Opinion
No. COA12–1536.
2013-05-21
In the Matter of K.C.
Christopher L. Carr, for Cumberland County Department of Social Services, petitioner-appellee. Beth A. Hall, for guardian ad litem.
Appeal by respondent-mother from Order entered 5 September 2012 by Judge A. Elizabeth Keever in District Court, Cumberland County. Heard in the Court of Appeals 17 April 2013. Christopher L. Carr, for Cumberland County Department of Social Services, petitioner-appellee. Beth A. Hall, for guardian ad litem.
Mary McCullers Reece, for appellant, respondent-mother.
STROUD, Judge.
Respondent-mother appeals from the district court's order adjudicating her son, K.C. (“Keith”) , an abused, neglected, seriously neglected, and dependent juvenile and leaving him in the non-secure custody of the Cumberland County Department of Social Services (“CCDSS”). Because the district court's findings of fact support an adjudication of abuse, neglect, and dependency under N.C. Gen.Stat. §§ 7B–101(15) and –807 (2011), we affirm as to these adjudications.
We will refer to the juvenile by pseudonym to protect the juvenile's privacy and for ease of reading.
Keith was born on 26 January 2006, and was a five-year-old kindergartner in the Fall of 2011. Because respondent-mother worked a late-shift job in another city, she employed an overnight babysitter (“Ms.L.”). Ms. L. kept Keith during the work week, save for a brief period each morning when respondent-mother would drive him from Ms. L.'s residence to his bus stop. Keith stayed with respondent-mother on weekends. Keith's putative father was incarcerated and had no contact with the child.
CCDSS filed a juvenile petition and obtained non-secure custody of Keith on 10 November 2011, alleging that he was abused, neglected and/or seriously neglected, and dependent. The basis for the petition was evidence of improper discipline by Ms. L. causing bruises and marks on the child's face and body, of which respondent-mother either knew or should have known. Keith was initially placed in foster care but moved in with his godparents after a favorable home study.
After hearing evidence on 23 and 24 July 2012, the district court adjudicated Keith an abused, neglected, seriously neglected, and dependent juvenile as defined by N.C. Gen.Stat. § 7B–101(1), (15), (19a), and (9) (2011). Respondent-mother filed timely notice of appeal from the adjudication and disposition order.
On appeal, respondent-mother challenges the court's adjudication of abuse on the ground that its findings were insufficient to show that Keith was subject to “inappropriate discipline” or that he sustained the “serious injury” required to establish “abuse” under N.C. Gen.Stat. § 7B–101(a)(1) (2011). Because the remaining adjudications arose from the erroneous determination that Keith was subject to inappropriate discipline and was abused, respondent-mother further contends, “Keith's spanking [did not] support the conclusion that he was seriously neglected, neglected, or dependent.” Respondent-mother does not challenge any of the findings as unsupported by the evidence.
In reviewing an adjudication under N.C. Gen.Stat. § 7B807, this Court must determine “(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) (quoting In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). Unchallenged findings are deemed to be supported by the evidence and are binding on appeal. In re C.B., 180 N.C.App. 221, 223, 636 S.E.2d 336, 337 (2006) (citation omitted), aff'd per curiam, 361 N.C. 345, 643 S.E.2d 587 (2007).
The district court made the following findings in support of its adjudication of abuse:
9. On November 8, 2011, ... the ... [s]chool social worker ... observed bruises on the juvenile's hands and arms as well as red marks on both sides of his face. The marks on the juvenile's face were fresh and appeared to be marks from a belt and belt buckle. Bruises on his hand and arms appeared to be in different stages of healing. The juvenile immediately indicated ... that his babysitter, Ms. [L], had spanked him.
....
16. ... Upon examination, the [CCDSS] social worker observed multiple bruising in different stages of healing on the juvenile's arms, hands, thighs, and buttocks. [CCDSS] submitted the pictures taken by Ms. Harrington on November 8, 2011 .... The Respondent Mother did not appear to be surprised by the marks she saw on K[eith]'s body.... [She] admitted to the social worker that she had allowed Ms. [L.] to spank K[eith] when he is acting out. The Respondent Mother also admitted to spanking the juvenile with her hand.... The Respondent Mother indicated that she had no other child care provider....
