Christinе Gleisner (respondent), the mother of the two juveniles in question (Sarah and Isaac), appeals from the 17 May 1999 order of the trial court finding both juveniles neglected. For the reasons set forth herein we remand.
The
The following day, petitioner continued the investigation by sending Robin Grantham to the family’s home. Grantham did not find the family at home, but learned that Sarah had been placed overnight with a neighbor.
Grantham testified that when she confronted respondent with Sarah’s statement about Rush hitting her, respondent told Grantham that Sarah had been hit in the face by the trailer door when it blew open in the wind, and respondent deniеd that Rush had hit Sarah. Grantham also interviewed Rush on this visit. Grantham testified without objection that Rush admitted that he had punched holes in the walls, and that he had once cracked the car windshield with his fist while the children were in the vehicle. Respondent acknowledged at the hearing that Rush once lost his temper in the car and hit the windshield. Grantham testified that she also interviewed several neighbors on this visit who expressed concern that both children were often left alone all day and were allowed to play unsupervised across the street. This hearsay evidence was not оbjected to by respondent. Grantham also testified that she found respondent to be completely uncooperative. Respondent testified that Grantham threatened to have her children taken away if respondent did not cooperate.
Approximately nine mоnths later, on 7 March 1998, Specht investigated a report that Isaac had a cut lip. During this second investigation, Specht went to the home and saw that Isaac did, in fact, have a wound on his upper lip. Respondent told Specht that the wound was a cold sore. A subsequent medical еxamination showed that the wound was a cut that had become infected and not a cold sore. Conflicting evidence was presented as to the cause of the cut on Isaac’s lip. Specht testified without objection that once Isaac and Sarah were plaсed in petitioner’s custody, Isaac told Specht that Rush had hit him five times in the. face as a form of discipline, and that Sarah similarly told Specht that Isaac’s cut lip was a result of Rush hitting Isaac. Respondent testified that she and Rush have never hit either child other than spanking them.
Specht also testified that respondent had a blackened eye at the time of the second investigation. Conflicting evidence was presented regarding the cause of respondent’s blackened eye. Specht testified that respondent told her that she had a blackened eyе because she had been wrestling with Isaac and he had kicked her accidentally. Respondent testified that Rush has never hit her. However, Specht testified without objection that once Isaac was placed in petitioner’s custody, Isaac told Specht that he had not bеen wrestling with his mother and had not kicked her.
On the same day as the second investigation, 7 March 1998, petitioner filed a petition alleging neglect with regard to both juveniles, and alleging abuse with regard to Isaac, pursuant to N.C.G.S. § 7A-517 (1996) (repealed effective 1 July 1999, 1998 N.C. Sess. Laws ch. 202, § 5). Following an adjudicatоry hearing, the trial court concluded that Isaac was not abused, but found that both children were neglected. The court ordered physical placement of Isaac with his maternal great aunt and uncle, with petitioner retaining legal custody, and further ordered physical and legаl custody of Sarah to remain with petitioner for future placement. On appeal, respondent raises three assignments of error.
Respondent first contends the trial court erred in denying her motion to dismiss at the close of petitioner’s evidence. Upon a motion to dismiss, the court must view the evidence in the light most favorable to the petitioner, giving the petitioner the benefit of any inference.
In re Cusson,
Respondent also contends the trial court’s reliance on certain hearsay statements, admitted at the hearing without objection, constitutes plain error. A “plain error” is a fundamental error that is so prejudicial as to result in “a miscarriage of justice or in the denial to appellant of a fair trial.”
State v. Holloway,
Respondent lastly argues that the evidence was insufficient to support the trial court’s conclusion that both Sarah and Isaac are neglected. A proper review of a trial court’s finding of neglect entails a determination of (1) whether thе findings of fact are supported by “clear and convincing evidence,” N.C.G.S. § 7A-635 (1996) (repealed effective 1 July 1999, 1998 N.C. Sess. Laws ch. 202, § 5), and (2) whether the legal conclusions are supported by the findings of fact,
see In re Hughes,
First, the “fаctual findings” in the trial court’s order are not actually factual findings at all. For example, the third factual finding states: “Isaac told Ms. Specht that the mother’s live-in boyfriend, Lonnie Rush, hit him five times in the mouth.” However, the sixth factual finding states: “While [respondent] acknowledged that the March 1998 injuries on Isaac did exist, she did not know of any physical violence which could have produced such an injury.” These findings are simply a recitation of the evidence presented at trial, rather than ultimate findings of fact. In a nonjury trial, it is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony.
See Knutton v. Cofield,
The second reason we are unable to conduct a proper review is that it is unclear from the record on what basis the trial court determined that Sarah is neglected. The trial court’s order states that Isaac was found to be neglected because he lives in an injurious environment, and that Sarah was found to be neglected “based on the incident in March.” In the first place, although these are clearly legal conclusions, they are designated factual findings. More importantly, although the court found Sarah to be neglected “based on the incident in March,” the incident involving Sarah being left at home occurred in June of 1997, while the incident in March of 1998 involved Isaac’s cut lip and did not involve Sarah directly in any way. This vague and apparently inaccurate reference to “the incident in March” as the basis for the court’s determinаtion that Sarah is neglected impedes our ability to determine whether the trial court’s conclusions are supported by the findings.
Furthermore, we have consistently held that where neglect is based on a failure to receive proper care, supervision, or discipline, it must also be established that there is “some physical, mental, or emotional impairment of the juvenile of a substantial risk of such impairment as a consequence of the failure to provide ‘proper care, supervision, or discipline.’ ”
In re Safriet,
Finally, there are small but significant inaccuracies that appear in the findings. For example, the second finding of fact states: “Lonnie Rush advised Ms. Grantham at the time that he had been angry and had placed his hand over Sarah’s mouth, but did not intend to injure her.” In fact, Rush had spoken to Specht about this conduct, not Grantham. This discrepancy is significant because, contrary to Rush’s testimony, Specht testified that Rush “admitted to grabbing [Sarah’s] face and hitting her face.” If the court believed that Rush discussed this incident with Grantham, rather than Specht, the court may well have overlooked Specht’s conflicting testimony on the matter.
For the foregoing reasons, we remand the case to the trial court with instructions to make ultimate findings of fact based on the evidence and to enter clear and specific conclusions of law based on the findings of fact. We further instruct the trial court not to take any additional evidence in the case.
Remanded.