In re J.C.B.

NO. COA13-1112

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

IN THE MATTER OF:

Wilson County
No. 12 JA 65, 67-68
J.C.B., C.R.R., H.F.R.

Appeal by respondents from orders entered 22 July 2013 by

Judge Pell C. Cooper in Wilson County District Court. Heard in

the Court of Appeals 27 March 2014.

Stephen L. Beaman for petitioner-appellee Wilson County
Department of Social Services.

Richard Croutharmel for respondent-appellant mother.

Michael E. Casterline for respondent-appellant father.

Parker, Poe, Adams & Bernstein, by Sarah F. Hutchins and
Ashley A. Edwards, for guardian ad litem.

ELMORE, Judge.

Respondents, the parents of the juvenile J.C.B. and

custodians of their nieces C.R.R. and H.F.R., appeal from orders

entered 22 July 2013 adjudicating J.C.B., C.R.R., and H.F.R.

neglected juveniles. After careful review, we reverse in part,

and dismiss, in part.
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I. Facts

This case is related to In The Matter of R.R.N., ___ N.C.

App. ___, ___ S.E.2d ___ (COA13-947) (2014). R.R.N. is the

step-daughter of respondent-father’s cousin. On 30 November

2012, the Wilson County Department of Social Services (“DSS”)

filed a petition alleging that R.R.N. was an abused and

neglected juvenile. DSS stated that it received a Child

Protective Services report on 20 August 2012 claiming that

R.R.N. had been sexually abused by respondent-father during an

overnight visit to respondents’ home on 18 August 2012. J.C.B.,

C.R.R., and H.F.R. were all present in the home at the time of

the alleged sexual abuse. Accordingly, on 30 November 2012, DSS

filed petitions alleging that J.C.B., C.R.R., and H.F.R. were

neglected in that they lived in an environment injurious to

their welfare because they resided in a home where another

juvenile had been sexually abused.

DSS additionally alleged that C.R.R. and H.F.R. were

dependent juveniles. C.R.R. and H.F.R. are respondents’ nieces

and respondents shared custody of the juveniles with the

juveniles’ maternal grandmother. C.R.R. and H.F.R. were

residing with respondents and unable to return to their parents’

home due to their parents’ continuing issues with domestic
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violence and substance abuse. The plan at the time of the

filing of the petitions was for C.R.R. and H.F.R. to move into

the residence of their maternal grandmother.

Adjudicatory hearings were held on 13, 14, 15, and 29 March

2013. The trial court concluded that respondent-father abused

R.R.N. and found that J.C.B., C.R.R., and H.F.R. resided in the

home when the abuse occurred. Accordingly, on 22 July 2013, the

trial court adjudicated J.C.B., C.R.R., and H.F.R. as neglected

juveniles. The trial court declined to adjudicate C.R.R. and

H.F.R dependent as alleged in the petitions. The trial court

ordered that custody of J.C.B. remain with respondents while

custody of C.R.R. and H.F.R. be granted to their maternal

grandmother. Respondent-father was ordered to have no

unsupervised contact with C.R.R. and H.F.R. The trial court

also entered a written order initiating a Chapter 50 civil

custody action as to C.R.R. and H.F.R. Respondents appeal.

II. Analysis

Respondent-father first argues that the trial court erred

by adjudicating R.R.N. an abused juvenile. Respondent-father

contends that the trial court failed to make appropriate

findings of fact to support a conclusion that R.R.N. was the

victim of a sexual offense. We decline, however, to review
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respondent-father’s argument because he has no right to appeal

the adjudication of abuse.

A juvenile matter based on Subchapter I, “Abuse, Neglect,

Dependency” of General Statutes Chapter 7B may be appealed by

the following parties:

(1) A juvenile acting through the juvenile’s
guardian ad litem previously appointed under
G.S. 7B–601.

(2) A juvenile for whom no guardian ad litem
has been appointed under G.S. 7B–601. If
such an appeal is made, the court shall
appoint a guardian ad litem pursuant to G.S.
1A–1, Rule 17 for the juvenile for the
purposes of that appeal.

