An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


                  IN THE COURT OF APPEALS OF NORTH CAROLINA

                                          No. COA15-609

                                       Filed: 6 October 2015

Moore County, No. 14 JA 67

IN THE MATTER OF: C.M.G.




       Appeal by respondents from order entered 23 February 2015 by Judge Robert

M. Wilkins in Moore County District Court. Heard in the Court of Appeals 14

September 2015.


       R. Ward Medlin for petitioner-appellee Moore County Department of Social
       Services.

       Womble, Carlyle Sandridge & Rice, LLP, by Janie H. Morgan, for guardian ad
       litem.

       Wait Law, P.L.L.C., by John L. Wait, for respondent-appellant father.

       J. Thomas Diepenbrock for respondent-appellant mother.


       DIETZ, Judge.


       Respondents appeal from an order adjudicating their son “Carl”1 to be an

abused, neglected, and dependent juvenile.                 In October 2013, the trial court




       1   We use pseudonyms to protect the privacy of C.M.G. and his siblings.
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                                   Opinion of the Court



adjudicated two other juveniles then living with Respondents to be abused and

neglected. The trial court found that Respondents had engaged in multiple acts of

domestic violence in front of the juveniles; that Respondent-mother had thrown

objects at the children and otherwise endangered them; and that Respondent-father

had sexually abused one of the juveniles, a five-year-old girl.

      Carl was born while court proceedings involving the other juveniles were

ongoing. Respondent-mother concealed her pregnancy from DSS and traveled to a

hospital in another county for Carl’s delivery.

      DSS later learned of Carl’s birth, took him into nonsecure custody, and filed a

juvenile petition alleging that he was abused, neglected, and dependent. The trial

court adjudicated Carl abused, neglected, and dependent based on the prior abuse

and neglect of the other juveniles previously under Respondents’ care, as well as the

near total failure of Respondents to address the conditions and safety concerns

identified in that earlier juvenile proceeding.

      As explained below, we affirm the trial court adjudications of neglect and

dependency.    There is ample evidence in the record to support the trial court’s

findings on those grounds, and those findings, in turn, support the trial court’s

conclusions of law. But we reverse the adjudication of abuse. Unlike the statutory

language governing neglect, the statutory standard for abuse does not provide that

abuse of other juveniles in the same home is automatically relevant. Instead, the



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petitioner must show a connection between the past abuse and the risk of future

abuse to the juvenile in question.      Here, the record does not contain sufficient

evidence to support the trial court’s conclusion that, based on Respondent-father’s

past sexual abuse of a five-year-old girl, there was a substantial risk that

Respondents would inflict serious physical injury on infant Carl. Accordingly, we

reverse the adjudication of abuse but affirm all remaining portions of the trial court’s

order.

                          Facts and Procedural History

         Respondents are married.     They previously resided with their daughter

“Martha,” who was born in March 2007, and Respondent-mother’s daughter “Beth,”

who was born in May 2000. In January 2013, the Moore County Department of Social

Services (“DSS”) obtained nonsecure custody of Martha and Beth after initiating

juvenile abuse and neglect proceedings. In October 2013, the trial court adjudicated

Martha to be neglected and Beth to be neglected and abused. The court found that

Respondents had engaged in multiple acts of domestic violence in front of the girls;

that Respondent-mother had thrown objects at both girls and particularly at Beth;

that Respondents had operated a “sham” home school since July 2011, leaving both

girls “substantially behind and below grade level[;]” and that Respondent-father had

sexually abused five-year-old Martha “on more than one occasion.” Based on these

adjudications, the court ordered Respondents to be placed on the list of responsible



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individuals maintained by the Department of Human Services pursuant to N.C. Gen.

Stat. § 7B-311(b) (2013).

      Respondents refused to cooperate with DSS or comply with the trial court’s

orders and they failed to obtain the necessary evaluations, treatment, and other

services required for reunification with Martha and Beth. On 5 March 2014, DSS

moved to terminate Respondents’ parental rights as to Martha and Beth. The trial

court entered orders on 14 May 2014 terminating Respondents’ parental rights on

grounds of neglect, dependency, and willful failure to make reasonable progress to

correct the conditions that led to Martha and Beth’s removal from their home. See

N.C. Gen. Stat. § 7B-1111(a)(1), (2), (6) (2013).

