No. COA11-1046 TWENTY-FOURTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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In the Matter of: )) From Watauga County

K. A. ) No. 11 J 03)

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APPELLANT-RESPONDENT MOTHER’S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES..............................iv

ISSUES PRESENTED...............................................................2

STATEMENT OF THE CASE..................................................2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....................................................................................2

STATEMENT OF THE FACTS................................................2

STANDARD OF REVIEW........................................................9

ARGUMENT............................................................................10

I. THE TRIAL COURT ERRED IN CONCLUDING THAT KEVIN WAS ABUSED WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS........................10

A. A Parent’s Judgment In Selecting Disciplinary Methods For Her Child Is Presumed To Be Appropriate...................................................10

B. None Of The Devices Used To Discipline Kevin Were Inappropriate............................13

1. A paddle is an appropriate device for disciplining a six year-old boy................14

2. A belt is an appropriate device for disciplining a six year-old boy................17

3. A switch is an appropriate device for disciplining a six year-old boy................18

4. Tape is not a cruel or grossly inappropriate device for behavior modification............18

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5. Standing with the arms held straight out from one’s side is not a cruel or grossly inappropriate behavior modification device......................................................20

C. None of the Devices Used To Discipline Kevin Were Used In An Inappropriate Way.21

1. Kevin did not sustain any serious injuries as a result of any of the discipline at issue in this case...............................................22

2. There is no evidence that any of the pain inflicted on Kevin was for any purpose other than appropriate discipline.............24

3. “Findings” which are actually conclusions of law do not serve to support the trial court’s conclusions..................................25

D. Upholding The Adjudication Of Abuse In This Case Would Be Counter To The Public Policy Of North Carolina..............................25

II. THE TRIAL COURT ERRED IN CONCLUDING THAT KEVIN WAS NEGLECTED WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS........................28

III. THE TRIAL COURT ERRED IN CONCLUDING THAT KEVIN WAS DEPENDENT WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS........................29

IV. THE TRIAL COURT ERRED WHEN IT ADDRESSED THE DISPOSITIONAL ORDER TOWARDS PUNISHMENT FOR KEVIN’S MOTHER RATHER THAN TOWARDS KEVIN’S NEEDS AND BEST INTEREST........31

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A. The Dispositional Order Should Be Set Aside Because The Adjudication On Which It Rests Is Unlawful...................................................31

B. The Dispositional Order Should Be Set Aside Because It Was Improperly Used To Punish Emily............................................................32

CONCLUSION.........................................................................33

CERTIFICATE OF COMPLIANCE WITH RULE 28(j)(2). . .35

CERTIFICATE OF FILING AND SERVICE.........................36

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TABLE OF CASES AND AUTHORITIES CASES

Ark. Dep't of Human Servs. v. Holman, 240 S.W.3d 618 (Ark. Ct. App. 2006)......................................................17

Clark v. Wal-Mart, 360 N.C. 41, 619 S.E.2d 491 (2005)...........9Doe v. Holt, 332 N.C. 90, 418 S.E.2d 511 (1992)....................26Estate of Gainey v. Southern Flooring & Acoustical Co.,

184 N.C. App. 497, 646 S.E.2d 604 (2007)...................25Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145 (1983)...............26Gaspersohn v. Harnett County Bd. of Education, 75 N.C.

App. 23, 330 S.E.2d 489 (1985)..............................passimIn re C.B., 180 N.C. App. 221, 636 S.E.2d 336 (2006).....passimIn re C.B., 361 N.C. 345, 643 S.E.2d 587 (2007).....................29In re Gleisner, 141 N.C. App. 475, 539 S.E.2d 362

(2000)...............................................................................9In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672

(1997).............................................................................10In re J.A.G., 172 N.C. App. 708, 617 S.E.2d 325 (2005)...30, 31In re L.T.R., 181 N.C. App. 376, 639 S.E.2d 122 (2007)..passimIn re Ledbetter, 158 N.C. App. 281, 580 S.E.2d 392

(2003).............................................................................33In re McCabe, 157 N.C. App. 673, 580 S.E.2d 69 (2003).........9In re McCraw Children, 3 N.C. App. 390, 165 S.E.2d 1

(1969).............................................................................32In re Mickle, 84 N.C. App. 559, 353 S.E.2d 232 (1987)..........12In re S.G., 112 Cal. App. 4th 1254 (Cal. App. 5th Dist.

2003)...............................................................................20In re Stumbo, 357 N.C. 279, 582 S.E.2d 255 (2003)................28In re T.B., ___ N.C. App. ___, 692 S.E.2d 182 (2010)............30In re T.H.T., 185 N.C. App. 337, 648 S.E.2d 519 (2007)........10In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003)........25Ingraham v. Wright, 430 U.S. 651, 51 L.Ed. 2d 711

(1977).......................................................................14, 16Lassiter v. Department of Social Servs. of Durham Cty.,

452 U.S. 18, 68 L.Ed. 2d 640 (1981).............................32Mathis v. Berrien County Sch. Dist., 190 Ga. App. 255

(1989).............................................................................17

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McGill v. Town of Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939)..................................................................9, 33

Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997)............10Saylor v. Board of Educ., 118 F.3d 507 (6th Cir. Ky.

1997)...............................................................................16State v. Ausley, 78 N.C. App. 791, 338 S.E.2d 547 (1986)......15State v. Paddock, ___ N.C. App. ___, 696 S.E.2d 529

(2010).......................................................................20, 27State v. Pendergrass, 19 N.C. 365 (1837).........................passimState v. Phillips, 171 N.C. App. 622, 615 S.E.2d 382

(2005).......................................................................15, 26State v. Pittard, 45 N.C. App. 701, 263 S.E.2d 809

(1980).............................................................................11State v. Silvey, 980 S.W.2d 103 (Mo. Ct. App. 1998)..............17State v. Williams, 154 N.C. App. 176, 571 S.E.2d 619

(2002).............................................................................27State v. Williams, 184 N.C. App. 351, 646 S.E.2d 613

(2007).............................................................................27State v. Wilson, 181 N.C. App. 540, 640 S.E.2d 403

(2007).............................................................................27Wise v. Pea Ridge School Dist., 855 F.2d 560 (8th Cir.

Ark. 1988)......................................................................16STATUTES

N.C. Gen. Stat. § 115C-391......................................................26N.C. Gen. Stat. § 7A-27..............................................................2N.C. Gen. Stat. § 7A-517 (repealed)........................................11N.C. Gen. Stat. § 7B-1001..........................................................2N.C. Gen. Stat. § 7B-101...................................................passimN.C. Gen. Stat. § 7B-805............................................................9N.C. Gen. Stat. § 7B-900....................................................31, 32

OTHER AUTHORITI ES

Hebrews 12:7-11 (NIV 1984)...................................................25

No. COA11-1046 TWENTY-FOURTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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In the Matter of: )) From Watauga County

K. A. ) No. 11 J 03)

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APPELLANT-RESPONDENT MOTHER’S BRIEF

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ISSUES PRESENTED

I. DID THE TRIAL COURT ERR IN CONCLUDING THAT KEVIN WAS ABUSED WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS?

II. DID THE TRIAL COURT ERR IN CONCLUDING THAT KEVIN WAS NEGLECTED WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS?

