In re S.M.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1154
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN THE MATTER OF:

S.M., J.M. Johnston County
Nos. 12 JA 135-36

Appeal by respondent from orders entered 17 July 2013 by

Judge Resson Faircloth and 23 September 2013 by Judge Addie

Harris Rawls in Johnston County District Court. Heard in the

Court of Appeals 28 April 2014.

Holland & O’Connor, P.L.L.C., by Jennifer S. O’Connor, for
Johnston County Department of Social Services, petitioner-
appellee.

Marie H. Mobley for guardian ad litem.

Peter S. Wood for respondent-appellant mother.

HUNTER, Robert C., Judge.

Respondent-mother appeals from orders (1) adjudicating her

minor children J.M. (“Josiah”)1 and S.M. (“Susan”) to be

neglected and dependent juveniles, (2) maintaining the children

1
Pseudonyms shall be used to protect the juveniles’ privacy and
for ease of reading.
 -2-
in the custody of the Johnston County Department of Social

Services (“DSS”), and (3) denying her motion for a new trial

and/or for relief from the adjudication order pursuant to Rules

59 and 60 of the North Carolina Rules of Civil Procedure. N.C.

Gen. Stat. §§ 1A-1, Rules 59(a), 60(b) (2013). We affirm.

Procedural History

DSS filed juvenile petitions on 30 August 2012, alleging

that six-year-old Josiah and four-year-old Susan were neglected

and dependent. A hearing on the petitions was held in May 2013.

On 10 July 2013, respondent-mother’s counsel, Brian Knott, moved

to withdraw. The district court allowed the motion and

appointed counsel Steven Walker to represent respondent-mother

on 12 July 2013.

On 17 July 2013, the court entered adjudications of neglect

and dependency for both Josiah and Susan. In its accompanying

disposition order, the court continued the children in DSS

custody and relieved the department of further efforts toward

reunification with respondent-mother.

On 24 July 2013, respondent-mother filed in district court

a motion styled “Motion for a New Trial (Rule 59); Alternative

Motion for Relief (Rule 60 & N.C. Gen. Stat. § 7B-1000)[.]”

Citing newly discovered evidence or, alternatively, ineffective
 -3-
assistance by former counsel Knott, she asked the court to grant

her a new hearing pursuant to N.C.R. Civ. P. 59(a)(4) and (6),

or to set aside the adjudication and disposition orders pursuant

to N.C.R. Civ. P. 60(b)(4) and (6).

The district court denied respondent’s motion in open court

after a hearing on 14 August 2013. On 15 August 2013, defendant

filed notice of appeal from the court’s ruling and from the 17

July 2013 adjudication and disposition orders. The court

entered its written order denying defendant’s motion for relief

under Rules 59(a) and 60(b) on 23 September 2013.

Respondent-Mother’s Appeal

Respondent-mother does not challenge any aspect of the

district court’s adjudication and disposition orders. She

instead contends the “court abused its discretion by denying

[her] motion for a new adjudication hearing under Rule 60(b) and

Rule 59.” The basis for her claim is counsel Walker’s

discovery, in the DSS case file, of a report prepared by

psychologist Dr. Milton Kraft,2 who evaluated respondent-mother’s

live-in boyfriend, Mr. W., after Josiah and Susan alleged that

he had sexually abused them. According to respondent-mother,

Dr. Kraft found it “unlikely” that Mr. W. abused her children,

2
The motion hearing transcript spells the surname “Craft.”
 -4-
and found it “possible” that respondent-father or his family had

coached the children into making false accusations against Mr.

W. In the event that Dr. Kraft’s report was unavailable to

counsel Knott at the time of the adjudicatory hearing,

respondent-mother contends the report represents “newly

discovered evidence” under Rule 59(a)(4) and Rule 60(b)(2). If

Dr. Kraft’s report was available, respondent-mother argues that

counsel’s failure to introduce it at the adjudicatory hearing

violated her right to effective assistance of counsel,

justifying relief from the adjudications of neglect and

dependency under Rules 59(a)(9) and 60(b)(6).

