An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-48
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


IN THE MATTER OF:

D.M.W.                                        Forsyth County
                                              No. 13 J 94




      Appeal by mother and father from order entered 9 October

2013 by Judge Denise S. Hartsfield in Forsyth County District

Court.    Heard in the Court of Appeals 22 July 2014.


      Assistant County Attorney Theresa A. Boucher for Forsyth
      County Department of Social Services, appellee.

      Womble Carlyle Sandridge & Rice, LLP, by Murray C. Greason,
      III for Guardian ad litem.

      Batch, Poore & Williams, PC, by Sydney Batch for appellant-
      mother.

      David A. Perez for appellant-father.


      STEELMAN, Judge.


      Where the trial court’s unchallenged findings of fact and

findings supported by evidence in the record form a sufficient

basis for its conclusions of law, the trial court did not err.

Where the trial court properly found that a minor child was
                                              -2-
neglected, it did not abuse its discretion in refusing to return

the child to father’s home.

                   I. Factual and Procedural Background

    On 21 May 2013, the Forsyth County Department of Social

Services (“DSS”) filed a juvenile petition alleging D.M.W. was a

neglected juvenile in that she lived in an environment injurious

to her welfare.      Specifically, the petition alleged that D.M.W.,

a newborn, would reside in the home where her brother D.N. lived

and was “seriously physically abused in April 2012 by other than

accidental means.”          The matter came on for hearing on 26 August

2013.      By    order    entered        9     October     2013,     the       trial    court

adjudicated      D.M.W.     a     neglected         juvenile.        The       trial     court

granted    legal    custody        of    D.M.W.      to    DSS   and     sanctioned        the

placement   of     D.M.W.       with    her    maternal      grandmother         and    step-

grandfather.

    Mother and father appeal.

                            II. Standard of Review

    “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,
                                           -3-
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.

                               III. Findings of Fact

                               A. Father’s Arguments

       In his first argument on appeal, father contends that the

trial    court       erred   in   making    certain     findings   of   fact.    We

disagree.

       The trial court made the following pertinent findings of

fact:

               10. On or about May 20, 2013, the Forsyth
               County   Department   of    Social  Services
               received a report alleging [D.M.W.], age 3
               days to be a neglected juvenile as she lives
               in a home where another child has been
               subjected to physical abuse.

               11. [D.M.W.] is the newborn infant child of
               [mother] and [father].      This child will
               reside in the home where her brother, [D.N.]
               lived and was seriously physically abused in
               April 2012 by other than accidental means.
               [D.N.]   was    examined   by   Dr.   Meggan
               Goodpasture on April 30, 2012 at NC Baptist
               Hospital and diagnosed with:

                     Two large subdural hematomas of mixed
                      intensity believed to have occurred at
                     -4-
      different times. The subdural hematoma
      on the left was more dense and believed
      to be more recent likely one week in
      age and the subdural hematoma on the
      right side of the child’s skull was
      less dense and believed to be likely
      weeks in age.

     Acute   bleeding    along the  right
      occipital lobe; which was likely a
      subdural hematoma or potentially a
      rebleed secondary to a very large
      subdural hematoma or more consistent
      with repeat trauma.

     Bilateral retinal hemorrhages that were
      determined to be intraretinal.

     Five definite healing rib fractures
      (Left anterior healing rib fractures of
      the 5th, 6th, 7th, 8th ribs and Left
      posterior healing rib fracture of the
      11th rib)[.]

12.   Based   upon   the   constellation  of
injuries, [D.N.] was diagnosed with abusive
head trauma/child physical abuse.        The
injuries   received   by   [D.N.]   were  of
different ages and stages of healing.

13. The primary caregivers of [D.N.] were
his mother, [mother] and her boyfriend, now
husband, [father].   [Mother] worked outside
of the home and [father] was [D.N.’s]
primary caretaker while his mother worked.
At the time of [D.N.’s] hospitalization,
[mother] reported that the child’s only
caretakers in addition to she and [father]
were the maternal grandmother, [M.N.], who
had watched the baby the weekend before his
hospitalization,    and     her    brother’s
girlfriend, [S.R.] (whose last name she did
not know at the time) who had cared for the
baby in March 2012. [M.N.] was a retired
                      -5-
pediatric nurse who first noticed [D.N.’s]
head growing larger and insisted that the
mother take the child to the doctor.

