{ "id": 8321291, "name": "IN THE MATTER OF: J.A.G.", "name_abbreviation": "In re J.A.G.", "decision_date": "2005-08-16", "docket_number": "No. COA04-1257", "first_page": "708", "last_page": "721", "citations": [ { "type": "official", "cite": "172 N.C. App. 708" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "552 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "186", "parenthetical": "citation omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11356859 ], "year": 2001, "pin_cites": [ { "page": "304", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0302-01" ] }, { "cite": "561 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "566", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 756", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131717 ], "year": 2002, "pin_cites": [ { "page": "763-64", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0756-01" ] }, { "cite": "474 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "344 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867707 ], "year": 1996, "pin_cites": [ { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0394-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "252", "parenthetical": "discussing neglect generally" } ], "opinion_index": 1 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "109", "parenthetical": "discussing neglect generally" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "580 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "74", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188432 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc-app/157/0673-01" ] }, { "cite": "193 S.E. 224", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "226" } ], "opinion_index": 1 }, { "cite": "212 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601183 ], "year": 1937, "pin_cites": [ { "page": "122" } ], "opinion_index": 1, "case_paths": [ "/nc/212/0120-01" ] } ], "analysis": { "cardinality": 1019, "char_count": 33865, "ocr_confidence": 0.745, "pagerank": { "raw": 1.4277196401177776e-07, "percentile": 0.650252389231959 }, "sha256": "b9ac7379912ca0f5256f1330bbac82ccac98a66881c6bcc3ab46563a19a1def7", "simhash": "1:2be3ae4e77481ff5", "word_count": 5515 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge LEVINSON concurs in a separate opinion." ], "parties": [ "IN THE MATTER OF: J.A.G." ], "opinions": [ { "text": "HUNTER, Judge.\nRespondent-mother presents the following issues for our consideration: Whether the trial court (I) abused its discretion in denying her motion to dismiss at the close of petitioner\u2019s evidence; (II) erroneously adjudicated her son neglected and dependent; and (III) abused its discretion in ordering the custody of her son to remain with the Johnston County Department of Social Services (hereinafter \u201cDSS\u201d). After careful review, we reverse in part the order below.\nThe pertinent facts of the instant appeal are as follows: DSS filed a juvenile petition on 30 January 2004 concerning J.A.G., a three-month-old infant. In the petition, DSS alleged J.A.G. was abused, in that he had sustained serious physical injuries by other than accidental means. DSS further alleged J.A.G. was neglected, on the grounds he did not receive proper care and supervision and lived in an environment injurious to his health. The petition also alleged the child to be dependent. The trial court issued a nonsecure custody order the same day.\nThe case came before the trial court for adjudication on 31 March 2004. The evidence presented at the adjudication hearing tended to show that J.A.G. suffered a severe head injury while in the sole care of his father. J.A.G. had no prior injuries and there were no prior concerns regarding abuse, neglect, or dependency. At the time of his injuries, J.A.G. resided with his mother and father, who were unmarried and unemployed.\nOn 22 January 2004, J.A.G. was returned home at approximately 5:00 p.m. after spending the previous night with his maternal grandmother. J.A.G. was acting normally and appeared to be fine. The maternal grandmother informed J.A.G.\u2019s mother that she had observed J.A.G. roll over. This was the first time anyone had observed J.A.G. roll over on his own. Later that evening, J.A.G.\u2019s mother went to the grocery store with her sister and niece at approximately 8:30 p.m. J.A.G.\u2019s father remained at home and took care of his son. J.A.G.\u2019s father contended he placed J.A.G. on the sofa and went to the kitchen to prepare a bottle for the child. When the father returned to the sofa, he found the baby on the carpeted floor, lying on his back and crying. The baby\u2019s arms and legs began to twitch. After J.A.G. began to twitch, his father called J.A.G.\u2019s mother on her cellular telephone and explained what happened. As J.A.G.\u2019s father did not speak English very well, J.A.G.\u2019s mother called emergency personnel and immediately went home. While awaiting the arrival of the ambulance, J.A.G. began having a seizure. The paramedics determined J.A.G. needed to be airlifted to Pitt Memorial Hospital for assessment and treatment.