{ "id": 8154286, "name": "IN THE MATTER OF: N.G.", "name_abbreviation": "In re N.G.", "decision_date": "2007-09-18", "docket_number": "No. COA07-369", "first_page": "1", "last_page": "17", "citations": [ { "type": "official", "cite": "186 N.C. App. 1" } ], "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": "644 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638413 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "594" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0588-01" ] }, { "cite": "637 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637240 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "229" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0227-01" ] }, { "cite": "567 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "229", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082328 ], "year": 2002, "pin_cites": [ { "page": "737", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0733-01" ] }, { "cite": "561 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "567", "parenthetical": "citations and quotations 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": "766", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0756-01" ] }, { "cite": "183 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8202464 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "213" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0207-01" ] }, { "cite": "581 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188114 ], "year": 2003, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0473-01" ] }, { "cite": "178 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8380036 ], "year": 2006, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0727-01" ] }, { "cite": "610 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "406", "parenthetical": "affirming adjudication of neglect where respondent violated court-ordered protection plans and failed \"to take responsibility for harm that befell her children as a result of her conduct\"" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470652 ], "year": 2005, "pin_cites": [ { "page": "427", "parenthetical": "affirming adjudication of neglect where respondent violated court-ordered protection plans and failed \"to take responsibility for harm that befell her children as a result of her conduct\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0423-01" ] }, { "cite": "521 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "126" }, { "page": "127" }, { "page": "127", "parenthetical": "noting that substantial risk of future neglect must be based on the historical facts of the case" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241043 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "395" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0387-01" ] }, { "cite": "322 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "435", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 439", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525643 ], "year": 1984, "pin_cites": [ { "page": "441", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0439-01" ] }, { "cite": "200 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "805" } ], "opinion_index": 0 }, { "cite": "284 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561845 ], "year": 1973, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0348-01" ] }, { "cite": "360 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "461", "parenthetical": "quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358098 ], "year": 1987, "pin_cites": [ { "page": "194", "parenthetical": "quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0189-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "676", "parenthetical": "citations omitted" }, { "page": "676" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "511", "parenthetical": "citations omitted" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "629 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635830 ], "year": 2006, "pin_cites": [ { "page": "922" } ], "opinion_index": 1, "case_paths": [ "/se2d/629/0920-01" ] }, { "cite": "633 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636476 ], "year": 2006, "pin_cites": [ { "page": "716", "parenthetical": "quoting In re D.H., 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006)" } ], "opinion_index": 1, "case_paths": [ "/se2d/633/0715-01" ] }, { "cite": "628 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635607 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "757", "parenthetical": "internal citations omitted" }, { "page": "757" } ], "opinion_index": 1, "case_paths": [ "/se2d/628/0753-01" ] }, { "cite": "568 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "356 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511544, 1511451, 1511636, 1511574 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/356/0163-01", "/nc/356/0163-02", "/nc/356/0163-03", "/nc/356/0163-04" ] }, { "cite": "559 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "236-37" } ], "opinion_index": 1 }, { "cite": "148 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367005 ], "pin_cites": [ { "page": "547" } ], "opinion_index": 1, "case_paths": [ "/nc-app/148/0541-01" ] }, { "cite": "431 U.S. 494", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1688 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "503-04" }, { "page": "540" } ], "opinion_index": 1, "case_paths": [ "/us/431/0494-01" ] }, { "cite": "320 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "309", "parenthetical": "\"[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.\" (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 52 L. Ed. 2d 531, 540 (1977)" } ], "opinion_index": 1 }, { "cite": "70 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522265 ], "year": 1984, "pin_cites": [ { "page": "350", "parenthetical": "\"[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.