An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1154
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


IN THE MATTER OF:

S.M., J.M.                                    Johnston County
                                              Nos. 12 JA 135-36




      Appeal by respondent from orders entered 17 July 2013 by

Judge Resson Faircloth and 23 September                  2013   by Judge      Addie

Harris Rawls in Johnston County District Court.                     Heard in the

Court of Appeals 28 April 2014.


      Holland & O’Connor, P.L.L.C., by Jennifer S. O’Connor, for
      Johnston County Department of Social Services, petitioner-
      appellee.

      Marie H. Mobley for guardian ad litem.

      Peter S. Wood for respondent-appellant mother.


      HUNTER, Robert C., Judge.


      Respondent-mother appeals from orders (1) adjudicating her

minor    children     J.M.    (“Josiah”)1      and    S.M.    (“Susan”)     to    be

neglected and dependent juveniles, (2) maintaining the children

1
 Pseudonyms shall be used to protect the juveniles’ privacy and
for ease of reading.
                                          -2-
in   the   custody    of    the   Johnston      County   Department    of   Social

Services (“DSS”), and (3) denying her motion for a new trial

and/or for relief from the adjudication order pursuant to Rules

59 and 60 of the North Carolina Rules of Civil Procedure.                        N.C.

Gen. Stat. §§ 1A-1, Rules 59(a), 60(b) (2013).                 We affirm.

                              Procedural History

      DSS filed juvenile petitions on 30 August 2012, alleging

that six-year-old Josiah and four-year-old Susan were neglected

and dependent.       A hearing on the petitions was held in May 2013.

On 10 July 2013, respondent-mother’s counsel, Brian Knott, moved

to   withdraw.        The    district      court   allowed     the    motion     and

appointed counsel Steven Walker to represent respondent-mother

on 12 July 2013.

      On 17 July 2013, the court entered adjudications of neglect

and dependency for both Josiah and Susan.                  In its accompanying

disposition    order,       the   court    continued     the   children     in   DSS

custody and relieved the department of further efforts toward

reunification with respondent-mother.

      On 24 July 2013, respondent-mother filed in district court

a motion styled “Motion for a New Trial (Rule 59); Alternative

Motion for Relief (Rule 60 & N.C. Gen. Stat. § 7B-1000)[.]”

Citing newly discovered evidence or, alternatively, ineffective
                                             -3-
assistance by former counsel Knott, she asked the court to grant

her a new hearing pursuant to N.C.R. Civ. P. 59(a)(4) and (6),

or to set aside the adjudication and disposition orders pursuant

to N.C.R. Civ. P. 60(b)(4) and (6).

        The district court denied respondent’s motion in open court

after a hearing on 14 August 2013.                      On 15 August 2013, defendant

filed notice of appeal from the court’s ruling and from the 17

July     2013    adjudication         and    disposition            orders.        The    court

entered its written order denying defendant’s motion for relief

under Rules 59(a) and 60(b) on 23 September 2013.

                             Respondent-Mother’s Appeal

        Respondent-mother           does    not    challenge         any   aspect        of   the

district        court’s      adjudication         and    disposition          orders.         She

instead contends the “court abused its discretion by denying

[her] motion for a new adjudication hearing under Rule 60(b) and

Rule     59.”         The    basis    for    her        claim       is   counsel     Walker’s

discovery,       in    the    DSS    case    file,       of     a    report     prepared       by

psychologist Dr. Milton Kraft,2 who evaluated respondent-mother’s

live-in boyfriend, Mr. W., after Josiah and Susan alleged that

he had sexually abused them.                      According to respondent-mother,

Dr. Kraft found it “unlikely” that Mr. W. abused her children,



2
    The motion hearing transcript spells the surname “Craft.”
                                        -4-
and found it “possible” that respondent-father or his family had

coached the children into making false accusations against Mr.

W.   In the event that Dr. Kraft’s report was unavailable to

counsel    Knott    at    the    time     of   the     adjudicatory        hearing,

respondent-mother        contends       the    report       represents       “newly

discovered evidence” under Rule 59(a)(4) and Rule 60(b)(2).                       If

Dr. Kraft’s report was available, respondent-mother argues that

counsel’s failure to introduce it at the adjudicatory hearing

violated     her   right    to        effective    assistance       of     counsel,

justifying    relief      from    the     adjudications       of    neglect       and

dependency under Rules 59(a)(9) and 60(b)(6).

