An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1414
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


IN THE MATTER OF:                             Randolph County
                                              Nos. 10 JA 34, 13 JA 05

K.M.C. and H.D.C., III1
TWO MINOR CHILDREN.




      Appeal by Respondent-parents from order entered 7 October

2013 by Judge Scott C. Etheridge in Randolph County District

Court.    Heard in the Court of Appeals 5 May 2014.


      Erica Glass for Petitioner Randolph County Department of
      Social Services.

      Sydney Batch for Respondent-mother.

      Richard Croutharmel for Respondent-father.

      Ellis & Winters LLP, by Lenor Marquis Segal, for Guardian
      ad Litem.


      STEPHENS, Judge.


                    Factual and Procedural Background



1
  We use initials and pseudonyms in this opinion to protect the
juveniles’ identities and for ease of reading.
                                          -2-
       Respondent-parents appeal from an order adjudicating their

two     children,       K.M.C.     (“Kim”)      and    H.D.C.,      III     (“Henry”)

(collectively,         “the     juveniles”),    as     neglected    and     dependent

juveniles.      Kim was born in January 2010, and Henry was born in

September 2011.          In October 2012, Respondent-parents, Kim, and

Henry were evicted from their home in Asheboro.                           In December

2012,    they    moved     into    the   home    of    the   juveniles’      paternal

grandmother.           Shortly    thereafter,    Respondent-father’s          younger

brother, J.C., also moved into the paternal grandmother’s home.2

In October 2009, D.H., the younger half-brother of Respondent-

father, had been adjudicated a dependent juvenile based in part

on    J.C.’s    sexual    molestation      of   D.H.      The   sexual     abuse   had

occurred       while     D.H.     and    J.C.   resided      with    the     paternal

grandmother (the mother of both boys).3                   D.H. has also alleged

sexual abuse by Respondent-father.




2
  Some of the evidence in the record suggests that J.C. lived in
a tent or trailer on the grounds of the paternal grandmother’s
home.
3
  D.H. was born in March 1996. It appears that J.C. was born in
1992.   Thus, both D.H. and J.C. were minors during the period
when the abuse occurred.
                                         -3-
    On      3      January    2013,      DSS       filed     petitions4     seeking

adjudications that Kim and Henry were neglected and dependent

because (1) the juveniles lacked stable and appropriate housing,

(2) Respondent-father had untreated anger management issues, and

(3) Respondent-parents both had untreated mental health issues,

a history of domestic violence, and no appropriate alternative

child care arrangement.         The court placed the juveniles in the

nonsecure    custody    of    DSS   on      that   date.      Respondent-parents

remained in the paternal grandmother’s home until early June

2013 when they moved into another residence.

    On 4 September 2013, the district court held an evidentiary

hearing and, on 7 October 2013, entered a combined adjudication

and disposition order, concluding that (1) Kim and Henry were

dependent and neglected juveniles, see N.C. Gen. Stat. § 7B-

101(9),     (15)    (2013),   and     (2)      removal     from   the   custody    of

Respondent-parents was in the juveniles’ best interest.                           The

court placed Kim and Henry in the custody of DSS and allowed

Respondent-parents supervised visitation for a minimum of one



4
  On 17 March 2010, the Randolph County Department of Social
Services (“DSS”) had filed a petition alleging that Kim was
neglected and dependent. Another petition in the case was filed
on 9 June 2010, alleging Kim was neglected and dependent. After
a hearing on the March 2010 petition, the court concluded that
Kim was not neglected or dependent, and dismissed that petition.
DSS then voluntarily dismissed the June 2010 petition.
                                      -4-
hour per week.     The court also ordered, inter alia, Respondent-

parents to submit to random drug screens and follow through with

recommended treatment in the event of a positive result.                  In

addition, the court ordered Respondent-father to complete a sex

offender     assessment    and     follow   through   with   any   resulting

recommendations.    Respondent-parents appeal.



