Opinion
No. COA03-779
Filed April 20, 2004 This case not for publication
Appeal by respondent from order entered 22 January 2002 by Judge Galen Braddy in District Court, Pitt County. Heard in the Court of Appeals 4 March 2004.
Pitt County Legal Department, by Janis Gallagher and JoAnne Burgdorff, for petitioner-appellee. Terry F. Rose for respondent-appellant.
Pitt County S.M. Nos. 01 J 116, 01 J 117.
E.M. (respondent) is the mother of the minor children T.S. and S.M. (collectively, the children). Respondent appeals from an order dated 22 January 2002 adjudicating the children to be neglected. At the time of the adjudication, T.S. was ten months old and S.M. was five years old. The trial court granted the Pitt County Department of Social Services (DSS) custody of the children. DSS received a report on 26 March 2001 that the children were living in an environment where domestic violence and the use and sale of drugs was occurring. In response to the report, DSS visited respondent's home on 29 March 2001 and inquired about the allegations. Respondent denied the allegations and permitted DSS to speak with S.M. in private. S.M. told the DSS official that her father, T.S., was "mean" to her mother and that he would hit her mother. S.M. described an incident in which her mother cut her father's arm with a knife and her father responded by locking her mother in the closet. Respondent declined DSS's offer to put a protection plan in place.
DSS visited the home on several occasions between March and July 2001 and each time respondent allowed DSS officials into her home. During a visit on 13 July 2001, respondent, in a loud and profane manner, demanded DSS officials leave her home. DSS filed a petition that same day alleging the children to be neglected and dependent juveniles and requesting that DSS be granted non-secure custody of the children. DSS's request was based upon "the domestic violence and substance abuse issues, illegal drug activity, respondent mother's anger and the risks associated with the children's care and environment[.]" The trial court placed the children in the non-secure custody of DSS on 13 July 2001. An adjudication hearing was held on 12-13 December 2001 and the trial court determined the children to be neglected, but not dependent. For a determination of neglect, a trial court must apply legal principles pursuant to N.C. Gen. Stat. § 7B-101(15)(2003). "Thus, it is incumbent on the [trial] Court to determine whether, based on the evidence of record, the conduct complained of, if true, constituted neglect as envisioned by the General Assembly and as interpreted by the case law of this jurisdiction." In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003). The allegations in a petition alleging neglect must be proven by clear and convincing evidence and the determination of neglect is a conclusion of law. See N.C. Gen. Stat. § 7B-805 (2003).
N.C.G.S. § 7B-101(15) defines a neglected juvenile as
[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In 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.
However, our Supreme Court cautioned in Stumbo that "not every act of negligence on the part of parents or other care givers constitutes `neglect' under the law and results in a `neglected juvenile.'" Stumbo, 357 N.C. at 283, 582 S.E.2d at 258. In particular, our Court has acknowledged that where a determination of neglect is based on a failure to receive proper care, supervision, or discipline it is required "that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide `proper care, supervision, or discipline.'" In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993).
Furthermore, while recognizing a societal responsibility to protect children from abuse, neglect or dependency, our Courts acknowledge the limits within which governmental agencies may interfere with or intervene in the parent-child relationship."[S]o long as a parent adequately cares for his or her children ( i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Stumbo, 357 N.C. at 286, 582 S.E.2d at 260 (quoting Troxel v. Granville, 530 U.S. 57, 68-69, 147 L.Ed.2d 49, 58 (2000)).
When reviewing an adjudication of neglect, our Court must determine whether the trial court's findings of fact are supported by clear and convincing evidence and whether the trial court's conclusions of law are supported by those findings of fact. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). In the case before us, the trial court's order did not distinguish between findings of fact and conclusions of law, thus hindering the ability of this Court to conduct a review of the trial court's reasoning in determining the children were neglected. Id. at 480-81, 539 S.E.2d at 366. The better practice would have been for the trial court to distinguish its findings of fact from its conclusions of law so that this Court could conduct a meaningful review.
After determining what appears to be the trial court's conclusions of law, we find that the trial court summarily declared the children to be neglected, but made no reference to the statutory basis for its conclusion, nor did it cite any one incident or a series of incidents as a basis for its determination of neglect. N.C.G.S. § 7B-101(15) provides several grounds for determining neglect; however, the trial court made no reference to the statutory grounds. Therefore, this Court remands the case to the trial court "with instructions to make ultimate findings of fact based on the evidence and to enter clear and specific conclusions of law based on the findings of fact." Gleisner, 141 N.C. App. at 480-81, 539 S.E.2d at 366.
In respondent's second argument, she argues that the trial court erred in admitting the hearsay testimony of S.M. Respondent did not object at trial to social worker Brenda Braxton's testimony about S.M.'s account of an incident of domestic violence between respondent and S.M.'s father. S.M. did not testify at the adjudication hearing. N.C.R. App. P. 10(b)(1) provides that in order to preserve an issue for appellate review, a respondent must "present to the trial court a timely request, objection or motion, stating the specific ground for the ruling the party desire[s] the trial court to make[.]" Thus, respondent is precluded from raising an argument regarding the introduction of that hearsay testimony before this Court.
Respondent's third argument is also an issue not properly preserved for appellate review. See N.C.R. App. P. 10(b)(1). Respondent argues that the trial court erred in admitting into evidence the 1997 criminal record of respondent. In support of her argument, respondent cites to the portion of the transcript where the children's father objected to the admission of his criminal record. After reviewing the transcript, we cannot locate any objection made by respondent to the admission of her criminal record. Because respondent failed to properly preserve this argument for appellate review, the issue is not properly before this Court. See N.C.R. App. P. 10(b)(1).
In respondent's remaining argument, she contends that omissions denoted as "inaudible" in the trial transcript make it difficult to determine when objections occurred, what was objected to, who made objections, and what the content was of certain testimony. Respondent does not direct this Court to any specific portions of the transcript where testimony was lost and, further, how she was prejudiced by any lost testimony. Therefore, we cannot determine whether respondent was prejudiced in any way by the omitted portions of the transcript. See In re Pierce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981).
As for those assignments of error for which respondent did not present any supporting argument, they are deemed abandoned. N.C.R. App. P. 28(b)(6).
Remanded.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).