                            Standard of Review

     We review a trial court’s denial of a Rule 59(a) or Rule

60(b) motion only for abuse of discretion.                  In re Will of Buck,

350 N.C. 621, 625, 516 S.E.2d 858, 861 (1999) (Rule 59(a)); In

re E.H., __ N.C. App. __, __, 742 S.E.2d 844, 849 (2013) (Rule

60(b)),    disc.   review   improvidently         allowed,    __   N.C.    __,    754

S.E.2d 417 (2014).       A court abuses its discretion only when its

ruling is “manifestly unreasonable[.]”               Lovendahl v. Wicker, 208

N.C. App. 193, 205, 702 S.E.2d 529, 537 (2010).

                         Newly Discovered Evidence

     Under    N.C.R.     Civ.    P.    59(a)(4),     “[a]    new   trial    may   be
                                      -5-
granted to all or any of the parties and on all or part of the

issues” based on “[n]ewly discovered evidence material for the

party making the motion which he could not, with reasonable

diligence, have discovered and produced at the trial[.]”              N.C.

Gen. Stat. § 1A-1, Rule 59(a)(4).              Similarly, Rule    60(b)(2)

provides that the trial court “may relieve a party . . . from a

final judgment, order, or proceeding” on the basis of “[n]ewly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b).”3

N.C. Gen. Stat. § 1A-1, Rule 60(b)(2).

      Based on   respondent-mother’s own allegations, the report

prepared by Dr. Kraft does not qualify as “newly discovered

evidence” for purposes of Rules 59(a)(4) or 60(b)(2).            “In order

for   evidence   to   be   ‘newly   discovered   evidence’    under   these

rules, it must have been in existence at the time of the trial,

and   not   discoverable    through    due   diligence.”     Broadbent   v.

Allison, 176 N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006).             In

respondent-mother’s motion filed 24 July 2013, counsel Walker

reported discovering Dr. Kraft’s report in the DSS case file

following his appointment as substitute counsel.               The motion



3
 Inasmuch as respondent-mother timely served her Rule 59(b)
motion, the conditions for relief contemplated by Rule 60(b)(2)
manifestly do not apply.
                                     -6-
further averred that that Mr. W. “was aware of this conclusion

by Dr. Kraft and . . . had informed respondent-mother of the

results of his psychological evaluation.”

      Insofar as the report was in existence at the time of the

May 2013 adjudication hearing, it was plainly obtainable through

due diligence.      A respondent in an abuse, neglect, or dependency

proceeding may seek discovery from DSS pursuant to N.C. Gen.

Stat. § 7B-700(a), (c) (2013).4        Given respondent-mother’s avowed

awareness of the results of Mr. W.’s evaluation, her failure to

seek this evidence from DSS pursuant to N.C. Gen. Stat. § 7B-

700, or from Dr. Kraft himself by subpoena or otherwise, can

hardly be characterized as due diligence.            See Waldrop v. Young,

104   N.C.   App.     294,    297,    408   S.E.2d      883,   885   (1991).

Accordingly, we conclude that the district court did not abuse

its discretion in denying relief pursuant to Rules 59(a)(4) and

60(b)(2).

                 Ineffective Assistance of Counsel

      Rules 59(a)(9) and 60(b)(6) allow the trial court to grant

a new trial or relief from a judgment for “[a]ny . . . reason

heretofore   recognized      as   grounds   for   new   trial[,]”    or   that



4
 Indeed, respondent-father’s counsel informed the court that she
had reviewed the DSS file on multiple occasions but concluded
that Dr. Kraft’s evaluation “wasn’t of any consequence to me[.]”
                                          -7-
otherwise      “justif[ies]        relief       from   the    operation      of     the

judgment.”      N.C. Gen. Stat. § 1A-1, Rules 59(a)(9), 60(b)(6).

Despite the rules’ expansive language, we have emphasized that a

court    should     wield    its    authority       thereunder      “carefully      and

reluctantly”      and   only    where     necessary     to   avoid    “‘a   palpable

miscarriage of justice[.]’”               Boykin v. Wilson Med. Ctr., 201

N.C. App. 559, 561, 563, 686 S.E.2d 913, 915, 917 (2009) (Rule

59(a)(9)); accord Vaglio v. Town and Campus Int., Inc., 71 N.C.