           Rule 9(b)(5) Supplement to the Record on Appeal

    On 24 February 2014, DSS and the Guardian ad Litem filed a

joint supplement to the printed record on appeal, consisting of

four consolidated orders of adjudication and disposition entered

between January 2010 and October 2013 (“the supplement orders”).

Respondent-parents filed objections to the supplement and moved

to strike it.       Those motions were referred to this panel in

March 2014.

    The supplement orders concern four minor children of J.C.,5

all of whom have been removed from his custody and adjudicated

dependent,     abused,    and/or     neglected.       At   the   adjudication

5
  In his testimony, Respondent-father referred to J.C. as “my
brother,”   although  the  “Joint  Response  by   Appellees   to
Respondent-Appellant   Father’s   Objection   to   the    Record
Supplement” refers to J.C. as “Respondent-Appellant’s Father’s
brother[.]”    However, every other reference in the record
indicates that J.C. is Respondent-father’s brother, rather than
his uncle.
                                        -5-
hearing in this matter, the attorney for DSS asked the court to

take judicial notice of the supplement orders.                      Contrary to the

assertions    of    Respondent-parents,         there    was    no    objection    by

either of their attorneys when the court agreed to take judicial

notice of the supplement orders.6             A social worker from DSS then

testified about the reasons for the removals and adjudications

of   J.C.’s     children.        Although       nothing        in    the   combined

adjudication and disposition order regarding Kim and Henry that

is the subject of this appeal references the supplement orders

and they are thus irrelevant to our resolution of this appeal,

they were part of the evidence before the district court at the

hearing.      Accordingly, we deny Respondent-parents’ motions to

strike.

                                  Discussion

     Respondent-parents         argue    that    (1)     all    or     portions    of

subparagraphs a, d, e, g, h, i, and j of the district court’s

finding of fact 5 are not supported by clear and convincing

evidence, (2) the conclusions of law that Kim and Henry are

dependent     and   neglected    juveniles      are     not    supported    by    the



6
  Respondent-mother’s trial counsel did object to the court
taking judicial notice of the entire DSS “files” on the
children, but did not object when the court stated it would take
judicial notice of the adjudication orders only.
                                      -6-
court’s findings of fact, and (3) certain conditions imposed by

the court constituted an abuse of its discretion.                  We affirm in

part and reverse in part.

I. Standard of review

    “The 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 (2013).                On

appeal,   an      adjudication    order    is   reviewed    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 Pittman, 149 N.C.

App. 756, 763-64, 561 S.E.2d 560, 566 (citation and internal

quotation      marks    omitted),   appeal      dismissed   and    disc.   review

denied, 356 N.C. 163, 568 S.E.2d 608-09 (2002), cert. denied sub

nom., Harris-Pittman v. Nash Cnty. Dep’t of Social Servs., 538

U.S. 982, 155 L.E.2d 673 (2003).                Findings of fact are binding

“where there is some evidence to support those findings, even

though the evidence might sustain findings to the contrary.”                     In

re Montgomery,         311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53

(1984) (citation omitted).          Findings of fact are also binding if

an appellant does not challenge them on appeal.                        Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citation
                                     -7-
omitted). We review dispositions to determine whether the court

abused    its   discretion   in     deciding   what   action     is    in   the

juvenile’s best interest.          In re C.W., 182 N.C. App. 214, 219,

641 S.E.2d 725, 729 (2007) (citation omitted).

II. Findings of fact

     Respondent-parents        challenge       all     or     portions       of

subparagraphs a,7 d, e, f, g, h, i, and j of finding of fact 5 as

not supported by clear and convincing evidence.               We agree as to

finding    of   fact   5h,   but    disagree     regarding    the     remaining

challenged findings of fact.