\nDr. Elaine Cabinum-Foeller testified she assessed J.A.G. and determined that he had a subdural hemorrhage in the front part of his brain, swelling, and a prominent retinal hemorrhage. In her expert opinion, J.A.G\u2019s injuries were not consistent with a short fall off of a sofa onto a rug and carpet; rather, his injuries were caused by an inflicted traumatic brain injury. She testified that, due to his injuries, J.A.G. was at risk for developmental problems and that long-term monitoring would be required. A social worker for DSS testified that J.A.G. had no visible external injuries and that he was moving his extremities as would be expected for a child his age (six months old).\nWhile J.A.G. was in the hospital, DSS informed his mother that he would not be allowed to return home and asked for names of individuals who could appropriately care for J.A.G. The mother provided DSS with several names; however, DSS determined none of the potential placements were appropriate, and J.A.G. entered foster care after his discharge from the hospital. Shortly after J.A.G.\u2019s release from the hospital, his father was arrested and charged with felony child abuse.\nAt the conclusion of the evidence, the. trial court entered an order concluding there was clear, cogent, and convincing evidence that J.A.G. \u201cwas neglected [and dependent] ... as it pertains to both parents\u201d and \u201cabused ... as it pertains to the father[.]\u201d The trial court entered a disposition order placing legal and physical custody of J.A.G. with DSS and relieving DSS of any reunification efforts with the father. The trial court did not cease reunification efforts with the mother, and she was allowed visitation. J.A.G.\u2019s father has not appealed from the orders of adjudication and disposition. Respondent-mother now appeals from the adjudication and disposition orders of the trial court.\nI. Motion to Dismiss\nRespondent first contends the trial court abused its discretion in denying her motion to dismiss at the close of petitioner\u2019s evidence. Respondent moved to dismiss the abuse, neglect, and dependency allegations at the close of petitioner\u2019s evidence. After the trial court denied the motion, respondent presented evidence and then renewed her motion to dismiss. The trial court dismissed the abuse allegation, but denied respondent\u2019s motion on the remaining allegations. Instead of dismissing the abuse allegation at the close of all evidence, respondent argues the trial court should have dismissed the abuse allegation at the close of petitioner\u2019s evidence. We conclude this argument is moot.\n\u201cA case is \u2018moot\u2019 when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.\u201d Roberts v. Madison County Realtors Assn., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). As the trial court dismissed the abuse allegation at the close of all evidence, whether the trial court should have dismissed the abuse allegation at the close of petitioner\u2019s evidence will not have any practical effect on this case. Moreover, under Rule 41(b) of the North Carolina Rules of Civil Procedure, the trial court has the discretion to decline to rule upon a motion to dismiss until the close of all evidence.\nAfter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) (2003) (emphasis added). We overrule this assignment of error.\nII. Adjudication\nBy further assignment of error, respondent challenges several findings of fact and a conclusion of law regarding the trial, court\u2019s determination that J.A.G. was neglected. \u201cThe allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence.\u201d N.C. Gen. Stat. \u00a7 7B-805 (2003). \u201c \u2018A proper review of a trial court\u2019s finding of. . . neglect entails a determination of (1) whether the findings of fact are supported by \u201cclear and convincing evidence,\u201d and (2) whether the legal conclusions are supported by the findings of fact.\u2019 \u201d In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566 (2002) (citations omitted). The \u201c[c]lear and convincing\u201d standard \u201c \u2018is greater than the preponderance of the evidence standard required in most civil cases.\u2019 \u201d In re Smith, 146 N.C. App. 302, 304, 552 S.E.2d 184, 186 (2001) (citation omitted). Clear and convincing evidence is evidence which should \u201c \u2018 \u201cfully convince.\u201d \u2019 \u201d Id. (citations omitted).\nFirst, respondent challenges the portion of Finding of Fact 8 which states: \u201cThe Court further finds that infarctions suffered by the child is . . . permanent as those brain cells will not regenerate.\u201d We conclude this finding of fact is supported by clear and convincing evidence. Dr. Elaine Cabinum-Foeller, an expert in pediatric medicine and child abuse, testified that J.A.G. had \u201ca[] defuse infarction or an area where the brain had not gotten good oxygen flow or blood supply for a period of time . . . that area of the brain was probably going to die.\u201d She explained that with an infarction, part of the brain tissue begins to swell, will become damaged, and will either scar down and/or just go away. The damaged portion of the brain typically will not regenerate. Based upon this expert testimony, the trial court\u2019s finding of fact that the areas affected by the infarctions will not regenerate is supported by clear and convincing evidence.