Opinion
No. COA11–1426.
2012-06-5
In the Matter of M.F.L., B.N.L.
Paul W. Freeman, Jr. for petitioner-appellee Wilkes County Department of Social Services. Pamela Newell for guardian ad litem.
Appeal by respondent from adjudication order entered 29 April 2011 and disposition order entered 12 September 2011 by Judge Jeanie R. Houston in District Court, Wilkes County. Heard in the Court of Appeals 17 April 2012. Paul W. Freeman, Jr. for petitioner-appellee Wilkes County Department of Social Services. Pamela Newell for guardian ad litem.
Peter Wood for respondent-appellant father.
STROUD, Judge.
Respondent-father (“respondent”) appeals from the trial court's order adjudicating both Mary and Betsy neglected and Mary abused. After careful consideration, we affirm.
We will refer to the minor children, M.F.L. and B.N.L., by the pseudonyms Mary and Betsy to protect the children's identity and for ease of reading.
I. Facts and Background
On 28 March 2011, the Wilkes County Department of Social Services (“DSS”) filed juvenile petitions alleging Mary, born in 2009, to be abused and neglected, and Betsy, born in 2006, to be neglected. The petitions alleged that in March 2011, Mary had a seizure, and her mother and the mother's boyfriend, Jim , took the girl to the hospital. It was determined that Mary had a subdural hematoma, as well as an older healing skull fracture. At the hospital, Jim was observed by cameras assaulting the child as she lay in her hospital bed, while the mother was present in the room. Hospital personnel became aware of the assault, contacted law enforcement, and Jim and the mother were arrested. DSS was granted non-secure custody of the children.
Mary and Betsy's mother is not a party to this appeal.
A pseudonym.
At the adjudication hearing on 18 April 2011, both parents of the children were present and represented by counsel, and counsel appeared for Jim. Counsel for DSS stated,
those of us that are present agree that the court summaries of the social worker and guardian ad litem will be admitted into evidence, that these documents form a reasonable and factual basis for the Court to enter its adjudication that [Mary] is an abused and neglected juvenile as alleged in the petition, and that [Betsy] is a neglected juvenile as alleged in the petition; that, in fact, those two children do occupy those respective statuses ....
After being given the opportunity to do so, counsel for the mother and counsel for respondent made no objections and presented no additional evidence. The above-referenced reports from the guardian ad litem and the social worker note the details surrounding Jim's assault on Mary at the hospital; Mary's permanent injuries from that assault, her ongoing treatment, and therapy; Mary and Betsy's behavior in foster care, including Betsy's stories about abuse the children suffered, her nightmares, and “breakdown[s]” which resulted in her hospitalization in the psychiatric ward and a diagnosis of post-traumatic stress disorder; their fear of going back with their mother; efforts made by DSS in working with respondent and the mother; and recommendations regarding placement of the children. In addition to the stipulations, the trial court also admitted into evidence and considered Mary's certified medical records. The trial court subsequently entered its written order adjudicating Mary abused and neglected and Betsy neglected on 29 April 2011. The record reflects that the disposition hearing was held on 15 August and 12 September 2011, with the disposition order being entered on 12 September 2011. Respondent appeals, contending that the trial court “committed prejudicial error” in adjudicating Mary as an abused and neglected juvenile and Betsy as a neglected juvenile.
DSS contends in its brief on appeal that respondent's appeal should be dismissed for failure to include in the record on appeal notice of appeal from the 29 April 2011 adjudication order. On 12 January 2012, respondent filed a motion to amend the record on appeal to include an amended notice of appeal from the 29 April 2011 order, explaining that this second notice of appeal had been timely filed but counsel had “neglected to include the second notice of appeal” when he filed the record on appeal. Respondent, on the same date, also filed with this Court a petition for writ of certiorari. This Court granted respondent's motion to amend the record to include the amended notice of appeal from the 29 April 2011 adjudication order. Therefore, respondent's appeal is properly before us. Since we granted respondent's motion to amend, respondent's petition for writ of certiorari is rendered moot.
II. Adjudication Order
Respondent argues that the facts in the record do not support the trial court's findings of fact regarding the stipulation, as there is no affirmation by him in the record showing that he agreed to the stipulations. Respondent further argues that even if the facts support the stipulated findings, the stipulated findings do not support the trial court's conclusion adjudicating Mary and Betsy as neglected and abused. Respondent also argues that the trial court erred in including in the stipulated findings a conclusion of law.
