the juvenile in some way, allows the

juvenile to be harmed, or allows a substantial risk of harm.” In re M.G., 363 N.C.

570, 573, 681 S.E.2d 290, 292 (2009). As for the harm faced by a juvenile, or a

substantial risk of harm, “[t]he harm may be physical, see N.C.G.S. § 7B-101(1)(a),

(b); emotional, see id. § 7B-101(1)(e), (f); or some combination thereof, see id. § 7B-

101(1)(c), (d).” Id.

- 18 - IN RE: N.R.R.N

The trial court, here, found Nora to be an abused juvenile “in that her parents

have created or allowed to be created a substantial risk of serious physical injury by

other than accidental means.” In making this determination, similar to the neglect

adjudication, the trial court relied heavily on the earlier actions of Parents that

resulted in the non-accidental injuries sustained by Nora’s sister. As already

discussed above, a history of juvenile abuse and neglect can serve as sufficient

grounds for adjudicating a sibling as presently neglected if there are some “other”

factors present. However, we have no caselaw supporting the notion that past abuse

of a sibling—either standing alone or joined with some other factors—can serve as

sufficient grounds for also finding a sibling presently abused.

As for a substantial risk of harm, this Court has upheld abuse adjudications

where the actions of caretakers directly creates a substantial risk of harm to the child,

see In re K.B., 253 N.C. App. 423, 801 S.E.2d 160 (2017), or when the caretakers are

aware of a substantial risk of harm and they take no action to remedy this risk, see

In re W.C.T., 280 N.C. App. 17, 867 S.E.2d 14 (2021). For example, this Court in In

re K.B. upheld an abuse adjudication of a special needs child where evidence tended

to show the respondents could not maintain the child’s medication regimen and were

further unable to supervise the child to prevent him from harming himself. See In re

K.B., 253 N.C. App. at 429-36, 801 S.E.2d at 165-68. Though there were also some

actual, measurable physical injuries sustained by the child in In re K.B., the grounds

for concluding a substantial risk of harm arose from findings tending to show that

- 19 - IN RE: N.R.R.N

failure to supervise the child and administer his medication directly increased the

child’s likelihood of harming himself due to his special needs. See id. at 434, 801

S.E.2d at 167-68 (“These findings show that despite being aware of Kirk’s mental

health and behavior issues, [the] respondents failed to provide adequate supervision

and properly maintain Kirk’s medication which caused his unbalanced behavior in

early November. Even if inflicted by Kirk on himself, the injuries were nevertheless

the result of physical harm ‘by other than accidental means’ that [the] respondents

allowed to occur due to their failure to maintain Kirk’s medication and provide

adequate supervision to meet Kirk’s special needs.”). Additionally, in In re K.B., the

trial court found the child “did not experience any substantial injuries in any of the

placements outside of respondents’ home. This finding shows that Kirk’s other

placements were able to provide proper supervision and prevent Kirk from causing

any self-harm.” Id. at 434-35, 801 S.E.2d at 168.

In In re W.C.T., this Court affirmed a trial court’s abuse adjudication where

evidence tended to show the respondent-parents allowed the paternal grandmother

to supervise the child, knowing she suffered from mental health and behavioral

issues. See In re W.C.T., 280 N.C. App. at 37, 867 S.E.2d at 28. This Court noted

that the trial court’s findings

[tended to] show [the r]espondent-[m]other knew of the paternal grandmother’s unstable behavior, which necessitated medication, and the substantial risk of physical injury her volatile conduct posed to the children. Despite this risk, [the r]espondent-[m]other allowed the

- 20 - IN RE: N.R.R.N

paternal grandmother to continue to care for her children, and she failed to take steps to ensure her children were properly supervised and protected.

Id. at 37-38, 867 S.E.2d at 28 (citations omitted).