App. 250, 255, 322 S.E.2d 3, 7 (1984) (“Courts have the power to

vacate judgments . . ., yet they should not do so under Rule

60(b)(6)      except    in   extraordinary         circumstances     and    after    a

showing that justice demands it.”).

       Respondent-mother argues that               counsel Knotts’ failure to

introduce     Dr.    Kraft’s    report      into   evidence    at    the    May   2013

adjudicatory hearing violated her right to effective assistance

of counsel.         Inasmuch as Dr. Kraft found it “unlikely” Mr. W.

had sexually abused Josiah and Susan, respondent-mother contends

that    his   report    would      have   vindicated    her    disbelief     of     her

children’s accusations.            She points out that the district court

cited her refusal to believe her children in its findings of

fact supporting the adjudications of neglect and dependency.
                                        -8-
    Under N.C. Gen. Stat. § 7B-602(a) (2013), a parent has a

right to counsel in an abuse, neglect, or dependency proceeding.

“This right to counsel also includes the right to effective

assistance of counsel.”         In re S.C.R., 198 N.C. App. 525, 531,

679 S.E.2d 905, 909, appeal dismissed, 363 N.C. 654, 686 S.E.2d

676 (2009).       To establish a successful claim that counsel’s

assistance was ineffective, a parent must “show that counsel’s

performance was deficient and the deficiency was so serious as

to deprive the represented party of a fair hearing.”                           In re

Oghenekevebe,     123    N.C.   App.       434,   436,    473    S.E.2d   393,      396

(1996).      “Judicial      review    of    counsel’s     performance        must    be

highly deferential so as to avoid the prejudicial effects of

hindsight.”      State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d

354, 360 (2003).          Moreover, “[a]          parent must also establish

[s]he suffered prejudice in order to show that [s]he was denied

a fair hearing.”        In re S.C.R., 198 N.C. App. at 531, 679 S.E.2d

at 909.

    Initially, we note there is no showing that respondent-

mother    ever   provided    the     district     court   with    a   copy    of    Dr.

Kraft’s report; nor has she included the document in the record

on appeal.       See generally Walker v. Penn Nat’l Sec. Ins. Co.,

168 N.C. App. 555, 560, 608 S.E.2d 107, 110 (2005) (“[W]hen the
                                      -9-
evidence is not in the record the matter is not reviewable.”)

(citation and internal quotation marks omitted); see also N.C.R.

App. P. 9(a)(1)(e).          The record does not indicate when the

report was prepared or delivered to DSS.                Nor does the record

reveal the actual contents of the report.             We are thus unable to

assess Dr. Kraft’s actual findings and conclusions or ascertain

the   evidence   he    relied   upon      in    reaching     his        conclusions.

Significantly,   there    is    no    allegation      that    Dr.       Kraft      ever

interviewed Josiah or Susan about the alleged sexual abuse, or

that he spoke with witnesses other than Mr. W.

      Moreover, “the purpose of the adjudication hearing is to

adjudicate    ‘the    existence      or   nonexistence       of     any       of    the

conditions alleged in a petition.’”              In re A.B., 179 N.C. App.

605, 609, 635 S.E.2d 11, 15 (2006) (quoting N.C. Gen. Stat. §

7B-802).     Accordingly, we have barred consideration of “post-

petition   evidence”    at   the     adjudicatory      stage       of    an    abuse,

neglect, or dependency proceeding.             Id.   In the case sub judice,

the issue before the court at adjudication was Josiah’s and

Susan’s status as neglected and dependent juveniles at the time

DSS filed its petitions on 30 August 2012.                 Given that DSS did

not allege sexual abuse by Mr. W. in support of its allegations

of neglect and dependency, Dr. Kraft’s evaluation of                          Mr. W.
                                -10-
subsequent to the petitions’ filing was not obviously germane to

the proceeding.

    Based    on   respondent-mother’s   limited   proffer,   we   cannot

conclude that her counsel’s failure to adduce Dr. Kraft’s report

at the adjudicatory hearing amounts to ineffective assistance of

counsel.    DSS did not seek adjudications of abuse or allege that

Josiah and Susan had been sexually abused.         As shown below, the

adjudications of neglect and dependency were based on several

factors,    including    respondent-parents’      mutual   history    of

domestic violence and violation of domestic violence protective

orders, Mr. W.’s threatening behavior toward respondent-father

and the children’s caretaker, Ms. T., and respondent-father’s

volatility and deteriorating mental health.

