              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-563

                              Filed: 20 December 2016

Mecklenburg County, No. 16 JA 89

IN THE MATTER OF: J.A.M.


      Appeal by respondent from order entered 30 March 2016 by Judge Louis A.

Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 5

December 2016.


      Christopher C. Peace for petitioner-appellee Mecklenburg County Department
      of Social Services, Youth and Family Services.

      Richard Croutharmel for respondent-appellant.

      Poyner Spruill LLP, by Caroline P. Mackie, for guardian ad litem.


      TYSON, Judge.


      Respondent-mother appeals from an order adjudicating her minor child,

J.A.M., to be a neglected juvenile. We reverse.

                               I. Factual Background

      Respondent-mother has a long history of prior involvements with the

Mecklenburg County Department of Social Services, Youth and Family Services

Division (“YFS”) dating back to 2007. This history is primarily related to reports of

domestic violence with the fathers of six prior children. YFS filed juvenile petitions

regarding Respondent-mother’s other six children. Her parental rights to those
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                                  Opinion of the Court



children were terminated by order entered in April 2014. Respondent-mother began

a relationship with J.A.M.’s father, which resulted in J.A.M.’s birth in late January

2016. J.A.M.’s father also had a prior history with YFS due to domestic violence,

which led to the removal of a child from his custody in 2012.

      YFS received a report of J.A.M.’s birth on 24 February 2016. A social worker

went to Respondent-mother’s home. The social worker found Respondent-mother’s

home to be appropriate for J.A.M. and that J.A.M. seemed to be healthy and well

cared for. The social worker subsequently learned that police had not been called to

the home.

      Based solely upon the parents’ prior histories with YFS, the social worker

developed a Safety Assessment in an attempt to determine whether their previous

issues had been addressed. Respondent-mother and J.A.M.’s father refused to sign

the Safety Assessment.      Respondent-mother asserted that they did not need

involvement of services from YFS, because J.A.M. was being properly cared for and

there were no on-going acts of domestic violence. Respondent-mother also declined

to attend a meeting at YFS to determine how YFS would proceed on the report.

      Despite the results of the home visit and investigation, YFS subsequently took

nonsecure custody of J.A.M. and, on 29 February 2016, filed a petition alleging J.A.M.

was a neglected juvenile. YFS alleged J.A.M. was not safe in the care of her parents

based solely upon their prior histories. After a hearing on 30 March 2016, the trial



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court entered an order adjudicating J.A.M. to be a neglected juvenile. At the time of

the hearing, Respondent-mother and J.A.M.’s father were no longer living together

or involved in a relationship. The court continued custody of J.A.M. with YFS,

ordered the parents to “address the issues that led their prior kids and this child

[being removed from their] custody,” granted the parents twice-weekly supervised

visitation with J.A.M., ceased reunification efforts with Respondent-mother due to

the termination of her parental rights to her prior children, and set the primary plan

of care for J.A.M. as reunification with the father with a secondary plan of

guardianship or adoption. Respondent-mother filed timely notice of appeal from the

court’s order.

                                     II. Jurisdiction

         Jurisdiction lies in this Court of right by timely appeal from final judgment of

the court in a juvenile matter pursuant to N.C. Gen. Stat. § 7B-1001 (2015).

                                        III. Issue

         Respondent-mother argues the trial court erred in adjudicating J.A.M. to be a

neglected juvenile, because the court’s conclusions of law are not supported by

findings of fact that are supported by clear, cogent and convincing evidence. We

agree.

                                 IV. Standard of Review




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      This Court reviews a trial court’s adjudication of a child to be a neglected

juvenile 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 and quotation marks omitted). “The trial court’s conclusions of law are

reviewable de novo on appeal.” In re K.J.D., 203 N.C. App. 653, 657, 692 S.E.2d 437,

441 (2010) (citation and quotation marks omitted).

                                       V. Analysis

      A neglected juvenile is defined in relevant part as:

             A juvenile . . . who lives in an environment injurious to the
             juvenile’s welfare . . . . 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) (2015).

      To support an adjudication of neglect, the trial court’s findings of fact must

show “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 Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258

(2003) (citation and quotation marks omitted).