     Finding of fact 5 states:

           5. The [c]ourt finds the following facts for
           the purpose of adjudication:

           a.     The minor children       are    neglected    and
                  dependent children.

           b.     [Respondent-parents] were evicted from
                  [ABC Street], Asheboro, NC.

           c.     When [Respondent-parents] and the minor
                  children     were     evicted,     they
                  ([Respondent-parents]  and the minor

7
  Finding of fact 5a is actually a conclusion of law, and we
review it as such. See In re M.R.D.C., 166 N.C. App. 693, 697,
603 S.E.2d 890, 893 (2004) (holding that a finding of fact which
is actually a conclusion of law is reviewed as a conclusion of
law on appeal), disc. review denied, 359 N.C. 321, 611 S.E.2d
413 (2005); In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404,
409 (2007) (noting that mislabeling a finding of fact as a
conclusion of law is inconsequential if the remaining findings
of fact support it).
                              -8-
              children)   went     to    the    paternal
              grandmother[’s]     . . .      home    for
              approximately   four    to   five   months
              before the petitions in the matter were
              filed.

         d.   [Respondent-f]ather acknowledged that
              he knew that the paternal grandmother’s
              home was an inappropriate home for the
              minor children.

         e.   This [c]ourt adjudicated on or about
              October 28, 2009 that [J.C.] sexually
              molested the minor child [D.H.].

         f.   [J.C.] was living      at   the   paternal
              grandmother’s home.

         g.   [J.C.] had access to the minor children
              at the paternal grandmother’s home.

         h.   When [Respondent-parents] would leave
              the paternal grandmother’s home to go
              [to] the store, they would leave the
              minor children with [J.C.].

         i.   [Respondent-parents] had no other place
              to take the minor children after they
              were evicted from [ABC Street] in
              Asheboro, NC.   [Respondent-f]ather had
              five to seven months to find housing
              other than the paternal grandmother’s
              home.    [Respondent-f]ather had ample
              time to find appropriate and stable
              housing.

         j.   [J.C.] would actually play video games
              in the same living room while the minor
              children    were    at   the   paternal
              grandmother’s home.

    As for finding of fact 5d, when asked if he was “aware that

[the paternal grandmother’s] home was not an appropriate place
                                         -9-
for your children[,]” Respondent-father replied, “I guess so,

yeah.”     He also testified that he knew (1) his brother, D.H.,

had been removed from the paternal grandmother’s custody and had

not been returned and (2) DSS had recommended that the paternal

grandmother’s      home     was    not   an     appropriate      place   for   his

children.    Respondent-father further testified that he knew the

children    of    his    other    brother,     J.C.,   had    been   removed   from

J.C.’s custody before Respondent-father moved his children to

his mother’s residence.           This evidence fully supports finding of

fact 5d.

    As for finding of fact 5e, the district court took judicial

notice of juvenile adjudication orders pertaining to Respondent-

father’s relatives, including an order adjudicating his brother

D.H. as neglected and dependent.               That order contains a finding

of fact that D.H. was sexually assaulted by J.C.                     This evidence

fully supports finding of fact 5e.

    With regard to findings of fact 5f, 5g, and 5j, Respondent-

father testified that, “right before the date that the petitions

in this matter” were filed, his brother J.C. “moved in after a

short    while”    and    “stayed    there      certain      nights.”     Although

Respondent-father testified that J.C. often “slept in a tent or

his camper outside” in the yard of the paternal grandmother’s
                                             -10-
house, he also testified about watching television and playing

video games with J.C. at night in the living room where Kim and

Henry slept.       This evidence fully supports findings of fact 5f,

5g, and 5j.

      As to finding of fact 5i, Respondent-father testified that

Respondent-parents           could    not     find    housing       for     their    family

anywhere other than at the home of                         the paternal       grandmother

during the period between their eviction and the filing of the

petition.       The supervising social worker testified that, before

DSS filed the petition, Respondent-parents declined a request by

DSS   to    move      Kim    and     Henry     to    the    home     of     the    maternal

grandmother.       This evidence fully supports finding of fact 5i.

