In re H.P., 2021-NCCOA-299

Held: 
Reversed and Remanded
There is a dissent
in part and concur in part, Inman, J.
  • Facts: Reports of suspected neglect based on injurious environment, lack of proper care and supervision, substance use, and domestic violence were first received in 2015. Numerous reports were made over several years, many of which were closed for insufficient evidence to support a finding of neglect. The reports alleged inadequate housing, including the family living in a storage unit and a camper without water or electricity, food insecurity and hunger, and domestic violence. In 2020, DSS substantiated the report and filed a petition alleging neglect and dependency. At the adjudication hearing, neither parent was present; father eventually appeared. The evidence presented was DSS social worker testimony reviewing “Exhibit A,” an attachment to the petition that summarized the years of reports and 37 allegations, 4 of which stated the evidence was insufficient to support other allegations in the exhibit. The court proceeded to disposition, which included testimony from the foster care social worker and the DSS report. The court adjudicated the juveniles neglected and dependent, using a prepared order the DSS attorney drafted prior to the hearing. The order contained 47 findings of fact. Mother appeals.
  • Standard of review is whether the findings are support by clear and convincing evidence and whether the findings support the conclusions. Conclusions of law are reviewed de novo.
  • The findings are not supported by competent evidence, and the court failed to make the ultimate facts. Findings of fact require more than a recitation of the evidence and must include specific ultimate facts. It is not per se reversible error to mirror the wording of a petition as the appellate court will examine whether the trial court, through a process of logical reasoning applying the evidentiary facts before it, found the ultimate facts to support the adjudication.
    • Many of the findings of fact are recitations of the allegations in Exhibit A to the petition. Four of the allegations that were found as facts state “there was not evidence” to support other allegations in the petition that were found as facts by the trial court. Sl.Op. ¶24. Exhibit A is not competent evidence because the allegations are contradictory. No evidence supported the allegations of Exhibit A. The court did not make ultimate findings of fact.
    • Many of the findings were recitations of statements that were made to DSS by the children, mother, neighbors without addressing whether the statements were true.
  • Findings about inadequate housing, specifically the family living in a storage unit, were not supported. In assessing 2 reports of the family living in a storage unit, the DSS investigation found the parents were living in a motel and later were moving to a camper and would stop residing in the storage unit. “Without evidence of the conditions of the storage unit or other access to necessities, we hold that taking temporary shelter in a storage unit is not per se neglect. Sl.Op. ¶29.
  • A finding that mother reported the refrigerator was broken and nothing could be stored in it is a recitation of evidence and does not resolve a material issue of ultimate fact that would support the GAL’s argument that a broken refrigerator created an inability to reliably provide the children with adequate nutrition.
  • Some of the findings of fact were really conclusions of law and will be treated as such and reviewed de novo. Findings of fact are objectively ascertained, and conclusions of law require an exercise of judgment.
  • Neglect requires harm or substantial risk of harm to the juveniles. There was no evidence of any harm. Although DSS expressed concern about food insecurity, the children were not found to be underweight or malnourished. There were no ultimate findings about proper care and supervision for neglect or dependency grounds. Substantive findings that a young child was running between his parents’ campers naked and later was walking alone are not, by themselves, neglect or dependency.
  • The conclusion that DSS made reasonable efforts to prevent the children’s removal from their home is unsupported.
  • Dissent: Concur in that the ultimate facts were not made to support neglect or dependency adjudications. However, the appropriate remedy is reverse and remand for further proceedings to make findings of fact. The contradictions in Exhibit A do not make it incompetent evidence as a matter of law, and it is not the role of the appellate court to reconcile those contradictions. The trial court is the sole authority for making findings of fact and resolving conflicts in evidence, and it should have that opportunity on remand. The majority sua sponte raised the question of reasonable efforts, which is not the role of the appellate court. Disagrees with analysis that reasonable efforts were not provided.
Category:
Abuse, Neglect, Dependency
Stage:
Adjudication
Topic:
Neglect
Tags:
Click on a term below for additional case summaries tagged with the same term.