      Carl was born in April 2014, approximately one month before the hearing on

DSS’s petition to terminate Respondents’ parental rights to Martha and Beth.

Respondent-mother concealed her pregnancy from DSS, traveling to a hospital in

another county for Carl’s delivery. When she was placed in jail for indirect contempt

of court on 9 July 2014, Respondent-mother left Carl with Respondent-father.

      On 11 July 2014, DSS received a child welfare report regarding an infant child

in Respondent-father’s care.     DSS located Carl in Mecklenburg County, North

Carolina on 15 July 2014, took him into nonsecure custody, and filed a juvenile

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

Respondents’ prior abuse and neglect of Carl’s sisters and Respondents’ subsequent



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failure to address the conditions and safety concerns that led to the termination of

their parental rights as to the two girls.

        After hearing evidence on 8 and 9 January 2015, the trial court entered an

order adjudicating Carl an abused, neglected, and dependent juvenile on 23 February

2015. The court maintained Carl in DSS custody and granted Respondents two hours

of weekly supervised visitation. Respondents each filed timely notices of appeal from

the adjudication and disposition order.

                                        Analysis

   I.      Appellate Jurisdiction

        Respondent-mother has filed a petition for writ of certiorari to review the trial

court’s order in the event we find a jurisdictional defect in her notice of appeal. By

order entered 13 August 2015, this Court denied the guardian ad litem’s motion to

dismiss Respondent-mother’s appeal for failure to file a properly signed notice within

the thirty-day period prescribed by N.C. Gen. Stat. § 7B-1001(b) (2013).

        Under N.C.R. App. P. 3.1(a), a respondent’s notice of appeal in an abuse,

neglect, or dependency proceeding must be signed by both the respondent and her

trial counsel, if she is represented by counsel. However, “if a party technically fails

to comply with procedural requirements in filing [a notice of appeal] with the court,

the court may determine that the party complied with the rule if the party

accomplishes the ‘functional equivalent’ of the requirement.” Von Ramm v. Von



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Ramm, 99 N.C. App. 153, 157, 392 S.E.2d 422, 424 (1990) (quoting Torres v. Oakland

Scavenger Co., 487 U.S. 312, 317, 101 L.Ed.2d 285, 291 (1988)).

         Here, Respondent-mother filed two timely notices of appeal from the order

entered on 23 February 2015. The first notice is only signed by Respondent-mother,

while the second notice is only signed by counsel. We conclude that Respondent-

mother’s two timely filed notices—each bearing one of the two signatures required by

Rule 3.1(a)—amount to the “functional equivalent” of a proper notice of appeal.

Accordingly, we deny Respondent-mother’s petition for writ of certiorari as moot.

   II.      Challenged Factual Findings

         This Court reviews an adjudication of abuse, neglect, or dependency under

N.C. Gen. Stat. § 7B-807 (2013) to determine whether the trial court’s findings of fact

are supported by “clear and convincing competent evidence” and whether the court’s

findings, in turn, support its conclusions of law. In re Helms, 127 N.C. App. 505, 511,

491 S.E.2d 672, 676 (1997). Findings supported by competent evidence as well as all

uncontested findings are binding on appeal. Id. We review a trial court’s conclusions

of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).

         We agree with Respondent-mother’s observation that several of the trial

court’s findings of fact amount to conclusions of law, specifically those portions of

Findings 65, 66, 68, 69, and 71 stating that Carl meets the legal standards for abuse,

neglect, and dependency under N.C. Gen. Stat. § 7B-101(1), (9) and (15) (2013).



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Typically, however, a trial court’s misclassification of conclusions of law as findings

of fact “is merely an inconvenience” to the reviewing court. State ex rel. Utilities

Comm’n v. Eddleman, 320 N.C. 344, 352, 358 S.E.2d 339, 346 (1987). If a contested

finding is more properly characterized as a conclusion of law, we will apply the

appropriate standard of review and determine whether the remaining facts found by

the court support the conclusion. See In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d

404, 409 (2007).

