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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.


NO. COA07-1242

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2008

IN THE MATTER OF:
Robeson County
A.S. No. 07 JA 240

Appeal by respondent from order entered 24 August 2007 by
Judge J. Stanley Carmical in Robeson County District Court. Heard
in the Court of Appeals 28 January 2008.

No brief filed on behalf of petitioner-appellee.

Annick Lenoir-Peek for respondent-appellant.

North Carolina Guardian ad Litem Program, by Pamela Newell
Williams, for guardian ad litem.

GEER, Judge.

Respondent mother appeals from the district court’s
adjudication and dispositional order adjudicating her minor child
as neglected. We affirm the trial court’s adjudication of neglect,
but we cannot determine from the order the precise disposition of
the trial court; which facts it found in support of the
disposition; or its reasoning in making that disposition. We must,
therefore, vacate the disposition portion of the order and remand
for further findings of fact and conclusions of law and
clarification of the decretal portion of the order.

Facts

Respondent presently has four minor children: "Teresa,"
"David," "Isaac," and "Adam."

(See footnote 1)


This appeal relates only to Adam.
On 22 December 2006, DSS received information that Teresa had
sustained second degree burns on her feet. Respondent claimed to
the social worker that she had boiled water for a medicinal bath
and left the pot of water on the bottom step of the bathtub. She
then took Teresa out of the bathtub and put her to bed. According
to respondent, shortly thereafter, she heard Teresa crying in the
bathroom, and when she went into the room, she found Teresa
"hopping up and down" in the pot of boiling water.
When, however, Teresa was examined at the UNC Hospital’s Burn
Center, the hospital staff informed DSS that her burn patterns were
not consistent with an accidental burning. The doctors believed
instead that her unusual burn patterns were consistent with an
intentional immersion burning, and the absence of any splash marks
indicated that Teresa’s burns were not the result of an accident.
Respondent was arrested on 11 June 2007 and charged with
felony child abuse based on Teresa’s burns. Teresa, Isaac, and
David were removed from her home. Teresa was subsequently
adjudicated abused, and Isaac and David were adjudicated neglected.
On 16 June 2007, respondent gave birth to Adam. On 18 June
2007, before Adam was taken home from the hospital, DSS completed
a petition alleging that Adam was neglected. DSS alleged thatbecause of the burns Teresa had received, it could not ensure the
safety of the child without court intervention and, as a result,
Adam lived in an environment injurious to his welfare.
Because all of the district court judges were away at a summer
conference, DSS presented its petition and its request for
nonsecure custody to a magistrate. The magistrate ultimately wrote
at the top of the petition: "filed by mag Sam Hunt 6-18-07 2:05
pm." Also on 18 June 2007, the magistrate entered an order for
nonsecure custody, placing Adam in DSS’ custody.
On 27 June 2007, a district court judge conducted a hearing
under N.C. Gen. Stat. § 7B-506 (2007) to determine the need for
continued nonsecure custody of the child. In an order entered 24
July 2007, the court found that remaining in the home would be
contrary to the best interest of the child; that efforts to prevent
the need for placement were precluded by immediate threat of harm
to the child; and that there was a reasonable factual basis to
believe that the allegations in the petition were true. The court,
therefore, ordered that Adam remain in the nonsecure custody of
DSS.
The court conducted the initial adjudication hearing on 25
July 2007. In its order, entered 24 August 2007, the court found
that Teresa suffered burns on her feet that appeared, according to
the UNC Hospital’s Burn Center, to be intentional immersion burns.
The court further found that the Burn Center social worker
indicated that the unusual burn pattern did not seem consistent
with the mother’s account of how Teresa burned her feet. The courtthen found that "the mother’s explanation is not consistent with
the injury" and that "because of the burns [Teresa] received to her
feet on 12-22-06, [DSS] cannot ensure the safety of the children
without court intervention." Based on the court’s findings of
fact, the court adjudicated Adam neglected as defined by N.C. Gen.
Stat. § 7B-101(15) (2007).
Respondent filed a notice of appeal from the court’s order on
27 August 2007. Subsequently, on 3 December 2007, the guardian ad
litem ("GAL") served respondent with a motion to dismiss the appeal
on the ground that respondent had not signed the notice of appeal
as required by Rule 3A of the Rules of Appellate Procedure; the
motion was filed in this Court on 19 December 2007. On 18 December
2007, respondent filed a petition for writ of certiorari seeking
review despite the defective notice of appeal.

