An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1031
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 6 May 2014


IN THE MATTER OF:

      H.M.                                    Buncombe County
                                              No. 12 JA 44




      Appeal by Respondent-Mother from order entered 13 June 20131

by Judge Ward D. Scott in Buncombe County District Court. Heard

in the Court of Appeals 27 March 2014.


      John C. Adams for Petitioner Buncombe County Department of
      Social Services.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender J. Lee Gilliam, for Respondent-Mother.

      Michael N. Tousey for Guardian ad Litem.


      STEPHENS, Judge.


                                   Background

      Respondent-Mother        appeals    from    the    trial    court’s     order

adjudicating her daughter, Hayley,2 to be neglected. The matter


1
  Clerical errors in the trial court’s 13 June 2013 order were
corrected by order entered 25 June 2013.
                                 -2-
first came on for hearing in February 2013, and the trial court

made the following pertinent findings of fact in its 13 June

2013 adjudication judgment and disposition order:

              FINDINGS OF FACT BY CLEAR AND CONVINCING
                              EVIDENCE:

            . . .

            11. [A social worker],      [Hayley’s court
            counselor], and [a mental health therapist],
            testified at th[e] hearing, and the [c]ourt
            found their testimony to be credible and
            relevant to the matters contained within the
            petition[] and made findings of fact based
            upon their testimony. [Hayley] testified at
            th[e] hearing[,] and the [c]ourt found her
            testimony not credible, stating that “it is
            easy to determine that [Hayley] has not told
            the truth; [she] is 17 years of age and
            wants to go home.”

            . . .

            13. On August 24, 2012[] the Buncombe County
            Department of Social Services (“[DSS]”)
            received a [c]hild [s]ervices [r]eport . . .
            alleging abuse and neglect. The report
            alleged the following: that [Hayley] had
            been at Trinity Place[, the local youth
            shelter,]   since  August   22,    2012;   that
            [Hayley] will remain at Trinity [Place]
            until August 27, 2012; that [Hayley] was
            placed at Trinity [Place] as a result of an
            alter[c]ation           with              . . .
            [R]espondent[-M]other;       that         . . .
            [R]espondent[-M]other     started      slapping
            [Hayley]; that [Hayley] started hitting
            . . .   [R]espondent[-M]other     back;    that
            [Hayley] tried to leave; however, . . .

2
    A pseudonym is used to protect the juvenile’s identity.
                                -3-
            [R]espondent[-M]other blocked the door and
            pulled [Hayley] down by the hair and was
            hitting her again; that, after some time,
            . . . [R]espondent[-M]other came and checked
            on [Hayley], asking her if she was okay and
            checked her for bruises.

            14.   The   report   further   alleged  that
            [Hayley’s] adult brother was present during
            the     altercation     and     that   . . .
            [R]espondent[-M]other told him she had to
            leave before she hurt [Hayley].

            15. The report further alleged that . . .
            [R]espondent[-M]other   has   been   verbally
            abusive     to    [Hayley];    that     . . .
            [R]espondent[-M]other has made the following
            statement to [Hayley], “If I could get away
            with it, I’d beat her ass, I’d hurt you.” It
            is     further     alleged     that     . . .
            [R]espondent[-M]other   has   threatened   to
            “[b]eat the shit out of [Hayley].”

            16. The report further alleged that [Hayley]
            has been diagnosed with [m]ajor [d]epressive
            [d]isorder; that [Hayley] has sleeping and
            anxiety issues.3

            17. It was further alleged that [Hayley] is
            the scapegoat in the family and is blamed
            for everything; that [Hayley’s] sibling
            . . . [is] not treated in the same manner as
            [Hayley]; that [Hayley] is fearful of . . .
            [R]espondent[-M]other and is fearful that
            . . . [R]espondent[-M]other will hurt her;
            that the sibling . . . has pushed, choked[,]
            and thrown [Hayley] to the ground; that
            . . . [R]espondent[-M]other watches these
            fights and states that it is just a brother-
            sister rivalry.

            . . .

