Opinion
No. COA09-137.
Filed June 16, 2009.
Chatham County No. 06 J 16.
Appeal by respondent-mother from order entered 4 December 2008 by Judge M. Patricia Devine in Chatham County District Court. Heard in the Court of Appeals 25 May 2009.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee Chatham County Department of Social Services. Mercedes O. Chut, for respondent-appellant mother. Pamela Newell Williams for Guardian ad Litem.
Respondent Stephanie P. (Respondent Mother) appeals from an order adjudicating A.B.E. a neglected juvenile. After careful consideration of Respondent Mother's contentions on appeal, we affirm the trial court's order.
For the protection of the juvenile's identity and ease of reading, we will refer to A.B.E. as Andrew throughout the remainder of this opinion .
On 20 March 2007, the Chatham County Department of Social Services (CCDSS) filed a petition alleging that Andrew was a neglected juvenile in that he did not "receive proper care, supervision, or discipline from [his] parent, guardian, custodian, or caretaker" and that he "live[d] in an environment injurious to[his] welfare." CCDSS alleged that Andrew's parents had "a long history of domestic violence and drug use" and that his two siblings had been removed from the home following a drug raid that occurred prior to Andrew's birth. CCDSS filed the 20 March 2007 petition "as a result of the Respondent[s] having been recently charged with possession of marijuana and prescription drugs." CCDSS claimed that, "[g]iven the Respondent[s'] continuing use and/or sale of illegal drugs, and their obvious lack of progress, the juvenile is at risk in their custody." A nonsecure custody order issued contemporaneously with the petition authorized the CCDSS to take Andrew into its custody.
An earlier petition alleging that Andrew was a neglected juvenile had been filed by CCDSS on 23 March 2006. However, the CCDSS "decided to return the juvenile to the home and not pursue any action on the Petition" based on the fact that "both parents were seeing therapists who strongly favored a return of the child to the home," that "services were being provided in the home," and that, "[w]ith people in and out of the home and both parents seeing therapists, many service providers would be able to observe the family and the child and could verify the child's safety ." After the termination of proceedings stemming from the 23 March 2006 petition, the CCDSS received another neglect referral in the aftermath of an incident in which "Respondent [M]other and Respondent [Adam E. (Respondent Father)] had a physical altercation and a report of domestic violence was made to law enforcement officials." Although Andrew was "in the home" at the time of this altercation, "CCDSS decided to leave the child placed with the parents, in large part because Respondent [F]ather agreed to leave the home, live elsewhere, and therefore alleviate the concern of future domestic violence."
On 29 February 2008, the trial court entered an order adjudicating Andrew to be a neglected child and ordering that he be placed in DSS custody with supervised visitation. Both Respondents appealed. On appeal, this Court vacated and remanded the adjudication order on the grounds that, while "the trial court made sufficient findings of fact relating to whether Andrew met the statutory definition of a neglected juvenile," it "failed to make any finding that respondents' neglect had resulted in any impairment or substantial risk of impairment to Andrew." In re A.E., ___ N.C. App. ___, 667 S.E.2d 340 (2008) (Oct. 21, 2008) (No. 08-556) (unpublished) In addition, this Court concluded that several of the trial court's findings of fact lacked adequate evidentiary support. Id. Accordingly, we vacated and remanded this matter to the trial court
for its determination whether Andrew was impaired or at substantial risk of impairment as a result of respondents' neglect as of the time the petition was filed. In considering this issue, the trial court is limited to those findings of fact we have held to be supported by competent evidence and any additional findings of fact it may make. We leave to the discretion of the trial court whether to accept further evidence on remand.
Id.
On remand, the trial court decided not to receive any additional evidence and simply entered an amended adjudicatory order. The trial court found that Andrew "was impaired and at a substantial risk of impairment "due to Respondents' neglect. Accordingly, the trial court adjudicated Andrew a neglected juvenile and continued placement and custody with the CCDSS. Respondent Mother noted an appeal to this Court from the trial court's adjudication order on remand. On appeal from the adjudication order on remand, Respondent Mother has focused her challenge upon Finding of Fact No. 33. Respondent Mother contends that Finding of Fact No. 33, which found that Andrew "was impaired and at a substantial risk of impairment" due to neglect by Respondents, lacked an adequate basis in law or fact, so that the trial court's "impairment" finding lacked adequate evidentiary support. Respondent Mother further contends that, given the inadequacy of the trial court's "impairment" finding, its conclusion that Andrew is a neglected juvenile and its ordering clauses flowing from that determination are also defective. After careful review of the record, briefs and contentions of the parties, we affirm the adjudication order on remand.
