IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1028
Filed: 1 September 2020
Cumberland County, No. 19 JA 72
In the Matter of: V.M.
Appeal by respondent-mother from orders entered 22 May 2019 and 6 August
2019 by Judges Tiffany M. Whitfield and Cheri Siler-Mack, respectively, in
Cumberland County District Court. Heard in the Court of Appeals 10 June 2020.
Cumberland County Department of Social Services, by Michael A. Simmons,
for petitioner.
Benjamin J. Kull for respondent-mother.
Alston & Bird LLP, by Ryan P. Ethridge, for the Guardian ad Litem.
YOUNG, Judge.
Respondent-mother appeals from the trial court’s order adjudicating V.M.
(“Vinny”)1 neglected under N.C. Gen. Stat. § 7B-101(15) and ordering respondent-
mother and respondent-father (collectively, “respondent-parents”) to submit to
random drug screens. After careful review, we reverse and remand.
1 A pseudonym is used to protect the juvenile’s identity and for ease of reading.
IN RE: V.M.
Opinion of the Court
I. Background
This action arises out of a Cumberland County Department of Social Services
(“DSS”) report concerning Vinny, who was admitted to the hospital with a blood
alcohol level of 179 and diagnosed with acute alcohol intoxication. Respondent-
parents are the biological parents of Vinny, who was four months old at the time of
the incident at issue. The events leading up to the incident are as follows.
Respondent-mother is a stay-at-home mom and the primary caretaker of
Vinny. In January 2019, respondent-mother took Vinny with her to Atlanta, Georgia
for an aunt’s funeral. Respondent-father was unable to accompany them on the trip
due to a work conflict. Following the funeral service on Friday, 25 January 2019,
respondent-mother and other family members gathered at a cousin’s house, which
had a full bar. While there, some members of the family began drinking. Respondent-
mother and her brother, Domico, did not participate in the drinking, but were present
in the home while the drinking took place. At some point, some of the family members
who were drinking, including respondent-mother’s sister Selenia, transferred the
liquor into water bottles. Respondent-mother, Vinny, and Domico later spent the
night at an Airbnb with Selenia.
The next morning, the group returned to their cousin’s home to pick up their
grandmother, who was going to ride back to North Carolina with Domico, respondent-
mother, and Vinny. Before leaving, Domico grabbed some water bottles that he
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Opinion of the Court
believed were unopened from the kitchen counter of their cousin’s home. During the
car ride back to North Carolina, respondent-mother fed Vinny formula that she
prepared using one of the water bottles. Domico testified that throughout this process
he did not detect the smell of alcohol in the car. Vinny subsequently became fussy.
Despite respondent-mother’s attempts to console him, Vinny remained fussy even
after they arrived home. Throughout all relevant times, Vinny was primarily in the
care of respondent-mother.
Respondent-mother took Vinny to the hospital the next morning, where doctors
determined he had alcohol in his system and diagnosed him with acute alcohol
intoxication. After speaking with his sister about the situation, Domico smelled the
water bottle respondent-mother had used to prepare Vinny’s formula and detected an
odor of alcohol. Domico then realized he must have mistakenly grabbed one of the
water bottles containing liquor from their cousin’s house, which respondent-mother
later used to prepare Vinny’s formula. The matter was referred to DSS, and Vinny
was temporarily placed in the care of his paternal grandparents on 29 January 2019.
Respondent-parents cooperated with DSS and worked to satisfy the agency’s
requirements.
On 18 February 2019, DSS filed a juvenile petition alleging that Vinny was
neglected, dependent, and abused. DSS also made an ex parte request for non-secure
custody of Vinny. The trial court denied this request, with the requirement that
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IN RE: V.M.
Opinion of the Court
Vinny remain placed in the care of his paternal grandparents. On 22 May 2019, the
trial court adjudicated Vinny to be a neglected juvenile but dismissed the allegations
of abuse and dependency. The trial court also ordered that Vinny be returned to the
care of respondent-parents and required respondent-parents to submit to two random
drug screens. On 12 June 2019, the trial court held a full dispositional hearing. The
trial court found that there were no safety concerns with respondent-parents, and on
6 August 2019, ordered that Vinny remain in the home of respondent-parents. The
trial court further ordered that respondent-parents submit to additional random drug
screens, following their admission that if tested that day they would test positive for
marijuana. Respondent-mother timely filed notice of appeal on 5 September 2019.
II. Standard of Review
“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. “We review a trial court’s conclusions of law de novo.” In re J.R., 243
N.C. App. 309, 312, 778 S.E.2d 441, 443 (2015).
