In re N.K. & D.K.Â

              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-1027

                                Filed: 20 October 2020

Onslow County, No. 18-JA-183/184

IN THE MATTERS OF: N.K. AND D.K.


      Appeal by respondent-mother and respondent-father from order entered 12

August 2019 by Judge Sarah C. Seaton in District Court, Onslow County. Heard in

the Court of Appeals 25 August 2020.


      Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Jackson W.
      Moore, Jr., for guardian ad litem.

      Patrick S. Lineberry, for respondent-mother.

      Steven S. Nelson, for respondent-mother.


      STROUD, Judge.


      Respondent-parents appeal a juvenile adjudication and disposition order for

their two children.    We affirm the adjudication order and vacate in part the

disposition and remand only the provisions regarding visitation. As to respondent-

mother, the district court may not leave visitation in the discretion of third parties;

as to respondent-father, the court must clarify his right to file a motion to review.

                                     I.     Background
                                        IN RE N.K. & D.K.

                                        Opinion of the Court



         On 7 November 2018, the Onslow County Department of Social Services

(“DSS”) filed a juvenile petition alleging Norm1 was an abused and neglected juvenile

and Doug was a neglected juvenile. The petition alleged respondent-mother burned

down the family home and took and distributed pornographic photos of Norm; as to

respondent-father, the petition alleged he had full knowledge of respondent-mother’s

criminal behavior but had been unwilling to protect the children. After hearings on

13 and 17 May 2019, on 12 August 2019, the district court entered an order with

extensive findings of fact and ultimately adjudicated Norm as abused and both

children as neglected. The court ordered that respondent-mother was not allowed to

have any contact with the children until agreed upon by her and the children’s

therapists; respondent-father’s visitation was supervised. Both respondent-mother

and respondent-father appeal.

                                      II.     Respondent-Mother

         Respondent-mother makes three arguments on appeal.

A.       Sufficiency of Evidence to Support Findings

         Respondent-mother first contends “the trial court’s order relies on a vacuum of

evidence for adjudicating . . . [the children] as neglected and [Norm] as abused[.]”

(Original in all caps.)

                      We review an adjudication under N.C. Gen. Stat. §
                 7B-807 to determine whether the trial court’s findings of


1   Pseudonyms are used throughout the opinion.

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             fact are supported by clear and convincing competent
             evidence and whether the court’s findings support its
             conclusions of law. The clear and convincing standard is
             greater than the preponderance of the evidence standard
             required in most civil cases. Clear and convincing evidence
             is evidence which should fully convince. Whether a child is
             dependent is a conclusion of law, and we review a trial
             court’s conclusions of law de novo.

In re M.H., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (July 7, 2020) (No. COA19-

1132) (citations and quotation marks omitted).

      Mother argues most of the substantive findings of fact regarding her abuse of

Norm are not supported by the evidence. But respondent-mother does not challenge

finding of fact 2(j) determining that

                    [o]n or about August 31, 2018, the respondent
                    mother was arrested for several charges relating to
                    her taking pornographic pictures of the juvenile . . .
                    [Norm] and distributing them, under the guise of
                    their production and distribution by her brother,
                    who resides in Alamance County. The respondent
                    mother took the photographs to the Jacksonville
                    Police Department, alleging that they were taken by
                    her brother, and the law enforcement investigation
                    revealed that they had in fact been taken and
                    distributed by her.

      Evidence of the creation, dissemination, or maintenance of pornographic

photos of a child is evidence of abuse. See N.C. Gen. Stat. § 7B-101(1)(d) (2017)

(defining an “[a]bused juvenile[]” in part as “preparation of obscene photographs,

slides, or motion pictures of the juvenile, as provided in G.S. 14-190.5; employing or

permitting the juvenile to assist in a violation of the obscenity laws as provided in


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G.S. 14-190.6; dissemination of obscene material to the juvenile as provided in G.S.

14-190.7 and G.S. 14-190.8; displaying or disseminating material harmful to the

juvenile as provided in G.S. 14-190.14 and G.S. 14-190.15; first and second degree

sexual exploitation of the juvenile as provided in G.S. 14-190.16 and G.S. 14-

190.17[.]”).2

       Respondent-mother’s argument that there was no substantive evidence to

support the findings of her abuse of Norm is not supported by the record. Detective

Daniel Karratti of the Jacksonville Police Department extensively testified regarding

the investigation which led to respondent-mother’s criminal charges that form the

basis for the adjudication of Norm as an abused child. We will not discuss Detective

Karratti’s testimony in detail here or the crimes and related file numbers under

which respondent-mother was criminally charged. The question in this case is not

whether respondent-mother is guilty of the alleged crimes; we are only considering

whether the district court findings are supported by clear and convincing evidence.

