IN MATTER OF S.T.F., COA09-1569 (N.C.App. 4-20-2010)

CALABRIA, Judge.

Respondent-mother and respondent-father (collectively "respondents") appeal the trial court's order adjudicating the juvenile S.T.F. ("Seth ") as neglected. We affirm.

This is a pseudonym to protect the child's identity and for ease of reading.

I. Background

Seth was born on 2 May 2009. During the early morning hours of 4 May, Nurse Lisa was administering pain medication to respondent-mother. As she administered the medication, the nurse observed Seth crying and respondent-father raising Seth in a rapid motion and shaking him forcefully. Respondent-father stopped when he realized the nurse was watching him. Respondent-father was later charged with misdemeanor child abuse as a result of this incident.

Nurse Lisa contacted Wake County Human Services ("petitioner") to report respondent-father's behavior toward Seth that she had witnessed. During the course of petitioner's investigation of the incident, a social worker asked respondent-mother for her consent to have a CT scan and a skeletal x-ray taken of Seth to determine whether he had sustained any injuries as a result of being shaken. Respondent-mother refused to give consent.

On 4 May 2009, petitioner filed a juvenile petition in Wake County District Court alleging that Seth was abused and neglected. Petitioner also sought and obtained non-secure legal custody of the child on that date. Once petitioner was granted non-secure legal custody, the necessary diagnostic testing was performed. A pediatric radiologist determined that Seth did not sustain any intracranial bleeding.

Beginning 16 June 2009, an adjudication hearing was conducted on the abuse and neglect petition. On 28 August 2009, the trial court issued an order adjudicating Seth as a neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(15) in that he was not receiving proper care and supervision from his parents and he lived in an environment injurious to his welfare. The trial court ordered that legal custody remain with petitioner. Both respondent-father and respondent-mother appeal.

II. Standard of Review

"The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence." N.C. Gen. Stat. § 7B-805 (2009). In a juvenile proceeding, the trial judge is both judge and juror, and "it is that judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). "A proper review of a trial court's finding of neglect entails a determination of (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) (citations omitted). Proof by clear and convincing evidence "is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases." In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984). Review of a conclusion of law is de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).

III. Findings of Fact

Several of the trial court's findings of fact are contested by either respondent-mother or respondent-father, or by both respondents. After reviewing the record, we have determined that the trial court's findings of fact are all supported by clear and convincing evidence, and therefore overrule each of respondents' assignments of error.

Respondent-mother first challenges finding of fact number six, in which the trial court found:

That during the late evening of May 3, and early morning hours of May 4, the mother and the father were observed in the hospital room together, requesting food on multiple times, and had the television and room lights on. The newborn child was present in the room with the parents. Hospital staff members advised the parents to turn the lights and television off and to try to get some rest. Some hospital staff observed tension in the room between the parents and heard them arguing. Their voices were heard outside the room by nurses during and other patients during the course of the evening and the father was overheard yelling at the mother in anger.

Respondent-mother argues that this finding is misleading because only one member of the hospital staff, Nurse Lisa, observed respondents in the hospital room. The transcript, however, shows that Nurse Lisa was not the only member of the hospital staff to observe tension, yelling and arguments between respondents.

Nurse Angela was the primary nurse attending respondent-mother before Nurse Lisa took over between 1:00 and 1:30 a.m. Nurse Angela testified that she sensed increased tension between respondents during the course of the night and the early morning hours. She reported that respondents were "short with each other."

In addition, the social worker who investigated the incident testified that other nurses had concerns as well. Prior to the social worker entering respondent-mother's room, other nurses reported to the social worker that respondents "had been arguing with each other over several topics, including breastfeeding[.]" The social worker also testified that other patients and the nurses at the nursing desk, which was located several doors down from respondent-mother's room, could also hear the argument. Thus, this finding is supported by clear and convincing evidence.

Both respondents challenge finding of fact number seven, in which the trial court found:

That the mother later requested additional pain medication. A nurse administering the medication to mother observed the father holding the baby by his shoulders as the baby started to cry. The father raised the baby up in a rapid motion and shook or `snapped' him forcefully as the father emitted a sound of frustration. The father put the baby down when he noticed he was being observed by a member of the nursing staff. The mother was occupied with receiving and taking medication and did not observe the incident. The nurse was concerned for the welfare of the child and suggested that the parents to (sic) let her take the baby to the nursery, but the parents refused to allow the child to go to the nursery without one of them.

Both respondents dispute that respondent-father "shook" Seth, as the incident spanned only a brief period of one to two seconds and did not cause any injury to the child. Respondent-father contends the evidence does not support the trial court's finding that he held the baby up by his shoulders and shook him forcefully. He argues, based upon his testimony at the hearing, that he merely "bounced the child on his knees in an effort to comfort his newborn son."