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IN RE: V.M.
Opinion of the Court
III. Analysis
In her first assignment of error, respondent-mother contends that the trial
court erred in adjudicating Vinny a neglected juvenile. We agree.
Pursuant to N.C. Gen. Stat. § 7B-101(15) (2019), a neglected juvenile is:
Any juvenile less than 18 years of age . . . whose parent,
guardian, custodian, or caretaker does not provide proper care,
supervision, or discipline; or who has been abandoned; or who
is not provided necessary medical care; or who is not provided
necessary remedial care; or who lives in an environment
injurious to the juvenile’s welfare . . . .
“In general, treatment of a child which falls below the normative standards imposed
upon parents by our society is considered neglectful.” In re Thompson, 64 N.C. App.
95, 99, 306 S.E.2d 792, 794 (1983). However, not every act of negligence on part of
the parent results in a neglected juvenile. In re Stumbo, 357 N.C. 279, 283, 582
S.E.2d 255, 258 (2003). “In order to adjudicate a juvenile neglected, our courts have
additionally ‘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.” ’ ” Id. (quoting In re Safriet, 112
N.C. App. 747, 752, 436 S.E.2d 898, 901-902 (1993)). Generally, North Carolina
courts have found neglect where “the conduct at issue constituted either severe or
dangerous conduct or a pattern of conduct either causing injury or potentially causing
injury to the juvenile.” Id.
A. Finding of Fact 16
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IN RE: V.M.
Opinion of the Court
In the trial court’s order, it states, “the Court, after reviewing the evidence,
record, testimony and arguments presented, makes the following findings by clear,
cogent and convincing evidence” and lists facts numbered one through twenty. Of
those twenty findings of fact numbers 16 and 18 are at issue. The trial court’s finding
of fact 16 states, in pertinent part, as follows:
a. Respondent Mother stated that the child was primarily
in her care on 1/25/19 and 1/26/19; however, the child
was in the presence of other adults during that time
frame. That by admission via testimony of the parties,
there was alcohol being placed in water bottles. That
the mother, along with the child, and at least two
additional adults traveled from the State of Georgia to
the State of North Carolina while preparing a bottle for
the minor child with a water bottle removed from the
previous overnight stay.
b. That the maternal uncle stated that upon returning to
the vehicle after the child was admitted to the hospital,
he retrieved a water bottle from the backseat, and
placing it to his nose, he could smell the odor of alcohol.
c. That Respondent Parents have made no attempts to
remove the child from the paternal grandparents’ care
and physical custody.
Respondent-mother concedes the majority of the substance of this finding.
Respondent-mother concedes that Vinny was primarily in her care; that alcohol was
placed into the bottles on Friday, 25 January 2019; that respondent-mother, her
brother, and their grandmother traveled from Georgia to North Carolina; and that
Domico, after Vinny was admitted to the hospital, discovered the smell of alcohol in
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IN RE: V.M.
Opinion of the Court
one of the bottles. Respondent-mother does take issue with particular details of these
findings – that it was not “the parties” but respondent-mother’s brother and sister
who testified; that the evidence only supported a determination that alcohol was
placed in bottles on Friday, 25 January 2019, and not any other day; that the evidence
did not support a determination that respondent-mother returned to North Carolina
with anyone other than Vinny, Domico, and her grandmother – but she does not
challenge the fundamental determinations raised therein.
We likewise hold that there was evidence to support the thrust of each of these
findings in turn. They are, ultimately, a factual recitation of the events of that day.
The issue is not with finding of fact 16, but with the conclusion of law derived
therefrom.
B. Finding of Fact 18
Respondent-mother contends that finding of fact 18 is actually a conclusion of
law. We agree.
As a general rule, “[t]he labels ‘findings of fact’ and ‘conclusions of law’
employed by the lower tribunal in a written order do not determine the nature of our
standard of review.” In re Estate of Sharpe, 258 N.C. App. 601, 605, 814 S.E.2d 595,
598 (2018). Thus, “[i]f the lower tribunal labels as a finding of fact what is in
substance a conclusion of law, we review that ‘finding’ as a conclusion de novo.” Id.
The trial court’s finding of fact 18 states, in pertinent part, that:
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IN RE: V.M.
