An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1154

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

IN THE MATTER OF:

S.M., J.M. Johnston County

Nos. 12 JA 135-36

Appeal by respondent from orders entered 17 July 2013 by 

Judge Resson Faircloth and 23 September 2013 by Judge Addie 

Harris Rawls in Johnston County District Court. Heard in the 

Court of Appeals 28 April 2014.

Holland & O’Connor, P.L.L.C., by Jennifer S. O’Connor, for 

Johnston County Department of Social Services, petitionerappellee.

Marie H. Mobley for guardian ad litem.

Peter S. Wood for respondent-appellant mother.

HUNTER, Robert C., Judge.

Respondent-mother appeals from orders (1) adjudicating her

minor children J.M. (“Josiah”)1 and S.M. (“Susan”) to be

neglected and dependent juveniles, (2) maintaining the children

 

1Pseudonyms shall be used to protect the juveniles’ privacy and 

for ease of reading.
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in the custody of the Johnston County Department of Social 

Services (“DSS”), and (3) denying her motion for a new trial 

and/or for relief from the adjudication order pursuant to Rules 

59 and 60 of the North Carolina Rules of Civil Procedure. N.C. 

Gen. Stat. §§ 1A-1, Rules 59(a), 60(b) (2013). We affirm.

Procedural History

DSS filed juvenile petitions on 30 August 2012, alleging 

that six-year-old Josiah and four-year-old Susan were neglected 

and dependent. A hearing on the petitions was held in May 2013. 

On 10 July 2013, respondent-mother’s counsel, Brian Knott, moved 

to withdraw. The district court allowed the motion and 

appointed counsel Steven Walker to represent respondent-mother 

on 12 July 2013. 

On 17 July 2013, the court entered adjudications of neglect 

and dependency for both Josiah and Susan. In its accompanying 

disposition order, the court continued the children in DSS 

custody and relieved the department of further efforts toward 

reunification with respondent-mother. 

On 24 July 2013, respondent-mother filed in district court 

a motion styled “Motion for a New Trial (Rule 59); Alternative 

Motion for Relief (Rule 60 & N.C. Gen. Stat. § 7B-1000)[.]” 

Citing newly discovered evidence or, alternatively, ineffective 
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assistance by former counsel Knott, she asked the court to grant 

her a new hearing pursuant to N.C.R. Civ. P. 59(a)(4) and (6), 

or to set aside the adjudication and disposition orders pursuant 

to N.C.R. Civ. P. 60(b)(4) and (6). 

The district court denied respondent’s motion in open court

after a hearing on 14 August 2013. On 15 August 2013, defendant 

filed notice of appeal from the court’s ruling and from the 17 

July 2013 adjudication and disposition orders. The court 

entered its written order denying defendant’s motion for relief 

under Rules 59(a) and 60(b) on 23 September 2013. 

Respondent-Mother’s Appeal

Respondent-mother does not challenge any aspect of the

district court’s adjudication and disposition orders. She

instead contends the “court abused its discretion by denying 

[her] motion for a new adjudication hearing under Rule 60(b) and 

Rule 59.” The basis for her claim is counsel Walker’s 

discovery, in the DSS case file, of a report prepared by 

psychologist Dr. Milton Kraft,2 who evaluated respondent-mother’s 

live-in boyfriend, Mr. W., after Josiah and Susan alleged that 

he had sexually abused them. According to respondent-mother,

Dr. Kraft found it “unlikely” that Mr. W. abused her children, 

 

2The motion hearing transcript spells the surname “Craft.” 
-4-

and found it “possible” that respondent-father or his family had 

coached the children into making false accusations against Mr. 

W. In the event that Dr. Kraft’s report was unavailable to 

counsel Knott at the time of the adjudicatory hearing, 

respondent-mother contends the report represents “newly 

discovered evidence” under Rule 59(a)(4) and Rule 60(b)(2). If 

Dr. Kraft’s report was available, respondent-mother argues that 

counsel’s failure to introduce it at the adjudicatory hearing 

violated her right to effective assistance of counsel, 

justifying relief from the adjudications of neglect and 

dependency under Rules 59(a)(9) and 60(b)(6). 