I

As a preliminary matter, we address the GAL’s motion to
dismiss and respondent’s petition for writ of certiorari. The GAL
contends that respondent’s appeal must be dismissed because
respondent failed to sign the notice of appeal as required by Rule
3A, which states: "If the appellant is represented by counsel, both
the trial counsel and appellant must sign the notice of appeal[.]"
N.C.R. App. P. 3A(a).
This Court recently held: "Rule 3A is . . . jurisdictional,
and if not complied with, the appeal must be dismissed." In re
L.B.
, ___ N.C. App. ___, ___, 653 S.E.2d 240, 244 (2007). Because
the notice of appeal contained in the record on appeal is notsigned by respondent mother, we must grant the GAL’s motion to
dismiss this appeal.
Nevertheless, N.C.R. App. P. 21(a)(1) provides that a "writ of
certiorari may be issued in appropriate circumstances by either
appellate court to permit review of the judgments and orders of
trial tribunals when the right to prosecute an appeal has been lost
by failure to take timely action . . . ." We believe that this is
an appropriate case in which to exercise our discretion and allow
respondent’s petition for writ of certiorari. Although the order
at issue involves only an initial adjudication of neglect, the
disposition could be read as ordering DSS to cease reunification
efforts with respondent _ effectively, a termination of
respondent’s parental rights less than three months after the birth
of Adam. The error depriving this Court of jurisdiction appears to
be due to trial counsel’s mistake regarding the requirements of the
Rules of Appellate Procedure. Given the serious consequences of
the adjudication order, the lack of any evidence that respondent
contributed to the error, and the need to resolve the ambiguity in
the order’s disposition, as discussed below, we believe that review
pursuant to a writ of certiorari is appropriate.

II

Respondent first argues that the trial court lacked subject
matter jurisdiction because the petition was not properly filed.
Respondent points to the provision of the Juvenile Code stating
that "[a]n action is commenced by the filing of a petition in the
clerk’s office when that office is open or by the issuance of ajuvenile petition by a magistrate when the clerk’s office is
closed, which issuance shall constitute filing." N.C. Gen. Stat.
§ 7B-405 (2007). The authority to issue the juvenile petition may
be delegated to a magistrate by a district court judge in emergency
situations when a petition is required to obtain a nonsecure
custody order. N.C. Gen. Stat. § 7B-404(b) (2007). In such
situations, the statute requires that the petition be delivered to
the clerk’s office for processing as soon as the office reopens for
business. Id.
Respondent contends that because the clerk’s office was open
and because "[n]o ‘filed’ stamp is evident on either the juvenile
petition or the Non-Secure Custody Order granted by the
Magistrate," the petition necessarily was not filed in compliance
with § 7B-405. As respondent notes, however, the magistrate
handwrote on the petition: "filed by mag Sam Hunt 6-18-07 2:05 pm."
Although respondent argues that this notation indicates that the
petition was "issued" by a magistrate even though the clerk’s
office was open, we disagree.
The record indicates that the petition was in fact filed with
the clerk’s office on 18 June 2007 as suggested by the magistrate’s
notation. The summons issued the same day to respondent is signed
by a deputy clerk stating that a petition had been filed and a
nonsecure custody order entered. See N.C. Gen. Stat. § 7B-406(a)
(2007) ("Immediately after a petition has been filed alleging that
a juvenile is abused, neglected, or dependent, the clerk shall
issue a summons to the parent . . . . A copy of the petition shallbe attached to each summons."). Even if the petition was filed
after the issuance of the nonsecure custody order, that fact would
not deprive the district court of jurisdiction. See In re L.B.,
181 N.C. App. 174, 187, 639 S.E.2d 23, 29 (2007) (holding that even
though nonsecure custody order and summons were issued before
juvenile petition was signed and verified, court gained subject
matter jurisdiction upon subsequent signing and verification of
petition). Further, on 24 July 2007, the district court entered an
Order on Need for Continued Non-Secure Custody that specifically
found that the court had jurisdiction over the subject matter of
the proceedings because "[a] Petition was filed and an Order for
Non-Secure Custody was entered, as the record shows."
The lack of an official "filed" stamp on the petition does not
require a conclusion _ contrary to the other material in the record
_ that the petition was not filed with the clerk’s office and only,
according to respondent, "at some point . . . made its’ [sic] way
to a juvenile file." We, therefore, hold that the district court
had subject matter jurisdiction over the petition under N.C. Gen.
Stat. § 7B-405.

III

Respondent next argues that the magistrate lacked the
authority to issue the 18 June 2007 nonsecure custody order because
that authority was not properly delegated to him by the chief
district court judge. N.C. Gen. Stat. § 7B-502 (2007) states:
Any district court judge shall have the
authority to issue nonsecure custody orders
pursuant to G.S. 7B-503. The chief district
court judge may delegate the court’s authorityto persons other than district court judges by
administrative order which shall be filed in
the office of the clerk of superior court.
The administrative order shall specify which
persons shall be contacted for approval of a
nonsecure custody order pursuant to G.S. 7B-
503.