      Here, Respondent-mother claims that Finding of Fact 69 is not supported by

the evidence because the trial court refers to a “failure of the parents to pursue

recommended services to alleviate safety concerns.” Finding 69 reads as follows:

             That the juvenile [Carl]’s physical mental and emotional
             status is substantially at risk of future neglect based on the
             historical facts of cases involving [Martha] and [Beth] and
             the failure of the parents to pursue recommended services
             to alleviate safety concerns; there is a substantial
             likelihood of future neglect.

Respondent-mother does not contest that Respondents failed to comply with the

services recommended to alleviate the safety concerns for Martha and Beth. But she

contends that there is no evidence that respondents “have failed to pursue

recommended services in this case . . . .” (Emphasis added). We reject this argument

because the trial court need not limit its findings to services recommended to address

the safety of Carl. Respondents’ failure to address safety concerns for Martha and

Beth while those children lived with Respondents led, at least in part, to the


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termination of their parental rights to those children. Accordingly, Finding 69 is

relevant to determining whether there is a likelihood of future neglect with respect

to Carl.

       Respondent-mother next challenges the portion of Finding of Fact 68 stating

that Carl was “living in a home where another juvenile, namely [Martha] had been

Abused and where [Martha] and [Beth] had been Neglected.” At the beginning of

Carl’s adjudicatory hearing on 8 January 2015, the trial court admitted into evidence

certified copies of the adjudicatory, permanency planning, and termination orders

entered in that earlier proceeding.             Although Respondent-father challenged the

relevance of the permanency planning order,2 Respondents did not object to the

orders addressing Martha and Beth’s original adjudications and the subsequent

termination of Respondents’ parental rights. We thus find ample competent evidence

to support the contested Finding.

    III.    Challenged Conclusions of Law

       In challenging the trial court’s conclusions that Carl is abused, neglected, and

dependent, respondents raise the general complaint that the court based these




       2  Respondent-father challenged the relevance of the order due to the lesser standard of proof
applicable to permanency planning hearings and the “lapse of time” since the hearing. The trial court
overruled his objections, concluding that “[t]he issue as to the standard of proof goes to the weight of
the evidence not its admissibility.” While respondent-mother does not expressly raise the issue as a
basis for her appeal, it is well established that the trial court “is presumed to have disregarded any
incompetent evidence” when taking judicial notice of findings of fact in its prior orders. In re W.L.M.,
181 N.C. App. 518, 523, 640 S.E.2d 439, 442 (2007).

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                                  Opinion of the Court



adjudications largely upon findings made in its previous orders relating to Martha

and Beth. We note, however, that the court did not rely wholly on its prior orders

but received live testimony from multiple witnesses, including Respondents. Cf. In

re A.M., 192 N.C. App. 538, 542, 665 S.E.2d 534, 536 (2008) (concluding that “the

trial court failed to hold a proper, independent termination hearing” where DSS

called no witnesses and the court relied “solely on the written reports of DSS and

the guardian ad litem, prior court orders, and oral arguments by the attorneys”).

The mere fact that the court made certain findings about respondents’ prior conduct

based on its previous orders does not render its adjudications invalid.

      A.     Adjudication of Neglect

      Respondents both argue that the trial court’s findings do not support its

conclusion that Carl was a neglected juvenile. Respondent-father claims that the

trial court relied entirely upon “evidence stemming from the prior cases” involving

Martha and Beth and that “there was no other evidence that Carl was neglected at

the time DSS filed its petition.” While Respondent-mother concedes that “the prior

orders contain findings and conclusions which are relevant to the issues of whether

Carl is an abused, neglected and dependent juvenile,” she contends that these prior

proceedings “are by no means dispositive.”

      Our juvenile code defines a neglected juvenile, inter alia, as one “who does not

receive proper care, supervision, or discipline from the juvenile’s parent . . . or who



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lives in an environment injurious to the juvenile’s welfare.” N.C. Gen. Stat. § 7B-

101(15). The juvenile must experience “some type of physical, mental, or emotional

impairment or a substantial risk of such impairment” in order to be adjudicated

neglected. In re C.M., 183 N.C. App. 207, 210, 644 S.E.2d 588, 592 (2007). However,

“[i]n 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).