But in In re K.L., this Court reversed and remanded a trial court’s abuse

adjudication where there was “nothing to bridge the evidentiary gap between the

[juvenile’s] unexplained injuries . . . and the conclusion that [his parents] inflicted

them[.]” See In re K.L., 272 N.C. App. 30, 46, 845 S.E.2d 182, 194 (2020). In In re

K.L., however, the juvenile had sustained actual physical injury, and whether the

parents inflicted such injuries was central to the adjudication of abuse. See id. at 46-

47, 845 S.E.2d at 194-95.

Here, the trial court made no findings of fact indicating Nora had been

subjected to any physical harm at the hands of Parents nor that their actions and/or

inactions directly placed Nora in a substantial risk of harm. The only findings of

harm are those pertaining to the injuries sustained by Nora’s older sister, Nan. The

physical injuries sustained by Nan, along with Parents’ inability to explain them, is

not enough to presently adjudicate Nora to be an abused juvenile. There must be

some evidence and findings to suggest Nora had been subjected to harm at the hands

of Parents or that she faced a substantial risk of harm due to Parent’s care and

supervision of her; not her sister. Because the trial court made no such findings, the

trial court’s findings do not support the conclusion as to abuse. We reverse the trial

court’s adjudication of Nora as an abused juvenile.

- 21 - IN RE: N.R.R.N

B. Ineffective Assistance of Counsel

Both Mother and Father argue on appeal they were denied their right to

effective assistance of counsel during the hearing on 12 February 2024. It should be

noted Parents presented the same argument on appeal of Nan’s adjudication, alleging

they were denied effective assistance of counsel. See In re N.N., ___ N.C. App. ___,

907 S.E.2d 430. Here, like our conclusions in the appeal of Nan’s adjudication, see

id., we disagree with Parents’ argument they received ineffective assistance of

counsel.

In the appeal of Nan’s adjudication, this Court explained:

Parents have a statutory right to counsel in an abuse, neglect, or dependency case, N.C. Gen. Stat. § 7B-602(a) (2023), which encompasses the right to the effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a parent must show counsel’s performance was deficient or fell below an objective standard of reasonableness that denies the parent a fair hearing. Thus, to prevail, a parent must demonstrate prejudice—a reasonable probability that counsel’s deficient performance led to a different result in the proceedings.

...

It is well established that attorneys have a responsibility to advocate on the behalf of their clients. However, counsel’s failure to advocate for a respondent-parent is not necessarily an indication of ineffective assistance of counsel. In some cases, such a choice by counsel may be the result of strategy or because resourceful preparation revealed nothing positive to be said for the respondent- parent in a particular hearing. There is a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance. Counsel is given

- 22 - IN RE: N.R.R.N

wide latitude in matters of strategy, and the burden to show that counsel’s performance fell short of the required standard is a heavy one for a party to bear.

Id. at ___, 907 S.E.2d at 438-39 (citations, quotation marks, and brackets omitted).

Here, Mother contends her counsel failed to object to the submission of the

juvenile petition into evidence, did not move to dismiss at the close of DSS’s evidence,

and overall remained “mute” throughout the adjudicatory proceedings. Father

contends his counsel “failed to object to the entry of the petition into evidence,”

“offered no evidence in opposition” to the petition’s allegations, “did not cross-

examine” DSS’s witness, and further “posed no questions and called no witnesses of

his own.”

In the appeal of Nan’s adjudication, we discussed the likelihood of counsels’

decisions to “stand mute” as being influenced by Parents having pending felony

charges relating to the alleged child abuse of Nan. See id. at ___, 907 S.E.2d at 439.

Relevant to these proceedings, Parents were still awaiting disposition of these

charges at the time of the 12 February 2024 hearing. Like counsels’ previous decision

to remain mute during some of Nan’s proceedings, the decision to remain mute during

certain parts of Nora’s proceedings was likely, again, a strategic decision to not offer

any evidence that may incriminate Parents on their felony child abuse charges.