      Regarding       finding        of   fact      5h,    our     review    reveals       no

evidence    that      Kim    and     Henry    were    left       alone    with      J.C.   on

occasions when Respondent-parents went to the store.                                Because

this finding of fact is not supported by any evidence in the

record,    we    do    not    consider        it    when     reviewing       the    court’s

conclusions of law.

III. Conclusions of law

      Respondent-parents next argue that the court’s conclusions

of law that Kim and Henry are dependent and neglected juveniles
                                     -11-
are not supported by the findings of fact.                    We agree as to

dependency, but disagree as to neglect.

     A dependent juvenile is one whose “parent, guardian, or

custodian is unable to provide for the care or supervision [of

the juvenile] and lacks an appropriate alternative child care

arrangement.”         N.C.    Gen.   Stat.   §   7B-101(9)      (2013).       In

determining whether a juvenile is dependent, “the trial court

must 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).               The court’s adjudicatory

findings   contained    in    finding   of   fact    5   do   not   address   the

ability of the parents to provide care or supervision or the

availability of alternative child care arrangements.                    We thus

hold the findings of facts do not support a conclusion that Kim

and Henry are dependent juveniles.8          Accordingly, we reverse this

adjudication.

     A juvenile is neglected if, inter alia, he or she does not

receive proper care, supervision, or discipline from a parent or

8
  We further note that, although some of the findings of fact
which the court included in its dispositional determination
could be construed as relating to the Respondent-parents’
“ability to provide care and supervision” for the juveniles,
none address the “availability . . . of alternative child care
arrangements.” See id.
                                        -12-
guardian; is not being provided necessary medical or remedial

care; or is residing in an environment injurious to his or her

welfare.        N.C.   Gen.   Stat.     §     7B-101(15).      In    making     this

determination, the district court must assess whether there is

“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) (citation and internal quotation marks omitted).                      A court

“need   not     wait   for    actual    harm     to   occur    if    there    is   a

substantial risk of harm to the child in the home.”                   In re T.S.,

178 N.C. App. 110, 113, 631 S.E.2d 19, 22 (2006), affirmed per

curiam, 361 N.C. 231, 641 S.E.2d 302 (2007).

      “In determining whether a juvenile is a neglected juvenile,

it is relevant whether that juvenile . . . lives in a home where

another juvenile has been subjected to abuse or neglect by an

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

101(15).

           In    considering   the   identically-worded
           predecessor statute, this Court held, . . .
           that while this language regarding neglect
           of other children does not mandate         a
           conclusion of neglect, the trial judge has
           discretion in determining the weight to be
           given such evidence.    Since the statutory
           definition of a neglected child includes
                                      -13-
             living with a person who neglected other
             children and since this Court has held that
             the weight to be given that factor is a
             question for the trial court, the court, in
             this case, was permitted, although not
             required,   to   conclude  that   P.M.  was
             neglected. . . . In cases of this sort, the
             decision   of  the   trial  court  must  of
             necessity be predictive in nature, as the
             trial court must assess whether there is a
             substantial risk of future abuse or neglect
             of a child based on the historical facts of
             the case.

In re P.M., 169 N.C. App. at 427, 610 S.E.2d at 406 (citations

and internal quotation marks omitted).              In that case, before

P.M. was born,

             P.M.’s father sexually abused one of [the]
             respondent’s     daughters     after    [the]
             respondent allowed him to be in the presence
             of that daughter, in violation of a safety
             plan with . . . [DSS] that prohibited the
             father   from   having   contact   with  that
             daughter.     A psychologist who evaluated
             [the] respondent after that event concluded
             that [the] respondent had failed to take
             responsibility for the consequences of her
             failing to care for her four children.

             . . . [A] month after the birth of P.M., DSS
             filed a petition alleging that P.M. was
             neglected and dependent based on the prior
             adjudications as to [the] respondent’s other
             children and her current lack of insight
             into the harm suffered by those children.