     . . . .

22. [D.M.W.] is an infant child as was
[D.N.] when he was seriously physically
abused in the home.

     . . . .

41. [Mother] reports that she suspects
[S.R.] may have caused the injuries to
[D.N.].      [Mother]   reports    that    [S.R.]
babysat with [D.N.] on two occasions which
she definitively report [sic] were February
2, 2012 and March 2, 2012. Dr. Goodpasture
has    indicated   that     [D.N.’s]    subdural
hematomas are difficult to date [and] could
be as recent as one to two weeks old or up
to two months old.     In her expert opinion,
there could have been multiple head traumas
suffered by [D.N.].        Retinal hemorrhages
although also difficult to date generally
resolve    within   one    month.       In    Dr.
Goodpasture’s expert opinion, rib fractures
are easier to date.      The rib fractures of
[D.N.] upon presentation to the hospital on
April 26, 2012 were 2 to 4 weeks old.         The
rib fractures suffered by [D.N.] could not
have occurred while he was in the care of
[S.R.] on February 2, 2012 or March 2, 2012.
To this day no one has come forward to
accept the responsibility for the injuries
that were caused to [D.N.] but it has been
determined that [mother] and [her] husband
were the primary caretakers.      The Court is
concerned for the safety of any child in the
home as no one has accepted responsibility
for the injuries that were caused to [D.N.]
when he was three months old. [S.R.] could
not have caused all of the injuries to the
child.
                                         -6-


       As   an   initial       matter,   we    note    that    mother     and     father

challenge many of the trial court’s findings of fact as not

being    supported      by   competent    evidence.           However,     we    do    not

address all of the challenged findings of fact.                      See In re T.M.,

180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (“[W]e agree

that some of [the challenged findings] are not supported by

evidence in the record. When, however, ample other findings of

fact    support    an   adjudication      of    neglect,       erroneous        findings

unnecessary to the determination do not constitute reversible

error.”).

       Although father challenges findings of fact 10, 11, 12, and

22,    mother    does   not.       Findings     of    fact    13    and   41    are    not

challenged by either mother or father and are deemed supported

by competent evidence.           See Koufman v. Koufman, 330 N.C. 93, 97,

408 S.E.2d 729, 731 (1991).

       Father contends that finding of fact 10 “seems to be a

finding for which there is no basis in competent evidence.”                             We

do    not   agree.       Dr.    Goodpasture     testified          that   she    was    an

attending and supervising physician in the newborn nursery at

the time D.M.W. was born.            The physician who provided care for

D.M.W. was on Dr. Goodpasture’s team.                  Based upon her knowledge

of D.N., Dr. Goodpasture recommended that the physician make a
                                           -7-
child protective services report to DSS, and that report was

made.        Dr.    Goodpasture     testified    that    she    had    “significant

concern for [D.M.W.’s] safety” if she were placed in the same

environment where D.N. resided.

       Father next challenges finding of fact 11. Father contends

that “since [S.R.] and the maternal grandmother had access to

[D.N.] during the time period in which he may have suffered

these severe injuries, it was erroneous for the trial court to

find [D.M.W.] would reside in the same home in which [D.N.]

lived when abused[.]”             Father contends “there is no competent

evidence to suggest that the potential perpetrators, [S.R.] or

the    maternal      grandmother,     resided    in     [mother      and    father’s]

home.”       Father also challenges finding of fact 22 on the same

grounds.      Father contends there is no competent evidence to show

that D.N. was seriously physically abused in mother and father’s

home    as   S.R.    or   the    maternal    grandmother      may    have   been   the

perpetrators of the abuse.

       Father’s contentions are feckless.

       The trial court found that mother and father were D.N.’s

primary caretakers and that S.R. could not have caused all of

the    injuries     to    D.N.     These    findings    are    not    challenged    by

mother or father on appeal.                Moreover, mother and father both
                                      -8-
testified that they did not believe the maternal grandmother

hurt D.N.       Mother and father intended to take D.M.W. home to

live with them upon her discharge from the hospital.                        Thus,

D.M.W. would have resided in the same home in which D.N. had

lived.    The trial court did not err in making these findings.

