In re R.B., 280 N.C. App. 424 (2021)
Held:
Reversed and remanded in part
Reversed in Part
- Facts: Mother has a history of depression and anxiety, which she sought help for. She had difficulty caring for her son and contacted law enforcement once and friends over a period of time for assistance in caring for him. At one point when the child was with mother, mother texted a friend that she wanted to hurt her child, hated him, and that she was having great difficulty. Her friend took the juvenile for a week after receiving the text messages and then returned the child to mother. A week after the text messages were sent, DSS started an assessment. During the assessment, mother refused to allow the social worker to enter her home. However, a community behavioral health counselor was with the social worker, and mother allowed the counselor to enter her home and talked with the counselor. The counselor determined that mother was not in not of an involuntary commitment. DSS filed a petition and obtained nonsecure custody of the child that same day. The child was placed in foster care and then returned to mother’s residence while her mother (grandmother) remained in the residence to supervise. At hearing, mother and the friend testified. The text messages were introduced. The juvenile was adjudicated neglected and dependent. Mother appeals.
- An adjudication “determine[s] the existence of the juvenile’s condition as alleged in the petition…. the court’s decisions must often be ‘predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child bason on the historical facts of the case.’ ” 280 N.C. App. at 431-32 (quoting In re E.P.-L.M., 272 N.C. 585, 593 (2020)).
- An adjudication order must contain appropriate findings of fact and conclusions of law. G.S. 7B-807(b). Findings of fact must be more than a recitation of the allegations in the petition. There must be specific ultimate facts that are sufficient for an appellate review. “Ultimate facts are the final resulting effect reached by processes of logical reasoning from evidentiary facts.” 280 N.C. App. at 431. “Although it is ‘not per se error for a trial court’s fact findings to mirror the wording of a petition,’ the trial court is mandated to find ‘the ultimate facts necessary to dispose of the case.’ ” 280 N.C. App. at 434. When the court only recites the allegations, the court fails to make its own ultimate findings.
- A neglected juvenile must have experienced or be at substantial risk of some physical, mental, or emotional impairment as a result of a parent’s lack of proper care, supervision, or discipline or the injurious environment the juvenile is residing in. “ ‘[T]he circumstances and conditions surrounding the child,’ not ‘the fault or culpability of the parent,’ are ‘what matters.’ ” 280 N.C. App. at 432 (quoting In re Z.K., 375 N.C. 370, 373 (2020)).
- There are no findings of fact regarding harm or substantial risk of harm to the juvenile. If evidence supports such a finding, there is no error. Some of the findings were not supported by competent evidence. The testimony of mother and friend were that they did not take the text messages literally. There is no evidence of harm and there were no findings of a substantial risk of future harm to the juvenile. The text messages by themselves are not clear and convincing evidence of a substantial risk of harm. Although a trial court is in a better position to determine witness credibility, the ultimate findings were not made. Reversed and remanded to make additional findings that may support the conclusion.
- Concurrence in result only. The majority ignored evidence that supported a finding of substantial risk of harm to the juvenile and stepped into the shoes of the trial court to determine witness credibility and the weight to give the evidence.
Category:
Abuse, Neglect, DependencyStage:
AdjudicationTopic:
Findings of Fact