                                     NO. COA14-79

                          NORTH CAROLINA COURT OF APPEALS

                                  Filed: 15 July 2014


IN THE MATTER OF:

    J.C.                                       Johnston County
    J.C.                                       Nos. 13 JA 101-02




    Appeal by respondent mother from orders entered 15 and 22

October    2013     by    Judge     Resson   Faircloth       in     Johnston   County

District Court.          Heard in the Court of Appeals 16 June 2014.


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

    Richard Croutharmel for respondent-appellant mother.

    Marie H. Mobley for guardian ad litem.


    ELMORE, Judge.


    Respondent       mother       appeals    from   the     trial    court’s   orders

adjudicating the juveniles neglected and dependent.                       Respondent

contends    that    the     trial   court    made     insufficient      findings   to

demonstrate it had obtained jurisdiction over the matter, made

insufficient       findings    to    support    its    order      adjudicating     the

juveniles    neglected        and    dependent,       and    improperly     required

respondent to pay the costs of her visitation.                        We affirm the
                                        -2-
adjudication of neglect and the disposition order, but remand

for correction of a clerical error as to the adjudication of

dependency.

      The   juveniles     were   born    in    2007.    Kentucky    authorities

became involved with the family in 2008 based on reports of

domestic violence between respondent and the juveniles’ father.

A Kentucky court granted the father custody of the juveniles.

The family moved to North Carolina in December of 2011, and

respondent    and   the    father       have   been    involved    in    domestic

violence and custody disputes in North Carolina since March of

2012.

      On 31 May 2013, the Johnston County Department of Social

Services (“DSS”) substantiated a report of neglect due to an

injurious environment, based on the parents’ unresolved conflict

and   its   negative    impact    on     the    juveniles.        That   conflict

included concerns that the juveniles had made false accusations

of sexual abuse against their father at respondent’s behest.                   On

27 June 2013, DSS filed petitions alleging that the juveniles

were neglected and dependent, and it filed amended petitions on

11 July 2013.

      The matter came on for an adjudication hearing on 29 August

2013.   At the conclusion of the hearing, the trial court made an
                                    -3-
oral finding that the juveniles were neglected.           The trial court

entered its initial adjudication order on 4 October 2013, and

entered an amended order on 22 October 2013.                  In the written

orders, the trial court adjudicated the juveniles neglected and

dependent.     The disposition hearing took place on 12 September

2013.     The trial court placed the juveniles in the custody of

their     paternal    grandmother    and      provided   respondent         with

supervised visitation to be held at a visitation center at her

expense.    Respondent appeals.

    In her first argument on appeal, respondent contends that

the trial court failed to make adequate findings to establish

its jurisdiction, in light of the prior case in Kentucky.                     We

disagree.

    “This Court’s determination of whether a trial court has

subject    matter    jurisdiction   is    a   question   of    law   that    is

reviewed on appeal de novo.”         Powers v. Wagner, 213 N.C. App.

353, 357, 716 S.E.2d 354, 357 (2011) (citation and quotation

omitted).       The    district     court     has   “exclusive,      original

jurisdiction over any case involving a juvenile who is alleged

to be abused, neglected, or dependent.”             N.C. Gen. Stat. § 7B-

200(a) (2013).       The jurisdictional requirements of the Uniform

Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) must
                                   -4-
also be satisfied for a court to have authority to adjudicate

petitions filed pursuant to the Juvenile Code.           In re Brode, 151

N.C. App. 690, 692-94, 566 S.E.2d 858, 860-61 (2002).

       Under the UCCJEA, a North Carolina court has jurisdiction

to make an initial child-custody determination if North Carolina

“is the home state of the child on the date of the commencement

of the proceeding[.]”      N.C. Gen. Stat. § 50A-201(a)(1) (2013).

A child’s “home state” is “the state in which a child lived with

a parent . . . for at least six consecutive months immediately

before the commencement of a child-custody proceeding.”                      N.C.

Gen.   Stat.   §   50A-102(7)   (2013).      Although    this        Court   has

recognized that making specific findings of fact related to a

trial court’s jurisdiction under N.C. Gen. Stat. § 50A-201(a)(1)

“would be the better practice,” the statute “states only that

certain    circumstances    must    exist,     not      that     the     court

specifically make findings to that effect.”          In re T.J.D.W., 182

N.C. App. 394, 397, 642 S.E.2d 471, 473, aff’d per curiam, 362

N.C. 84, 653 S.E.2d 143 (2007).      Therefore, so long as the trial

court asserts its jurisdiction and there is evidence to satisfy

the    statutory   requirements,   the    trial   court        has    properly

exercised subject matter jurisdiction.         Id. at 397, 642 S.E.2d

at 473-74.
                                      -5-
    In this case, the trial court made a finding that it had

jurisdiction to enter an adjudication order, and the evidence

shows that the juveniles have continuously resided with a parent

in North Carolina since December of 2011.                  Although, as we have

previously held, it would be the better practice for the trial

court to make more specific findings of fact to support its

jurisdiction, the evidence was sufficient to support the trial

court’s assertion of jurisdiction pursuant to N.C. Gen. Stat. §

50A-201(a)(1).       Accordingly, respondent’s first argument lacks

merit.