The statute thus “allows the trial court to consider the substantial risk of impairment

to the remaining children when one child in a home has been subjected to abuse or

neglect.” In re McLean, 135 N.C. App. 387, 394, 521 S.E.2d 121, 126 (1999). The trial

court has discretion in determining the weight to be given evidence of prior neglect of

another child in the home. Id., 135 N.C. App. at 395, 521 S.E.2d at 126.

      The trial court concluded that Carl was a neglected juvenile because, “at the

time of the filing of the petition,” he “did not or would not receive proper care,

supervision, or discipline from [his] parent or caregiver and lives or would live in an

environment injurious to his welfare . . . .” The court went on to weigh the significance

of Respondents’ prior abuse and neglect of Martha and Beth, a proper exercise of its

discretion in applying N.C. Gen. Stat. § 7B-101(15):

             13. That NCGS 7B-101(15) does not mandate a conclusion
             of neglect, but allows discretion in determining the weight
             to be given to such evidence, and based upon the evidence
             presented, the Court concludes that the juvenile is a


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             neglected juvenile and there is a substantial risk of future
             abuse or neglect based on the historical facts of the case.

             14. That based upon the failures of the parents to access
             services    and   follow    through    with    treatment
             recommendations or work their respective case plans there
             is a high probability of repeat abuse and neglect of the
             juvenile [Carl].

      We hold that the trial court’s findings are sufficient to support its conclusion

that Carl was neglected within the meaning of N.C. Gen. Stat. § 7B-101(15). The

findings recount Respondent-father’s sexual abuse of Martha; the girls’ exposure to

Respondents’ recurrent domestic violence, including violence by Respondent-mother

toward Beth; and Respondents’ denial of an education to the girls through a “sham”

home school. The court made additional findings regarding Respondents’ refusal of

services, including Respondent-mother’s failure to obtain a psychological assessment

and Respondent-father’s failures to obtain a Sex Offender Specific Evaluation or to

obtain treatment for domestic violence and his diagnoses of post-traumatic stress

disorder, depression, and “delusional disorder, persecutory type.”      The findings

further note Respondents’ attempts to deceive the trial court through the submission

of fraudulent documents and false testimony, as well as Respondent-mother’s

concealment of Carl’s existence from DSS and her placement of infant Carl in

Respondent-father’s care when she was jailed for contempt in July 2014. These

findings support the trial court’s conclusion of neglect.




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      B.     Adjudication of Abuse

      Respondents next contest Carl’s adjudication as an abused juvenile. Claiming

the trial court relied “only on [his] prior alleged sexual misconduct” with Martha,

Respondent-father argues that the court heard no evidence and made no findings

tending to show “that Carl was at a substantial risk of also suffering abuse” or that

Respondent-father “was at risk of sexually assaulting a boy instead of a girl.” He also

points to the court’s own finding “that there was no evidence showing that Carl had

been mentally, physically, or emotionally abused by [Respondents].” Respondent-

mother echoes these arguments and cites the testimony of DSS social worker

supervisor Beth Riley that Carl “looked fine” and did not show any signs of

mistreatment when he was taken into custody in July 2014. The GAL responds that

Respondent-mother’s act of leaving Carl “in the sole care of [Respondent-father] . . .

who had sexually abused Martha supports the trial court’s conclusion that there was

a substantial risk of serious injury to Carl.”

      The trial court based its adjudication of abuse on N.C. Gen. Stat. § 7B-

101(1)(b), under which a juvenile is deemed to be “abused” if his 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[.]”          In support of its conclusion that

Respondents “created or allowed to be created a substantial risk of serious physical

injury to [Carl] by other than accidental means,” the court found as follows:



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             60. . . . [Respondent-father] previously sexually assaulted
             [Martha] on more than one occasion; there were multiple
             acts of domestic violence between the respondent [m]other
             and respondent father in the presence of [Martha] and
             [Beth]; that the respondent mother threw items at [Beth]
             and that the mother left her three (3) month old child [Carl]
             alone and in the sole care of [respondent-father] who had
             been identified as a sex offender and had not complied with
             the court order to secure a Sex Offender Specific
             Evaluation and treatment.

