An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1270
                           NORTH CAROLINA COURT OF APPEALS

                                    Filed: 6 May 2014




IN THE MATTER OF:                                  Guilford County
                                                   No. 12 JA 532
K.F.



       Appeal    by    respondent-mother            and    respondent-father     from

order   entered       30   August    2013    by    Judge    H.   Thomas   Jarrell   in

Guilford County District Court.                  Heard in the Court of Appeals 7

April 2014.


       Mercedes O. Chut for petitioner-appellee Guilford County
       Department of Social Services.

       Robert W. Ewing for respondent-appellant mother.

       Michael E. Casterline for respondent-appellant father.

       Donna Michelle Wright for guardian ad litem.


       HUNTER, Robert C., Judge.


       Respondent-mother         and        respondent-father        (collectively,

“respondents”)        appeal     from       an    order    concluding     that   K.F.
                                    -2-
(“Kendrick”)1 was an abused, neglected, and dependent juvenile.

After careful review, we affirm in part and reverse in part.

                               Background

     On   or   about   28    November     2012,   the    Guilford   County

Department of Social Services (“DSS”) took              fourteen-month-old

Kendrick into nonsecure custody and filed a juvenile petition

alleging that he was        abused, neglected, and dependent.          The

petition alleged that respondent-father had confessed to killing

Kendrick’s infant brother, Keith,         on 27   November 2012.       Law

enforcement officers responded to the home, and also noted that

Kendrick had a bruise on his abdomen, had a diaper rash that was

bleeding, and appeared to be dehydrated.

     The trial court conducted a hearing on 1 August 2013 and

entered an order on 30 August 2013 concluding that Kendrick was

an   abused,   neglected,     and   dependent     juvenile    within   the

definition of N.C. Gen. Stat. § 7B-101(1), (9), and (15).              The

trial court made the following pertinent findings of fact in the

adjudicatory portion of its order:

          8.    The juvenile’s infant sibling, [Keith],
                . . . was killed by the juvenile’s
                father[.]            [Respondent-father]
                confessed to killing [Keith] to High
                Point   Police.     [Respondent-father]

1
  Pseudonyms are used to protect the identity of the juveniles
involved and for ease of reading.
                                      -3-
                 indicated that he “snapped” around 5:00
                 a.m. and reached in and strangled the
                 baby and began hitting the baby with
                 his   fists.      The  autopsy   report
                 indicated that [Keith] died as a result
                 of blunt force trauma to the head and
                 abdomen.

          9.     The mother, [], was also in the bedroom
                 at the time the infant was killed.
                 Neither parent called 911 until after
                 3:00 p.m.     Both the mother and the
                 father have been indicted with First
                 Degree Murder in the death of [Keith]
                 and are currently in the custody of the
                 Guilford County Jail.

          10.    On the night of the murder, [Kendrick]
                 was left in a car seat from 9:00 p.m.
                 until 1:00 p.m. the following day.
                 When officers arrived at the house,
                 [Kendrick]   was    bleeding from  his
                 buttocks, had several bruises on his
                 abdomen, and appeared dehydrated.  The
                 bleeding appeared to be the result of
                 severe diaper rash.

    In the dispositional portion of the order, the trial court

maintained     custody       of   Kendrick     with     DSS,   concluded     that

reunification    efforts      would   be     futile    and   inconsistent    with

Kendrick’s safety and need for a safe, permanent home within a

reasonable period of time, and changed the permanent plan for

Kendrick to adoption.         Respondents timely appealed.

                                   Discussion

    On   appeal,      both    respondents     challenge      the   trial   court’s

adjudication     of      dependency,         and      respondent-mother      also
                                      -4-
challenges the adjudication of abuse.               “The role of this Court

in reviewing a trial court’s adjudication . . . 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) (internal quotation

marks omitted), 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.     Neither respondent challenges

any   of   the   trial   court’s   findings    of    fact.      Therefore,    the

findings are binding on appeal.             See In re M.D., 200 N.C. App.

35, 43, 682 S.E.2d 780, 785 (2009).

                                      I.