Standard of Review

We review a trial court’s denial of a Rule 59(a) or Rule 

60(b) motion only for abuse of discretion. In re Will of Buck, 

350 N.C. 621, 625, 516 S.E.2d 858, 861 (1999) (Rule 59(a)); In 

re E.H., __ N.C. App. __, __, 742 S.E.2d 844, 849 (2013) (Rule 

60(b)), disc. review improvidently allowed, __ N.C. __, 754 

S.E.2d 417 (2014). A court abuses its discretion only when its 

ruling is “manifestly unreasonable[.]” Lovendahl v. Wicker, 208 

N.C. App. 193, 205, 702 S.E.2d 529, 537 (2010).

Newly Discovered Evidence

Under N.C.R. Civ. P. 59(a)(4), “[a] new trial may be 
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granted to all or any of the parties and on all or part of the 

issues” based on “[n]ewly discovered evidence material for the 

party making the motion which he could not, with reasonable 

diligence, have discovered and produced at the trial[.]” N.C. 

Gen. Stat. § 1A-1, Rule 59(a)(4). Similarly, Rule 60(b)(2) 

provides that the trial court “may relieve a party . . . from a 

final judgment, order, or proceeding” on the basis of “[n]ewly 

discovered evidence which by due diligence could not have been 

discovered in time to move for a new trial under Rule 59(b).”3 

N.C. Gen. Stat. § 1A-1, Rule 60(b)(2).

Based on respondent-mother’s own allegations, the report 

prepared by Dr. Kraft does not qualify as “newly discovered 

evidence” for purposes of Rules 59(a)(4) or 60(b)(2). “In order 

for evidence to be ‘newly discovered evidence’ under these 

rules, it must have been in existence at the time of the trial, 

and not discoverable through due diligence.” Broadbent v. 

Allison, 176 N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006). In 

respondent-mother’s motion filed 24 July 2013, counsel Walker

reported discovering Dr. Kraft’s report in the DSS case file 

following his appointment as substitute counsel. The motion

 

3Inasmuch as respondent-mother timely served her Rule 59(b) 

motion, the conditions for relief contemplated by Rule 60(b)(2) 

manifestly do not apply.
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further averred that that Mr. W. “was aware of this conclusion 

by Dr. Kraft and . . . had informed respondent-mother of the 

results of his psychological evaluation.” 

Insofar as the report was in existence at the time of the 

May 2013 adjudication hearing, it was plainly obtainable through 

due diligence. A respondent in an abuse, neglect, or dependency 

proceeding may seek discovery from DSS pursuant to N.C. Gen. 

Stat. § 7B-700(a), (c) (2013).4 Given respondent-mother’s avowed 

awareness of the results of Mr. W.’s evaluation, her failure to 

seek this evidence from DSS pursuant to N.C. Gen. Stat. § 7B700, or from Dr. Kraft himself by subpoena or otherwise, can

hardly be characterized as due diligence. See Waldrop v. Young, 

104 N.C. App. 294, 297, 408 S.E.2d 883, 885 (1991).

Accordingly, we conclude that the district court did not abuse 

its discretion in denying relief pursuant to Rules 59(a)(4) and 

60(b)(2). 

Ineffective Assistance of Counsel

Rules 59(a)(9) and 60(b)(6) allow the trial court to grant 

a new trial or relief from a judgment for “[a]ny . . . reason 

heretofore recognized as grounds for new trial[,]” or that 

 

4Indeed, respondent-father’s counsel informed the court that she 

had reviewed the DSS file on multiple occasions but concluded 

that Dr. Kraft’s evaluation “wasn’t of any consequence to me[.]” 
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otherwise “justif[ies] relief from the operation of the 

judgment.” N.C. Gen. Stat. § 1A-1, Rules 59(a)(9), 60(b)(6). 

Despite the rules’ expansive language, we have emphasized that a 

court should wield its authority thereunder “carefully and 

reluctantly” and only where necessary to avoid “‘a palpable 

miscarriage of justice[.]’” Boykin v. Wilson Med. Ctr., 201 

N.C. App. 559, 561, 563, 686 S.E.2d 913, 915, 917 (2009) (Rule 

59(a)(9)); accord Vaglio v. Town and Campus Int., Inc., 71 N.C. 