\" (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 52 L. Ed. 2d 531, 540 (1977)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/70/0345-01" ] }, { "cite": "319 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "232" } ], "opinion_index": 1 }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "year": 1984, "pin_cites": [ { "page": "715" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "177 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302179 ], "year": 2006, "pin_cites": [ { "page": "703" } ], "opinion_index": 1, "case_paths": [ "/nc-app/177/0700-01" ] }, { "cite": "179 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8236656 ], "year": 2006, "pin_cites": [ { "page": "383", "parenthetical": "quoting In re D.H., 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/179/0383-01" ] }, { "cite": "455 U.S. 745", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11307633 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/us/455/0745-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "252", "parenthetical": "citing Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982)" } ], "opinion_index": 1 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "109-10", "parenthetical": "citing Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982)" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "547 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "353 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135896, 135730, 135565, 135847 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0374-03", "/nc/353/0374-01", "/nc/353/0374-02", "/nc/353/0374-04" ] }, { "cite": "536 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "840" } ], "opinion_index": 1 }, { "cite": "140 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12125951 ], "year": 2000, "pin_cites": [ { "page": "291" } ], "opinion_index": 1, "case_paths": [ "/nc-app/140/0288-01" ] }, { "cite": "360 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796047 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "454-55", "parenthetical": "internal citations omitted" }, { "page": "454-55" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0449-01" ] } ], "analysis": { "cardinality": 1163, "char_count": 38502, "ocr_confidence": 0.729, "pagerank": { "raw": 3.623819658619982e-07, "percentile": 0.8888068377731675 }, "sha256": "a1ab75f1198546359558d2eaf53367bdfe3d03d9d05c0ffb91e33637c512c427", "simhash": "1:87efd22adf4f9f55", "word_count": 6096 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge TYSON dissents by separate opinion." ], "parties": [ "IN THE MATTER OF: N.G." ], "opinions": [ { "text": "ELMORE, Judge.\nOn 24 October 2005, the Harnett County Department of Social Services (DSS) filed a juvenile petition alleging that N.G. was a neglected child. DSS claimed that N.G. was not receiving proper medical care due to respondents\u2019 desire to conceal the child\u2019s existence from DSS. DSS alleged that respondents concealed the pregnancy and birth of the child due to the family\u2019s history with the agency. Specifically, DSS noted that respondents\u2019 parental rights had been terminated with respect to their first child, and that their second child was in DSS custody. DSS further stated that respondents\u2019 first child, L.G., sustained injuries associated with \u201cshaken baby syndrome\u201d and that the injuries were deemed non-accidental. Respondents\u2019 second child was removed based on the assessment that the home environment being assessed as injurious to the child\u2019s welfare. DSS alleged that N.G. also lived in an environment injurious to her welfare due to the significance of L.G.\u2019s injuries, respondents\u2019 lack of cooperation with DSS, and their inability to take responsibility or explain L.G.\u2019s injuries. A non-secure custody order was entered and N.G. was removed from respondents\u2019 home.\nAn adjudicatory and dispositional hearing was held on 20 September 2006. On 30 January 2007, the trial court entered the written adjudicatory and disposition order. The trial court found that N.G. was a neglected juvenile in that she lived in an environment injurious to her welfare. The trial court awarded custody to DSS, con-eluded that reunification would be futile, and ceased visitation. Respondents appeal.\nI.\nRespondents first argue that adjudicatory findings of fact numbers 5, 7, 9, 10, 12, 18, 24, 25, and 27, as well as dispositional findings of fact numbers 5, 6, 7, 8, and 9, are contrary to the evidence presented. Respondents further challenge the trial court\u2019s adjudicatory conclusions of law.\n\u201cAllegations of neglect must be proven by clear and convincing evidence. In a non-jury neglect adjudication, the trial court\u2019s findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.\u201d In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations omitted).\nIn findings of fact numbers 5 and 7, the trial court found that N.G. lived in an environment injurious to her welfare because she was allowed to live in a home where an older sibling had been subjected to abuse and respondents had not adequately addressed the conditions that led to the abusive acts. Further, the trial court found that L.G. suffered physical injuries by other than accidental means while in respondents\u2019 care. The court then listed L.G.\u2019s many injuries, including intracranial injuries, skull fractures, fractured ribs, and fractured tibias. In finding of fact number 9, the trial court found:\nThe rib injuries . . . were consistent with being caused by direct impact or from forceful squeezing or compression of her ribs. The injuries to her tibias were likely caused by forceful twisting or torques of those bones. The head injuries were caused by [L.G.] being shaken violently and/or from a forceful impact to her head.