\nRespondent also argues \u201cthe trial court inappropriately found that the parents had neglected in the past to ensure that the child was appropriately cared for.\u201d Respondent contends this finding is not supported by clear and convincing evidence because the evidence indicates the infant did not have any prior injuries, was developing appropriately, had only lived in one residence, and had never missed any medical appointments with his pediatrician..\nFinding of Fact 10 states in pertinent part:\nThe Court further finds that there exists concerns [sic] as to the parents [\u2019] ability to supervise the juvenile based upon a previous instance whereby the child fell out of a swing while under the care of the parents. Based upon the mother\u2019s testimony describing the child\u2019s previous fall from an infant swing, the Court finds that the fall was minor and that the child was not injured. The Court further finds that the injuries diagnosed on or about January 22, 2004 were not a result of the child falling out of the infant swing. The Court further finds that on or about January 22, 2004, the child did have a crib in the family home, however the crib was not utilized by the father on that occasion and further finds that the parents had previously placed the child on the sofa without appropriate restraint or pillows. The Court further finds that the injuries suffered by the juvenile were not consistent with the child falling off of the sofa and that the parents have neglected in the past to ensure that the juvenile was appropriately cared for.\nOur review of the pertinent portion of Finding of Fact 10 indicates the trial court\u2019s finding that J.A.G. had not been appropriately cared for in the past was based upon the parents\u2019 habit of placing J.A.G. on the sofa without surrounding the infant with pillows or other form of restraint. Respondent testified that she and J.A.G.\u2019s father generally placed J.A.G. on the sofa with his back or side parallel to the back of the sofa. She also testified that she neither placed any devices on the sofa to prevent J.A.G. from falling off nor placed any pillows in front of the sofa in the event J.A.G. did roll off. However, J.A.G. was unable to roll over, and was not otherwise mobile during the prior instances when the parents placed him on the sofa. Furthermore, it is not unusual for parents to place an immobile infant on a sofa, couch, or bed. The evidence indicates J.A.G. had never missed any appointments with his pediatrician, was developing appropriately, and had no prior injuries. We conclude the finding of fact that the parents had neglected to appropriately care for J.A.G. in the past is not supported by clear and convincing evidence.\nRespondent further challenges a portion of Finding of Fact 10, which states: \u201cThe Court further finds that while [DSS] was attempting to make a plan of care, the parents were not willing to investigate the needs of the child in [a] safe environment.\u201d In Finding of Fact 10, the trial court states:\n[DSS] attempted to work with the parents to identify alternative care arrangements for the juvenile. The mother informed [DSS] that she wanted to contact the relatives before they were explored as placement considerations by [DSS]. At the time of the child\u2019s discharge, the parents had provided names to the [DSS] for alternative care, however due to the timing of the parents providing the names to [DSS], [DSS] did not have sufficient time to fully explore those placements prior to the discharge.\nThe evidence at the hearing tended to show that J.A.G. was in the hospital for one week, 22 January 2004 through 30 January 2004. DSS became involved on 23 January 2004. During the week, DSS discussed with the parents possible relatives who could care for J.A.G. in the event he could not return home upon discharge from the hospital. Respondent provided DSS with the names of two relatives; however, DSS did not approve these relatives as appropriate placements. Respondent then provided at least two additional names, but DSS could not conduct a home study on these individuals prior to J.A.G.\u2019s discharge from the hospital. Thus, in one week, respondent provided DSS with at least four names of individuals who could potentially care for J.A.G., if necessary. Based upon this evidence, we conclude the trial court\u2019s finding of fact that respondent was not willing to investigate the needs of the child in a safe environment is not supported by clear and convincing evidence.\nRespondent next contends the trial court\u2019s findings of fact do not support the conclusion of law that J.A.G. was neglected \u201cas it pertains to both parents[.]\u201d Respondent contends there was no clear and convincing evidence that she neglected her son. A neglected juvenile is one\nwho does not receive proper care, supervision, or discipline from the juvenile\u2019s 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\u2019s 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.