Standard of Review

We review a trial court’s denial of a Rule 59(a) or Rule

60(b) motion only for abuse of discretion. In re Will of Buck,

350 N.C. 621, 625, 516 S.E.2d 858, 861 (1999) (Rule 59(a)); In

re E.H., __ N.C. App. __, __, 742 S.E.2d 844, 849 (2013) (Rule

60(b)), disc. review improvidently allowed, __ N.C. __, 754

S.E.2d 417 (2014). A court abuses its discretion only when its

ruling is “manifestly unreasonable[.]” Lovendahl v. Wicker, 208

N.C. App. 193, 205, 702 S.E.2d 529, 537 (2010).

Newly Discovered Evidence

Under N.C.R. Civ. P. 59(a)(4), “[a] new trial may be
 -5-
granted to all or any of the parties and on all or part of the

issues” based on “[n]ewly discovered evidence material for the

party making the motion which he could not, with reasonable

diligence, have discovered and produced at the trial[.]” N.C.

Gen. Stat. § 1A-1, Rule 59(a)(4). Similarly, Rule 60(b)(2)

provides that the trial court “may relieve a party . . . from a

final judgment, order, or proceeding” on the basis of “[n]ewly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b).”3

N.C. Gen. Stat. § 1A-1, Rule 60(b)(2).

Based on respondent-mother’s own allegations, the report

prepared by Dr. Kraft does not qualify as “newly discovered

evidence” for purposes of Rules 59(a)(4) or 60(b)(2). “In order

for evidence to be ‘newly discovered evidence’ under these

rules, it must have been in existence at the time of the trial,

and not discoverable through due diligence.” Broadbent v.

Allison, 176 N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006). In

respondent-mother’s motion filed 24 July 2013, counsel Walker

reported discovering Dr. Kraft’s report in the DSS case file

following his appointment as substitute counsel. The motion

3
Inasmuch as respondent-mother timely served her Rule 59(b)
motion, the conditions for relief contemplated by Rule 60(b)(2)
manifestly do not apply.
 -6-
further averred that that Mr. W. “was aware of this conclusion

by Dr. Kraft and . . . had informed respondent-mother of the

results of his psychological evaluation.”

Insofar as the report was in existence at the time of the

May 2013 adjudication hearing, it was plainly obtainable through

due diligence. A respondent in an abuse, neglect, or dependency

proceeding may seek discovery from DSS pursuant to N.C. Gen.

Stat. § 7B-700(a), (c) (2013).4 Given respondent-mother’s avowed

awareness of the results of Mr. W.’s evaluation, her failure to

seek this evidence from DSS pursuant to N.C. Gen. Stat. § 7B-

700, or from Dr. Kraft himself by subpoena or otherwise, can

hardly be characterized as due diligence. See Waldrop v. Young,

104 N.C. App. 294, 297, 408 S.E.2d 883, 885 (1991).

Accordingly, we conclude that the district court did not abuse

its discretion in denying relief pursuant to Rules 59(a)(4) and

60(b)(2).

Ineffective Assistance of Counsel

Rules 59(a)(9) and 60(b)(6) allow the trial court to grant

a new trial or relief from a judgment for “[a]ny . . . reason

heretofore recognized as grounds for new trial[,]” or that

4
Indeed, respondent-father’s counsel informed the court that she
had reviewed the DSS file on multiple occasions but concluded
that Dr. Kraft’s evaluation “wasn’t of any consequence to me[.]”
 -7-
otherwise “justif[ies] relief from the operation of the

judgment.” N.C. Gen. Stat. § 1A-1, Rules 59(a)(9), 60(b)(6).

Despite the rules’ expansive language, we have emphasized that a

court should wield its authority thereunder “carefully and

reluctantly” and only where necessary to avoid “‘a palpable

miscarriage of justice[.]’” Boykin v. Wilson Med. Ctr., 201

N.C. App. 559, 561, 563, 686 S.E.2d 913, 915, 917 (2009) (Rule

59(a)(9)); accord Vaglio v. Town and Campus Int., Inc., 71 N.C.