\nRespondents contend that petitioner failed to present clear, cogent, and convincing evidence that either respondent caused the injuries. However, in the order terminating respondents\u2019 parental rights to L.G., the trial court made almost identical findings, and found that L.G. was \u201can abused child in that she suffered physical injuries by other than accidental means while in the care of her parents.\u201d \u201cThe doctrine of collateral estoppel operates to preclude parties \u2018from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.\u2019 \u201d In re Wheeler, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987) (quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Therefore, respondents are estopped from denying responsibility for L.G.\u2019s injuries.\nRespondents next challenge findings made by the trial court relating to their cooperation with DSS and completion of their case plan. In finding of fact number 12, the trial court found that respondents failed to cooperate with DSS and made no progress on taking steps to improve their parenting skills. In findings of fact numbers 23 and 24, the trial court found that respondents \u201cfailed to make reasonable progress on improving their parenting skills and abilities\u201d and had \u201cnot engaged in treatment, services as ordered by the court and have continued to deny any responsibility for the injuries involving the older sibling ... or acknowledge any wrongdoings involving that child.\u201d In dispositional finding of fact number 6, the trial court found that respondents had failed to cooperate with the various social workers and failed to fully cooperate with family service plans, and that respondents had failed to take responsibility for L.G.\u2019s injuries and blamed others for the injuries without any reliable evidence to support their claims. In dispositional finding of fact number 7, the trial court found that respondents were \u201cdirected ... to participate in the Family PRIDE Program to include individual counseling or therapy for each parent by a therapist approved by DSS and the [guardian ad litem].\u201d\nRespondents assert that they made efforts at cooperating with social workers and complying with their case plan. Respondents note that prior orders of the court allowed them to participate in \u201ccomparable\u201d programs approved by DSS and the guardian ad litem. Respondents contend that they sought approval of alternative programs and attended these programs, but that their attempts at gaining approval of these programs were ignored. Finally, respondent-mother argues that she should not be faulted for refusing to admit that she injured the older sibling, noting that she has steadfastly maintained her innocence and is not required to prove her innocence.\nWe find respondents\u2019 arguments unpersuasive. Maria Mucciacciaro, a DSS social worker, testified that she met with respondents and specifically told them that the classes they were taking would not be accepted as an alternative to the Family PRIDE program. Mucciacciaro testified that DSS was aware of the program attended by respondents, and that although she and her supervisor reviewed the program, \u201c[they] did not feel that this program would be a good program for [respondents], nor did [they] feel like there would be any success rate with it.\u201d Among the reasons stated by Mucciacciaro were that the program attended by respondents did not do drug testing, there were concerns whether the teacher of the class was qualified, and the program was not as \u201cin-depth\u201d a program in comparison to the PRIDE program.\nFurthermore, as we have noted, respondents are estopped from arguing that they were not responsible for L.G.\u2019s injuries. Dr. Sharon Cooper testified that:\nIf you have a parent who is unable ever to acknowledge culpability with respect to the severe injuries that a previous child has had, as is the case in this circumstance, the risk for injury of subsequent infants is significantly elevated, and it is for that particular reason \u2014 according to the literature, if a person has shaken a baby once, their risk for re-injury is 77 percent, three out of four times. They must come to an understanding that shaking the infant is causing the infant harm.\nTherefore, we conclude that there was clear, cogent, and convincing evidence in the record to support the trial court\u2019s adjudicatory findings of fact numbers 12, 23 and 24, and dispositional findings numbers 6 and 7.\nIn finding of fact number 18, the trial court found that respondents \u201crefused (discouraged) to allow home visitation by the social worker after August 2005.\u201d Similarly, in finding of fact number 25(iv), the court found that \u201c[h]ome visits were discouraged by the mother.\u201d We find sufficient evidence in the record to support the trial court\u2019s findings. Mucciacciaro testified that in June, 2005, she attempted to set up a home visit with respondents but was told that \u201cit wasn\u2019t convenient.\u201d Mucciacciaro offered to come \u201cafter regular hours,\u201d but was again told that it \u201cwasn\u2019t convenient.\u201d Mucciacciaro finally asked if there was any time that she could come, and was told, \u201cNo, it\u2019s not convenient.\u201d Similarly, in August, 2005, Mucciacciaro attempted to set up home visits, and respondents told her, \u201cIt\u2019s a bad week . . . .\u201d Again, Mucciacciaro offered to visit after regular hours, but respondents continued to tell her it was a \u201cbad week.\u201d Mucciacciaro testified that \u201cI don\u2019t think I was ever able to schedule a visit \u2014 home visit after that.\u201d\nIn finding of fact number 25(iii), the trial court found that respondents were \u201cconsisitently [sic] 15 minutes late to the visitations over the last several months for the announced reason that' traffic had made them late.