Respondent points out that the administrative order issued in this
case on 11 June 2007 authorized the director of DSS to issue
nonsecure custody orders rather than the magistrate.
Even assuming, without deciding, that the magistrate lacked
authority to enter a nonsecure custody order, respondent has cited
no authority suggesting that such a lack of authority stripped the
trial court of subject matter jurisdiction over the petition. At
most, respondent’s argument might support a conclusion that the
initial award of custody to DSS on 11 June 2007 was invalid.
Nevertheless, the trial court revisited the issue of custody in a
hearing on 24 June 2007 and entered an order stating that "pending
further hearings, the juvenile shall remain or be placed in the
non-secure custody of the Robeson County Department of Social
Services." Thus, a proper order of custody existed prior to the
district court’s entering its adjudication and dispositional order.

IV

Respondent next argues that the trial court violated N.C. Gen.
Stat. § 7B-506(a) by failing to hold a hearing for continued
nonsecure custody within seven calendar days after entry of the
initial nonsecure custody order. The statute specifically states:
"No juvenile shall be held under a nonsecure custody order for more
than seven calendar days without a hearing on the merits or ahearing to determine the need for continued custody." Id. Here,
the record indicates that the initial nonsecure custody order was
entered on 18 June 2007 and was set to expire on 25 June 2007. The
court did not, however, conduct a hearing on the need for continued
nonsecure custody until 27 June 2007.
While respondent asserts that this violation is a "serious
error," she does not make any argument as to how she was prejudiced
by the two-day delay. It is established, however, that "a trial
court’s violation of statutory time limits in a juvenile case is
not reversible error per se. Rather, we have held that the
complaining party must appropriately articulate the prejudice
arising from the delay in order to justify reversal." In re
S.N.H.
, 177 N.C. App. 82, 86, 627 S.E.2d 510, 513 (2006) (internal
citations omitted).
Respondent also argues that on 27 June 2007, the court simply
"continued the non-secure custody hearing to July 25, 2007 since
the parties had not been served." While the order states that
"this matter is continued upon the request and or consent of all
parties," the order also made specific findings that remaining in
the home would be contrary to the best interests of the child, that
efforts to prevent the need for the child’s placement were
precluded by an immediate threat of harm to the child, that there
was a reasonable factual basis to believe that the allegations in
the petition were true, and that DSS had made reasonable efforts to
prevent or eliminate the need for the child’s placement. Based on
those findings, the court then ordered that the child be placed inthe custody of DSS and that although a plan to return the children
to the parents should be addressed, "it would not be appropriate to
return the juvenile to the home and remaining in the home would be
contrary to the best interest of the juvenile." Thus, the court
specifically determined, based on findings of fact, that custody
should be continued in DSS. This assignment of error is,
therefore, overruled.

V

Respondent further contends that the trial court erred by
failing to appoint a GAL for Adam. When, as here, a juvenile is
alleged to be neglected, N.C. Gen. Stat. § 7B-601(a) (2007)
provides that "the court shall appoint a guardian ad litem to
represent the juvenile."
In this case, the record on appeal contains no order formally
appointing a GAL for Adam. The order arising out of the nonsecure
custody hearing held on 27 June 2007 stated that the "GAL Staff,"
without a specifically designated individual, served as GAL on
behalf of Adam and that Diane Surgeon appeared as attorney
advocate. Nevertheless, the record reveals that as of at least 23
July 2007, Hope Robinson, a GAL volunteer, was serving as the GAL
for all four children, including Adam. She submitted a "Guardian
Ad Litem Court Report" for Adam’s adjudication and disposition
hearing held on 25 July 2007 that specifically addressed Adam’s
current placement, his medical condition, and respondent’s
attendance at Adam’s medical appointments, as well as the GAL’s
recommendations for all four children that DSS retain custody, thatthe plan of reunification change to guardianship, and that the
children remain in their current placements. The court’s
adjudication and disposition order asserts that Ms. Robinson
appeared at the hearing as Adam’s GAL, with Ms. Surgeon present as
the GAL’s attorney advocate, and that Ms. Robinson submitted a
report to the court relating to Adam.
We find this case materially indistinguishable from In re
A.D.L.
, 169 N.C. App. 701, 612 S.E.2d 639, disc. review denied, 359
N.C. 852, 619 S.E.2d 402 (2005). In A.D.L., as in this case, the
record on appeal did not include an appointment of a GAL. This
Court observed, however, that "except for the initial hearing
following the entry of the non-secure order to assume custody of
the juveniles in August of 2001, the guardian ad litem was noted as
present at each and every hearing prior to and including the TPR
hearing where she represented the interest of the children. In
addition, the guardian ad litem was named in the TPR petition."
Id. at 707, 612 S.E.2d at 643. Based on those facts, this Court
held: "It is clear that the guardian ad litem followed her
statutory duties under N.C. Gen. Stat. § 7B-601(a) to represent the
juveniles in all actions under Chapter 7B. Since the guardian ad
litem carried out her respective duties, failure of the record to
disclose guardian ad litem appointment papers does not necessitate
reversal of the district court’s decision." Id.
Here, Ms. Robinson prepared a report that reflected an
investigation that complied with her duties as set forth in § 7B-601(a).