\nN.C. Gen. Stat. \u00a7 7B-101(15) (2003). Here, the trial court concluded \u201cby clear, cogent and convincing evidence that the juvenile was neglected pursuant to [N.C. Gen. Stat. \u00a7] 7B-101(15) as it pertains to both parents as the child lived in an environment injurious to his health and welfare and did not receive proper care and supervision.\u201d We conclude that, insofar as this conclusion reflects the trial court\u2019s determination that respondent neglected her child, it is not supported by the findings of fact.\nFirst, we have already determined the trial court\u2019s finding of fact that respondent failed to appropriately care for J.A.G. was not supported by clear and convincing evidence. Second, the evidence and the trial court\u2019s findings of fact indicate that respondent was not at the home when J.A.G. suffered his injuries. Indeed, respondent was at the grocery store and summoned medical personnel upon learning of his injuries. Although the father indicated the child was injured by a fall from the sofa, the medical expert opined that J.A.G.\u2019s injuries could not have occurred in that manner and opined his injuries were non-accidental in nature. Respondent\u2019s placement of J.A.G. on the sofa during the first few months of his life when he was immobile was therefore not the cause of his injuries and had not led to any prior injuries. Third, the evidence indicates J.A.G. was developing appropriately and had never missed any doctor\u2019s appointments. Fourth, there were no allegations, evidence, or findings of fact related to any of the other bases for a finding of neglect as defined in section 7B-101(15) of the General Statutes. Finally, there was no evidence presented indicating respondent knew or reasonably should have known the father would harm J.A.G. Thus, the trial court erred in finding and concluding that respondent neglected J.A.G.\nWe note that our determination that the trial court erred in finding and concluding that respondent neglected her child does not alter the trial court\u2019s adjudication of J.A.G. as a neglected juvenile. The trial court made detailed findings, many of which respondent has not challenged, based on clear and convincing evidence that J.A.G. sustained a severe head injury as a result of abuse by his father. Thus, we conclude the trial court did not err in adjudicating J.A.G. a neglected child on the grounds he did not receive proper care and supervision from his father and lived in an environment injurious to his health.\nRespondent next challenges the trial court\u2019s conclusion of law that J.A.G. was dependent. The trial court stated in its order:\nThe Court further finds by clear, cogent and convincing evidence that the child is a dependent child pursuant to N.C.G.S. 7B-101(9) as it pertains to both parents, as the parents were unable to provide proper care for the care or supervision [sic] and lacked an appropriate alternative care arrangement at the time of removal.\nUnder section 7B-101(9) of the North Carolina General Statutes, a dependent juvenile is defined as: \u201cA juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile\u2019s care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.\u201d N.C. Gen. Stat. \u00a7 7B-101(9) (2003).\nAs previously discussed, the trial court\u2019s finding of fact that respondent had not appropriately cared for him was not supported by clear and convincing evidence. Similarly, we have concluded the finding of fact that respondent was not willing to investigate the needs of J.A.G. in a safe environment was not supported by clear and convincing evidence. We have also concluded that respondent did not neglect her son. As respondent neither abused nor neglected J.A.G., we conclude J.A.G. was not dependent, because he had a parent capable of providing care and supervision. The trial court therefore erred in adjudicating J.A.G. dependent, and we reverse that portion of the order adjudicating him as such.\nIII. Disposition\nFinally, respondent contends the trial court abused its discretion in its dispositional order by ordering J.A.G.\u2019s custody to remain with DSS. We agree.\nWe have concluded that the trial court erred in finding and concluding that respondent neglected her son, and in adjudicating J.A.G. dependent. The trial court therefore had no grounds, under the facts and holding of this case, to support its decision to place custody of the child with DSS.\nWe note, however, that the trial court determined J.A.G. was abused and neglected as to his father; and therefore, the trial court relieved DSS of any efforts at reunification of the father and J.A.G. Indeed, a medical expert opined J.A.G. suffered serious injuries from a non-accidental incident while in the father\u2019s sole care. Thus, the trial court and DSS needed to ensure J.A.G. would suffer no further harm by the father. At the time of J.A.G.