An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-752
                           NORTH CAROLINA COURT OF APPEALS

                              Filed:     4 February 2014

IN THE MATTER OF:

       N.K.                                     Mecklenburg County
                                                No. 13 JA 07



       Appeals       by     respondent-mother        and     Mecklenburg          County

Department     of    Social    Services,      Division      of    Youth     and   Family

Services      from    order    entered    3    May   2013    by     Judge   Donald    R.

Cureton in Mecklenburg           County District           Court.      Heard in the

Court of Appeals 7 January 2014.


       Senior Associate Attorney Twyla Hollingsworth-Richardson
       for Mecklenburg County Department of Social Services,
       Division of Youth and Family Services, petitioner.

       Mercedes O. Chut for respondent-mother.

       Administrative Office of the Courts, by Appellate Counsel
       Tawanda N. Foster, for guardian ad litem.


       McCULLOUGH, Judge.


       Respondent-mother        appeals       from   the    trial     court’s      order

adjudicating         the    minor   child,       N.K.      (“Nancy”)1       neglected.



1
    A pseudonym is used to protect the privacy of the juvenile.
                                    -2-
Mecklenburg County Department of Social Services, Division of

Youth and Family Services (“YFS”) cross-appeals.

    On 7 January 2013, YFS filed a juvenile petition alleging

Nancy was abused and neglected.           The petition stated that YFS

received a referral on 3 January 2013 alleging respondent-mother

improperly disciplined Nancy and that marks left on Nancy were

inflicted   by   non-accidental    means.      The    matter       came   on   for

hearing on 19 and 26 March 2013.              At the conclusion of the

adjudication     hearing,   the   trial     court    found       “by   clear   and

convincing evidence that [N.K.] is neglected only.”                    The trial

court entered a written adjudication and disposition order on 5

April 2013, and entered an amended adjudication and disposition

order on 3 May 2013.        Respondent-mother filed written notice of

appeal on 6 May 2013.       YFS filed written notice of appeal on 14

May 2013.

    We first address respondent-mother’s argument on appeal.

Respondent-mother’s sole argument is that the trial court erred

in concluding Nancy was neglected where said conclusion is not

supported by the findings of fact or evidence.

    “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
                                         -3-
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.    In the present case, respondent-mother does not challenge

the    trial    court’s      findings    of     fact,     and    they    are     deemed

supported      by   competent     evidence      and    are     binding    on    appeal.

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

       A neglected juvenile is defined as:

              A juvenile 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.

N.C.   Gen.     Stat.    §     7B-101(15)      (2011).         Here,    according      to

respondent-mother, Nancy was injured when she fell from her bunk

bed on 3 January 2013.            Sometime around 12:30 a.m., respondent-

mother heard a thud coming from Nancy’s room and upon entering

the room she saw Nancy on the floor near the ladder attached to
                                         -4-
her   bunk    bed.      Nancy      was       on    her    left   side    and   crying.

Respondent-mother observed a scratch on the left side of Nancy’s

face and redness on Nancy’s legs.                        Respondent-mother did not

seek medical treatment “due to the cold temperature outside and

the late hour.”

      Nancy went to school the next morning; however, the school

nurse called respondent-mother because Nancy complained of pain.

The school nurse observed swelling of Nancy’s hand and bruising

on her neck.         The nurse suggested that respondent-mother take

Nancy to the doctor.

      Respondent-mother         took     Nancy      to     her   pediatrician,       Dr.

Jennifer Colyer.        Dr. Colyer “observed extensive bruising, red

linear marks on the child’s left back, and interior left chest.