(See footnote 2)


That report was submitted to the court in connection with
the initial adjudication hearing, and Ms. Robinson attended that
hearing as Adam’s GAL, although _ like the A.D.L. GAL _ she did not
attend the first hearing after DSS was granted nonsecure custody.
Thus, as in A.D.L., "[s]ince the guardian ad litem carried out her
respective duties, failure of the record to disclose guardian ad
litem appointment papers does not necessitate reversal of the
district court’s decision." 169 N.C. App. at 707, 612 S.E.2d at
643. We, therefore, overrule this assignment of error.

VI

With respect to the merits of the trial court’s adjudication
of neglect, respondent first argues that the order was inadequate
because the court failed to affirmatively state that the
allegations in the petition had been proven by clear and convincing
evidence as required by the Juvenile Code. Pursuant to N.C. Gen.
Stat. § 7B-807 (2007), the court is required to recite the standard
of proof the court relied on in its determination of neglect.
Although the "[f]ailure by the trial court to state the
standard of proof applied is reversible error[,] . . . there is norequirement as to where or how such a recital of the standard
should be included." In re O.W., 164 N.C. App. 699, 702, 596
S.E.2d 851, 853 (2004) (internal citation omitted) (holding that
court sufficiently satisfied the requirement of statement of
standard of proof by stating the court "CONCLUDES THROUGH CLEAR,
COGENT AND CONVINCING EVIDENCE"). Here, the court’s order contains
the following language: "FROM THE FOREGOING, THE COURT CONCLUDES
THROUGH CLEAR, COGENT AND CONVINCING EVIDENCE: . . . ." We find
this language sufficient to meet the requirement of N.C. Gen. Stat.
§ 7B-807.
Respondent also contends the trial court’s neglect
adjudication was not supported by sufficient evidence because DSS
did not present evidence at the adjudication hearing related to the
allegations of the petition, but rather asked the trial court to
take judicial notice of facts in the other children’s cases.
Respondent overlooks the fact that DSS offered into evidence,
without objection from either parent, reports submitted by DSS and
Ms. Robinson, the GAL. These reports provide evidentiary support
for the court’s findings of fact regarding Teresa and the other
children in the adjudication portion of the order. Since there was
no objection by respondent to the admission of these reports or any
request that the use of the reports be limited in any way, the
reports constitute substantive evidence sufficient to support the
trial court’s findings of fact. See Raynor v. Odom, 124 N.C. App.
724, 730, 478 S.E.2d 655, 658 (1996) (holding that finding of factwas supported by competent evidence when based on affidavit,
report, evaluation, and plan admitted without objection).
In addition, although DSS requested that the trial court take
judicial notice of the facts of the other children’s cases, it is
unclear from the transcript whether the court ever specifically
ruled on that request as opposed to simply acknowledging that the
request had been made. In any event, neither parent objected to
DSS’ request or ever made any suggestion to the court that he or
she had concerns about the evidentiary approach urged by DSS.
Without an objection, respondent did not preserve for appellate
review any argument regarding the trial court’s consideration of
the facts relating to the other children. N.C.R. App. P. 10(b)(1)
("In order to preserve a question for appellate review, a party
must have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context.").
Respondent did, however, argue at trial, as she argues on
appeal, that the facts relating to Teresa are insufficient to
support a conclusion that Adam is a neglected child. "A proper
review of a trial court’s finding of neglect 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
Gleisner
, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
(internal citation omitted). 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 been
subjected to abuse or neglect by an adult who
regularly lives in the home
.

