In re M.T.

Citation2022 NCCOA 593
Decision Date06 September 2022
Docket NumberCOA21-755
PartiesIN THE MATTER OF: M.T. and K.T.
CourtNorth Carolina Court of Appeals

Heard in the Court of Appeals 9 August 2022.

Appeal by respondent-mother from orders entered on or about 13 October 2020 and 5 July 2021 by Judge Shamieka L. Rhinehart in District Court, Durham County Nos. 18-JT-1, 18-JT-2.

Miller & Audino, LLP, by Jeffrey L. Miller, and Elizabeth Simpson, for appellant-respondent mother.

Michelle FormyDuval Lynch and Matthew D. Wunsche, for appellee guardian ad litem.

The Law Office of Derrick J. Hensley, PLLC, by Derrick J Hensley, and Elizabeth P. Kennedy-Gurnee for appellee-petitioner Durham County Department of Social Services.

Jaclyn Maffetore, for Amicus Curiae The ACLU of North Carolina Legal Foundation.

Kathleen Lockwood and Nisha Williams, for Amicus Curiae North Carolina Coalition Against Domestic Violence.

Laura Holland, Quisha Mallette, and Sarah Laws, for Amici Curiae North Carolina Justice Center and North Carolina Community Bail Fund of Durham.

Tin Fulton, Walker &Owen, PLLC, by Abraham Rubert-Schewel, for Amicus Curiae North Carolina NAACP.

STROUD, Chief Judge.

¶ 1 All cases involving abuse, neglect, and dependency of children or termination of parental rights arising from physical abuse of a baby are tragic; cases arising from serious and life-threatening non-accidental injuries to a baby are perhaps the most challenging and tragic of all. Here, as in most cases involving life-threatening nonaccidental injuries to a baby, there is no direct evidence of exactly what happened. A baby cannot tell anyone what happened, and no one, other than someone who hurt the baby, saw what happened. Trial courts must often make these difficult and momentous decisions based upon circumstantial evidence and evaluation of credibility and weight of the evidence. In this case, the trial court carefully considered evidence from many witnesses and hundreds of pages of exhibits and reports, including medical records, presented at hearings held over many days. The trial court entered several orders over four years and ultimately entered an order of termination of parental rights, setting out the facts about the abuse, the parents, and the children in thoughtful and careful detail. The trial court also painstakingly considered the best interests of the children before deciding that under the law, Mother's parental rights must be terminated.

¶ 2 In addition to the difficult issues regarding the abuse of the baby, we note several organizations have filed amicus, or "friend of the court," briefs to present arguments regarding larger issues they contend this case presents. Those briefs address issues including: the "disproportionate and negative impact of the child welfare system on marginalized racial groups;" the "role of race in the proceeding;" the concern that "responses to domestic violence in the child welfare system" may create greater trauma for the children; and the effects of "wealth-based pre-trial incarceration" on families. We do not discount any of the concerns presented by Amici, but as an appellate court, we can address only the issues presented by the facts of this case and the law as established by the General Assembly and prior caselaw. The trial court's job, ultimately, is to make hard decisions based upon the evidence presented, with the best interests of these two young children, Mark and Ken,[1] as its primary consideration. And our job, as an appellate court, is to determine if the trial court did that job correctly, in accord with the law. Because the trial court did that difficult job correctly, we affirm the trial court's order.

¶ 3 Respondent Mother appeals from the trial court's order ceasing reunification in an abuse, neglect, and dependency proceeding and from its order terminating parental rights as to both her children Ken and Mark.[2] After granting Mother's Petition for Writ of Certiorari ("PWC") to review the trial court's order ceasing reunification, we determine the trial court did not abuse its discretion because it made a reasoned decision based on its Findings regarding Mother's progress on her case plan and the still unexplained nature of some of Ken's injuries and conditions that led to the abuse and neglect proceeding. Because competent evidence supports the trial court's Findings of Fact and those Findings support the trial court's Conclusions of Law, the trial court properly adjudicated termination of Mother's parental rights on the grounds of neglect as to both Mark and Ken and on the grounds of abuse as to Ken pursuant to North Carolina General Statute § 7B-1111(a)(1) (2019). Because we conclude the abuse and neglect grounds were proper, we do not address the other ground for termination, willful failure to make reasonable progress under North Carolina General Statute § 7B-1111(a)(2). Finally, because the trial court made a reasoned decision in excluding testimony from one of Mother's experts at the dispositional phase of the termination proceeding, the trial court did not err on those grounds. We therefore affirm.

