In re T.H.T.

• Decision Date: 21 August 2007
• Docket Number: No. COA07-122.,COA07-122.
• Citation: 648 S.E.2d 519
• Court: North Carolina Court of Appeals
• Parties: In the Matter of T.H.T.

648 S.E.2d 519

In the Matter of T.H.T.

No. COA07-122.

Court of Appeals of North Carolina.

August 21, 2007.

Appeal by Respondent-Mother from order entered 3 November 2006 by Judge J. Henry Banks in Vance County District Court. Heard in the Court of Appeals 23 July 2007.

No brief for Petitioner-Appellee Vance County Department of Social Services.

Wyrick, Robbins, Yates & Ponton L.L.P., by K. Edward Greene and Adrienne E. Allison, Raleigh, for Respondent-Appellant.

McGEE, Judge.

K.T. (Respondent-Mother) and B.T. were married on 11 October 1999 and separated on 26 July 2005. A daughter, T.H.T., was born to the parties, and she was seven months old at the time of her injuries. Pursuant to an agreed upon custodial arrangement, B.T. and Respondent-Mother shared custody of T.H.T. Between 12 October 2005 and 16 October 2005, T.H.T. was in Respondent-Mother's custody. When Respondent-Mother returned T.H.T. to B.T. on 16 October 2005, B.T. noticed that T.H.T.'s face was bruised and her head was swollen. B.T. attempted to contact police and a magistrate. B.T. then took T.H.T. to Granville Medical Center. Granville Medical Center was concerned that T.H.T. had a small subdural hemorrhage and she was transferred to Duke University Hospital for further evaluation. One month later, on 14 November 2005, B.T. filed a civil action in Vance County District Court seeking child custody, child support, and attorney's fees.

The Vance County Department of Social Services (DSS) filed a juvenile petition on 2 February 2006, alleging that T.H.T. was abused and neglected. The petition alleged (1) that during a scheduled visitation with Respondent-Mother, T.H.T. had sustained a traumatic head injury that required medical attention; (2) that T.H.T. suffered a "complex trauma, non-accidental closed head fracture" and had "facial swelling, a left neck bruise, and a bruised left arm"; and (3) that Respondent-Mother knew or had reason to know that T.H.T. was injured and failed to seek appropriate medical attention.

The trial court conducted a hearing on the petition on several different days between 5 April 2006 and 26 July 2006. Dr. Karen St. Claire (Dr. St.Claire), a pediatrician and Medical Director for the Inpatient and ER Child Abuse Consult Team, testified that T.H.T. was examined in the Duke University Hospital emergency room and was also examined by Dr. St. Claire. Dr. St. Claire and a radiologist determined that T.H.T. did not have a subdural hemorrhage, but that she did have a skull fracture and other bruising on her body. T.H.T. was admitted for further evaluation and remained at Duke for two days. When Dr. St. Claire spoke with B.T., he reported that he picked up T.H.T. from her great-grandmother's house and immediately saw a scratch over T.H.T.'s eyebrow, a bruise on her right forehead, swelling on the left side of her scalp, a red mark on her neck, and a bruise on her upper left arm.

Dr. St. Claire also spoke with Respondent-Mother. Respondent-Mother gave Dr. St. Claire several possible explanations for T.H.T.'s injuries, including (1) Respondent-Mother's toddler falling on T.H.T. or pulling a crib toy down onto T.H.T.; (2) T.H.T.'s great-grandmother holding T.H.T. by one arm; and (3) a "rough" child who stayed with T.H.T.'s great-grandmother when T.H.T. was also staying with her great-grandmother.

Dr. St. Claire was asked if she was able to determine when T.H.T.'s skull fracture had occurred. She responded that T.H.T. had swelling at the site of the fracture and that

swelling is something that can develop fairly quickly. It can develop over minutes or hours. In some cases over skull fractures, swelling may not be seen for a couple of days after a fracture, so to date it from the swelling is not possible. It could have been there . . . for a longer period of time but should have been noticed there for that period of time. The skull fracture itself by its appearance on x-ray could not be dated. We can't date skull fractures from that.

Dr. St. Claire also testified that

my medical opinion is that this was non-accidental trauma, and that I had not heard a mechanism that could [cause] the fracture in particular, although some of the bruising may have been caused by things such as the child falling on another child but I would not see the skull fracture could have been caused in that regard.