(3) A county department of social services.

(4) A parent, a guardian appointed under
G.S. 7B–600 or Chapter 35A of the General
Statutes, or a custodian as defined in G.S.
7B–101 who is a nonprevailing party.

(5) Any party that sought but failed to
obtain termination of parental rights.

N.C. Gen. Stat. § 7B–1002 (2013); see N.C. Gen. Stat. § 7B–1001

(2013). Respondent-father does not fall within any category of

persons afforded a statutory right to appeal from a juvenile

matter pursuant to N.C. Gen. Stat. §§ 7B–1001 and 7B–1002

(2013). Thus, he lacks standing to appeal the trial court’s 22

July 2013 order adjudicating R.R.N. an abused juvenile.
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We next consider respondents’ arguments that the trial

court erred by adjudicating J.C.B., C.R.R., and H.F.R. neglected

juveniles. Respondents both argue that the trial court erred in

adjudicating J.C.B., C.R.R., and H.F.R. neglected juveniles

because its findings are insufficient to support the conclusion

that they were harmed by respondent-father’s actions or exposed

to a substantial risk of harm. We agree.

“The role of this Court in reviewing a trial court’s

adjudication of neglect [] 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). “If such evidence

exists, the findings of the trial court are binding on appeal,

even if the evidence would support a finding to the contrary.”

Id. (citation omitted).

The statutory definition of neglect provides that “[i]n

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

101(15) (2013). This Court has acknowledged, however, that “the

fact of prior abuse, standing alone, is not sufficient to

support an adjudication of neglect.” In re N.G., 186 N.C. App.

1, 9, 650 S.E.2d 45, 51 (2007), aff’d per curiam, 362 N.C. 229,

657 S.E.2d 355 (2008). Instead, this Court has generally

required the presence of other factors to suggest that the

neglect or abuse will be repeated. See, e.g., In re C.M., 198

N.C. App. 53, 66, 678 S.E.2d 794, 801-02 (2009) (affirming

adjudication of neglect based upon prior abuse of another child

and a history of domestic violence between the parents); In re

A.S., 190 N.C. App. 679, 690-91, 661 S.E.2d 313, 320-21 (2008),

aff’d per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009) (affirming

adjudication of neglect of a child based upon mother’s act of

intentionally burning another child’s foot and falsely claiming

that the burning was accidental); In re P.M., 169 N.C. App. 423,

427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of

neglect of one child based on prior adjudication of neglect with

respect to other children and parent’s lack of acceptance of

responsibility).

Even if we assume arguendo that respondent-father abused

R.R.N., a juvenile, in the home where J.C.B., C.R.R., H.F.R.,
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and respondent-father lived, this fact alone does not support a

conclusion that J.C.B., C.R.R., and H.F.R. were neglected. In

re N.G., supra. The trial court made virtually no findings of

fact regarding J.C.B., C.R.R., or H.F.R., and wholly failed to

make any finding of fact that J.C.B., C.R.R., and H.F.R. were

either abused themselves or were aware of respondent-father’s

inappropriate relationship with R.R.N. Additionally, the trial

court failed to make any findings of fact regarding other

factors that would support a conclusion that the abuse would be

repeated. As a result, the findings of fact do not support a

conclusion that respondent-father’s conduct created a

“substantial risk” that abuse or neglect of J.C.B., C.R.R., and

H.F.R. might occur. In re Safriet, 112 N.C. App. 747, 752, 436

S.E.2d 898, 901–02 (1993) (citation omitted). Accordingly, we

reverse the trial court’s adjudications of neglect.

Lastly, respondent-mother argues that the trial court erred

by entering a Juvenile Court Order Initiating Civil Action For

Custody (the civil custody order), transferring the cases of

C.R.R. and H.F.R. to a Chapter 50 action. We note, however,

that respondent-mother failed to give proper notice of appeal

from this order and has filed a petition for writ of certiorari.