    In support of its adjudication, the district court found,

inter alia, as follows:

            7. . . . [T]he parents engaged in multiple
            incidents   of  domestic  violence in  the
            presence of the children. . . .

            8.   [Respondent-]mother used a wire hanger
            to discipline the juvenile, [Josiah], when
            he was a toddler, which left marks on the
            juvenile that remain to date.

            9.   In April of 2012, the mother enlisted
            the help of . . . [Mr. W.] to separate from
            [respondent-father]. . . .

            10.   In June of 2012, the parties separated.
                    -11-
. . .

11.     Thereafter the mother obtained a
Domestic Violence Protective Order (“DVPO”)
due    to    [respondent-father’s]  threats,
including threats of harming her or having
her deported.    As part of the [DVPO], the
mother was given temporary custody of the
minor children. . . .

12. The mother quit her job so      that   she
could be with the children. . . .

13. After     approximately  four    days,
[respondent-]mother and the minor children
went to stay at the residence of [Mr. W.]
and his roommate.

14. While at the home of Mr. [W.], both
children reported that Mr. [W.] touched them
inappropriately.    Both children disclosed
that Mr. [W.] put his hand down their pants
and touched their “privates”.   . . .   Both
children further disclosed that while Mr.
[W.] was touching [Susan], [Josiah] jumped
on him and Mr. [W.] punched [Josiah] in the
stomach.

15. The    children  further observed  the
mother drinking while they were staying at
Mr. [W.]’s apartment. . . .

16.   On July 19, 2012, [Josiah] telephoned
his father and told him something bad had
happened but before he could explain, the
mother hung up the phone.

17. On July 20, 2012, [the children’s adult
sister, Ms. T.,] went to pick up the
children for their . . . visitation with the
father.   Mr. [W.] was at the exchange and
attempted to prevent the children from going
on the visit.       Once at the father’s
residence, the children disclosed to the
                    -12-
father and their sister the     physical   and
sexual assault by Mr. [W.]

18. [Respondent-father]  obtained  a   DVPO
against the mother and obtained custody of
the children.

. . . .

20. After the DVPO was put in place in late
July,   2012,  both   parties  continued to
violate the no contact provision. . . .

. . . .

22. The children went to stay with their
sister, [Ms. T.] in August of 2012, with the
father’s consent. . . .

23.     On   or   about   August  10,   2012,
[respondent-father],    while    intoxicated,
contacted the mother and threatened her and
threatened to kill himself. . . .

24. Although the mother was advised of the
children’s disclosure against Mr. [W.], she
continued to maintain a relationship with
him, including up to the time of the filing
of the juvenile petitions.      [Respondent-
mother] was further aware of Mr. [W.]’s
mental health past that resulted in a
previous hospitalization.   . . . Mr. [W.]
has further provided the mother financial
support and assistance with remaining in the
country.

25.     Although the mother believes her
children   are  truthful,   she  refused   to
believe their disclosures against Mr. [W.]

26.    [Respondent-father] believed he     was
being followed by Mr. [W.] and that he     was
receiving threatening phone calls from     Mr.
[W.]   . . . Both [respondent-father]      and
                              -13-
         [Ms. T.] observed Mr. [W.] in a vehicle out
         front of    [respondent-father’s] home and
         observed Mr. [W.] point a gun at them.

         27. In mid to late August 2012, the father
         threatened to take the children from Ms.
         [T.] and take them to see their mother in
         Raleigh, North Carolina, in violation of the
         safety assessment entered into by [DSS].

         28.     On   or   about  August   24,  2012,
         [respondent-father] again threatened to take
         the children from Ms. [T.]    After Ms. [T.]
         refused to give the children to [respondent-
         father], he grabbed Ms. [T.] and threatened
         to kill her.

         . . . .

         30. [Respondent-father]’s    mental   health
         became noticeably concerning as the month of
         August progressed.   Ms. [T.], his daughter,
         and [DSS] became fearful of his mental
         health status.

         . . . .

         32. [On    August  30,  2012], the  father
         purposely overdosed on his medication and
         had to be hospitalized.

         33.   The children were originally placed in
         the nonsecure custody of [Ms. T.], but had
         to be moved due to threats by Mr. [W.], as
         well as [respondent-father] coming to the
         home in violation of the order.     No other
         alternative placement was available for the
         children and they were placed in foster
         care.