The court acknowledged the lack of “actual evidence of physical or mental or

emotional abuse to [Carl] at this time,” but nonetheless found “that his physical,

mental and emotional condition is endangered to becoming impaired.”

      Unlike the statutory definition of “neglected juvenile,” the definition of “abused

juvenile” in N.C. Gen. Stat. § 7B-101(1) does not expressly state that the fact that the

juvenile lives in the home where another juvenile has been subjected to abuse by an

adult who regularly lives in the home is relevant to the analysis. As a result, the past

abuse of another juvenile living in the home can support an adjudication of abuse

only if there is evidence connecting that past abuse with a likelihood of future abuse

to the juvenile in question. Here, the record does not contain sufficient evidence to

suggest that Respondent-father’s past sexual abuse of Martha created a substantial

risk that Respondent-father would inflict “serious physical injury” on Carl.

Accordingly, we reverse the adjudication of abuse.




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                                  Opinion of the Court



      C.     Adjudication of Dependency

      Respondents also challenge the sufficiency of the trial court’s factual findings

in support of its conclusion that Carl is a dependent juvenile as defined by N.C. Gen.

Stat. § 7B-101(9) (2013). A “dependent juvenile” is defined, in pertinent part, as one

whose “parent, guardian, or custodian is unable to provide for the juvenile’s care or

supervision and lacks an appropriate alternative child care arrangement.” N.C. Gen.

Stat. § 7B-101(9). In order to sustain an adjudication of dependency, “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).

      Respondent-father argues that the trial court “made no ultimate finding

explaining why [Respondents] would be incapable of providing care and supervision”

for Carl. Therefore, he contends, “the findings of fact in this case fail to support a

conclusion that Carl was dependent.”      Respondent-mother likewise asserts that,

“other than a conclusory statement that the parents were incapable of caring for Carl,

there w[ere] no specific findings to support that conclusion.” Neither Respondent

contests the sufficiency of the court’s findings regarding the second prong of

dependency, i.e., their lack of an alternative child care arrangement for Carl.

      We reject Respondents’ arguments and hold that the trial court’s findings

support its conclusion of dependency. Those findings recount Respondents’ history



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                                  Opinion of the Court



of domestic violence and neglectful and abusive conduct toward Carl’s sisters which

resulted in the termination of their parental rights as to the girls in May 2014. The

findings further reflect Respondents’ refusal to address the issues that led to Martha

and Beth’s removal from their home, as well as their repeated attempts to deceive

DSS and the court and their deliberate concealment of Carl’s birth in April 2014. At

the time DSS filed the juvenile petition in this case, Respondent-mother was in jail

and had yet to obtain a court-ordered psychological evaluation. Respondent-father

had failed to pursue recommended treatment for domestic violence and his serious

mental health diagnoses.      Moreover, having sexually abused his five-year-old

daughter, Respondent-father had refused to obtain a sex offender evaluation to assess

his risk of recidivating with other children. The trial court’s findings also note that

Carl “exhibit[ed] some developmental delays with respect to mobility, swallowing and

hearing” at the time he was taken into DSS custody.

       We hold that these findings are sufficient to support the court’s conclusion

that respondents “are unable to appropriately supervise” Carl for purposes of N.C.

Gen. Stat. § 7B-101(9). See In re T.B., 203 N.C. App. 497, 506, 692 S.E.2d 182, 188

(2010) (developmental delays can support conclusion that parent is unable to care for

a child); see also In re P.M., 169 N.C. App. at 428, 610 S.E.2d at 406 (“a failure to

comply with court-ordered protection plans may establish an inability to care for or

supervise a child”).



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                                     Opinion of the Court



                                       Conclusion

      For the reasons discussed above, we reverse the trial court’s adjudication that

Carl is an abused juvenile under N.C. Gen. Stat. 7B-101(1)(b). In all other respects,

we affirm the trial court’s order.

      AFFIRMED IN PART; REVERSED IN PART.

      Judges ELMORE and DILLON concur.

      Report per Rule 30(e).




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