Opinion
No. COA12–1023.
2013-03-5
In the Matter of K.L. & Z.L.
No brief filed for petitioner-appellee, Robeson County Department of Social Services. Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for Guardian ad Litem.
Appeal by respondent-mother from orders entered 22 May 2012 by Judge Herbert L. Richardson in Robeson County District Court. Heard in the Court of Appeals 19 February 2013. No brief filed for petitioner-appellee, Robeson County Department of Social Services. Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for Guardian ad Litem.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant, mother.
ELMORE, Judge.
Respondent appeals from (1) an adjudication order adjudicating K.L. (Kelly) neglected and Z.L. (Zeb) abused, and (2) a disposition order placing Kelly with her aunt and Zeb with his father. After careful consideration, we reverse the adjudication order and remand for further proceedings consistent with this opinion.
I. Background
Respondent is the mother of Kelly, born August 2008, and Zeb, born June 2010. T.S. is the father of Zeb. On 21 October 2011, DSS filed separate juvenile petitions alleging that Kelly was a neglected juvenile and that Zeb was a neglected and abused juvenile. In each petition, DSS alleged that Zeb was taken to the hospital on 19 October 2011 due to vomiting and acting lethargic; that respondent told hospital staff the Zeb had fallen at home the day before; that Zeb suffered a skull fracture; and that Zeb also had healed broken ribs. DSS took nonsecure custody of the children, placing Kelly with her aunt and Zeb with his father.
The trial court held an adjudication hearing on 4 April 2012. By “Order of Adjudication” filed 22 May 2012, the trial court adjudicated Kelly a neglected juvenile and Zeb an abused juvenile. In its “Order of Disposition” filed the same day, the trial court continued custody of the children with DSS, and continued placement of Kelly with her aunt and Zeb with his father. In the decretal portion of the disposition order, the court stated: “the Court hereby lifts the stay to allow the father, [T.S.] to pursue custody of his child in Civil Court.” On 1 June 2012, ten days after the adjudication and disposition orders were filed, the trial court filed an “Order” in the juvenile matter regarding Zeb. The trial court ordered, “[p]ursuant to N.C.G.S. 7B–200(d), this matter is stayed pending a resolution of the civil matter to be filed by the father, [T.S.]” Respondent now appeals.
II. ISSUES
A. ADJUDICATION
Respondent first argues that the findings of fact are insufficient to support an adjudication of abuse and neglect. We agree.
“The role of this Court in reviewing a trial court's adjudication of neglect and abuse is to determine ‘(1) whether the findings of fact are supported by “clear and convincing evidence,” and (2) whether the legal conclusions are supported by the findings of fact[.]’ “ In re T.H.T., 185 N.C.App. 337, 343, 648 S.E.2d 519, 523 (2007) (quoting In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). The North Carolina Juvenile Code mandates that an “adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law.” N.C. Gen.Stat. § 7B–807(b) (2011). The trial court must, through “processes of logical reasoning,” based on the evidentiary facts before it, “find the ultimate facts essential to support the conclusions of law.” In re Harton, 156 N.C.App. 655, 660, 577 S.E.2d 334, 337 (2003) (quotations and citations omitted). All findings of fact must be “sufficiently specific” in order for an appellate court to “review the decision and test the correctness of the judgment.” Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).
Here, the trial court made thirteen numbered findings of fact. Findings of facts one through four identify the action and the parties involved in the action. The trial court also made the following findings in its adjudication order:
5. That the Child, [Zeb], is an Abused Child pursuant to N.C.G.S. 7B–101(1) in that the mother of the Child has created or allowed to be created substantial risk of serious physical injury to the Child by other than accidental means.
6. That the Child, [Kelly], is a Neglected Child pursuant to N.C .G.S. 7B–101(15) in that the Child lives in an environment injurious to the Child's welfare.
7. That the Court finds: During the CPS assessment, the agency found that the child, [Zeb] has numerous severe injuries which placed the child in Intensive Care that don't appear constant with the information by [respondent]. The agency has also been informed by different collaterals that [respondent] has provided different stories concerning her child's injuries.
8. That efforts to prevent the need for the juveniles['] placement were precluded by an immediate threat of harm to the juveniles and placement of the juveniles in the absence of such efforts was reasonable.
9. That it is in the best interest of [Kelly] and [Zeb] that their custody be with the Robeson County Department of Social Services with placement discretion and with authority to provide and authorize necessary medical, dental, psychological, educational and assessment services.
10. That return of [Kelly] and [Zeb] to the home of the mother would be contrary to the welfare of said Children.
11. That a Timeline, marked as DSS Exhibit “A”, was admitted into evidence.
12. That a Court Report, marked as DSS Exhibit “B” was admitted into evidence.
13. That a Home Study on the home of [the aunt], marked DSS Exhibit “C” was admitted into evidence.
Findings of fact five and six are more properly considered conclusions of law. In re M.R.D.C., 166 N.C.App. 693, 697, 603 S.E.2d 890, 893 (2004) (noting that a finding of fact which is actually a conclusion of law will be treated as a conclusion of law on appeal), disc. review denied,359 N.C. 321, 611 S.E.2d 413 (2005). Findings of fact eight through ten pertain to the children's need for placement outside the home, which do not support an adjudication of abuse and neglect, but are required in an order continuing placement of a juvenile in the custody of DSS. SeeN.C. Gen.Stat. § 7B–507 (2011). Finally, findings eleven through thirteen identify exhibits admitted into evidence, leaving only finding of fact seven for our evaluation. Finding of fact seven merely recites what happened during the “CPS assessment[.]” It was for the trial court to ultimately determine, based on the evidence presented at the hearing, whether the actions or inactions of respondent constituted abuse and/or neglect. This lone finding is insufficient to allow us to “determine that the judgment is adequately supported by competent evidence.” Montgomery v. Montgomery, 32 N.C.App. 154, 156–57, 231 S.E.2d 26, 28 (1977) (citations omitted).
