An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                 NO. COA13-1260

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 20 May 2014


IN THE MATTER OF:

      L.B.B.                                Harnett County
                                            No. 13 J 29




      Appeal by respondent-mother from orders entered 14 June and

30 July 2013 by Judge Addie H. Rawls in Harnett County District

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


      Duncan B. McCormick for petitioner-appellee Harnett County
      Department of Social Services.

      Levine & Stewart, by James E. Tanner, III, for respondent-
      appellant mother.

      Marie H. Mobley for guardian ad litem.


      BRYANT, Judge.


      Respondent-mother       appeals    from    orders    adjudicating      her

daughter Lori1 an abused and neglected juvenile and awarding


1
  Lori is a pseudonym used to protect the                   identity    of   the
juvenile pursuant to N.C. R. App. P. 3.1(b).
                                                 -2-
custody    of       Lori    to    the    Harnett       County   Department        of     Social

Services (“DSS”).            Because the District Court’s findings of fact

support an adjudication of abuse                        and neglect, we affirm              the

Court’s orders.

    Lori,       born        in     September       2008,    lived       with     her     mother

(respondent)         and step-father.              On   the morning of           13 January

2013, Dunn Emergency Services was dispatched to the home after

receiving       a     911        call    regarding       Lori’s        seizure        activity.

Emergency paramedics reported that upon arriving at the home,

they found

            [Lori] on a bed in a de-cerebrate posture
            with vomitus noted outside her mouth and she
            was making a choking sound.    An attempt to
            open her airways was not successful because
            her jaw was clinched. Bruising of different
            coloration was noted on her neck, arms and
            chest with battle signs noted behind the
            child’s ears.    Her right pupil was blown,
            the left pupil was constricted; both eyes
            were pointing left.

    The paramedics concluded that Lori had a serious, life-

threatening         injury        caused    by     significant         head     trauma,     and

transported her to Betsy Johnson Regional Hospital.                                   Emergency

room personnel at Betsy Johnson Regional Hospital noted that

Lori remained unresponsive and non-alert during treatment.

    After       being        medicated       and       intubated       at     Betsy     Johnson

Regional     Hospital,            Lori     was     airlifted      to     Duke     University
                                           -3-
Hospital    where     she    subsequently          underwent     emergency          brain

surgery    to   treat       a      large     subdural      hematoma.            Lori’s

neurosurgeons   noted       that    the     hematoma    was    so    severe    it     had

pushed her brain from the right to the left side of her skull.

Lori’s subdural hematoma was also found to contain hyper acute

and acute blood, indicating that her subdural bleeding was only

a few hours old at the time of her brain surgery.

       DSS filed a juvenile petition on 23 January 2013, alleging

that Lori was an abused and neglected juvenile.                            DSS alleged

that   respondent     and   the     step-father      did   not      have    reasonable

explanations    for     Lori’s       life-threatening          head        trauma     and

bruising, and that Lori’s injuries were consistent with a child

who has been abused.        DSS took non-secure custody of Lori.

       After hearing evidence on 31 May and 14 June 2013, the

District Court adjudicated Lori an abused and neglected juvenile

and awarded custody of Lori to DSS.               Respondent appeals.

                      __________________________________

       Respondent contends the trial court’s determination that

Lori is an abused and neglected juvenile is not supported by the

findings of fact or the evidence.                We disagree.

       “The purpose of abuse, neglect and dependency proceedings

is for the court to determine whether the juvenile should be
                                     -4-
adjudicated     as   having   the    status      of   abused,     neglected    or

dependent.”     In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395,

399 (2007).     Accordingly, the role of this Court in reviewing a

trial court’s adjudication of neglect or abuse 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 Gleisner, 141 N.C.

App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted).

If this evidence exists, the findings of the trial court are

binding on appeal, even if the evidence would support a finding

to the contrary.          In re McCabe, 157 N.C. App. 673, 679, 580

S.E.2d 69, 73 (2003).

       A neglected juvenile is one “who does not receive proper

care, supervision, or discipline” from a parent or caretaker, or

“who    lives   in   an    environment     injurious    to      the   juvenile’s

welfare[.]”      N.C. Gen. Stat. § 7B-101(15) (2013).                  An abused

juvenile is defined as, inter alia, a juvenile whose parent or

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

of   serious    physical    injury   to    the    juvenile      by    other   than

accidental means[.]”       Id. § 7B-101(1)(b) (2013).