App. 250, 255, 322 S.E.2d 3, 7 (1984) (“Courts have the power to

vacate judgments . . ., yet they should not do so under Rule

60(b)(6) except in extraordinary circumstances and after a

showing that justice demands it.”).

Respondent-mother argues that counsel Knotts’ failure to

introduce Dr. Kraft’s report into evidence at the May 2013

adjudicatory hearing violated her right to effective assistance

of counsel. Inasmuch as Dr. Kraft found it “unlikely” Mr. W.

had sexually abused Josiah and Susan, respondent-mother contends

that his report would have vindicated her disbelief of her

children’s accusations. She points out that the district court

cited her refusal to believe her children in its findings of

fact supporting the adjudications of neglect and dependency.
 -8-
Under N.C. Gen. Stat. § 7B-602(a) (2013), a parent has a

right to counsel in an abuse, neglect, or dependency proceeding.

“This right to counsel also includes the right to effective

assistance of counsel.” In re S.C.R., 198 N.C. App. 525, 531,

679 S.E.2d 905, 909, appeal dismissed, 363 N.C. 654, 686 S.E.2d

676 (2009). To establish a successful claim that counsel’s

assistance was ineffective, a parent must “show that counsel’s

performance was deficient and the deficiency was so serious as

to deprive the represented party of a fair hearing.” In re

Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396

(1996). “Judicial review of counsel’s performance must be

highly deferential so as to avoid the prejudicial effects of

hindsight.” State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d

354, 360 (2003). Moreover, “[a] parent must also establish

[s]he suffered prejudice in order to show that [s]he was denied

a fair hearing.” In re S.C.R., 198 N.C. App. at 531, 679 S.E.2d

at 909.

Initially, we note there is no showing that respondent-

mother ever provided the district court with a copy of Dr.

Kraft’s report; nor has she included the document in the record

on appeal. See generally Walker v. Penn Nat’l Sec. Ins. Co.,

168 N.C. App. 555, 560, 608 S.E.2d 107, 110 (2005) (“[W]hen the
 -9-
evidence is not in the record the matter is not reviewable.”)

(citation and internal quotation marks omitted); see also N.C.R.

App. P. 9(a)(1)(e). The record does not indicate when the

report was prepared or delivered to DSS. Nor does the record

reveal the actual contents of the report. We are thus unable to

assess Dr. Kraft’s actual findings and conclusions or ascertain

the evidence he relied upon in reaching his conclusions.

Significantly, there is no allegation that Dr. Kraft ever

interviewed Josiah or Susan about the alleged sexual abuse, or

that he spoke with witnesses other than Mr. W.

Moreover, “the purpose of the adjudication hearing is to

adjudicate ‘the existence or nonexistence of any of the

conditions alleged in a petition.’” In re A.B., 179 N.C. App.

605, 609, 635 S.E.2d 11, 15 (2006) (quoting N.C. Gen. Stat. §

7B-802). Accordingly, we have barred consideration of “post-

petition evidence” at the adjudicatory stage of an abuse,

neglect, or dependency proceeding. Id. In the case sub judice,

the issue before the court at adjudication was Josiah’s and

Susan’s status as neglected and dependent juveniles at the time

DSS filed its petitions on 30 August 2012. Given that DSS did

not allege sexual abuse by Mr. W. in support of its allegations

of neglect and dependency, Dr. Kraft’s evaluation of Mr. W.
 -10-
subsequent to the petitions’ filing was not obviously germane to

the proceeding.

Based on respondent-mother’s limited proffer, we cannot

conclude that her counsel’s failure to adduce Dr. Kraft’s report

at the adjudicatory hearing amounts to ineffective assistance of

counsel. DSS did not seek adjudications of abuse or allege that

Josiah and Susan had been sexually abused. As shown below, the

adjudications of neglect and dependency were based on several

factors, including respondent-parents’ mutual history of

domestic violence and violation of domestic violence protective

orders, Mr. W.’s threatening behavior toward respondent-father

and the children’s caretaker, Ms. T., and respondent-father’s

volatility and deteriorating mental health.