See M.H., ___ N.C. App. at ___, ___ S.E.2d at ___.




2There have been several versions of North Carolina General Statute § 7B-101 between 2017-2019
but all have classified creating, disseminating, or otherwise maintaining pornographic photos of a child
as abuse of that child. See generally N.C. Gen. Stat. § 7B-101(1)(3) (2017-2019).




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                                          Opinion of the Court



        The evidence shows respondent-mother admitted to the detective that she had

sent a pornographic photo of Norm to her aunt.3 Respondent-mother claimed her

brother had taken the photographs, although Detective Karratti determined

respondent-mother had taken them.                 In any event, even if respondent-mother’s

brother took the photographs, respondent-mother admitted she disseminated them,

regardless of her purpose for the distribution.

        The evidence thus supported the district court’s finding of fact

                        that the respondent mother’s cell phone had a
                        number of pictures of the juvenile . . . [Norm]
                        unclothed and in seductive poses, which the
                        respondent mother disseminated to a number of
                        people as an elaborate hoax to indicate that her
                        brother had taken and sent the pictures, when in
                        fact the pictures were taken and sent by her. The
                        respondent father should have been aware that the
                        respondent mother put their child in substantial
                        harm by taking and disseminating these pictures.
                        The Court further finds that these pictures are now
                        released into an electronic space where they may be
                        disseminated again, causing significant harm to the
                        juvenile [Norm] now, and in the future.

        Detective Karratti’s testimony was “clear, and convincing competent

evidence[,]” see In re M.H., ___ N.C. App. at ___, ___ S.E.2d at ___, supporting the



3Upon further questioning respondent-mother recanted her statement but her admission coupled with
the photos on her phone are evidence that Norm was an abused juvenile. See generally N.C. Gen. Stat.
§ 7B-101(1)(d). The trial court determines the credibility and weight of that evidence. See generally
Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (“We note that it is within the trial court’s
discretion to determine the weight and credibility that should be given to all evidence that is presented
during the trial.”).


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                                    Opinion of the Court



district court’s findings.   The evidence supports the district court’s findings that

respondent-mother had knowingly distributed a pornographic photo of Norm, and

this finding is sufficient to support the district court’s adjudication of abuse. See

generally N.C. Gen. Stat. § 7B-101(d)(1).

       A neglected juvenile is defined in part as a child who lives in an environment

injurious to his welfare.     See N.C. Gen. Stat. § 7B-101(15) (2017).         The proper

adjudication of the recent and disturbing abuse of Norm while Doug was in the same

environment is clear and convincing competent evidence of the neglect of Doug. See

In re C.M., 198 N.C. App. 53, 65–66, 678 S.E.2d 794, 801 (2009) (“Since the statutory

definition of a neglected child includes living with a person who has abused or

neglected other children, and since this Court has held that the weight to be given

that factor is a question for the trial court, the trial court, in this case, was permitted,

although not required, to conclude that Tess was neglected based on evidence that

respondent-father had abused Alexander. See, e.g., In re A.S., 190 N.C. App. 679, 691,

661 S.E.2d 313, 321 (2008) (affirming the trial court’s adjudication of neglect of one

child based on evidence that respondent had abused another child by intentionally

burning her), affirmed per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009); In re P.M.,

169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of neglect

of one child based on prior adjudication of neglect with respect to other children and

lack of accepting responsibility). With this Court’s determination supra that



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Alexander was properly adjudicated abused, any weight given by the trial court to the

abuse adjudication in determining Tess’s neglect was proper.” (emphasis added)).

Further, the evidence establishing Norm’s abuse is enough to substantiate that he

lived in an environment injurious to his welfare, see N.C. Gen. Stat. § 7B-101(15)

(2017), and thus was also a neglected juvenile. The district court properly adjudicated

Norm as abused and both children as neglected. This argument is overruled.

B.    Visitation

      The district court’s order does not allow respondent-mother to have any contact

with the children “until agreed upon and recommended by both the children’s

therapists and therapist of [respondent-mother] only after court recommendations for

her bond conditions or probation terms change.” Respondent-mother next contends

“the trial court erred in denying [respondent-mother] visitation with . . . [the children]

and otherwise leaving visitation in the discretion of the therapists.” (Original in all

caps.) The guardian ad litem has requested we vacate and remand the order as to

respondent-mother’s visitation for “greater clarity” as one potential reading of the

order “would be to delegate the visitation authority to certain therapists without

court intervention.”

