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In re L.C.

Court of Appeals of North Carolina

April 18, 2017

IN THE MATTER OF: L.C.

          Heard in the Court of Appeals 3 April 2017.

         Appeal by respondent from order entered 5 July 2016 by Judge Betty J. Brown in Guilford County, No. 16 JA 57 District Court.

          Mercedes O. Chut for petitioner-appellee Guilford County Department of Social Services.

          Elysia Jones for guardian ad litem.

          N. Elise Putnam for respondent-appellant.

          DAVIS, Judge.

         This appeal involves a variety of issues stemming from the trial court's order adjudicating a juvenile to be abused, neglected, and dependent. Among the issues presented is whether a parent who was compelled to testify in a juvenile adjudication hearing was deprived of her Fifth Amendment right against self-incrimination when - despite her clear invocation of that right - the trial court ordered her to answer a question likely to elicit an incriminating response. A.S. ("Respondent") appeals from an order (1) adjudicating her daughter L.C. ("Lily")[1] to be an abused, neglected, and dependent juvenile; (2) ceasing reunification efforts; and (3) setting adoption as the juvenile's permanent plan along with a concurrent plan of guardianship. After careful review, we affirm in part, vacate in part, and remand.

         Factual and Procedural Background

         On 4 February 2016, the Guilford County Department of Social Services ("DSS") received a report alleging that Lily had been physically abused. Lily, who was less than eight months old at the time, had been admitted to Brenner Children's Hospital in Winston-Salem, North Carolina with various injuries, including three fractured ribs, a bruise consistent with a bite mark on her left shoulder, and bruises on both feet. Lily's femur was also injured, although the pediatrician could not conclusively state whether it was fractured.

         At the time these injuries occurred, Respondent was living in an apartment with her adult sister ("Ida"), her friend ("Becky"), the minor children of Ida and Becky, and Respondent's boyfriend ("Matt"). After DSS became involved, Respondent, Ida, and Becky submitted to polygraph testing at the request of DSS regarding the cause of Lily's injuries, but Matt failed to do so. As a result, Respondent entered into a safety plan with DSS that barred Matt from having any future contact with Lily.

         On 9 April 2016, DSS received another report that Lily had been physically abused based on her admission to Brenner Children's Hospital with new injuries, including a right fractured clavicle, hemorrhaging in her brain, bruising on various parts of her body, a swollen right eye, and a left rib fracture. Respondent admitted to a law enforcement officer that she had violated her safety plan by allowing Matt to care for Lily while she was at work on the evening of 7 April 2016. Respondent testified that when she came home from work at approximately 10:30 p.m., she noticed that Lily "was not acting like herself, " "had bruises on her, " and had one eye "rolled in the back of her head[.]" Respondent accused Matt of having harmed Lily and did not believe him when he denied responsibility for her injuries.

         That night, Respondent gave Pedialyte to Lily but did not immediately seek medical attention for her because Respondent was afraid that DSS would "take [Lily] from me because [Matt] was not supposed to be there . . . ." Two days later - after having observed Lily alternate between acting normally and "[j]ust go[ing] into a daze" - Respondent took Lily to Thomasville Hospital. On 10 April 2016, Respondent was charged with misdemeanor child abuse, and Matt was charged with two counts of felony assault on a child inflicting serious injury.

         On 11 April 2016, DSS filed a petition alleging that Lily was an abused, neglected, and dependent juvenile and obtained non-secure custody of her. At the time the petition was filed, both Respondent and Matt were confined in the Guilford County Jail on the above-referenced charges.

         On 12 May 2016, an adjudicatory and dispositional hearing was held before the Honorable Betty J. Brown in Guilford County District Court. DSS called Respondent as its sole witness during the adjudicatory portion of the hearing. In an order entered on 5 July 2016, the trial court adjudicated Lily to be an abused, neglected, and dependent juvenile. In the dispositional portion of the order, the trial court ceased reunification efforts and ordered that the permanent plan for Lily be changed to adoption with a concurrent plan of guardianship. Respondent filed a timely notice of appeal.

         Analysis I. Adjudication

         Respondent argues that the trial court erred in adjudicating Lily to be an abused, neglected, and dependent juvenile. We review the trial court's order of adjudication to 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 Q.A., __ N.C.App. __, __, 781 S.E.2d 862, 864 (2016) (citation, quotation marks, and brackets omitted). Findings of fact that are supported by competent evidence or are unchallenged by the appellant are binding on appeal. In re A.B., __ N.C.App. __, __, 781 S.E.2d 685, 689, disc. review denied, __ N.C. __, 793 S.E.2d 695 (2016). "Such findings are . . . conclusive on appeal even though the evidence might support a finding to the contrary." In re McCabe, 157 N.C.App. 673, 679, 580 S.E.2d 69, 73 (2003). We review a trial court's conclusions of law de novo. In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006).

          As an initial matter, Respondent argues that Finding No. 22 and its subparts in the trial court's 5 July 2016 order merely contain recitations of her testimony and, therefore, do not constitute actual findings of fact by the trial court. Finding No. 22 states, in relevant part, that at the 12 May 2016 hearing Respondent "proffered, in pertinent part, the following testimony" and then summarizes Respondent's testimony in 99 subparts. We agree with Respondent on this issue. See In re Bullock, 229 N.C.App. 373, 378, 748 S.E.2d 27, 30 ("Recitations of the testimony of each witness do not constitute findings of fact by the trial judge." (emphasis omitted)), disc. review denied, 367 N.C. 277, 752 S.E.2d 149 (2013). Accordingly, we do not treat those recitations of testimony as actual "findings" in conducting our analysis.