Unlike the Respondent Mother, Respondent Father has not sought appellate review of the adjudication order on remand.
Appellate review in a case arising from a trial court's adjudication of abuse or neglect is limited to "(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 T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). To the extent that particular findings of fact are not challenged on appeal, they are binding on a reviewing court. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
As an initial matter, we note that, at the time of Respondent-Mother's prior appeal, this Court found that several of the trial court's findings of fact lacked sufficient evidentiary support and could not be considered by the trial court during the proceedings upon remand. In re A.E., ___ N.C. App. ___, 667 S.E.2d 340. However, we also concluded that the remaining findings of fact were supported by competent evidence. Id. In the amended adjudication order that it entered on remand, the trial court deleted those findings or portions of findings that this Court found to lack adequate evidentiary support. Except for Finding of Fact No. 33, the trial court made no new findings of fact in the adjudication order entered on remand. Respondent Mother has not challenged the sufficiency of the evidentiary support for any of the findings of fact contained in the trial court's adjudication order on remand except for Finding of Fact No. 33. As a result, except for Finding of Fact No. 33, the trial court's findings of fact are binding on this Court for purposes of appellate review.
In Finding of Fact No. 33, the trial court found that:
The above-named juvenile, [Andrew], was impaired and at a substantial risk of impairment as a result of Respondent's neglect at the time the petition was filed. In support of this finding, this court references the thirty (30) findings of fact above and also relies upon the evidence presented that indicates that both Respondent Parents suffer from mental illness and/or substance abuse that has not been adequately addressed. Such mental illnesses and/or substance abuse existed at the time the petitions were filed. The Court also relies upon the evidence of repetition of domestic violence incidents and drug activities that have recurred over the past seven (7) plus years that this Court has been involved with this family, despite some attendance by the Respondent Parents to mental health and/or substance abuse treatment. The fact that Respondent Parents were arrested on drug related charges and found in a vehicle with illegal drugs, drug paraphernalia, and prescription drugs that were not prescribed to them just one day before the most recent petition was filed, indicates that Respondent Parents have not changed their behaviors regarding their involvement in drugs since [DSS's] involvement. Such behaviors create an ongoing risk to the above-named juvenile.
A careful reading of Finding of Fact No. 33 indicates that it is, in reality, a succinct summary statement of the reasons that the trial court believed that an "impairment" finding was appropriate. Thus, the ultimate issue that we must address on appeal is the extent to which the other findings of fact set out in the adjudication order on remand and any new information referenced in Finding of Fact No. 33 support the finding that Andrew had been impaired or was subject to a substantial risk of impairment as the result of neglect by Respondents.
In view of our understanding of the relevant issue on appeal, we do not accept Respondent Mother's contention that, given the trial court's decision to refrain from taking additional evidence on remand," it is almost mathematically impossible for the trial court to make a substantiated finding of neglect, impairment and a substantial risk of impairment ." On the contrary, this Court has already held that "[t]he record contains evidence that would support — although not require — such a finding of neglect." In re A.E., ___ N.C. App. ___, 667 S.E.2d 340 (2008). For that reason, it is clear that the trial court's initial findings, to the extent that they were not overturned on appeal, would support a determination that Andrew was a neglected juvenile to the extent that the trial court chose to make such a determination. Furthermore, our decision to leave the issue of whether to receive additional evidence to the trial court's discretion suggests we did not believe that the trial court had to receive additional information in order to make the necessary "impairment" finding. As a result, we do not find Respondent Mother's "mathematical impossibility" argument to be persuasive .
The trial court's adjudication order on remand contains detailed findings of fact addressing the evidence upon which the trial court relied in support of Finding of Fact No. 33. Toward the beginning of the adjudication order on remand, the trial court found that both parents "were traveling in a red Acura with two other passengers" on 15 March 2007. In view of the fact that "[t]he license plate (plates) on the car were only partially fastened and were therefore dangling from the back of the car," "the car was pulled by a Chatham County police officer." "During the stop, the police officer discovered that the tags were fictitious," that the tags "were registered to Respondent [M]other's parents," and that "Respondent [F]ather was violating his curfew," which was "a condition of his probation." A search of Respondents' car revealed "traces of marijuana . . . on the floor," "in the passenger seat [,] and on the arm rest between the passenger seat and [the] driver's seat, along with plastic baggies containing J B rolling papers ." An "empty prescription bottle in the name of Linda Alston and a pill bottle containing 181 Oxyco[n]tin in the name of James Howard" were "[a]lso found in the car." At the time of this traffic stop, "Respondent [M]other carried $680.00 in cash in her purse." Although Respondents were charged with trafficking in a Schedule II controlled substance, felonious possession of a Schedule II controlled substance, felonious possession of marijuana, and felonious possession of drug paraphernalia, these charges were later dismissed. The trial court noted, however, that the State's decision to dismiss these charges was "not a statement of [Respondents'] innocence." The trial court also made extensive findings regarding CCDSS's history of providing child protective services to Andrew's family. The trial court found that the relationship between the CCDSS and Andrew's family began in 2000 and had included:
Although Respondent Mother appears to suggest that the dismissal of the criminal charges against Respondents should preclude any consideration of their 15 March 2007 arrest in this proceeding, she cites nothing to support this argument and we know of nothing that tends to suggest that the dismissal of these criminal charges renders the events of 15 March 2007 irrelevant to the issue of whether Andrew should be adjudicated a neglected juvenile.