       The trial court made the following pertinent findings of

fact:
                     -5-
11. Dunn Emergency Services Agency received
a call for emergency services to the home at
[] Dunn, NC at approximately 11:54 am
January   13,  2013,   with   the    911   call
referenc[ing]   seizures.       The    agency’s
personnel arrived at the above residence at
approximately  11:59    am   and    found   the
juvenile herein on a bed in a de-cerebrate
posture with vomitus noted outside her mouth
and she was making a choking sound.          An
attempt   to  open   her   airways    was   not
successful because her jaw was clinched.
Bruising of different coloration was noted
on her neck, arms and chest with battle
signs noted behind the child’s ears.        Her
right pupil was blown, the left pupil was
constricted; both eyes were pointing left.
The EMS personnel immediately noticed that
the injuries sustained by the minor child
were life threatening, picked up the child
and carried her to the ambulance, and
transported her to Betsy Johnson Regional
Hospital Emergency Room.     During the time
the emergency personnel were attending the
juvenile[] she was unresponsive and not
alert.

12. The juvenile was received at the
emergency room of Betsy Johnson Hospital at
approximately 12:08 pm January 13, 2013 in
an unresponsive state; the juvenile’s step
father is recorded to have stated to the EMS
that the juvenile “was in the car and she
fell over and started having a seizure.”
The juvenile was lethargic and had de-
cerebrate posturing and was observed to have
multiple areas of bruising to the body to
include the left jaw, neck and behind the
ear and to the left abdomen, []upper arm
thoracic area of the back, hip/flank area
with small abrasion, left knee and to sup
pubic   area.     Contact   was   made  with
physicians   at  Duke   Hospital   [and  the
juvenile] was accepted for transfer at
                    -6-
approximately 12:55 pm January 13, 2013.
The juvenile was treated, medicated and
intubated for air flight to Duke Hospital,
whose life flight unit arrived for transport
at approximately 13:28 (1:28 pm) and the
juvenile was flown to Duke.

13. The juvenile was admitted to Duke
Hospital at approximately 3:07 pm January
13, 2013 by Duke Life Flight.       Upon her
arrival at Duke, the juvenile underwent an
emergency neurosurgical procedure due to a
life threatening, large right side bleed in
the subdural space between her brain and the
inner surface of her skull. The mass effect
of the subdural blood caused the child’s
brain to shift slightly from right to left
within her skull (herniation of her brain).
The subdural hematoma contained hyper acute
and acute blood which indicated that her
subdural bleed began close to the time she
was presented to Betsy Johnson Hospital —
thought to be during the early morning on
January 13, 2013 and not later than the
night before — the bleed being a few hours
old at the time of her neurosurgical
procedure.

. . .

15. The juvenile’s step father provided the
following history of events concerning the
juvenile to the medical providers, to wit:
On the day of January 13, 2013, the family
slept until approximately 11 am; after
getting up, the stepfather and the child
decided to get some coffee.      He reported
that [Lori] had unbuckled her seat belt and
“she stuck her hand in the door wedge,
reaching out” and he “heard a shuffle.”   He
did not see [Lori] fall, but when he turned
around he “saw her laying on the ground, on
her back” with her head “facing the front of
the car.”   She looked like “she was rolling
                     -7-
over onto her side and attempting to get
up.” [Lori] “grimaced,” but she didn’t cry.
The step father rubbed the back of her head
and noted “it was huge. Like something
swelling.”    He buckled [Lori] in her car
seat and as he drove home [he heard] a loud
“EEEeeee noise” and saw that “[Lori] threw
her arm up.” He pulled [Lori] into the front
seat and tried to open her mouth and “blew
air into her mouth.” He stopped the car and
“took both hands and tried to pry open her
jaw.”   He “spread her body out” and “tried
to force air manually.     Took her lips and
blew. Took a fist on her chest and tried to
push.”   When he “heard a snore come out of
her mouth” he held her and drove home.      He
“ran inside, told [respondent] and laid
[Lori] on the bed.” An ambulance was called
and took [Lori] to the hospital.          The
stepfather told [respondent] that while at
the gas station, [Lori] went to climb in the
car and while shutting the door, she fell
out of the car. He picked her up and on the
way home she began having a seizure.        He
took her into the front seat and began CPR.

. . .

22.   Pursuant    to  an   exam  by    Duke
Ophthalmology of the bruising around the
juvenile’s right eye, a small number of
intra-retinal hemorrhages were observed in
her right eye (same side as the subdural
bleed) which is consistent with an impact
injury to the head.