Although counsel for Parents participated little during the adjudication phase,

they actively participated during the dispositional hearing. For example, counsel for

Mother actively participated during disposition by cross-examining Fialisa Pickard,

- 23 - IN RE: N.R.R.N

social worker for DSS assigned to Nora. Counsel for Mother and Father presented

their own, individual arguments during disposition as to why the trial court should

not cease reunification efforts. Specifically, counsel for Mother argued the trial court

should not cease reunification efforts as Mother was still seeking employment and

more suitable living arrangements and has shown active involvement during her

visitations with Nora. Counsel for Mother also urged the trial court to increase the

scheduled visitations between Mother and Nora from one hour to two hours, as

Mother and Nora are “in a critical time period where a mother/child bond can be

formed.” Further, Father’s counsel urged the trial court to not cease reunification

based on Father’s constitutionally protected rights as a parent and because Father

had not yet been found guilty of any specific acts causing Nan’s harm in the pending

felony child abuse charge.

In arguing ineffective assistance of counsel, Mother contends this Court should

find the facts of this case consistent with the facts and holdings in In re T.D., No.

COA15-1393, 248 N.C. App. 366, 790 S.E.2d 752 (2016) (unpublished). In In re T.D.,

this Court remanded to the trial court, holding counsel “made absolutely no

contribution to the proceedings and in no way advocated on her behalf at the hearing”

in “either the adjudication or the disposition stage of the hearing[.]” Id., slip op. at 5-

6. We do not agree with Mother’s claim that the holdings of In re T.D. should be

applied in this case. Here, counsel for both Mother and Father, unlike counsel in In

re T.D., actively participated during the dispositional phase of the hearing to advocate

- 24 - IN RE: N.R.R.N

for their clients.

As in the appeal from Nan’s adjudication, our review of the hearing transcript

suggests counsels’ silence during the adjudicatory stage of Nora’s hearing was a

permissible strategic decision and is not ineffective assistance of counsel requiring

remand. Also, even if we assumed the silence of Parents’ counsel at adjudication was

deficient performance, Parents cannot show they were deprived of a “fair hearing” or

that but for counsel’s performance, there would have been a “different result in the

proceedings.” See In re C.B., 245 N.C. App. 197, 213, 783 S.E.2d at 206, 217 (2016)

(citations and quotation marks omitted). Even if either counsel presented a motion

to dismiss, as Mother argues should have been done, the trial court should not have

dismissed the petition and the motion would not have resulted in a different outcome

in the proceedings. There was sufficient evidence presented for the trial court to

conclude Nora to be a neglected juvenile based on Nan’s previous adjudication, along

with the presence of an unwillingness of either parent to acknowledge Nan’s harm

and to ensure this harm will not occur again. Parents’ ineffective assistance of

counsel arguments are overruled.

C. Reunification Efforts

Finally, Parents contend the district court erred and abused its discretion by

not requiring DSS to continue reunification efforts at the initial disposition hearing.

We agree with Parents’ argument as it relates to the trial court’s determination under

North Carolina General Statute Section 7B-901(c)(1)(f) of the Juvenile Code, but

- 25 - IN RE: N.R.R.N

disagree as to the trial court’s determinations made under Section 7B-901(c)(3)(iii).

We affirm in part and vacate in part the trial court’s dispositional order relating to

the cessation or reunification efforts.

If a trial court ceases reunification efforts during an initial disposition, “the

trial court . . . [must] make written findings pertaining to one of the circumstances

listed” in Section 7B-901(c). See In re L.N.H., 382 N.C. 536, 546, 879 S.E.2d 138, 145

(2022) (citation omitted). Section 7B-901(c) reads:

If the disposition order places a juvenile in the custody of a county department of social services, the court shall direct that reasonable efforts for reunification as defined in G.S. 7B-101 shall not be required if the court makes written findings of fact pertaining to any of the following, unless the court concludes that there is compelling evidence warranting continued reunification efforts:

(1) A court of competent jurisdiction determines or has determined that aggravated circumstances exist because the parent has committed or encouraged the commission of, or allowed the continuation of, any of the following upon the juvenile: a. Sexual abuse. b. Chronic physical or emotional abuse. c. Torture. d. Abandonment. e. Chronic or toxic exposure to alcohol or controlled substances that causes impairment of or addiction in the juvenile. f. Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect.