N.C. Gen. Stat. § 7B-101(15) (emphasis added). In considering the
identically-worded statutory predecessor to § 7B-101, this Court
held that while this language regarding abuse or neglect of other
children "does not mandate" a conclusion of neglect, the trial
judge has "discretion in determining the weight to be given such
evidence." In re Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852,
854 (1994).
When, as is the case with Adam, the juvenile being adjudicated
has never resided in the parent’s home, "the decision of the trial
court must of necessity be predictive in nature, as the trial court
must assess whether there is a substantial risk of future abuse or
neglect of a child based on the historical facts of the case." In
re McLean
, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
Since the statutory definition of a neglected child includes living
with a person who has abused or neglected other children and since
this Court has held that the weight to be given that factor is a
question for the trial court, the trial court, in this case, was
permitted, although not required, to conclude that Adam wasneglected based on evidence that respondent had abused Teresa by
intentionally burning her. See, e.g., In re P.M., 169 N.C. App.
423, 427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of
neglect of one child based on prior adjudication of neglect with
respect to other children and ongoing unwillingness to accept
responsibility); In re E.N.S., 164 N.C. App. 146, 150, 595 S.E.2d
167, 170 (affirming conclusion of neglect "based primarily on
events that took place before [the child’s] birth, in particular,
the circumstances regarding respondent’s oldest child being
adjudicated neglected and dependent" and subsequent failure to
demonstrate stability), disc. review denied, 359 N.C. 189, 606
S.E.2d 903 (2004).
The dissenting opinion relies upon In re A.K., 178 N.C. App.
727, 637 S.E.2d 227 (2006). In A.K., however, the trial court
based its adjudication of neglect on its finding that "A.K. was at
‘substantial risk of neglect’ because of father’s failure to
acknowledge the cause of C.A.K.’s injuries." Id. at 731, 637
S.E.2d at 229. This Court pointed out, however, that the only
evidentiary support for this finding was an order entered nine
months earlier. The Court carefully limited its holding in
reversing the adjudication of neglect: "Consequently, where the
trial court did not accept any formal evidence in addition to its
consideration of the prior court orders concerning C.A.K., and the
only order concerning C.A.K. that contained findings by the clear
and convincing standard of proof was from a hearing occurring many
months earlier, the trial court could not, on this record, concludethat ‘the minor child would be at substantial risk of neglect if
placed in the custody of the . . . parents at this time.’" Id. at
732, 637 S.E.2d at 230 (emphasis added).
Thus, in A.K., the neglect adjudication was not based on prior
abuse of another child, but rather on a lack of acknowledgment by
the father _ a circumstance that could have changed over the nine-
month period prior to the second child’s adjudication. Here,
however, the trial court based its adjudication that Adam was
neglected on the prior abuse of Teresa six months earlier. If a
court finds prior abuse, the existence of that abuse is established
and, of course, is not a fact that could alter over time. Indeed,
respondent was arrested on 11 June 2007 and charged with felony
child abuse, mere days before Adam’s birth and less than three
months before the adjudication order. While it may be that
respondent’s response to the allegations of abuse may change, her
response was not the basis for the adjudication and any such change
in respondent’s perspective would only be relevant in subsequent
proceedings regarding any continued efforts at reunification. We,
therefore, affirm the adjudication that Adam is a neglected child.

VII

Respondent’s final argument on appeal concerns the court’s
dispositional order. Respondent argues that (1) the trial court
improperly delegated its fact-finding function by broadly
incorporating by reference the DSS and GAL reports, and (2) the
court failed to make the findings required by N.C. Gen. Stat. § 7B-
507 (2007) to cease reunification efforts. Based upon our reviewof the trial court’s disposition order, we cannot decipher either
what the trial court actually found or what the trial court
intended to order. We, therefore, must vacate the disposition
portion of the order and remand for further findings of fact and
conclusions of law.
In the disposition portion of its order, the trial court
incorporated by reference each of the DSS and GAL exhibits,
including the DSS court report, a family reunification assessment,
a family assessment of strengths and needs, and the GAL court
report. The court then found:
That the statements set forth in the
Court Report of social worker, Sheila Smith[,] are true and the statements set forth in the
Court Report of guardian ad litem, Hope
Robinson[,] are true and that it is in the
best interest of the named juvenile that the
recommendations of the Robeson County
Department of Social Services adopted [sic] by
the Court, legal and physical custody of the
named juvenile remain with the Department and
change [sic] the plan from reunification to
guardianship with a court approved caretaker
.
Visits are going well, continue visits as long
as supervised. Return to Court on August 8,
2007 for a First Review Hearing.

The Court finds that it is contrary to
the welfare of the juvenile named and it is
not possible for the juveniles to be returned
home immediately or within the next six months
in full legal custody of their parents and
that it is not in the best interest of the
juvenile to return home because of the
parents[‘] inability to provide for the care
and supervision of the juvenile and the
parents[‘] failure to make reasonable progress
in correcting those conditions that led to the
removal of the juvenile from their custody.

