In re T.L.S.

817 S.E.2d 798
CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 2018
DocketNo. COA18-278
StatusPublished

This text of 817 S.E.2d 798 (In re T.L.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re T.L.S., 817 S.E.2d 798 (N.C. Ct. App. 2018).

Opinion

ELMORE, Judge.

Respondent-mother and respondent-father (collectively "respondents") appeal from orders adjudicating their children Christine to be an abused and neglected juvenile, and Cynthia, Meghan, and Thomas1 to be neglected juveniles, and disposition orders continuing custody of the children with the Sampson County Department of Social Services ("DSS"). We affirm in part and reverse in part.

I. Background

On 30 June 2017, DSS obtained nonsecure custody of Christine, Cynthia, Meghan, and Thomas. DSS filed juvenile petitions alleging that Cynthia, Meghan, and Thomas were neglected and dependent, and that Christine was abused, neglected, and dependent. The DSS petitions alleged that Christine and Cynthia were previously in foster care due to respondent-mother's drug use and that DSS had provided services to the family due to improper discipline. On 31 May 2016, Christine reported to her teacher that respondent-father had been sexually assaulting her for approximately a year. Christine also informed a Child Protective Services ("CPS") social worker and hospital staff that respondent-father had assaulted her that morning before school. Respondent-mother was able to confirm portions of Christine's statement regarding the assault. DSS recommended that respondent-father leave the home for the remainder of the investigation and he agreed. Respondents agreed to a safety plan that respondent-father would not have contact with the children "until further recommendation from DSS."

The DSS petitions further alleged that a few days after 31 May 2016, respondent-father returned to the home when the children were not there and took many of Christine's belongings, including clothes and electronics. After a rape kit was performed on Christine on 31 May 2016, respondent-father informed respondent-mother that his DNA may be found on Christine's vaginal area due to her using his beard trimmer. Christine had previously disclosed to respondent-mother that she was being sexually abused by respondent-father and that body fluids could be found in the home on a sheet and some clothing. Respondent-mother kept those items until Christine later recanted her disclosure after respondent-father threatened and pressured her to recant. The safety plan was compromised when respondent-father came to the hospital Christine was at and when respondent-mother allowed respondent-father to be in the presence of Christine.

The juvenile petitions came on for adjudication on 7 June 2017. On 2 August 2017, the trial court adjudicated Christine to be an abused and neglected juvenile, and Meghan and Cynthia to be neglected juveniles. On 23 August 2017, the trial court adjudicated Thomas to be a neglected juvenile. The disposition hearing was held on 24 and 25 August 2017. Through disposition orders entered 8 November 2017, the children remained in the custody of DSS. Respondents appeal.

II. Discussion

On appeal, respondents argue the trial court's factual findings are insufficient to supports its conclusions that Cynthia, Meghan, and Thomas were neglected juveniles. We agree.

Appellate review of an adjudication order is limited to determining "(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) (citation and internal quotation marks omitted), aff'd as modified , 362 N.C. 446, 665 S.E.2d 54 (2008). Unchallenged factual findings are binding on appeal. Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). We review a trial court's conclusions of law de novo . In re J.S.L. , 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).

The Juvenile Code defines a "neglected juvenile" as one

who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or the custody of whom has been unlawfully transferred under G.S. 14-321.2 ; or who has been placed for care or adoption in violation of law.

N.C. Gen. Stat. § 7B-101(15) (2017). In order for a child to be adjudicated neglected, "this Court has consistently 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 re Safriet , 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (citation omitted).

Here, the trial court made the following factual findings to support its adjudications of neglect and abuse as to Christine, and its adjudications of neglect as to Cynthia, Meghan, and Thomas:

8. That the Respondent Father had sexual intercourse with [Christine] on the morning of May 31, 2016, before school and while the Respondent Mother was not at home.
9. That the sexual encounter occurred in the master bedroom of the home and when the Respondent Mother arrived home the Respondent Father left [Christine] and went into the bathroom.
10. That as the Respondent Mother entered into the home she heard the Respondent Father enter into the bathroom and witnessed [Christine] adjusting her pants and/or belt.
11. [Christine] was observed by her teacher ... to be upset while at school on May 31, 2016, and when [the teacher] inquired [Christine] reported that she had sexual intercourse with her father that morning.
12. That [Christine] appeared to be under the stress of the sexual assault during her disclosure to [her teacher].
....
14.

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Related

Matter of Safriet
436 S.E.2d 898 (Court of Appeals of North Carolina, 1993)
Koufman v. Koufman
408 S.E.2d 729 (Supreme Court of North Carolina, 1991)
In re J.C.B.
757 S.E.2d 487 (Court of Appeals of North Carolina, 2014)
In re T.H.T.
665 S.E.2d 54 (Supreme Court of North Carolina, 2008)
In re J.S.L.
628 S.E.2d 387 (Court of Appeals of North Carolina, 2006)
In re T.H.T.
648 S.E.2d 519 (Court of Appeals of North Carolina, 2007)

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Bluebook (online)
817 S.E.2d 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tls-ncctapp-2018.