      First, we turn to respondents’ arguments that the trial

court’s    adjudication    of     dependency   is     not    supported   by   its

findings    of   fact.      Our    juvenile    code    defines    a   dependent

juvenile as one “in need of assistance or placement because the

juvenile has no parent, guardian, or custodian responsible for

the juvenile’s care or supervision or whose parent, guardian, or

custodian is unable to provide for the care or supervision and

lacks an appropriate alternative child care arrangement.”                     N.C.
                                        -5-
Gen.    Stat.    §   7B-101(9)    (2011).        In    determining     whether    a

juvenile is dependent, the trial court is required to “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).       “Findings of fact addressing both prongs must

be made before a juvenile may be adjudicated as dependent, and

the    court’s   failure    to   make    these    findings      will   result    in

reversal of the court.”          In re B.M., 183 N.C. App. 84, 90, 643

S.E.2d 644, 648 (2007).          Respondents both argue that the trial

court failed to make findings of fact establishing that they

lacked an alternative child care arrangement.                  Respondent-mother

additionally argues that the court failed to make findings of

fact   establishing     that     she   was    unable    to   provide     care    and

supervision for Kendrick.

       We agree with respondents’ argument that the trial court

failed to make findings of fact regarding the availability of an

alternative child care arrangement.              None of the trial court’s

adjudicatory     findings   of    fact    addresses     this    prong,    and    DSS

failed to present any evidence on it at the hearing.                      Yet, at

the conclusion of the adjudicatory portion of the hearing, and

in the order’s conclusions of law, the trial court concluded
                                              -6-
that DSS proved abuse, neglect, and dependency by clear and

convincing evidence.             Without the necessary findings in support

of it, this conclusion is in error.                              See id. (reversing the

trial   court’s         order       where    it   failed          to    make   any     findings

regarding         the     availability            of        alternative            child        care

arrangements).

    DSS      and    the       GAL    argue    that         the     second      prong       of    the

dependency ground is supported by dispositional finding of fact

number 17, in which the trial court found that “[t]here are no

known   or    suitable         relatives      with         whom    [Kendrick]         could      be

placed[.]”        We disagree.         While the trial court did touch on the

availability       of    alternative         child         care    arrangements        in       this

finding,     it    was    a     dispositional          finding         of   fact    and    cannot

support the trial court’s adjudication for several reasons.

    To begin, a proceeding to adjudicate a juvenile neglected,

abused,      or    dependent          involves         a     two-stage         process:          the

adjudication stage governed by N.C. Gen. Stat. § 7B-805 and the

disposition stage governed by N.C. Gen. Stat. § 7B-901.                                    See In

re O.W., 164 N.C. App. 699, 701, 596 S.E.2d 851, 853 (2004).

Although this Court has held there is no requirement that the

two hearings be conducted at two separate times, see id., the

trial court is required to apply different standards of proof at
                                              -7-
the    two    stages.           Id.     At    the   adjudication      stage,    “[t]he

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   (2011).        However,    the

dispositional hearing “may be informal,” the court “may consider

any evidence, including hearsay evidence . . . that the court

finds to be relevant, reliable, and necessary to determine the

needs of the juvenile and the most appropriate disposition,” and

the        court’s     placement        determination      at        disposition     is

discretionary.          N.C. Gen. Stat. § 7B-901 (2011); see O.W., 164

N.C. App. at 701, 596 S.E.2d at 853.                      Thus, a dispositional

finding of fact does not satisfy the statutory requirement that

the adjudication order “contain appropriate findings of fact and

conclusions of law.”             N.C. Gen. Stat. § 7B–807(b) (2011).

       Furthermore, the nature of the trial court’s hearing in

this particular matter makes it difficult for this Court to

simply       “relabel”      a    dispositional      finding     of    fact,    as   DSS

suggests we do.             Only one DSS social worker testified at the

adjudicatory hearing, and her testimony did not address the lack

of    an    alternative      child     care    arrangement.      Nonetheless,       the

trial       court     adjudicated        Kendrick     neglected,        abused,     and

dependent.       The trial court then proceeded to disposition, where
                                           -8-
the GAL and another DSS social worker testified.                     Again, none of

the    testimony      addressed     lack     of   an      alternative   child       care

arrangement.         At the conclusion of the hearing, the trial court

adopted DSS’s court summary; however, the court summary was for

dispositional purposes, and it is not clear that the trial court

admitted      it    into    evidence.       Based    on    the    foregoing,    it   is

apparent      that    the   trial   court    adjudicated         Kendrick    dependent

without considering any evidence pertaining to the availability

of an alternative child care arrangement.                        And, to the extent

that the trial court considered any such evidence, the incorrect

standard of proof was employed for the purpose of adjudicating

Kendrick dependent.