         Respondent also challenges Findings Nos. 12-21, 25-29, and 33 on the ground that they are verbatim recitations of allegations contained in the petition and, as such, should be disregarded. As a general matter, "the trial court's findings must consist of more than a recitation of the allegations" contained in the juvenile petition. In re O.W., 164 N.C.App. 699, 702, 596 S.E.2d 851, 853 (2004) (citation omitted). However,

it is not per se reversible error for a trial court's fact findings to mirror the wording of a petition or other pleading prepared by a party. Instead, this Court will examine whether the record of the proceedings demonstrates that the trial court, through processes of logical reasoning, based on the evidentiary facts before it, found the ultimate facts necessary to dispose of the case. If we are confident the trial court did so, it is irrelevant whether those findings are taken verbatim from an earlier pleading.

In re J.W., __ N.C.App. __, __, 772 S.E.2d 249, 253, disc. review denied, 368 N.C. 290, 776 S.E.2d 202 (2015). Accordingly, we will only consider those findings that are, in fact, supported by evidence in the record regardless of whether they mirror the language used in the petition.[2]

         The following findings of fact are supported by Respondent's own testimony: (1) in February 2016, Lily was admitted to Brenner Children's Hospital after having sustained numerous injuries, including three fractured ribs, multiple bruises, a bite mark on her shoulder, and a possible fractured femur (Finding No. 12); (2) at the time that these injuries occurred, Lily was living with Respondent and three other adults, including Matt (Finding No. 13); (3) at DSS's request, all of these adults except for Matt took a polygraph test regarding the cause of Lily's injuries (Finding No. 14); (4) in March 2016, Respondent and DSS entered into a safety plan that forbade Matt from having any future contact with Lily (Finding No. 15); (5) on 7 April 2016, Respondent left Lily in Matt's care (Finding No. 17); (6) when Lily was taken to the hospital on 9 April 2016, medical professionals discovered that she had suffered multiple injuries including a fractured collarbone, a brain hemorrhage, and bruising on various parts of her body, including her face (Finding No. 16); and (7) Respondent had noticed injuries to Lily at least two days prior to taking Lily to the hospital but had delayed seeking medical care because she feared DSS would take custody of the child based on her violation of her safety plan in allowing Matt to have contact with Lily (Finding Nos. 19, 24(d)).

         We must next determine whether the trial court's adjudication of Lily as an abused, neglected, and dependent juvenile was supported by adequate findings that were based upon competent evidence in the record.

         A. Abuse

         An abused juvenile is defined, in pertinent part, as

[a]ny juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker:
a. Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means; [or]
b. Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means[.]

N.C. Gen. Stat. § 7B-101(1)(a)-(b) (2015).

         Although the trial court's order does not specify which particular findings provided the basis for its determination that Lily was an abused juvenile, it appears that this determination was primarily based upon Finding No. 24(b), wherein the trial court found that Respondent "did in fact know that [Matt] caused the first round of injuries that her child suffered in February 2016." Such knowledge would support a determination that Respondent "allow[ed] to be created a substantial risk of serious physical injury to the juvenile by other than accidental means[.]" N.C. Gen. Stat. § 7B-101(1)(b).

         However, Respondent argues that Finding No. 24(b) was impermissibly based upon testimony by her that was elicited in violation of her right against self-incrimination under the Fifth Amendment to the United States Constitution. The standard of review for alleged violations of constitutional rights is de novo. State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed, 363 N.C. 857, 694 S.E.2d 766 (2010).

         The Fifth Amendment - which is applicable to the states through the Fourteenth Amendment - "privileges an individual not to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Debnam v. N.C. Dep't of Correction, 334 N.C. 380, 384-85, 432 S.E.2d 324, 328 (1993) (citation, quotation marks, and emphasis omitted). Our Supreme Court has held that "[t]he claim of privilege should be liberally construed." Herndon v. Herndon, 368 N.C. 826, 830, 785 S.E.2d 922, 925 (2016) (citation and quotation marks omitted).

         It is well established that "[t]his Fifth Amendment protection extends to civil proceedings." Id. at 829, 785 S.E.2d at 925 (citation omitted). When the privilege is invoked in a civil case, "the finder of fact in a civil cause may use a witness' invocation of his fifth amendment privilege against self-incrimination to infer that his truthful testimony would have been unfavorable to him." In re Estate of Trogdon, 330 N.C. 143, 152, 409 S.E.2d 897, 902 (1991) (citation omitted).

         In the present case, Respondent received a summons ordering her to appear at the 12 May 2016 hearing. At the adjudicatory phase of the hearing, DSS's attorney called Respondent as its sole witness. At the beginning of her examination, the following exchange occurred between Respondent and DSS's counsel.

Q. Has any one [sic] informed you that you have a right to plead the Fifth Amendment in regards to questions that may incriminate you, specifically, including incriminating you as to the charges that you're currently facing?
A. Yes, sir.
Q. And they also explained to you that should you decide to plead The Fifth, in this particular case, that The Court, under the case law, can take civil inference and infer that had you testified, and answered the questions asked, that your testimony would have been harmful to your case?
A. Yes, sir.
Q. And it's my understanding that you wish to proceed with ...

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