App. 250, 255, 322 S.E.2d 3, 7 (1984) (“Courts have the power to 

vacate judgments . . ., yet they should not do so under Rule 

60(b)(6) except in extraordinary circumstances and after a 

showing that justice demands it.”). 

Respondent-mother argues that counsel Knotts’ failure to 

introduce Dr. Kraft’s report into evidence at the May 2013 

adjudicatory hearing violated her right to effective assistance 

of counsel. Inasmuch as Dr. Kraft found it “unlikely” Mr. W.

had sexually abused Josiah and Susan, respondent-mother contends 

that his report would have vindicated her disbelief of her

children’s accusations. She points out that the district court 

cited her refusal to believe her children in its findings of 

fact supporting the adjudications of neglect and dependency. 
-8-

Under N.C. Gen. Stat. § 7B-602(a) (2013), a parent has a 

right to counsel in an abuse, neglect, or dependency proceeding. 

“This right to counsel also includes the right to effective 

assistance of counsel.” In re S.C.R., 198 N.C. App. 525, 531, 

679 S.E.2d 905, 909, appeal dismissed, 363 N.C. 654, 686 S.E.2d 

676 (2009). To establish a successful claim that counsel’s 

assistance was ineffective, a parent must “show that counsel’s 

performance was deficient and the deficiency was so serious as 

to deprive the represented party of a fair hearing.” In re 

Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 

(1996). “Judicial review of counsel’s performance must be 

highly deferential so as to avoid the prejudicial effects of 

hindsight.” State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d 

354, 360 (2003). Moreover, “[a] parent must also establish 

[s]he suffered prejudice in order to show that [s]he was denied 

a fair hearing.” In re S.C.R., 198 N.C. App. at 531, 679 S.E.2d 

at 909.

Initially, we note there is no showing that respondentmother ever provided the district court with a copy of Dr. 

Kraft’s report; nor has she included the document in the record 

on appeal. See generally Walker v. Penn Nat’l Sec. Ins. Co., 

168 N.C. App. 555, 560, 608 S.E.2d 107, 110 (2005) (“[W]hen the 
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evidence is not in the record the matter is not reviewable.”)

(citation and internal quotation marks omitted); see also N.C.R. 

App. P. 9(a)(1)(e). The record does not indicate when the 

report was prepared or delivered to DSS. Nor does the record 

reveal the actual contents of the report. We are thus unable to 

assess Dr. Kraft’s actual findings and conclusions or ascertain 

the evidence he relied upon in reaching his conclusions. 

Significantly, there is no allegation that Dr. Kraft ever 

interviewed Josiah or Susan about the alleged sexual abuse, or 

that he spoke with witnesses other than Mr. W.

Moreover, “the purpose of the adjudication hearing is to 

adjudicate ‘the existence or nonexistence of any of the 

conditions alleged in a petition.’” In re A.B., 179 N.C. App. 

605, 609, 635 S.E.2d 11, 15 (2006) (quoting N.C. Gen. Stat. § 

7B-802). Accordingly, we have barred consideration of “postpetition evidence” at the adjudicatory stage of an abuse, 

neglect, or dependency proceeding. Id. In the case sub judice, 

the issue before the court at adjudication was Josiah’s and 

Susan’s status as neglected and dependent juveniles at the time 

DSS filed its petitions on 30 August 2012. Given that DSS did 

not allege sexual abuse by Mr. W. in support of its allegations 

of neglect and dependency, Dr. Kraft’s evaluation of Mr. W.
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subsequent to the petitions’ filing was not obviously germane to 

the proceeding.

Based on respondent-mother’s limited proffer, we cannot 

conclude that her counsel’s failure to adduce Dr. Kraft’s report 

at the adjudicatory hearing amounts to ineffective assistance of 

counsel. DSS did not seek adjudications of abuse or allege that 

Josiah and Susan had been sexually abused. As shown below, the 

adjudications of neglect and dependency were based on several

factors, including respondent-parents’ mutual history of 

domestic violence and violation of domestic violence protective 

orders, Mr. W.’s threatening behavior toward respondent-father 

and the children’s caretaker, Ms. T., and respondent-father’s 

volatility and deteriorating mental health. 