\u2019s injuries, J.A.G. resided with his mother and father. However, by the time of the hearing, respondent lived with her mother and no longer resided with the father. Although respondent indicated she still believed her son was injured by a fall off of the sofa, the record does not indicate respondent was unwilling to comply with a trial court order directing that the father not have any contact with J.A.G. Indeed, as the trial court adjudicated J.A.G. abused and neglected, the trial court had full authority to order respondent to comply with such a directive. See N.C. Gen. Stat. \u00a7 7B-904(dl)(3_) (2003) (granting the trial court authority to order that a parent of an abused, neglected or dependent child \u201c[t]ake appropriate steps to remedy conditions in the home that led to or contributed to the juvenile\u2019s adjudication\u201d). At the time of the hearing, respondent no longer resided with the father and was complying with the DSS family services case plan. As there were no grounds to prolong J.A.G.\u2019s removal from the custody of his mother, the trial court abused its discretion in finding and concluding it was in the juvenile\u2019s best interest that his custody remain with DSS. We therefore reverse the portion of the order of disposition placing custody of J.A.G. with DSS.\nIn conclusion, we agree with respondent that the trial court erred in finding and concluding she neglected her child, and we therefore reverse that portion of the adjudication order. We also reverse the adjudication of dependency and the portion of the order of disposition placing custody of J.A.G. with DSS. We otherwise affirm the order of adjudication. We remand this case to the trial court for proceedings not inconsistent with this opinion.\nAffirmed in part, reversed in part, and remanded.\nJudge McCULLOUGH concurs.\nJudge LEVINSON concurs in a separate opinion.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "LEVINSON, Judge\nconcurring.\nI concur in the lead opinion, but write separately to explain the unusual appellate posture of this matter more fully, and to comment generally on the trial court\u2019s role in adjudicating petitions alleging abuse, neglect, and dependency.\nAs a preliminary matter, I first review the trial court\u2019s conclusions of law and the limited issues preserved for our consideration. The trial court concluded J.A.G. was a dependent juvenile \u201cas to both parents\u201d and, further, that the child was (1) neglected \u201cas to\u201d mother, and (2) neglected and abused \u201cas to\u201d father. Mother\u2019s appeal challenges, as unsupported, the conclusion of law that J.A.G. was a dependent juvenile, and that J.A.G. was neglected \u201cas to\u201d her. In making these arguments on appeal, she neither assigns error to, nor argues that (1) many findings related to father\u2019s conduct are unsupported by the evidence, or (2) the conclusions of law that J.A.G. was neglected and abused \u201cas to\u201d father are somehow infirm.\nIn her brief, mother presented the following question for review concerning whether the conclusion of neglect \u201cas to\u201d her could be sustained on appeal:\nDid the trial court commit reversible error and violate Respondent-Mother\u2019s substantial rights when it found and concluded that she had neglected the child?\nThe following is illustrative of mother\u2019s arguments on appeal, which focus on whether the juvenile can even attain the status of a neglected juvenile without first considering her own conduct:\nAn abuse, neglect or dependency proceeding is inherently a multi-party case involving the petitioner, the respondent-parents, and the child. Thus, treating the outcome only as a conclusion of the child\u2019s status is inappropriate. In order for a parent to abuse, neglect, or render dependent a child, there must be some nexus between the child\u2019s injuries and a parent\u2019s act or failure to act.\nHere, the evidence showed that Respondent-Mother neither harmed the child nor did she have any idea that [father] could have or would have harmed the child. . . . Borrowing a page from tort law, a master is not responsible for an agent\u2019s intentional tort where the agent\u2019s act is outside the scope of the master\u2019s business, the master has not authorized the agent to act tortiously, and the master has not ratified the agent\u2019s tortious act. Snow v. DeButts, 212 N.C. 120, 122, 193 S.E. 224, 226 (1937). Likewise, here Respondent-Mother did not condone or authorize an assault on the child, if that is in fact what happened.\nOne must assume that the trial court believed JAG\u2019s injuries were non-accidental and that Respondent-Father was the perpetrator of JAG\u2019s injuries. . . . However, . . . there is no evidence showing that Respondent-Mother had previously failed to supervise JAG properly[.]\nIn support of her argument that the trial court may conclude that a child is abused, neglected, or dependent \u201cas to\u201d a parent, mother cites only In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003). The McCabe panel did hold that \u201cthere was clear, cogent and convincing evidence to support the trial court\u2019s adjudication of neglect and abuse bv respondent.