In re K.M.C.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1414
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN THE MATTER OF: Randolph County
Nos. 10 JA 34, 13 JA 05

K.M.C. and H.D.C., III1
TWO MINOR CHILDREN.

Appeal by Respondent-parents from order entered 7 October

2013 by Judge Scott C. Etheridge in Randolph County District

Court. Heard in the Court of Appeals 5 May 2014.

Erica Glass for Petitioner Randolph County Department of
Social Services.

Sydney Batch for Respondent-mother.

Richard Croutharmel for Respondent-father.

Ellis & Winters LLP, by Lenor Marquis Segal, for Guardian
ad Litem.

STEPHENS, Judge.

Factual and Procedural Background

1
We use initials and pseudonyms in this opinion to protect the
juveniles’ identities and for ease of reading.
 -2-
Respondent-parents appeal from an order adjudicating their

two children, K.M.C. (“Kim”) and H.D.C., III (“Henry”)

(collectively, “the juveniles”), as neglected and dependent

juveniles. Kim was born in January 2010, and Henry was born in

September 2011. In October 2012, Respondent-parents, Kim, and

Henry were evicted from their home in Asheboro. In December

2012, they moved into the home of the juveniles’ paternal

grandmother. Shortly thereafter, Respondent-father’s younger

brother, J.C., also moved into the paternal grandmother’s home.2

In October 2009, D.H., the younger half-brother of Respondent-

father, had been adjudicated a dependent juvenile based in part

on J.C.’s sexual molestation of D.H. The sexual abuse had

occurred while D.H. and J.C. resided with the paternal

grandmother (the mother of both boys).3 D.H. has also alleged

sexual abuse by Respondent-father.

2
Some of the evidence in the record suggests that J.C. lived in
a tent or trailer on the grounds of the paternal grandmother’s
home.
3
D.H. was born in March 1996. It appears that J.C. was born in
1992. Thus, both D.H. and J.C. were minors during the period
when the abuse occurred.
 -3-
On 3 January 2013, DSS filed petitions4 seeking

adjudications that Kim and Henry were neglected and dependent

because (1) the juveniles lacked stable and appropriate housing,

(2) Respondent-father had untreated anger management issues, and

(3) Respondent-parents both had untreated mental health issues,

a history of domestic violence, and no appropriate alternative

child care arrangement. The court placed the juveniles in the

nonsecure custody of DSS on that date. Respondent-parents

remained in the paternal grandmother’s home until early June

2013 when they moved into another residence.

On 4 September 2013, the district court held an evidentiary

hearing and, on 7 October 2013, entered a combined adjudication

and disposition order, concluding that (1) Kim and Henry were

dependent and neglected juveniles, see N.C. Gen. Stat. § 7B-

101(9), (15) (2013), and (2) removal from the custody of

Respondent-parents was in the juveniles’ best interest. The

court placed Kim and Henry in the custody of DSS and allowed

Respondent-parents supervised visitation for a minimum of one

4
On 17 March 2010, the Randolph County Department of Social
Services (“DSS”) had filed a petition alleging that Kim was
neglected and dependent. Another petition in the case was filed
on 9 June 2010, alleging Kim was neglected and dependent. After
a hearing on the March 2010 petition, the court concluded that
Kim was not neglected or dependent, and dismissed that petition.
DSS then voluntarily dismissed the June 2010 petition.
 -4-
hour per week. The court also ordered, inter alia, Respondent-

parents to submit to random drug screens and follow through with

recommended treatment in the event of a positive result. In

addition, the court ordered Respondent-father to complete a sex

offender assessment and follow through with any resulting

recommendations. Respondent-parents appeal.

Rule 9(b)(5) Supplement to the Record on Appeal

On 24 February 2014, DSS and the Guardian ad Litem filed a

joint supplement to the printed record on appeal, consisting of

four consolidated orders of adjudication and disposition entered

between January 2010 and October 2013 (“the supplement orders”).

Respondent-parents filed objections to the supplement and moved

to strike it. Those motions were referred to this panel in

March 2014.

