in the Court of Appeals 19 October 2017.
by respondent-father from order entered 24 January 2017 by
Judge Laura Powell in McDowell County District Court No. 16
G. Walker for petitioner-appellee McDowell County Department
of Social Services.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Annick Lenoir-Peek, for respondent-appellant father.
Administrative Office of the Courts, by GAL Appellate Counsel
Matthew D. Wunsche, for guardian ad litem.
brief was filed on behalf of respondent-mother.
appeals from the trial court's order following a combined
adjudication, disposition, and permanency planning hearing.
The order concluded that respondent-father's minor child
("Hannah") was neglected and dependent, relieved DSS
from its obligation to pursue reunification efforts, and
awarded guardianship of Hannah to her adult half-sister. We
affirm in part, reverse in part, and remand.
October 2016, McDowell County Department of Social Services
("DSS") filed a juvenile petition alleging that
Hannah was neglected and dependent. DSS alleged that it had
previously been involved with the family on multiple
occasions, due to domestic violence and substance abuse. On
24 February 2016, DSS received a report that
respondent-father and Hannah's mother were involved in an
argument over Hannah and her mother leaving the home.
Hannah's sister came to the home in order to remove
Hannah from the scene. Respondent-father and the mother were
each pulling on Hannah while she was screaming and crying.
Eventually, respondent-father relented, and Hannah's
sister was able to leave the home with Hannah.
April 2016, the parents entered into a safety plan with DSS
and Hannah was placed with her sister as a safety resource
placement. Under the plan, the parents were not permitted to
remove Hannah from her sister's care. The plan also
required both parents to submit to clinical assessments and
to submit to random drug screens and follow any
recommendations. Both parents submitted drug screens in April
and July 2016, of which both screens tested positive for
petition was heard on 9 January 2017. After hearing testimony
and reviewing other evidence, the trial court orally
adjudicated Hannah a neglected juvenile. The case then moved
to disposition. On 24 January 2017, the trial court entered
an "Adjudication, Dispositional, 90 Day Review, &
Permanency Planning Order." The written order
adjudicated Hannah as neglected and dependent, awarded
guardianship of Hannah to her sister, and relieved DSS of the
obligation to pursue reunification efforts. Respondent-father
filed timely notice of appeal.
appeal, respondent-father argues that the trial court erred
by (I) adjudicating Hannah a neglected and dependent
juvenile; (II) awarding guardianship of Hannah to her adult
sister as an initial disposition; (III) conducting a
concurrent 90-day review and permanency planning hearing and
establishing a secondary permanent plan of reunification; and
(IV) including inconsistent provisions regarding visitation
in its order.
argues that the trial court erred by adjudicating Hannah a
neglected and dependent juvenile. We disagree that the court
erred by adjudicating Hannah neglected, but agree that the
court erred by adjudicating her dependent.
Standard of Review
Court's review of an order adjudicating a juvenile
neglected and dependent is limited to determining "(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
(2002) (citation omitted). Unchallenged findings are binding
on appeal. In re C.B., 180 N.C.App. 221,
223, 636 S.E.2d 336, 337 (2006).
[Moreover, ] 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., 241 N.C.App. 44, 48-49, 772 S.E.2d 249,
253, disc. review denied, 368 N.C. 290, 776 S.E.2d
first contends that the trial court erred by concluding that
Hannah was neglected. A neglected juvenile is defined in
relevant part 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 lives in an environment injurious to the juvenile's
welfare[.] . . . 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
N.C. Gen. Stat. § 7B-101(15) (2015). When, as in the
present case, the child has been voluntarily removed from the
home prior to the filing of the petition,
the court should consider "evidence of changed
conditions in light of the evidence of prior neglect and the
probability of a repetition of neglect. The determinative
factors must be the best interests of the child and the
fitness of the parent to care for the child at the time of
the [adjudication] proceeding."
In re K.J.D., 203 N.C.App. 653, 660, 692 S.E.2d 437,
443 (2010) (alteration in original) (quoting In re
Brim, 139 N.C.App. 733, 742, 535 S.E.2d 367, 372
(2000)). Essentially, the trial court must consider "the
conditions and the fitness of the parent to provide care ...