(2) A court of competent jurisdiction terminates or has terminated involuntarily the parental rights of the parent

- 26 - IN RE: N.R.R.N

to another child of the parent.

(3) A court of competent jurisdiction determines or has determined that (i) the parent has committed murder or voluntary manslaughter of another child of the parent; (ii) has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child or another child of the parent; (iii) has committed a felony assault resulting in serious bodily injury to the child or another child of the parent; (iv) has committed sexual abuse against the child or another child of the parent; or (v) has been required to register as a sex offender on any government-administered registry.

N.C. Gen. Stat. § 7B-901(c) (2023) (emphasis added). Here, in Nora’s initial

disposition, the trial court ordered DSS to cease reunification efforts under both

Sections 7B-901(c)(1)(f) and 7B-901(c)(3)(iii). Specifically, the trial court ordered

3. Pursuant to NCGS 7B-901(c)(1)(f) and 7B-901(c)(3)(iii), the Forsyth County Department of Social Services shall be relieved of reunification efforts with [Mother] and [Father] based upon the aggravated circumstances which exist. The aggravated circumstances include the determination by a court of competent jurisdiction that [Father] and [Mother] have abused [Nan] and inflicted or allowed to be inflicted on her serious bodily injury by other than accidental means and have failed to disclose the manner and cause of [her] injuries. Additionally, [Father] and [Mother] have by their actions and their failure to disclose the manner and cause of [Nan’s] injuries have increased the enormity and added to the injurious consequences of the Abuse and Neglect to both of their children, [Nan] and [Nora].

On appeal, neither Mother nor Father specifically challenge any particular findings

made by the trial court during initial disposition as being unsupported by the

evidence; they argue the trial court essentially did not make enough findings to

- 27 - IN RE: N.R.R.N

support its conclusion as to the existence of aggravating circumstances under Section

7B-901, and thus, abused its discretion in ceasing reunification efforts with Nora.

This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court’s conclusions, and whether the trial court abused its discretion with respect to disposition. 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.

The trial court’s findings of fact are conclusive on appeal if supported by any competent evidence, notwithstanding contrary evidence in the record. The trial court’s conclusions of law are reviewed de novo.

In re N.T., 289 N.C. App. 149, 152, 888 S.E.2d 231, 234 (2023) (citations and quotation

Under Section 7B-901(c)(1)(f), our Supreme Court in In re L.N.H. noted the

language of “any other act, practice, or conduct,” In re L.N.H., 382 N.C. at 547-48, 879

S.E.2d at 146 (emphasis in original), implicates a requirement that the actions of the

respondent-parents giving rise to the cessation of reunification must be “in addition

to the facts that rise to the initial disposition of abuse and/or neglect[,]” id. at 548,

879 S.E.2d at 146 (citations omitted). This means the trial court cannot rely on the

same facts to adjudicate a juvenile as abused or neglected as the “other act, practice,

or conduct that increased the enormity or added to the injurious consequences of the

- 28 - IN RE: N.R.R.N

abuse or neglect[]” for purposes of disposition. N.C. Gen. Stat. § 7B-901(c). Here,

Parents specifically argue the trial court erred in ceasing reunification efforts during

disposition while relying on the same actions of Parents used in adjudicating Nora to

be abused and neglected.

The trial court relied heavily on Parents’ failure to reveal the cause of Nan’s

injuries in determining Nora to be an abused and neglected juvenile under a theory

of substantial risk of future harm. During the dispositional phase, however, these

are the same grounds on which the trial court considers it appropriate to cease

reunification efforts under Section 7B-901(c)(1)(f). In the dispositional findings, the

only finding supporting this conclusion is Finding 16, which reads: “[Father] also

stated that he wants to do the right thing for his girls to be back home with [Mother],

so he explained to his attorney what caused the injuries to [Nan]. [Father] advised

that he could not share the information with the DSS social worker at that time.”