The guardian ad litem argues that the adjudication is proper because respondent, through her counsel, stipulated to “the facts and testimony, and made no objection to the adjudication of abuse and neglect.” To support its argument, the guardian ad litem points to the following colloquy at the close of DSS's evidence:
[DSS COUNSEL]: Judge on the adjudication issue, we're proposing to stipulate to the facts as well as testimony and—but the mother would neither admit nor deny but interpose no objection the Court making a finding of abuse and neglect?
THE COURT: Mr. McGregor? [RESPONDENT'S COUNSEL]: Yes, sir.
THE COURT: With that stipulation Respondent neither admits nor denies not opposed to finding of abuse and All right, with that, what's the plan? in, the, but is neglect. proposed
Here, there is insufficient evidence in respondent's stipulation that Zeb and Kelly lived in an injurious environment, or that they had not received proper care, supervision, or discipline, or that there was a substantial risk that either would suffer some impairment as a result of living in an injurious environment. Furthermore, there is no indication in the trial court's order that respondent stipulated to the facts alleged in the petition or to the testimony at trial, or what those facts and testimony were. Accordingly, the trial court's findings are not “specific ultimate facts,” which are sufficient for this Court to determine that the adjudication of abuse and neglect is adequately supported by competent evidence. See In re O. W., supra. We remand this order to the trial court to make appropriate findings of fact, not inconsistent with this opinion, and conclusions of law supported by those findings of fact.
B. DISPOSITION
Respondent contends that “[t]he trial court erred at disposition by staying the juvenile matter to permit Zeb's Father to file a civil action for custody of Zeb.” For the reasons discussed below, respondent's argument is not properly before us and we may not consider it.
In the disposition order (disposition order) signed 4 April 2012 and filed 22 May 2012, the trial court decreed “[t]hat the Court hereby lifts the stay to allow the father, [T.S.] to pursue custody of his child in Civil Court.” In a subsequent order (subsequent order) also entered 4 April 2012, but filed 1 June 2012, the trial court provided that the juvenile action was stayed pursuant to N.C. Gen.Stat. § 7B–200(d) until a civil action was commenced by Zeb's father and resolved, at which time the matter would be consolidated with the juvenile proceeding pursuant to N.C. Gen.Stat. 7B–200(c)(1). Respondent characterizes the subsequent order as a clarification of the court's disposition order.
This Court has imposed the requirements of Rule 3(d) of the North Carolina Rules of Appellate Procedure upon a party's filing of a notice of appeal from an order entered under Chapter 7B of the General Statutes of North Carolina. See In re D.R.F., 204 N.C.App. 138, 141, 693 S.E.2d 235, 238,disc. review denied,364 N.C. 616, 705 S.E.2d 358 (2010). “Rule 3(d) of the North Carolina Rules of Appellate Procedure requires that a notice of appeal designate the order from which appeal is taken.” Id. (quotation omitted). “Without proper notice of appeal, this Court acquires no jurisdiction.” Von Ramm v. Von Ramm, 99 N.C.App. 153, 156, 392 S.E.2d 422, 424 (1990) (citation omitted).
In the case sub judice, respondent's notice of appeal provides that she is appealing from the “Order of Adjudication and Disposition that was signed ... on April 4, 2012 and served on undersigned counsel on May 31, 2012.” Nowhere in the notice of appeal does it indicate that respondent wished to appeal from the subsequent order “ which was entered 4 April, 2012, signed this the 22 day of May, 2012, and filed on 1 June 2012.” Therefore, the subsequent order remains valid and final, and we do not have jurisdiction to address respondent's alleged errors stemming from the subsequent order. See In re A. V., 188 N.C.App. 317, 321, 654 S.E.2d 811, 814 (2008) (dismissing the appeal for lack of jurisdiction because the juvenile failed to include a particular order in his notice of appeal).
To the extent respondent is challenging the decretal portion of the disposition order, we agree that the trial court erroneously decreed “[t]hat the Court hereby lifts the stay to allow the father, [T.S.] to pursue custody of his child in Civil Court.” N.C. Gen.Stat. § 7B–200 provides in part:
(c) When the court obtains jurisdiction over a juvenile as the result of a petition alleging that the juvenile is abused, neglected, or dependent:
(1) Any other civil action in this State in which the custody of the juvenile is an issue is automatically stayed as to that issue, unless the juvenile proceeding and the civil custody action or claim are consolidated pursuant to subsection (d) of this section or the court in the juvenile proceeding enters an order dissolving the stay.
N.C. Gen.Stat. § 7B–200 (c)(1) (2011).
Although a court is authorized to lift a stay pursuant to section 7B–200(c)(1), the trial court prematurely entered an order lifting the stay. Here, the father had not initiated a civil action and there was no stay to lift. Accordingly, the trial court erroneously ordered the stay to be lifted.
C. VISITATION
Finally, respondent contends that the trial court erred by failing to establish a reasonable visitation plan for her. Because we have reversed the adjudication order and remanded for further proceedings, this issue is rendered moot on appeal. Thus, we decline to address its merits.
III. Conclusion
In sum, the trial court erred in failing to enter sufficient findings of facts to adjudicate Kelly as a neglected juvenile and Zeb an abused juvenile. Additionally, the trial court erred in lifting the stay. Accordingly, we reverse the adjudication order, and the disposition order upon which it rests, and remand for further proceedings consistent with this opinion.
Reversed and remanded. Judges McGEE and HUNTER, Robert C. concur.
Report per Rule 30(e).