      Father also challenges the subparagraphs of finding of fact

11.      He   contends   that   Dr.   Goodpasture’s    testimony      does   not

support the specificity of the injuries sustained by D.N. as set

forth in the order.       We agree that some of the language used in

the   subparagraphs      was    not   identical   to   that    used    by     Dr.

Goodpasture in her testimony.            However, we disagree that her

testimony does not support the specific injuries set forth in

the finding.       Dr. Goodpasture testified in great detail about

D.N.’s    injuries.      Dr.    Goodpasture    testified      that    D.N.   was

diagnosed with five rib fractures.            The fractures were on the

left fifth, sixth, seventh, eighth, and eleventh                 ribs.       She

further testified that D.N. had large subdural hemorrhages on

both sides of the brain that required surgical intervention, and

retinal hemorrhages in both eyes.

      Father further      contends that finding of fact 12 is                not

supported     by   competent    evidence.     Again,   we   disagree.         Dr.

Goodpasture testified that “[i]n the absence of any accidental
                                        -9-
mechanism to explain the[] injuries in a three month old with

serious   and    severe     bilateral    subdural       hemorrhages,         bilateral

retinal hemorrhages and five rib fractures, . . . the injuries

were consistent with child physical abuse.”                         Dr. Goodpasture

also gave detailed testimony about the possible ages and stage

of healing of the various injuries to D.N.

    These arguments are without merit.

                            B. Mother’s Arguments

    Mother       contends    that     the     trial     court       failed   to   make

sufficient      findings    of   fact   to    support        its    conclusion    that

D.M.W. was a neglected juvenile.              Mother contends that the trial

court “cut and pasted the allegations in the juvenile petition

and statements from the DSS court summary into its adjudicatory

order[,]” and failed to make independent findings of fact from

the evidence presented at the hearing.                  Mother further contends

that since the trial court failed to make independent findings

of fact, “this Court cannot determine whether the trial court

performed its duty to determine whether the allegations were

proven by clear, cogent and convincing evidence.”                     We disagree.

    Although         the   language     in    some      of    the     findings    does

correspond      to   the   allegations       in   the   juvenile       petition,    we

conclude that findings of fact 10, 11, 12, 13, 22, and 41 are
                                   -10-
supported by competent evidence.          Moreover, these findings of

fact are sufficiently specific to allow this Court to review the

trial court’s decision to adjudicate D.M.W. neglected.

      This argument is without merit.

                          IV. Neglected Juvenile

      Finally, with regard to the adjudication of neglect, mother

and father each contend that the trial court erred in finding

and concluding that D.M.W. was neglected where the court relied

solely on the past abuse of D.N.       We disagree.

      The Juvenile Code defines a neglected juvenile 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. In determining whether a juvenile is a
           neglected juvenile, it is relevant whether
           that juvenile lives in a home where another
           juvenile has died as a result of suspected
           abuse or neglect or 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) (2013) (emphasis added).

      “We are aware that while the abuse of a child in the home

is   clearly   relevant   in   determining   whether   another   child   is
                                         -11-
neglected, the statute ‘does not                require the removal of all

other    children    from   the    home     once   a    child    has    .    .    .   been

subjected to . . . severe physical abuse.’”                     In re McLean, 135

N.C. App. 387, 395, 521 S.E.2d 121, 126                      (1999) (quoting In re

Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)).

“[T]he     statute   ‘affords      the     trial   judge      some     discretion      in

determining the weight to be given such evidence,’ and allows

the trial court some discretion in determining whether children

are at risk for a particular kind of harm given their age and

the environment in which they reside.”                 Id.

     In the     present case, the trial court found that                           D.M.W.

would reside in the home where D.N. had lived and was physically

abused; that D.M.W. was an infant just as D.N. was at the time

he   was    injured;    that      mother     and   father       were    the       primary

caretakers of D.N.; that no one had accepted responsibility for

D.N.’s injuries; and that the court was concerned for the safety

of   any     child     in   the     home     since      no     one     had       accepted

responsibility for D.N.’s injuries.                These findings demonstrate

that the trial court           weighed and assessed the evidence,                      and

concluded that D.M.W. would be at risk if allowed to reside with

mother and father.          We hold that the findings of fact support

the conclusion that D.M.W. was neglected.
                                  -12-
    This argument is without merit.