                                 A. Findings of Fact

      The trial court made the following findings of fact in its order:


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             Clear and convincing evidence juv. [sic] is neglected.
             [Respondent-mother]’s testimony was telling today.
             Additionally, parents failed to make any substantive
             progress in their prior cases which resulted in TPR for
             [Respondent-mother] and [Father]’s child was placed in the
             custody of that child’s mother. Dept. [sic] attempted to
             engage parents when it received a referral and both
             parents declined to work [with] Dept. and reported not
             needing any services.       [Respondent-mother] testified.
             MGM and SW Sup. West [sic] all testified. Previously
             [Respondent-mother]’s children were returned to her care
             and ended up back in [YFS’] custody due to the abuse of
             one of the juveniles and it appeared [Respondent-mother]
             was not demonstrating skills learned by service providers.
             [Father] did not dispute allegations in the petition.
             [Respondent-mother] has a [history] of dating violent men
             and [Father] in this case has been found guilty at least
             twice for assault on a female. [Respondent-mother]
             acknowledged being aware [Father] had been charged
             [with] assaulting his sister but [Respondent-mother] said
             she never asked [Father] if he assaulted his sister despite
             testifying about the “red flags” she learned in DV servs.
             [Respondent-mother] testified to having a child [with] the
             man who abused one of her kids. Dept. [sic] received a total
             of 12 referrals regarding the [Respondent-mother] and at
             least 11 referrals pertained to domestic violence. Ct. [sic]
             took into consideration all the exhibits (1-4) submitted by
             YFS when making its decision. To date, [Respondent-
             mother] failed to acknowledge her role in the juvs. [sic]
             entering custody and her rights subsequently being
             terminated.

The referenced exhibits attached were a certified copy of the father’s criminal record,

adjudication orders from 2012 and 2013 involving each parent’s prior children, and

the 2014 order terminating Respondent-mother’s parental rights to her prior

children.



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      Based on these findings, the court concluded:

             The child(ren) is/are neglected in that Juv. [sic] resides in
             an environment in which both parents have a [history] of
             domestic violence/assault and each parent had a child
             enter [YFS] custody that was deemed abused while in the
             care of each parent. All of juveniles’ siblings were
             adjudicated neglected. No evidence the parents have
             remedied the injurious environment they created for the
             other children.

The last two sentences of this paragraph are conclusions instead of findings of fact

and will be treated as such. In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890,

892-93 (citations and quotation marks omitted), disc. review denied 359 N.C. 321, 611

S.E.2d 413 (2004) (holding where a finding of fact is essentially a conclusion of law,

it will be treated as a conclusion of law which is reviewable de novo on appeal).

      The court’s “findings,” which are more akin to abbreviated trial notes than

actual findings, do not support its conclusion that J.A.M. is a neglected juvenile. The

court’s first finding, “[c]lear and convincing evidence juv. [sic] is neglected” is a

conclusion of law, and the second finding, “[Respondent-mother]’s testimony was

telling today” is meaningless, in that the court does not explain how Respondent-

mother’s testimony was “telling.” Several of the court’s other findings are simply

procedural statements that cannot support any legal conclusion, including:

“[Respondent-mother] testified. MGM and SW Sup. West [sic] all testified,” “[Father]

did not dispute the allegations in the petition,” and “Ct. [sic] took into consideration

all the exhibits (1-4) submitted by YFS when making its decision.”


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      The trial court made three findings regarding J.A.M.’s current living situation:

(1) YFS conducted a home visit, visited with J.A.M.’s parents, and that Respondent-

mother and father stated they did not need services and declined to work with YFS;

(2) although Respondent-mother knew J.A.M.’s father had been charged with

assaulting his sister, she had never asked him about the assault; and, (3) Respondent-

mother had never acknowledged her role in the termination of her parental rights to

her prior children.

      Respondent-mother does not challenge the first two findings, but contends the

trial court’s finding that she never acknowledged her role in the prior termination of

her parental rights is unsupported by the evidence. We agree. While Respondent-

mother testified that she was not personally involved in the physical abuse of one of

her prior children, because she was upstairs asleep at the time, she admitted the

termination of her parental rights to her prior children involved poor decisions and

choices she made, and she was not trying to defend those past decisions and choices.

