Opinion
No. 07-998.
Filed January 15, 2008.
Appeal by respondent from an order entered 25 May 2007 by Judge Lisa C. Bell in Mecklenburg County District Court. Heard in the Court of Appeals 10 December 2007.
Mecklenburg County Attorney's Office, by Tyrone C. Wade, for Mecklenburg County Youth and Family Services, petitioner-appellee. Pamela Newell Williams for Guardian ad Litem. Michael E. Casterline for respondent-appellant.
C.F. ("respondent") appeals from an order entered 25 May 2007 adjudicating her minor child, J.F., neglected and dependent. For the reasons given below, we affirm the order of the trial court.
Initials have been used throughout to protect the identity of the juvenile.
Facts
On 8 February 2007, Mecklenburg County Youth and Family Services (YFS) filed a juvenile petition alleging the minor child J.F. to be a neglected and dependent juvenile. On 27 April 2007, the parents of the child and their attorneys, the Department of Social Services and the guardian ad litem attended a mediation session. At the conclusion of the session, the parties executed agreements in which they agreed to certain facts. Specifically, they agreed that YFS has had a history with this family in Mecklenburg County dating back to 2004, involving allegations of substance abuse by the maternal grandmother and respondent, who is the child's mother. On 2 May 2006, YFS received a referral from Gaston County alleging that the child's maternal grandmother inappropriately sexually touched the child and that the child witnessed the maternal grandmother having sexual relations with men. The Gaston County Department of Social Services (DSS) substantiated the referral of sexual abuse by the grandmother. DSS talked with respondent about providing the child with counseling but respondent never took the child to counseling. On 3 November 2006, YFS received a referral alleging that the child inappropriately touched another boy at school, a referral which was still under investigation at the time of the mediation conference. Finally, during the first week of February 2007, the child's mother moved to Mississippi with her boyfriend and two other children, leaving J.F. in the care of her sister and stepfather. Although respondent stated that the stepfather told her he was not living with the child's maternal grandmother, the stepfather told a social worker that he was in fact doing so. Respondent's sister and stepfather also stated that respondent failed to leave forwarding information, although respondent stated she had. On 15 May 2007, the court conducted the adjudicatory and dispositional hearings. Ten days later the court entered a written adjudicatory order in which it incorporated the mediated agreement and made it the basis for its findings of fact. The court adjudicated the child as neglected and dependent. The court also entered a separate dispositional order in which it placed the child in the custody of the YFS and granted respondent supervised visitation privileges. Respondent appeals from these orders.
Respondent contends the trial court erred by: (I) incorporating the mediation agreement into the findings of fact; and (II) adjudicating J.F. neglected and dependent. For the reasons stated, we affirm the order of the trial court.
Standard of Review
In reviewing an adjudication of neglect or dependency, we must determine whether the court's findings of fact are supported by "clear and convincing evidence," and whether the court's findings of fact support its conclusions of law. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). We are bound by the trial judge's findings of fact "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). Whether a child is a neglected or dependent juvenile as defined in N.C. Gen. Stat. § 7B-101 is a conclusion of law. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997).
Mediation Agreement
Respondent contends the court's findings of fact are not supported by clear, cogent, and convincing evidence because the findings are based upon the mediated agreement. Respondent also contends that the court erred by accepting the mediated agreement in lieu of evidence when respondent disputed facts alleged in the petition. Respondent asserts that the mediated agreement failed to meet the clear and convincing standard of proof when sections of the agreement conflicted with the allegations of the petition and respondent's testimony at the hearing.
The preamble to the mediated agreement states:
This agreement is based on the parties' discussions during the mediation process and contains the parties' mutually acceptable understanding of the issues discussed. The parties acknowledge that they have entered this agreement knowingly, intelligently, voluntarily, and with a full understanding that this agreement will be submitted to the court at the adjudication hearing and used by the court to make findings of fact.
The agreement further states that "[f]or purposes of the adjudication, [respondent], Linda Klein her attorney, DSS and GAL agree to" statements contained in the agreement. The agreement is signed by respondent and her attorney. Further, at the hearing, respondent's counsel announced to the court that respondent was "still standing by the mediated . . . agreement" and that testimony offered by respondent was "to provide clarification." Finally, in the adjudicatory order the court found that mother "freely, voluntarily, intelligently and with full knowledge of the consequences swear under oath to the mediated agreement." "A judicial admission is a formal concession which is made by a party in the course of litigation for the purpose of withdrawing a particular fact from the realm of dispute." Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 604, 276 S.E.2d 375, 379 (1981). "A stipulation is a judicial admission." Moore v. Humphrey, 247 N.C. 423, 430, 101 S.E.2d 460, 467 (1958). Courts look with favor on stipulations and encourage them because they tend to simplify, shorten, or settle litigation as well as save costs. Rural Plumbing Heating, Inc. v. H.C. Jones Constr. Co., 268 N.C. 23, 32, 149 S.E.2d 625, 631 (1966). "In determining the extent of the stipulation we look to the circumstances under which it was signed and the intent of the parties as expressed by the agreement." Rickert v. Rickert, 282 N.C. 373, 380, 193 S.E.2d 79, 83 (1972).
Here, the preamble and other provisions of the agreement show that the parties intended the agreed statements to be used by the court in making its findings of fact. The court, in its order, incorporated the mediated agreements to support the findings of fact. Furthermore, the court made findings of fact in addition to the facts in the mediated agreement. The court found that respondent's current living arrangements, that respondent's two other children were not residing with respondent in Mississippi, and that respondent's decision to move was not in the best interest of J.F. The trial court's findings show that the trial court made its own determination with respect to the facts and did more than simply incorporate the mediated agreement. See In re C.M., ___ N.C.App. ___, ___, 644 S.E.2d 588, 593 (2007) (holding the trial court's order incorporating other documents as findings was not error because the trial court's additional findings of fact indicated the trial court made its own decision regarding the evidence). This assignment of error is overruled.
Adjudication of Neglect
Respondent also contends the findings of fact do not support the trial court's conclusion that the child is neglected. We disagree. A neglected juvenile is defined 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 who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant 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.
N.C. Gen. Stat. § 7B-101(15) (2005). Respondent stipulated in the mediated agreement and testified at the hearing that J.F. never received counseling after the report of sexual abuse of the child was substantiated. She also abruptly moved to Mississippi with two of her other children, leaving behind J.F., a five-year-old child. Further, respondent left J.F. in the care of her stepfather who was married to and still living with the perpetrator of the sexual abuse upon J.F. In addition, respondent was not in a position where she could provide proper care, supervision or discipline to J.F. The trial court's findings as incorporated by the mediation agreement and its additional findings supported the trial court's conclusion that J.F. was a neglected juvenile within the meaning of N.C.G.S. § 7B-101(15). This assignment of error is overruled. For the foregoing reasons, the order of the trial court is affirmed.
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).