Opinion
No. COA10-441
Filed 17 August 2010 This case not for publication
Appeal by respondent-mother and respondent-father from orders entered 2 February 2010 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 2 August 2010.
Kathleen Arundell Widelski for Mecklenburg County Department of Social Services, Youth Family Services, petitioner-appellee. Pamela Newell for Guardian ad Litem. Levine Stewart by James E. Tanner, III, for mother, respondent-appellant. Ryan McKaig for father, respondent-appellant.
Mecklenburg County No. 09 JA 572.
Respondent-Mother Julia M. and Respondent-Father Abraham M. appeal from orders entered by the trial court adjudicating the minor child, N.M-B. (Benita), an abused and neglected juvenile and requiring Respondent-Parents to comply with the provisions of certain family service agreements. After careful consideration of the challenges to the trial court's orders advanced by Respondent-Parents in light of the record and the applicable law, we conclude that the trial court's orders should be affirmed.
"Benita" is a pseudonym used through the remainder of this opinion for ease of reading and to protect the privacy of the juvenile.
I. Factual Background
On 5 August 2009, the Youth and Family Services division of the Mecklenburg County Department of Social Services received a report that Benita, then approximately six months old, was not receiving proper care. Upon receiving the report, Elizabeth Stewart, a YFS social worker, went to the family's residence for the purpose of conducting an investigation. At that time, Ms. Stewart observed that Benita was clean; however, Ms. Stewart also noted marks on Benita's face, neck, head, ears, and nostrils. Subsequently, Benita was transported to Carolinas Medical Center-Pineville and then to the Levine Children's Hospital at Carolinas Medical Center in order to obtain an assessment of her unexplained injuries. At these medical facilities, the attending physicians concluded that Benita's injuries did not appear to be accidental or self-inflicted.
On 10 August 2009, YFS filed a juvenile petition alleging that Benita was an abused, neglected, and dependent juvenile. More specifically, YFS alleged in its petition that:
1. YFS received a referral on August 5, 2009 alleging that [Benita] had bruises on her cheek and scratches on her face.
2. YFS requested that [Respondent-Parents] take [Benita] to a hospital for an examination. [Respondent-Parents] took [Benita] to CMC-Pineville for an initial examination on August 5, 2009.
3. A subsequent medical examination on August 6, 2009 at CMC-Levine revealed bruises on both temples, bruises on the back and scratches about the face. The examining physician stated that [Respondent-Parents] provided no plausible explanation for the injuries . . . and is concerned about [Benita's] safety . . . in [Respondent-Parent's] home. The examining physician stated that it is unlikely that a child of this age could cause the bruises to her back
. . . .
4. [Respondent-]Parents report that they are [Benita's] primary caregivers. . . .
5. [Benita] is abused because her [Respondent-Parents] have inflicted or allowed to be inflicted upon her a serious physical injury by other than accidental means.
6. [Benita] is neglected because they do not receive proper care, supervision, or discipline from [Respondent-Parents], and lives in an environment injurious to her health.
7. [Benita] is dependent, because she is in need of placement or assistance because she has no parent, custodian, or guardian willing or able to provide placement or assistance.
Following service of the YFS petition, both Respondent-Mother and Respondent-Father were determined to be indigent, so that counsel were appointed to assist them in resisting the YFS allegations.
The trial court conducted an adjudicatory hearing on 5 October, 14 December, 15 December, and 17 December 2009. A dispositional hearing was held on 17 December 2009. The trial court adjudicated Benita an abused and neglected juvenile and entered adjudicatory and dispositional orders on 2 February 2010. Respondent-Parents noted separate appeals from the trial court's orders. On appeal, Respondent-Parents argue that the trial court erred in determining that Benita was abused and neglected, asserting that the evidence and the trial court's findings of fact did not support such a determination. In addition, Respondent-Father contends that the trial court erred by denying his motion for funds to retain a medical expert.