The supplement orders concern four minor children of J.C.,5

all of whom have been removed from his custody and adjudicated

dependent, abused, and/or neglected. At the adjudication

5
In his testimony, Respondent-father referred to J.C. as “my
brother,” although the “Joint Response by Appellees to
Respondent-Appellant Father’s Objection to the Record
Supplement” refers to J.C. as “Respondent-Appellant’s Father’s
brother[.]” However, every other reference in the record
indicates that J.C. is Respondent-father’s brother, rather than
his uncle.
 -5-
hearing in this matter, the attorney for DSS asked the court to

take judicial notice of the supplement orders. Contrary to the

assertions of Respondent-parents, there was no objection by

either of their attorneys when the court agreed to take judicial

notice of the supplement orders.6 A social worker from DSS then

testified about the reasons for the removals and adjudications

of J.C.’s children. Although nothing in the combined

adjudication and disposition order regarding Kim and Henry that

is the subject of this appeal references the supplement orders

and they are thus irrelevant to our resolution of this appeal,

they were part of the evidence before the district court at the

hearing. Accordingly, we deny Respondent-parents’ motions to

strike.

Discussion

Respondent-parents argue that (1) all or portions of

subparagraphs a, d, e, g, h, i, and j of the district court’s

finding of fact 5 are not supported by clear and convincing

evidence, (2) the conclusions of law that Kim and Henry are

dependent and neglected juveniles are not supported by the

6
Respondent-mother’s trial counsel did object to the court
taking judicial notice of the entire DSS “files” on the
children, but did not object when the court stated it would take
judicial notice of the adjudication orders only.
 -6-
court’s findings of fact, and (3) certain conditions imposed by

the court constituted an abuse of its discretion. We affirm in

part and reverse in part.

I. Standard of review

“The allegations in a petition alleging that a juvenile is

abused, neglected, or dependent shall be proved by clear and

convincing evidence.” N.C. Gen. Stat. § 7B-805 (2013). On

appeal, an adjudication order is reviewed 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 Pittman, 149 N.C.

App. 756, 763-64, 561 S.E.2d 560, 566 (citation and internal

quotation marks omitted), appeal dismissed and disc. review

denied, 356 N.C. 163, 568 S.E.2d 608-09 (2002), cert. denied sub

nom., Harris-Pittman v. Nash Cnty. Dep’t of Social Servs., 538

U.S. 982, 155 L.E.2d 673 (2003). Findings of fact are binding

“where there is some evidence to support those findings, even

though the evidence might sustain findings to the contrary.” In

re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53

(1984) (citation omitted). Findings of fact are also binding if

an appellant does not challenge them on appeal. Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citation
 -7-
omitted). We review dispositions to determine whether the court

abused its discretion in deciding what action is in the

juvenile’s best interest. In re C.W., 182 N.C. App. 214, 219,

641 S.E.2d 725, 729 (2007) (citation omitted).

II. Findings of fact

Respondent-parents challenge all or portions of

subparagraphs a,7 d, e, f, g, h, i, and j of finding of fact 5 as

not supported by clear and convincing evidence. We agree as to

finding of fact 5h, but disagree regarding the remaining

challenged findings of fact.

Finding of fact 5 states:

5. The [c]ourt finds the following facts for
the purpose of adjudication:

a. The minor children are neglected and
dependent children.

b. [Respondent-parents] were evicted from
[ABC Street], Asheboro, NC.

c. When [Respondent-parents] and the minor
children were evicted, they
([Respondent-parents] and the minor

7
Finding of fact 5a is actually a conclusion of law, and we
review it as such. See In re M.R.D.C., 166 N.C. App. 693, 697,
603 S.E.2d 890, 893 (2004) (holding that a finding of fact which
is actually a conclusion of law is reviewed as a conclusion of
law on appeal), disc. review denied, 359 N.C. 321, 611 S.E.2d
413 (2005); In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404,
409 (2007) (noting that mislabeling a finding of fact as a
conclusion of law is inconsequential if the remaining findings
of fact support it).
 -8-
children) went to the paternal
grandmother[’s] . . . home for
approximately four to five months
before the petitions in the matter were
filed.

d. [Respondent-f]ather acknowledged that
he knew that the paternal grandmother’s
home was an inappropriate home for the
minor children.

e. This [c]ourt adjudicated on or about
October 28, 2009 that [J.C.] sexually
molested the minor child [D.H.].

f. [J.C.] was living at the paternal
grandmother’s home.

g. [J.C.] had access to the minor children
at the paternal grandmother’s home.

h. When [Respondent-parents] would leave
the paternal grandmother’s home to go
[to] the store, they would leave the
minor children with [J.C.].

i. [Respondent-parents] had no other place
to take the minor children after they
were evicted from [ABC Street] in
Asheboro, NC. [Respondent-f]ather had
five to seven months to find housing
other than the paternal grandmother’s
home. [Respondent-f]ather had ample
time to find appropriate and stable
housing.

j. [J.C.] would actually play video games
in the same living room while the minor
children were at the paternal
grandmother’s home.