    Next, respondent contends that the trial court erred by

adjudicating the juveniles neglected and dependent.                       We first

address    respondent’s   argument     that       the    trial   court    erred   by

adjudicating the juveniles neglected.                   Respondent disputes the

trial     court’s   conclusion   that       the    effect     of    the   parents’

domestic violence and discord on the juveniles was sufficient to

support an adjudication of neglect.                 Respondent also disputes

the trial court’s finding that respondent failed to submit to

DSS’s    in-home    services.    We   do     not    agree    with    respondent’s

contentions.

    “The allegations in a petition alleging abuse, neglect, or

dependent shall be proved by clear and convincing evidence.”
                                       -6-
N.C. Gen. Stat. § 7B-805 (2013).             In reviewing an adjudication

order, this Court must 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 Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362,

365   (2000)     (citations    omitted).       “In    a   non-jury    neglect

adjudication, the trial court’s findings of fact supported by

clear and convincing competent evidence are deemed conclusive,

even where some evidence supports contrary findings.”                  In re

Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).

      N.C. Gen. Stat. § 7B-101, in part,               defines a neglected

juvenile as     “[a] juvenile who does not            receive proper care,

supervision, or discipline from the juvenile’s parent” or “who

lives in an environment injurious to the juvenile’s welfare[.]”

N.C. Gen. Stat. § 7B-101(15) (2013).                 A parent’s refusal to

cooperate with DSS’s attempts to offer services                  and a “long

standing” and “enduring” history of domestic violence between

the parents are factors that support an adjudication of neglect.

In re B.M., 183 N.C. App. 84, 89, 643 S.E.2d 644, 647 (2007).

      Here,    the   trial   court’s    findings     of   fact   support   its

conclusion that the juveniles were neglected.               The trial court

found that the parents’ history of domestic violence dated back
                                        -7-
to the initial investigation in Kentucky, that the juveniles

were aware of the violence and domestic discord, and that a

Child and Family Evaluation indicated that the parents were not

able to parent the juveniles due to “their continued conflicts

with   each    other      and   the   impact   the    conflicts       have   on   the

children.”     Specifically, the trial court found:

              16. [T]he children were negatively impacted
              by witnessing the parents’ domestic discord
              and that it caused the children emotional
              stress.   The Court further finds that the
              children were put in the middle of the
              parents’ dispute, which also caused stress
              upon the children.     The Court is further
              concerned about the children being coached
              to   make  allegations   in   an effort  to
              circumvent the domestic action.

In addition, the trial court found that respondent refused to

develop an in-home services agreement with DSS to address the

identified issues.

       Contrary to respondent’s contentions, these findings are

supported      by   the     evidence    introduced         at   the     adjudication

hearing, specifically the testimony of a social worker, and in

turn support the trial court’s conclusion that the juveniles

were neglected.        Respondent points to her own testimony that she

only “hesitated” in response to DSS’s efforts to implement in-

home   services,     but    the   trial   court      was    free   to    weigh    that

testimony against the social worker’s contradictory testimony
                                           -8-
and make a finding adopting one point of view.                      Accordingly, we

hold that the evidence and the trial court’s findings of fact

support the adjudication of neglect.

      Next, as respondent correctly points out, at the hearing

the   trial       court    orally     concluded        that   the   juveniles      were

neglected, but both the original and amended adjudication orders

contain conclusions, made by checking boxes on each of the pre-

printed     portions       of   the      orders,    that      the   juveniles      were

neglected and        dependent.          We believe that the trial court’s

checking of the box for dependency represents a clerical error.

      “A   clerical       error     is    an   error    resulting    from     a   minor

mistake     or     inadvertence,         especially     in    writing   or     copying

something on the record, and not from judicial reasoning or

determination.”           State v. Jones, ___ N.C. App. ___, ___, 736

S.E.2d     634,    637    (2013)      (citations       and    quotations     omitted).

“When, on appeal, a clerical error is discovered in the trial

court’s judgment or order, it is appropriate to remand the case

to the trial court for correction because of the importance that

the record ‘speak the truth.’”                   State v. Smith, 188 N.C. App.

842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted).