In support of its adjudication, the district court found,

inter alia, as follows:

7. . . . [T]he parents engaged in multiple
incidents of domestic violence in the
presence of the children. . . .

8. [Respondent-]mother used a wire hanger
to discipline the juvenile, [Josiah], when
he was a toddler, which left marks on the
juvenile that remain to date.

9. In April of 2012, the mother enlisted
the help of . . . [Mr. W.] to separate from
[respondent-father]. . . .

10. In June of 2012, the parties separated.
 -11-
. . .

11. Thereafter the mother obtained a
Domestic Violence Protective Order (“DVPO”)
due to [respondent-father’s] threats,
including threats of harming her or having
her deported. As part of the [DVPO], the
mother was given temporary custody of the
minor children. . . .

12. The mother quit her job so that she
could be with the children. . . .

13. After approximately four days,
[respondent-]mother and the minor children
went to stay at the residence of [Mr. W.]
and his roommate.

14. While at the home of Mr. [W.], both
children reported that Mr. [W.] touched them
inappropriately. Both children disclosed
that Mr. [W.] put his hand down their pants
and touched their “privates”. . . . Both
children further disclosed that while Mr.
[W.] was touching [Susan], [Josiah] jumped
on him and Mr. [W.] punched [Josiah] in the
stomach.

15. The children further observed the
mother drinking while they were staying at
Mr. [W.]’s apartment. . . .

16. On July 19, 2012, [Josiah] telephoned
his father and told him something bad had
happened but before he could explain, the
mother hung up the phone.

17. On July 20, 2012, [the children’s adult
sister, Ms. T.,] went to pick up the
children for their . . . visitation with the
father. Mr. [W.] was at the exchange and
attempted to prevent the children from going
on the visit. Once at the father’s
residence, the children disclosed to the
 -12-
father and their sister the physical and
sexual assault by Mr. [W.]

18. [Respondent-father] obtained a DVPO
against the mother and obtained custody of
the children.

. . . .

20. After the DVPO was put in place in late
July, 2012, both parties continued to
violate the no contact provision. . . .

. . . .

22. The children went to stay with their
sister, [Ms. T.] in August of 2012, with the
father’s consent. . . .

23. On or about August 10, 2012,
[respondent-father], while intoxicated,
contacted the mother and threatened her and
threatened to kill himself. . . .

24. Although the mother was advised of the
children’s disclosure against Mr. [W.], she
continued to maintain a relationship with
him, including up to the time of the filing
of the juvenile petitions. [Respondent-
mother] was further aware of Mr. [W.]’s
mental health past that resulted in a
previous hospitalization. . . . Mr. [W.]
has further provided the mother financial
support and assistance with remaining in the
country.

25. Although the mother believes her
children are truthful, she refused to
believe their disclosures against Mr. [W.]

26. [Respondent-father] believed he was
being followed by Mr. [W.] and that he was
receiving threatening phone calls from Mr.
[W.] . . . Both [respondent-father] and
 -13-
[Ms. T.] observed Mr. [W.] in a vehicle out
front of [respondent-father’s] home and
observed Mr. [W.] point a gun at them.

27. In mid to late August 2012, the father
threatened to take the children from Ms.
[T.] and take them to see their mother in
Raleigh, North Carolina, in violation of the
safety assessment entered into by [DSS].

28. On or about August 24, 2012,
[respondent-father] again threatened to take
the children from Ms. [T.] After Ms. [T.]
refused to give the children to [respondent-
father], he grabbed Ms. [T.] and threatened
to kill her.

. . . .

30. [Respondent-father]’s mental health
became noticeably concerning as the month of
August progressed. Ms. [T.], his daughter,
and [DSS] became fearful of his mental
health status.

. . . .

32. [On August 30, 2012], the father
purposely overdosed on his medication and
had to be hospitalized.