II. Analysis A. Standard of Review
"When an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines the evidence to determine whether there exists clear, cogent and convincing evidence to support the findings." In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003). "[T]he trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). "Our review of a trial court's conclusions of law is limited to whether they are supported by the findings of fact." Id. (citation omitted) "The trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom. If a different inference may be drawn from the evidence, he alone determines which inferences to draw and which to reject." In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985). (citation omitted)
B. Adjudication of Abuse and Neglect
In adjudicating Benita to be an abused and neglected juvenile, the trial court found as a fact that:
7. [Benita] presented to CMC-Pineville pursuant to a referral to DSS for observation but was transferred to CMC-Main because [she] needed to be seen by a pediatric specialist.
8. The doctor at CMC-Pineville observed bruising on [Benita's] left cheek to the right side of her face, including a mark around the temple area.
9. [Benita] also had scratches on her face and bruises elsewhere on her body.
10. [Benita] had a laceration just above the inside of her right eye brow, and two large scratches/lacerations, one to each nostril.
11. [Benita] had an elongated bruise on her hip of approximately five centimeters.
12. Through the questioning of both medical professionals as well as YFS professionals, [Respondent-Parents] provided multiple explanations of what may have caused the bruising and marks to [Benita] to medical staff as well as investigating social workers as follows:
a. That [Respondent-Father] hit [Benita's] head on the doorframe while answering the telephone.
b. That another child had grabbed . . . [Benita's] ear.
c. That [Benita] had scratched herself with her fingernails.
d. That [Respondent-Father] had been giving [Benita] hickeys which left kissing or sucking marks on her face.
e. That vegetables had recently been introduced to [Benita's] diet, and the detergent used to wash [Benita's] clothes was recently changed, which [Respondent-Parents] stated may have caused [Benita's] issues.
f. That a kitten had caused the scratches.
g. That [Benita] had hit herself in the face with a rattle.
13. According to [Benita's] medical records, the doctors at CMC-Pineville concluded that the bruises could not have been self-inflicted, as a child of six (6) months of age does not have the ability to create the force necessary to burst blood vessels or repeatedly strike self to cause bruising. As such, the child was transferred to CMC-Main.
. . . .
15. It is highly unlikely that [Benita's] bruises were caused by the rattle [of] a five (5) or (6) month old child as a child of that age would not have enough strength or force to break blood vessels which caused the bruising shown in Petitioner's Exhibit 2(a) through 2(i).
16. At the time of her evaluation at CMC-Main, [Benita] was not walking. Testimony of Dr. Morgan-Glenn indicates that [Respondent-Parents] had no explanation whatsoever for bruises on the child's thigh and back as Dr. Morgan-Glenn specifically asked [Respondent-Parents] how those bruises could have occurred.
. . . .
18. It is highly unlikely that [Benita] could have caused the bruises to her thigh and back as children who do not walk, do not typically get bruises in those areas.
19. The force required to cause a bruise on an infant is the same amount of force required to case a bruise to an adult.
20. None of the explanations listed in Paragraphs 12 were consistent with the findings of bruising by the medical professionals and shown in Exhibits 2(a)-2(i).
21. One explanation provided by physicians was that [Benita's] face was grabbed and the ears could have possibly received a direct blow.
22. According to the testimony of both physicians and the medical records, many tests were performed on [Benita] to rule out a medical reason for the bruises and scratches. The tests eliminated the possibility of any other medical reason for the bruising and scratches. The tests and treating physicians specifically ruled out any bone abnormality, abnormal blood clotting and Mongolian spots.
. . . .
22[b]. None of the explanations given by [Respondent-Parents] (listed in paragraph 12) were sufficient to explain lacerations to [Benita's] face or raise a reasonable inference of accidental injury.
. . . .
24. [Respondent-Parents] were [Benita's] only caretakers . . . and that no other adult or child had unsupervised access to the child.
Based upon these findings of fact, the trial court concluded as a matter of law that:
2. The injuries/bruises/lacerations were not self-inflicted and [Respondent-Parents] did not provide any reasonable explanation for [Benita's] injuries. Further, [Respondent-Parents'] explanations are not sufficient to provide [sic] injuries as being accidental.