      In this case, although DSS filed petitions alleging that

the juveniles were both neglected and dependent, it only argued
                                              -9-
that they were neglected at the adjudication hearing.                           The trial

court orally concluded that the juveniles were neglected and

made findings of fact supporting that conclusion, but made none

to support a conclusion that they were dependent.                         Accordingly,

it appears that the “dependent” box on the adjudication form was

inadvertently checked, and the matter should be remanded for

entry   of    a   new      adjudication          order    that   reflects   the     trial

court’s conclusion that the juveniles were neglected, but not

dependent.

    Finally, respondent contends that the trial court erred by

ordering her to pay the costs of her supervised visitation.                            We

disagree.

    In 2013, the General Assembly enacted N.C. Gen. Stat. § 7B-

905.1   (2013),      which       sets      out    the    requirements     for    findings

regarding visitation in abuse, neglect, and dependency cases.1

Under   the    new      statute,       a   disposition       order   that   removes     a

juvenile from a parent’s custody “shall provide for appropriate

visitation    as     may    be    in    the      best    interests   of   the    juvenile

1
  Formerly, visitation was addressed in the disposition statute,
N.C. Gen. Stat. § 7B-905(c) (2011).        Section 7B-905.1 was
effective 1 October 2013, and applies to actions “filed or
pending on or after that date.”       2013 N.C. ALS 129.     The
disposition order in this matter was entered 15 October 2013.
Therefore, the matter was pending as of the effective date of
the new statute, and we must review the disposition order under
the terms of the new statute.
                                     -10-
consistent with the juvenile’s health and safety.”                  N.C. Gen.

Stat.   §   7B-905.1(a)    (2013).     The    new   statute     describes    the

findings the trial court must make defining the conditions of

visitation when a child is placed with a relative, as is the

case here:

            (c) If the juvenile is placed or continued
            in the custody or guardianship of a relative
            or   other   suitable   person,  any   order
            providing for visitation shall specify the
            minimum frequency and length of the visits
            and whether the visits shall be supervised.
            The    court   may    authorize   additional
            visitation as agreed upon by the respondent
            and custodian or guardian.

N.C. Gen. Stat. § 7B-905.1(c) (2013).             The terms of the statute

are consistent with our case law interpreting the visitation

findings required by       N.C. Gen. Stat. § 7B-905(c), the prior

statute.     See In re J.P., ___ N.C. App. ___, ___, 750 S.E.2d

543, 547 (2013) (holding that a disposition order must, at a

minimum, set out the time, place, and conditions of visitation).

    In this case, the trial court made a finding that squarely

addresses    all   three   requirements      of   N.C.   Gen.    Stat.   §   7B-

905.1(c):     “[Respondent] is to have a supervised visit every

other week for one hour via a supervised visitation center, at

her expense.”      Respondent does not challenge the sufficiency of

this finding as to the statutory requirements and concedes that
                                       -11-
the trial court made findings that support its decision that

supervised visitation was in the juveniles’ best interests under

the circumstances.

      Instead of challenging the need for supervised visitation

or the trial court’s findings, respondent first contends that

the Juvenile Code does not permit the trial court to order her

to pay the cost of supervised visitation.                       When an argument

presents an issue of statutory interpretation, full review is

appropriate,     and    the    trial    court’s     conclusions      of    law     are

reviewed de novo.       Romulus v. Romulus, 216 N.C. App. 28, 32, 715

S.E.2d 889, 892 (2011) (citations omitted).                     “‘If the language

of the statute is clear, this Court must implement the statute

according   to   the    plain    meaning     of   its     terms.’”       Whitman   v.

Kiger, 139 N.C. App. 44, 46, 533 S.E.2d 807, 808 (2000), aff’d

per   curiam,    353    N.C.    360,   543     S.E.2d     476   (2001)    (citation

omitted).

      Here, respondent’s argument is contradicted by the plain

language of the statute, which provides:                  “The court may specify

in    the   order      conditions      under      which     visitation      may    be

suspended.”      N.C. Gen. Stat. § 7B-905.1(a).                 Thus, in the best

interests of the juvenile, the trial court has the authority to

set conditions for visitation, as the trial court did in this
                                         -12-
case by requiring respondent to pay the costs of visitation.                             We

also note that other sections of the Juvenile Code, including

N.C. Gen. Stat. § 7B-903 and -904, permit the trial court to

impose costs on the parents of a juvenile adjudicated abused,

neglected,     or     dependent.          Accordingly,           we     disagree        with

respondent’s        contention     that       the     Juvenile         Code   does       not

authorize the trial court to order her to pay the costs of

supervised visitation.

    Next, respondent contends the trial court erred by ordering

her to pay the costs of supervised visitation without making any

findings    that     she   was   able    to    do    so.      Respondent         cites    no

authority    to     support      her    assertion      that      such    findings        are

required     pursuant      to    N.C.    Gen.       Stat.   §    7B-905.1,        or     its

predecessor, N.C. Gen. Stat. § 7B-905(c).                       Instead, respondent

relies on case law interpreting other statutes, including N.C.