Though this finding is separate and distinct from the adjudicatory findings, it still

falls into the same realm of which Nora was adjudicated neglected, being a

substantial risk of future harm because of Parents’ failure to explain how Nora was

injured. Put differently, the finding is not an “other” act increasing the enormity or

adding to the injurious consequences of the abuse or neglect of Nora, as it is the same

basis relied on by the trial court in its initial adjudication of Nora. We vacate the

trial court’s determination to cease reunification under Section 7B-901(c)(1)(f).

Further, the trial court determined reunification efforts were not required

- 29 - IN RE: N.R.R.N

under Section 7B-901(c)(3)(iii), which allows for the cessation of reunification efforts

when a parent “has committed a felony assault resulting in serious bodily injury to

the child or another child of the parent[.]” N.C. Gen. Stat. § 7B-901(c)(3)(iii)

(emphasis added). Mother challenges the cessation of reunification on these grounds,

contending the trial court was not a “court of competent jurisdiction” to determine

whether a felony assault on a child had occurred. We disagree with this argument

and conclude the trial court did not err in ceasing reunification efforts as to both

Mother and Father under Section 7B-901(c)(3)(iii).

As correctly noted in Mother’s brief on appeal, our North Carolina General

Assembly recently amended the language of Section 7B-901(c)(3) in 2018. Before the

amendment, the statute allowed for the cessation of reunification efforts when “[a]

court of competent jurisdiction has determined” a felony assault on a child had

occurred. See N.C. Gen. Stat. § 7B-901(c)(3) (2016) (emphasis added). As this Court

noted in In re G.T., “this tense indicates that the determination must have already

been made by a trial court—either at a previously-held adjudication hearing or some

other hearing in the same juvenile case, or at a collateral proceeding in the trial

court.” In re G.T., 250 N.C. App. 50, 57, 791 S.E.2d 274, 279 (2016). This Court also

held the term “court of competent jurisdiction” supported the proposition that the

determination of felony child assault must have been made by a separate tribunal

before a court could cease reunification efforts. See id. (“Use of this term implies that

another tribunal in a collateral proceeding could have made the necessary

- 30 - IN RE: N.R.R.N

determination, so long as it is a court of competent jurisdiction.”).

The language was changed in 2018, however, to include that a trial court could

cease reunification when a “court of competent jurisdiction determines or has

determined” a felony assault on a child has occurred. See N.C. Gen. Stat. § 7B-

901(c)(3) (2018) (emphasis added). The primary effect of this amendment and the

changing of language tense is to allow a “court of competent jurisdiction” the present

ability to cease reunification based on its determination that a felony child assault

had occurred. A court of competent jurisdiction need not wait for a separate or

collateral tribunal to determine the occurrence of a felony child assault before ceasing

Mother contends the trial court here was not a “court of competent jurisdiction”

to presently determine the occurrence of a felony child assault in stopping

reunification efforts. In advancing this argument, Mother directs us to Section 7B-

101 of the Juvenile Code, highlighting this section separately defines a “court” and a

“court of competent jurisdiction.” As defined within the Juvenile Code, the “court” is

a “district court division of the General Court of Justice,” but a “court of competent

jurisdiction” is “[a] court having the power and authority of law to act at the time of

acting over the subject matter of the cause.” N.C. Gen. Stat. §§ 7B-101(6)-(7). Mother

specifically contends “[a] civil district court exercising jurisdiction pursuant to the

Juvenile Code is not a ‘court of competent jurisdiction’ to adjudicate felonies any more

than a criminal superior court exercising criminal jurisdiction pursuant to the

- 31 - IN RE: N.R.R.N

Criminal Code is ‘a court of competent jurisdiction’ to adjudicate abuse or neglect.”

In her brief on appeal, Mother cites to our Supreme Court’s decision in In re

L.N.H., which addresses the issue of a trial court’s ability to cease reunification efforts

under Section 7B-901(c)(3)(iii). See In re L.N.H., 382 N.C. at 548, 879 S.E.2d at 147.

In that case, our Supreme Court stated:

In our view, the record developed before the trial court contains ample evidence that tends, if believed, to show that [the] respondent-mother’s actions in burning Lea’s feet involved the commission of a felonious assault upon the child that resulted in serious bodily injury. Although the trial court did not make the findings necessary to permit the cessation of reunification efforts with [the] respondent-mother based upon N.C.G.S. § 7B-901(c)(3)(iii), it certainly could have done so had it chosen to make such a determination.