3. [Respondent-Parents] were [Benita's] only caretakers. . . .
4. Because of the extent of the bruising to the left side of [Benita's] face, as well as the lacerations to each nostril, the Court finds that [Benita] suffered serious physical injuries with sufficient trauma at the time it was caused to meet the definition of abuse pursuant to [N.C. Gen. Stat.] § 7B-101(1)(a). 2.
5. Furthermore the Court finds that neither parent is able to explain [Benita's] injuries, which places the child in an injurious environment.
6. [Benita] is adjudicated to be abused and neglected.
As a result, the trial court proceeded to the dispositional phase of the proceeding.
An abused juvenile is defined, in part, as "[a]ny juvenile less than 18 years of age whose parent . . . [i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means." N.C. Gen. Stat. § 7B-101(1)(a) (2009). A neglected juvenile is defined, in part, as "[a] juvenile . . . who lives in an environment injurious to the juvenile's welfare." N.C. Gen. Stat. § 7B-101(15) (2009). "In 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." In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).
On appeal, Respondent-Mother argues that there was no clear and convincing evidence that serious injuries were intentionally inflicted upon Benita or allowed to be inflicted upon Benita by her. Respondent-Mother further contends that there was no clear and convincing evidence that the environment in which Benita lived was injurious to her health. As part of this process, Respondent-Mother challenges Findings of Fact Nos. 11, 12, 16, 20, 22, and 22[b]. Similarly, Respondent-Father argues that there is no evidence that the marks observed on Benita constituted serious physical injury or that they were not self-inflicted. Respondent-Father further contends that there is no clear and convincing evidence that Benita was neglected. As part of this process, Respondent-Father challenges Findings of Fact Nos. 13, 15, 18, 20, and 22[b].
At the adjudication hearing, Ms. Stewart testified that Respondent-Mother offered several explanations for the marks on Benita, including the possibility that Benita scratched herself, that the family had changed the detergent that they used to do the laundry, that the family had a cat which could have scratched Benita or which caused Benita to have some sort of reaction, that Benita's rattle or the plastic rings on her blanket could have caused the scratches, or that vegetables had been introduced into Benita's diet. In addition, Ms. Stewart testified that Respondent-Father speculated that Benita had scratched herself, that he might have bumped Benita's head when reaching to answer his cell phone, and that the bruises on Benita's face could have resulted from his kissing Benita's cheeks.
Dr. Allison Kiehl, a pediatric hospitalist at Levine Children's Hospital, testified that she had concerns about the pattern of bruising on Benita's body because of her age. According to Dr. Kiehl, one would not ordinarily expect to see bruising on the back, such extensive facial bruising, or scratches on the ears of a six-month-old child. Dr. Kiehl opined that it would take a "significant amount" of force to cause bruising and that "the same amount of force that it takes for us to cause bruises on our skin, is the amount of force that it would take to cause bruises on [Benita's] skin." In Dr. Kiehl's opinion, the explanations for Benita's injuries offered by Respondent-Parents were inconsistent with the bruising and scratching that Benita had sustained. Dr. Kiehl noted that [Respondent-Parents] offered no explanation for the bruises on Benita's hip and back. Although the standard work-up for suspicious injuries was performed, including blood work to rule out the presence of a bleeding disorder, the resulting testing did not reveal the presence of any abnormalities that might provide a more benign explanation for Benita's injuries.
Dr. Kiehl addressed the issue of whether the marks on Benita's body were Mongolian spots, which are sometimes seen on children of Benita's ethnic background. According to Dr. Kiehl, Mongolian spots are more common in darker skinned individuals; however, Benita was a lighter skinned child. In Dr. Kiehl's opinion, Mongolian spots are usually darker than the marks seen on Benita's body. At bottom, Dr. Kiehl expressed a concern that someone had hurt Benita and testified that Benita's injuries most likely resulted from non-accidental trauma.
