In re D.J.W.

1

IN THE MATTER OF: D.J.W. and D.A.L.

No. COA22-1013

Court of Appeals of North Carolina

November 7, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 9 October 2023.

Appeal by respondent-mother from order entered 9 September 2022 by Judge Ellen Shelley in McDowell County Nos. 21 JA 57-58 District Court.

Aaron G. Walker for the Petitioner-Appellee McDowell County Department of Social Services.

Sophie Goodman, Esq., for the Guardian ad Litem.

Christopher M. Watford for the Respondent-Appellant Mother.

STADING, JUDGE

Respondent-Mother ("Mother") appeals from the trial court's adjudication and initial disposition order decreeing the matter a non-reunification case. For the reasons set forth below, we affirm the trial court's order.

I. Background

Mother gave birth to "Josh" in September 2012 and "Alex" in May 2014. ^{[1] [2]} At the relevant time, both children lived with Mother and another woman named Kirsten. On 3 May 2021, petitioner McDowell County Department of Social Services ("DSS") received a report of excessive discipline from a relative of the family. The relative also sent a video showing Kirsten beating Alex with a wooden paddle. The relative alleged this type of abuse along with the withholding of food, occurred on a routine basis.

After DSS turned over the video to law enforcement, detectives interviewed Mother and both children. Mother denied any allegations of abuse. However, a social worker observed "excessive bruis[ing]" on Alex's legs, back, and spine. Furthermore, in response to an observation that the children were "extremely thin," Mother stated they were on a "no fat diet" due to medication they were taking. Additionally, after viewing the video of Alex's beating, she stated Kirsten was not hitting Alex that hard.

On 4 May 2021, DSS conducted forensic interviews of both children. The children reported being hit with belts, a paddle, and switches for talking and moving their hands, touching their hair, or other simple movements. They discussed being punished by "grounding," which required they lie in bed for days; they were not allowed to go to the kitchen for food; they used a bucket in their room to urinate; and Mother and Kirsten yelled and cursed at them on a regular basis. On 5 May 2021, DSS filed juvenile petitions alleging that Josh and Alex were abused and neglected juveniles. The trial court entered orders authorizing DSS to assume nonsecure custody of the children the same day.

The trial court conducted hearings in March, June, July, and August of 2022, and entered its adjudication and disposition orders on 9 September 2022. In the adjudication order, the trial court found Alex had suffered "serious non-accidental injuries." The trial court noted, inter alia, a particularly disturbing incident-after being confined to his room for fifteen days in April 2021, Kirsten offered to end Alex's grounding by subjecting him to fifteen strikes with a wooden paddle, so long as he did not sit down. When Alex dropped to the ground after the fourteenth strike, he was struck fifteen more times. Mother was aware of the beating but offered no medical attention for the resulting injuries. The trial court found both Mother and Kirsten "den[ied] that 29 strikes/licks with a wooden paddle is excessive."

The trial court also found that Alex suffered physical injury to the back of his throat from Mother forcing food down his throat after his medication caused appetite suppression. The findings provide that Mother and Kirsten physically disciplined both children on a regular basis in a "cruel and grossly inappropriate" manner. The court found that the children slept in a cluttered basement, despite an available bedroom on the main floor of the home, and Alex's sleeping cot lacked sheets or a blanket. The trial court made further findings stating that the children were underweight and medically neglected, and Mother and Kirsten would use attentiondeficit hyperactivity medication and Benadryl to modify the children's behaviors. Based on these findings, the trial court adjudicated both children as abused and neglected juveniles.

The trial court incorporated by reference its adjudicatory findings into the disposition order. Additionally, the trial court made findings that Mother completed parenting classes, attended counseling services, and submitted to Comprehensive Clinical Assessments, as directed by her case plan with DSS. Nevertheless, the trial court determined Mother and Kirsten "d[id] not believe that their discipline [wa]s excessive or cruel." The court concluded Mother "has committed and encouraged chronic physical and emotional abuse . . . and [Mother's] conduct increased the enormity of the consequences of the aforesaid abuse and neglect." The court ordered that Josh and Alex remain in the custody of DSS and, pursuant to N.C. Gen. Stat. § 7B-901, decreed "this shall be a non-reunification case." On 12 September 2022, Mother entered her notice of appeal.