I. Background

¶ 4 On or about 5 January 2018, Durham County Department of Social Services ("DSS") filed a juvenile petition alleging Ken and Mark were neglected and dependent and that Ken was abused. The petition arose from a report of medical neglect in early December 2017 after Ken, who at that time was under six months old and had only been home from the hospital a short time following his premature birth, was taken to the emergency room and diagnosed with "a head bleed, seizures and possible blood loss in the abdomen." At the time, Ken's "prognosis was unclear." According to the petition, further testing revealed Ken had "skull fractures, rib fractures in various stages of healing and retinal hemorrhages in both eyes" that "[a]ccording to the medical team" were "significant head injuries from non-accidental trauma consistent with physical abuse." As a result of those injuries, at the time the petition was filed, Ken still "require[d] twenty-four hour care, three medications, numerous follow-up medical appointment[s,] . . . therapies," and "monitoring for a blood clot in his leg." Finally, the petition noted while the perpetrator of the abuse had not been identified "[t]he parents were the sole care providers of the children and could not offer any explanation" for Ken's injuries such that his "risk of further injury . . . [was] too great."

¶ 5 While the petition noted Mark had "no special needs or identified injuries," it alleged he was neglected because he "live[d] in an injurious environment due to the abuse and neglect of his sibling" Ken. As a result, DSS sought nonsecure custody of both children, which the trial court granted the same day.

¶ 6 On 25 June 2018, following a hearing held the same day, the trial court entered an order adjudicating Ken abused, dependent, and neglected and adjudicating Mark neglected based on stipulated Findings of Fact made with clear and convincing evidence. The trial court found Ken had been born prematurely, was released from the hospital in early November 2017 and twice had medical appointments in November where no one noted concerns for unexplained injuries. The trial court also recounted the parents taking Ken to the ER for "changed behavior" including "lack of crying, and voiding for two days, and foot jumping, and twitching, cranky and decreased eating for one day." The Findings then expanded upon the extent and "lifethreatening" nature of Ken's injuries and conditions when presented at the hospital on 3 December 2017 that led to the DSS report:

12. The Emergency Department sought a CANMEC [a child abuse evaluation] consult for initial concerns for medical neglect due to the delay in seeking treatment, concern for malnutrition, and possible head trauma. The child, [Ken], received immediate critical care treatment for imminent or life-threatening deterioration of the following conditions: endocrine crisis, metabolic crisis, shock, trauma, central nervous system failure or compromise and respiratory failure for status epilepticus, profound anemia and profound hypoglycemia. His body temperature was 94 degrees. He was intubated. He was admitted to the hospital where he remained until December 30, 2017.

The trial court also found diagnostic testing revealed Ken's additional injuries listed in DSS's initial petition as well as "brain injuries due to trauma and oxygen loss." The trial court further found, consistent with the petition, Ken required twenty-four hour care and multiple medications with "[t]he long term consequences of his injuries . . . unknown."

¶ 7 After recounting Ken's injuries, the trial court made Findings related to possible causes. Ken's medical providers ruled out "genetic or medical causes for the injuries" and determined they were "consistent with non-accidental or inflicted trauma on one or multiple occasions with at least the occurring [sic] between" the period when Ken had his last medical appointment and when he was taken to the hospital. A child abuse expert not affiliated with the hospital reviewed and "concur[red]" with the findings Ken "clear[ly]" suffered abuse and "probabl[y] experienced neglect and medical neglect." The trial court found-again in a Finding stipulated to by both parents-during this period of time when Ken's injuries were caused, "[t]he parents were the sole care providers," and, despite being "informed of the medical findings on several occasions," they "could not or would not offer any explanation for the child's injuries." Specifically, the parents "both den[ied] inflicting any non-accidental trauma and [were] unaware of any event that may have caused the injuries alleged," but they "reviewed the...

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