\u201d We find sufficient evidence in the record to support the trial court\u2019s finding. A DSS court report stated that while respondents attended all visitations, \u201cover the last several months they are consistently on average 15 minutes late to the visitations, most of the time saying that traffic had made them late.\u201d Additionally, Mucciacciaro testified that respondents consistently visited N.G., but were \u201clate some.\u201d Moreover, respondent-father admitted at the hearing that they were late for visits because they had to drive from New Jersey.\nRespondents additionally challenge dispositional finding of fact number 5, in which the trial court stated that it had \u201creviewed the exhibits offered by the parents but [did] not find the same to be credible on the issue of the juvenile\u2019s safety and best interest.\u201d Respondent-mother contends that the evidence was competent, and that she \u201ccannot determine on what basis these exhibits were not \u2018credible\u2019 . . . .\u201d We hold that the trial court did not err. It is the \u201cjudge\u2019s 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.\u201d In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (citation omitted).\nIn finding of fact number 27, the trial court found that DSS \u201cwas unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile.\u201d Similarly, adjudicatory conclusion of law number 3 states that DSS was \u201cunable to prevent placement of the juvenile into out of home care, and the filing of the petition was necessary to protect the juvenile and the placement of the juvenile in care could not be prevented.\u201d Respondents contend that N.G. was being appropriately cared for and removal was not necessary for her protection. We disagree. As we have noted, respondents\u2019 arguments regarding L.G.\u2019s injuries are not persuasive. Furthermore, Dr. Cooper testified that respondents\u2019 failure to acknowledge culpability for L.G.\u2019s injuries put N.G. at risk of injury. When combined with the fact that respondents did not cooperate with DSS and failed to improve their parenting skills, the evidence supports the trial court\u2019s finding of fact and conclusion of law.\nIn dispositional findings of fact 6, 8, and 9, the trial court found that a plan of reunification would be futile, custody should be awarded to DSS, and visitation should be terminated. Respondent-mother renews her contention that her unwillingness to admit causing L.G.\u2019s injuries should not result in the cessation of reunification efforts. Respondent-mother also argues that she should not be faulted for DSS\u2019s refusal to approve alternative programs. Respondent-mother finally asserts that the trial court should have considered a kinship placement. We find respondent-mother\u2019s arguments unpersuasive. The question of fault for L.G.\u2019s injuries is not before this court. Moreover, DSS presented evidence that these alternative programs were not comparable.\nThe trial court also did not err by declining a kinship placement. DSS completed kinship assessments with all relatives suggested by respondents. Indeed, the record shows that \u201call suggested kinship placements have been exhausted.\u201d Family placement was inappropriate because the family members did not believe that N.G. was in need of protection, and relative placement would therefore not ensure the child\u2019s safety. Accordingly, because competent evidence in the record supports the trial court\u2019s findings of fact and conclusions of law, the assignments of error are overruled.\nII.\nRespondents next argue that the trial court erred by adjudicating N.G. a neglected juvenile. Respondent-mother argues that the trial court erred in adjudicating N.G. neglected based solely on L.G.\u2019s injuries in the absence of clear, cogent and convincing evidence that respondents inflicted the injuries. Respondent-father argues that the trial court must be reversed because the evidence on probability of neglect is insufficient. Respondents both assert that N.G. was found to be healthy and well-cared for when removed from their home.\nAfter careful review of the record, briefs, and contentions of the parties, we affirm. In an abuse, neglect, and dependency case, review is limited to the issue of whether the conclusion is supported by adequate findings of fact. Helms, 127 N.C. App. at 511, 491 S.E.2d at 676. \u201cNeglected juvenile\u201d is defined in N.C. Gen. Stat. \u00a7 7B-101(15) as:\nA juvenile who 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.\nN.C. Gen. Stat. \u00a7 7B-101(15) (2005). Section 7B-101Q5) affords \u201cthe 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.\u201d In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999). \u201cIn cases of this sort [involving a newborn], the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case.\u201d Id. at 396, 521 S.E.2d at 127.\nThe question of responsibility for L.G.\u2019s injuries is not currently before us. Moreover the trial court adopted as fact testimony that there is a high rate of recidivism where parents do not acknowledge culpability for the injuries a child incurred while in their care. The trial court then found that respondents continued to deny responsibility for L.G.\u2019s injuries. Therefore, the findings relating to the prior adjudication of neglect and subsequent termination of parental rights as to L.G. and respondents\u2019 failure to comply with their case plan, when combined with respondents\u2019 failure to acknowledge culpability for L.G.\u2019s injuries, support the conclusion that N.G. was a neglected juvenile based on the high risk of future abuse or neglect. See In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of neglect where respondent violated court-ordered protection plans and failed \u201cto take responsibility for harm that befell her children as a result of her conduct\u201d); McLean, 135 N.C. App. at 396, 521 S.E.2d at 127 (noting that substantial risk of future neglect must be based on the historical facts of the case).