Id. In presenting this case, Mother argues this statement by our Supreme Court is

only dicta as the trial court in that case did not cease reunification efforts under

Section 7B-901(c)(3)(iii), and serves only to suggest what the trial court “could have

done.” We disagree. Though the trial court in that case did not cease reunification

under Section 7B-901(c)(3)(iii), specifically, the cessation of reunification efforts was

a central issue presented on appeal, and our Supreme Court reviewed the entire

record to determine whether competent evidence supported the trial court’s

conclusions. See id. at 546, 879 S.E.2d at 145-46. In reviewing the entire record, our

Supreme Court determined there was sufficient evidence to support the cessation of

reunification efforts under Section 7B-901(c)(3)(iii) and reversed and remanded to

- 32 - IN RE: N.R.R.N

this Court for further proceedings consistent with the opinion. See id. at 549, 879

S.E.2d at 147. This language from the Supreme Court is not dicta as it is necessary

to the decision and central to the issues. See Trustees of Rowan Tech. Coll. v. J. Hyatt

Hammond Assocs., Inc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985) (“Language in

an opinion not necessary to the decision is obiter dictum and later decisions are not

bound thereby.” (citations omitted)).

Based on our Supreme Court’s holdings in In re L.N.H., a trial court conducting

a juvenile adjudication and disposition for neglect and/or abuse is a “court of

competent jurisdiction” to weigh the evidence in determining the existence of felony

child assault for the purpose of ceasing reunification efforts. Further, the Supreme

Court in In re L.N.H. specifically used the language “if believed” when discussing the

“ample evidence” tending to show the respondent-mother’s actions involved felonious

assault upon her child and remanded to the trial court to allow it to make additional

findings. See In re L.N.H., 382 N.C. at 548, 879 S.E.2d at 147. In re L.N.H. supports

the intention of the General Assembly’s amendment of the Juvenile Code to allow

trial courts, in conducting juvenile proceedings, the present ability to determine

whether to cease reunification without waiting for the felony assault charges to be

adjudicated by a Superior Court. So long as a trial court acting under the Juvenile

Code has ample evidence to find by clear, cogent, and convincing evidence the

existence of a felony child assault, it may make the appropriate findings of fact and

this may serve as grounds to cease reunification under Section 7B-901(c)(3)(iii).

- 33 - IN RE: N.R.R.N

We disagree with Mother’s argument the trial court is not a “court of competent

jurisdiction” to presently determine the existence of a felony child assault for the sole

purpose of ceasing reunification. The trial court’s findings of fact support the trial

court’s cessation of reunification efforts under 7B-901(c)(3)(iii). Similar to the facts

presented in In re L.N.H., here, both Mother and Father have been charged with

felony child abuse inflicting serious injury due to the severe, unexplained, non-

accidental injuries sustained by Nan while in the care of Parents. See id. at 538, 879

S.E.2d at 141.

We vacate the trial court’s order as it relates to the cessation of reunification

efforts under Section 7B-901(c)(1)(f), as the trial court did not make sufficient findings

to support the existence of any “other” aggravated circumstances, separate from those

relied on by the trial court during the initial adjudication of Nora. Otherwise, the

trial court did not err by ordering cessation of reunification efforts as to both Mother

and Father under Section 7B-901(c)(3)(iii) because the trial court found the existence

of a felonious child assault against Nan.

IV. Conclusion

We conclude the trial court did not err in adjudicating Nora to be a neglected

juvenile and did not err in ceasing reunification efforts as to both Mother and Father

under Section 7B-901(c)(3)(iii). We reverse the trial court’s adjudication of Nora as

an abused juvenile. We also conclude neither Mother nor Father was denied their

right to effective assistance of counsel.

- 34 - IN RE: N.R.R.N

AFFIRMED IN PART AND VACATED IN PART.

Judges CARPENTER and STADING concur.

- 35 -