\u201d Id. at 680, 580 S.E.2d at 74 (emphasis added). The fact the McCabe panel utilized the words \u201cby respondent\u201d is not persuasive authority that this Court evinced an intention to convert the subject of these adjudications \u2014 the status of the juvenile \u2014 into an inquiry about the individual or individuals who may or may not have contributed to the circumstances which support the juvenile\u2019s status as abused, neglected, or dependent. Moreover, mother\u2019s use of master-servant concepts from our body of tort law is, of course, completely inapposite to these juvenile matters.\nThe trial court\u2019s function, when confronted with petitions for abuse, neglect, and/or dependency, is to adjudicate whether the subject juvenile has the status of one or more of these conditions. See N.C.G.S. \u00a7 7B-101(1) (2003) (\u201cabused juvenile\u201d); N.C.G.S. \u00a7 7B-101(9) (2003) (\u201cdependent juvenile\u201d); and N.C.G.S. \u00a7 7B-101(15) (2003) (\u201cneglected juvenile\u201d). In doing so, the trial court will oftentimes make findings related to the commission and/or omission of acts on the part of parent(s) or other caretakers. This, however, changes neither the nature of what the court is adjudicating, nor the central issue on appeal: the juvenile\u2019s status. Indeed, the presence or absence of culpability of a particular parent or other caretaker in an adjudication of abuse, neglect, or dependency is not necessarily associated with whether the statutory thresholds of these conditions are present. Compare N.C.G.S. \u00a7 7B-1111 (2003) (in termination of parental rights proceeding, petitioner must prove that the parent\u2019s individual conduct satisfies one or more grounds). Alternatively stated, it doesn\u2019t necessarily matter who did what. This has long been the law in North Carolina:\nIn 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.\nIn re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984) (discussing neglect generally). In my view, the same holds true of adjudications of abuse and dependency.\nFrankly, it is as unsound for adjudications to be \u201cas to\u201d any parent or caretaker, as it is equally clear that findings concerning persons\u2019 individual responsibility or culpability are relevant to the disposition. In short, mother\u2019s argument, that \u201cfor a parent to abuse, neglect, or render dependent a child, there must be some nexus between the child\u2019s injuries and a parent\u2019s act or failure to act[,]\u201d misses entirely the nature of these adjudication proceedings. Accepting mother\u2019s argument would amount to recasting adjudications into hearings about the adult caretakers in J.A.G.\u2019s life when these \u201cIn re\u201d proceedings are, instead, about the conditions and circumstances surrounding the child. In her brief, mother boldly asserts that \u201ctreating the outcome only as a conclusion of the child\u2019s status is inappropriate.\u201d This contention is, in my view, simply contrary to the law of North Carolina.\nWhen a parent takes an appeal from the order on adjudication and disposition of a petition alleging abuse, neglect, and/or dependency, and she challenges the adjudicatory conclusions of law, it necessarily follows that the status of the juvenile is before this Court irrespective of whether the same depended, in part or in full, on the appealing parent\u2019s individual conduct. Notwithstanding the dual \u201cas to\u201d conclusions of law by the trial court in the instant case, mother could nonetheless have challenged all the findings of fact and conclusions of law in the order on adjudication and disposition.\nFashioning adjudication orders on abuse, neglect, and dependency \u201cas to\u201d anyone misapprehends our juvenile statutes. In my view, the words \u201cas to\u201d are nothing more than surplusage. Our trial courts should avoid fashioning adjudication orders in this way and should, instead, continue to follow the paramount practice of not concluding juveniles are anything \u201cas to\u201d anyone. Although our panel endeavored to resolve the issue of whether mother\u2019s conduct contributed to the status of neglect in this appeal, subsequent appeals that do not fully preserve for appellate review the juvenile\u2019s status as abused, neglected, or dependent may yield dismissals by this Court.\nFinally, I review the status of this juvenile matter. In addition to reversing the trial court\u2019s conclusion that mother\u2019s conduct contributed to the circumstances giving rise to J.A.G.\u2019s status as a neglected juvenile, this Court has also reversed the court\u2019s conclusion that J.A.G. was a dependent juvenile. The findings of fact that we have concluded are unsupported by the evidence, and the conclusions of law reversed by this Court, cannot be utilized in later juvenile proceedings to collaterally establish any one or more of these things. J.A.G. retains his status as an abused and neglected juvenile by virtue of conclusions of law that are not challenged on appeal. Moreover, while I have agreed with my colleagues that the current record on appeal only supports the return of custody of J.A.G. to mother, it is also my view that, because the order of disposition was based, in large measure, on findings and conclusions of law that have now been reversed on appeal, the trial court should necessarily be directed to enter a new disposition order after giving all persons an