\nWe acknowledge that the fact of prior abuse, standing alone, is not sufficient to support an adjudication of neglect. Indeed, this Court recently held that although evidence of prior abuse or neglect is a relevant factor worthy of consideration, the doctrine of collateral estop-pel permits the trial court to rely on only those findings of fact from prior orders that \u201cwere established by clear and convincing evidence.\u201d In re A.K., 178 N.C. App. 727, 731, 637 S.E.2d 227, 229 (2006).\nHowever, this case is easily distinguished from In re A.K. In that case, \u201cthe trial court did not accept any formal evidence in addition to its consideration of the prior court orders concerning [the child previously removed from the home], and the only order concerning [the child previously removed from the home] that contained findings by the clear and convincing standard of proof was from a hearing occurring many months earlier.\u201d Id. at 732, 637 S.E.2d at 230. In this case, the trial court also addressed (1) respondents\u2019 failure to participate in the PRIDE program, (2) respondents\u2019 attempts to hide the fact of the mother\u2019s pregnancy, (3) respondents\u2019 failure to inform DSS with a change of address, (4) respondents\u2019 continued refusal to accept responsibility for L.G.\u2019s injuries, (5) respondents\u2019 failure to participate in anger management classes, (6) respondents\u2019 consistent tardiness to visits, (7) respondents\u2019 attempts to discourage home visits from DSS, and (8) evidence on recidivism rates. The cumulative weight of this evidence is sufficient to support an adjudication of neglect. Accordingly, we find that the trial court did not err by adjudicating N.G. a neglected juvenile.\nIII.\nRespondents next argue that the evidence and findings of fact do not support that the trial court\u2019s conclusion of law that reunification efforts should cease and that visitation should be terminated. We are not persuaded.\nN.C. Gen. Stat. \u00a7 7B-507(b) states that:\nIn any order placing a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order, the court may direct that reasonable efforts to eliminate the need for placement of the juvenile shall not be required or shall cease if the court makes written findings of fact that:\n(1) Such efforts clearly would be futile or would be inconsistent with the juvenile\u2019s health, safety, and need for a safe, permanent home within a reasonable period of time.\nN.C. Gen. Stat. \u00a7 7B-507(b) (2005). The trial court may \u201conly order the cessation of reunification efforts when it finds facts based upon credible evidence presented at the hearing that support its conclusion of law to cease reunification efforts.\u201d In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). \u201cThis Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court\u2019s conclusions, and whether the trial court abused its discretion with respect to disposition.\u201d In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007). \u201cAt the disposition stage, the trial court solely considers the best interests of the child. Nonetheless, facts found by the trial court are binding absent a showing of an abuse of discretion.\u201d In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002) (citations and quotations omitted). \u201cAn abuse of discretion occurs when the trial court\u2019s ruling is so arbitrary that it could not have been the result of a reasoned decision.\u201d In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (citations and quotations omitted).\nHere, the trial court found in dispositional finding of fact number 6 that:\nDSS has been involved with the respondent parents since 2001 when their first child was placed into protective custody. They have failed to cooperate with the various social workers and failed to fully comply with family service plans. They did not make reasonable efforts at reunification in their first child\u2019s care. Although they entered into a service agreement (updates) with their second child, they have not met the goals outlined in the service plans within a reasonable time. They concealed their third child from DSS and expressly failed to tell the truth about the possible pregnancy. The parents have not recognized appropriate responsibility or involvement in the injuries to their first child. They deny responsibility or involvement with the injuries but placed the blame for the injuries on others without any reliable evidence being produced. They refused an appropriate course of treatment to obtain parental education, supervision, instruction and behavioral counseling. There has not been an adequate attempt on their behalf to cooperate with a safety plan to assure the juvenile\u2019s safety. Their lack of candor, truthfulness and cooperation further complicates the issue of the juvenile\u2019s safety if placed with the parents.\nAs discussed previously, we have concluded that dispositional finding of fact number 6 was supported by clear, cogent, and convincing evidence in the record. We further conclude that the finding supports the trial court\u2019s conclusion that reunification efforts would be futile.\nRespondents further contend that the trial court erred by ceasing visitation. \u201cThis Court reviews the trial court\u2019s dispositional orders of visitation for an abuse of discretion.\u201d In re C.M., 183 N.C. App. at 215, 644 S.E.2d at 595. In light of the historical facts of the case, respondents\u2019 failure to accept responsibility for L.G.