She avers that we should grant the writ of certiorari because
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her untimely appeal from the civil custody order “stems from her

court-appointed trial attorney’s failure to do so and not

because of any lack of desire on her part to appeal that order.”

N.C. Appellate Procedure Rule 3.1(a) provides:

Any party entitled by law to appeal from a
trial court judgment or order rendered in a
case involving termination of parental
rights and issues of juvenile dependency or
juvenile abuse and/or neglect, appealable
pursuant to N.C.G.S. § 7B-1001, may take
appeal by filing notice of appeal with the
clerk of superior court and serving copies
thereof upon all other parties in the time
and manner set out in Chapter 7B of the
General Statutes of North Carolina.

N.C.R. App. P. 3.1(a). Pursuant to N.C. Gen. Stat. § 7B-

1001 (2013), “[n]otice of appeal and notice to preserve the

right to appeal shall be given in writing . . . within 30 days

after entry and service of the order[.]” An appellant’s failure

to give timely notice of appeal “is jurisdictional, and an

untimely attempt to appeal must be dismissed.” In re I.T.P-L.,

194 N.C. App. 453, 459, 670 S.E.2d 282, 285 (2008) (citation and

quotations omitted). However, writ of certiorari “may be issued

in appropriate circumstances by either appellate court to permit

review of the judgments and orders of trial tribunals[.]”

N.C.R. App. P. 21. This Court has held that an appropriate

circumstance to issue writ of certiorari occurs when an appeal
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“has been lost because of a failure of his or her trial counsel

to give proper notice of appeal.” State v. Gordon, ___ N.C.

App. ___, ___, 745 S.E.2d 361, 363 (2013), review denied, ___

N.C. ___, 749 S.E.2d 859 (2013). In such cases, the evidence

indicated the appellant’s “desire[] to pursue the appeal”

despite the attorney’s error. I.T.P-L., 194 N.C. App. at 460,

670 S.E.2d at 285; see In re I.S., 170 N.C. App. 78, 84, 611

S.E.2d 467, 471 (2005) (granting writ of certiorari where

appellant’s notice of appeal incorrectly stated that it was from

a January order but it was clear from the circumstances that

appellant intended to appeal from an April order); see also

State v. Hammonds, ___ N.C. App. ___, ___, 720 S.E.2d 820, 823

(2012) (“[A] mistake in designating the judgment . . . should

not result in loss of the appeal as long as the intent to appeal

from a specific judgment can be fairly inferred from the notice

and the appellee is not misled by the mistake[.]”).

Here, respondent-mother concedes that she did not file

timely notice of appeal from the civil custody order that

transferred the cases of C.R.R. and H.F.R. to a Chapter 50

action. The only timely notice of appeal filed by respondent-

mother was “from the Order of Adjudication and Disposition

signed on 19 July 2013, filed on 22 July 2013.” This notice of
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appeal was worded clearly and properly filed by her attorney.

However, the notice of appeal makes no reference to the civil

custody order nor does it describe any decision embodied in that

order. Thus, we cannot infer from the notice of appeal that

respondent-mother desired to pursue an appeal from the civil

custody order. Accordingly, we deny her petition for writ of

certiorari and dismiss this portion of her argument on appeal.

See In re H.S.F., 182 N.C. App. 739, 744, 645 S.E.2d 383, 386

(2007) (dismissing appellant’s argument on appeal as to the

trial court’s error in a civil custody order because her notice

of appeal was from the trial court’s review order and not from

the civil custody order itself).

III. Conclusion

In sum, we decline to address respondent-father’s argument

that the trial court erred by adjudicating R.R.N. an abused

juvenile because he lacks standing to challenge this issue on

appeal. We dismiss respondent-mother’s argument pertaining to

the alleged erroneous entry of the civil custody order because

she failed to give proper notice of appeal. However, we reverse

the trial court’s adjudications of neglect because its findings

of fact do not support its conclusion of law that J.C.B.,

C.R.R., and H.F.R. were neglected.
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Reversed, in part; dismissed, in part.

Judge CALABRIA and Judge STEPHENS concur.