3
    See footnote 4, infra.
                      -4-


19. The same date of the report [to DSS],
[the social worker] made contact with and
interviewed   [Hayley]   at    Trinity   Place.
[Hayley] acknowledged that she has been
diagnosed    with     [m]ajor      [d]epressive
[d]isorder   and    that     she    and   . . .
[R]espondent[-M]other    are    in   counseling
together.

20. When questioned [by the social worker]
about the allegations of the report . . . ,
[Hayley    said]   that    she   and   . . .
[R]espondent[-M]other   both   slapped  each
other. [Hayley said] that, after a verbal
argument, . . . [R]espondent[-M]other walked
into her room and reached out to smack her.
[Hayley] stated that she “bopped” . . .
[R]espondent[-M]other’s arm and then hit
. . . [R]espondent[-M]other. [Hayley said]
this was the first time she had ever hit
. . . [R]espondent[-M]other. [Hayley also
said] that usually arguments with . . .
[R]espondent[-M]other   consist    of  . . .
[R]espondent[-M]other yelling at her.

21. [Hayley]    further disclosed to    [the
social        worker]       that       . . .
[R]espondent[-M]other often calls her names,
including: “ungrateful brat,” “ungrateful
bitch,” and “inconsiderate piece of shit.”
[Hayley] denied that there has ever been a
physical altercation between herself and her
brother . . . . [Hayley also] disclosed that
she was “depressed” and that she was
“sleeping a lot.”

22. [The social worker] also made contact
with    . . .    [R]espondent[-M]other       and
[Hayley’s]   sibling    . . . .    [The   social
worker]     made     contact      with     . . .
[R]espondent[-M]other    at   her    home. . . .
[R]espondent[-M]other immediately told [the
social worker] that she was not going to be
                     -5-
threatened by DSS and that she was not
concerned [a]bout DSS attempting to press
criminal     charges    against     her. . . .
[R]espondent[-M]other further stated that
she did not care at this point what happened
to   [Hayley]. . . .     [R]espondent[-M]other
then   began   describing   her  issues   with
[Hayley]. . . . [R]espondent[-M]other stated
that she hoped out-of[-home]-placement was
[an] option because she [could not] continue
to deal with [Hayley’s] behavior[].

23.   When   questioned   about   the   recent
fight[,] . . . [R]espondent[-M]other stated
that it sta[r]ted because [Hayley] said,
“Fuck        you,        bitch.”         . . .
[R]espondent[-M]other    stated    that    she
did[ not]   immediately   walk   upstairs   to
[Hayley’s] bedroom, as she felt she needed
to calm down. . . . [R]espondent[-M]other
stated that she spent some time outside;
however, she came back inside with the very
intention of “popping [Hayley] on the side
of the mouth.” . . . [R]espondent[-M]other
stated that when she went to “pop” [Hayley],
[Hayley]       hit      her       first. . . .
[R]espondent[-M]other stated that she feels
like [Hayley] has put her through hell for
the last year and caused a lot of stress on
the family.

24. When questioned about any threats she
has     made      to      [Hayley],     . . .
[R]espondent[-M]other acknowledged that she
said she would [“]beat [Hayley’s] ass.[”]

. . .

26. [The    social   worker’s]   investigation
determined that the above incident, as
specified in the report, and confirmed by
[Hayley] and . . . [R]espondent[-M]other,
was   not    an    isolated    incident. . . .
[R]espondent[-M]other,      [Hayley],      and
                              -6-
         [Hayley’s    sibling]    confirmed    multiple
         incidents of physical violence including
         [Hayley] being slapped on the side of the
         mouth    by    . . .    [R]espondent[-M]other.
         [Hayley] stated that this was the first time
         that she had ever been “hit” by . . .
         [R]espondent[-M]other, but stated that she
         was   frequently   slapped   by   [Respondent-
         Mother].

         . . .

         28. [Another social worker] made her first
         contact with . . . [R]espondent[-M]other on
         September           10,           2012. . . .
         [R]espondent[-M]other      was    immediately
         hostile[,]   stating    “Let   me  tell   you
         something, I am not doing counseling.”

         . . .