III. DID THE TRIAL COURT ERR IN CONCLUDING THAT KEVIN WAS DEPENDENT WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS?

IV. DID THE TRIAL COURT ERR WHEN IT ADDRESSED THE DISPOSITIONAL ORDER TOWARDS PUNISHMENT FOR KEVIN’S MOTHER RATHER THAN TOWARDS KEVIN’S NEEDS AND BEST INTEREST?

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STATEMENT OF THE CASE

On 26 January 2011, Watauga County Department of Social Services

(“DSS”) filed a petition alleging that the subject juvenile (“Kevin”)1 was abused,

neglected and dependent. (R p 2) The Honorable Theodore W. McIntire, District

Court Judge, Watauga County, adjudicated Kevin abused, neglected and dependent

by an order entered 4 April 2011. (R p 137) A disposition order was entered by

the Honorable William A. Leavell, III, District Court Judge, Watauga County on 2

June 2011. (R p 164)

Mother timely filed written Notice of Appeal from Judge Leavell’s

disposition order and the underlying adjudication order on 7 June 2011.2 (R p 175)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Judge Leavell’s disposition order and the underlying adjudication of abuse,

neglect and dependency are appealable pursuant to N.C. Gen. Stat. § 7A-27 (2009)

and N.C. Gen. Stat. § 7B-1001(a)(3) (2009).

STATEMENT OF THE FACTS

“[Emily, t]he law doesn’t let me punish you as I think you should be

punished . . . ” Judge Leavall stated, then added, “If the Department does allow

1 A pseudonym to protect the identity of the minor child.

2 Mother previously filed written notice of appeal from the adjudication order on 29 April 2011. (R p 173)

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phone calls [with your six year-old son Kevin], no crying while you’re on the

phone. . . . that would not be appropriate.” (T3 p 411) (Judge Leavell’s rendering

of the disposition order in open court.) (Emphasis added.)

Emily was widowed at age nineteen as a result of an automobile accident.

(T p 36, T2 p 282, 295-96) Kevin, her only child, was three months old at the

time. (T p 36, T2 p 282, 295-96) Emily moved to Columbus, Ohio after her

husband’s death. (T2 p 297)

About four years later, in January 2009, Emily met and began corresponding

with Matt, an IT manager who lived in Watauga County. (T2 p 262, 293) While

she and Matt corresponded, she grew tired of crowded urban living and being far

from family. (T2 p 264, 297-98) She returned to her home area in rural

southeastern Ohio, near her mother, twin sister and nieces and nephews, including

a nephew born just a month apart from Kevin. (T2 p 264, 297-98)

Kevin grew into an “outdoorsy” boy, enjoying hikes in the woods, sports,

playing with animals and riding a four-wheeler. (T2 p 218,298,333) He “did not

like standing still whatsoever.” (T2 p 320)

Emily and Matt met in person for the first time in August 2009. (T2 p 265)

They carried on a long-distance relationship for several more months, with Emily

and Kevin visiting Matt in North Carolina on two occasions and Matt visiting

Emily in Ohio several times. (T2 p 264, 298-99) In July 2010, Emily and Kevin

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moved into Matt’s home in Watauga County. (T2 p 264, 266, 299-300) Matt had

four cats. (R p 35, T1 p 46, T2 p 334) Emily and Kevin brought their dog from

Ohio. (T2 p 333)

Kevin began kindergarten in August 2010. (T1 p 29, T2 p 144) He arrived

at school clean and well-dressed. He was polite, but also a very inquisitive

outgoing boy who liked to talk. (T1 p 134,139,145-46) Kevin had some difficulty

adjusting to the structure of kindergarten, frequently interrupting and distracting

the other students with his talking. (T2 p 134)

Kevin’s teacher, Ms. Smith, had a “tag” system for modifying behavior – a

green bee for good behavior, which resulted in a happy note, a yellow bee after a

few warnings for misbehavior, an orange bee after “plenty of” warnings and a red

bee if the misbehavior continued. (T1 p 33, T2 p 137,146,163) The bees were

colored in a planner that was sent home with the child; a note was always sent

home for a red bee and sometimes for an orange bee. (T1 p 35, T2 p 138,142,163)

Kevin got his first orange bee in August. (R p 63, 77) Ms. Smith wrote a

note in his planner to let Emily know. (R p 63, 77, T2 p 165) In response, Emily

put Kevin in time-out and wrote a note apologizing for Kevin’s behavior. (R p 77,

T2 p 164-65) In the note, she admitted to Ms. Smith that it was hard to discipline

Kevin because he was her baby, but asserted “for his well being I will do

anything.” (R p 77) (Emphasis added.)

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Kevin mostly had green bees after his first orange bee, then received a few

yellow bees, then more orange and red bees for excessive talking and interrupting

as the school year went along. (T2 p 150-51, 164) Emily provided consequences

for the different color bees, offering a reward such as toys, movies or a fun activity

for a green bee, and punishment, usually time-out or staying in his room, for other

color bees. (T1 p 37, T2 p 269,304) However, Kevin continued receiving red and

orange bees for talking and interrupting, so Emily asked Ms. Smith, his teacher,

and Ms. Campbell, the teacher assistant, for suggestions regarding in-home

discipline to induce Kevin to behave in school. They offered no concrete

suggestions. (T2 p 155-56)

After Kevin received a red bee in October, Matt suggested Emily put Kevin

in the “T-formation”3 as punishment. (T2 p 287, 305) Emily ultimately settled on

a punishment system of time-out for a yellow bee, the T-formation or spanking for

an orange bee and a spanking on his bottom with a belt for a red bee. (T1 p 37-

38,51, T2 p 120-21,124, 340) Meanwhile, Emily volunteered in Kevin’s

classroom, where she was “engaging and helpful.” (T2 p 152)

On 4 January 2011, Ms. Smith gave Kevin a red bee and wrote in the

planner, “Kevin had great difficulty not talking and following directions. He was

also a distraction to others during class. Please talk with him at home. Thank

you.” (R p 74, T2 p 167) Emily responded, “We had a very long talk. My 3 The T-formation required Kevin to stand holding his arms straight out from his side. (T1 p 37)

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apologies. Hopefully, this won’t happen again. I really don’t know what else to

do. I constantly remind him to listen with his mouth shut.” (R p 74, T2 p 167-68)

On Monday, 17 January 2011, Ms. Roper, an elementary education major at

Appalachian State University, began student teaching in Kevin’s kindergarten

class. (T2 p 133) Kevin got a red bee that day. (R p 75, T2 p 164, 168) Ms.

