In re: C.C.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-54

Filed: 3 July 2018

Durham County, No. 17 J 80-81

IN THE MATTER OF: C.C., A.S.

Appeal by respondent from orders entered 21 September 2017 and 2 October

2017 by Judge Doretta L. Walker in Durham County District Court. Heard in the

Court of Appeals 6 June 2018.

Senior Assistant County Attorney Bettyna B. Abney for petitioner-appellee
Durham County Department of Social Services.

Edward Eldred for respondent-appellant.

Melanie Stewart Cranford for guardian ad litem.

DAVIS, Judge.

In this case, we revisit the issue of whether a child can properly be adjudicated

as neglected where she has been in a stable voluntary placement outside of her

parents’ home for an extended period of time prior to the filing of a neglect petition.

C.C. (“Respondent”) appeals from the trial court’s orders adjudicating his daughter,

C.C. (“Clarissa”),1 as a neglected juvenile. Because we conclude the trial court

properly determined that Clarissa was a neglected juvenile, we affirm.

1 Pseudonyms and initials are used throughout this opinion for the privacy of the minor
children and for ease of reading.
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Opinion of the Court

Factual and Procedural Background

A.S. (“Anna”)2 gave birth to Clarissa on 7 December 2014. Respondent is

Clarissa’s putative father. Respondent was incarcerated at the Wake County

Correctional Center at all times relevant to this case. When Clarissa was

approximately six months old, she began living with Anna’s foster mother (“Ms. L.”).

Clarissa continued living with Ms. L. until December 2016.

On 7 November 2016, Wake County Human Services (“WCHS”) received a

Child Protective Services report that Clarissa had been neglected while in Anna’s

care. The report included allegations of “substance abuse, mental health [issues],

unstable housing, prostitution by the mother, . . . and inappropriate supervision, as

[Clarissa] was left in a hotel (Days Inn) room by herself.”

Clarissa’s half-sister, A.S. (“Alice”),3 was born on 12 December 2016. Around

this time, Anna decided that Clarissa would live with Respondent’s mother (“Ms. C.”).

The case was transferred to the Durham County Department of Social Services

(“DSS”) on 30 January 2017 upon WCHS becoming aware that Anna and Alice had

relocated to Durham. On 9 February 2017, Anna was accepted into the Cascade

Treatment Program of Durham (“Cascade”), and she began living at Cascade along

with Alice. During this time, Clarissa was living with Ms. C. and was allowed to visit

2 Anna is not a party to this appeal.

3 Respondent is not Alice’s father.

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Anna at Cascade on the weekends. During her stay at Cascade, Anna tested positive

for illegal drugs on eleven out of thirteen drug tests.

On 17 April 2017, Cascade informed DSS of an incident in which Anna had

been permitted to leave the agency “on a pass with an expected return of 8:00 p.m.”

but had instead returned to the agency “around 1:45 a.m.[,] . . . long after curfew, and

appeared intoxicated when she returned.” Anna was informed on 18 April 2017 that

she would be discharged from Cascade “due to continuously testing positive for illegal

substances.”

On 19 April 2017, a DSS employee informed Anna that due to her continued

substance abuse it intended to file a petition seeking custody of her children and

asked Anna who she would prefer to care for them. Anna requested that Clarissa

and Alice be placed back with Ms. L. DSS subsequently approved a kinship

assessment with Ms. L., and both children began living with her.

On 21 April 2017, Anna was discharged from Cascade. DSS filed a juvenile

petition on 25 April 2017 alleging that Clarissa and Alice were neglected juveniles.

On 16 May 2017, Anna called Latisha Martin, a DSS social worker, and

informed Martin that “she wanted to go to New Jersey, where she believed she could

better access the services needed to sustain recovery.” She asked Martin if the

children could be placed with Alice’s paternal grandmother (“Ms. B.”) in New Jersey.

Martin replied that Ms. B.’s status as a relative would have to be confirmed through

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paternity testing and that a request under the Interstate Compact on the Placement

of Children would need to be sent to New Jersey before the children could be placed

with Ms. B.

On 17 May 2017, DSS sought an order for non-secure custody as to Clarissa

and Alice and filed a supplemental petition for neglect, alleging that Anna was

making arrangements to immediately remove the children from their placement with

Ms. L. and take them to New Jersey. The supplemental petition stated that the

children were “exposed to a substantial risk of serious physical injury or sexual

abuse” because “the mother is threatening to remove the children [from Ms. L’s care]

immediately.”