As for finding of fact 5d, when asked if he was “aware that

[the paternal grandmother’s] home was not an appropriate place
 -9-
for your children[,]” Respondent-father replied, “I guess so,

yeah.” He also testified that he knew (1) his brother, D.H.,

had been removed from the paternal grandmother’s custody and had

not been returned and (2) DSS had recommended that the paternal

grandmother’s home was not an appropriate place for his

children. Respondent-father further testified that he knew the

children of his other brother, J.C., had been removed from

J.C.’s custody before Respondent-father moved his children to

his mother’s residence. This evidence fully supports finding of

fact 5d.

As for finding of fact 5e, the district court took judicial

notice of juvenile adjudication orders pertaining to Respondent-

father’s relatives, including an order adjudicating his brother

D.H. as neglected and dependent. That order contains a finding

of fact that D.H. was sexually assaulted by J.C. This evidence

fully supports finding of fact 5e.

With regard to findings of fact 5f, 5g, and 5j, Respondent-

father testified that, “right before the date that the petitions

in this matter” were filed, his brother J.C. “moved in after a

short while” and “stayed there certain nights.” Although

Respondent-father testified that J.C. often “slept in a tent or

his camper outside” in the yard of the paternal grandmother’s
 -10-
house, he also testified about watching television and playing

video games with J.C. at night in the living room where Kim and

Henry slept. This evidence fully supports findings of fact 5f,

5g, and 5j.

As to finding of fact 5i, Respondent-father testified that

Respondent-parents could not find housing for their family

anywhere other than at the home of the paternal grandmother

during the period between their eviction and the filing of the

petition. The supervising social worker testified that, before

DSS filed the petition, Respondent-parents declined a request by

DSS to move Kim and Henry to the home of the maternal

grandmother. This evidence fully supports finding of fact 5i.

Regarding finding of fact 5h, our review reveals no

evidence that Kim and Henry were left alone with J.C. on

occasions when Respondent-parents went to the store. Because

this finding of fact is not supported by any evidence in the

record, we do not consider it when reviewing the court’s

conclusions of law.

III. Conclusions of law

Respondent-parents next argue that the court’s conclusions

of law that Kim and Henry are dependent and neglected juveniles
 -11-
are not supported by the findings of fact. We agree as to

dependency, but disagree as to neglect.

A dependent juvenile is one whose “parent, guardian, or

custodian is unable to provide for the care or supervision [of

the juvenile] and lacks an appropriate alternative child care

arrangement.” N.C. Gen. Stat. § 7B-101(9) (2013). In

determining whether a juvenile is dependent, “the trial court

must address both (1) the parent’s ability to provide care or

supervision, and (2) the availability to the parent of

alternative child care arrangements.” In re P.M., 169 N.C. App.

423, 427, 610 S.E.2d 403, 406 (2005). The court’s adjudicatory

findings contained in finding of fact 5 do not address the

ability of the parents to provide care or supervision or the

availability of alternative child care arrangements. We thus

hold the findings of facts do not support a conclusion that Kim

and Henry are dependent juveniles.8 Accordingly, we reverse this

adjudication.

A juvenile is neglected if, inter alia, he or she does not

receive proper care, supervision, or discipline from a parent or

8
We further note that, although some of the findings of fact
which the court included in its dispositional determination
could be construed as relating to the Respondent-parents’
“ability to provide care and supervision” for the juveniles,
none address the “availability . . . of alternative child care
arrangements.” See id.
 -12-
guardian; is not being provided necessary medical or remedial

care; or is residing in an environment injurious to his or her

welfare. N.C. Gen. Stat. § 7B-101(15). In making this

determination, the district court must assess whether there is

“some physical, mental, or emotional impairment of the juvenile

or a substantial risk of such impairment as a consequence of the

failure to provide proper care, supervision, or discipline.” In

re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02

(1993) (citation and internal quotation marks omitted). A court

“need not wait for actual harm to occur if there is a

substantial risk of harm to the child in the home.” In re T.S.,

178 N.C. App. 110, 113, 631 S.E.2d 19, 22 (2006), affirmed per

curiam, 361 N.C. 231, 641 S.E.2d 302 (2007).