Smith wrote in his planner, “[Kevin] had a difficult day today. He continuously

talked instead of listened. He also was a big distraction to others.” (R p 75, T2 p

164, 168) Emily responded, “Okay. Thanks for letting me know.” (R p 75, T2 p

168) As punishment, Emily made Kevin stand in the T-formation. (T2 p 305)

Kevin received another red bee on Wednesday, 19 January. (R p 75, T 2 p

168). Ms. Smith wrote “[Kevin] had another very difficult day. Continued to talk

all day. I asked him to stop 3x at nap time, and he kept on talking. He had a very

loud voice.” (R p 75, T2 p 168) Emily wrote back, “As punishment he was to

write his numbers out from 1 to 100 and his letters A to Z. We also had a talk, and

he did this without saying a word. I really hope this phase ends soon. If you have

any suggestions on how to get this quietness through his head, please feel free to

let me know. Thank you, Emily.” (R p 75, T2 p 168) In addition to writing out his

numbers and letters, Emily required Kevin to stand in the T-formation, spanked

him and briefly taped his mouth closed, but she did not tell Ms. Smith about the

additional punishments. (R p 140-FoF # 8d, T1 p 51, T2 p 135)

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School was cancelled on account of bad weather on Friday, 21 January. (T2

p 164) In a casual conversation in the lunch line on Monday, 24 January, Kevin

mentioned to Ms. Roper that he was put in the T-formation, spanked and had tape

put on his mouth over the weekend. (T1 p 60, T2 p 135) That information “just –

kind of came out, and he didn’t really seem shakened up [sic].” (T2 p 136)

(Alteration added by transcriptionist.) Ms. Roper relayed the conversation to Ms.

Smith and Ms. Campbell. (T2 p 147-49)

Ms. Smith had not seen any markings indicating physical striking on that

day or any other, but they agreed that Ms. Campbell should ask Kevin about his

weekend. (T2 p 149,151,154) Kevin repeated his story to Ms. Campbell, adding

that the spanking had started with a paddle, but the paddle broke and he was

spanked instead with a belt. (T2 p 149) Ms. Smith reported Kevin’s story to Ms.

Welch, the school guidance counselor. (T2 p 148, 179) Ms. Welch talked to

Kevin; he added that Matt had slapped him while Emily was in the shower. (T2 p

180) Ms. Welch reported Kevin’s story to DSS. (T2 p 181)

Kevin was interviewed by a DSS social worker on Tuesday, 25 January. (T2

p 216) He indicated to her that Emily and Matt placed a piece of duct tape about

two inches long on his mouth. (T2 p 222) Upon further questioning about the duct

tape, the social worker said that Kevin told her the duct tape “circle[d] his face”

and was put “over his eyes” but never put on his nose. (T2 p 222) The social

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worker also said Kevin told her he got “duct-taped 30 times.” (T2 p 221) The

social worker saw a small mark on Kevin’s arm and Kevin showed her a “switch

mark” on his leg which was “a small, healed scab.” (T2 p 222)

Kevin saw the social worker’s supervisor later on Tuesday. (T2 p 195-96)

The supervisor saw the “scratch” about an inch long, “not very deep,” on Kevin’s

arm, which Kevin said his mom had made. (T2 p 197) Pictures were taken of the

two marks two or three days later. (T2 p 245) At the request of DSS, Kevin was

interviewed later on Tuesday by a forensic expert. (T1 p 70,97) Kevin told her that

he would have to stand in the T-formation and got a spanking and duct tape placed

on his mouth if he received an orange bee at school. (R p 52, T1 p 82-83) When

she asked how he felt about this, he said it made him “mad.” (R p 55)

On Wednesday, 26 January, DSS filed a petition alleging abuse, neglect and

dependency and took custody of Kevin pursuant to a non-secure custody order. (R

p 2,8) Emily entered a case plan on 4 February 2011 and “worked very diligently”

on it before the adjudication hearing. (R p 159, T2 p 210,330)

After a hearing on 15 and 16 March 2011, an order adjudicating Kevin

abused, neglected and dependent was entered on 4 April 2011. (R p 137) The

disposition hearing was held on 18 April 2011 and the disposition order was

entered on 2 June 2011. (R p 164) Emily appeals from disposition order and from

the underlying adjudication order. (R p 175)

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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). The

reviewing court must first determine “whether the findings of fact are supported by

clear and convincing evidence.” In re Gleisner, 141 N.C. App. 475, 480, 539

S.E.2d 362, 365 (2000) (citation and internal quotation marks omitted). If clear

and convincing 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). However, “[f]acts

found under misapprehension of the law will be set aside on the theory that the

evidence should be considered in its true legal light.” McGill v. Town of

Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939) (quoted with approval in

Clark v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)).

If the trial court’s findings are supported by clear and convincing evidence

and were made in their true legal light, the reviewing court then conducts a de novo

review as to “whether the legal conclusions are supported by the findings of

fact[.]” In re T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007); In re

Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158 (citation omitted), aff'd, 354

N.C. 359, 554 S.E.2d 644 (2001). Whether a child is neglected or abused is a legal

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conclusion resulting from the “application of [] legal principles[,]” not a “fact” to

be found. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997).

ARGUMENT

I. THE TRIAL COURT ERRED IN CONCLUDING THAT KEVIN WAS ABUSED WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS.

A. A Parent’s Judgment In Selecting Disciplinary Methods For Her Child Is Presumed To Be Appropriate.

The North Carolina Supreme Court has stated that the disciplinary methods

of a parent, or a teacher standing in loco parentis, must be presumed correct. State

v. Pendergrass, 19 N.C. 365, 367 (1837) (emphasis added); see also Price v.

Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (presumption that natural

parent will act in the best interest of the child). This is because:

One of the most sacred duties of parents, is to train up and qualify their children, for becoming useful and virtuous members of society; this duty cannot be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits; and to enable him to exercise this salutary sway, he is armed with the power to administer moderate correction, when he shall believe it to be just and necessary.

Pendergrass, 19 N.C. at 365-66 (emphasis added)

Mr. Pendergrass, a school teacher, had been convicted of assault and battery

for the whipping of a six or seven year old girl in his school “with a switch, so as to

cause marks upon her body, which disappeared in a few days.” 19 N.C. at 365-66.

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On review, the North Carolina Supreme Court stated that the presumption that a

teacher or parent’s discipline is correct acts a bar to criminal prosecution which

could be overcome only by a showing that (1) the discipline was administered with

malice, not for correcting behavior, or (2) the discipline resulted in a permanent

injury. 19 N.C. at 367-68. Pendergrass found no showing of either and

accordingly reversed the defendant’s criminal conviction for assault and battery.