We have stated that “[t]he purpose of abuse, neglect and dependency proceedings is for the court to determine whether the juvenile should be adjudicated as having the status of abused, neglected or dependent.” In re J.S., 182 N.C.App. 79, 86, 641 S.E.2d 395, 399 (2007). “The question this Court must look at on review is whether the court made the proper determination in making findings and conclusions as to the status of the juvenile.” Id. Accordingly, proper review of a trial court's determination in an adjudication order “entails a determination of (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 Pittman, 149 N.C.App. 756, 763–64, 561 S.E.2d 560, 566 (citation and quotation marks omitted), appeal dismissed and disc. review denied,356 N.C. 163, 568 S.E.2d 609 (2002), cert. denied,538 U.S. 982, 155 L.Ed.2d 673 (2003). Unchallenged findings of fact are deemed to be supported by competent evidence and are binding on appeal. In re T.B., 203 N .C.App. 497, 502–03, 692 S.E.2d 182, 186 (2010).
The Juvenile Code provides that
[n]othing in this Article precludes the court from entering a consent order or judgment on a petition for abuse, neglect, or dependency when all parties are present, the juvenile is represented by counsel, and all other parties are either represented by counsel or have waived counsel, and sufficient findings of fact are made by the court.
N.C. Gen.Stat. § 7B–902 (2009). Here, the trial court's order shows that all parties were present, Mary and Betsy were represented by counsel, all other parties were represented by counsel, and the trial court made findings of fact, including specific findings regarding the parties' stipulations. Therefore it appears that the 29 April 2011 order was a consent order. See id. Although respondent argues that he is challenging all of the trial court's findings, his specific arguments relate only to the trial court's findings regarding the parties' stipulations.
.N.C. Gen.Stat. § 7B–902 has since been repealed, but the text of § 7B–902 now appears in N.C. Gen.Stat. § 7B–801(b1). However, N .C. Gen.Stat. § 7B–801(b1) is only applicable “to actions filed or pending on or after” 1 October 2011. See 2011 N.C. Sess. Laws 295. Here, DSS filed the adjudication petitions on 28 March 2011 and the trial court entered its order adjudicating Mary and Betsy on 29 April 2011.
The trial court made the following findings regarding the parties' stipulations:
5. Prior to the taking of evidence in this case, the Court met with counsel for all parties, as well [as] Ms. Jordan and Mr. Schiebel of the Guardian Ad Litem's Office. As a result of this pre-trial conference, certain stipulations and agreements were established. These stipulations were announced in open Court and assented to by all parties. Specifically, it is stipulated and agreed between all parties present that:
A. The Court Report of the Social Worker under date of April 8, 2011 and that of the Guardian Ad Litem under date of April 15, 2011 are admitted into evidence as Findings of Fact.
B. The aforesaid Court Reports form a reasonable and factual basis for the Court to enter its Order adjudicating [Mary] to be a neglected and abused juvenile as alleged in the Petition filed herein; and that said Court Reports form a reasonable and factual basis for the Court to enter its adjudication that [Betsy] is a neglected juvenile as set forth in the aforesaid Petition.
C. [Mary] is, in fact, an abused and neglected juvenile, as those terms are defined by G.S. § 7B–101.
D. [Betsy] is, in fact, a neglected juvenile as that term is defined by G.S. § 7B–101.
E. It is in the best interests of the above-named children for their legal and physical custody to be placed with the Wilkes County Department of Social Services; and for the Department of Social Services to have the authority to place said children.
F. A final disposition in this case shall be postponed until 9:30 a.m. on June 27, 2011 or as soon thereafter as the matter might be reached.
During the adjudication hearing on 18 April 2011, counsel for DSS stated the following:
[T]hose of us that are present agree that the court summaries of the social worker and guardian ad litem will be admitted into evidence, that these documents form a reasonable and factual basis for the Court to enter its adjudication that [Mary] is an abused and neglected juvenile as alleged in the petition, and that [Betsy] is a neglected juvenile as alleged in the petition; that, in fact, those two children do occupy those respective statuses, that legal and physical custody of the children is to be granted to the Wilkes County Department of Social Services; the Department of Social Services is to have the authority to place the children[;] that any further disposition at this point will be postponed for a period of 60 days or so.
....
Counsel may have some other details that they want to add with respect to their particular clients, but that is the basic agreement, if I understand our prior discussion.
Respondent contends that the facts do not support the findings regarding the stipulations because there is no evidence in the record that he agreed with the stipulation. In In re J.N.S., ––– N.C.App. ––––, ––––, 704 S.E.2d 511, 516 (2010), the respondent argued that “the trial court erred by not directly inquiring whether she assented to the consent order and instead relying on the assent of her attorney.” In overruling this argument, this Court concluded that since the respondent's counsel had consented to the adjudication and there was no evidence her counsel objected to the entry of a consent order, the respondent had “not preserved this issue for appellate review.” Id. at ––––, 704 S.E.2d at 517.