33. The children were originally placed in
the nonsecure custody of [Ms. T.], but had
to be moved due to threats by Mr. [W.], as
well as [respondent-father] coming to the
home in violation of the order. No other
alternative placement was available for the
children and they were placed in foster
care.

Based on these facts, the court determined that Josiah and Susan

“lived in an environment injurious to their health and welfare
 -14-
and further were at a substantial risk of physical and/or

emotional impairment if returned to the care of either parent.”

See N.C. Gen. Stat. § 7B-101(15) (2013) (defining “neglected

juvenile”). The court further found “that neither parent was

able to provide proper care and supervision and lacked an

appropriate alternative care arrangement.” See N.C. Gen. Stat.

§ 7B-101(9) (2013) (defining “dependent juvenile”).

Respondent-mother does not challenge any finding of fact or

conclusion of law in the adjudication and disposition orders

entered on 17 July 2013. Unchallenged findings of fact are

binding on this Court. In re S.N., X.Z., 194 N.C. App. 142,

147, 669 S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C. 368,

677 S.E.2d 455 (2009). These unchallenged findings fully

support the conclusion that Josiah and Susan were neglected and

dependent juveniles, irrespective of the truth of their sexual

abuse allegations. Moreover, the fact that respondent-mother

dismissed their allegations and remained with Mr. W. – well

before his evaluation by Dr. Kraft – was properly considered by

the court in assessing the extant risks to the children.

Respondent-mother has not shown she was prejudiced by

counsel’s failure to introduce Dr. Kraft’s report at the

adjudicatory hearing. Accordingly, we find no abuse of
 -15-
discretion by the district court in denying her motion for

relief pursuant to Rule 59(a)(9) and 60(b)(4). See In re L.C.,

181 N.C. App. 278, 283, 638 S.E.2d 638, 641 (2007) (“Because

respondent has failed to demonstrate the prejudice he suffered,

he has likewise failed to establish his claim of ineffective

assistance of counsel.”).

Remaining Issues

To the extent respondent-mother claims “excusable neglect”

as a basis for relief under N.C.R. Civ. P. 60(b)(1), we find

that she failed to present this issue to the district court and

may not now “‘swap horses between courts in order to get a

better mount [on appeal].’” Regions Bank v. Baxley Commercial

Props., LLC, 206 N.C. App. 293, 298-99, 697 S.E.2d 417, 421

(2010) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d

3, 5 (1996)); see also N.C.R. App. P. 10(a)(1).

We likewise reject respondent-mother’s suggestion that the

order denying her motion lacks sufficient findings of fact and

conclusions of law and is impermissibly “vague.” Because

respondent-mother did not request the entry of findings and

conclusions pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(2),

none were required. Creasman v. Creasman, 152 N.C. App. 119,

124, 566 S.E.2d 725, 729 (2002) (“A trial court is not required
 -16-
to make written findings of fact when ruling on a Rule 60(b)

motion, unless requested to do so by a party.”); Edge v.

Metropolitan Life Ins. Co., 78 N.C. App. 624, 626, 337 S.E.2d

672, 674 (1985) (same for Rule 59(a)).

Finally, we find no merit to respondent-mother’s argument

that the district court erred by characterizing her claims under

Rules 59 and 60 as “more appropriately classified as appellate

issues” redressable under N.C. Gen. Stat. § 7B-1001 (2013). The

court also found “no evidentiary or factual basis to grant

relief pursuant to Rule 59 or 60[.]” “[A] correct decision of a

lower court will not be disturbed because the reason assigned

for it is wrong, insufficient, or superfluous. The question on

review of the decision in this Court is whether the ruling of

the court below was correct, not whether the reason given for it

is sound or tenable.” State v. Parker, 316 N.C. 295, 302, 341

S.E.2d 555, 559 (1986).

Conclusion

Respondent-mother does not contest the adjudication and

disposition orders entered on 17 July 2013. The district court

did not abuse its discretion in denying her Rule 59 and 60

motion. Accordingly, we affirm each of these orders.
 -17-
AFFIRMED.

Judges GEER and McCULLOUGH concur.

Recommend Report per Rule 30(e).