(Emphasis added.) Following these findings, the order then recited that the
court concluded based on the findings:
The Court finds as a fact that it would
be contrary to the welfare of the named
juvenile for their [sic] to be a continuation
in or return to the juvenile’s own home and
that if [sic] such action would be contrary to
the juvenile’s best interest; that the Robeson
County Department of Social Services has made
reasonable efforts to prevent or eliminate the
need for placement for the juvenile as set
forth in the court report of the Department of
Social Services should [sic] continue to make
reasonable efforts to prevent or eliminate the
need for placement of the juvenile
, and the
juvenile’s placement and care are the
responsibility of the Robeson County
Department of Social Services and that agency
is to provide and arrange for the foster care
or other placement, including relative
placement if appropriate, deemed to be in the
best interest of the juvenile.

(Emphasis added.) Following this paragraph, the order then stated
that based on the foregoing findings of fact/stipulation and
agreement of the parties
that the above named juvenile is hereby
adjudicated neglected as defined by N.C.G.S.
7B-101(15) and the Court finds and concludes
as matters of law that the parents are not
presently able to provide adequately for the
care and supervision of the named juveniles
[sic] and that it is in the best interest of
the named juvenile that [his] care, custody
and control remain with the Robeson County
Department of Social Services and that the
Robeson County Department of Social Services
should have authority to make any lawful
placement, including relative placement if
deemed appropriate.

In the decretal portion of the order, the court reiterated its
neglect adjudication and its determination that legal custody
should be awarded to DSS with DSS having authority to make anylawful placement, including relative placement. The order also
granted DSS authority to arrange and sign for any health care
treatment or evaluation in the interest of the child and ordered
respondent to attend parenting classes, complete a psychological
test, and "participate [sic] and follow all recommendations."
Finally, the court stated "[t]hat this Court orders and adopts the
recommendations listed in the findings of fact."
Thus, in the findings of fact, the court appeared to adopt the
DSS and GAL recommendation that the plan change from reunification
to guardianship. On the other hand, in the conclusion of law
section of the order, the court appears to require DSS to continue
with reunification efforts. Finally, in the decretal portion the
court makes no reference to the plan or whether reunification
efforts should cease. The order does place requirements on
respondent that would appear to be unnecessary if reunification
efforts were to cease.

(See footnote 3)


The concluding provision adopting "the
recommendations listed in the findings of fact," however, may refer
to the recommended change of plan from reunification to
guardianship.
Thus, we must remand for clarification of what the trial court
intended. On remand, the trial court should specify not only what
it is ordering, but also the specific facts and reasoning upon
which that order is based. As this Court has explained: In juvenile proceedings, it is permissible for
trial courts to consider all written reports
and materials submitted in connection with
those proceedings. Despite this authority,
the trial court may not delegate its fact
finding duty. Consequently, the trial court
should not broadly incorporate these written
reports from outside sources as its findings
of fact.

In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004)
(internal citations omitted). In this case, the trial court did
not err when, while summarizing the evidence considered by the
court, it incorporated the DSS and GAL reports by reference rather
than specifically describing the content of those reports.
The court was, however, required to make its own findings of
fact based on those reports and any testimonial evidence presented.
The trial court’s bare finding that "the statements set forth" in
the reports "are true" does not tell this Court upon which
assertions in those reports the trial court was relying. Compare
L.B., 181 N.C. at 193, 639 S.E.2d at 33 ("We hold that the trial
court properly incorporated DSS and guardian ad litem reports and
properly made findings of fact, included in the permanency planning
order, based on these reports. Moreover, these findings are
sufficient to support the trial court’s ultimate determination, and
there is no evidence that [the trial court] relied on information
from the reports that he then failed to include as a finding of
fact in his order.").
While the trial court’s order did include findings reciting in
conclusory fashion that Adam could not be returned to his parents
within the next six months "in full legal custody" because of theparents’ inability "to provide for the care and supervision of the
juvenile and the parents[‘] failure to make reasonable progress in
correcting those conditions that led to the removal of the juvenile
from their custody," there is no finding of fact identifying the
conditions on which both parents had failed to progress. The
language appears to be boilerplate that, without further
clarification, does not necessarily apply to the specific
circumstances of this case.

(See footnote 4)


Accordingly, on remand, the trial
court must clarify its disposition; must specify which statements
in the reports it is finding as a fact; and must make findings of
fact specifically relating to Adam that support its disposition.
See J.S., 165 N.C. App. at 513, 598 S.E.2d at 661 ("Since the trial
court’s findings are not sufficiently specific to allow this Court
to review its decision and determine whether the judgment was
correct, and since the findings also fail to comply with the
statutory requirements, we remand this matter to the district court
to make appropriate findings of fact.").