         31. At trial, [the mental health therapist]
         confirmed that [Hayley] had been diagnosed
         with major depressive disorder and anxiety
         disorder.4 He stated that [his employer, a
         counseling facility in the jurisdiction,]
         recommended [dialectical behavior] therapy
         for [Hayley] and medication management and
         individual       therapy       for      . . .
         [R]espondent[-M]other. He indicated at the
         close of [the facility’s] involvement in
         September 2012, [that] it was not safe for
         [Hayley] to return home due to the incidents
         of physical violence with [Hayley] and . . .
         [R]espondent[-M]other’s     resistance     to
         treatment,   despite    the   family   having
         “successfully completed their contract with
         [the counseling facility].”

4
  The Guardian ad Litem concedes in its brief that “finding 31
attributes the anxiety diagnosis incorrectly to the juvenile
rather than to [R]espondent[-M]other” and opines that this
mistake is not a contradictory finding, but merely a “drafting
error.”
                     -7-


32. When questioned about [Hayley]’s most
recent stay at Trinity Place . . . [,]
[R]espondent[-M]other stated to [the other
social worker] that she took [Hayley] to
Trinity [Place] because she was afraid she
was going to “[b]ash [Hayley’s] head in.”
[Hayley] confirmed at trial that she had
been placed at Trinity [Place] by . . .
[R]espondent[-M]other   three   . . . times
since 2012, because of “arguments.”

. . .

37. During [Hayley’s] interview with [the
other    social    worker,   [Hayley] looked
defeated      and     stated    that   . . .
[R]espondent[-M]other [had told] her that if
she could get away with it, [Respondent-
Mother] would punch [Hayley] in the face.
[Hayley]     further    stated   that  . . .
[R]espondent[-M]other “bitch slaps,” her on
a regular basis, leaving pink marks on her
face that last for “10 minutes.”

38.   [Hayley’s]    court    counselor    . . .
e[-]mailed     . . .     [R]espondent[-M]other
advising her of the recommendation that
[Hayley]     participate      in     outpatient
therapy. . . . [R]espondent[-M]other wrote
back indicating that she was not going to
comply.    [Another     organization]      also
contacted     . . .      [R]espondent[-M]other
regarding therapy for [Hayley] and . . .
[R]espondent[-M]other,    again,   refused   to
comply and declined services. . . .

. . .

41. . . .   [R]espondent[-M]other repeatedly
demanded   that    [DSS]   take   custody    of
[Hayley].       In       addition,        . . .
[R]espondent[-M]other refused to provide any
names for possible kinship placements.
                     -8-


42.   At    trial,    despite   her  consistent
disclosures to [the social workers] and
other    professionals,     [Hayley]  generally
denied the allegations of the above report.
[Hayley] testified that she did not use
profanity,         denied       that      . . .
[R]espondent[-M]other hit her, and generally
denied any physical fighting other than
[that] . . . [R]espondent[-M]other “popped
me a few times on the mouth.” [Hayley]
denied being afraid of . . . [R]espondent[-
M]other and repeatedly stated that she
“wanted to go home.”

43. Based upon the above findings of fact as
found by the [c]ourt, and by clear, cogent,
and convincing evidence, [Hayley] is a
neglected child . . . in that [she] lives in
an    environment    injurious   to    [her]
welfare. . . .

44. The [c]ourt specifically finds that
. . . [R]espondent[-M]other was aware and
had been advised that [Hayley] had been
diagnosed with major depressive disorder;
that . . . [R]espondent[-M]other was under a
court order through her involvement with
[the court counselor] that ordered therapy
for        [Hayley];        that        . . .
[R]espondent[-M]other     interfered    with,
objected to, willfully obstructed[,] and
other[]wise     failed   to    comply    with
recommended    therapy  for   [Hayley]. . . .
[R]espondent[-M]other’s    frustration   with
[Hayley] rose to a level where she was
making statements expressing her feelings
and desires to harm [Hayley]. [Hayley] has
made        statements       that       . . .
[R]espondent[-M]other has caused her harm.