An adjudication hearing on DSS’s petition for neglect was held on 14 June 2017

before the Honorable Doretta L. Walker in Durham County District Court. Martin

and Anna testified at the hearing. A dispositional hearing was held on 17 and 18

July 2017. On 21 September 2017, the trial court issued an order (the “Adjudication

Order”) finding Clarissa to be a neglected juvenile. On 2 October 2017, the court

entered a second order (the “Disposition Order”) determining that it was in Clarissa’s

best interests to remain in the care of Ms. L. and continuing legal custody of Clarissa

with DSS. Respondent file a timely notice of appeal as to both the Adjudication Order

and the Disposition Order.4

4 Although the trial court also adjudicated Alice as a neglected juvenile, that portion of the
court’s ruling is not at issue in this appeal.

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Opinion of the Court

Analysis

On appeal, Respondent contends that the trial court erred by adjudicating

Clarissa to be neglected based on his argument that the court made no finding in the

Adjudication Order that Clarissa was at a substantial risk of impairment and that

the evidence would not have supported such a finding. At the outset, we note that it

is undisputed by the parties that Respondent is unable to care for Clarissa because

of his incarceration. For this reason, the parties devote their arguments to the issue

of whether Clarissa meets the definition of a neglected juvenile based on the actions

of Anna.

We review the trial court’s order of adjudication 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 Q.A., 245 N.C. App. 71,

73-74, 781 S.E.2d 862, 864 (2016) (citation, quotation marks, and brackets omitted).

Findings of fact that are supported by competent evidence or are unchallenged by the

appellant are binding on appeal. In re A.B., 245 N.C. App. 35, 41, 781 S.E.2d 685,

689, disc. review denied, 369 N.C. 182, 793 S.E.2d 695 (2016). “Such findings

are . . . conclusive on appeal even though the evidence might support a finding to the

contrary.” In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003). We review

a trial court’s conclusions of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628

S.E.2d 387, 389 (2006).

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Opinion of the Court

A neglected juvenile is defined as “[a] juvenile who does not receive proper care,

supervision, or discipline from the juvenile’s parent, guardian, custodian, or

caretaker . . . .” N.C. Gen. Stat. § 7B-101(15) (2017). “[T]his Court has consistently

required that there be 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).

However, even where the trial court makes no finding that a juvenile has been

impaired or is at substantial risk of impairment there is no error if the evidence would

support such a finding. See In re H.N.D., 205 N.C. App. 702, 706, 696 S.E.2d 783, 786

(Wynn, J., dissenting) (holding that reversal was improper despite lack of ultimate

finding where all the evidence supported adjudication of neglect based on substantial

risk of impairment), rev’d per curiam for reasons stated in dissent, 364 N.C. 597, 704

S.E.2d 510 (2010); In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003)

(“Where there is no finding that the juvenile has been impaired or is at substantial

risk of impairment, there is no error if all the evidence supports such a finding.”);

Safriet, 112 N.C. App. at 753, 436 S.E.2d at 902 (“Although the trial court failed to

make any findings of fact concerning the detrimental effect of [parent’s] improper

care on [child’s] physical, mental, or emotional well-being, all the evidence supports

such a finding.”).

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Opinion of the Court

In the present case, the trial court made the following pertinent findings of

fact:

5. [Respondent], putative father of [Clarissa], is
a resident of North Carolina. He has lived in North
Carolina for over six months prior to the filing of the
petition. [Respondent] is incarcerated within the North
Carolina Department of Corrections (“NCDOC”)
system. . . . [Respondent] is at the Wake County
Correctional Center in Raleigh, NC. [Respondent] was
served the petitions in the following manner: personal
service by Sheriff Deputy on June 14, 2017.

....

8. The children are neglected in that they are
not receiving proper care, supervision, or discipline from
the parent, guardian, custodian, or caretaker and live in an
environment injurious to their welfare with the parents.

9. On November 7, 2016, Wake County Human
Services received a CPS report alleging neglect of the
minor child, [Clarissa]. Concerns noted in the allegations
included substance abuse, mental health, unstable
housing, prostitution by the mother, [Anna], and
inappropriate supervision, as [Clarissa] was left in a hotel
(Days Inn) room by herself.

10. On December 16, 2016, another CPS report
was made due to [Anna] giving birth to [Alice] on December
12, 2016. [Anna] tested positive for cocaine at the birth of
[Alice]. [Anna] was not required by Wake County DSS to
identify any safety resource for [Alice]; however, she
continued to allow [Clarissa] to reside with [the] child’s
putative paternal grandmother, [Ms. C.]. Wake County
DSS completed a kinship assessment on [Ms. C.]’s home on
or about March 30, 2017[.]