Id. at 425, 610 S.E.2d at 405.               We held that “the historical

facts   of    the   case    [which]    included    the   fact   that   [the]

respondent    had   twice   violated    court-ordered    protection    plans
                                              -14-
with DSS . . . and was failing to take responsibility” were

sufficient to support a conclusion of neglect.                         Id. at 427, 610

S.E.2d at 406.            We see no meaningful distinction between the

facts   in   that     case       and   those     presented         here,    to    wit,    that

Respondent-parents moved their minor children into a home with

J.C.,   a    man    with     a    history      of     sexually      abusing       his    minor

relatives.9

     Respondent-father             concedes          that    the     “court       here        was

permitted”     to     conclude         that    Kim     and    Henry        were    neglected

juveniles based upon their exposure to J.C., and he further

acknowledges       that     the    court      had     discretion      in     weighing         the

evidence     before    it    in    reaching         that    conclusion.           See    In    re

Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)

(holding that the district court has discretion in determining

the weight to be afforded to evidence of the abuse or neglect of

other   children).           We    agree       and     conclude      that     the       court’s

findings of fact support its conclusion of law that Kim and

Henry are neglected juveniles.                 This argument is overruled.



9
  We also observe that there is copious evidence in the record
and in the findings of fact which the district court labeled as
dispositional rather than adjudicatory regarding the paternal
grandmother’s refusal to believe that J.C. had abused D.H. and
her denial of any responsibility in the events that led to the
removal of D.H. from her custody and his eventual adjudication
as a dependent juvenile.
                                        -15-
IV. Conditions placed on Respondent-parents

       Respondent-mother       argues        that        the     court   abused          its

discretion by       ordering her to submit to random drug screens

because     nothing    in    the     record       and     no   allegations        in     the

petitions suggest that she has a substance abuse problem.                                 We

disagree.

       In a juvenile proceeding under Chapter 7B, “the child’s

interest     in     being    protected        from       abuse     and   neglect         is

paramount.”        In re Pittman, 149 N.C. App. at 761, 561 S.E.2d at

564.    A juvenile court has the authority, if it determines that

it is in the juvenile’s best interest, to require a parent of a

juvenile     who     has    been     adjudicated          abused,    neglected,           or

dependent     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 or to the court’s decision to remove

custody of the juvenile from the parent . . . .”                           N.C. Gen.

Stat. § 7B-904(c) (2013).                  Under this grant of authority, a

court may, in its discretion, order a parent to submit to a

substance abuse assessment.            See In re A.S., 181 N.C. App. 706,

712-13, 640 S.E.2d 817, 821, affirmed per curiam, 361 N.C. 686,

651 S.E.2d 883 (2007).             “A ruling committed to a trial court’s
                                         -16-
discretion is to be accorded great deference and will be upset

only upon a showing that it was so arbitrary that it could not

have been the result of a reasoned decision.”                     White v. White,

312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

       We considered and rejected Respondent-mother’s argument in

a recent case.          In In re A.R., the parents contended that the

court erred by requiring them, inter alia, to submit to mental

health     assessments,         substance    abuse      evaluations,        and     drug

screens when the children had been removed for domestic violence

and not for substance abuse or mental health reasons.                        __     N.C.

App. __, __, 742 S.E.2d 629, 632 (2013).                  We disagreed, holding

that   imposition       of   these   mandates     “is    reasonably        related    to

aiding [the parents] in remedying the conditions which led to

the children’s removal; all of these requirements assist [the

parents]     in    both      understanding      and   resolving      the      possible

underlying cause of [the parents]’ domestic violence issues.”

Id. at __, 742 S.E.2d at 632-33.

       We believe the same reasoning applies here.                         Respondent-

parents acknowledge a history of domestic violence.                        Respondent-

father   has      “an   extensive       history   with    drugs      and    alcohol.”