“In determining whether a juvenile is a neglected juvenile,

it is relevant whether that juvenile . . . lives in a home where

another juvenile has been subjected to abuse or neglect by an

adult who regularly lives in the home.” N.C. Gen. Stat. § 7B-

101(15).

In considering the identically-worded
predecessor statute, this Court held, . . .
that while this language regarding neglect
of other children does not mandate a
conclusion of neglect, the trial judge has
discretion in determining the weight to be
given such evidence. Since the statutory
definition of a neglected child includes
 -13-
living with a person who neglected other
children and since this Court has held that
the weight to be given that factor is a
question for the trial court, the court, in
this case, was permitted, although not
required, to conclude that P.M. was
neglected. . . . In cases of this sort, the
decision of the trial court must of
necessity be predictive in nature, as the
trial court must assess whether there is a
substantial risk of future abuse or neglect
of a child based on the historical facts of
the case.

In re P.M., 169 N.C. App. at 427, 610 S.E.2d at 406 (citations

and internal quotation marks omitted). In that case, before

P.M. was born,

P.M.’s father sexually abused one of [the]
respondent’s daughters after [the]
respondent allowed him to be in the presence
of that daughter, in violation of a safety
plan with . . . [DSS] that prohibited the
father from having contact with that
daughter. A psychologist who evaluated
[the] respondent after that event concluded
that [the] respondent had failed to take
responsibility for the consequences of her
failing to care for her four children.

. . . [A] month after the birth of P.M., DSS
filed a petition alleging that P.M. was
neglected and dependent based on the prior
adjudications as to [the] respondent’s other
children and her current lack of insight
into the harm suffered by those children.

Id. at 425, 610 S.E.2d at 405. We held that “the historical

facts of the case [which] included the fact that [the]

respondent had twice violated court-ordered protection plans
 -14-
with DSS . . . and was failing to take responsibility” were

sufficient to support a conclusion of neglect. Id. at 427, 610

S.E.2d at 406. We see no meaningful distinction between the

facts in that case and those presented here, to wit, that

Respondent-parents moved their minor children into a home with

J.C., a man with a history of sexually abusing his minor

relatives.9

Respondent-father concedes that the “court here was

permitted” to conclude that Kim and Henry were neglected

juveniles based upon their exposure to J.C., and he further

acknowledges that the court had discretion in weighing the

evidence before it in reaching that conclusion. See In re

Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)

(holding that the district court has discretion in determining

the weight to be afforded to evidence of the abuse or neglect of

other children). We agree and conclude that the court’s

findings of fact support its conclusion of law that Kim and

Henry are neglected juveniles. This argument is overruled.

9
We also observe that there is copious evidence in the record
and in the findings of fact which the district court labeled as
dispositional rather than adjudicatory regarding the paternal
grandmother’s refusal to believe that J.C. had abused D.H. and
her denial of any responsibility in the events that led to the
removal of D.H. from her custody and his eventual adjudication
as a dependent juvenile.
 -15-
IV. Conditions placed on Respondent-parents

Respondent-mother argues that the court abused its

discretion by ordering her to submit to random drug screens

because nothing in the record and no allegations in the

petitions suggest that she has a substance abuse problem. We

disagree.

In a juvenile proceeding under Chapter 7B, “the child’s

interest in being protected from abuse and neglect is

paramount.” In re Pittman, 149 N.C. App. at 761, 561 S.E.2d at

564. A juvenile court has the authority, if it determines that

it is in the juvenile’s best interest, to require a parent of a

juvenile who has been adjudicated abused, neglected, or

dependent to “undergo psychiatric, psychological, or other

treatment or counseling directed toward remediating or remedying

behaviors or conditions that led to or contributed to the

juvenile’s adjudication or to the court’s decision to remove

custody of the juvenile from the parent . . . .” N.C. Gen.

Stat. § 7B-904(c) (2013). Under this grant of authority, a

court may, in its discretion, order a parent to submit to a

substance abuse assessment. See In re A.S., 181 N.C. App. 706,

712-13, 640 S.E.2d 817, 821, affirmed per curiam, 361 N.C. 686,

651 S.E.2d 883 (2007). “A ruling committed to a trial court’s
 -16-
discretion is to be accorded great deference and will be upset

only upon a showing that it was so arbitrary that it could not

have been the result of a reasoned decision.” White v. White,

312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

We considered and rejected Respondent-mother’s argument in

a recent case. In In re A.R., the parents contended that the

court erred by requiring them, inter alia, to submit to mental

health assessments, substance abuse evaluations, and drug

screens when the children had been removed for domestic violence

and not for substance abuse or mental health reasons. __ N.C.