\u2019s injuries, their failure to cooperate with DSS and comply with their case plan, and the trial court\u2019s conclusion that reunification efforts should cease, we hold that the trial court\u2019s decision to cease visitation was not manifestly unsupported by reason. Accordingly, we hold that the court did not abuse its discretion in finding it to be in the best interests of the juvenile to cease reunification efforts and visitation.\nAffirmed.\nJudge McGEE concurs.\nJudge TYSON dissents by separate opinion.", "type": "majority", "author": "ELMORE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion holds that: (1) DSS presented clear, cogent, and convincing evidence to support the trial court\u2019s findings of fact and conclusions of law; (2) the trial court did not err by adjudicating N.G. to be a neglected juvenile; and (3) the trial court did not abuse its discretion in finding reunification efforts to be futile and that it was in N.G.\u2019s best interests to cease reunification efforts and visitation with respondents. I disagree and respectfully dissent.\nI. Adiudicatorv Hearing\nA. Standard of Review\nThe trial court\u2019s and our standard of review is well established.\nThe first stage [of juvenile abuse, neglect, and dependency actions] is the adjudicatory hearing. If DSS presents clear and convincing evidence of the allegations in the petition, the trial court will adjudicate the child as an abused, neglected, or dependent juvenile. If the allegations in the petition are not proven, the trial court will dismiss the petition with prejudice and, if the juvenile is in DSS custody, returns the juvenile to the parents.\nIn re A.K., 360 N.C. 449, 454-55, 628 S.E.2d 753, 757 (2006) (internal citations omitted).\nDuring the adjudicatory phase, the court takes evidence, makes findings of fact, and determines the existence or nonexistence of grounds for termination. N.C. Gen. Stat. \u00a7 7B-1109(e) (2005). The burden of proof rests upon DSS in this phase, and the court\u2019s findings must be based on clear, cogent, and convincing evidence. N.C. Gen. Stat. \u00a7 7B-1109CQ (2005).\nThe standard of review on appeal is whether the trial court\u2019s findings of fact are supported by clear, cogent, and convincing evidence and whether its conclusions of law are supported by its findings of fact. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. rev. denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). \u201cThis intermediate standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases.\u201d In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984) (citing Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982)). \u201cThe trial court\u2019s \u2018conclusions of law are reviewable de novo on appeal.\u2019 \u201d In re D.M.M. & K.G.M., 179 N.C. App. 383, 383, 633 S.E.2d 715, 716 (2006) (quoting In re D.H., 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006)).\nB. Analysis\nAdjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence. In re A.K., 360 N.C. at 454-55, 628 S.E.2d at 757.\nThe trial court\u2019s adjudicatory finding of fact numbered 5 states:\n[N.G.] has lived in an environment injurious to her welfare when she was allowed to live in a home where another child [L.G.] had been subjected to abuse and neglect by an adult who regularly lives in that home without that adult having received adequate treatment of the condition which led to the abusive acts upon the older sibling.\n(Emphasis supplied).\nIf DSS makes no showing that neglect has continued at the time of the hearing, evidence of changed circumstances must be considered \u201cin light of the evidence of prior neglect and the probability of a repetition of neglect.\u201d In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Here, DSS made no showing of any neglect of N.G. prior to or at the time of the hearing and respondents have proved they made reasonable efforts and received \u201cadequate treatment\u201d to alleviate the conditions that led to N.G.\u2019s removal from their home. Id.\nN.G. was healthy and uninjured when she was removed from respondents\u2019 home and placed into DSS\u2019s care at two months of age. All allegations of neglect were derived and solely based upon another child having been previously removed from respondents\u2019 home.\nRespondents completed parenting, domestic violence, and anger management classes after L.G. was removed from the respondents\u2019 home. Respondents moved to New Jersey in September 2005 and have been commuting to North Carolina for their weekly visits with N.G. since that time. Respondents have not missed any scheduled visits. Adjudicatory finding of fact numbered 5 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary finding.\nThe trial court\u2019s adjudicatory finding of fact numbered 27 states, \u201c[DSS] was unable to exercise further efforts to prevent the filing of the petition herein and placement of the juvenile in care was necessary for the protection and safety of the juvenile.\u201d\nNo family services case plan was established for N.G. The case plan cited by the trial court in its adjudicatory order pertained to J.G., respondents\u2019 second child. This case plan was established prior to DSS obtaining custody of N.G. The record shows DSS made no attempt to implement or restate this case plan for N.G.\nThe case plan for J.G. states that \u201c[respondents] shall participate in Pride program or other comparable program[s] in Cumberland Co. or other area program upon consultation with DSS [and Guardian ad Litem].\u201d (Emphasis supplied). DSS claimed that all other programs were not comparable because, inter alia, those programs did not require random drug testing. No allegations were made and no evidence was shown of any drug abuse by either of respondents. Respondents were not required by the case plan or order to submit to random drug testing. Respondents were unable to participate in the Family PRIDE program due to scheduling conflicts of that program with respondent-father\u2019s work schedule.