Opinion of the Court
Based on the foregoing findings of fact, the Court finds that
the juvenile [Vinny] was a neglected juvenile, within the
meaning of N.C. Gen. Stat. § 7B-101(15), in that at the time
of the filing of the Petition, the juvenile did not receive
proper care, supervision, or discipline from the juvenile’s
parent, custodian, or caretaker and the juvenile lived in an
environment injurious to the juvenile’s welfare because
Respondent Mother allowed the child to be in an
environment in which alcohol was being poured into water
bottles and the juvenile later tested positive for a high level
of alcohol and was subsequently diagnosed with acute
alcohol intoxication. That the acute alcohol intoxication
occurred as a result of Respondent Mother using a water
bottle containing alcohol to make a bottle of formula for the
child. . . .
“The classification of a determination as either a finding of fact or a conclusion of law
is admittedly difficult. As a general rule, however, any determination requiring the
exercise of judgment, or the application of legal principles, is more properly classified
a conclusion of law.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)
(citations omitted). The first sentence of finding of fact 18 applies the facts of the case
to the statutory definition of “neglected juvenile” and, through that reasoning,
reaches a conclusion that Vinny is neglected. Consequently, this is more of a
conclusion of law rather than a finding of fact. Indeed, this Court has held that
determinations that a juvenile is neglected are “more properly designated conclusions
of law and we treat them as such for the purposes of . . . appeal.” Id.
As finding of fact 18, inasmuch as it determines Vinny’s status as a neglected
juvenile, is more properly considered a conclusion of law, we review it de novo, to
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IN RE: V.M.
Opinion of the Court
determine whether it is supported by the findings of fact. J.R., 243 N.C. App. at 312,
778 S.E.2d at 443. It is here that the trial court’s analysis falters.
The trial court did not find that respondent-mother knew, or even reasonably
could have discovered, the danger of alcohol in the bottles. The trial court did not
find that respondent-mother’s behavior fell “below the normative standards imposed
upon parents by our society.” Perhaps most glaringly, the trial court did not find that
Vinny suffered “some physical, mental, or emotional impairment,” or that there was
a substantial risk of the same.
Instead, the trial court summarily found that Vinny “did not receive proper
care, supervision, or discipline from [his] parent . . . and [that he] lived in an
environment injurious to [his] welfare” based solely on the fact that (1) Vinny was in
an environment where alcohol was being poured into water bottles, and (2) Vinny was
subsequently diagnosed with acute alcohol intoxication. In short, the trial court made
a leap of logic which it did not adequately explain, and which this Court does not
follow.
To be clear, we do not hold that the trial court could not have concluded that
Vinny was neglected. Had the court engaged in more detailed analysis, offered
additional factual findings, explained what steps respondent-mother could or should
have taken, determined that the danger was in some way foreseeable, or even just
offered more than a token conclusion, we might be able to uphold such a
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IN RE: V.M.
Opinion of the Court
determination. But the analysis in this case was cursory and conclusory, at best. The
findings, such as they are, support a determination that a tragic and unfortunate
accident occurred here – an accident which might have been preventable with the
benefit of hindsight, but which respondent-mother had no way of knowing would
occur, nor any means to prevent it, absent some form of precognition. The trial court’s
analysis is simply too cursory to be permitted to stand.
Upon our de novo review, we hold that the findings of fact in the trial court’s
order do not support its conclusion of law that Vinny is a neglected juvenile.
Accordingly, we remand this order to the trial court. On remand, the trial court shall
either make additional appropriate findings of fact, not inconsistent with this opinion,
to support its conclusion, or properly comport its conclusion to fit the findings it has
already made.
Because we reverse and remand the trial court’s order, we need not address
the remainder of respondent-mother’s arguments.
REVERSED AND REMANDED.
Judge DILLON concurs.
Judge ARROWOOD dissents in separate opinion.
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No. COA19-1028 – In re V.M.
ARROWOOD, Judge, dissenting.
I respectfully dissent from the majority’s holding reversing the trial court’s
adjudication of neglect. While the majority asserts the trial court’s findings of fact do
not support its conclusion of law that Vinny is a neglected juvenile, I would hold the
trial court did make sufficient findings to support its conclusion.
As the majority correctly notes, “[i]n general, treatment of a child which falls
below the normative standards imposed upon parents by our society is considered
neglectful.” In re Thompson, 64 N.C. App. 95, 99, 306 S.E.2d 792, 794 (1983). “In
order to adjudicate a juvenile neglected, our courts have additionally ‘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 Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255,
258 (2003) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-902
(1993)). Generally, North Carolina courts have found neglect where “the conduct at
issue constituted either severe or dangerous conduct or a pattern of conduct either
causing injury or potentially causing injury to the juvenile.” Id.