       Based on the foregoing, we are compelled to reverse the

trial court’s adjudication of dependency and remand for further

proceedings.         See In re K.D., 178 N.C. App. 322, 329, 631 S.E.2d

150,    155        (2006)    (“[T]he    trial       court’s       language     in    the

adjudication order tracks the first prong of the definition of

dependency, but ignores the second.                    We, therefore, reverse as

to K.D.’s dependency, and remand to the trial court for further

findings as to whether K.D. lacks ‘an appropriate alternative

child care arrangement.’”).                Because we reverse based on the

lack of findings pertaining to the second prong of dependency,
                                            -9-
we need not address respondent-mother’s challenge to the first

prong.

                                            II.

       Next,     we   turn     to    respondent-mother’s           argument        that   the

trial    court    erred      in     adjudicating     Kendrick        to    be     an   abused

juvenile.        Our juvenile code defines an abused juvenile as,

inter alia, “[a]ny juvenile less than 18 years of age whose

parent . . . [i]nflicts or allows to be inflicted upon the

juvenile    a    serious       physical     injury      by   other    than       accidental

means” or “[c]reates or allows to be created a substantial risk

of    serious     physical        injury    to    the    juvenile         by    other     than

accidental       means[.]”          N.C.    Gen.     Stat.    §    7B-101(1)(a),           (b)

(2011).     Respondent-mother argues that the only evidence of any

alleged abuse against Kendrick is the fact that he was left in a

car seat for sixteen hours.                     Respondent-mother contends that

this does not amount to serious physical injury, and, therefore,

the   evidence        cannot      sustain   a     conclusion       that        Kendrick   was

abused.

       Respondent-mother’s           argument      fails     for     several       reasons.

First, we note that N.C. Gen. Stat. § 7B-101(1) does not define

“serious physical injury.”              And, we have stated that “the nature

of an injury is dependent upon the facts of each case and, based
                                               -10-
on the evidence before us in [each] case.”                                  In re L.T.R., 181

N.C.    App.    376,     383,      639    S.E.2d       122,       126       (2007).         Second,

respondent-mother           appears        to     overlook          the       fact     that      the

statutory      definition         of     abuse    under       N.C.      Gen.     Stat.       §    7B-

101(1)(b)       does     not      require        actual           injury.            Under       this

subsection, “a substantial risk of serious physical injury” is

sufficient.          N.C. Gen. Stat. § 7B-101(1)(b) (emphasis added).

This Court has sustained an adjudication of abuse where the

parent was aware of the existence of a risk to the child but

failed    to     “take      the    necessary          steps       to    protect       the     minor

[child].”       In re M.G., 187 N.C. App. 536, 549, 653 S.E.2d 581,

589 (2007) (internal quotation marks omitted), rev’d in part on

other grounds, 363 N.C. 570, 681 S.E.2d 290 (2009).                                         Indeed,

DSS’s    petition      alleges          abuse    based       on     substantial         risk      of

physical injury.

       After    reviewing         the    record,       we    conclude         that     the    trial

court’s findings were sufficient to establish that respondent-

mother, at minimum, subjected Kendrick to substantial risk of

physical injury.         The findings establish that fourteen-month-old

Kendrick       was   left    in     a    car     seat       for    sixteen      hours,        which

resulted in bruising to Kendrick’s abdomen.                                 During this time,

respondents      failed      to    change        his    diaper         or    feed     him,    which
                                       -11-
resulted in severe diaper rash and dehydration.                   In fact, his

diaper rash was so severe that Kendrick’s bottom was bleeding.

Based on the foregoing, we hold that the trial court did not err

in concluding that Kendrick was an abused juvenile pursuant to

N.C. Gen. Stat. § 7B-101(1).

                                 Conclusion

    Based      on   the   foregoing    reasons,   we     affirm   in   part   and

reverse   in   part   the   trial     court’s   order,    and   we   remand   for

further proceedings as to dependency.



    AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

    Judges GEER and McCULLOUGH concur.

    Report per Rule 30(e).
