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In re J.D.R.

Court of Appeals of North Carolina

January 20, 2015

IN THE MATTER OF: J.D.R

Heard in the Court of Appeals December 22, 2014.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter. The case therefore is of no precedential value. [North Carolina Court of Appeals, Appellate Rule 30(e)].

No brief for Petitioner-Appellee Rutherford County Department of Social Services.

Leslie Rawls for Respondent-Appellant Mother.

Callahan Law Office, PLLC, by J. Christopher Callahan, for Respondent-Appellee Father.

Smith Moore Leatherwood LLP, by Kip D. Nelson, for Guardian ad Litem.

McGEE, Chief Judge. Judges STEELMAN and DAVIS concur.

OPINION

Page 173

Appeal by Respondent-Mother from order entered 18 March 2014 by Judge Laura Powell in District Court, Rutherford County No. 13 JA 109.

Page 174

McGEE, Chief Judge.

Respondent-Appellant Mother (" Mother" ) appeals fro an adjudication and disposition order (" the disposition order" ) adjudicating J.D.R (" the Child" ) a neglected and dependent juvenile, awarding custody of the Child to Respondent-Appellee Father (" Father" ), granting Mother visitation, and transferring the case to a Chapter 50 civil action. For the following reasons, we affirm in part, reverse in part, and remand.

I. Background

At the time the following events occurred, the Child had a diagnosis of mild oppositional defiant disorder, although his " symptoms [were] confined to only one setting, [the] home." The Child was eight-years-old and primarily had lived with Mother for most of his life.

The Rutherford County Department of Social Services (" DSS" ) filed a petition on 30 October 2013, based upon reports concerning the Child's safety, alleging that the Child was a neglected and dependent juvenile. DSS alleged that when the Child went to school on 29 October 2013, he had scratches near his eye. The Child told school personnel that Mother had hit and kicked him. Mother took the Child to the hospital later that day and the Child told the doctor Mother had kicked him and had pulled him from under the bed. Mother would not allow a DSS social worker to interview the Child at the hospital and would not allow Father to assist her. DSS took non-secure custody of the Child and subsequently placed the Child with Father. By orders entered 6 and 11 November 2013, the trial court continued its non-secure custody order.

The trial court held an adjudication and disposition hearing in January and February of 2014. During the February hearing, the trial court suspected that Mother was intoxicated. At the conclusion of the hearing, the trial court ordered Mother to submit to a drug test, which was administered approximately twenty minutes later. Mother tested positive for opiates, amphetamines, and methamphetamines. By order entered 18 March 2014, the trial court adjudicated the Child neglected and dependent. The trial court further ordered that the court's jurisdiction be terminated, initiated a Chapter 50 civil custody case, awarded custody of the Child to Father, and granted Mother visitation. Mother appeals.

Mother's first notice of appeal, filed 18 March 2014, does not have a certificate of service attached and states only that Mother was " appealing the adjudication in these matters." Mother's second notice of appeal, filed 19 March 2014, states that Mother was appealing from both the disposition order as well as the trial court's 26 November 2013 order continuing the non-secure custody order of the Child. This second notice was served only on counsel for the Guardian ad Litem. Mother's third, and final, notice of appeal, filed 28 March 2014, states only that Mother is appealing from the disposition order, and this notice was served on counsel for the Guardian ad Litem, as well as counsel for Father.

II. Scope of Review

As a preliminary matter, we note that Mother filed three separate notices of appeal in this action. Notwithstanding possible issues with Mother's first two notices of appeal, the arguments in Mother's brief focus exclusively on the disposition order. As such, our review of Mother's appeal will be limited accordingly. N.C.R. App. P. Rule 28(a) (" Issues not presented and discussed in a party's brief are deemed abandoned." ).

III. Standard of Review

On appeal from the trial court's disposition order, we must determine (1) whether the trial court's findings of fact are supported by clear and convincing evidence, and (2) whether its conclusions of law are supported by the findings. In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000). Unchallenged findings are binding on appeal.

Page 175

In re C.B., 180 N.C.App. 221, 223, 636 S.E.2d 336, 337 (2006), aff'd per curiam, 361 N.C. 345, 643 S.E.2d 587 (2007). The conclusion that a juvenile is abused, neglected, or dependent is reviewed de novo. In re N.G., 186 N.C.App. 1, 13, 650 S.E.2d 45, 53 (2007), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).

IV. Adjudication of Neglect

Mother first challenges the trial court's adjudication of the Child as neglected. A neglected juvenile is 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.

N.C. Gen. Stat. § 7B-101(15) (2013). We have consistently held that an adjudication of neglect requires " that there 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) (internal quotation marks omitted).

In support of its neglect adjudication, the trial court made the following findings of fact:

3. On October 29, 2013, the minor child went to school with scratches and bruises on his face.
4. On the 29th[,] the minor child met with the school counselor and told her that his mother had hit and kicked him that morning.
5. The hitting and kicking occurred when the minor child would not get ready for school.
6. Later in the day, the minor child hid under the bed and while trying to get him out the child hit his back on ...

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