Helms, Matter of

• Decision Date: 21 October 1997
• Docket Number: No. COA97-45,COA97-45
• Citation: 127 N.C.App. 505,491 S.E.2d 672
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Brittny Nicole HELMS.

Page 672

491 S.E.2d 672

127 N.C.App. 505

In the Matter of Brittny Nicole HELMS.

No. COA97-45.

Court of Appeals of North Carolina.

Oct. 21, 1997.

Kathleen Marie Widelski, Concord, for Cabarrus County Department of Social Services, petitioner-appellee.

Mary Beth Smith, Concord, for Crystal Strube, respondent-appellant.

Amy Zacharias, Concord, Guardian ad Litem, Attorney Advocate.

GREENE, Judge.

Crystal Strube (Respondent) appeals from an order adjudicating her daughter, Brittny Nicole Helms (Brittny), a neglected juvenile and granting continued custody to the Cabarrus County Department of Social Services (DSS).

Brittny was born 15 September 1994. DSS initially became involved upon receiving an unconfirmed report that a newborn girl had tested positive for cocaine. Respondent, an unemployed sixteen-year-old who did not attend school, denied any drug involvement, but revealed that her father, Johnny Strube (Strube), smoked crack cocaine while she was living with him during her pregnancy.

A protection plan was entered into between DSS and Respondent on 16 September 1994, the details of which are not in the record. A second protection plan was entered on 29 November 1994, requiring Respondent to: (1) provide a stable environment for Brittny; (2) stay at the home of Elizabeth Starnes, the putative paternal grandmother; (3) refrain from physical or verbal violence in front of Brittny; (4) refrain from exposing Brittny to cocaine; and (5) not take Brittny to Strube's home for extended periods.

On 2 January 1995, Respondent told DSS that Strube, her father, "was on probation for cocaine and that he goes into 'the bottom' to buy cocaine ... [and] he had cut her; he had dragged her with a machete into a bedroom and tried to remove her clothes," but was interrupted when her stepbrother entered the room. Respondent also told DSS that the putative father, Terry Helms (Helms), had tried to run over her with a car. Respondent obtained a warrant against Helms due to his abuse, but subsequently dropped it. Based on Respondent's determination of the safest place for herself and Brittny, on 4 January 1995, a third protection plan was entered between Respondent and DSS. This plan required Brittny to live with Debra Hartsell (Hartsell), Respondent's mother, until the investigation was complete, with Respondent caring for Brittny in the Hartsell home during the day while Hartsell was at work. Respondent was also required to check on obtaining Aid to Families with Dependent Children (AFDC) and Medicaid. Finally, the plan allowed Respondent to continue to date Helms, but allowed Helms access to Brittny only at the Hartsell home. The social worker noted that when he saw Brittny on 4 January 1995, she was "happy ... [and] laughing and smiling and ... clean and appropriately dressed." Testimony revealed that Respondent and Brittny lived with Strube for brief periods of time during January 1995; Respondent and Brittny also stayed overnight with Helms at some points. On 23 January 1995, Respondent admitted that she had not abided by the protection plans, and that she was currently living with her cousin. At this time a fourth protection plan was entered between Respondent and DSS requiring Respondent to: (1) continue living at her cousin's; (2) supervise and meet the needs of Brittny; (3) take Brittny to medical appointments; (4) apply for AFDC and food stamps; and (5) notify DSS if she again changed addresses. The next day Respondent notified DSS that she and Brittny were living with Chris Booth, one of Respondent's friends. Respondent also stated that she refused to apply for AFDC and food stamps. On 27 January 1995, DSS discovered that Respondent and Helms had rented an apartment which they planned to move into with Brittny. DSS took custody of Brittny later that afternoon.

At the hearing, the guardian ad litem report was received into evidence showing that "[Respondent] tested positive for cocaine prenatally, and at birth both [Respondent] and Brittny tested positive for cocaine." The guardian ad litem report also notes that "at birth Brittny was in the 25th percentile for growth, but had slipped to the 5th percentile by the time she was taken into custody by DSS. Given Brittny's weight gains in foster care, [the doctor assigned to the case] stated that the reason for the previous poor growth was 'probably malnutrition.' " At the close of DSS's evidence and at the close of all the evidence, Respondent moved to dismiss for failure to show that Brittny is a neglected juvenile; the motions were denied.