\nDSS refused to respond to suggestions and requests to review multiple alternative agencies and providers whose programs would allow respondents to maintain employment. Undisputed evidence shows respondents submitted two written requests for DSS to review listed programs as \u201ccomparable\u201d substitutes for the Family PRIDE Program.' The first request, dated 10 November 2005, listed fourteen agencies and providers conducting parenting and anger management classes. The second request, dated 7 December 2005, listed eleven additional possible programs. No evidence in the record shows DSS ever reviewed or responded to any of respondents\u2019 requests.\nRespondents attended and successfully completed parenting, domestic violence, and anger management classes as required by J.G.\u2019s case plan with Multicultural Community Development Services, a parenting and family development center. While DSS never deemed Multicultural Community Development Services to be a \u201ccomparable\u201d provider, the record shows DSS never made any attempt to advise or help respondents find an alternative program that did not conflict with respondent-father\u2019s employment; and consequently, respondents\u2019 ability to maintain housing and basis of support for their family. Adjudicatory finding of fact numbered 27 is not supported by clear, cogent, and convincing evidence. The evidence clearly compels a contrary result and admonition to DSS to consult, respond, and cooperate with respondents on alternative treatment programs.\nReviewed de novo, the trial court\u2019s adjudicatory conclusions of law numbered 2 and 3 state:\n2. [N.G.] is a neglected as defined by N.C. Gen. Stat. 7B-101(15) because the juvenile has been allowed to live in an environment injurious to the juvenile\u2019s welfare.\n3. [DSS] was unable to prevent placement of [N.G.] into out of home care, and the filing of the petition was necessary to protect [N.G.j and the placement of [N.G.] in care could not be prevented.\nSince adjudicatory findings of fact numbered 5 and 27 are not supported by clear, cogent, and convincing evidence, these findings cannot support the trial court\u2019s conclusions of law. Under de novo review, the trial court\u2019s conclusions of law are not supported by the findings of fact based upon clear, cogent, and convincing evidence and are error. The trial- court\u2019s unsupported conclusions and adjudication of N.G. to be a neglected juvenile should be reversed.\nII. Dispositional Hearing\nBecause the trial court\u2019s adjudicatory findings of fact do not support its conclusions of law, the trial court\u2019s dispositional order must also be reversed. Presuming, as the majority\u2019s opinion holds, that the trial court\u2019s conclusions of law are supported by the findings of fact and its conclusions and adjudication of N.G. to be a neglected juvenile should be affirmed, the trial court also erred when it ordered further reunification efforts would be futile and ceased respondents\u2019 visitation.\nWe have recognized the constitutional protection afforded to family relationships. See In re Webb, 70 N.C. App. 345, 350, 320 S.E.2d 306, 309 (1984) (\u201c[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation\u2019s history and tradition.\u201d (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 52 L. Ed. 2d 531, 540 (1977)). The purposes and policies of the Juvenile Code recited under N.C.G.S. \u00a7 7B-100 are applicable to permanency-planning hearings.\nThe trial court\u2019s findings and conclusions were not supported by the evidence, did not consider changed conditions, and did not recognize that the purpose of the Juvenile Code is \u201creturn of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.\u201d See N.C. Gen. Stat. \u00a7 7B-100(4).\nIn re Eckard, 148 N.C. App. 541, 547, 559 S.E.2d 233, 236-37 (emphasis supplied), disc. rev. denied, 356 N.C. 163, 568 S.E.2d 192 (2002). Respondents informed DSS of their alternate compliance with J.G.\u2019s case plan and provided the trial court with undisputed evidence of the treatment they received and completed. Respondents made diligent efforts to remedy the causes that led to N.G.\u2019s removal. Respondents cannot be limited by DSS to a single source service provider whose program schedule conflicts with and jeopardizes respondent-father\u2019s employment and means of support. J.G.\u2019s case plan expressly allows for \u201cother comparable program[s]\u201d and \u201cother area program[s].\u201d DSS never responded to two distinct written requests to review or recommend alternative plans or service providers. The trial court erred when it ordered that reunification efforts would be futile and that visitation cease.\nIII. Conclusion\nN.G. was healthy and unharmed when DSS removed her from respondents\u2019 home. No case plan was established or restated for N.G. No clear, cogent, and convincing evidence supports the trial court\u2019s adjudicatory findings of fact that \u201c[N.G.] lived in an environment injurious to her welfare . . . .\u201d and the \u201cplacement of [N.G.] in care was necessary for [her] protection and safety....\u201d No evidence exists and no finding of fact was made that any alleged neglect continued at the time of the hearing.\nUnder de novo review, the trial court\u2019s findings of fact are not supported by clear, cogent, and convincing evidence, and these findings do not support the conclusions of law that \u201c[N.G.] is a neglected as defined by N.C. Gen. Stat. 7B-101(15) . . . .\u201d and \u201cthe filing of the petition was necessary to protect [N.G.] . . . .\u201d The trial court\u2019s adjudicatory order should be reversed.\nBecause the trial court erred in entering its adjudicatory order, it also erred in concluding at disposition that \u201c[t]he development of a plan of reunification of the child with the parents would be futile\u201d and \u201c[f]urther parental visitation should be ceased.