Affirmed in part; vacated and remanded in part.
Judge JACKSON concurs.
Judge TYSON concurs in part and dissents in part in a separate
opinion.

NO. COA07-1242

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2008

IN THE MATTER OF:
Robeson County
A.S. No. 07 JA 240

TYSON, Judge concurring in part and dissenting in part.

The majority’s opinion grants the GAL’s motion to dismiss
respondent’s appeal based upon respondent’s failure to sign the
notice of appeal as required by Rule 3A of the North Carolina Rules
of Appellate Procedure. The majority’s opinion then holds that
this is an appropriate case to grant respondent’s petition for writ
of certiorari pursuant to Rule 21. I concur to grant respondent’s
petition for writ of certiorari and reach the merits of
respondent’s appeal.
The majority’s opinion further holds the trial court properly
concluded that A.S., a newborn infant, was a neglected juvenile
based upon evidence of a single instance of prior abuse to A.S.’s
sibling. I disagree and vote to reverse the trial court’s
adjudication order. I respectfully dissent.

I. Standard of Review

“At the adjudication stage, the party petitioning for the
termination must show by clear, cogent, and convincing evidence
that grounds authorizing the termination of parental rights exist.”
In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997)
(citation omitted). The standard for appellate review is whether
the trial court’s findings of fact are supported by clear, cogent,and convincing evidence and whether those findings of fact support
its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000), disc. rev. denied, 353 N.C. 374, 547 S.E.2d
9 (2001). “Clear, cogent, and convincing describes an evidentiary
standard stricter than a preponderance of the evidence, but less
stringent than proof beyond a reasonable doubt.” N.C. State Bar v.
Sheffield
, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323 (citation
omitted), cert. denied, 314 N.C. 117, 332 S.E.2d 482 (1985). We
review the trial court’s conclusions of law de novo. Starco, Inc.
v. AMG Bonding and Ins. Services
, 124 N.C. App. 332, 336, 477
S.E.2d 211, 215 (1996).

II. Analysis

Respondent argues the trial court’s findings of fact are
insufficient to support the trial court’s conclusion of law that
A.S. was a neglected juvenile. I agree.
A neglected juvenile is statutorily defined 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. 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) (2007). To adjudicate a juvenile as
neglected, the court must find some physical, mental, or emotionalimpairment of the juvenile or a substantial risk of such impairment
as a consequence of the parent’s 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). When the juvenile being adjudicated
was taken into custody immediately upon birth and has never resided
in the parent’s home, “the decision of the trial court must of
necessity be predictive in nature, as the trial court must assess
whether there is a substantial risk of future abuse or neglect of
a child based on the historical facts of the case.” In re McLean,
135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999) (emphasis
supplied).
This Court has repeatedly held “the fact of prior abuse,
standing alone, is not sufficient to support an adjudication of
neglect.” In re N.G., ___ N.C. App. ___, ___, 650 S.E.2d 45, 51
(2007) (citing In re A.K., 178 N.C. App. 727, 731, 637 S.E.2d 227,
229 (2006)), aff’d, 362 N.C. 229, 657 S.E.2d 355 (2008). In In re
A.K.
, contrary to the majority’s assertion, the trial court
adjudicated the juvenile to be neglected based upon prior abuse of
an older sibling and the parents denial of said abuse. See In re
A.K.
, 178 N.C. App. at 728-29, 637 S.E.2d at 228 (“In its order
concluding A.K. was a neglected juvenile, the trial court relied
upon the prior adjudication of C.A.K. as a neglected juvenile and
the review orders concerning C.A.K.” which included the trial
court’s finding that “the parents of C.A.K. denied that either of
them intentionally harmed C.A.K.” and its conclusion that “it
appears that at least some of the physical injuries sustained by[C.A.K.] are a result of inappropriate force applied to the child’s
body by her caretaker(s) or while in their care.”).
This Court reversed the trial court’s adjudication of neglect
because:
the trial court did not accept any formal
evidence in addition to its consideration of
the prior court orders concerning [an older
sibling previously removed from the home], and
the only order concerning [the older sibling
previously removed from the home] that
contained findings by the clear and convincing
standard of proof was from a hearing occurring
many months earlier[.]