Respondent-mother         has    been     diagnosed      with   recurrent          major

depression     with     psychotic       features.        All    of   these        issues
                                       -17-
contributed to the removal of the juveniles from Respondent-

parents’ custody.        Drug screens and substance abuse treatment if

indicated,      along    with    mental    health     treatment,      may     assist

Respondent-mother in understanding and resolving these issues.

Accordingly, we conclude the court did not abuse its discretion.

     Respondent-father          argues     that     the     court     abused    its

discretion by ordering him to complete a sex offender assessment

and comply with its recommendations.                Specifically, Respondent-

father     contends     that    the   district      court     was    collaterally

estopped10 from imposing this condition because prior courts had

ruled    that    all     previous     allegations      of    sexual     abuse    by

Respondent-father were unfounded.             We disagree.

     The     March      2010    petition      regarding     Kim     alleged     that

Respondent-father “exhibited sexually deviant behaviors[.]”                      In

the order dismissing the March 2010 petition, the district court

made no findings regarding the allegation that Respondent-father

“engage[d] in sexually deviant behaviors[,]” finding only that

he had “not been involved with [Kim] since birth.”                       The June

10
   Collateral estoppel applies only to parties, and not to
courts.   See King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d
799, 805 (1973) (observing that under the doctrine of
“collateral estoppel by judgment, parties and parties in privity
with them — even in unrelated causes of action — are precluded
from retrying fully litigated issues that were decided in any
prior   determination   and   were   necessary   to  the   prior
determination”) (citations omitted; emphasis added).
                                         -18-
2010    petition    alleged       several       acts   of        sexual     abuse     by

Respondent-father against Kim and stated that Respondent-mother

believed   Respondent-father        had    “molested        his   half-sibling[,]”

presumably a reference to the allegations made by D.H.                            In the

order dated 21 July 2010 which returned Kim to the custody of

Respondent-parents, the court found that no reasonable factual

basis   existed    to   support    the     allegations       that     Kim   had     been

sexually abused by Respondent-father or that Kim was at risk of

sexual abuse while in his care.             DSS then voluntarily dismissed

the June 2010 petition.            At the adjudication hearing in the

current matter, a DSS social worker testified that D.H. had

accused Respondent-father of sexually abusing him.11

       However, nothing in the adjudication and disposition order

before this Court suggests that these previous concerns about

Respondent-father’s       possible        sexual     abuse       of   Kim    or     D.H.

prompted   the     condition      that    he      undergo    a    sexual     offender

assessment and any treatment recommended as a result thereof.

Rather, it appears that Kim’s sexual acting out, which appears

to have occurred after June 2010, led to the condition that

Respondent-father       undergo    a     sexual    offender       assessment.         In

11
   Nothing in the record suggests there has been any legal
determination that Respondent-father did or did not sexually
abuse D.H.
                                  -19-
unchallenged findings of fact 52-55 the district court found

that:   (1) at a March 2013 home visit, Kim’s foster parents

expressed concerns about Kim’s sexual acting out in the form of

public masturbating and possible attempted sexual interactions

with Henry;12 (2) Respondent-parents acknowledged this behavior

began before Kim was removed from their custody; (3) Respondent-

father felt these behaviors were normal; and (4) Kim has been

referred for appropriate counseling.        None of these facts had

been introduced into evidence in any previous matter nor has any

court   previously   considered     them.     In   light   of   these

unchallenged findings of fact, we hold the court did not abuse

its discretion by ordering Respondent-father to complete a sex

offender assessment and follow any recommended treatment.

     In sum, we affirm the adjudication of Kim and Henry as

neglected juveniles and the court’s resulting disposition.        We

reverse the adjudication of dependency.

     AFFIRMED in part; REVERSED in part.

     Judges BRYANT and DILLON concur.

     Report per Rule 30(e).




12
  At the time of these reports, Kim was just over three years
old, and Henry was about 18 months old.