B.T. testified that Respondent-Mother called him once on Saturday, 15 October 2005 and twice on Sunday, 16 October 2005, to tell him that T.H.T. had bruises on her face and to say that B.T. should not be "mad with [Respondent-Mother] . . . because [T.H.T.] had bruises on her face and [Respondent-Mother] didn't know what had happened." Respondent-Mother dropped T.H.T. off at her great-grandmother's house on Sunday, 16 October 2005. When B.T. picked T.H.T. up, he noticed that T.H.T. was "disoriented, real sleepy, [and] sluggish[.]" B.T. called the magistrate's office, the police department, and 911. B.T. then took T.H.T. to the Granville Medical Center. B.T. testified that based upon: (1) the phone calls he received from Respondent-Mother; (2) the information he obtained at the hospitals where T.H.T. was treated; (3) the information he received from DSS; and (4) Dr. St. Claire's testimony about the injuries, he believed that T.H.T.'s injuries occurred when T.H.T. was with Respondent-Mother.

Respondent-Mother also testified about the events leading to T.H.T.'s hospital stay. Respondent-Mother testified that she picked up T.H.T. from day care on Friday, 14 October 2005. On Saturday, 15 October 2005, Respondent-Mother, her toddler, and T.H.T. left Respondent-Mother's home in Henderson and traveled to Raleigh. She met her boyfriend, Brian Goddard (Goddard), for lunch. After lunch, they placed the children's car seats in Goddard's four-door truck. Goddard was in the process of moving, so they went to the house he was moving from so Goddard could move some boxes. While there, Respondent-Mother's toddler needed a diaper change, so Respondent-Mother took the toddler inside the house to change her, leaving T.H.T. in the truck. Respondent-Mother testified that when she returned, T.H.T. was crying. Respondent-Mother asked Goddard what had happened, and Goddard said he did not know. Respondent-Mother then took T.H.T. inside to change her diaper. Respondent-Mother called B.T. and left him a message. She then took T.H.T. and the toddler home. The following morning, Respondent-Mother discovered the toddler climbing into T.H.T.'s crib, noticed one of the crib toys had fallen down, and saw a bruise on T.H.T.'s face. Respondent-Mother testified that she immediately called B.T. to report the bruise. She dropped T.H.T. off with B.T.'s grandmother later that morning and called B.T. again to tell him about the bruises on T.H.T.'s face.

Respondent-Mother testified that she was not aware that T.H.T. was in the hospital until Monday, 17 October 2005, when an individual from DSS contacted her. Respondent-Mother called Goddard twice that night to find out whether he knew what could have happened to T.H.T. Respondent-Mother testified that she spoke with Goddard again on Tuesday, 18 October 2005, and Goddard admitted that a box containing dishes and glasses may have hit T.H.T. while she was in his truck. Respondent-Mother testified that when she received this information, she reported it to DSS.

Goddard testified that when Respondent-Mother was helping him move and the children were in his truck, he stacked sheets and pillows between the car seats. He then placed a box containing plates and glasses on top of the pile of sheets and pillows. He went back inside to bring out more boxes and found T.H.T. crying. He noticed that the box was no longer on top of the sheets, but was "in between the seat, in between the two kids, but it was kind of falling[.]" Goddard moved the box into the back of the truck. Goddard also testified that the children were never left alone because a friend of his named "Davey" was also present.

The trial court entered an order on 3 November 2006. Based upon numerous findings of fact, the trial court concluded (1) that T.H.T. was an abused juvenile in that Respondent-Mother created or allowed to be created a substantial risk of serious physical injury by other than accidental means; and (2) that T.H.T. was a neglected juvenile in that Respondent-Mother did not provide proper care or supervision. The trial court awarded legal and physical custody of T.H.T. to B.T., and awarded Respondent-Mother unsupervised visitation privileges. The trial court relieved DSS and the guardian ad litem of any further involvement in the case. The trial court also ordered that, pursuant to N.C. Gen.Stat. § 7B-911, its 3 November 2006 order would resolve any pending claim for custody, and upon entry of a civil order in the parties' existing civil action, the jurisdiction of the trial court would be terminated. Respondent-Mother appeals.

I. Findings of Fact and Conclusions of Law

Respondent-Mother first challenges the trial court's determination that T.H.T. was an abused and neglected juvenile. Respondent-Mother challenges several of the trial court's findings of fact and conclusions of law.

"The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence." N.C. Gen.Stat. § 7B-805 (2005). The role of this Court in reviewing a trial court's adjudication of neglect and abuse is to determine "(1) whether the findings of fact are supported by `clear and convincing evidence,' and (2) whether the legal conclusions are supported by the findings of fact[.]" In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted). If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary. In re McCabe, 157 N.C.App. 673, 679, 580 S.E.2d 69, 73 (2003). "The trial [court] determines the weight to be given the testimony...