Id.

Nearly one hundred-fifty years after Pendergrass, this Court reaffirmed the

presumption of correctness of a teacher’s or parent’s discipline. Gaspersohn v.

Harnett County Bd. of Education, 75 N.C. App. 23, 29, 330 S.E.2d 489, 491

(1985). Gaspersohn held that unless overcome by one of the two showings

required by Pendergrass, the presumption acted as a bar to a civil action arising

from a teacher’s discipline of a student. Id.; see also State v. Pittard, 45 N.C. App.

701, 702, 263 S.E.2d 809, 810-11 (1980) (day care worker not entitled to

Pendergrass presumption in assault trial arising from a spanking because she was

not a teacher and did not otherwise stand in loco parentis).

The “permanent injury” prong of the Pendergrass and Gaspersohn bar was

codified by the General Assembly in the Juvenile Code in 1979. 1979 N.C. Sess.

Laws 815 § 1 (codified at N.C. Gen. Stat. § 7A-517(1)(a.) (1979) (a physical injury

which results “in substantial risk of death, disfigurement, impairment of physical

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health, or loss or impairment of function of any bodily organ” may be the basis for

an adjudication of abuse); In re Mickle, 84 N.C. App. 559, 560-61, 353 S.E.2d 232,

233 (1987) (“temporary bruising” cannot support an adjudication of abuse under

G.S. 7A-517(1)a because the word “disfigurement” shows “the General Assembly

obviously intended to limit the application of this statute to injuries permanent in

their effect”).

The permanent injury prong of the bar was subsequently lowered in 1993,

allowing adjudications of abuse for “serious physical injury” which was not

necessarily permanent. 1993 N.C. Sess. Laws 516 § 1 (currently codified at N.C.

Gen. Stat. § 7B-101(1)(a.) (2009)); In re L.T.R., 181 N.C. App. 376, 382, 639

S.E.2d 122, 126 n.2 (2007) (discussing the change in the abuse statute from

“disfigurement” to “serious”). As modified by the 1993 statutory change, the

Pendergrass presumption is still good law -- a parent’s discipline is presumed to

be correct and the presumption can be overcome only if the discipline is

administered in malice rather than for the honest correction of the child or if it

inflicts serious injury. Gaspersohn, 275 N.C. App. at 29, 330 S.E.2d at 491;

compare In re C.B., 180 N.C. App. 221, 223, 636 S.E.2d 336, 338 (2006)

(disciplining a thirteen year-old by spanking him with a belt which results in a

bruise is not abuse under section 7B-101(1) (a.) because the injury was not

serious), aff’d per curiam, 361 N.C. 345, 643 SE 2d 587 (2007), with In re L.T.R.,

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181 N.C. App. 376, 382, 639 S.E.2d 122, 125-26 (2007) (disciplining a three year-

old by striking him with a brush resulting in a six-inch long bruise that caused

discomfort for several days is abuse under section 7B-101(1)(a.) because the injury

was serious).

B. None Of The Devices Used To Discipline Kevin Were Inappropriate.

Against a backdrop of presumed correctness in a parent’s choice of

disciplinary measures, we now consider whether the specific devices used in this

case are cruel or grossly inappropriate. This is a case of first impression, because

Appellant was unable to find even one case specifically applying N.C. Gen. Stat. §

7B-101(1)(c.), wherein a particular procedure or device for behavior modification

by itself was so cruel or grossly inappropriate that its use constituted abuse. The

legal analysis for abuse, rather than focus on the device used, typically turns on the

age and strength of the child and the duration and extent of the child’s injuries.

Compare C.B., 180 N.C. App. at 223, 636 S.E.2d at 338 (disciplining a thirteen

year-old by spanking him with a belt which results in a bruise is not abuse under

section 7B-101(1)) with L.T.R., 181 N.C. App. at 382, 639 S.E.2d at 125-26

(disciplining a three year-old by striking him with a brush which resulted in a six

inch long bruise that caused discomfort for several days is abuse under section 7B-

101(1)(a.); see also Ingraham v. Wright, 430 U.S. 651, 659-60, 51 L.Ed. 2d 711,

723-24 (1977) (disciplining an eighth grade boy by paddling him “more than 20

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licks” which resulted in a “hematoma requiring medical attention” did not violate

student’s constitutional rights). The legal analysis for section 7B-101(1) may be

enhanced by examining criminal cases applying the definition of felony child

abuse. L.T.R. at 382, 639 S.E.2d at 125-26.

1. A paddle is an appropriate device for disciplining a six year-old boy. The only published North Carolina case found by Appellant addressing the

use of a paddle for the purpose of modifying a juvenile’s behavior is Gaspersohn,

75 N.C. App. at 29, 330 S.E.2d at 491. In Gaspersohn, a high school student filed

a civil action for assault and battery after being spanked with a paddle “as

punishment for skipping school[.]” 75 N.C. App. at 25, 330 S.E.2d at 490.

Gaspersohn is silent as to the size and shape of the paddle, but the student was

struck six times resulting in “bruises on her buttocks for approximately three

weeks” and a diagnosis of “post-traumatic stress syndrome[.]” Id.

The case was tried before a jury. Id. at 25, 330 S.E.2d at 491. In instructing

the jury, the trial court relied on Pendergrass stating:

that a teacher may use reasonable force in the exercise of lawful authority to restrain or correct pupils and maintain order. . . . includ[ing] corporal punishment[.] A teacher may therefore legally inflict temporary pain but may not seriously endanger life, limb, health or disfigure the child or cause any other permanent injury. He cannot lawfully beat the child, even moderately, to gratify his own evil passion. The chastisement must be honestly inflicted in punishment for some dereliction which the pupil understands. If the teacher keeps himself within these limits and his lawful jurisdiction, he must decide

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the question of the expediency or necessity of the punishment and its degree.

75 N.C. App. at 29, 330 S.E.2d at 492-93 (internal quotation marks omitted). On

that instruction, the jury found that the teacher had not acted unlawfully and the

trial court dismissed the complaint. Id. at 26, 330 S.E.2d at 491.

After the jury found in the defendant’s favor, the student appealed and

excepted to the jury charge, arguing that the trial court should have instructed the

jury “that in evaluating reasonableness, you may take into consideration . . . the

instrument used . . .” Id. at 28, 330 S.E.2d at 493 (emphasis added) .

