In Re K.A. and W.A
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-518 NORTH CAROLINA COURT OF APPEALS Filed: 4 November 2014 IN THE MATTER OF: Mecklenburg County Nos. 13 JA 253-54 K.A., W.A. Appeal by respondent from order entered 21 February 2014 by Judge Rickye Court. McKoy Mitchell in Mecklenburg County District Heard in the trial court of Appeals 6 October 2014. Twyla Hollingsworth-Richardson for Mecklenburg Department of Social Services, petitioner-appellee. County Ryan P. Ethridge for guardian ad litem. Rebekah W. Davis for respondent-appellant. ELMORE, Judge. On 11 October 2013, the Mecklenburg County Department of Social Services (DSS) filed a petition alleging that juvenile W.A. (Wendy) was abused, neglected, and dependent juvenile K.A.1 (Kyle) was neglected and dependent. court 1 entered an adjudication and disposition and that The trial order on 21 Pseudonyms have been used to protect the identity of minor children. -2February 2014 adjudicating Wendy as abused, neglected, dependent and Kyle as neglected and dependent. respondent herein, appeals from that order. and Their mother, Their father is deceased. The juvenile petition alleged that the juveniles had been in the custody of DSS earlier in the year and that they had been returned to respondent’s custody on 15 August 2013. During the time the children were out of her custody, respondent became engaged to be married to a man (hereinafter referred to as “Mr. K”), who has violence. incident Wendy. been convicted of multiple felonies involving On 17 September 2013, Mr. K was involved in an of domestic violence which involved respondent and Mr. K was arrested and charged with assault on a female and assault on a child under the age of twelve. Both Wendy and respondent sustained injuries for which they received treatment at a local hospital. that there had been Respondent disclosed to hospital personnel a prior incident of domestic violence between herself and Mr. K on 13 August 2013, just two days prior to having the children returned to her custody. After the 17 September 2013 incident, respondent obtained a domestic violence protective order against Mr. K, who was released from jail on 9 October 2013. Mr. K also had a pending court date on charges of -3attaining habitual and violent habitual felon status, in addition to the pending charges arising out of the 17 September 2013 incident. Respondent, herself, had a pending court date in Jackson on County 12 November 2013 on a charge of identity theft. The petition further alleged that despite the documented domestic violence inflicted upon her and Wendy, respondent stated the children did not need domestic violence counseling and she refused to allow the children to be assessed. Since the children have been returned to her custody, respondent has not required Kyle to wear special shoes prescribed by a podiatrist to correct an improper gait, she has not washed the children’s school uniforms regularly, and she has budgeting issues. Despite having income over $2,300 per month, respondent lives in a motel room with the children and continually asks DSS for additional money. County. licensed The children have no relatives in Mecklenburg They have paternal relatives in Jackson County who are foster parents. Their maternal grandmother also resides in Jackson County but she has mental health issues. “The allegations in a petition alleging that a juvenile is abused, neglected, or dependent shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-805 (2013). An -4adjudication order whether findings the is reviewed on of are fact appeal to determine supported by “(1) clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact.” App. 756, 763-64, 561 S.E.2d quotation omitted). A determine whether trial the 560, In re Pittman, 149 N.C. 566 disposition court (2002) order abused is its (citation and reviewed to discretion in deciding what action is in the juvenile’s best interest. In re C.W., 182 N.C. App. 214, 219, 641 S.E.2d 725, 729 (2007). In the order under review, the trial court following finding of fact: 3. The mother . . . caretaker . . . contested the allegations of the petition and a hearing was held. Based upon the testimony presented, the trial court finds that the facts have been proven by clear and convincing evidence, and/or the trial court specifically finds: The DV Complaint and DV OP, subsequent email and continuing testimony by the mother to the existence of the incident were all considered. The mother and [Wendy] suffered injuries. Despite what the mother indicated occurred, the mother now testified that [Mr. K] was simply not acting as himself. This indicates concerns to the trial court as to if the mother is able to maintain the safety of the children. As to the other allegations of the petition the trial court does not find evidence to support the medical neglect of [Kyle], nor the allegations as to the financial matters. (Emphasis in original.) made the -5The trial court made no other findings of fact in the adjudication order except to find that (1) it determined it was appropriate for Mr. K to have counsel in this juvenile proceeding and (2) that respondent indicated that she and Mr. K are no longer engaged but that he is still residing with her because he wears an ankle monitor and needs a residence for the pending criminal matter. Respondent contends the findings of fact are insufficient because they do not specify what facts led the trial court to conclude that neglected and Wendy was dependent. abused and that She notes that both the children trial were court’s findings did not (1) state facts concerning what happened during the incident or when it occurred, (2) explain how the “DV Complaint, DV OP, or the subsequent email” impacted its legal conclusions, (3) specify the facts resulting from the mother’s testimony, and (4) explain the circumstances in this case to support Mr. K’s designation as a caretaker. “In all actions tried upon the facts without a jury or with an advisory jury, the trial court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.” Rule 52(a)(1) (2013). N.C. Gen. Stat. § 1A-1, Accordingly, the Juvenile Code mandates -6that an “adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law.” N.C. Gen. Stat. § 7B-807(b) (2013). While “there is no specific statutory criteria which must be stated in the findings of fact or conclusions of law, the trial court’s findings must consist of more than a recitation of the allegations.” In re O.W., 164 N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004). order must contain “specific findings of the ultimate The facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.” Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, In re 602 (2002) (citation omitted) (alteration in original). We agree with respondent that the order does not contain sufficient findings of fact. the findings are so We are compelled to conclude that lacking in specificity “it cannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.” Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). Merely reciting evidence considered, without informing this Court what it actually found as facts based upon this evidence, is insufficient to pass muster. See In re A.S., 190 N.C. App. -7679, 693-94, 661 S.E.2d 313, 322-23 (2008). When there is evidence in the record to support proper findings of fact, as here, we may reverse and remand to the trial court for the making of additional findings of fact. See In re H.J.A., ___ N.C. App. ___, ___, 735 S.E.2d 359, 363 (2012). Accordingly, we reverse additional findings of fact. address respondent’s and remand for making of Given this disposition, we do not remaining arguments conclusions of law made by the trial court. concerning See id. Reversed and remanded. Chief Judge McGEE and Judge HUNTER concur. Report per Rule 30(e). the the
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