      “We review a dispositional order only for abuse of discretion. An abuse of

discretion occurs when the trial court’s ruling is so arbitrary that it could not have




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been the result of a reasoned decision.” Matter of S.G., ___ N.C. App. ___, ___, 835

S.E.2d 479, 486 (2019) (citation, quotation marks, and brackets omitted).

       North Carolina General Statute §7B-905.1(a) addresses the requirements for

court orders regarding visitation with a child who has been removed from the home:

               An order that removes custody of a juvenile from a parent,
               guardian, or custodian or that continues the juvenile’s
               placement outside the home shall provide for appropriate
               visitation as may be in the best interests of the juvenile
               consistent with the juvenile’s health and safety. The court
               may specify in the order conditions under which visitation
               may be suspended.

N.C. Gen. Stat. §7B-905.1 (2017).4

       Although the district court may deny a parent visitation with a child if it

determines visitation is not in the child’s best interest, see id., the court must make

appropriate findings to support an order denying visitation. See generally Matter of

T.W., 250 N.C. App. 68, 77, 796 S.E.2d 792, 798 (2016) (“The order must establish an

adequate visitation plan for the parent in the absence of findings that the parent has

forfeited their right to visitation or that it is in the child’s best interest to deny

visitation.” (citation, quotation marks, and brackets omitted)). If the district court

orders visitation, the court “shall specify the minimum frequency and length of the

visits and whether the visits shall be supervised.” N.C. Gen. Stat. §7B-905.1(d).




4North Carolina General Statute § 7B-905.1 was amended effective 1 October 2019 and will guide the
district court upon remand. See N.C. Gen. Stat. §7B-905.1 (2019).

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                                   Opinion of the Court



      This Court has previously determined that a lower court may not delegate its

authority to set visitation to the custodian of the child: “[W]hen visitation rights are

awarded, it is the exercise of a judicial function.” See generally In re Custody of

Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971) (“We do not think that the

exercise of this judicial function may be properly delegated by the court to the

custodian of the child. Usually those who are involved in a controversy over the

custody of a child have been unable to come to a satisfactory mutual agreement

concerning custody and visitation rights. To give the custodian of the child authority

to decide when, where and under what circumstances a parent may visit his or her

child could result in a complete denial of the right and in any event would be

delegating a judicial function to the custodian.”). Here, the district court neither

completely denied visitation nor set out terms for visitation but instead delegated

both the authority to allow visitation and the terms of that visitation to three

therapists who worked with respondent-mother and each child.

      While there is more than one way to interpret the court’s order regarding

respondent-mother’s visitation, we agree the order seems to delegate the decision to

allow visitation, as well as the conditions and schedule of visitation, to three

therapists, as it was to be “agreed upon” by the children’s therapists and respondent-

mother’s therapist. Under the terms of the order, if one of the three therapists fails

to agree, no visitation would occur. We vacate and remand the visitation portion of



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                                     Opinion of the Court



the order as it applies to respondent-mother for the district court to exercise its own

discretion regarding visitation and to enter an order with provisions as required by

North Carolina General Statute § 7B-905.1.

C.    Relative Placement

      Lastly, respondent-mother incorporates respondent-father’s first argument on

appeal regarding relative placement.         As the substance of the argument is in

respondent-father’s brief, we will address it in the portion of the opinion regarding

his appeal.

D.    Summary

      In summary, the district court properly adjudicated Norm as abused and the

children as neglected, but we vacate the portion of the order regarding respondent-

mother’s visitation and remand entry of an order addressing visitation in accord with

North Carolina General Statute §7B-905.1.

                              III.     Respondent-Father

      Respondent-father makes five arguments on appeal.              We will address

respondent-father’s arguments regarding the adjudication first.

A.    Sufficiency of Evidence to Support Findings for Adjudication

      Like respondent-mother, respondent-father also contends “the trial court[’]s

order relies on a vacuum of evidence for adjudicating [Doug] and [Norm] as neglected

and [Norm] as abused[,]” (original in all caps), and the entirety of this portion of his



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argument is the incorporation of respondent-mother’s argument. We have already

addressed this argument and overrule it.