App. __, __, 742 S.E.2d 629, 632 (2013). We disagreed, holding

that imposition of these mandates “is reasonably related to

aiding [the parents] in remedying the conditions which led to

the children’s removal; all of these requirements assist [the

parents] in both understanding and resolving the possible

underlying cause of [the parents]’ domestic violence issues.”

Id. at __, 742 S.E.2d at 632-33.

We believe the same reasoning applies here. Respondent-

parents acknowledge a history of domestic violence. Respondent-

father has “an extensive history with drugs and alcohol.”

Respondent-mother has been diagnosed with recurrent major

depression with psychotic features. All of these issues
 -17-
contributed to the removal of the juveniles from Respondent-

parents’ custody. Drug screens and substance abuse treatment if

indicated, along with mental health treatment, may assist

Respondent-mother in understanding and resolving these issues.

Accordingly, we conclude the court did not abuse its discretion.

Respondent-father argues that the court abused its

discretion by ordering him to complete a sex offender assessment

and comply with its recommendations. Specifically, Respondent-

father contends that the district court was collaterally

estopped10 from imposing this condition because prior courts had

ruled that all previous allegations of sexual abuse by

Respondent-father were unfounded. We disagree.

The March 2010 petition regarding Kim alleged that

Respondent-father “exhibited sexually deviant behaviors[.]” In

the order dismissing the March 2010 petition, the district court

made no findings regarding the allegation that Respondent-father

“engage[d] in sexually deviant behaviors[,]” finding only that

he had “not been involved with [Kim] since birth.” The June

10
Collateral estoppel applies only to parties, and not to
courts. See King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d
799, 805 (1973) (observing that under the doctrine of
“collateral estoppel by judgment, parties and parties in privity
with them — even in unrelated causes of action — are precluded
from retrying fully litigated issues that were decided in any
prior determination and were necessary to the prior
determination”) (citations omitted; emphasis added).
 -18-
2010 petition alleged several acts of sexual abuse by

Respondent-father against Kim and stated that Respondent-mother

believed Respondent-father had “molested his half-sibling[,]”

presumably a reference to the allegations made by D.H. In the

order dated 21 July 2010 which returned Kim to the custody of

Respondent-parents, the court found that no reasonable factual

basis existed to support the allegations that Kim had been

sexually abused by Respondent-father or that Kim was at risk of

sexual abuse while in his care. DSS then voluntarily dismissed

the June 2010 petition. At the adjudication hearing in the

current matter, a DSS social worker testified that D.H. had

accused Respondent-father of sexually abusing him.11

However, nothing in the adjudication and disposition order

before this Court suggests that these previous concerns about

Respondent-father’s possible sexual abuse of Kim or D.H.

prompted the condition that he undergo a sexual offender

assessment and any treatment recommended as a result thereof.

Rather, it appears that Kim’s sexual acting out, which appears

to have occurred after June 2010, led to the condition that

Respondent-father undergo a sexual offender assessment. In

11
Nothing in the record suggests there has been any legal
determination that Respondent-father did or did not sexually
abuse D.H.
 -19-
unchallenged findings of fact 52-55 the district court found

that: (1) at a March 2013 home visit, Kim’s foster parents

expressed concerns about Kim’s sexual acting out in the form of

public masturbating and possible attempted sexual interactions

with Henry;12 (2) Respondent-parents acknowledged this behavior

began before Kim was removed from their custody; (3) Respondent-

father felt these behaviors were normal; and (4) Kim has been

referred for appropriate counseling. None of these facts had

been introduced into evidence in any previous matter nor has any

court previously considered them. In light of these

unchallenged findings of fact, we hold the court did not abuse

its discretion by ordering Respondent-father to complete a sex

offender assessment and follow any recommended treatment.

In sum, we affirm the adjudication of Kim and Henry as

neglected juveniles and the court’s resulting disposition. We

reverse the adjudication of dependency.

AFFIRMED in part; REVERSED in part.

Judges BRYANT and DILLON concur.

Report per Rule 30(e).

12
At the time of these reports, Kim was just over three years
old, and Henry was about 18 months old.