opportunity to be heard. Significantly, though, in reversing the order of disposition insofar as it continued custody of J.A.G. with DSS, this Court has not held that the trial court either lacks jurisdiction over this child, see N.C.G.S. \u00a7 7B-201 (2003), or that it does not still have the authority and means to fashion a new dispositional order and subsequent custody review orders that comport with the best interests of the juvenile. See N.C.G.S. \u00a7 7B-903 (2003) (dispositional alternatives); N.C.G.S. \u00a7 7B-1000 (2003) (modification); N.C.G.S. \u00a7 7B-906 (2003) (custody review).", "type": "concurrence", "author": "LEVINSON, Judge" } ], "attorneys": [ "Holland & O\u2019Connor; by W. A. Holland, Jr. and Jennifer S. O\u2019Connor, for petitioner-appellee Johnston County Department of Social Services; James D. Johnson, Jr. for Guardian ad Litem.", "James R. Levinson for respondent-appellee.", "Richard Croutharmel for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: J.A.G.\nNo. COA04-1257\n(Filed 16 August 2005)\n1. Appeal and Error\u2014 appealability \u2014 mootness\nAlthough respondent mother contends the trial court abused its discretion by denying the mother\u2019s motion to dismiss the charge of child abuse at the close of petitioner\u2019s evidence, this argument is moot because: (1) the trial court dismissed the abuse allegation at the close of all evidence and the issue of whether the trial court should have dismissed the abuse allegation at the close of petitioner\u2019s evidence will not have any practical effect on this case; and (2) under N.C.G.S. \u00a7 1A-1, Rule 41(b), the trial court has the discretion to decline to rule upon a motion to dismiss until the close of all evidence.\n2. Child Abuse and Neglect\u2014 proper care and supervision\u2014 environment injurious to health\nAlthough the trial court did not err by adjudicating the minor ' child neglected on the grounds that he did not receive proper care and supervision from his father and lived in an environment injurious to his health, it erred by adjudicating that respondent mother neglected the child, because: (1) the trial court\u2019s finding that the child had not been appropriately cared for in the past was not supported by clear, cogent, and convincing evidence based upon the parents\u2019 habit of placing the child on the sofa without surrounding the infant with pillows or other form of restraint when the infant was unable to roll over and was not otherwise mobile during the prior instances when the parents placed him on the sofa, and further evidence indicated that the child had never missed any appointments with his pediatrician, was developing appropriately, and had no prior injuries; (2) the trial court\u2019s finding of fact that respondent was not willing to investigate the needs of the child in a safe environment is not supported by clear, cogent, and convincing evidence when in the one-week allotted time respondent provided DSS with at least four names of individuals who could potentially care for the child; (3) the trial court\u2019s findings of fact indicate that respondent was not at home when the child suffered his injuries, she was at the grocery store and summoned medical personnel upon learning of his injuries, and there was no evidence that respondent knew or reasonably should have known the father would harm the child; and (4) there were no allegations, evidence, or findings of fact related to any of the other bases for a finding of neglect as defined under N.C.G.S. \u00a7 7B-101(15).\n3. Child Abuse and Neglect\u2014 dependency \u2014 parent capable of providing care and supervision\nThe trial court erred by adjudicating the minor child dependent and the portion of the order adjudicating him as such is reversed, because respondent mother neither abused nor neglected the child, and thus, the child had a parent capable of providing care and supervision.\n4. Child Abuse and Neglect\u2014 custody with DSS \u2014 no showing of neglect or dependency\nThe trial court abused its discretion by ordering the minor child\u2019s custody should remain with the Department of. Social Services (DSS), because: (1) the trial court erred by finding and concluding that respondent mother neglected her son and by adjudicating the child dependent; (2) the record does not indicate that the mother was unwilling to comply with a trial court order directing that the father not have any contact with the child; and (3) at the time of the hearing, respondent was no longer residing with the father and was complying with the DSS family services case plan.\nJudge Levinson concurring in a separate opinion.\nAppeal by respondent-mother from orders entered 30 April 2004 by Judge Addie Harris Rawls in Johnston County District Court. Heard in the Court of Appeals 24 March 2005.\nHolland & O\u2019Connor; by W. A. Holland, Jr. and Jennifer S. O\u2019Connor, for petitioner-appellee Johnston County Department of Social Services; James D. Johnson, Jr. for Guardian ad Litem.\nJames R. Levinson for respondent-appellee.\nRichard Croutharmel for respondent-appellant." }, "file_name": "0708-01", "first_page_order": 738, "last_page_order": 751 }