                              NO. COA13-1112

                    NORTH CAROLINA COURT OF APPEALS

                             Filed: 6 May 2014


IN THE MATTER OF:

                                       Wilson County
                                       No. 12 JA 65, 67-68
J.C.B., C.R.R., H.F.R.



    Appeal by respondents from orders entered 22 July 2013 by

Judge Pell C. Cooper in Wilson County District Court.          Heard in

the Court of Appeals 27 March 2014.


    Stephen L. Beaman for petitioner-appellee           Wilson   County
    Department of Social Services.

    Richard Croutharmel for respondent-appellant mother.

    Michael E. Casterline for respondent-appellant father.

    Parker, Poe, Adams & Bernstein, by Sarah F. Hutchins and
    Ashley A. Edwards, for guardian ad litem.


    ELMORE, Judge.


    Respondents,     the    parents   of   the   juvenile   J.C.B.   and

custodians of their nieces C.R.R. and H.F.R., appeal from orders

entered 22 July 2013 adjudicating J.C.B., C.R.R., and H.F.R.

neglected juveniles.       After careful review, we reverse in part,

and dismiss, in part.
                                           -2-
                                           I. Facts

       This case is related to In The Matter of R.R.N., ___ N.C.

App. ___, ___ S.E.2d ___ (COA13-947) (2014).                                 R.R.N. is the

step-daughter      of    respondent-father’s           cousin.           On    30    November

2012, the Wilson County Department of Social Services (“DSS”)

filed    a    petition     alleging       that     R.R.N.        was     an    abused        and

neglected     juvenile.       DSS        stated    that      it    received          a     Child

Protective     Services     report       on   20    August        2012       claiming      that

R.R.N. had been sexually abused by respondent-father during an

overnight visit to respondents’ home on 18 August 2012.                                  J.C.B.,

C.R.R., and H.F.R. were all present in the home at the time of

the alleged sexual abuse.            Accordingly, on 30 November 2012, DSS

filed petitions alleging that J.C.B., C.R.R., and H.F.R. were

neglected in that they lived in an environment                                injurious to

their    welfare   because        they    resided      in    a    home       where    another

juvenile had been sexually abused.

       DSS    additionally        alleged     that     C.R.R.          and    H.F.R.        were

dependent juveniles.         C.R.R. and H.F.R. are respondents’ nieces

and     respondents      shared     custody       of   the       juveniles          with    the

juveniles’      maternal     grandmother.              C.R.R.       and       H.F.R.       were

residing with respondents and unable to return to their parents’

home    due   to   their    parents’        continuing       issues          with    domestic
                                         -3-
violence and substance abuse.                  The plan at the time of the

filing of the petitions was for C.R.R. and H.F.R. to move into

the residence of their maternal grandmother.

       Adjudicatory hearings were held on 13, 14, 15, and 29 March

2013.     The trial court concluded that respondent-father abused

R.R.N. and found that J.C.B., C.R.R., and H.F.R. resided in the

home when the abuse occurred.               Accordingly, on 22 July 2013, the

trial court adjudicated J.C.B., C.R.R., and H.F.R. as neglected

juveniles.        The trial court declined to adjudicate C.R.R. and

H.F.R dependent as alleged in the petitions.                          The trial court

ordered that custody of J.C.B. remain with respondents while

custody    of   C.R.R.        and   H.F.R.   be    granted       to    their    maternal

grandmother.            Respondent-father          was     ordered      to     have   no

unsupervised contact with C.R.R. and H.F.R.                           The trial court

also    entered     a    written    order    initiating      a    Chapter      50   civil

custody action as to C.R.R. and H.F.R.                   Respondents appeal.

                                       II. Analysis

       Respondent-father first argues that the trial court erred

by adjudicating R.R.N. an abused juvenile.                        Respondent-father

contends     that       the   trial   court       failed    to    make       appropriate

findings of fact to support a conclusion that R.R.N. was the

victim of a sexual offense.                  We decline, however, to review
                                     -4-
respondent-father’s argument because he has no right to appeal

the adjudication of abuse.

    A juvenile matter based on Subchapter I, “Abuse, Neglect,

Dependency” of General Statutes Chapter 7B may be appealed by

the following parties:

            (1) A juvenile acting through the juvenile’s
            guardian ad litem previously appointed under
            G.S. 7B–601.