In support of its adjudication, the district court found, 

inter alia, as follows:

7. . . . [T]he parents engaged in multiple 

incidents of domestic violence in the 

presence of the children. . . . 

8. [Respondent-]mother used a wire hanger 

to discipline the juvenile, [Josiah], when 

he was a toddler, which left marks on the 

juvenile that remain to date.

9. In April of 2012, the mother enlisted 

the help of . . . [Mr. W.] to separate from 

[respondent-father]. . . . 

10. In June of 2012, the parties separated. 
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. . . 

11. Thereafter the mother obtained a 

Domestic Violence Protective Order (“DVPO”) 

due to [respondent-father’s] threats, 

including threats of harming her or having 

her deported. As part of the [DVPO], the 

mother was given temporary custody of the 

minor children. . . . 

12. The mother quit her job so that she 

could be with the children. . . . 

13. After approximately four days, 

[respondent-]mother and the minor children 

went to stay at the residence of [Mr. W.] 

and his roommate.

14. While at the home of Mr. [W.], both 

children reported that Mr. [W.] touched them 

inappropriately. Both children disclosed 

that Mr. [W.] put his hand down their pants 

and touched their “privates”. . . . Both 

children further disclosed that while Mr. 

[W.] was touching [Susan], [Josiah] jumped 

on him and Mr. [W.] punched [Josiah] in the 

stomach.

15. The children further observed the 

mother drinking while they were staying at 

Mr. [W.]’s apartment. . . . 

16. On July 19, 2012, [Josiah] telephoned 

his father and told him something bad had 

happened but before he could explain, the 

mother hung up the phone.

17. On July 20, 2012, [the children’s adult 

sister, Ms. T.,] went to pick up the 

children for their . . . visitation with the 

father. Mr. [W.] was at the exchange and 

attempted to prevent the children from going 

on the visit. Once at the father’s 

residence, the children disclosed to the 
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father and their sister the physical and 

sexual assault by Mr. [W.]

18. [Respondent-father] obtained a DVPO 

against the mother and obtained custody of 

the children.

. . . . 

20. After the DVPO was put in place in late 

July, 2012, both parties continued to 

violate the no contact provision. . . . 

. . . .

22. The children went to stay with their 

sister, [Ms. T.] in August of 2012, with the 

father’s consent. . . . 

23. On or about August 10, 2012, 

[respondent-father], while intoxicated, 

contacted the mother and threatened her and 

threatened to kill himself. . . . 

24. Although the mother was advised of the 

children’s disclosure against Mr. [W.], she 

continued to maintain a relationship with 

him, including up to the time of the filing 

of the juvenile petitions. [Respondentmother] was further aware of Mr. [W.]’s 

mental health past that resulted in a 

previous hospitalization. . . . Mr. [W.] 

has further provided the mother financial 

support and assistance with remaining in the 

country.

25. Although the mother believes her 

children are truthful, she refused to 

believe their disclosures against Mr. [W.]

26. [Respondent-father] believed he was 

being followed by Mr. [W.] and that he was 

receiving threatening phone calls from Mr. 

[W.] . . . Both [respondent-father] and 
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[Ms. T.] observed Mr. [W.] in a vehicle out 

front of [respondent-father’s] home and 

observed Mr. [W.] point a gun at them.

27. In mid to late August 2012, the father 

threatened to take the children from Ms. 

[T.] and take them to see their mother in 

Raleigh, North Carolina, in violation of the 

safety assessment entered into by [DSS].

28. On or about August 24, 2012, 

[respondent-father] again threatened to take 

the children from Ms. [T.] After Ms. [T.] 

refused to give the children to [respondentfather], he grabbed Ms. [T.] and threatened 

to kill her.

. . . .

30. [Respondent-father]’s mental health 

became noticeably concerning as the month of 

August progressed. Ms. [T.], his daughter, 

and [DSS] became fearful of his mental 

health status.

. . . .

32. [On August 30, 2012], the father 

purposely overdosed on his medication and 

had to be hospitalized.