. . .

27. The life threatening head injury to
[Lori], resulting in subdural bleeding and
right to left herniation of her brain is not
adequately explained by the alleged falling
out [of] the back seat of the family car.
The respondent mother and stepfather have
                                       -8-
           denied that [Lori] had other recent falls or
           accidents.      [Lori’s]  head  injury   and
           subdural bleeding began a few hours prior to
           her presentation at Betsy Johnson and Duke
           Hospitals.   The subdural bleeding and the
           brain injury are consistent with head trauma
           by non-accidental means.

           28. The Respondent mother and stepfather
           have been the primary caretakers of the
           juvenile since August 2012 and especially
           for the period of the week prior to January
           13, 2013.

           29. Juvenile [Lori] suffered significant
           loss of speech and language skills as a
           result of the injuries she received.     The
           juvenile benefitted greatly with the therapy
           sessions received at the Vidant center and
           was discharged from that center on March 12,
           2013.

           30. The injuries sustained by the juvenile
           on or about January 13, 2013 were the result
           of non-accidental trauma.      But for the
           immediate medical attention given to the
           child by the emergency response team, the
           child would have either died or been in a
           vegetative state.

    Of    the    above      findings   of    fact,    respondent    challenges

finding   of    fact   27   as   not   supported     by   the   evidence.   We

conclude the finding is based upon the testimony of Dr. Karen

St. Claire, an expert in child abuse and pediatric medicine and

Director of the Duke Child Protection Team, who consulted with

Lori’s neurosurgeon Dr. Herbert Fuchs.             Dr. St. Claire testified

on direct examination as follows:
                          -9-
         Her head injury is an injury that would
    have taken [] what we call focal force, an
    impact force to create.     I can’t rule out
    that there were rotational forces with that.
    It took a fair amount of force to cause the
    shearing and tearing of the vessels that
    caused this large subdural hematoma.

         The history of this child falling out
    of the car, she may or may not have fallen
    out of a car, but it’s not felt that that
    short fall has created this serious head
    injury with the shearing of these vessels.
    And again, Dr. Fuchs’s opinion is consistent
    with that, and he was able to see the actual
    bleeding vessels that were causing the
    subdural hematoma, and the timing for that
    would’ve been around a few hours prior to
    her presenting to our hospital and our
    operating room, and we felt that this was
    not from a simple, short fall.

Dr. St. Claire further testified on cross-examination:

         Certainly my training and expertise
    tell me that most children who have short
    falls, most of them will not have serious
    brain damage or bleeding around their brain,
    that, if they do, it tends to be minimal,
    not requiring surgery.

         So this is something that’s not typical
    for accidental short fall.       Dr. Fuchs’s
    opinion   was   also  that   this   was   not
    consistent with a simple, short fall due to
    the amount of trauma that she had sustained.

    . . .

    [Lori’s head injury] is not consistent with
    an   accidental  injury,   short  fall   as
    described.
                                        -10-
       Based upon Dr. St. Claire’s testimony, the trial court did

not err in making finding of fact 27, and respondent’s argument

is without merit.

       Respondent challenges additional findings of fact made by

the trial court.        We need not address respondent’s additional

arguments, however, as the trial court’s other findings of fact

are unnecessary to support its ultimate conclusions, and any

error in them would not constitute reversible error.                           In re

T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240—41 (2006).

Indeed,    the   uncontested      findings      of    fact,   together      with   the

finding affirmed above, establish that Lori was airlifted to

Duke   University     Hospital    for    a     life-threatening      head    injury;

that   Dr.    St.   Claire   concluded       the     head   injury   and    subdural

bleeding     were   caused   by    non-accidental           means;   that    neither

respondent’s nor the step-father’s                 explanation was       consistent

with the injuries observed; that respondent and the step-father

were Lori’s primary caretakers when the injuries occurred; and

that Lori’s speech and language skills were impaired due to the

injury.      These findings support the trial court’s conclusions of

law that Lori was an abused juvenile in that respondent created

or allowed to be created a substantial risk of serious physical

injury to Lori by other than accidental means, and Lori was a
                               -11-
neglected juvenile in that she did not receive proper care or

supervision from respondent.   Accordingly, the trial court did

not err in its adjudication, and the trial court’s orders are

affirmed.

    Affirmed.

    Judges STEPHENS and DILLON concur.

    Report per Rule 30(e).