Here, in its finding of fact 18, the trial court found, in pertinent part, that:
Based on the foregoing findings of fact, the Court finds that
the juvenile [Vinny] was a neglected juvenile, within the
meaning of N.C. Gen. Stat. § 7B-101(15), in that at the time
of the filing of the Petition, the juvenile did not receive
proper care, supervision, or discipline from the juvenile’s
parent, custodian, or caretaker and the juvenile lived in an
environment injurious to the juvenile’s welfare because
IN RE V.M.
Arrowood, J., Dissent
Respondent Mother allowed the child to be in an
environment in which alcohol was being poured into water
bottles and the juvenile later tested positive for a high level
of alcohol and was subsequently diagnosed with acute
alcohol intoxication. That the acute alcohol intoxication
occurred as a result of Respondent Mother using a water
bottle containing alcohol to make a bottle of formula for the
child. During the time that the juvenile obtained alcohol
in his system, he was in the exclusive care of Respondent
Mother. . . .
The majority asserts that finding of fact 18 is more properly considered a conclusion
of law, and is thus subject to de novo review. “Under a de novo review, [this Court]
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.” In re A.K.D., 227 N.C. App. 58, 60, 745 S.E.2d 7, 8 (2013) (quotation
marks and citation omitted). Though the majority contends finding of fact 18 is not
supported by the trial court’s other findings, I disagree.
The trial court made several findings leading up to its finding of fact 18,
including the following:
15. That the Petitioner, the Guardian ad Litem,
Respondent Mother, and Respondent Father made
certain admissions of fact after having ample
opportunity to consult with their respective counsel.
That a written copy of those admissions was tendered
to the Court. That those admissions are as follows:
a. The Cumberland County Department of Social
Services (CCDSS) received a Child Protective
Services (CPS) referral on 01/27/2019
concerning the safety of the juvenile[].
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IN RE V.M.
Arrowood, J., Dissent
b. On 01/27/19, Respondent Mother took the child
to Cape Fear Valley Medical Center stating that
the child had been fussing a lot.
c. On 1/27/19, the child tested positive for alcohol;
his ethanol level was 242 mg/dl. The child was
tested a second time and his blood alcohol level
was 179. The child was diagnosed with acute
alcohol intoxication.
d. Respondent Mother stated that the child was
primarily in her care on 1/25/19 and 1/26/19.
....
16. That the Court made the additional finding of facts by
clear, cogent, and convincing evidence as it relates to
the verified Petition filed on February 18, 2019 and
sworn testimony provided before the Court on today’s
date:
d. Respondent Mother stated that the child was
primarily in her care on 1/25/19 and 1/26/19;
however, the child was in the presence of other
adults during that time frame. That by
admission via testimony of the parties, there was
alcohol being placed in water bottles. That the
mother, along with the child, and at least two
additional adults traveled from the State of
Georgia to the State of North Carolina while
preparing a bottle for the minor child with a
water bottle removed from the previous overnight
stay.
e. That the maternal uncle stated that upon
returning to the vehicle after the child was
admitted to the hospital, he retrieved a water
bottle from the backseat, and placing it to his
nose, he could smell the odor of alcohol.
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IN RE V.M.
Arrowood, J., Dissent
f. That Respondent Parents have made no attempts
to remove the child from the paternal
grandparents’ care and physical custody.
(emphasis in original). In finding of fact 18, the trial court summarized its findings
in findings of fact 15 and 16 and applied the law to those facts in order to reach its
determination that Vinny was a neglected juvenile. The majority acknowledges the
trial court’s finding of fact 16 is supported by the evidence. However, it then proceeds
to hold that finding of fact 18, which is based on finding of fact 16 and several of the
trial court’s other findings, is not supported by sufficient findings.
The majority appears to take issue with the fact that, in its view, the trial court
did not make certain findings, including that: (1) respondent-mother knew, or even
reasonably could have discovered, the danger of alcohol in the bottles; (2) respondent-
mother’s behavior fell “below the normative standards imposed upon parents by our
society[;]” and (3) Vinny suffered “some physical, mental, or emotional impairment,”
or that there was a substantial risk of same. The majority further insists that, “[h]ad
the court engaged in more detailed analysis, offered additional factual findings,
explained what steps respondent-mother could or should have taken, determined that
the danger was in some way foreseeable, or even just offered more than a token
conclusion, [it] might be able to uphold such a determination.” However, this Court
has made clear that, in determining whether a juvenile is neglected, a parent’s fault
or culpability is not a determinative fact. In re A.L.T., 241 N.C. App. 443, 451, 774
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IN RE V.M.