This Court rejected that argument, citing Pendergrass to affirm a teacher’s

right to determine the “necessity of the [corporal] punishment and its degree[,]”

including the instrument used, as long as the punishment is without malice for the

honest discipline of the child, and the pain or injury inflicted is only temporary. Id.

at 28, 330 S.E.2d at 493-94. By rejecting the argument that the jury needed to be

instructed to consider the instrument used in order to properly evaluate the

reasonableness of the punishment, Gaspersohn effectively held that a paddle in not

per se an inappropriate instrument for modification of a child’s behavior. See id.;

see also State v. Ausley, 78 N.C. App. 791, 792-93, 338 S.E.2d 547, 548 (1986)

(Phillips, J., concurring) (dismissing State’s appeal from dismissal of child abuse

charge when the record indicated nothing more than “the routine paddling of a

fourth grade schoolboy by the school principal” (emphasis added)). Rather, the

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dispositive facts in a parent or teacher discipline case center on the motive in using

the instrument and the extent of the injury inflicted. Gaspersohn at 28, 330 S.E.2d

at 493-94.

Generally, cases from other jurisdictions have not regarded the paddle as an

inappropriate device for disciplining a child, particularly in the student/teacher

context. In Ingraham v. Wright, the Supreme Court of the United States

effectively sanctioned the use of a paddle as an appropriate device for behavior

modification, holding that a child’s constitutional rights where not violated by a

spanking on the buttocks with “a flat wooden paddle measuring less than two feet

long, three to four inches wide, and about one-half inch thick[.]” 430 U.S. 651,

656, 51 L. Ed. 2d 711, 721 (1977). Similarly, Saylor v. Board of Educ., found no

constitutional violation in the use of a paddle “perhaps two and a half or three

inches wide and fourteen or fifteen inches long[,]” 118 F.3d 507, 511 (6th Cir. Ky.

1997), and Wise v. Pea Ridge School Dist., held that use of a “wooden paddle

[which is] approximately one-half inch thick, three inches wide, and twenty-two

inches long” to discipline a sixth-grade boy is not unreasonable, 855 F.2d 560, 562

(8th Cir. Ark. 1988).

In state courts, Ark. Dep't of Human Servs. v. Holman, held that three swats

with “a paddle approximately two and one-half inches wide and two feet in length”

which resulted in bruising an elementary school student does not constitute abuse.

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240 S.W.3d 618, 620 (Ark. Ct. App. 2006). Similarly, Mathis v. Berrien County

Sch. Dist., held that four swats “with a wooden paddle approximately 24 inches

long, six inches wide, and one inch thick” is not excessive punishment for a fifth

grader. 190 Ga. App. 255, 256 (Ga. Ct. App. 1989). But see State v. Silvey, 980

S.W.2d 103, 108 (Mo. Ct. App. 1998) (“repeatedly str[iking] [second grader] with

a three-foot-long, one-inch-thick board with enough force to cause severe bruises”

is sufficient to sustain conviction for child abuse).

2. A belt is an appropriate device for disciplining a six year-old boy.

“[S]panking [with a belt], standing alone, does not constitute abuse under

section 7B-101(1)” unless it “inflict[s] ‘serious injury.’” C.B., 180 N.C. App. at

224, 636 S.E.2d at 338 (quoting N.C. Gen. Stat. 7B-101(1)(a.). Though the issue

of whether a belt is a “grossly inappropriate device” for behavior modification was

not squarely addressed in C.B., its holding clearly implies that a belt in not per se

inappropriate for the discipline of a child. Id.

The father in C.B. spanked his thirteen year-old boy “fairly regularly” with a

belt which left bruises on the child and rendered him “very fearful of going home.”

Id. at 223, 636 S.E.2d at 338. However, this Court reversed the trial court’s

adjudication of abuse because “the Father’s punishment of [his son] in the form of

a spanking or whipping that resulted in a bruise did not constitute abuse, as it did

not inflict ‘serious injury.’” 180 N.C. App. at 224, 636 S.E.2d at 338 (quoting

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N.C. Gen. Stat. § 7B-101(1)(a)). In so holding, this Court impliedly held that a

belt is not per se a grossly inappropriate device for behavior modification. Id.

3. A switch is an appropriate device for disciplining a six year-old boy. Pendergrass itself stands for the proposition that a “switch,” in and of itself,

is not a grossly inappropriate device for behavior modification. 19 N.C. at 365. In

Pendergrass, the defendant teacher whipped a six or seven year old girl with a

switch, “so as to cause marks upon her body, which disappeared in a few days.”

Id. Like the paddle in Gaspersohn and the belt in C.B., Pendergrass did not find

the switch to be an inappropriate device for behavior modification in and of itself,

rather, use of the switch would have been inappropriate only if its use had been

motivated by malice rather than for honest discipline, or if it had inflicted

permanent injury. Id. at 366-67.

4. Tape is not a cruel or grossly inappropriate device for behavior modification.

Appellant found no cases, in this jurisdiction or in any other, where merely

attaching a short piece of duct tape to a child has ever been held to be a cruel or

grossly inappropriate device for behavior modification. This Court should not now

hold that it is. Rather, this Court should rely on the implicit reasoning of C.B.,

Pendergrass and Gaspersohn discussed supra and analyze the extent of the child’s

injuries which could be inflicted by the attachment of duct tape. See discussion

Part I.B.1-3 supra.

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In this case, there was no evidence in the record sub judice of any marking,

let alone bruising, from attaching the tape, any evidence that the tape was used to

impede Kevin’s breathing, nor any evidence of pain inflicted either while the tape

was attached or while it was being pulled off. To the contrary, Kevin testified that

the duct tape was used only one time, on his mouth. (T1 p 53) The tape was not

applied to his nose so as to not impede his breathing and the tape was carefully

removed from his mouth to avoid pain. (T1 p 54-56) The tape was never applied

to his hair or anywhere else on his body. (T1 p 56, 237-38) Since the evidence

shows that duct tape could be, and was, used in a manner that does not inflict any

injury at all, only minor temporary discomfort, this Court should hold that duct

tape is not per se a grossly inappropriate device for behavior modification. C.B.,

180 N.C. App. at 224, 636 S.E.2d at 338.

Further, this case is easily distinguishable from cases where the use of duct

tape was part of an act of child abuse. For example, in State v. Paddock, an felony

child abuse conviction was affirmed when a child was disciplined by placing duct

tape over a child's mouth and nose resulting in suffocation, and the child was hit

with a “PVC pipe every day” and required daily “to sit at an assigned place on the

floor with [his] knees touching a wall for hours at a time” and forced “to ingest

vomit and fecal matter” and confined “to bed for at least four days without food.”

___ N.C. App. ___, ___, 696 S.E.2d 529, 533 (2010). The abuse in Paddock

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involved far more than mere duct tape as a behavior modification and is easily

distinguishable on its facts. Id.; accord In re S.G., 112 Cal. App. 4th 1254, 1256

(Cal. App. 5th Dist. 2003) (affirming cease reunification order when five year-old

child was punished by “having duct tape placed on her mouth” and had “socks put

in her mouth” to keep her quiet and “was made to stand on a bucket while she held

another bucket for hours at a time and had hot sauce put in her mouth” and was

“struck repeatedly . . . with both a belt and an electrical cord taped into a looped

instrument” resulting in “multiple bruises on her thighs, legs, ankles, buttocks,

back, arms, chin, forehead, and abdomen”).