Nurse Lisa testified that, as she administered pain medication to respondent-mother, she heard respondent-father emit a frustrated grunt, raise Seth angrily, and move him with a sudden, jerky, forceful motion. Nurse Lisa also testified that respondent-father used enough force to cause her to become concerned for Seth's well being. Nurse Lisa's testimony provides sufficient evidence to support the trial court's finding.

Respondent-mother next challenges finding of fact number eight, which states:

That during the investigation, the social worker spoke with the nursing staff at the hospital where the child was born. Staff members expressed concern about the general demeanor of the parents and the lack of the mother's bonding with the child.

Respondent-mother argues this finding is not supported by clear and convincing evidence and is contradicted by the trial court's very next finding of fact, in which the trial court found that respondent-mother's midwife testified that respondent-mother was bonding with the child in the first hours following the child's birth.

As noted above, the social worker who investigated the incident testified that the nurses had become concerned since respondents argued loudly with each other. Nurse Lisa testified that the only direct care to the baby she observed by respondent-mother was breastfeeding. Nurse Angela testified that she did not witness "a whole lot of interaction between her and the baby." Additionally, another nurse, Nurse Linda, testified that she did not see respondent-mother "holding the baby a lot." The testimony of these nurses clearly provides sufficient evidence to support the trial court's finding. The fact that respondent-mother's midwife testified that respondent-mother was bonding with the child immediately after his birth is not inconsistent with a finding that other hospital staff members were concerned about respondent-mother's lack of bonding with Seth as their time together progressed.

Finally, respondent-mother contests finding of fact number eleven, in which the trial court found that respondent-mother did not consent to testing the child for the purpose of diagnosing whether the incident harmed the child. The challenged finding of fact is supported by the testimony of the social worker, who stated that respondent-mother refused to consent to any scan, even after she was told that the tests were necessary to determine whether Seth sustained an injury as a result of the shaking incident.

IV. Neglect

Both parents argue that the trial court erred by adjudicating Seth as a neglected juvenile. We disagree.

A neglected juvenile is defined 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. Gen. Stat. § 7B-101(15) (2009). Seth's parents contend that the evidence does not support a conclusion that Seth lived in an environment injurious to his welfare or that he received improper care. Seth's mother additionally argues that the trial court erred by concluding Seth was a neglected juvenile after concluding that he was not abused.

Although the statutory definition of neglect "is silent on whether the juvenile, to be neglected, must sustain some injury as a consequence of the failure to provide `proper care, supervision, or discipline [,] . . . this Court has consistently 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 re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (citations omitted). However, "[i]t is well-established that the trial court need not wait for actual harm to occur to the child if there is a substantial risk of harm to the child in the home." In re T.S., III S.M., 178 N.C. App. 110, 113, 631 S.E.2d 19, 22 (2006).

The trial court found as fact that "the father's actions created an environment which was injurious to the child's welfare, and constituted improper care." The trial court's findings also indicate that there was tension in the room between respondents and that respondent-father was arguing with respondent-mother in a loud voice. Most importantly, respondent-father's action in forcefully shaking Seth created a clear risk of permanent injury to the child by respondent-father. The evidence supports the trial court's finding that respondent-father's behavior created a dangerous environment and constituted improper care, and this, in turn, supports an adjudication of neglect with respect to respondent-father.

The trial court's findings of fact were more favorable to respondent-mother, but still ultimately support a conclusion that respondent-mother failed to provide proper care for Seth. The trial court found as fact that respondent-mother did not observe nor participate in the "shaking" incident witnessed by Nurse Lisa and that respondent-mother's midwife indicated that she was bonding with Seth immediately after his birth. However, the trial court also found as fact that respondent-mother failed to consent to any necessary medical tests after respondent-father shook Seth, even when she was informed by the social worker that there was no other way to rule out a possible injury to Seth.

This Court has previously held that failure to seek recommended medical treatment constitutes neglect. See In re Thompson, 64 N.C. App. 95, 100-01, 306 S.E.2d 792, 795 (1983). Respondent-mother's failure to consent to the necessary tests was injurious to the child's welfare and constituted improper care. Thus, the trial court's findings of fact regarding the actions of respondent-mother support a determination that Seth was a neglected juvenile.

V. Conclusion

The trial court's findings of fact were supported by clear and convincing evidence. These findings of fact in turn supported the trial court's conclusion of law that Seth was a neglected juvenile. Therefore, we affirm the trial court's order.

Affirmed.

Judges BRYANT and STEPHENS concur.

Report per Rule 30(e).