      Respondent-father raises an additional argument regarding the sufficiency of

the evidence to support the trial court’s findings regarding his knowledge of

Respondent-mother’s actions.    Respondent-father contends “the trial court erred

when it found during the children’s adjudication, that [respondent-father] had prior

knowledge of [respondent-mother’s] prior criminal behavior and knowledge of her

current criminal behavior and that he failed to protect his children from their abuse

and neglect.    Respondent-father testified about respondent-mother’s criminal

behavior. In his brief, he contends that he “knew” what respondent-mother was

accused of but he did not “know” she actually did these things. We need not list the

findings of fact regarding respondent-father’s knowledge, as he does not challenge the

findings as unsupported by the evidence. Regardless of respondent-father’s beliefs

about respondent-mother’s actions, the record supports the district court’s

determination that respondent-father was aware of respondent-mother’s criminal

charges and the actions which led to the charges, and we read the findings of fact as

addressing his awareness of respondent-mother’s actions and not whether he knew

or believed she was guilty of a particular crime. This argument is without merit.

B.    Relative Placement




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                                  Opinion of the Court



      Respondent-father first contends “the trial court erred and abused its

discretion when it failed to place the children with family members and failed to

comply with the statutory mandates contained in N.C. Gen. Stat. §§ 7B-903(a1)

(2015) and 7B-506(h)(2) (2017).” (Original in all caps.) We first note that North

Carolina General Statute § 7B-506 (2017) is entitled “Hearing to determine need for

continued nonsecure custody[.]” None of the orders for continued nonsecure custody

are at issue on appeal, and therefore we address only respondent-father’s argument

as to relative placement under North Carolina General Statute § 7B-903. We review

statutory compliance de novo. See generally In re M.S., 247 N.C. App. 89, 91, 785

S.E.2d 590, 592 (2016) (“We consider matters of statutory interpretation de novo.”

(citation omitted)).

      As to North Carolina General Statute § 7B-903(a1), respondent-father argues

that the court did not make findings of fact regarding why the best interests of the

children would not be served by placing them with relatives, as he contends is

required by the statute. North Carolina General Statute § 7B-903(a1) provides,

                    In placing a juvenile in out-of-home care under this
             section, the court shall first consider whether a relative of
             the juvenile is willing and able to provide proper care and
             supervision of the juvenile in a safe home. If the court finds
             that the relative is willing and able to provide proper care
             and supervision in a safe home, then the court shall order
             placement of the juvenile with the relative unless the court
             finds that the placement is contrary to the best interests of
             the juvenile. In placing a juvenile in out-of-home care
             under this section, the court shall also consider whether it


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                  is in the juvenile’s best interest to remain in the juvenile’s
                  community of residence. Placement of a juvenile with a
                  relative outside of this State must be in accordance with
                  the Interstate Compact on the Placement of Children.

N.C. Gen. Stat. § 7B-903 (2019). Thus, the district court must first consider whether

a “relative is willing and able to provide proper care and supervision in a safe home[.]”

Id. If so, “then the court shall order placement of the juvenile with the relative unless

the court finds that the placement is contrary to the best interests of the juvenile.”

Id.

          Respondent-father argues placement with a relative would be in the best

interest of the children, but he ignores the first portion of the statute. The district

court must first determine there is a relative who is willing to care for the children

and “able to provide proper care and supervision in a safe home[.]” Id. Here, the

court found there was no relative available who met these statutory requirements, so

there was no need to consider whether placement with a relative would be in the

children’s best interests.

          Father contends there were two relatives available to care for the children: a

maternal great aunt, Ms. Smith, and the children’s paternal half-sister, Ms. Adams.5

As to Ms. Smith, DSS had reported that her placement was not suitable: “Home

Study for . . . [the Smiths] w[as] denied.” The DSS report was admitted as evidence




5   We have used pseudonyms for these relatives to protect the identity of the juveniles.

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at the disposition hearing. Further, a prior continuation of nonsecure custody order

from March of 2019 had found “the [Smiths] had their home assessment denied by

Alamance County.” Neither respondent challenged the DSS report, the nonsecure

custody order finding, or presented any evidence indicating Ms. Smith was available

and able to care for the children.

      As to Ms. Adams, the district court found that

             [t]he juveniles were removed from the home of their
             paternal sister . . . [Ms. Adams] after a hearing on March
             25, 2019 when the Court found that [Ms. Adams] was
             allowing the juveniles to sleep overnight at the home of
             their paternal grandmother, who has prior child protective
             services history and is not an appropriate caregiver to
             these juveniles[;]

Respondent-father does not challenge this finding of fact but contends it is not

sufficient to establish that Ms. Adams was not “willing and able to provide proper

care and supervision of the juvenile in a safe home.” Yet all of the evidence before

the court showed that neither Ms. Smith nor Ms. Adams were able to provide “proper

care and supervision” or a “safe home.” Id. Respondent-father presented no evidence

to counter DSS’s evidence or the home studies of the relatives. There was no need for

the district court to make findings of fact as to why it was not in the children’s best

interests to be placed with Ms. Smith and Ms. Adams since neither was able to

provide a safe and appropriate home.




