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In re S.G.

Court of Appeals of North Carolina

November 19, 2019

IN THE MATTER OF: S.G., A.G., and F.C.

          Heard in the Court of Appeals 3 October 2019.

          Appeal by Respondents from order entered 28 June 2018 by Judge Ali B. Paksoy and order entered 27 July 2018 by Judge Jeannette R. Reeves in District Court, Lincoln County, Nos. 17 JA 72-74

          Lauren Vaughan for Petitioner-Appellee Lincoln County Department of Social Services.

          J. Thomas Diepenbrock for Respondent-Appellant Father.

          Parent Defender Wendy C. Sotolongo, by Deputy Parent Defender Annick Lenoir-Peek, for Respondent-Appellant Mother.

          Parker Poe Adams & Bernstein LLP, by Michael J. Crook and Joshua J. Morales, for Guardian ad Litem.

          MCGEE, CHIEF JUDGE

         Respondents appeal from an order adjudicating the minor child F.C. to be an abused, neglected, and dependent juvenile and the minor children S.G. and A.G. to be neglected and dependent juveniles. Respondents also appeal from a disposition and permanency planning order requiring them to engage in services and establishing visitation. We affirm the adjudication order, affirm in part and vacate in part the disposition/permanency planning order, and remand for entry of an appropriate visitation order.

         I. Background

         Respondent-Mother is the mother of all three children. She is in a relationship with Respondent-Father, who is the father of S.G. and A.G. F.C.'s father is deceased. On 18 July 2017, the Lincoln County Department of Social Services ("DSS") received a report alleging that three-year-old F.C. was seen with a black eye that resulted from Respondent-Father pushing him down and hitting him. A social worker went to Respondents' home to investigate, but Respondents appeared to be intentionally evading the social worker, until the social worker called law enforcement, and Respondents finally opened their door. Respondents both denied to the social worker that Respondent-Father hit F.C., instead claiming that F.C. had been running through the house with the dog when he tripped and hit his head on a coffee table. The social worker informed Respondent-Father that he would have to leave the residence while the matter was being investigated. The social worker stayed at the home until Respondent-Father left.

         The next day, another social worker informed Respondent-Mother that Respondent-Father could not have contact with F.C. until F.C. was given a forensic interview. F.C. was seen by Dr. Melissa Will ("Dr. Will"), who found "a red patterned bruise covering [F.C.'s right] forehead (pattern of rectangle with 3 vertic[al] lines within it), also unpatterned bruise lateral to this; also bruise of his upper eyelid[.]" It was Dr. Will's opinion that the unusual pattern of the bruise was inconsistent with Respondent-Mother's explanation that F.C. hit his head on a coffee table.

         DSS decided that Respondent-Father could not have any contact with the children. "Respondent-Mother was asked to take all three children and keep [] Respondent-Father away from them. [] Respondent-Mother wanted to be with [Respondent-Father] and preferred that [Respondent-Father] come home and the three children go somewhere else. [] Respondent-Mother would not agree to keep the children away from [Respondent-Father]." The children were placed with a paternal relative, who later became unable to care for them.

         On 24 July 2017, DSS filed petitions alleging that F.C. was an abused, neglected, and dependent juvenile; and alleging that S.G. and A.G. were neglected and dependent juveniles. DSS obtained nonsecure custody of the children the same day. The trial court held an adjudicatory hearing on 20 February and 15 April 2018, after which the trial court entered a 28 June 2018 order adjudicating F.C. to be abused and all three children to be neglected and dependent.

         The trial court conducted a disposition and permanency planning hearing on 17 July 2018. The trial court's 27 July 2018 order established a visitation plan of "one visit each month" with Respondents' respective children. Contact between Respondent-Father and F.C. was to be based on the recommendations of F.C.'s therapist. The trial court also ordered Respondents to submit to substance abuse and mental health assessments and follow all recommendations, participate in parenting classes and demonstrate skills learned during visits, obtain and maintain safe and stable housing, and submit to random drug screens. Respondents appeal.

         II. Adjudication

         Respondent-Father argues that the trial court erred by adjudicating F.C. as an abused juvenile.[1] Both Respondents argue that the trial court erroneously adjudicated S.G. and A.G. as neglected juveniles. We address each argument in turn.

         A. Standard of Review

         When reviewing an adjudication of abuse, neglect, or dependency, this Court determines whether the trial court's findings of fact are supported by clear and convincing evidence and whether the trial court's legal conclusions are supported by its findings of fact. See In re CM. & M.H.M., 198 N.C.App. 53, 59, 678 S.E.2d 794, 798 (2009). Findings of fact which are "supported by clear and convincing competent evidence are deemed conclusive [on appeal], even where some evidence supports contrary findings." Id. (quotation marks and citation omitted). The trial court's conclusions of law are reviewed de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (citation omitted).

         B. Abuse

         The trial court concluded that F.C. was abused under N.C. G.S. § 7B-101(1)(a) and (b) (2017). These subsections define an abused juvenile, in relevant part, as one whose parent:

a. Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means;
b. Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means[.]

Id.

         Respondent-Father first contends that neither the evidence nor the trial court's findings support its conclusion that F.C. suffered a "serious physical injury." He argues that F.C. did not suffer the type of "significant physical injuries" that provided support for the abuse adjudications upheld by this Court in cases such as In re Hayden, 96 N.C.App. 77, 83, 384 S.E.2d 558, 562 (1989) (child "suffered multiple burns over a wide portion of her body") and In re T.H.T., 185 N.C.App. 337, 345-46, 648 S.E.2d 519, 525 (2007) (child suffered skull fracture), affd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008).

         However, the cases cited by Respondent-Father did not establish a minimum threshold for a serious injury. As this Court has explained, "the nature of an injury is dependent upon the facts of each case[.]" In re L.T.R. & J.M.R., 181 N.C.App. 376, 383, 639 S.E.2d 122, 126 (2007). Using this standard, we previously upheld an abuse adjudication when a three-year-old child suffered "a dark, six-inch bruise, which lasted well over one week, on his right thigh." Id. at 382, 639 S.E.2d at 126.

         In this case, the trial court made a number of findings about three-year-old F.C.'s injury. He "had a significant bruise on his forehead, above his eye" when a DSS social worker observed him on the night of 18 July 2017. Then, during a medical examination the following day, F.C. was found to have "bruising on his right forehead with an unusual pattern[.] It was a red patterned bruise covering his right forehead, the pattern of a rectangle with three vertical lines within it. There was also a patterned bruise lateral to this, in addition to a bruise on his upper eyelid." A 21 July 2017 examination "revealed bruising to the right eyelid and on [F.C.'s] forehead was a knot, raised, with a very distinct patterned bruise." Finally, the trial court found that "[t]he ...


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