The trial court found Respondent "did not have stable living arrangements and moved several times since the infant's birth." The court further found Respondent had no apparent means of support; had failed to comply with DSS's protection plans; and had exposed Brittny to risk by allowing extended contact with Strube, Respondent's father, a cocaine user who has been abusive to Respondent, and with Helms, Brittny's putative father, who has also been abusive to Respondent. The trial court also incorporated the guardian ad litem report into its findings of fact. The court, however, noted that Respondent's "devotion to the infant is clear as is the willingness of her family to help and there is no physical evidence of neglect."

The trial court concluded that Brittny was neglected in that she lived in an environment injurious to her welfare, and that it is in Brittny's best interest to remain in the custody of DSS until Respondent secures the return of her child by compliance with the following requirements:

a. provide a stable, drug-free environment in which to live;

b. cooperate with counseling for domestic violence and dependency issues;

c. maintain one consistent residence for a minimum of three months;

d. submit to drug testing; any fees involved are waived;

e. complete a parenting course, demonstrating an ability to parent her child; any fees involved are waived.

The trial court further concluded that DSS had "made reasonable efforts to prevent the need for foster care." The trial court then ordered that Brittny remain in the custody of DSS.

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The issues are whether: (I) there is clear and convincing evidence to support the trial court's findings of fact that Respondent has placed Brittny at risk by exposing her to Strube and Helms; and (II) the findings of fact support the conclusions of law that (A) Brittny is a neglected juvenile, (B) DSS has made reasonable efforts to prevent the need for removal, (C) it is in Brittny's best interest to remain in the custody of DSS, ¹ and (D) the requirements for reunification of Respondent and Brittny are consistent with N.C. Gen.Stat. § 7A-650(b2).

The trial court found both as facts and as conclusions of law that (i) Brittny is a neglected juvenile, (ii) DSS has made reasonable efforts to prevent removal, and (iii) it is in Brittny's best interest to remain in the custody of DSS. These determinations, however, are more properly designated conclusions of law and we treat them as such for the purposes of this appeal. See In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) (limiting review of conclusions of law to whether they are supported by findings of fact). The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment, see Plott v. Plott, 313 N.C. 63, 74, 326 S.E.2d 863, 870 (1985), or the application of legal principles, see Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 657-58 (1982), is more properly classified a conclusion of law. Any determination reached through "logical reasoning from the evidentiary facts" is more properly classified a finding of fact. Quick, 305 N.C. at 452, 290 S.E.2d at 657-58 (quoting Woodard v. Mordecai, 234 N.C. 463, 472, 67 S.E.2d 639, 645 (1951)). The determination of neglect requires the application of the legal principles set forth in N.C. Gen.Stat. § 7A-517(21) and is therefore a conclusion of law. The reasonable efforts and best interest determinations are conclusions of law because they require the exercise of judgment.

I

Allegations of neglect must be proven by clear and convincing evidence. N.C.G.S. § 7A-635 (1995). In a non-jury neglect adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings. See Montgomery, 311 N.C. at 111, 316 S.E.2d at 253; Matthews v. Prince, 90 N.C.App. 541, 545, 369 S.E.2d 116, 117 (1988).

In this case, clear and convincing competent evidence supports the trial court's findings of fact that Respondent has exposed Brittny to risk by allowing her extended contact with Strube and Helms. The record reveals that both Strube and Helms were abusive to Respondent; in addition, Strube used cocaine and has attempted to assault Respondent sexually. The record also reveals that, in violation of DSS's protection plans, Respondent and Brittny lived with Strube during January, and Respondent continued to allow Helms extended and unsupervised contact with Brittny.

II

Our review of a trial court's conclusions of law is limited to whether they are supported by the findings of fact. Montgomery, 311 N.C. at 111, 316 S.E.2d at 253.

A

A "neglected juvenile" is defined in part as one who "does not receive proper care, supervision, or discipline from the juvenile's parent ...; or who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7A-517(21) (1995). This Court has additionally "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 order to adjudicate a juvenile neglected. In re Safriet, 112 N.C.App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (listing cases holding that...