45. . . . [R]espondent[-M]other has blamed
[Hayley] for the family’s problems; sought
placement for [Hayley] out of the home
                                   -9-
            several times; sought information as to how
            to         emancipate          [Hayley]. . . .
            [R]espondent[-M]other’s testimony at trial
            indicates to the [c]ourt that she has no
            full understanding of [Hayley]’s issues,
            stating that “she just needs to get her shit
            together.”    . . .    [R]espondent[-M]other’s
            attitude and resistance to [the therapist’s
            counseling     facility]     has    materially
            interfered with [Hayley’s treatment].

    Given     the   above   findings,    the   trial   court   adjudicated

Hayley neglected and placed her in DSS custody. The court also

ordered DSS to put Hayley in a trial placement with Respondent-

Mother and required Respondent-Mother and Hayley to take various

actions to repair their relationship, including participating in

family therapy. Respondent-Mother appeals.

                            Standard of Review

    “A proper review of a trial court’s finding of neglect

entails a determination of (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 Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)

(citations omitted). In making its findings of fact, the trial

court has the discretion to determine the weight to be given to

the evidence. In re A.S., 190 N.C. App. 679, 690, 661 S.E.2d

313, 320, disc. review denied, 362 N.C. 681, 669 S.E.2d 740
                                    -10-
(2008),    affirmed   per     curiam,    363   N.C.   254,   675    S.E.2d   361

(2009).

                                 Discussion

    On     appeal,    Respondent-Mother        contends      that     the   trial

court’s order should be reversed because its findings of fact:

(1) “merely repeat[ testimony] without showing [that the court]

independently determined the facts” and (2) do not support the

trial court’s conclusion that Hayley was neglected. We disagree.

    When determining whether a child is neglected, the trial

court     must   issue   an     order,    in    writing,      which     contains

“appropriate findings of fact and conclusions of law.” N.C. Gen.

Stat. § 7B-807(b) (2013).

            The trial court’s findings must consist of
            more than a recitation of the allegations
            contained in the juvenile petition. The
            trial court must, through processes of
            logical reasoning, based on the evidentiary
            facts before it, find the ultimate facts
            essential to support the conclusions of law.
            The   findings  need   to   be  stated  with
            sufficient specificity in order to allow
            meaningful appellate review.

In re S.C.R., __ N.C. App. __, __, 718 S.E.2d 709, 711–12 (2011)

(citations, internal quotation marks, and brackets omitted).

            If different inferences may be drawn from
            the evidence, the trial judge must determine
            which inferences shall be drawn and which
            shall be rejected. When there is directly
            conflicting evidence on key issues, it is
                                      -11-
               especially crucial that the trial court make
               its own determination as to what pertinent
               facts   are  actually   established  by  the
               evidence, rather than merely reciting what
               the evidence may tend to show.

In re Gleisner, 141 N.C. App. at 480, 539 S.E.2d at 365–66

(citations omitted). “Failure to make specific findings of fact

. . . will result in remand.” In re A.S., 203 N.C. App. 140,

141–42, 693 S.E.2d 659, 660 (2010) (citation omitted).

       Respondent-Mother argues that the trial court’s findings of

fact   “are     not   proper    findings”    because    certain    findings    are

based on hearsay and because the findings largely constitute

recitations      of   evidence.    Therefore,    Respondent-Mother       argues,

the    trial    court’s   findings    are    insufficient    to    support    its

adjudication of neglect. In response, DSS and the Guardian ad

Litem contend that the trial court made valid findings of fact

in paragraphs 44, 45, and a portion of paragraph 26 of its

order.5 We agree with DSS and the Guardian ad Litem.

       The majority of the trial court’s “findings of fact” are

not proper. As Respondent-Mother notes in her brief, findings of

fact    13    through   17     describe   allegations    made     in   the   child

services report. These findings neither purport to resolve nor



5
  Specifically, the Guardian ad Litem argues that the trial court
properly found in paragraph 26 that “multiple incidents of
physical violence” occurred against Hayley.
                                        -12-
actually resolve any issue of fact. Many of the other findings

merely      recite    the   testimony    of    the    witnesses.     Nonetheless,

findings of fact 44 and 45 as well as the cited portion of

finding of fact 26 sufficiently resolve the differences in the

evidence presented during the hearing and make a determination

based on that evidence to support the trial court’s adjudication

that Hayley is a neglected juvenile.