Arrowood, J., Dissent
S.E.2d 316, 321 (2015). In addition, contrary to the majority’s assertions, the trial
court’s findings make clear that respondent-mother’s oversight led to four-month old
Vinny needing to be hospitalized and treated for acute alcohol intoxication. The
evidence in the record also supports this.
Respondent-mother’s brother and sister both testified that family members,
including respondent-mother’s sister, were drinking liquor and pouring it into water
bottles on Friday during a family gathering at their cousin’s house. Respondent-
mother, who was taking care of Vinny, was also present at the gathering while these
activities were taking place. The next day, on the drive home from the environment
in which alcohol had been poured into water bottles, respondent-mother fed Vinny
formula she prepared using a water bottle taken from such environment. Due to
respondent-mother’s conduct, four-month old Vinny suffered some physical
impairment or injury, namely, acute alcohol intoxication. Notably, when respondent-
mother’s brother smelled the water bottle in question, he was able to detect the odor
of alcohol. Had respondent-mother been more attentive, she likely would have
noticed that the water bottle had already been tampered with and its contents
smelled like alcohol. Ultimately, this mistake “constituted either severe or dangerous
conduct” which “caus[ed] injury . . . to the juvenile[,]” supporting a finding of neglect.
In re Stumbo, 357 N.C. at 283, 582 S.E.2d at 258.
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IN RE V.M.
Arrowood, J., Dissent
In finding of fact 18, the trial court’s logical reasoning is clear as it applies the
law to the facts gleaned from its previous findings to determine that Vinny was a
neglected juvenile. I would thus hold that finding of fact 18 is supported by the
evidence and the trial court’s evidentiary findings, and would affirm the trial court’s
adjudication of neglect.
I would further hold that the trial court did not abuse its discretion in its
dispositional order. Respondent-mother asserts the trial court abused its discretion
when it ordered respondent-parents to submit to random drug screens and a
substance abuse assessment. Pursuant to N.C. Gen. Stat. § 7B-904(d1)(3) (2019),
“[a]t the dispositional hearing or a subsequent hearing, the court may order the
parent . . . [to] [t]ake appropriate steps to remedy conditions in the home that led to
or contributed to the juvenile’s adjudication.” The trial court may also within its
discretion order the parent 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.” N.C. Gen. Stat. § 7B-904(c). “For
a court to properly exercise the authority permitted by this provision, there must be
a nexus between the step ordered by the court and a condition that is found or alleged
to have led to or contributed to the adjudication.” In re T.N.G., 244 N.C. App. 398,
408, 781 S.E.2d 93, 101 (2015) (citation omitted). This includes “order[ing] services
which could aid ‘in both understanding and resolving the possible underlying causes’
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IN RE V.M.
Arrowood, J., Dissent
of the actions that contributed to the trial court’s removal [or adjudication].” Matter
of S.G., __ N.C. App. __, __, 835 S.E.2d 479, 486 (2019) (quoting In re A.R., 227 N.C.
App. 518, 522, 742 S.E.2d 629, 632-33 (2013)).
Though respondent-mother argues the trial court abused its discretion because
there was no evidence of a history of substance abuse or a drug-related parenting
problem, I disagree. The day after Vinny was diagnosed with acute alcohol
intoxication, respondent-parents tested positive for marijuana. Based on these facts,
the trial court in its adjudication order exercised its discretion to order respondent-
parents to submit to two random drug screens. Respondent-parents tested negative
for those two tests, but refused to submit to a third. At the full dispositional hearing,
respondent-parents admitted that if tested that day, they would test positive for
marijuana. DSS then requested custody of the juvenile based on respondent-parent’s
admissions to testing positive for illegal substances. The trial court denied the
motion; however, evidently sensing a problem with respondent-parents’ inability to
remain drug-free throughout the adjudication and disposition process, it pleaded with
respondent-parents to “[j]ust don’t smoke anymore for the next little bit,” so that their
case could be closed. Because respondent-parents admitted they would test positive
for marijuana, and in light of the adjudication of neglect involving use of another
intoxicant, I would hold the trial court’s order requiring respondent-parents to submit
to additional drug screens and another substance abuse assessment was not “so
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IN RE V.M.
Arrowood, J., Dissent
arbitrary that it could not have been the result of a reasoned decision.” In re T.N.G.,
244 N.C. App. at 408, 781 S.E.2d at 100 (citations omitted). I therefore respectfully
dissent.
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