In re McLean, COA98-1457.

Citation135 NC App. 387,521 S.E.2d 121
Decision Date02 November 1999
Docket NumberNo. COA98-1457.,COA98-1457.
PartiesIn the Matter of Tamara Beth McLEAN.
CourtCourt of Appeal of North Carolina (US)

E. Marshall Woodall, Lillington, for petitioner-appellee Harnett County Department of Social Services.

C. Winston Gilchrist, Lillington, for respondent-appellant Sarah McLean.

Richard E. Jester, Angier, for respondent-appellant Ronald Terrell McLean.

Donald E. Harrop, Jr., Dunn, for appellee Guardian Ad Litem.

HORTON, Judge.

Respondent mother contends that (I) the evidence and findings of fact were insufficient to support the conclusion of the trial court that Tamara Beth McLean is a neglected juvenile. She also contends, as does respondent father, that (II) the trial court erred in ordering DSS not to attempt to reunite her with Tamara unless she disassociates herself from respondent father. Respondent father argues that (III) the trial court was demonstrably prejudiced against respondents in this case, and that (IV) the trial court also erred in attempting to retain jurisdiction to hear future proceedings in this case.

I.

Our Juvenile Code 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 lives in an environment injurious to the juvenile's welfare.... In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen.Stat. § 7A-517(21) (Cum.Supp. 1997). In addition, the decisions of this Court require "`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 a substantial risk of impairment is sufficient to show neglect) (emphasis added)." In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997). Whether a child is "neglected" is a conclusion of law which must be supported by adequate findings of fact. Id. at 510, 491 S.E.2d at 676. Furthermore, the allegations of neglect must be proven by clear and convincing evidence in order to sustain such a finding. N.C. Gen.Stat. § 7A-635 (Cum.Supp.1997). In this case, the trial court made the following findings of fact 5. [Tamara Beth McLean] is a neglected juvenile as defined by N.C.G.S. § 7A-517 (21), respectively, in that:

A. The respondent parents of the juvenile herein were also the parents of Olivia McLean (hereinafter sometimes referred to as the infant) who died at 3½ months of age from [a] non-accidental injury.
B. The respondent parents were the sole caretakers of the infant from the time of her birth until she received the injuries which caused her death.
C. At the time of the death of the infant, she was residing with the respondent parents in the home of the maternal grandparents at Route 7, Box 915, Harnett County, North Carolina.
D. On the morning of July 1, 1996, the parents reported that the infant was alert and feeding with playful interaction at 4:30 and 8:30 a.m. At approximately 8:00 a.m., the respondent father transported the respondent mother to Triton High School where she was a student. At that time, the infant was with the respondent parents. The father returned home and was the sole caretaker until approximately 12:20 p.m. when he (father) ran for help with the infant in his arms.
E. The respondent father reported that he placed the infant in a car seat under a tree while he worked on an automobile. He further reported that she began to cry and was consoled by him. At approximately 12:20 p.m., the father observed the infant to be limp and did not appear to be breathing well. After telephoning the mother at school, the father ran down the road with the infant in his arms. The infant received CPR at a nursing home and was taken to Betsy Johnson Emergency Room by ambulance.
F. The respondent father reported no injury to the infant and that he only shaking received by her during the day of July 6, 1996 [sic ] was the shaking received while he was running down the road with the infant in his arms.
G. The infant was placed on life support systems immediately upon her arrival at the Betsy Johnson Hospital in Dunn and continued on life support systems until July 5, 1996. At no time during this period did the infant regain consciousness and it was subsequently determined by the medical personnel that the child was brain dead and the life support systems were turned off on July 5, 1996 and the child immediately died.
H. Medical records from the University of North Carolina Hospitals—Chapel Hill dictated by Pediatric Attending physician Dr. Lewis Romer, M.D., give a final diagnosis of Shaken Baby Syndrome and Battered Child Syndrome.
I. An autopsy performed on the infant at the Office of the Medical Examiner in Chapel Hill by Dr. Karen Chancellor, M.D. indicated that the "death resulted from willfully inflicted head trauma." The medical examiner ruled the death of Olivia McLean to be a homicide.
J. Olivia McLean died as a result of non-accidental trauma most likely caused by severe shaking of the child within the two and one half hours prior to the father's seeking medical attention approximately 12:20 p.m., July 1, 1996.
K. Physical examination of the child at UNC Hospital revealed positive clinical findings of ecchymosis (bruises) in the back of the buttock in the lumbar region that was yellowish green color consistent with old ecchymosis (bruises) approximately 5 to 10 days old. Respondent mother told the social worker that she saw the bruises the day before Olivia went to the hospital.
L. Dr. Runyon testified that the injuries to Olivia McLean were the result of a severe shaking causing the blood vessels in the spinal chord to separate. Dr. Runyon further testified that this injury could not have been caused by accidental means such as described by the respondent father. He further testified that the injuries to Olivia most likely occurred between 11:45 a.m. and 12:20 p.m. during which time the respondent mother was at school.
M. The child's death was the result of a severe shaking causing severe injuries to the child's brain which caused the child's death.
N. Shortly after the death of the infant, the respondent parents married and have continued to live together from that time until the trial of this case in the maternal grandparent's home at Route 7, Box 915, Dunn North Carolina.
O. During the investigation in July, 1996, the respondent parents were not cooperative with the social worker during the time in which she was making [an] investigation in this matter.
P. The respondent mother in July, 1996 presently continues to support the father in his contention that the child had not been injured except be shaken while he was running down the road with the child in his arms. At the time, the respondent mother was told that the medical personnel at Chapel Hill, N.C., were of the opinion that the infant died from means other than accidental.
Q. The respondent mother has continued to support the father's claim that the child was not shaken other than such shaking motions as received while he ran with the infant (Olivia McLean) for help.
R. After the infant's death, the social worker made attempts to visit the parents at the home of the maternal grandparents; the social worker sent a letter asking for an appointment and made telephone calls in an attempt to reach the parents. The social worker was not able to make the visit and eventually closed the investigative case for the reason that the child had died. James Beaumont, maternal grandfather of the deceased child testified that he tried on at least two occasions in July or August 1996 to return calls to the social worker and left messages, but did not receive a response.
S. Since the death of Olivia McLean, the respondent parents have married, had another baby (Tamara McLean) and are presently living together.
T. On the 26 th day of February, 1998, the petitioner's social worker began an investigation in this juvenile case and visited with both of the respondent parents who continued their insistence that the death of the juvenile's sibling was accidental (the respondent mother does not believe the father intentionally hurt their deceased daughter) and further they did not respond to calls or letters from the social worker. The respondents' families have supported the respondents in their efforts. The maternal grandparents have been told that the medical personnel were of the opinion the infant's (Olivia's) death was caused by means other than accidental.
U. The respondent parents' plan for the care of the juvenile was to place her in the home of the maternal grandparents where the parents were currently living. This household is the same in which the deceased child was living when she died. During petitioner's investigation in February 1998, the social worker expressed concern about the juvenile's safety in the parents['] home. During the social worker's discussion with them, neither respondent parent exhibited or expressed any concern for the juvenile's safety and both parents supported each other.
V. During the parents' visits with the juveniles [sic ] since the filing of the petition herein, the respondent mother seemed awkward and nervous with the child and the respondent father extended most of the care for the juvenile during the visits.
W. The juvenile's safety cannot be assured if placed with the respondent parents.

Where the trial court sits without a jury and hears the evidence in a neglect adjudication, the facts found by the trial court are binding on an appellate court if supported by clear and convincing competent evidence. Helms, 127 N.C.App. at 511,491 S.E.2d...

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