       Moreover, this Court has already determined that “[t]here

is nothing impermissible about describing testimony, so long as

the [trial] court ultimately makes its own findings, resolving

any material disputes.” In re C.L.C., 171 N.C. App. 438, 446,

615 S.E.2d 704, 708 (2005) (holding that the trial court did not

err    by     “including     findings    of    fact     that   summarized     the

testimony” when “[t]he testimony summaries were not the ultimate

findings of fact” and the ultimate findings existed “elsewhere

in the order”), affirmed per curiam in part and disc. review

improvidently allowed in part, 360 N.C. 475, 628 S.E.2d 760

(2006). Therefore, as long as the relevant portions of findings

26, 44, and 45 are supported by clear and convincing evidence

and, in turn, support the trial court’s ultimate conclusions of

law,     it   is     unnecessary   to    remand      the   court’s    order   for

additional findings.
                                       -13-
       In its brief, the Guardian ad Litem describes the relevant

elements of findings 26, 44, and 45 as follows:

           The trial court ultimately found “multiple
           incidents   of   physical    violence   against
           [Hayley in paragraph 26], refusal of . . .
           [Respondent-Mother] to allow [Hayley] to
           participate in therapy or receive services
           [in paragraph 44], frustration with [Hayley]
           to the point that [R]espondent[-M]other was
           “expressing her feelings and desires to harm
           [Hayley    in    paragraph      44],”    laying
           responsibility for the family’s problems on
           [Hayley in paragraph 45], pursuing removal
           of the child from the home several times to
           the     point      of      considering      her
           emancipation[ in paragraph 45], and lack of
           understanding   of    [Hayley’s]   issues   [by
           Respondent-Mother in paragraph 45].

With a few exceptions, Respondent-Mother does not contend that

these findings are not based on clear and convincing evidence.

Respondent-Mother does, however, contest the validity of finding

26 as it pertains to “multiple incidents of physical violence”

on grounds that Hayley’s sibling, cited by the trial court as

one of the sources for this determination, did not testify. She

also   attacks     finding    44    regarding     whether    Respondent-Mother

obstructed,      interfered        with,    and   failed     to        comply   with

counseling. We are unpersuaded by her challenges.

       Respondent-Mother is correct that Hayley’s sibling did not

testify   during    the   hearings.        Nonetheless,     it    is    clear   from

Hayley’s testimony, alone, that she was subjected to multiple
                                             -14-
instances      of    violent     conduct.          During        the    20     February       2013

hearing,      Hayley     described          an    altercation          in     which    she     hit

Respondent-Mother        and     Respondent-Mother               became       upset,    grabbed

Hayley’s arm, grabbed Hayley’s hair, and raised her hand as if

to   hit     Hayley,    but    refrained           from      doing     so.     Later,     Hayley

testified that her mother had slapped her at least three times.

Even without the testimony of Hayley’s sibling, this evidence is

sufficient      to     support        a    finding        that    there        were    multiple

instances      of      physical           violence      in       the    home.         Therefore,

Respondent-Mother’s           argument       is     overruled          as    it    pertains    to

finding 26.

       With regard to finding 44, Respondent-Mother argues that

testimony      tending    to     show       that     she     “was      adversarial        toward

counseling     and     controlled          part    of     the    [therapy]         interaction”

does   not    constitute       clear        and    convincing          evidence        that   she

willfully      obstructed        or       failed     to      comply         with    counseling.

Respondent-Mother also notes that she and Hayley “successfully

completed” certain in-home, intensive counseling sessions. This

argument is unpersuasive.

       The    mental     health       therapist         testified           that   Respondent-

Mother was “very contentious and adversarial right — right from

the beginning” of in-home therapy. The therapist went on to
                                    -15-
testify   that    Respondent-Mother    refused   to   allow   one   of   the

therapy workers into her home, forcing the team to “curtail[]”

their approach. This evidence is sufficient to support the trial

court’s    finding    that      Respondent-Mother     “interfered    with,

objected to, willfully obstructed[,] and other[]wise failed to

comply    with    recommended    therapy   for   [Hayley].”    Therefore,

Respondent-Mother’s argument as it pertains to this finding is

overruled.