II. Jurisdiction

This Court has jurisdiction to hear this appeal pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) and 7B-1001(a)(3) (2021).

III. Analysis

On appeal, Mother argues the trial court's disposition findings lack statutorily required specificity and do not support a finding of aggravated circumstance. As a result, she contends the trial court abused its discretion by ceasing reunification efforts.

"This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition." In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007) (citation omitted). "An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision." In re A.P.W., 378 N.C. 405, 410, 861 S.E.2d 819, 826 (2021) (citation omitted). "A trial court's finding of an ultimate fact is conclusive on appeal if the evidentiary facts reasonably support the trial court's ultimate finding [of fact]." In re G.C., 384 N.C. 62, 65, 884 S.E.2d 658, 661 (2023) (alternation in original) (citation omitted). "Unchallenged findings of fact are binding on appeal." In re K.W., 272 N.C.App. 487, 492, 846 S.E.2d 584, 588 (2020) (citation omitted).

The trial court necessarily implicates N.C. Gen. Stat. § 7B-901(c) when it ceases reunification efforts following an initial disposition hearing. In re J.M., 255 N.C.App. 483, 499, 804 S.E.2d 830, 840-41 (2017). In pertinent part, N.C. Gen. Stat. § 7B-901(c) provides:

If the disposition order places a juvenile in the custody of a county department of social services, the court shall direct that reasonable efforts for reunification . . . shall not be required if the court makes written findings of fact pertaining to any of the following, unless the court concludes that there is compelling evidence warranting continued reunification efforts:

(1) A court of competent jurisdiction determines or has determined that aggravated circumstances exist because the parent has committed or encouraged the commission of, or allowed the continuation of, any of the following upon the juvenile: ....

b. Chronic physical or emotional abuse. ....

f. Any other act, practice, or conduct that increased the enormity or added to the injurious consequences of the abuse or neglect.

N.C. Gen. Stat. § 7B-901(c)(1) (2021).

A. Findings Implicating N.C. Gen. Stat. § 7B-901(c)(1)

First, Mother argues the trial court's findings lack the required specificity because they fail to include the statutory term "aggravated circumstances," and, as a result, hindered this Court's ability to review the basis for ceasing reunification efforts. In particular, she challenges finding of fact no. 14, which reads:

14. That the respondent mother has committed and encouraged chronic physical and emotional abuse as is recited in the findings section herein of this Order and the mother's conduct increased the enormity of the consequences of the aforesaid abuse and neglect. Reunification is inconsistent with the children's best interest.

Our Supreme Court has observed that findings of fact made pursuant to N.C. Gen. Stat. § 7B-901(c) "do not have to track the statutory language verbatim[.]" In re J.M., 384 N.C. 584, 594, 887 S.E.2d 823, 830 (2023) (citing In re H.A.J., 377 N.C. 43, 49, 855 S.E.2d 464, 470 (2021)); see generally In re A.P.W., 378 N.C. 405, 412, 861 S.E.2d 819, 827 (2021) ("The trial court's written findings must address the statute's concerns but need not quote its exact language." (citation omitted)). Even absent the phrase "aggravated circumstance," it is clear from the finding that Mother's conduct was consistent with the circumstances described in N.C. Gen. Stat. § 7B-901(c)(1) (b) and (f). The finding recites the language from subsection (b)-"chronic physical or emotional abuse"-and subsection (f)-"conduct that increased the enormity or added to the injurious consequences of the abuse or neglect." N.C. Gen. Stat. § 7B-901(c)(1). We hold the finding is sufficient to evoke the statutory provision N.C. Gen. Stat. § 7B-901(c)(1) and enable our review. Accordingly, Mother's challenge on this basis fails.

B. Evidence Supporting Findings of Fact

Next Mother contends the evidence introduced at the disposition hearing fails to support a finding of an aggravated circumstance. Moreover, she argues finding of fact no....