In re B.P., 257 N.C. App. 424 (2018)

Held: 
Vacated and Remanded
  • Standard of review of an adjudication:  Whether the findings of fact are supported by clear and convincing evidence and whether the legal conclusions are supported by the findings of fact. Findings are binding if unchallenged or if evidence exists to support the finding, even if there is evidence to support a contrary finding. Conclusions of law are reviewed de novo.
  • Findings of fact were unsupported by evidence, such as
    • the finding related to a domestic violence incident involving the child’s stroller being knocked over was not supported by clear and convincing evidence when examining the responding officer’s testimony that the stroller did not appear to be turned over and other testimony that mother admitted to lying about the stroller being knocked over;
    • the finding that respondent mother was charged with a criminal offense was misleading as it did not include the material fact that the charges were dismissed;
    • the findings that the caretaker had no document or authority to seek medical or other care for the child was unsupported by evidence showing the caregiver was able to obtain medical treatment and vaccinations for the child.
  • It was proper for the court to consider prior orders in related proceedings involving respondent’s other children when determining whether this child is neglected. In a neglect adjudication, it is relevant whether the juvenile lives in a home where another juvenile has been abused or neglected by an adult who regularly lives in the home. When making findings of prior court orders involving respondent’s other children (a TPR and placement in foster care), the court did not merely incorporate those orders but rather employed a process of logical reasoning, which was evidenced by its having made several independent findings of fact.
  • The sustained findings of fact do not support an adjudication of neglect – Risk of Harm.
    • An adjudication of neglect requires conditions that cause in juvenile to have some physical, mental, or emotional impairment or substantial risk of such impairment.  The evidence and findings related to respondent’s mental health, removal of her other children, and homelessness, and no finding of impairment or risk of impairment to the child do not support the determination of neglect.
  • Findings related to alternative placement of child made by mother do not support adjudication of neglect.
    • Evidence and findings show that before DSS was involved, respondent mother placed the child with caretakers, and the child remained in their care at the time the petition was filed. The caretakers were found by both DSS and the trial court to be appropriate.
    • This case is distinguished from In re K.J.D., 203 N.C. App. 653, 660 (2010), where child was adjudicated neglected although being placed in a voluntary kinship placement, as “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] proceedings” (emphasis in original). In this case, respondent placed child on her own, without DSS input. Unlike In re K.J.D., the findings in this case did not address mother’s continuing inability to care for the child or an ultimate finding that the child would be at substantial risk of harm if removed from the placement and returned to the mother’s care. 
Category:
Abuse, Neglect, Dependency
Stage:
Adjudication
Topic:
Neglect
Tags:
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7B-101(15)
risk of harm
alternative child care
findings of fact
competent evidence