Id. at 732, 637 S.E.2d at 230. This Court concluded that because
no evidence was introduced that related to the parents’ progress or
whether one or both of the parents continued to deny the true cause
of the older sibling’s injuries, in addition to the time that had
elapsed from the date of the last hearing, “the trial court could
not . . . conclude that ‘the minor child would be at substantial
risk of neglect if placed in the custody of the . . . parents at
this time.’” Id.
The facts of In re A.K. are analogous to the facts at bar. In
the adjudication portion of its order, the trial court entered
fourteen findings of fact all regarding the particulars of a prior
incident in which respondent allegedly burned the feet of A.S.’s
two-year-old sibling seven months prior to the hearing. The trial
court found respondent had denied any wrongdoing and insisted the
child’s burns were accidental on two occasions, 22 December 2006
and 4 January 2007. No other instances of abuse or neglect were
reported or appeared in the evidence before the trial court. Thetrial court found that “based on the information gathered the
mother’s explanation is not consistent with the injury[]
” and that
without the court’s intervention, the safety of the infant could
not be ensured. (Emphasis supplied).
The trial court’s findings of fact regarding a single prior
incident of abuse involving another sibling seven months earlier,
standing alone, do not support the trial court’s conclusion of law
that A.S. is a neglected juvenile as defined in N.C. Gen. Stat. §
7B-101(15). In re N.G., ___ N.C. App. at ___, 650 S.E.2d at 51.
Further, the record is completely devoid of any evidence that
respondent mother has continued to deny responsibility with regards
to the prior incident involving A.S.’s sibling. In re A.K., 178
N.C. App. at 731, 637 S.E.2d at 229. Based upon In re N.G. and In
re A.K.
, the trial court’s adjudication order must be reversed.
___ N.C. App. at ___, 650 S.E.2d at 51; 178 N.C. App. at 731, 637
S.E.2d at 229.
The majority’s opinion cites In re P.M. and In re E.N.S. in
support of its holding that the trial court was permitted to
conclude A.S. was neglected based upon evidence of prior abuse. In
re P.M.
, 169 N.C. App. 423, 610 S.E.2d 403 (2005); In re E.N.S.,
164 N.C. App. 146, 595 S.E.2d 167, disc. rev. denied, 359 N.C. 189,
606 S.E.2d 903 (2004). However, both cases are distinguishable
from the case at bar.
In both In re P.M. and In re E.N.S., this Court emphasized the
respondent’s inability and/or refusal to comply with court orders
and affirmed the trial court’s adjudication of neglect based uponseveral other factors which indicated there was a substantial risk
of future neglect if the juvenile was returned to the parents. In
re P.M.
, 169 N.C. App. at 427, 610 S.E.2d at 406; In re E.N.S., 164
N.C. App. at 150, 595 S.E.2d at 170. Here, the trial court’s order
is totally devoid of any findings regarding respondent’s compliance
with DSS’s case plan or other factors which would tend to indicate
a substantial risk of future neglect if A.S. was returned to
respondent.

III. Conclusion

The trial court erred by relying on a single instance of prior
abuse to another sibling to adjudicate A.S. as neglected. In re
N.G.
, ___ N.C. App. at ___, 650 S.E.2d at 51. Further, no evidence
presented to the trial court tended to show respondent has failed
to comply with any DSS case plan or continued to deny
responsibility with regards to the prior incident involving A.S.’s
older sibling. In re A.K., 178 N.C. App. at 731-32, 637 S.E.2d at
229-30.
The trial court’s adjudication of A.S. as a neglected juvenile
is not supported by “clear, cogent, and convincing evidence” and
must be reversed. In re Young, 346 N.C. at 247, 485 S.E.2d at 614.
Because I vote to reverse the adjudication order, remand is
unnecessary. The majority’s opinion correctly notes the order is
fatally defective and lacked the required findings of fact to
support its conclusions of law and decretal. I respectfully
dissent.


Footnote: 1


The pseudonyms "Teresa," "David," "Isaac," and "Adam" will be
used throughout the opinion to protect the children’s privacy and
for ease of reading.


Footnote: 2


"The duties of the guardian ad litem program shall be to make
an investigation to determine the facts, the needs of the juvenile,
and the available resources within the family and community to meet
those needs; to facilitate, when appropriate, the settlement of
disputed issues; to offer evidence and examine witnesses at
adjudication; to explore options with the court at the
dispositional hearing; to conduct follow-up investigations to
insure that the orders of the court are being properly executed; to
report to the court when the needs of the juvenile are not being
met; and to protect and promote the best interests of the juvenile
until formally relieved of the responsibility by the court." N.C.
Gen. Stat. § 7B-601(a).


Footnote: 3


We also note that while the decretal portion of the order
directs respondent to attend parenting classes and complete a
psychological test, some documentation in the record indicates that
respondent has completed both of those requirements.


Footnote: 4


Although the order indicates the parents had failed to make
progress, we note that, at the time of the hearing, only just over
a month had elapsed since DSS filed its petition with respect to
Adam and since respondent had been arrested for felony child abuse.

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