Dr. Patricia Morgan-Glenn, an expert in child maltreatment, testified that the history that had been taken from Respondent-Parents concerning Benita failed to explain the bruising on her face, ears, back, and thigh. Dr. Morgan-Glenn indicated that these were "high suspicion part[s] of the body." Dr. Morgan-Glenn stated that the several descriptions of the reasons for the bruises and scratches on Benita's face that had been provided by Respondent-Parents did not adequately explain the origin of those injuries and were not consistent with the amount of bruising and scratching that she observed. According to Dr. Morgan-Glenn's testimony, Respondent-Parents said that Benita might have hit herself with a rattle, grabbed her own ears, or been injured by a client's child. Dr. Morgan-Glenn indicated that it was "highly unlikely" that a six-month-old child could cause the injuries that Benita sustained by hitting herself with a rattle. More particularly, when asked whether Benita could injure herself with a rattle, Dr. Morgan-Glenn stated that "[Benita] would not be able to sustain enough force to break blood vessels."
Dr. Morgan-Glenn testified that the history provided by Respondent-Parents relating to the marks on Benita's back and thigh was inadequate since neither of them could adequately explain the origin of these injuries. Moreover, Dr. Morgan-Glenn expressed concern about the location of certain bruises on Benita's body. Dr. Morgan-Glenn noted that, with ambulatory children, one sees bruises on the shins and forearms. However, areas like the face, cheeks, ears, or anything on the back of the body are considered "high suspicion areas." Dr. Morgan-Glenn testified that one expects to see bruises at these locations on ambulatory children; however, Benita was not yet ambulatory.
According to Dr. Morgan-Glenn, medical testing eliminated the possibility that Benita's injuries resulted from blood abnormalities. The appearance of Benita's bruises and the presence of swelling led Dr. Morgan-Glenn to think that the marks were not Mongolian spots, since swelling is not consistent with Mongolian spots. At bottom, Dr. Morgan-Glenn expressed the opinion that Benita's injuries were "highly concerning or suspicious for non-accidental or inflicted trauma."
After reviewing the record, we conclude that there was clear, cogent and convincing evidence to support the trial court's findings and conclusions. More particularly, we conclude that the record developed at the adjudication hearing contained more than sufficient evidence to support the trial court's findings concerning the existence of scratches and bruises on Benita's body, the explanations for these injuries that were provided by Respondent-Parents, the fact that the health care providers who testified at the adjudication hearing believed that the injuries that Benita sustained were not self-inflicted and were not of accidental origin, the absence of parental explanations for the injuries to Benita's back and thigh, and the fact that the health care providers eliminated all more benign explanations for the manner in which Benita was injured through testing and other means. Although the trial court's findings may contain some minor errors, such as a definitive statement concerning the medical conclusions reached by the individuals who examined Benita, none of those findings were material to the trial court's ultimate decision. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (stating that, where there are ample other findings of fact to support a particular conclusion, "erroneous findings unnecessary to the determination do not constitute reversible error"). Similarly, the fact that certain health care providers admitted that some of the parental explanations for Benita's injuries were not outside the realm of possibility and that they did not have certain knowledge of the manner in which Benita was injured does not undercut the validity of the trial court's findings given that the trial court is responsible for determining the weight and credibility of the evidence and the nature of the inferences that should reasonably be drawn from the evidence, In re McCabe, 157 N.C. App. at 679, 580 S.E.2d at 73 (stating that "`[t]he trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom'" and that, "`[i]f a different inference may be drawn from the evidence,'" the trial judge "`alone determines which inferences to draw and which to reject'") (quoting In re Hughes, 74 N.C. App. at 759, 330 S.E.2d at 218), and the fact that properly supported findings of fact are binding even in the presence of evidence that would support a contrary determination. In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676 (stating that "the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings") (citing In re Montgomery, 311 N.C. at 111, 316 S.E.2d at 253, and Matthews v. Prince, 90 N.C. App. 541, 545, 369 S.E.2d 116, 117 (1988)). Thus, based on a thorough review of the record, we conclude that the findings of fact that are material to the trial court's decision to adjudicate Benita as abused and neglected have adequate evidentiary support.