This evidence directly contradicts the finding and there is no evidence in the record

to the contrary. This finding cannot support the trial court’s conclusion that J.A.M.

is a neglected juvenile.

      Other than the finding involving Respondent-mother’s failure to ask J.A.M.’s

father about his alleged assault on his sister, the only findings of fact made by the

trial court which tend to support its conclusion J.A.M. is a neglected juvenile all



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pertain to the parents’ history with their prior children. These findings include: (1)

J.A.M.’s siblings were adjudicated neglected; (2) Respondent-mother and J.A.M.’s

father did not make any substantive progress in their prior cases, leading to the

termination of Respondent-mother’s parental rights and the permanent placement of

the father’s child with her mother; (3) Respondent-mother’s prior children were

returned to her care during the previous case, but subsequently removed due to the

abuse of one child and Respondent-mother’s failure to make progress on her case; (4)

Respondent-mother has a history of dating violent men; (5) J.A.M.’s father has two

prior convictions for assault on a female; (6) 11 of 12 referrals to YFS in Respondent-

mother’s previous juvenile case involved domestic violence; and, (7) Respondent-

mother had a child with a man who had abused one of her children.

                          B. Lack of Evidence or Findings

      The trial court failed to make any findings of fact regarding any current

domestic violence. No evidence was presented of any instances of domestic violence

between Respondent-mother and J.A.M.’s father or that either parent had engaged

in domestic violence while in J.A.M.’s presence. Moreover, the father’s last proven

incident of domestic violence occurred more than 42 months prior to J.A.M.’s birth.

      Similarly, Respondent-mother’s most recent documented instance of domestic

violence occurred in June 2012, more than 43 months prior to J.A.M.’s birth.

Respondent-mother and J.A.M.’s father maintained an appropriate home, and both



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denied they needed services to alleviate concerns YFS had regarding their home. YFS

presented no evidence such services were needed. No evidence supports the lack of

suitability of J.A.M.’s current home environment.

      The court’s findings of fact are also notably silent regarding whether, in the

intervening years since the conclusion of the parents’ prior juvenile cases, the parents

have remedied the injurious environments of their prior children.

      The court found no evidence had been presented that the parents had remedied

the issues that caused the prior injurious environments. Nevertheless, the burden of

proof rests upon YFS to prove its allegations by clear, cogent, and convincing

evidence. In re K.J.D., 203 N.C. App. at 657, 692 S.E.2d at 441. The absence of

evidence cannot support usurpation of parental rights. YFS must introduce relevant

clear, cogent, and convincing evidence supporting any allegation of neglect, or any

other dereliction of parental responsibility which it failed to do. See N.C. Gen. Stat. §

7B-805 (2015) (“The allegations in a petition alleging that a juvenile is abused,

neglected, or dependent shall be proved by clear and convincing evidence.”).

Additionally, the court’s findings do not show J.A.M. suffered from or is at a

substantial risk to suffer from any physical, mental, or emotional impairment as a

consequence of living in Respondent-mother’s home.

      Due to the intervening years between the prior cases and the facts before us,

we conclude the parents’ past histories, coupled only with Respondent-mother’s



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failure to inquire about an alleged incident of prior domestic violence by J.A.M.’s

father, do not support a legal conclusion that J.A.M. is a neglected juvenile. See In re

A.K., 178 N.C. App. 727, 732, 637 S.E.2d 227, 230 (2006) (holding the trial court erred

in relying solely on nine- and fifteen-month-old orders concluding a juvenile’s sibling

was neglected to support a conclusion that the juvenile was also neglected). No

evidence supports the trial court’s findings of fact. The findings do not support its

conclusion that J.A.M. is a neglected juvenile because she lives in an environment

injurious to her welfare.

                                    VI. Conclusion

      The trial court’s findings of fact are not supported by clear, cogent, and

convincing evidence. These findings do not support the trial court’s conclusion that

J.A.M. was neglected. The order appealed from is reversed. It is so ordered.

      REVERSED.

      Judges BRYANT and McCULLOUGH concur.




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