Opinion
No. COA 15–869.
01-05-2016
In the Matter of H.G., A Juvenile.
James N. Freeman, Jr., for petitioner-appellee Alleghany County Department of Social Services. Edward Eldred, for respondent-appellant. International House, by Daniel Joseph Melo, for the guardian ad litem for H.G.
James N. Freeman, Jr., for petitioner-appellee Alleghany County Department of Social Services.
Edward Eldred, for respondent-appellant.
International House, by Daniel Joseph Melo, for the guardian ad litem for H.G.
Opinion
Appeal by respondent from order entered 27 April 2015 by Judge Robert Crumpton in Alleghany County District Court. Heard in the Court of Appeals 16 December 2015.
HUNTER, JR., Robert N., Judge.
Respondent-mother appeals from a final order adjudicating her son, Heath, abused, neglected, and dependent, as well as placing Heath in DSS custody. She challenges numerous findings of fact in addition to the conclusions that Heath is an abused, neglected, and dependent juvenile. After review, we affirm the trial court's order.
The parties stipulated to the use of the name Heath to protect the juvenile's identity.
I. Factual and Procedural Background
Allegany County DSS filed a petition on 6 March 2015 alleging Heath, an 11 year old boy, was abused, neglected, and dependent. The same day, DSS filed a nonsecure custody order. Following a hearing, the court entered an order granting nonsecure custody and scheduled an adjudication hearing for 31 March 2015. At this hearing, which the court converted to a consolidated adjudication and disposition hearing, the following testimony was offered.
Angela Trowbridge, a DSS employee, testified. Heath lived with respondent-mother and his stepfather. Following a report on 1 October 2014, DSS implemented a safety plan for the family. Nevertheless, Heath continued to live with his mother and stepfather. On 14 November 2014, a second DSS report alleged the stepfather choked Heath until he vomited. A subsequent examination by DSS found Heath had red marks on his neck and broken blood vessels above his eyes.
After this, Trowbridge explained that DSS could not assure Heath's safety at home. As a result, DSS took Heath to his biological father's house to stay until his mother and stepfather could locate another relative for Heath to stay with. DSS was unable to place Heath with his father permanently because his father suffers from multiple sclerosis. On December 31, DSS found a kinship placement for Heath with M.B., a distant relative.
M.B., a cousin of Heath's mother by marriage, testified next. M.B. and her husband lived with her 80 year old mother-in-law, and they agreed to care for Heath for a month to prevent Heath from going into State custody. They cared for Heath for approximately two and a half months.
M.B., who works at Heath's elementary school, testified that Heath suffers from a physical deformity of his left arm and hand, leaving Heath with no functional use of that hand. M.B. testified that, based on her observations, he would be physically unable to either defend himself from a physical attack or choke himself hard enough to leave red marks on his neck. M.B. explained Heath was diagnosed with Oppositional Defiance Disorder, but otherwise acted like a normal 11 year who and was helpful with chores around the home. M.B. helped Heath with his homework and encouraged his studies. When Heath came to live with her he was failing almost every course, but a few months later with M.B.'s assistance, Heath's grades had improved.
During Heath's stay with M.B., he visited his mother twice. During the first month, his mom did not call him. M.B. recalled a time that Heath called his mom to ask if he could visit her and she told him no. M.B. explained she and her husband would “gladly continue to keep [Heath],” but could not because they had to care for her 80 year-old mother-in-law who has Parkinson's.
Regarding any bond between Heath and his mother, Jones testified as follows:
I've noticed in speaking with [Heath] that I do believe that he is concerned about his mom and that he does want to see her but he doesn't mention a close-knit relationship with her. And also the day that I went to the home for the petition to take custody, she wanted me to take [Heath] and she never wanted to see him again. She also screamed at him that all of these, the problems that the family are going through are [Heath's] fault because of his lies.
Heath's stepfather testified about the allegation he choked Heath. He said, “On that November day we had come back from Wal–Mart and he had stolen. All I did was whip him on the butt with my hand and then [Heath] started, he fell on the floor and started choking himself to making himself throw up.” He also explained that Heath has a history of bad behavior at home.
On 23 March 2013, the court ordered custody of Heath be placed with Alleghany DSS and adjudicated Heath to be an abused, neglected and dependent juvenile. The mother appealed the 23 March order by filing and serving a written notice of appeal.
II. Jurisdiction
Jurisdiction lies in this Court pursuant to an appeal from a final judgment in a district court in a civil action. N.C. Gen.Stat. § 7A–27 (b)(2) (2013).
III. Standard of Review
When this Court reviews an order in a juvenile abuse, neglect, or dependency proceeding, we review whether clear and convincing evidence supports the findings of fact and whether the findings of fact support the conclusions of law. In re: W.V., 204 N.C.App. 290, 293, 693 S.E.2d 383, 386 (2010).