33. The children were originally placed in 

the nonsecure custody of [Ms. T.], but had 

to be moved due to threats by Mr. [W.], as 

well as [respondent-father] coming to the 

home in violation of the order. No other 

alternative placement was available for the 

children and they were placed in foster 

care.

Based on these facts, the court determined that Josiah and Susan 

“lived in an environment injurious to their health and welfare 
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and further were at a substantial risk of physical and/or 

emotional impairment if returned to the care of either parent.” 

See N.C. Gen. Stat. § 7B-101(15) (2013) (defining “neglected 

juvenile”). The court further found “that neither parent was 

able to provide proper care and supervision and lacked an 

appropriate alternative care arrangement.” See N.C. Gen. Stat. 

§ 7B-101(9) (2013) (defining “dependent juvenile”). 

Respondent-mother does not challenge any finding of fact or 

conclusion of law in the adjudication and disposition orders 

entered on 17 July 2013. Unchallenged findings of fact are 

binding on this Court. In re S.N., X.Z., 194 N.C. App. 142, 

147, 669 S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C. 368, 

677 S.E.2d 455 (2009). These unchallenged findings fully 

support the conclusion that Josiah and Susan were neglected and 

dependent juveniles, irrespective of the truth of their sexual 

abuse allegations. Moreover, the fact that respondent-mother 

dismissed their allegations and remained with Mr. W. – well 

before his evaluation by Dr. Kraft – was properly considered by 

the court in assessing the extant risks to the children. 

Respondent-mother has not shown she was prejudiced by 

counsel’s failure to introduce Dr. Kraft’s report at the 

adjudicatory hearing. Accordingly, we find no abuse of 
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discretion by the district court in denying her motion for 

relief pursuant to Rule 59(a)(9) and 60(b)(4). See In re L.C., 

181 N.C. App. 278, 283, 638 S.E.2d 638, 641 (2007) (“Because 

respondent has failed to demonstrate the prejudice he suffered, 

he has likewise failed to establish his claim of ineffective 

assistance of counsel.”).

Remaining Issues

To the extent respondent-mother claims “excusable neglect” 

as a basis for relief under N.C.R. Civ. P. 60(b)(1), we find

that she failed to present this issue to the district court and 

may not now “‘swap horses between courts in order to get a 

better mount [on appeal].’” Regions Bank v. Baxley Commercial 

Props., LLC, 206 N.C. App. 293, 298-99, 697 S.E.2d 417, 421 

(2010) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 

3, 5 (1996)); see also N.C.R. App. P. 10(a)(1). 

We likewise reject respondent-mother’s suggestion that the 

order denying her motion lacks sufficient findings of fact and 

conclusions of law and is impermissibly “vague.” Because

respondent-mother did not request the entry of findings and 

conclusions pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(2), 

none were required. Creasman v. Creasman, 152 N.C. App. 119, 

124, 566 S.E.2d 725, 729 (2002) (“A trial court is not required 
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to make written findings of fact when ruling on a Rule 60(b) 

motion, unless requested to do so by a party.”); Edge v. 

Metropolitan Life Ins. Co., 78 N.C. App. 624, 626, 337 S.E.2d 

672, 674 (1985) (same for Rule 59(a)).

Finally, we find no merit to respondent-mother’s argument 

that the district court erred by characterizing her claims under 

Rules 59 and 60 as “more appropriately classified as appellate 

issues” redressable under N.C. Gen. Stat. § 7B-1001 (2013). The 

court also found “no evidentiary or factual basis to grant 

relief pursuant to Rule 59 or 60[.]” “[A] correct decision of a 

lower court will not be disturbed because the reason assigned 

for it is wrong, insufficient, or superfluous. The question on 

review of the decision in this Court is whether the ruling of 

the court below was correct, not whether the reason given for it 

is sound or tenable.” State v. Parker, 316 N.C. 295, 302, 341 

S.E.2d 555, 559 (1986).

Conclusion

Respondent-mother does not contest the adjudication and 

disposition orders entered on 17 July 2013. The district court 

did not abuse its discretion in denying her Rule 59 and 60 

motion. Accordingly, we affirm each of these orders.
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AFFIRMED.

Judges GEER and McCULLOUGH concur.

Recommend Report per Rule 30(e).