....
19. Ms. [L.] testified that the Respondent Mother had authorized her to spank K[eith] when his behaviors were out of control and even provided [her] with a belt.
20. Ms. [L.] indicated that since September 2011 and up until the filing o[f] the Petition on November 2011, she had only spanked the juvenile twice.... This version of events contradicts what [she] told Social Worker Harrington ... and further conflicts with the testimony of the juvenile, who testified that he was spanked at least ten (10) times by Ms. [L.]
21. The Court finds that the testimony of the juvenile was credible.... The Court finds that the juvenile was spanked at least ten (10) times, per his testimony. It is likely that this pattern of abuse and inappropriate discipline occurred on more than ten occasions. Spanking also occurred at the hands of respondent mother. The juvenile was clearly abused, as evidenced by his testimony and the marks on his body, which are consistent with spankings with a belt.
22. The Respondent Mother admitted to spanking the juvenile the weekend of November 5 and 6, 2011.... The Respondent Mother and Ms. [L.] denied seeing any marks or bruises on the juvenile....
23. ... There was no credible evidence of any cause for the bruising other than inappropriate discipline administered by the babysitter, Ms. [L.], and the Respondent Mother. The Respondent Mother's failure to acknowledge this ... indicates either intent to deceive the Court, or a failure to be able to comprehend the events occurring in her son's life.
....
26. The Court finds that the juvenile has been subjected to inappropriate discipline by his babysitter ... and the Respondent Mother. The juvenile has sustained multiple bruising on various areas of his body over a period of time, and the bruises were in different stages of healing at the time of his removal. The juvenile had received multiple spankings over a five-day period preceding November 8, 2011.
Respondent-mother does not contest any of the quoted evidentiary findings but rejects the court's conclusion that they establish “inappropriate discipline” or support adjudications of abuse, neglect, serious neglect, and dependency. See In re Ellis, 135 N.C.App. 338, 340, 520 S.E.2d 118, 120 (1999) (“Whether a child is neglected or abused is a conclusion of law.”); In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (“[A] determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law.”) (citations omitted). Therefore, our task is to determine whether the findings of fact support the court's conclusions of law. In re T.H.T., 185 N.C.App. at 343, 648 S.E.2d at 523.
The Juvenile Code defines an “abused” juvenile as one whose parent or guardian, inter alia:
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; [or]
....
e. Creates or allows to be created serious emotional damage to the juvenile[.]
N.C. Gen.Stat. § 7B–101(1). The district court found that Keith met each of these definitional standards.
Because we uphold the trial court's adjudication of abuse on the ground of “serious physical injury” we do not address the ground of “serious emotional damage.”
In challenging the adjudication of abuse, respondent-mother argues that the bruising and marks sustained by Keith did not rise to the level of “serious physical injury” under N.C. Gen.Stat. § 7B–101(1). She cites In re C.B., in which this Court reversed an abuse adjudication based on the father's act of bruising his thirteen-year-old son's buttocks with a belt. In re C.B., 180 N .C.App. at 222, 636 S.E.2d at 337. Describing Keith as “a sizeable, energetic child” who exhibited no pain or distress from his injuries on 8 November 2011, respondent-mother further notes the lack of “medical testimony that his bruises were serious or particularly painful.”
When considering an adjudication of abuse in the context of corporal punishment, we have looked, in part, to the interpretation of “serious physical injury” under the felony child abuse statute, N.C. Gen.Stat. § 14–318.4 (2011). In re L.T.R., 181 N.C.App. 376, 381, 639 S.E.2d 122, 125–26 (2007) (citing State v. Romero, 164 N.C.App. 169, 595 S.E.2d 208 (2004)). Consistent with those decisions, we have declined to impose a precise definition on “serious physical injury”—a term left undefined in the Juvenile Code. Nor have we required evidence of a particular quantum of harm, or of a need for medical attention. Id. Instead, we have generally left it to the trier of fact to decide whether a juvenile's injury is serious, “because the nature of an injury is depend[e]nt upon the relative facts of each case [.]” Id. (quoting Romero, 164 N.C.App. at 172, 595 S.E.2d at 211).