incidents of domestic violence between the Respondents in the presence of the children; drug abuse and other drug activity including growing marijuana, selling and transporting drugs; maintaining firearms within reach of the juveniles; failure to provide needed services to the juveniles; lack of employment; lack of cooperation and assaultive behavior at school and at the mental health center; and poor parenting.
The trial court noted that Andrew's siblings were placed in foster care in 2003 due to "chronic, severe, domestic violence." The siblings were returned to Respondents' custody "after Respondent parents received and accepted services for their domestic violence issues." However, Andrew's siblings were removed from the family home again in August 2005 following a raid on Respondents' residence during which marijuana, pain killers, and a loaded gun were found. In early 2007, Andrew's siblings were returned to the family home because "both the Social Worker and the Guardian ad Litem felt that Respondent parents had made sufficient progress to warrant their return." However, Andrew's siblings "were again removed from the home" "following the arrest of Respondent parents" on 15 March 2007. The trial court also made findings of fact concerning Respondent Mother's mental health based on a psychological evaluation prepared by Dr. Karin Yoch, whom the trial court "recognized as an expert in psychology qualified to perform psychological evaluations." Dr. Yoch opined that Respondent-Mother: (1) "has a history of marijuana use, . . . suffers from cannabis dependence, and "does not think smoking marijuana is bad;" (2) has "significant mental health issues and personality traits which have interfered with her ability to profit from treatment to the degree necessary that she would be capable of parenting;" (3) "suffers from dysthymic disorder, panic disorder, obsessive compulsive disorder, specific phobias, . . . and paranoid personality disorder," all of which "impair her ability to parent;" and "takes no responsibility for her role in neglecting her children." The trial court also noted that Dr. Yoch reported that "Respondent [M]other and Respondent [F]ather have been violent with each other in the presence of the children." Although the trial court noted that Respondents had obtained some mental health and substance abuse treatment, "the effectiveness of such treatment is questionable, since behaviors similar to those that precipitated [CCDSS'] involvement during the past have again repeated in 2007 even after [Respondents had] been attending treatment."
Similarly, the trial court made a series of findings of fact based on Respondent Mother's work with therapist Paula Browder. According to the trial court, Ms. Browder did not "contradict the findings and conclusions drawn by "Dr. . . . Yoch" concerning Respondent Mother. Although the trial court found that the therapist "ha[d] seen Respondent [M]other rather consistently for therapy," it determined that Respondent Mother "ha[d] yet to deal with substantial and significant mental health issues which [resulted] from her own childhood trauma and abuse." The trial court further found that, "[f]or Respondent [M]other to become mentally and emotionally healthy will require many years of dedicated therapy."
The trial court also made specific findings of fact relating to Respondent Mother's interactions with and care for Andrew. For example, the trial court found that:
When [Andrew] was born, Respondent [M]other, in defiance of the doctor's orders and nurses['] instructions, refused to keep [Andrew] under the bilirubin lights which were necessary and critical to his health and well-being. This refusal to comply with the doctor's orders put her infant at risk of harm. Respondent mother used profane language and abusive behavior to those trying to care for her and [Andrew] just after his birth and while they remained in the hospital.
Furthermore, Ms. Browder "observed [Andrew] being left in his car seat in order to keep him clean," which was "the apparent result of Respondent [M]other's obsessive compulsive disorder" and constituted "improper care of the juvenile." In addition, the trial court found that Respondent Mother had "displayed inappropriate parenting and has demonstrated by her actions, her inability to parent" Andrew during "many of [her] visitations" with the child. In fact, the trial court found that Respondent Father "tried to appropriately parent the children during visitations," including "many examples of his attempt[s] to stop Respondent [M]other from saying things to the children that were hurtful and damaging."