    Mother and father next challenge the dispositional portion

of the trial court’s order.       They contend that the trial court

erred   in    conducting   a   dispositional   hearing   in   which   no

testimony was taken and where the trial court based its findings

of fact on court reports and statements made by counsel.         Mother

and father contend the trial court delegated its duty as the

finder of fact by incorporating the reports as its findings of

fact.   These arguments are without merit.

             The   dispositional   hearing   following   an
             abuse, neglect, or dependency adjudication
             may be informal and the court may consider
             written reports or other evidence concerning
             the needs of the juvenile. In dispositional
             hearings, trial courts may properly consider
             all written reports and materials submitted
             in connection with said proceedings. Thus,
             at a dispositional hearing, [a] trial court
             may   consider  written   reports   and   make
             findings based on these reports so long as
             it   does   not  broadly   incorporate   these
             written reports from outside sources as its
             findings of fact.

In re J.N.S., 207 N.C. App. 670, 679, 704 S.E.2d 511, 517 (2010)

(citations and quotation marks omitted).          “Evidence heard or

introduced throughout the adjudicatory stage, as well as any

additional evidence, may be considered by the court during the

dispositional stage.”      In re Blackburn, 142 N.C. App. 607, 613,

543 S.E.2d 906, 910 (2001).
                                         -13-
    In     this       case,   the     trial    court        considered          the   written

reports,    incorporated        the    written          reports,    and     made      findings

based    upon    the    reports.        The        trial    court        also    made   other

findings based on the evidence presented during the adjudication

stage.     The trial court did not broadly incorporate the facts in

the reports as its only findings of fact, nor did it use the

reports     as    a    substitute       for        its     own    independent         review.

Therefore,       the    trial   court        did    not     err     in    conducting      the

disposition hearing and entering the disposition order.

    Mother also contends that the trial court ignored its oral

ruling as evidenced by the written order.                         Specifically, mother

contends that the judge said she was not going to make drug

testing mandatory; however, in the written order, mother and

father are ordered to submit to drug screens, and if they do not

submit    then    the    missed       drug    screen        would    be     considered      a

positive test.          We disagree with mother’s contention since our

review indicates that the trial court’s written order does not

differ in substance from its oral rendering in open court.                                 See

In re Brim, 139 N.C. App. 733, 739, 535 S.E.2d 367, 370 (2000)

(finding the trial court did not err where the written order

later    entered       did    not   differ         in    substance       from     the   order

announced in open court).
                                          -14-
      Mother further contends the trial court’s directive that

mother and father be more forthcoming with the court as to how

D.N. was abused is inappropriate and should not be permissible.

Again, we disagree.          In this case, the trial court was concerned

about D.M.W.’s safety based upon the injuries D.N. sustained and

the     lack   of   an    explanation         as    to    how    D.N.    was     injured.

Accordingly, we conclude it was not inappropriate for the trial

court to seek further explanation about this matter.

      Lastly,       father      contends      the        trial   court        abused     its

discretion at disposition in granting continuing legal custody

of D.M.W. to DSS and not placing her back in father’s home.                               We

disagree.

      “The     district      court      has   broad      discretion      to    fashion    a

disposition from the prescribed alternatives in N.C. Gen. Stat.

§ 7B-903(a), based upon the best interests of the child.”                              In re

B.W.,    190   N.C.      App.    328,    336,      665    S.E.2d   462,       467   (2008)

(citation omitted).             “We review a dispositional order only for

abuse of discretion.”            Id.     “A trial court may be reversed for

abuse of discretion only upon a showing that its actions are

‘manifestly unsupported by reason.’”                     Davis v. Davis, 360 N.C.

518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark,

301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
                              -15-
    Here, the trial court was authorized to place D.M.W. in the

custody of DSS and not return her to father.        See N.C. Gen.

Stat. § 7B-903(a)(2)(b) (2013).      Given the evidence before the

court, we discern no abuse of discretion in the trial court’s

decision not to return D.M.W. to father.

    AFFIRMED.

    Judges McGEE and ERVIN concur.

    Report per Rule 30(e).