    As    noted    above,   Respondent-Mother    does   not   contest    the

remaining aspects of findings 26, 44, and 45 as unsupported by

the evidence. Accordingly, they are binding on appeal. See In re

J.M.W., 179 N.C. App. 788, 792, 635 S.E.2d 916, 919 (2006) (“If

unchallenged on appeal, findings of fact are . . . binding upon

this Court.”) (citations omitted). The only remaining question

is whether findings of fact 26, 44, and 45 are sufficient to

support the trial court’s adjudication that Hayley is neglected.

We hold that they are.

    Citing Chapter 7B of the North Carolina General Statutes,

this Court has defined a neglected juvenile as follows:

           [O]ne 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;
                                       -16-
              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   re    S.C.R.,     198   N.C.   App.   525,    534,      679   S.E.2d    905,   911

(citing N.C. Gen. Stat. § 7B-101(15)), appeal dismissed, 363

N.C. 654, 686 S.E.2d 676 (2009). “Section 7B-101(15) affords 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.” In re C.M., 183 N.C. App.

207, 210, 644 S.E.2d 588, 592               (2007) (citation and internal

quotation marks omitted).

       “In order to adjudicate a juvenile neglected, our courts

have . . .      required that there be some physical, mental, or

emotional impairment of the juvenile or a substantial risk of

such      impairment    as   a   consequence      of   the    failure   to    provide

proper care, supervision, or discipline.” In re Stumbo, 357 N.C.

279, 283, 582 S.E.2d 255, 258 (2003) (citations and internal

quotations marks omitted; emphasis added).

              It is well-established that the trial court
              need not wait for actual harm to occur to
              the child if there is a substantial risk of
              harm to the child in the home. Severe or
              dangerous conduct or a pattern of conduct
              either causing injury or potentially causing
              injury to the juvenile may include . . .
              physical  abuse   or  injury   to   a  child
              inflicted by the parent. Other conduct that
                                         -17-
             supports a conclusion that a child is
             neglected includes exposing the child to
             . . . threatening or abusive behavior toward
             social workers and police officers in the
             presence of the children.

In re D.B.J., 197 N.C. App. 752, 755, 678 S.E.2d 778, 780–81

(2009) (citations and internal quotation marks omitted).

      In    this    case,       the    trial    court      found     as     fact   that:

Respondent-Mother          participated         in       “multiple    instances       of

physical violence” against Hayley;                   “interfered with, objected

to,   willfully     obstructed[,]        and    other[]wise        failed    to    comply

with” Hayley’s recommend therapy; expressed a desire to harm

Hayley; blamed Hayley for the family’s problems; and sought to

remove     Hayley   from    the       home.    At    a   minimum,    these     findings

establish that Hayley was living in an environment injurious to

her welfare, which put her at a substantial risk of physical,

mental, or emotional impairment. See, e.g., In re L.T.R., 181

N.C. App. 376, 384–85, 639 S.E.2d 122, 127–28 (2007) (affirming

the trial court’s determination that the children were neglected

on grounds that “the children’s physical, mental, and emotional

well-being    was,    at    a    minimum,      at    substantial     risk     of   being

impaired because of improper care” when (1) the mother admitted

to “thumping” her daughter in the face as a part of a “game” in

such a way as to leave a bruise on the daughter’s face and (2)
                                       -18-
the father bruised the son’s upper leg by hitting him with a

brush); In re C.P., 181 N.C. App. 698, 704, 641 S.E.2d 13, 17

(2007)    (affirming    the   trial     court’s          determination     that   the

children    were     neglected    when        the    mother      delayed    seeking

necessary medical care for the youngest child for bruising and

delayed    seeking     help      for     disciplinary,           behavioral,      and

developmental      problems      displayed          by     all    the    children).

Therefore, the trial court’s order adjudicating Hayley to be a

neglected juvenile is

    AFFIRMED.

    Judges CALABRIA and ELMORE concur.

    Report per Rule 30(e).