Gen. Stat. § 7B-904 and N.C. Gen. Stat. § 50-13.4, to support

her argument.       See, e.g., In re W.V., 204 N.C. App. 290, 296-97,

693 S.E.2d 383, 388 (2010) (holding that the trial court must

make findings that a parent is able to pay a reasonable portion

of the cost of foster care before ordering her to do so).

    We      find     respondent’s        argument      on       this     point     to    be

unpersuasive.        The section of the Juvenile Code cited in In re
                                               -13-
W.V.    specifically        instructs          courts      to    consider      the    parents’

ability to pay.           See N.C. Gen. Stat. § 7B-904(d) (providing that

the trial court may order a parent to pay support “if the court

finds    that    the      parent     is    able       to    do    so”).      This     specific

directive       is    significant         in   interpreting            the   intent    of   the

legislature          in   enacting    the       statute,         and   there    is    no    such

statutory instruction as to the costs of supervised visitation

in the recently enacted N.C. Gen. Stat. § 7B-905.1(c).                                Further,

the terms of the disposition order in this case account for a

90-day review hearing, and N.C. Gen. Stat. § 7B-905.1(d) (2013)

specifically authorizes all parties to “file a motion for review

of any visitation plan entered pursuant to this section.”                                   N.C.

Gen. Stat. § 7B-905.1(d).

Thus, respondent has ample opportunity to present evidence of

her inability to pay the cost of supervised visitation and have

the     visitation         plan      modified,             should      the     need     arise.

Accordingly, we affirm the visitation portion of the disposition

order.

       In sum, we affirm the trial court’s adjudication of neglect

and the disposition order, but remand the matter for correction

of clerical error in the adjudication order.

       Affirmed, in part; remanded, in part.
                         -14-
Chief Judge MARTIN concurs.

Judge HUNTER, Robert N., concurs in part and dissents in

part            by              separate        opinion.
                                    NO. COA14-79

                         NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014


IN THE MATTER OF:

    J.C.                                         Johnston County
    J.C.                                         Nos. 13 JA 101–02



    HUNTER, JR., Robert             N.,    Judge,       concurring       in     part   and
    dissenting in part.


    Though I agree with the majority’s decision to affirm the

trial    court’s     adjudication         of    neglect       and   to    remand       for

correction      of   a   clerical     error       as    to    the   adjudication        of

dependency,     I    cannot   agree    with       the    majority’s       decision      to

affirm    the    visitation      portion         of     the    disposition        order.

Pursuant to N.C. Gen. Stat. § 7B-905.1(a) (2013), the trial

court should consider a parent’s ability to pay before requiring

the parent to pay supervised visitation costs.                           Accordingly,

because the court below ordered respondent to pay the costs of

supervised visitation without making any findings that she was

able to do so, I respectfully dissent from the majority on this

issue.

    The potential consequences of failing to pay the costs of

supervised visitation includes having visitation suspended, a

condition    which,      if   uncured,         could    ultimately       lead    to    the
                                       -2-
termination of parental rights.                This Court has consistently

held that a parent’s poverty, alone, should not be grounds for

termination of parental rights.            See In re T.D.P., 164 N.C. App.

287, 290–91, 595 S.E.2d 735, 738 (2004), aff’d per curiam, 359

N.C. 405, 610 S.E.2d 199 (2005).              Denying visitation to a poor

parent    who   was   required,      but   unable,     to    pay    the     costs    of

visitation      conditions    an     important       constitutional        right     on

wealth.    As judges, we have a duty to construe statutes so that

their application would not violate either the Constitution of

North Carolina or the United States Constitution.                         See, e.g.,

Appeal of Arcadia Dairy Farms, Inc., 289 N.C. 456, 465, 223

S.E.2d 323, 328 (1976) (“If a statute is reasonably susceptible

of two constructions, one of which will raise a serious question

as   to   its   constitutionality       and    the    other       will    avoid    such

question, it is well settled that the courts should construe the

statute    so    as    to    avoid     the     constitutional            question.”).

Requiring the trial court to make findings of fact addressing a

parent’s ability to pay before ordering the parent to pay the

costs      of     supervised         visitation        would        obviate         any

unconstitutional result.

      Accordingly,     because     N.C.      Gen.    Stat.    §    7B-905.1(a)       is

silent as to whether the trial court must make the findings at
                                           -3-
issue,   and    because        the    majority’s   holding     could   lead   to

undesirable         outcomes         for    poverty-stricken     parents,      I

respectfully dissent.          I would remand the disposition order for

further findings of fact addressing respondent’s ability to pay

the   costs    of    supervised       visitation   before   entering   such   an

order.