\u201d Respondents drove from New Jersey to visit N.G. and never missed a weekly visitation. The trial court\u2019s dispositional order should be reversed.\nN.C. Gen. Stat. \u00a7 7B-100(4) (2005) requires DSS to assist respondents and presumes reunification of N.G. with her parents will occur. DSS failed to respond to respondents\u2019 repeated requests to review alternative programs with schedules that would not jeopardize respondent-father\u2019s employment and failed to overcome the statutory presumption of reunification. Respondents made substantial progress toward alleviating the conditions that led to N.G.\u2019s removal from respondents\u2019 home. No evidence was presented to support the conclusion that further efforts to reunify N.G. with her parents would be futile. I vote to reverse the trial court\u2019s order and respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "E. Marshall Woodall and Duncan B. McCormick, for \u25a0petitioner-appellee Harnett County Department of Social Services.", "Sofie W. Hosford, for respondent-appellant mother.", "Lisa Skinner Lefler, for respondent-appellant father.", "Elizabeth Myrick Boone, for guardian ad litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: N.G.\nNo. COA07-369\n(Filed 18 September 2007)\n1. Child Abuse and Neglect\u2014 neglect of third child \u2014 injuries to first child \u2014 responsibility of parents \u2014 collateral estoppel\nRespondent parents in a child neglect case involving their third child were collaterally estopped from denying responsibility for \u201cshaken baby syndrome\u201d injuries suffered by their first child where, in an order terminating their parental rights to the first child, the trial court found that the first child \u201cwas an abused child in that she suffered physical injuries by other than accidental means while in the care of her parents.\u201d\n2. Child Abuse and Neglect\u2014 child neglect \u2014 findings of fact \u2014 supporting evidence\nThe evidence in a child neglect case supported findings by the trial court that respondent parents failed to cooperate with DSS and failed to make reasonable progress on improving their parenting skills; respondents had not engaged in treatment services and continued to deny responsibility for injuries suffered by another child after their parental rights to that child were terminated for causing nonaccidental injuries to the child; respondents failed to participate in the Family PRIDE Program as directed by court order; respondents refused to schedule home visits by DSS even though the DSS social worker offered to come after regular hours; and respondents were consistently late to visitations with the child.\n3. Child Abuse and Neglect\u2014 neglected child \u2014 failure to order kinship placement\nThe trial court did not err by declining a kinship placement for a neglected child where DSS completed kinship assessments with all relatives suggested by respondent parents, and family placement was inappropriate because the family members did not believe that the child was in need of protection and it would therefore not ensure the child\u2019s safety.\n4. Child Abuse and Neglect\u2014 child neglect \u2014 risk of future abuse or neglect \u2014 injuries to another child \u2014 other factors\nThe trial court did not err by adjudicating respondents\u2019 third child to be a neglected juvenile based on the high risk of future abuse or neglect where, in addition to the fact that respondents\u2019 parental rights to their first child had been terminated on the ground that respondents were responsible for \u201cshaken baby\u201d and other nonaccidental injuries suffered by that child, the trial court also considered respondents\u2019 failure to participate in the PRIDE program, respondents\u2019 attempts to hide the fact of the mother\u2019s pregnancy, respondents\u2019 failure to inform DSS of a change of address, respondents\u2019 continued refusal to accept responsibility for the first child\u2019s injuries, respondents\u2019 failure to participate in anger management classes, respondents\u2019 consistent tardiness to visits, respondents\u2019 attempts to discourage home visits from DSS, and evidence of recidivism rates.\n5. Child Abuse and Neglect\u2014 neglected child \u2014 ceasing of reunification efforts and visitation\nThe trial court in a child neglect case involving respondents\u2019 third child did not abuse it discretion by concluding that reunification efforts would be futile and that reunification efforts and visitation should cease where the evidence supported a finding by the court that DSS had been involved with respondents for several years when their first child was placed into protective custody; respondents failed to cooperate with the various social workers, failed to comply with family service plans, and did not make reasonable efforts at reunification with their first child; respondents concealed the birth of their third child from DSS; respondents have not recognized their responsibility for nonac-cidental injuries to their first child; and respondents have failed to cooperate with DSS and comply with their case plan for obtaining parental education, supervision, instruction and behavioral counseling.\nJudge TYSON dissenting.\nAppeal by respondents from order entered 30 January 2007 by Judge Albert A. Corbett, Jr., in Harnett County District Court. Heard in the Court of Appeals 30 July 2007.\nE. Marshall Woodall and Duncan B. McCormick, for \u25a0petitioner-appellee Harnett County Department of Social Services.\nSofie W. Hosford, for respondent-appellant mother.\nLisa Skinner Lefler, for respondent-appellant father.\nElizabeth Myrick Boone, for guardian ad litem." }, "file_name": "0001-01", "first_page_order": 31, "last_page_order": 47 }