Here, the record shows that respondent did consent to the stipulations. Although respondent attempts to parlay the silence of the parties into an argument that the parties failed to agree to the stipulation, this position simply cannot stand. Our review of the transcript can only lead us to conclude that all parties agreed to the stipulation. As noted above, counsel for DSS indicated that all parties had consented, including respondent; respondent's counsel and respondent-mother's counsel were given the opportunity to present evidence or raise objections, after counsel for DSS had spoken; and respondent's counsel did not object to, or attempt to amend, any of DSS's statements. In fact, counsel for respondent stated that he had “instructed his client” and, rather than contest the stipulation, advocated for possible visitation in the future and the establishment of a case plan. The portion of the trial court's findings regarding the parties' stipulation is supported by the statements of counsel for DSS regarding the parties' agreement that the court summaries were to be admitted into evidence, which is noted in finding of fact 5(A); these documents supported the adjudication of Mary and Betsy, which is noted in findings of fact 5(B), (C), and (D); custody of the children would be with DSS, which is noted in finding of fact 5(E); and further disposition of the case, which is noted in finding of fact 5(F). We hold that there were sufficient facts regarding respondent's stipulations to support the trial court's findings that he did in fact agree to the stipulations. SeeN.C. Gen.Stat. § 7B–902. Therefore, like the respondent in J.N.S., respondent here has not preserved this argument for our review.
Respondent also argues that the stipulations do not support a conclusion that Mary should have been adjudicated abused and neglected and Betsy adjudicated neglected. As noted above, respondent stipulated that the “The Court Report of the Social Worker under date of April 8, 2011 and that of the Guardian Ad Litem under date of April 15, 2011[was] admitted into evidence as Findings of Fact” and that this evidence supports a conclusion that the children should be adjudicated neglected and abused. “[S]tipulations are judicial admissions and are therefore binding in every sense, preventing the party who agreed to the stipulation from introducing evidence to dispute it and relieving the other party of the necessity of producing evidence to establish an admitted fact.” In re I.S., 170 N.C.App. 78, 86, 611 S.E.2d 467, 472 (2005) (citation and quotation marks omitted). Nevertheless, “[w]hen construing a stipulation a court must attempt to effectuate the intention of the party making the stipulation as to what facts were to be stipulated without making a construction giving the stipulation the effect of admitting a fact the party intended to contest.” Id. at 87, 611 S.E.2d at 473. Here, as noted above, the transcript shows that respondent agreed to the stipulations regarding the introduction of the reports of the guardian ad litem and social worker. The trial court adjudicated Mary as abused and neglected and Betsy as neglected. A neglected juvenile is one who “does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker.” N.C. Gen.Stat. § 7B–101(15) (2009). To adjudicate a juvenile neglected, “there [must] 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) (citations and quotation marks omitted). The above stipulated reports document physical, mental, and emotional impairment of both minors as a result of the parents' failure to provide proper care or supervision as well as Mary's severe physical injuries from the assault by Jim and Betsy's diagnosis of post-traumatic stress disorder, as a result of the abuse she observed and experience while in the care of her parents. An “abused juvenile” is any juvenile whose parent “[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means.” N.C. Gen.Stat. § 7B–101(1)(a). The stipulated reports also support the adjudication of Mary as an “abused juvenile[,]” as they describe the vicious assault that the mother's boyfriend inflicted on Mary while the mother was in the same hospital room, for which he was later charged with 14 counts of attempted murder. They also denote the severe nature of Mary's injuries as a result of that assault, her treatment for those injuries, and her ongoing therapy. Therefore, even without the other findings of fact in the order, the parties' stipulation to these reports acted as a judicial admission of the evidence contained in them and that evidence supported the adjudication of the minor children. Respondent's argument is overruled.
Respondent also challenges the stipulation as invalid for purporting to agree to the legal conclusions that Mary is an abused and neglected juvenile, and that Betsy is a neglected juvenile. Respondent asserts that stipulations may only be made as to factual determinations and not to conclusions of law. It is true that “[s]tipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate ....“ State v. Prush, 185 N.C.App. 472, 480, 648 S.E.2d 556, 561 (2007) (citations and quotation marks omitted), disc. review denied,362 N.C. 369, 663 S.E.2d 855 (2008). However, even if we disregard the portions of the stipulations which may be considered as conclusions of law, the facts which were stipulated clearly support a conclusion of law that Mary was abused and neglected and that Betsy was neglected, as discussed above.
Accordingly, respondent's arguments regarding the adjudication are without merit. Therefore, we affirm the adjudication order concluding both children to be neglected and Mary to be abused.
AFFIRMED. Judges HUNTER, ROBERT C and ERVIN concur.
Report per Rule 30(e).