11. [Clarissa] was living with [Ms. C.] when

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Opinion of the Court

Durham DSS received the case. She brought [Clarissa] to
Cascades [sic] on the weekends to stay with [Anna] and
[Alice]. At some point in April 2017, when [Ms. C.] arrived
to pick up [Clarissa], [Anna] chose to keep [Clarissa] with
her. [Anna] later moved [Clarissa] to the care of [Anna]’s
former foster mother, [Ms. L.]. [Clarissa] is two years old
now. [Anna] had concerns about the quality of care
[Clarissa] was receiving from [Ms. C.] while at Cascades
[sic].

12. On December 21, 2016, a case decision of
“services needed” for In-Home Services to address [Anna]’s
substance abuse issues, parenting skills, and mental
health needs was made. Durham County DSS received the
case from Wake County DSS on January 30, 2017, stating
that [Anna] and [Alice] had relocated to Durham County.

13. [Anna] has two older children . . . who both
have been cared for by other individuals due to [Anna]’s
instability. Both of these children have been out of [Anna]’s
care since they were infants/ toddlers. . . . [Anna] is
uncertain where the children are located at this time.
Neither child was included on the Wake County CPS report
that Durham County DSS received. Arrangements for her
other children were made without DSS’s intervention.

14. During [Anna]’s initial encounters with
Durham DSS Social Worker Latisha Martin, [Anna]
admitted that her substance abuse was a major barrier
towards her stability and that she was open to entering a
mother-child substance abuse treatment program. [Anna]
has an extensive history of illegal drug use and instability.
[Anna], along with [Alice], w[as] accepted and entered into
Cascade Treatment Program of Durham on February 9,
2017. During [Anna]’s stay at Cascade, she tested positive
for illegal drugs on 11 out of 13 drug tests. The substances
included alcohol, cannabis, and various opiates. Cascade
screened [Anna] on several occasions. [Anna] was enrolled
in the residential substance abuse treatment program at
Cascade, and remained there for about two and half [sic]

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months (February 9, 2017 until April 21, 2017). [Anna]’s
suboxone/opiate maintenance treatment was outsourced to
Hope Center for Advancement, while she was at Cascade.
Two weeks prior to her discharge from Cascades [sic],
[Anna] completed a mental health assessment at Turning
Point. [Anna] did not return to Turning Point for any
following mental health services as recommended.
Currently, [Anna] is not receiving any mental health
services or substance abuse treatment. [Anna] has not
received suboxone/opiate maintenance treatment since her
discharge from Cascades [sic].

15. On April 17, 2017, Durham DSS received a
call from Cascade stating that [Anna] was allowed to leave
the agency on a pass with an expected return of 8:00 p.m.
[Anna] returned to the agency around 1:45 a.m. on April
18, 2017, long after curfew, and appeared intoxicated when
she returned. [Anna] admitted that she was drinking
alcohol and smoking marijuana after having
transportation issues that evening. [Anna] was asked to
leave the Cascade program, after this episode. Upon her
return, the location of [Alice] was unknown to Cascade
staff. [Anna] had left [Alice] with her niece . . . . When
DSS later inquired about the whereabouts of [Clarissa],
[Anna] informed DSS that [Clarissa] had been removed
from the care of [Ms. C.] and returned to the care of [Ms.
L.]. [Clarissa] has been in the care of [Ms. L.] since March
30, 2017.

16. On April 18, 2017, Durham County DSS
attended a meeting at Cascade at which [Anna] was
informed she would be discharged from the program due to
failure to meet curfew on April 17, 2017. Cascade stated
that they were willing to allow [Anna] the opportunity to
remain at Cascade until April 21, 2017 as long as she
followed the agency’s rules. However, she was discharged
from Cascade on April 21, 2017 due to continuously testing
positive for illegal substances.

17. On April 18, 2017, Durham DSS completed a

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kinship assessment with Ms. [L.], [Anna]’s former foster
mother. Due to tensions between [Anna] and [Ms. C.]
regarding [Clarissa]’s care, [Anna] requested that both
children be placed in the care of [Ms. L.]. [Clarissa] had
resided with [Ms. L.] for several months prior to staying
with [Ms. C.]. [Anna] has not provided any day-to-day care
or financial support for [Clarissa] on a continuous bas[i]s.
The kinship home assessment was approved by Durham
DSS.