            (2) A juvenile for whom no guardian ad litem
            has been appointed under G.S. 7B–601. If
            such an appeal is made, the court shall
            appoint a guardian ad litem pursuant to G.S.
            1A–1, Rule 17 for the juvenile for the
            purposes of that appeal.

            (3) A county department of social services.

            (4) A parent,         a guardian appointed under
            G.S. 7B–600 or        Chapter 35A of the General
            Statutes, or a       custodian as defined in G.S.
            7B–101 who is a      nonprevailing party.

            (5) Any party that sought but failed                to
            obtain termination of parental rights.

N.C. Gen. Stat. § 7B–1002 (2013); see N.C. Gen. Stat. § 7B–1001

(2013).    Respondent-father does not fall within any category of

persons afforded a statutory right to appeal from a juvenile

matter    pursuant   to   N.C.    Gen.   Stat.   §§   7B–1001   and   7B–1002

(2013).    Thus, he lacks standing to appeal the trial court’s 22

July 2013 order adjudicating R.R.N. an abused juvenile.
                                         -5-
       We    next   consider     respondents’        arguments         that   the    trial

court erred by adjudicating J.C.B., C.R.R., and H.F.R. neglected

juveniles.      Respondents both argue that the trial court erred in

adjudicating        J.C.B.,    C.R.R.,       and    H.F.R.      neglected      juveniles

because its findings are insufficient to support the conclusion

that they were harmed by respondent-father’s actions or exposed

to a substantial risk of harm.               We agree.

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

adjudication of neglect [] 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. (citation omitted).

       The    statutory    definition        of    neglect   provides         that   “[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
                                           -6-
adult who regularly lives in the home.”                        N.C. Gen. Stat. § 7B–

101(15) (2013).         This Court has acknowledged, however, that “the

fact    of   prior      abuse,     standing      alone,     is      not   sufficient    to

support an adjudication of neglect.”                     In re N.G., 186 N.C. App.

1, 9, 650 S.E.2d 45, 51 (2007), aff’d per curiam, 362 N.C. 229,

657    S.E.2d    355     (2008).         Instead,       this    Court     has   generally

required      the     presence     of    other    factors      to    suggest     that   the

neglect or abuse will be repeated.                      See, e.g., In re C.M., 198

N.C.   App.     53,    66,   678    S.E.2d       794,    801-02      (2009)     (affirming

adjudication of neglect based upon prior abuse of another child

and a history of domestic violence between the parents); In re

A.S., 190 N.C. App. 679, 690-91, 661 S.E.2d 313, 320-21 (2008),

aff’d per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009) (affirming

adjudication of neglect of a child based upon mother’s act of

intentionally burning another child’s foot and falsely claiming

that the burning was accidental); In re P.M., 169 N.C. App. 423,

427,   610    S.E.2d      403,     406    (2005)    (affirming        adjudication      of

neglect of one child based on prior adjudication of neglect with

respect to other children and parent’s lack of acceptance of

responsibility).

       Even if we assume arguendo that respondent-father abused

R.R.N., a juvenile, in the home where J.C.B., C.R.R., H.F.R.,
                                      -7-
and respondent-father lived, this fact alone does not support a

conclusion that J.C.B., C.R.R., and H.F.R. were neglected.                  In

re N.G., supra.         The trial court made virtually no findings of

fact regarding J.C.B., C.R.R., or H.F.R., and wholly failed to

make any finding of fact that J.C.B., C.R.R., and H.F.R. were

either abused themselves or were aware of respondent-father’s

inappropriate relationship with R.R.N.               Additionally, the trial

court   failed    to    make   any   findings   of    fact   regarding   other

factors that would support a conclusion that the abuse would be

repeated.    As a result, the findings of fact do not support a

conclusion       that     respondent-father’s         conduct    created     a

“substantial risk” that abuse or neglect of J.C.B., C.R.R., and

H.F.R. might occur.        In re Safriet, 112 N.C. App. 747, 752, 436

S.E.2d 898, 901–02 (1993) (citation omitted).                Accordingly, we

reverse the trial court’s adjudications of neglect.

    Lastly, respondent-mother argues that the trial court erred

by entering a Juvenile Court Order Initiating Civil Action For

Custody (the civil custody order), transferring the cases of

C.R.R. and H.F.R. to a Chapter 50 action.                 We note, however,

that respondent-mother failed to give proper notice of appeal

from this order and has filed a petition for writ of certiorari.