IV. Analysis
The mother challenges findings of fact 4, 6, and 24 in their entirety as well as findings 5, 7, 18, and 23 in part as not supported by clear, cogent, and convincing evidence. We do not address the challenged findings of fact because they are unnecessary to support the ultimate conclusions, and any error in them would not constitute reversible error. See In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006). Therefore, we review the court's adjudication of Heath as an abused, neglected, and dependent juvenile in light of the unchallenged findings of fact, and the portions of findings unchallenged by the mother. The unchallenged findings are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These unchallenged findings standing alone support the court's decision.
A. Adjudication of Abuse
A juvenile is abused when their 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;
...
e. Creates or allows to be created serious emotional damage to the juvenile; serious emotional damage is evidenced by a juvenile's severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others....
N.C. Gen.Stat. § 7B–101 (1) (2013).
The mother argues Heath did not suffer “serious physical injury” because Heath did not need medical treatment. She also argues that corporal punishment is not abuse per se under the statute, and that the court did not make a finding that the choking was an ongoing issue. The mother cites two cases to support her argument, In re H.H., which deals with an allegation of abuse under subsection (c) and In re Thompson, where an adjudication finding a child neglected was challenged. Neither case is applicable here.
“Serious physical injury” is not defined by statute. This Court has considered what constitutes “serious physical injury” for felony child abuse persuasive. In re L.T.R., 181 N.C.App. 376, 381, 639 S.E.2d 122, 125–126 (2007). In felony child abuse cases, “neither the statute nor case law requires that the injured child receive immediate medical attention to sustain a determination that the injury is serious.” Id. at 382, 639 S.E.2d at 126. The question of whether an injury is serious is based on the facts of each case. Id.
Here, the Juvenile Petition filed by DSS alleged that Heath was abused under subsections (a), (b), and (e) of the statute quoted above. The trial court made the following pertinent findings of fact in support of its conclusion that Heath was an abused juvenile:
5. During the open investigation there was another report made on November 14, 2014 regarding the abuse of [Heath] in the form of being choked by his Stepfather ...
...
7. DSS interviewed the Mother and she denied that [Heath] had been choked. She stated that [Heath] had been disciplined for stealing and sent to bed. [Heath] displayed red marks around his neck ... consistent with choking. Photographs of these injuries were admitted into evidence. [The stepfather] stated that [Heath] had choked himself and that [Heath] had done this before.
...
10. When asked to exactly replicate what [Heath] did to choke himself [Heath's stepfather] put his left hand around his own throat. It would be impossible for [Heath] to choke himself or leave the red marks on his throat by choking himself in the manner shown by [the stepfather].
...
13. [Heath] was moved to kinship care with his cousin, [M.B.], and her husband on January 1, 2015. The original plan was for him to stay one month but he stayed there until March 6, 2015. [M.B.] reported that [Heath] was a delight to have in their home, that he was well-mannered, kind, and acted as any normal 11 year-old boy. He did his chores in spite of the deformity of his left hand. [M.B .] had previously observed [Heath] at school as she is a teacher there and described [Heath] as liked and well-behaved.
14. While staying with [M.B] any contact between [Heath] and his Mother's home was initiated by [Heath] rather than his Mother and his Mother never requested any visits in addition to one per month. Both the Ashe County DSS worker and [M.B.] overheard telephone conversations between [Heath] and his Mother in which his Mother blamed everything on [Heath]. [Heath] asked his Mother if he could visit her and his siblings in the family home and she denied him such a visit. This response upset [Heath]. [Heath's] Mother also told him he could not visit in the home because there was not adequate food.
...
20. [Heath] has had a psychological examination and he is diagnosed with ADHD, oppositional defiant disorder and conduct disorder. [Heath's] school records indicate that he behaves normally as long as he takes his medications.
...
23. The Court finds that there is clear, cogent and convincing evidence that [Heath] was choked by [his stepfather] ...
Temporary red marks due to corporal punishment are not sufficient to uphold a conclusion of abuse. See Scott v. Scott, 157 N.C.App. 382, 387, 579 S.E.2d 431, 435 (2003) (finding no conclusive evidence of abuse when there was no evidence that a spanking left more than temporary red marks). Choking rises to a level more serious than corporal punishment.
Here, the unchallenged findings of fact show Heath “displayed red marks around his neck” and that it would be “impossible for [Heath] to choke himself.” The court also found “clear, cogent and convincing evidence that [Heath] was choked by [his stepfather] on November 14, 2014....” Thus, the finding supports an adjudication of abuse because Heath received injuries more serious than temporary red marks or bruising resulting from corporal punishment. We find the red marks on Heath's neck combined with the seriousness of choking sufficient to uphold an adjudication of abuse.
B. Adjudication of Neglect
“Neglected juvenile” is defined in N.C. Gen.Stat. § 7B–101(15) as:
A juvenile 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.