Based on these facts, the court determined that Josiah and Susan

“lived in an environment injurious to their health and welfare
                                         -14-
and    further    were     at    a   substantial          risk   of    physical     and/or

emotional impairment if returned to the care of either parent.”

See N.C. Gen. Stat. § 7B-101(15) (2013) (defining “neglected

juvenile”).       The court further found “that neither parent was

able    to   provide      proper     care     and    supervision        and   lacked      an

appropriate alternative care arrangement.”                       See N.C. Gen. Stat.

§ 7B-101(9) (2013) (defining “dependent juvenile”).

       Respondent-mother does not challenge any finding of fact or

conclusion of law in the adjudication and disposition orders

entered on 17 July 2013.                Unchallenged findings of fact are

binding on this Court.               In re S.N., X.Z., 194 N.C. App. 142,

147, 669 S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C. 368,

677    S.E.2d    455     (2009).        These       unchallenged        findings        fully

support the conclusion that Josiah and Susan were neglected and

dependent juveniles, irrespective of the truth of their sexual

abuse allegations.              Moreover, the fact that respondent-mother

dismissed their        allegations and remained with Mr. W.                        –     well

before his evaluation by Dr. Kraft – was properly considered by

the court in assessing the extant risks to the children.

       Respondent-mother          has   not    shown       she   was     prejudiced       by

counsel’s       failure    to     introduce         Dr.    Kraft’s      report     at    the

adjudicatory       hearing.          Accordingly,          we    find    no      abuse    of
                                            -15-
discretion    by    the    district         court   in    denying   her   motion    for

relief pursuant to Rule 59(a)(9) and 60(b)(4).                      See In re L.C.,

181 N.C. App. 278, 283, 638 S.E.2d 638, 641 (2007) (“Because

respondent has failed to demonstrate the prejudice he suffered,

he has likewise failed to establish his claim of ineffective

assistance of counsel.”).

                                  Remaining Issues

    To the extent respondent-mother claims “excusable neglect”

as a basis for relief under N.C.R. Civ. P. 60(b)(1), we find

that she failed to present this issue to the district court and

may not now “‘swap horses between courts in order to get a

better mount [on appeal].’”                 Regions Bank v. Baxley Commercial

Props., LLC, 206 N.C. App. 293, 298-99, 697 S.E.2d 417, 421

(2010) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d

3, 5 (1996)); see also N.C.R. App. P. 10(a)(1).

    We likewise reject respondent-mother’s suggestion that the

order denying her motion lacks sufficient findings of fact and

conclusions    of    law        and    is   impermissibly      “vague.”       Because

respondent-mother         did    not    request     the    entry    of   findings   and

conclusions pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(2),

none were required.             Creasman v. Creasman, 152 N.C. App. 119,

124, 566 S.E.2d 725, 729 (2002) (“A trial court is not required
                                     -16-
to make written findings of fact when ruling on a Rule 60(b)

motion,   unless   requested    to    do    so    by   a   party.”);   Edge    v.

Metropolitan Life Ins. Co., 78 N.C. App. 624, 626, 337 S.E.2d

672, 674 (1985) (same for Rule 59(a)).

    Finally, we find no merit to respondent-mother’s argument

that the district court erred by characterizing her claims under

Rules 59 and 60 as “more appropriately classified as appellate

issues” redressable under N.C. Gen. Stat. § 7B-1001 (2013).                   The

court   also   found   “no   evidentiary     or    factual     basis   to   grant

relief pursuant to Rule 59 or 60[.]”             “[A] correct decision of a

lower court will not be disturbed because the reason assigned

for it is wrong, insufficient, or superfluous. The question on

review of the decision in this Court is whether the ruling of

the court below was correct, not whether the reason given for it

is sound or tenable.”        State v. Parker, 316 N.C. 295, 302, 341

S.E.2d 555, 559 (1986).

                                Conclusion

    Respondent-mother        does   not    contest     the    adjudication    and

disposition orders entered on 17 July 2013.                  The district court

did not abuse its discretion in denying her Rule 59 and 60

motion.   Accordingly, we affirm each of these orders.
                         -17-
AFFIRMED.

Judges GEER and McCULLOUGH concur.

Recommend Report per Rule 30(e).