We believe the district court's findings, as supported by the evidence adduced at the hearing, were sufficient to support the adjudication of abuse under N.C. Gen.Stat. § 7B–101(1). The record shows that Keith, a five-year-old child, sustained extensive injuries across his face and body from a series of beatings administered with a belt by Ms. L. and respondent-mother over the period of several days in November of 2011. The school social worker testified, and the trial court found, that one of the belt marks on the child's face “looked like the buckle.” The photocopies of the pictures of the child included in the record on appeal are so blurry and unclear as to be useless for purposes of our review, but Keith's maternal grandmother testified of her own response to the photographs of Keith taken on 8 November 2011 as follows: “I was horrified. I started crying. I started shaking, like I'm doing now[.]” Having viewed the actual photographs at the adjudication hearing and heard from the witnesses directly, the trial judge was well positioned in her capacity as fact finder to determine whether they showed “serious physical injury” to the child.
We find this case to be readily distinguishable from In re C.B., in which a father bruised his thirteen-year-old son's buttocks on one occasion by spanking him with a belt. In re C.B., 180 N.C.App. at 224, 636 S.E.2d at 338. In that case, the juvenile only had bruises on his arm and buttocks, consistent with a spanking on the child's rear end. Id. at 222, 636 S.E.2d at 337.
Our decision in In re L.T.R. is more comparable to the facts presented here. In L.T.R., we affirmed an adjudication of abuse based on the respondent-stepfather's infliction of a dark, six-inch bruise on a three-year-old-child's thigh by striking him with a brush. In re L.T.R., 181 N.C.App. at 382, 639 S.E.2d at 126. There was also evidence that the juvenile had been also slapped in the face hard enough to leave a bruise. Id.
Here, there was evidence that the juvenile was not merely spanked, but hit across the face with a belt and a shoe. The trial court's found the juvenile credible. The juvenile “indicated to the social worker ... that Ms. [L] had slapped him in the face with a shoe.” The trial court further found that Keith had bruises on both sides of his face that “appeared to be marks from a belt and belt buckle.” Although the extent of injury was limited to bruising, these findings show that Keith was not merely subjected to spanking. Moreover, like in L.T.R., where the abused child was three years old, and unlike C.B., where the child was thirteen years old, Keith, at age 5, was not “old enough to have challenged his mother's authority by physical and verbal intimidation.” Id. In addition, this was not one isolated incident of abuse but “multiple spankings over a five-day period preceding November 8, 2011.”
We hold that the findings support the trial court's conclusion that Keith was an abused juvenile because he had been subjected to “serious physical injury.” Therefore, we affirm the district court's adjudication of abuse under N.C. Gen.Stat. § 7B–101 (1)(a).
Respondent-mother's exception to the remaining adjudications of neglect, serious neglect, and dependency all hinge on her assertion that the district court's adjudication of abuse was in error. Having upheld the adjudication of Keith as an abused juvenile based on the physical injuries inflicted by respondent-mother and her chosen caretaker, we overrule her related claims. The definition of “neglected juvenile” under N.C. Gen.Stat. § 7B–101(15) includes one “who does not receive proper ... discipline[.]” The findings of abusive discipline thus support Keith's adjudication as neglected. Likewise, the adjudication of abuse and neglect coupled with the respondent-mother's lack of alternative placement option for Keith was sufficient to support the adjudication of dependency under N.C. Gen.Stat. § 7B–101(9). Therefore, we affirm the adjudications of neglect and dependency as well.
Respondent-mother does not challenge the inconsistency of finding both serious neglect, defined as “conduct, behavior, or inaction [that] constitutes an unequivocal danger to the juvenile's health, welfare or safety, but does not constitute abuse,” N.C. Gen.Stat. § 7B–101(19a) (emphasis added), and abuse. As a result, we consider any argument to that effect abandoned. N.C.R.App. P. 28(a).
AFFIRMED. Judges HUNTER, JR., ROBERT N. and DILLON concur.
Report per Rule 30(e).