In re S.M.L., 272 N.C. App. 499 (2020)

Reversed and remanded in part
Affirmed in Part
  • Facts: At the time DSS filed its petition, there was an existing Ch. 50 custody order regarding the 2 children that awarded mother primary physical custody and father visitation and child support. DSS became involved when the older child disclosed sexual abuse by mother’s boyfriend. As a safety plan, the children were temporarily placed with father but were allowed to return to mother upon the assurance that her boyfriend would have no contact with the juveniles. Mother initiated believed her child but then began to doubt the juvenile’s disclosure, started having contact with her boyfriend, and inquired of DSS what the ramifications would be if she were to marry him. Father remained appropriate and supportive of the juvenile’s account of her abuse. DSS recommended father file a motion to modify the Ch. 50 order, which he filed but his request for ex parte relief was denied due to DSS involvement. DSS filed an abuse and neglect petition for one juvenile and a neglect petition for the other. The court adjudicated the juveniles neglected and entered a disposition that awarded custody to father and referred to an order that needed to be drafted for modification of the Ch. 50 order and termination of the 7B action under G.S. 7B-911. That order was never entered. Mother appeals the adjudications and disposition.
  • Neglect requires a finding that there be some physical, mental, or emotional impairment or substantial risk of such impairment as the result of the lack of proper care, supervision or discipline.
  • Regarding the older juvenile, the findings of fact support the conclusion of neglect. Although the words in one of the challenged findings of fact were not supported by the evidence, the omission of those words has no effect on the other details in the finding of what occurred, and the remaining findings were supported by clear and convincing evidence. Mother’s argument goes to the credibility and weight of the evidence, which is not reviewed on appeal. The court determined mother’s testimony about ending her relationship and being supportive of her child was not credible.
  • When there has been a period of separation between the parent and child, prior neglect alone is insufficient. Here the court did not adjudicate neglect solely on the finding of sexual abuse but considered what occurred after the child’s disclosure, which included mother discrediting the juvenile’s sexual abuse disclosure and prioritizing her relationship with her boyfriend. The court properly considered mother’s ability to care for the juvenile at the time of the adjudication hearing and determined there was a risk of physical, emotional, or mental impairment to the juvenile.
  • Under G.S. 7B-101(15), it is relevant if a juvenile lives in the home of another juvenile who has been abused or neglected by an adult who regularly lives in the home. The trial court has discretion to determine how much weight to give such evidence, but there must be other factors that suggest the abuse or neglect will be repeated. Regarding the younger child, there were only 2 findings, neither of which address the impact of the other’s juvenile’s abuse on this juvenile, that there was any reason to believe this juvenile would be abused in the future, or that there was a risk of any impairment for this juvenile. The findings do not support the conclusion of neglect. There is evidence that could support such findings but that is not the role of the appellate court; the case is remanded to the trial court to make such findings.
Abuse, Neglect, Dependency
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