5. Standing with the arms held straight out from one’s side is not a cruel or grossly inappropriate behavior modification device.

Appellant found no cases, in this jurisdiction or in any other, where merely

having a child stand with his arms out (“T-formation”) has ever been held to be a

cruel or grossly inappropriate device for behavior modification. This Court should

not now hold that it is. Rather, this Court should rely on the implicit reasoning of

C.B., Pendergrass and Gaspersohn and analyze the extent of injury which could be

inflicted by holding one’s arm straight out from one’s side. See discussion Part

I.B.1-3 supra.

In this case, there was no evidence the amount of pain felt while Kevin was

in the T-formation other than Emily speculating in response to petitioner’s cross-

examination that after some unspecified amount of time, holding one’s arms out

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could become “very painful.” (T2 p 341) The sworn testimony in the record was

that Kevin was never required to hold his arms out for more than five minutes and

there was no testimony as to how much pain such duration might cause. (T2 p

306, 335) Since the evidence contains no evidence that the “T-formation” inflicts

any injury greater than minor temporary discomfort, this Court should hold that the

T-formation is not per se a grossly inappropriate device for behavior modification.

C.B., 180 N.C. App. at 224, 636 S.E.2d at 338.

C. None of the Devices Used To Discipline Kevin Were Used In An Inappropriate Way.

Reading Gaspersohn, Pendergrass, C.B. and L.T.R. and section 7B-101(a)

(1) together, a disciplinary procedure is “cruel or grossly inappropriate” only if it

(1) causes serious injury or (2) is meant to gratify [the parent’s] evil passion rather

than “honestly inflict[ing] punishment for some dereliction which the [child]

understands.” 75 N.C. App. at 29, 330 S.E.2d at 492-93; see also discussion Part

I.A. supra. Neither of those elements is present in this case, therefore the

adjudication of abuse should be reversed. C.B., 180 N.C. App. at 224, 636 S.E.2d

at 338; Gaspersohn, 275 N.C. App. at 29, 330 S.E.2d at 491.

1. Kevin did not sustain any serious injuries as a result of any of the discipline at issue in this case.

The sum total of injuries found by the trial court to have been sustained by

Kevin as a result of the discipline sub judice was “scratch marks” on Kevin’s arms

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and legs, a flushed face, unspecified “injuries to his arm and leg” which “remained

for several days after they were inflicted[,]” and “[r]espondent mother admit[ted]

that it would be very painful to stand with one’s arms in a ‘T-Shape’ formation for

up to five minutes.” (R p 139-FoF # 8d) The last of those findings was not

supported by clear and convincing evidence because there was no evidence the

amount of pain felt while Kevin was in the T-formation other than Emily

speculating in response to petitioner’s cross-examination, that after some

unspecified amount of time, holding one’s arms out could become “very painful.”

(T2 p 341)

Even if the challenged portion of the finding is determined to be supported

by clear and convincing evidence, the sum total of the trial court’s findings is

insufficient to support an adjudication of abuse. The trivial “injuries” in this case

fall well short of the injuries sustained by the child in C.B., where this Court

reversed an adjudication of abuse despite uncontested findings that “fairly

regular[]” spankings left bruises on the child and rendered him “very fearful of

going home.” 180 N.C. App. at 223, 636 S.E.2d at 338,.

Finally, this case is distinguishable from In re L.T.R., 181 N.C. App. 376,

639 S.E.2d 122 (2007). In L.T.R., the respondent stepfather hit a three year old

child with a brush, leaving a six-inch long bruise. Id. at 379, 639 S.E.2d at 124,.

A medical expert who testified at trial “likened the amount of force necessary to

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cause such a bruise to ‘someone [falling] from a pretty considerable height with

great velocity . . . like an eight foot fall onto an edge[.]’” Id. at 380, 639 S.E.2d at

124 (quoting from the evidence at trial; brackets and ellipses added by L.T.R.).

The bruise sustained from the brush was visible and caused the child discomfort

“several days” after the hit. Id. at 382, 639 S.E.2d at 126,. This Court held that the

injury was serious and affirmed an adjudication of abuse, weighing the age of the

two year-old child against the amount of force used and the injuries sustained. Id.

at 383, 639 S.E.2d at 126.

This case is analogous to C.B. and easily distinguishable from L.T.R. In

C.B. the child was thirteen as compared to the three year-old in L.T.R.; Kevin is a

six year-old who loves the outdoors, plays sports and rides a four-wheeler and

presumably bounces up from bumps and falls with little difficulty. Kevin was not

bruised like the children in C.B. and L.T.R; he sustained only two light scratch

marks on his limbs with no evidence of bruising. The spankings in C.B. hurt the

child so bad he was “very fearful of going home,” 180 N.C. App. at 223, 636

S.E.2d at 338; but Kevin was not scared of him mother, felt safe with her and

wanted to go back home. (T1 p 58-59, T2 p 210,240, R p 140-FoF # 8e) The

foregoing show that this case is analogous to C.B. and easily distinguishable from

L.T.R. in terms of the nature of the injuries sustained, therefore the adjudication of

abuse sub judice should be reversed.

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2. There is no evidence that any of the pain inflicted on Kevin was for any purpose other than appropriate discipline.

The only findings made by trial court related to purpose of the discipline

were that (1) “Mr. Stovall suggested the “T-Shape” method of discipline to

Respondent Mother to deal with complaints of the minor child’s talkativeness at

school[,]” and (2) “[t]he respondent mother, had, on Wednesday, January 19, 2011,

forced the child in the ‘T-formation’ at the same time placing duct tape over the

child’s mouth, and whipping the minor child with a belt” after he received a “red

bee” for misbehaving at school. (R p 139-40 – FoF# 8c,8d)

There was no evidence of malice or animus toward Kevin in the record. The

trial court’s findings, plus abundant evidence in the record, show that Kevin’s

recent discipline was in an effort to get him to stop talking and disrupting his

kindergarten class at school. (R p 46, 74, T1 p 51, T2 p 120-21,149, 290-92, 305-

11, 337-38) The trial court also found that Emily spanked Kevin with a belt as a

four year-old, but the uncontroverted evidence at trial showed that one of those

spankings was given when Kevin disobeyed an order to not go into the home of a

man that Emily did not trust, and the other was when Kevin looked under his

cousin’s dress. (R p 139-FoF # 8.d, T2 p 310-11) Those are all proper reasons for

disciplining a child, and Emily should be commended, not condemned, for her

efforts at training up her son.

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3. “Findings” which are actually conclusions of law do not serve to support the trial court’s conclusions.