Moreover, the trial court's findings clearly demonstrate that the injuries that Benita sustained were not self-inflicted or accidental in origin. The trial court explicitly found, with adequate evidentiary support, that Benita's injuries were not self-inflicted or of accidental origin. Although Respondent-Mother contends that the evidence and the trial court's findings do not support this determination, the detailed testimony concerning the reasons that Dr. Kiehl and Dr. Morgan-Glenn did not believe that there was an innocent explanation for Benita's injuries, which the trial court accepted in its findings and conclusions, and the fact that Benita was in the exclusive care of Respondent-Parents during the time in which Benita sustained her injuries, provide more than adequate support for the trial court's determination that her injuries resulted from intentional conduct on the part of Respondent-Parents.
Furthermore, the trial court's findings adequately support its conclusion that Benita sustained serious physical injury. Each case is different and must be decided based on the specific facts in the record. In evaluating the nature and significance of Benita's injuries, one must keep in mind that Benita was six months old at the time that she was injured. Although we have stated that:
Here, the only injury reported by Th. B. and found by the trial court was bruising on Th. B.'s right arm and buttocks as the result of the Father's spanking. "Serious physical injury" constituting abuse has been found in cases where the child received an injury more severe than a bruise as a result of a spanking. See, e.g., In re Rholetter, 162 N.C. App. 653, 592 S.E.2d 237 (2004) (abuse found where step-mother choked, hit children with her fists and a cookie jar, and pulled out their hair); In re Hayden, 96 N.C. App. 77, 83, 384 S.E.2d 558, 562 (1989) (abuse where child received multiple burns over a wide portion of her body, requiring prompt medical attention). This Court has previously declined to find that spanking[] that resulted in a temporary bruise constituted abuse. See, e.g., Scott v. Scott, 157 N.C. App. 382, 387, 579 S.E.2d 431, 435 (2003) (finding no conclusive evidence of abuse when there was no evidence presented that the spanking left more than temporary red marks); In re Mickle, 84 N.C. App. 559, 353 S.E.2d 232 (1987) (finding that whippings that resulted in temporary bruising of the child's buttocks did not constitute abuse under [former] N.C. Gen. Stat. § 7A-517(1)(a)).
In this case, the Father's punishment of Th. B. in the form of a spanking or whipping that resulted in a bruise did not constitute abuse, as it did not inflict "serious injury."
In re C.B., 180 N.C. App. 221, 224, 636 S.E.2d 336, 338 (2006), aff'd, 361 N.C. 345, ___ S.E.2d ___ (2007). Although it is clear from our previous decisions that mere bruising inflicted on a non-infant does not rise to the level of abuse, we do not believe that those decisions are conclusive in the case before us, which involves an infant with widespread bruising and scratching, including significant scratches on her nostrils. In view of the fragility of six-month-old infants, the nature and extent of the injuries that Benita sustained, and the risk of additional, more serious injury that can be created by blows sufficient to cause harm of the type observed here, we conclude that the trial court properly found that "serious physical injury" of the nature and extent sufficient to support an adjudication of abuse existed in this case.
Finally, the record clearly reflects that neither Respondent-Mother nor Respondent-Father claimed any knowledge of how Benita's injuries occurred nor sought medical attention for them. A child that lives under conditions such that injuries of the type at issue here can be inflicted clearly lives in a harmful environment. As a result, the trial court's findings clearly support a determination that Benita lived in an environment that was injurious to her welfare, thus establishing that Benita is a neglected juvenile as well. Thus, for all of these reasons, we conclude that Respondent-Parents' challenges to the trial court's decision to adjudicate Benita as abused and neglected lack merit.