18. On April 19, 2017, Durham DSS conducted a
Child and Family Team meeting (“CFT”), which [Anna]
attended. [Anna] admitted to Social Worker that she has
a history of major trauma as a child. She admits that she
has not properly addressed her mental health needs and
substance abuse issues. She continues to use illegal
substances and abuses alcohol.

19. [Anna]’s illegal substance abuse and lack of
mental health treatment substantially impact her ability
to parent her children.

20. After departing from Cascade, [Anna] lived
for about a month in the Super Eight Motel on Capital
Boulevard in Raleigh, and [Alice’s father] sometimes
stayed with her there. On or about May 17, 2017, she then
moved to an [“]extended stay motel” near Wake Forest
Road in Raleigh, where she presently resides.

21. Since leaving Cascade, [Anna] worked at UPS
for about a week or two. She quit that job because it was
“too much” for her. For the most part, [Alice’s father] pays
for her motel stay.

22. [Anna] has not enrolled in any parenting
class. She is not engaged in any mental health treatment
or substance abuse treatment program.

23. On May 17, 2017, Durham DSS filed a
supplemental petition in this matter and requested

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nonsecure custody, as the result of a series of conversations
that transpired between [Anna] and DSS staff members on
May 16, 2017.

24. On May 17, 2017, [Anna] tested positive for
marijuana and cocaine. [Alice’s father] tested positive for
marijuana, cocaine and PCP. At this court date, [Anna]
admitted that she would test positive for marijuana if she
was drug tested that same day.

25. [Anna] called Social Worker Martin. She
indicated that she did not want to be charged with
kidnapping, if she took her kids away from [Ms. L.]’s home.
The social worker questioned her as to her plans, and
[Anna] indicated that she wanted to go to New Jersey,
where she believed she could better access the services
needed to sustain recovery. [Anna] asked the social worker
what would be involved in placing the kids with [Alice’s
father]’s grandmother in New Jersey. The social worker
stated that the grandmother’s status as a relative would
first have to be confirmed through paternity testing for
[Alice’s father]. The social worker then informed [Anna]
that an ICPC request would have to be sent to New Jersey,
so that the local social service agency could investigate the
appropriateness of the grandmother’s home as a placement
for the children.

Respondent challenges, in part, Finding No. 25 to the extent it implies that

Anna wanted to move both children to New Jersey. He contends a social worker

testified that Anna intended to take only Alice — and not Clarissa — to stay with

relatives in New Jersey. The trial court’s remaining findings are unchallenged and

are therefore binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408

S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the trial

court, the finding is presumed to be supported by competent evidence and is binding

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on appeal.”). We need not resolve Respondent’s challenge to Finding No. 25 because

for the reasons set out below, we are satisfied that — even construing Finding No. 25

in the manner advocated by Respondent — the trial court’s adjudication of neglect

was proper.

Respondent’s primary argument is that not only did the trial court fail to make

an ultimate finding that Clarissa was at substantial risk of impairment but also that

the evidence of record would not have supported such a finding. Because Clarissa’s

needs were met while living with Ms. L., he contends, Clarissa was not a neglected

juvenile.

As this Court has previously stated, “[m]ost cases addressing the definition of

neglect arise in the context of termination of parental rights pursuant to N.C. Gen.

Stat. § 7B-1111(a)(1) . . . .” In re K.J.D., 203 N.C. App. 653, 659, 692 S.E.2d 437, 442

(2010). “The factual situation presented in a termination of parental rights case is

normally different from that presented by an adjudication case because in a

termination case, the child has usually been removed from the parent’s home a

substantial period of time before the filing of the petition for termination.” Id.

Conversely, “[a]n adjudication case normally arises immediately following the child’s

removal from the parent’s home.” Id.

The present appeal from an adjudication of neglect, however, presents the

unusual situation where a child had not been living with either of her parents for an

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extended period of time prior to the filing of a juvenile petition and was doing well in

her voluntary placement with a relative.

When, as in the present case, the child has been voluntarily
removed from the home prior to the filing of the petition,
the court should consider evidence of changed conditions in
light of the evidence of prior neglect and the probability of
a repetition of neglect. The determinative factors must be
the best interests of the child and the fitness of the parent
to care for the child at the time of the [adjudication]
proceeding.

In re H.L., __ N.C. App. __, __, 807 S.E.2d 685, 688 (2017) (internal citation and

quotation marks omitted). “Essentially, the trial court must consider the conditions

and the fitness of the parent to provide care at the time of the adjudication . . . .” Id.

at __, 807 S.E.2d at 688 (citation and quotation marks omitted).