The trial “found” in two findings numbered 8.d. that the punishments Kevin

received were “cruel and grossly inappropriate.” These findings are actually

conclusions of law and do not support the trial court’s ultimate conclusion that

Kevin was an abused child. In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134

(2003); Estate of Gainey v. Southern Flooring & Acoustical Co., 184 N.C. App.

497, 503, 646 S.E.2d 604, 608 (2007) (a legal conclusion mislabeled as a finding

of fact is reviewed according to its substance not its label).

D. Upholding The Adjudication Of Abuse In This Case Would Be Counter To The Public Policy Of North Carolina.

It is axiomatic, and known from ancient times, that parental discipline is

necessary for a child’s ultimate well-being and that discipline involves some

measure of pain:

For what son is not disciplined by his father? . . . [W]e have all had human fathers who disciplined us and we respected them for it. . . . No discipline seems pleasant at the time, but painful. Later on, however, it produces a harvest of righteousness and peace for those who have been trained by it.

Hebrews 12:7-11 (NIV 1984). Pendergrass recognized this principle as well:

One of the most sacred duties of parents, is to train up and qualify their children, for becoming useful and virtuous members of society; this duty cannot be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits; and to enable him to exercise this salutary sway, he is armed

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with the power to administer moderate correction, when he shall believe it to be just and necessary.

Pendergrass, 19 N.C. at 365-66 (emphasis added).

To affirm the adjudication of abuse in this case would essentially outlaw

reasonable, well-intentioned corporal punishment in North Carolina, a result surely

not intended by the General Assembly and the People of this State. C.B., 180

N.C. App. at 223, 636 S.E.2d at 338,; accord N.C. Gen. Stat. § 115C-391 (2009)

(“a teacher, substitute teacher, principal, or assistant principal may administer

corporal punishment” in a school setting under certain conditions); Doe v. Holt,

332 N.C. 90, 95, 418 S.E.2d 511, 513 (1992) (“There are certain areas of activities

within the family sphere involving parental discipline, care, and control that should

and must remain free from judicial intrusion. Parents should be free to determine

how the physical, moral, emotional, and intellectual growth of their children can

best be promoted.” (quoting Foldi v. Jeffries, 93 N.J. 533, 545, 461 A.2d 1145,

1152 (1983)) (applying the parent-child tort immunity doctrine) (emphasis added).

This case is easily distinguishable from true child abuse, such as that on

display in State v. Phillips, 171 N.C. App. 622, 615 S.E.2d 382 (2005). In Phillips,

the defendant’s conviction for felony child abuse was affirmed when he disciplined

a three year-old by spanking him with a belt hard enough to leave bruises on his

back and by leaving him in a tub of cold water long enough to develop severe

hypothermia and by burning him with a cigarette. Phillips at 626, 615 S.E.2d at

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385. Similarly, in State v. Williams, this Court affirmed felony child abuse

conviction when the father struck his eight year-old daughter on her bare “buttocks

with a board that was eighteen or twenty inches by four or five inches” resulting in

blisters, bleeding, swelling, a large bruise, a wound that was “open and oozing” the

following week and a hematoma which required two to three weeks to heal. 154

N.C. App. 176, 179-80; 571 S.E.2d 619, 621-22 (2002). Another case where this

Court affirmed a child abuse conviction was State v. Wilson, where a 23 month-

old child had been scalded and burned with a cigarette on her back, buttocks, chin

and nipples. 181 N.C. App. 540, 640 S.E.2d 403 (2007). A final case, State v.

Williams, affirmed child abuse conviction when a nine year-old boy was beaten

“four different times with a belt for a total time between forty minutes and an hour

and forty minutes” resulting in bleeding, shortness of breath (due to asthma), and

vomiting. 184 N.C. App. 351, 356, 646 S.E.2d 613, 616 (2007). Further “both of

[the child’s] arms were almost entirely covered with bruises, his legs were swollen

and puffy, his buttocks were black and blue; and [the child] was in pain for two

weeks. Id. In light of Paddock, discussed in Part I.A. supra, Phillips, Wilson

Williams and Williams, to conclude that the punishments inflicted on Kevin sub

judice were “cruel” “strains reason and credulity[.]” L.T.R. at 383, 639 S.E.2d at

126.

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The statute’s use of the words “cruel” and “grossly” inappropriate shows

that the legislature intended the scope of section 7B-101(1) to apply to serious

cases only and did not intend that every disciplinary incident that results in minor

temporary pain result in an adjudication of abuse. N.C. Gen. Stat. § 7B-101(1).

To find abuse on the facts of this case “would subject every misstep by a care giver

to the full impact of subchapter I of chapter 7B of the North Carolina General

Statutes[.]” In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003). Such a

result would not be in line with the public policy of this State as set forth by the

General Assembly. Accordingly, the adjudication of abuse should be reversed.

II. THE TRIAL COURT ERRED IN CONCLUDING THAT KEVIN WAS NEGLECTED WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS.

In C.B., the child who was spanked with the belt was adjudicated neglected

on the grounds of inappropriate discipline and injurious environment solely based

on findings regarding the spankings. 180 N.C. App. at 225, 636 S.E.2d at 339,.

As discussed in Part I supra, this Court set aside the adjudication of abuse on the

grounds that the spanking did not cause serious injury. 180 N.C. App. at 224, 636

S.E.2d at 338. C.B. also held that because the abuse adjudication had been set

aside, neglect grounds based solely on the spankings must also be reversed. 180

N.C. App. at 225, 636 S.E.2d at 339. Judge Hudson concurred in the Court’s

reversal of abuse grounds, but dissented as to neglect, concluding that the spanking

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created an injurious environment. 180 N.C. App. at 225-26, 636 S.E.2d at 339

(Hudson, J., dissenting). However, the North Carolina Supreme Court disagreed

with Judge Hudson and affirmed per curiam. In re C.B., 361 N.C. 345, 643

S.E.2d 587 (2007). Because this case is factually indistinguishable from C.B., this

Court should follow C.B. and reverse the adjudication of neglect as to Kevin. 180

N.C. App. at 225, 636 S.E.2d at 339.

III. THE TRIAL COURT ERRED IN CONCLUDING THAT KEVIN WAS DEPENDENT WHEN ITS FINDINGS WERE NOT SUFFICIENT TO SUPPORT ITS CONCLUSIONS.

The trial court adjudicated Kevin as dependent on the basis that Emily was

“unable to provide for the care or supervision of [Kevin] and lack[ed] an

appropriate alternative child care arrangement.” However, the adjudication of

dependency must be set aside because there are no findings in the order that Emily

is unable to provide for Kevin’s care or supervision.