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        Based upon the evidence and binding finding of fact, see In re C.B., 245 N.C.

App. 197, 199, 783 S.E.2d 206, 208 (2016) (“Unchallenged findings are binding on

appeal.”), there was not an appropriate relative placement available for the children.

The court only engages in a best interests analysis as to relative placement, after

“first consider[ing] whether a relative of the juvenile is willing and able to provide

proper care and supervision of the juvenile in a safe home” and upon determining

“the relative is willing and able to provide proper care and supervision in a safe

home[.]” Id. (emphasis added). Here, the uncontroverted evidence and findings in

this and a prior order establish Ms. Smith and Ms. Adams were not “able to provide

proper care and supervision of the juvenile in a safe home[,]” and thus the court did

not need to take the next step of considering the children’s best interests. Id. The

district court complied with North Carolina General Statute § 7B-903(a1).6 Further,

the court did not abuse its discretion regarding its disposition of non-relative

placement. See S.G., ___ N.C. App. at ___, 835 S.E.2d at 486. This argument is

overruled.

C.      Motion for Review




6Respondent-father also contends it is in the best interests of the children to be in placement together,
and this would be accomplished by the children staying with relatives, but again, such an analysis
specifically under North Carolina General Statute § 7B-903(a1) as is at issue on appeal, is only
required after a determination that relative placement is possible and appropriate. See generally N.C.
Gen. Stat. § 7B-903(a1).

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      Respondent next contends “the trial court erred when it failed to advise and

given notice to [respondent-father] of his right to file a motion for review of the

visitation plan.” (Original in all caps.) As with the provisions regarding respondent-

mother’s visitation, the guardian ad litem also requests this Court vacate the

provisions of the order regarding visitation and remand for explicit compliance with

North Carolina General Statute § 7B-905.1(d). As we are already remanding the

visitation provision regarding respondent-mother and as the guardian ad litem

requests the same remedy as respondent-father, we also remand the rest of the

visitation provision as all parties have contended the entirety of the visitation

determinations made by the court lacked clarity regarding who had discretion over

visitation and a right to review. See, e.g., Matter of J.L., ___ N.C. App. ___, ___, 826

S.E.2d 258, 268-69 (2019) (vacating and remanding for compliance with N.C. Gen.

Stat. § 7B-905.1(d)).

D.    Best Interests

      Respondent-father next contends “the trial court erred when it failed to comply

with the statutory mandates required to satisfy the children’s best interests in the

initial disposition.” (Original in all caps.) The only statute cited and quoted by

respondent-father is a federal one regarding “reasonable efforts” to place siblings

together. For the remainder of the argument, respondent-father essentially reasserts

his points regarding relative placement and rather than challenging any findings of



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fact contends that the district court was simply wrong about what was in the

children’s best interests.

      Respondent-father contends “[t]he children’s best interests require that they

be kept together in a home with family and with frequent access to their father.” As

a general proposition, North Carolina’s statutes recognize “family autonomy” as an

ideal goal for all families. See N.C. Gen. Stat. § 7B-100 (2019).

      Some of the purposes of Chapter 7B, subchapter I are

             (3)    To provide for services for the protection of juveniles
             by means that respect both the right to family autonomy
             and the juveniles’ needs for safety, continuity, and
             permanence; and
             (4)    To provide standards for the removal, when
             necessary, of juveniles from their homes and for the return
             of juveniles to their homes consistent with preventing the
             unnecessary or inappropriate separation of juveniles from
             their parents.

Id.

      Unfortunately, it is not always possible for children to be safe “in a home with

family and with frequent access to their father.”         The district court properly

considered the children’s interests while evaluating the alternatives that were

actually available to them. The court made many findings of fact which are not at

issue on appeal supporting the court’s adjudication and its determination that the

children should remain in the custody of DSS. The court did not abuse its discretion




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in its extensive dispositional analysis regarding best interests. See S.G., ___ N.C.

App. at ___, 835 S.E.2d at 486. This argument is overruled.

E.    Summary

      In summary, we vacate and remand only regarding the visitation provisions

for respondent-father and remand for the district court to enter a new order

addressing visitation, including provisions regarding respondent-father’s right to file

a motion for review.

                                  IV.    Conclusion

      We affirm the order as to adjudication and vacate in part the provisions

regarding disposition, specifically as to visitation. On remand, the trial court shall

enter a new order addressing respondent-mother’s visitation and clarifying

respondent-father’s right to file a motion to review.

      AFFIRMED in part; VACATED and REMANDED in part.

      Judges DIETZ and ZACHARY concur.




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