She avers that we should grant the writ of certiorari because
                                          -8-
her untimely appeal from the civil custody order “stems from her

court-appointed         trial    attorney’s     failure    to   do    so   and    not

because of any lack of desire on her part to appeal that order.”

      N.C. Appellate Procedure Rule 3.1(a) provides:

                 Any party entitled by law to appeal from a
                 trial court judgment or order rendered in a
                 case   involving  termination   of  parental
                 rights and issues of juvenile dependency or
                 juvenile abuse and/or neglect, appealable
                 pursuant to N.C.G.S. § 7B-1001, may take
                 appeal by filing notice of appeal with the
                 clerk of superior court and serving copies
                 thereof upon all other parties in the time
                 and manner set out in Chapter 7B of the
                 General Statutes of North Carolina.

      N.C.R. App. P. 3.1(a).             Pursuant to N.C. Gen. Stat. § 7B-

1001 (2013), “[n]otice of appeal and notice to preserve the

right to appeal shall be given in writing . . . within 30 days

after entry and service of the order[.]”               An appellant’s failure

to   give    timely     notice    of   appeal   “is   jurisdictional,       and   an

untimely attempt to appeal must be dismissed.”                  In re I.T.P-L.,

194 N.C. App. 453, 459, 670 S.E.2d 282, 285 (2008) (citation and

quotations omitted).            However, writ of certiorari “may be issued

in appropriate circumstances by either appellate court to permit

review      of    the   judgments      and   orders   of   trial     tribunals[.]”

N.C.R. App. P. 21.              This Court has held that an appropriate

circumstance to issue writ of certiorari occurs when an appeal
                                           -9-
“has been lost because of a failure of his or her trial counsel

to give proper notice of appeal.”                      State v. Gordon, ___ N.C.

App. ___, ___, 745 S.E.2d 361, 363 (2013), review denied, ___

N.C. ___, 749 S.E.2d 859 (2013).                      In such cases, the evidence

indicated       the    appellant’s       “desire[]       to     pursue        the    appeal”

despite the attorney’s error.                 I.T.P-L., 194 N.C. App. at 460,

670 S.E.2d at 285; see In re I.S., 170 N.C. App. 78, 84, 611

S.E.2d    467,     471      (2005)     (granting       writ    of    certiorari           where

appellant’s notice of appeal incorrectly stated that it was from

a January order but it was clear from the circumstances that

appellant intended to appeal from an April order);                                  see also

State v. Hammonds, ___ N.C. App. ___, ___, 720 S.E.2d 820, 823

(2012) (“[A] mistake in designating the judgment . . . should

not result in loss of the appeal as long as the intent to appeal

from a specific judgment can be fairly inferred from the notice

and the appellee is not misled by the mistake[.]”).

    Here,       respondent-mother         concedes       that       she   did       not    file

timely    notice       of   appeal     from     the    civil    custody        order      that

transferred      the     cases    of   C.R.R.     and    H.F.R.      to   a     Chapter     50

action.     The only timely notice of appeal filed by respondent-

mother    was    “from      the   Order    of    Adjudication         and      Disposition

signed on 19 July 2013, filed on 22 July 2013.”                           This notice of
                                       -10-
appeal was worded clearly and properly filed by her attorney.

However, the notice of appeal makes no reference to the civil

custody order nor does it describe any decision embodied in that

order.      Thus, we cannot infer from the notice of appeal that

respondent-mother desired to pursue an appeal from the civil

custody order.         Accordingly, we deny her petition for writ of

certiorari and dismiss this portion of her argument on appeal.

See In re H.S.F., 182 N.C. App. 739, 744, 645 S.E.2d 383, 386

(2007)      (dismissing appellant’s argument on appeal as to the

trial court’s error in a civil custody order because her notice

of appeal was from the trial court’s review order and not from

the civil custody order itself).

                                 III. Conclusion

      In sum, we decline to address respondent-father’s argument

that the trial court         erred by adjudicating R.R.N. an abused

juvenile because he lacks standing to challenge this issue on

appeal.     We dismiss respondent-mother’s argument pertaining to

the alleged erroneous entry of the civil custody order because

she failed to give proper notice of appeal.               However, we reverse

the trial court’s adjudications of neglect because its findings

of   fact   do   not   support   its    conclusion   of    law   that   J.C.B.,

C.R.R., and H.F.R. were neglected.
                         -11-
Reversed, in part; dismissed, in part.

Judge CALABRIA and Judge STEPHENS concur.
