in the Court of Appeals 3 April 2017.
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.
Jones for guardian ad litem.
Elise Putnam for respondent-appellant.
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") 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.
and Procedural Background
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
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.
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.
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.
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.
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.
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).
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.
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
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
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)).
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.
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
N.C. Gen. Stat. § 7B-101(1)(a)-(b) (2015).
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.
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).
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).
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).
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
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