All of the findings in the regarding Kevin’s care and supervision are based

on the discipline discussed in Part I supra. Indeed all the evidence in the record

indicated that Emily was quite capable of providing care and supervision for

Kevin: The home Emily kept was clean and safe and gave the social worker no

concerns as to whether it was appropriate for a child. (T2 p 236-37) Emily was

active in Kevin’s education, engaging and helpful as a volunteer at his school,

participating in school events and responding to the teacher’s concerns about his

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behavior. (T2 p 145,152,160,318, R p 63-77) There was no evidence of mental

health issues or substance abuse. (T2 p 247) Between’s Kevin’s removal and the

adjudication hearing, Emily was “extremely proactive in doing what [was]

necessary to regain custody” of Kevin. (R p 94)

Kevin arrived at school each day clean and well-dressed. He was polite.

(T2 p 134,139,145-46) He was “very happy, very inquisitive, very animated, very

truthful and honest, and fun to be around, fun-loving” before he was removed from

Emily’s home, all marks of a child who is ably cared for. (T2 p 160)

This case is analogous to In re J.A.G., where this Court set aside an

adjudication of dependency where the child “had a parent capable of providing

care and supervision.” 172 N.C. App. 708, 716, 617 S.E.2d 325, 332 (2005). On

the other hand the facts of this case are easily distinguishable from In re T.B.,

where this Court affirmed an adjudication of dependency when:

the factual findings . . . demonstrate[d] that Respondent-Mother had significant mental health issues, the children have special needs, and that neither Respondent-Mother nor [her significant other] have demonstrated the ability to meet the children’s special needs or to otherwise care for them in such a way as to produce successful outcome.

___ N.C. App. ___, ___, 692 S.E.2d 182, 188 (2010).

All the evidence in this case showed that Kevin was a normal six year-old

boy and that Emily was quite capable of caring for him. The adjudication of

dependency should be reversed.

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IV. THE TRIAL COURT ERRED WHEN IT ADDRESSED THE DISPOSITIONAL ORDER TOWARDS PUNISHMENT FOR KEVIN’S MOTHER RATHER THAN TOWARDS KEVIN’S NEEDS AND BEST INTEREST.

A. The Dispositional Order Should Be Set Aside Because The Adjudication On Which It Rests Is Unlawful.

When there is no legal basis for adjudicating a child as abused, neglected or

dependent, the trial court must dismiss the petition and return the child to his

parents. N.C. Gen. Stat. § 7B-807 (2009). The trial court has no authority to

proceed to disposition absent a proper adjudication of abuse, neglect or

dependency. Id.; N.C. Gen. Stat. § 7B-900; see also In re J.A.G., 172 N.C. App.

708, 717, 617 S.E.2d 325, 332 (2005) (trial court has no grounds to place custody

of child with DSS in dispositional order when the adjudication of neglect and

dependency is reversed). Reversal of the adjudications of abuse, neglect and

dependency, as argued in Parts I-III supra requires vacating the dispositional order

and returning Kevin to his mother.

B. The Dispositional Order Should Be Set Aside Because It Was Improperly Used To Punish Emily.

“The purpose of dispositions in juvenile actions is to design an appropriate

plan to meet the needs of the juvenile[,]” according to the juvenile’s best interest.

N.C. Gen. Stat. § 7B-900. Dispositions are not for the purpose of punishing the

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parent. Id.; see also In re McCraw Children, 3 N.C. App. 390, 395, 165 S.E.2d 1,

4-5 (1969) (“[I]n a custody proceeding it is not the function of the courts to punish

or reward a parent by withholding or awarding custody of minor children; the

function of the court in such a proceeding is to diligently seek to act for the best

interests and welfare of the minor child.”); accord Lassiter v. Department of Social

Servs. of Durham Cty., 452 U.S. 18, 34, 68 L.Ed. 2d 640, 654 (1981) (Burger, C.J

concurring) (purpose of juvenile proceedings is protection of the child not

punishment of the parent).

Even if this Court concludes that the trial court’s findings supported its

conclusions regarding the adjudications of abuse, neglect and dependency, the

dispositional order still should be set aside and the case remanded because the trial

court was considering the evidence under a misapprehension of the relevant law.

The law required the dispositional plan to be based on Kevin’s needs and be in his

best interest. N.C. Gen. Stat. § 7B-900. However, the trial court sub judice

rendered its disposition plan as a means to punish Emily, stating to her on the

record in open court at the dispositional hearing, “The law doesn’t let me punish

you as I think you should be punished . . . ” (T3 p 411) (Emphasis added.)

When a trial court fashions a dispositional plan as a punishment, that court is

manifestly not properly considering the best interest of the child. Relying on

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similar reasoning in In re Ledbetter, this Court reversed and remanded a custody

order because:

The [trial] court found as fact and concluded as a matter of law that it was in the child’s best interests to be placed in the custody of his father, but there [were] no supporting findings of fact except that respondent was in noncompliance with court orders while the father was in compliance with the prior orders.

158 N.C. App. 281, 286, 580 S.E.2d 392, 395 (2003).

Because the trial court was considering the evidence before it at the

dispositional hearing with a view to punish Emily rather than a view towards the

best interest of Kevin, its findings and conclusion as to disposition must “be set

aside on the theory that the evidence should be considered in its true legal light.”

McGill, 215 N.C. at 754, 3 S.E.2d at 326.

CONCLUSION

The trial court erred when it adjudicated Kevin as abused, neglected and

dependent. Therefore, the adjudication order should be reversed and legal and

physical custody be returned to Emily. If this Court concludes that the

adjudication was proper, it should remand for a new dispositional hearing which

seeks to fashion an order in Kevin’s best interest, rather than an order that seeks to

punish Emily.

Respectfully submitted, this 23rd day of September, 2011.

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__________________________J. Lee Gilliam, Esq.N.C. Bar No. 35301Attorney for Respondent MotherAssistant Appellate Defender123 W. Main Street, Suite 308Durham, NC 27701(919) 354-7230Joseph.L.Gilliam@nccourts.org

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CERTIFICATE OF COMPLIANCE WITH RULE 28(j)(2)

I hereby certify that Respondent-Appellant’s Brief is in compliance with Rule 28(j)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in fourteen point Times New Roman font and the body of the brief, including footnotes and citations, but excluding covers, indexes, tables of authorities, certificates of service, certificates of compliance with this rule, contains no more than 8,750 words as indicated by Microsoft Word, the program used to prepare the brief.

This the 23rd day of September, 2011.

J. Lee GilliamAssistant Appellate Defender

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CERTIFICATE OF FILING AND SERVICE

I do hereby certify that I have filed and served this brief by mailing a copy to the parties or their counsel via United States Mail, postage pre-paid, addressed as follows, this 23rd day of September, 2011:

John H. Connell, ClerkNorth Carolina Court of AppealsP.O. Box 2779Raleigh, NC 27602

Kimberly Eggers, Esq.P.O. Box 248Boone, NC 28607

Pamela Newell, Esq.P.O. Box 2448Raleigh, NC 27602

____________________________J. Lee GilliamAttorney For Respondent-Mother