We find instructive our decision in K.J.D. In that case, the minor child had

been living with his maternal grandmother for six months at the time DSS filed an

initial petition alleging that his mother had neglected him. The initial petition was

dismissed, and DSS filed a second petition nearly a year later. Approximately

eighteen months after the child was initially placed with his grandmother, an

adjudication hearing was held on the second petition. The trial court determined that

even though the child was in a stable placement at the time the second petition was

filed, he was nevertheless a neglected juvenile because his mother remained

incapable of providing him with proper care and supervision. K.J.D., 203 N.C. App.

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at 656, 692 S.E.2d at 441. On appeal, we affirmed the trial court’s adjudication of

neglect, stating as follows:

The court’s findings of fact show that respondent-mother
has been and remains unable to adequately provide for her
child’s physical and economic needs. She has been unable
to correct the conditions which led to the child’s kinship
placement with the maternal grandmother. She continues
to engage in assaultive behavior. She has not completed
counseling to address her anger issues or sought treatment
for her mental disorder. She does not have stable housing
and she does not have a job. The trial court found that
respondent-mother had failed “to correct the conditions
that led to the removal of the minor child from [her] care
for the past 16 to 18 months.” The Court also found that
“the minor child would be at substantial risk of harm if
either of his parents removed the child from [the]
placement [with the maternal grandmother.]” We conclude
these findings support a conclusion that the child is a
neglected juvenile.

Id. at 661, 692 S.E.2d at 444.

We recently affirmed the holding of K.J.D. in H.L. In H.L., the juvenile’s

parents had problems with domestic violence and substance abuse and entered into

a safety plan with DSS to place their daughter with her adult sister. Six months

later, DSS filed a juvenile petition alleging that the child was neglected because while

she was in her sister’s care both parents had submitted drug screens that tested

positive for methamphetamines. H.L., __ N.C. App. at __, 807 S.E.2d at 687. The

trial court adjudicated the child to be a neglected juvenile and awarded guardianship

to the child’s sister. Id. at __, 807 S.E.2d at 687. This Court followed the framework

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set out in K.J.D. and held that the trial court’s ultimate finding that the child was

neglected was supported because “respondent-father and [the child’s] mother had

failed to remedy the conditions which required [the child] to be placed with her sister

in a safety plan, such that they were unable to provide [the child] with proper care.”

Id. at __, 807 S.E.2d at 690.5

Here, Clarissa was voluntarily removed from Anna’s care and placed with Ms.

L. while DSS was in the process of filing its original petition. The trial court’s

unchallenged findings demonstrate that Clarissa was put in a kinship placement

with Ms. L. because of the inability of both of Clarissa’s parents to care for her.

Respondent was incarcerated, and Anna had issues related to “substance abuse,

mental health, unstable housing, prostitution . . . , and inappropriate

supervision . . . .”

Although the trial court failed to make an ultimate finding that Clarissa

suffered an impairment or was at substantial risk of impairment as a result of Anna’s

actions, we are satisfied that the evidence here was sufficient to support a finding

that Clarissa was at a substantial risk of impairment if she was returned to Anna’s

care. See Padgett, 156 N.C. App. at 648, 577 S.E.2d at 340 (“Where there is no finding

5 In his brief, Respondent cites In re B.P., __ N.C. App. __, 809 S.E.2d 914 (2018), in which this
Court reversed an adjudication of neglect as to a child who was in a stable placement at the time DSS
filed its neglect petition. However, the mother in B.P. had made significant improvements by the date
of the adjudication hearing in correcting the conditions that led to the child’s removal from her care.
Id. at __, 809 S.E.2d at 919. The same cannot be said for Clarissa’s parents in the present case.

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that the juvenile has been impaired or is at substantial risk of impairment, there is

no error if all the evidence supports such a finding.”).

The trial court’s findings make it abundantly clear that the conditions leading

to the placement of Clarissa outside of the home had not been corrected. At the time

of the adjudication hearing, Respondent was still incarcerated, and Anna had not (1)

successfully engaged in substance abuse treatment; (2) enrolled in mental health

treatment or parenting classes; or (3) obtained permanent employment. Thus, we

conclude that the evidence supported the adjudication of Clarissa as a neglected

juvenile under N.C. Gen. Stat. § 7B-101(15).

Conclusion

For the reasons stated above, we affirm the trial court’s 21 September and 2

October 2017 orders.6

AFFIRMED.

Judges DILLON and INMAN concur.

6 Although Respondent’s notice of appeal indicated that he was also challenging the trial
court’s Disposition Order, his appellate brief does not contain any argument as to the validity of that
order.

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