Finally, the trial court found that "Respondent parents cannot deal with their own needs, nor can they meet their children's needs." The trial court's findings reflect that:
While in their care, they did not take [one of Andrew's siblings] to his therapy appointments, although it is clear that he needed help; they did not take the children to the Teen Center, even though it was required by CCDSS; they did not provide the children with structure; and the children were late for school. . . . Respondent's failed to take drug screens as requested. Respondents failed to cooperate with their service plan and made very troubling and poor choices that were not in the children's best interests.
"Throughout the history of this case," the trial court found that the Respondents "have been not only supported but cared for by a determined treatment team." "Notwithstanding the amount of time, energy and range of services provided," the trial court found that "Respondents have not progressed with their parenting skills and remain unable to provide a safe nurturing home to the extent that [Andrew] is in their care."
In order to justify a finding of neglect in a case of this nature, the court must find that the conditions upon which the finding of neglect is predicated have caused the child to sustain some physical, mental, or emotional impairment or have created a substantial risk that the child will sustain such impairment. In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993). "[T]he trial court [has] some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in which they reside" in determining whether specific children should be adjudicated as neglected given the definition set out in N.C. Gen. Stat. § 7B-101 (15). In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999). Thus, the ultimate question before the Court in this case is whether the trial court appropriately made the necessary impairment or risk of impairment finding.
As we have noted above, the trial court found that Andrew "was impaired and at a substantial risk of impairment at the time the petition was filed "based on a number of factors, including the Respondent's "inadequately addressed" mental health and substance abuse problems; the repetitive domestic violence and drug-related activities in which Respondents had been involved; and the fact that Respondents were "arrested on drug[-]related charges and found in a vehicle with illegal drugs, drug paraphernalia, and prescription drugs that were not prescribed to them . . .," a fact which "indicates that Respondent Parents have not changed their behaviors regarding their involvement in drugs since CCDSS involvement." According to the trial court, "[s]uch behaviors create an ongoing risk to" Andrew.
The trial court's unchallenged findings of fact support each component of factual recitation specifically mentioned in Finding of Fact No. 33. In addition, other findings of fact that the trial court effectively incorporated into Finding of Fact No. 33, such as those referring to the Respondents' long-term difficulties getting out from under CCDSS supervision, Respondent Mother's refusal to keep Andrew under bilirubin lights, Respondent Mother's inappropriate conduct during visits with her children, and the Respondents' failure to take drug screens upon request and to cooperate with their service plans provide additional justification for the trial court's impairment finding. In other words, while no specific witness may have testified that Andrew had been impaired or was at substantial risk of impairment from the neglect that he had suffered at the hands of his parents, the trial court's inference to that effect was reasonable in light of the information set forth in Finding of Fact No. 33 and the other findings referenced in that finding. As a result, the trial court's factual findings as both specifically stated in Finding of Fact No. 33 and as incorporated by reference in that finding clearly support the trial court's determination that Andrew had been impaired and was at substantial risk of future impairment as a result of the parental conduct that resulted in the trial court's finding that Andrew was a neglected juvenile pursuant to N.C. Gen. Stat. § 7B-101 (15). Furthermore, given our determination that the trial court's "impairment" finding had adequate record support, Respondent Mother's challenge to the trial court's conclusion that Andrew was a neglected juvenile and to the trial court's orders predicated on that conclusion necessarily fail as well. Thus, we conclude that the trial court's adjudication order should be affirmed.
Respondent Mother challenges Finding of Fact No. 33 in part on the basis of her contentions that "[a]ll indications were that Respondent [Mother] was progressing with her treatment and that Andrew was and has been the beneficiary;" that Respondent Mother's "therapist found that she had gained insight into parenting," "had applied the anger-management skills she learned," "had developed a more mature relationship with Andrew than she had with her other children," and "had reacted appropriately "to "another act of attempted domestic violence which occurred in the fall of 2006." Furthermore, Respondent Mother argues in her brief that "[t]he record is replete with indications that [Respondent Mother] passed every drug test, in that she tested negative for any nonprescription or illegal substance on some 19 occasions." At bottom, this component of Respondent Mother's argument represents nothing more than a disagreement with the trial court's findings of fact regarding Respondent Mother's mental health and drug abuse issues, which this Court has previously upheld and which Respondent Mother has not formally challenged on appeal from the adjudication order on remand. As the Supreme Court has noted, "[t]he appellate courts are bound by the trial court's findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary ." In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252-253 (1984). Thus, this component of Respondent Mother's argument was more properly directed to the trial court than to this Court on appeal.
Affirmed.
Judges Robert N. Hunter, Jr., and Beasley concur.
Report per Rule 30(e).