C. Motion for Funds for Expert Assistance
On 26 October 2009, Respondent-Father filed a "Motion for Order Authorizing Funds to Retain the Services of a Medical Expert." Respondent-Father's motion was heard on 6 November 2009. The trial court "dismissed [Respondent-Father's motion] with leave to refile so long as the next motion specifically contains the name(s) of any proposed expert, a list of issues to which the expert(s) are expected to testify and the estimated costs of such expert(s)." According to the adjudication order, the trial court denied Respondent-Father's motion because he "did not show the court that there was a reasonable likelihood that such a witness would assist the indigent party." On appeal, Respondent-Father argues that the trial court abused its discretion in dismissing his motion for funds to obtain an expert, thereby depriving him of a fair trial.
"[I]t is in the trial court's discretion whether to grant requests for expenses to retain an expert witness." In re D.R., 172 N.C. App. 300, 305, 616 S.E.2d 300, 304, ___ (2005) (citing State v. Sandlin, 61 N.C. App. 421, 426, 300 S.E.2d 893, 896-97, disc. review denied, 308 N.C. 679, 304 S.E.2d 760 (1983)). In order to properly support a request for expert assistance, an indigent litigant must show that there is a reasonable likelihood that the expert witness would be of material assistance in the preparation of the litigant's case or that the litigant would probably not receive a fair hearing without such help. Id. (citations and quotations omitted). The "trial court's ruling should be overruled only upon a showing of abuse of discretion." Sandlin, 61 N.C. App. at 421, 426, 300 S.E.2d at 896-97. "A trial court may be reversed for abuse of discretion only upon a showing that its actions are `manifestly unsupported by reason.'" Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)).
Respondent-Father filed his motion for expert assistance after the adjudicatory hearing had already begun and after the medical experts called by YFS had testified. Respondent-Father has offered no explanation for his failure to seek funds for an expert witness prior to that relatively late date in the proceedings, particularly given that the allegations in the original petition made it clear that medical testimony would be critical to YFS' attempt to establish that Benita was an abused and neglected juvenile. In addition, Respondent-Father had not secured the services of an expert at the time that he filed his motion. On the contrary, Respondent-Father requested that the trial court identify suitable experts in his motion. In attempting to justify his request for expert assistance, Respondent-Father merely alleged that "such expert would assist by reviewing and analyzing any and all medical records" and "by giving expert testimony." At the time that the trial court dismissed Respondent-Father's motion without prejudice, it expressly indicated that Respondent-Father was free to renew his motion in the event that he provided the names of proposed experts, the issues about which the expert would be expected to provide needed assistance, and the potential cost of the expert's services. Respondent-Father never made a further request for expert assistance in which he provided the information requested by the trial court. In light of the relatively late date at which Respondent-Father sought expert assistance, the fact that Respondent-Father did not provide specific support for his request, and the fact that Respondent-Father failed to obtain the information identified by the trial court and refile his request for expert assistance, we are unable to say that the trial court had no rational basis for its decision to deny Respondent-Father's request for expert assistance without prejudice. The fact that the trial court expressed a strong preference that there be no further delay in the adjudication process and may have felt a need to move the case along due to his pending movement to another division of the Mecklenburg District Court, while relevant, does not suffice to demonstrate that the trial court committed an error of law given the deficiencies in Respondent-Father's showing in support of his request for expert assistance and the fact that the trial court indicated a willingness to reconsider its ruling in the event that Respondent-Father made a more detailed showing in support of his request for expert assistance. Thus, we conclude that the trial court did not abuse its discretion by dismissing Respondent-Father's motion for expert assistance without prejudice to his right to refile his motion after he had obtained additional information.
III. Conclusion
As a result, we hold that the record contained sufficient evidence to support the trial court's adjudication of abuse and neglect. In addition, we conclude that the trial court did not abuse its discretion by denying Respondent-Father's motion for funds for the services of an expert witness without prejudice given the fact that Respondent-Father filed the motion in question after the beginning of the hearing and given Respondent-Father's failure to ever provide the additional information sought by the trial court. Thus, the trial court's orders should be, and hereby are, affirmed.
AFFIRMED.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).