N.C. Gen.Stat. § 7B–101(15) (2013). An adjudication of neglect requires “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, 901–902 (1993).
The mother argues one report of an alleged choking does not amount to neglect, citing In re N.G.. 186 N.C.App. 1, 9, 650 S.E.2d 45, 50 (2007). However, the paragraph directly above the sentence the mother cites in that opinion explains failure to take responsibility for the child's injuries and future risk of harm should also be considered in neglect adjudications. Id. at 9, 650 S.E.2d at 50.
The trial court, in support of its conclusion that Heath is a neglected juvenile, made the following findings of fact:
7. DSS interviewed the Mother and she denied that [Heath] had been choked ...
...
9. [The stepfather] testified in this matter. He admits that he does not have as good a relationship with [Heath] as he does the other children and he blames this on [Heath's] behavior. He also believes [Heath] wants him “out of the picture” so that [Heath's] Mother and Father would reconcile.
...
13. [Heath] was moved to kinship care with his cousin, [M.B.], and her husband on January 1, 2015. The original plan was for him to stay one month but he stayed there until March 6, 2015. [M.B.] reported that [Heath] was a delight to have in their home, that he was well-mannered, kind, and acted as any normal 11 year-old boy. He did his chores in spite of the deformity of his left hand. [M.B .] had previously observed [Heath] at school as she is a teacher there and described [Heath] as liked and well-behaved.
...
15. When [Heath] began living with [M.B] he was failing most classes. By the time he left her care he was doing well in school.
...
20. [Heath] has had a psychological examination and he is diagnosed with ADHD, oppositional defiant disorder and conduct disorder. [Heath's] school records indicate that he behaves normally as long as he takes his medications.
In this case, findings of fact 7 and 9 show that Heath's mother and stepfather failed to acknowledge that physical abuse had occurred and they failed to take steps to prevent a repetition of this physical abuse. Additionally, findings of fact 13, 15, and 20 show Heath can thrive in a safe environment which he was not receiving at home. Thus, we find the findings of fact support the legal conclusion that Heath is a neglected juvenile.
C. Adjudication of Dependency
A dependent juvenile is “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. Gen.Stat. § 7B–101(9). “In determining whether a juvenile is dependent, the trial court must 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 T.B., C.P., & L.P., 203 N.C.App. 497, 500, 692 S.E.2d 182, 184 (2010) (internal quotation marks omitted).
In this case, the trial court made the following findings of fact in support of its conclusion that Heath was a dependent juvenile:
5. During the open investigation there was another report made on November 14, 2014 regarding the abuse of [Heath] in the form of being choked by his Stepfather ...
...
9. [The stepfather] testified in this matter. He admits that he does not have as good a relationship with [Heath] as he does the other children and he blames this on [Heath's] behavior. He also believes [Heath] wants him “out of the picture” so that [Heath's] Mother and Father would reconcile.
...
12. Once [Heath] was removed from his home he was placed with his biological Father ... where he remained for several weeks. [Father] has weekend visits with [Heath] by the terms of a visitation agreement with [Heath's] Mother but he is unable to keep [Heath] on a continuous basis because he is in a wheelchair due to multiple sclerosis. [Father] is clearly a non-offending parent in this matter.
13. [Heath] was moved to kinship care with his cousin, [M.B.], and her husband on January 1, 2015. The original plan was for him to stay one month but he stayed there until March 6, 2015. [M.B.] reported that [Heath] was a delight to have in their home, that he was well-mannered, kind, and acted as any normal 11 year-old boy. He did his chores in spite of the deformity of his left hand. [M.B .] had previously observed [Heath] at school as she is a teacher there and described [Heath] as liked and well-behaved.
...
15. When [Heath] began living with [M.B] he was failing most classes. By the time he left her care he was doing well in school.
16. [M.B.] would like to have [Heath] back in her home but such a scenario is complicated by the fact that [M.B. and her husband] are caring for [her husband's] elderly mother.
...
20. [Heath] has had a psychological examination and he is diagnosed with ADHD, oppositional defiant disorder and conduct disorder. [Heath's] school records indicate that he behaves normally as long as he takes his medications.
The mother argues the trial court did not find she was unable to provide care for Heath. However, the findings quoted above in addition to our analysis of the abuse and neglect conclusions show that the mother was unable to provide proper care or supervision for Heath. Findings 12 and 16 show that alternative care arrangements with Heath's biological father and relative M.B. cannot continue into the future. Other obligations and health issues prevent either of them from continuing to care for Heath. Because the mother did not present a viable alternative, we find the trial court's unchallenged findings support its conclusion that Heath is a dependent juvenile.
V. Conclusion
For the foregoing reasons, we uphold the challenged factual findings as supported by clear and convincing evidence and uphold the challenged conclusions of law as supported by the findings of fact.
AFFIRMED.
Judges STEPHENS and INMAN concur.
Report per Rule 30(e).