She observed similar marks on the child’s left arm, left thigh,

outer left calf, inner right calf, and observed an abrasion on

her left cheek.”        Dr. Colyer “believed that the injuries needed

further investigation and suggested that the child be taken to

the emergency room for further evaluation.”                        Dr. Colyer “was

concerned    that    the   school      had    to    bring    the   injuries    to    the

mother’s     attention,     that       the    mother       did   not    seek   medical

attention    the     previous    night       and    that     injuries    may   not   be

consistent with a fall from a bunk bed.”
                                            -5-
       We conclude that the evidence and findings of fact show

that    respondent-mother            failed        to    seek       necessary      medical

treatment      for   Nancy,    and    that     respondent-mother’s           failure       to

seek necessary medical treatment constitutes neglect.                           See In re

S.W.,    187    N.C.   App.    505,     507,       653   S.E.2d      425,    426     (2007)

(holding that respondents’ “failure to obtain medical attention

for the[ir] child constitutes neglect per the statute.”).                            Thus,

the    trial   court     did   not    err     in    concluding       that    Nancy    is   a

neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(15).

       We now turn to YFS’s argument.                     YFS contends the trial

court erred by failing to conclude that Nancy was an abused

juvenile as defined by N.C. Gen. Stat. § 7B-101(1).

       “The    adjudicatory      hearing       shall      be    a    judicial      process

designed to adjudicate the existence or nonexistence of any of

the conditions alleged in a petition.”                   N.C. Gen. Stat. § 7B-802

(2011).        “[W]hen    a    trial    court       is    required      to    adjudicate

allegations of abuse, neglect, or dependency, it must either

adjudicate the juvenile as abused, neglected, or dependent if

the allegations are proven by clear and convincing evidence or

dismiss the allegation if the necessary evidentiary showing is

not made.”      In re T.B., 203 N.C. App. 497, 507, 692 S.E.2d 182,

188-89 (2010).
                                      -6-
       An abused juvenile is defined, in part, as:

            Any juvenile less than 18 years of age whose
            parent, guardian, custodian, or caretaker:

            a. Inflicts or allows to be inflicted upon
            the juvenile a serious physical injury by
            other than accidental means;

            b. Creates or allows to be created a
            substantial risk of serious physical injury
            to the juvenile by other than accidental
            means[.]

N.C. Gen. Stat. § 7B-101(1) (2011).            Since the Juvenile Code

does not define “serious physical injury,” this Court has relied

upon the definition provided by N.C. Gen. Stat. § 14-318.4, the

felony child abuse statute.           See In re L.T.R., 181 N.C. App.

376,    381,    639   S.E.2d   122,   125-26   (2007)   (finding   Court’s

reasoning in State v. Romero, 164 N.C. App. 169, 595 S.E.2d 208

(2004), on what constitutes serious physical injury for purposes

of felony child abuse instructive in Chapter 7B abuse cases).

Under the felony child abuse statute, serious physical injury is

“injury that causes great pain and suffering.”           N.C. Gen. Stat.

§ 14-318.4(d)(2) (2011).         “[W]hether an injury is serious is

generally a question for the [trier of fact] ‘because the nature

of an injury is dependant [sic] upon the relative facts of each

case[.]’”      In re L.T.R., 181 N.C. App. at 382, 639 S.E.2d at 126
                                         -7-
(quoting State v. Romero, 164 N.C. App. 169, 172, 595 S.E.2d

208, 211).

              “[W]hen a trial judge sits as ‘both judge
              and juror,’ as he or she does in a non-jury
              proceeding, it is that judge’s duty to weigh
              and consider all competent evidence, and
              pass upon the credibility of the witnesses,
              the weight to be given their testimony and
              the   reasonable  inferences  to   be  drawn
              therefrom.”

In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435

(1984)   (citation      omitted).        In    the    present    case,    the    trial

court,   in    its    capacity    as     the   trier    of   fact,      weighed   the

evidence      and    relevant    facts     and      determined    “by    clear    and

convincing     evidence    that     [N.K.]     is    neglected    only.”         YFS’s

argument is overruled.          The trial court’s order is affirmed.

    Affirmed.

    Judges McGEE and DILLON concur.

    Report per Rule 30(e).
