              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-933

                               Filed: 19 January 2016

Mecklenburg County, Nos. 14 JA 820-23, 13 JA 359

IN THE MATTER OF:

Q.A., J.A., M.A., S.G., T.G.




      Appeal by respondent-mother from order entered 13 May 2015 by Judge Rickye

McKoy-Mitchell in Mecklenburg County District Court.          Heard in the Court of

Appeals 16 December 2015.


      Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L.
      Terres, for respondent-appellant mother.

      Kathleen A. Jackson for petitioner-appellee Mecklenburg County Department of
      Social Services, Youth and Family Services.

      Melanie Stewart Cranford for guardian ad litem.


      ELMORE, Judge.


      The trial court erred in (1) adjudicating the two girls, but not the three boys,

neglected juveniles, despite the parties’ stipulations to the same facts regarding the

living conditions and other pertinent characteristics experienced by all five children,

and (2) subsequently dismissing the petition regarding the boys.

                                   I. Background
                                            IN RE: Q.A.

                                        Opinion of the Court



      In October 2014, the Mecklenburg County Department of Social Services

Youth and Family Services Division (YFS) received a report regarding juveniles

Quinn, Mark, John, Sophia, and Tori.1 Their mother (respondent) had gone to New

York two weeks prior, leaving them in the care of their grandmother.               The

grandmother, however, was unable to adequately care for the children. In November

2014, she moved from a hotel into a transitional home. By 10 December 2014, the

home was without heat, had no working plumbing in the bathrooms, and no hot

water. They lost electricity two days later. On 13 December 2014, they were evicted

from the transitional home.

      On 15 December 2014, YFS filed a petition alleging the children to be neglected

and dependent. The petition listed three parents for the juveniles: C.B., father of

Sophia and Tori, M.A., Sr., father of Quinn, John, and Mark, and respondent, mother

of all five children. The petition contained no known address for respondent or M.A.,

Sr.; C.B. was incarcerated in Virginia.

      On 1 April 2015, the trial court held a nonsecure custody hearing for the benefit

of M.A., Sr., followed by adjudication and disposition hearings. M.A., Sr. was present,

C.B. appeared via telephone, and respondent was absent. During the nonsecure

custody hearing, the trial court denied M.A., Sr.’s request for a dismissal of the




      1   We use these pseudonyms to protect the identity of the minor children.

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                                      IN RE: Q.A.

                                   Opinion of the Court



nonsecure custody order so that Quinn, John, and Mark could be temporarily placed

with him.

      During the adjudication hearing, the petition was read into the record.

Attorneys for respondent and C.B. had stipulated to the submission of the verified

petition for purposes of adjudication. M.A., Sr.’s attorney stipulated to those portions

of the petition addressing the children’s circumstances prior to the filing of the

petition, but denied those portions addressing YFS’s unsuccessful efforts to locate

him, his unknown whereabouts, and having no relatives capable of providing for the

children. M.A., Sr. also testified at the hearing, responding affirmatively to questions

from his attorney that YFS had been in contact with him a number of times over the

years and that he gave them his address “years ago.”

      At the close of the evidence, the trial court adjudicated Tori and Sophia

neglected and dependent juveniles, but did not enter an adjudication as to Quinn,

John, or Mark. In its written order, the trial court concluded that Tori and Sophia

were neglected and dependent and that it was in their best interest to “remain in the

legal custody of YFS . . . with/in appropriate placement.” The court further concluded

that it was in the best interest of Quinn, John, and Mark “to be returned to father,

[M.A., Sr.], where he/she will receive proper care and supervision . . . .” The court

then ordered the petition for Quinn, John, and Mark be dismissed, and that they “be

returned to [M.A., Sr].”



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                                     IN RE: Q.A.

                                  Opinion of the Court



      Respondent appeals from the trial court’s adjudication and disposition order

entered 13 May 2015.

                                      II. Discussion

      Respondent argues that the trial court erred in adjudicating Tori and Sophia

neglected, but not Quinn, John, and Mark, because the pertinent circumstances

surrounding all five children were the same. We agree.

      “The role of this Court in reviewing a trial court’s adjudication of neglect and

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 T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007)

(quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff’d as

modified, 362 N.C. 446, 665 S.E.2d 54 (2008). “If such evidence exists, the findings

of the trial court are binding on appeal, even if the evidence would support a finding

to the contrary.” Id.

      The Juvenile Code defines a “neglected juvenile” as one

             who does not receive proper care, supervision, or discipline
             from the juvenile’s parent, guardian, custodian, or
             caretaker; or who has been abandoned; or who is not
             provided necessary medical care; or who is not provided
             necessary remedial care; or who lives in an environment
             injurious to the juvenile’s welfare; or who has been placed
             for care or adoption in violation of law.




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                                      IN RE: Q.A.

                                   Opinion of the Court



N.C. Gen. Stat. § 7B-101(15) (2013). “In determining whether a child is neglected,

the determinative factors are the circumstances and conditions surrounding the

child, not the fault or culpability of the parent.” In re Montgomery, 311 N.C. 101, 109,

316 S.E.2d 246, 252 (1984).

      The trial court, in considering the stipulated facts in the petition, had evidence

that the children lived in an injurious environment. When DSS took nonsecure

custody of the children, all five were in the care of their grandmother, having no

home, no electricity, no plumbing, and no food. Neglect, the determination based

upon the factors surrounding a child, was the same for all five children. The trial

court did find that the boys’ father was “willing to take placement of his children and

would have been a resource if contact was made with him prior to the children coming

into custody.” Regardless of whether the evidence supports this finding, however, the

availability of the boys’ father in this case, while relevant to an adjudication of

dependency, has no bearing on an adjudication of neglect. On these facts, the trial

court could not have found that some of the children were neglected while others were

not. Accordingly, we reverse and remand this matter to the trial court to enter a

proper adjudication order, to wit, an order adjudicating the three boys, as well as the

girls, neglected juveniles.

      In addition, because the district court’s erroneous adjudication directly

resulted in the court’s dismissal of the petition regarding the boys, we vacate that



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                                   Opinion of the Court



portion of the order. A dispositional hearing must follow the adjudication of a juvenile

as abused, neglected, or dependent. See N.C. Gen. Stat. § 7B-901(a) (2013) (“The

dispositional hearing shall take place immediately following the adjudicatory hearing

. . . .”). Thus, on remand the district court retains jurisdiction both to properly

adjudicate the boys as neglected juveniles and to enter an appropriate disposition

order for the three boys.

                                   III. Conclusion

      In conclusion, we remand to the district court for (1) a proper adjudication of

the boys and (2) entry of an appropriate disposition regarding the boys based

thereupon.

      REVERSED IN PART; VACATED IN PART; AND REMANDED.

      Judges GEER and STEPHENS concur.




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