Opinion
No. COA10-175
Filed 6 July 2010 This case not for publication
Appeal by respondent from order entered 16 December 2009 by Judge William C. Kluttz, Jr. in Rowan County District Court. Heard in the Court of Appeals 7 June 2010.
Cynthia Dry for petitioner-appellee. Richard Croutharmel for respondent-appellant mother. Pamela Newell for guardian ad litem.
Rowan County Nos. 09 J 169-72, 192.
Respondent-mother appeals from a juvenile adjudication and disposition order which concluded that her five children were neglected and dependent and found that it was in the children's best interests to remain in the custody of the Rowan County Department of Social Services ("DSS"). After careful review, we affirm.
Facts
The undisputed findings of fact by the trial court tend to establish the following: DSS became involved with respondent-mother and her children after receiving a report on 3 March 2009 alleging that respondent-mother was subjecting her children to unsanitary and unstable living conditions. At the time, respondent-mother had four children: four-year-old A.M., three-year-old P.M., and two-year-old twins A.M. and C.M. Additionally, respondent-mother was approximately five months pregnant at the time. Social worker Barbara Griffith went to the Rowan County home on several occasions, but was unable to gain entry, because four large, aggressive-looking dogs surrounded the entrance to the home. On 17 March 2009, Ms. Griffith saw respondent-mother standing outside. Respondent-mother told Ms. Griffith that the dogs had been known to bite people, and she held the dogs back while Ms. Griffith entered the home. Ms. Griffith noticed that the yard contained excessive clutter, including piles of boxes, toys, and trash.
In the kitchen, dirty dishes covered the counter and sink and there were piles of trash on the floor. A kitchen window was broken. Boxes were piled high in the back area of the home and in the living room. Respondent-mother explained that these items belonged to her mother. The floors in each room of the house were dirty. The twins were present on the day of this visit. They were dressed in shirts and diapers, their feet were dirty, and their hair was uncombed.
Respondent-mother, her boyfriend, and the four children all slept in one small bedroom. The bedroom contained one full-sized mattress and one twin-sized mattress. Respondent-mother explained that she and her boyfriend slept on the full-sized mattress and all four children slept together on the twin-sized mattress. The bedroom also contained an uneaten plate of food and a large amount of clothing strewn about the room. The home contained one bathroom. Ms. Griffith was unable to observe the bathroom, because respondent-mother's boyfriend remained in it for the entirety of the visit.
Ms. Griffith also discovered that the home contained little food. She found a small amount of milk in the refrigerator, but little else. Respondent-mother claimed that she received a minimum of $600.00 in food stamps each month, in the name of her mother and her children. Respondent-mother claimed that her mother still lived in the home and had taken the food stamp card, but she was not present on the day of the visit.
At the time of the visit, respondent-mother was unemployed. Her boyfriend worked sporadically doing various "odd jobs." Additionally, respondent-mother was in the process of being evicted from the home. She claimed that her landlord had been taking items from her as payment for rent, without her permission. She acknowledged to Ms. Griffith that the home was not in good condition and she agreed to clean it and remove clutter. Additionally, respondent-mother agreed to have the children stay with her brother, who lived next door, until she made improvements to the home.
On 20 March 2009, Ms. Griffith made a second visit to respondent-mother's home, and she noticed visible improvements. The broken window in the kitchen had been repaired, much of the clutter in the bedroom had been removed, and several of the boxes had been removed, which made walking through the home easier. Additionally, respondent-mother had more food in the home. At the 20 March 2009 visit, Ms. Griffith discussed the improvements with respondent-mother and suggested additional improvements. She also instructed respondent-mother to contact Ms. Griffith before leaving or vacating the home and to stay in contact with DSS.
Ms. Griffith attempted several follow-up visits in April, May, and June 2009. During these visits, it appeared that no one was living in the home; however, the yard still contained boxes, toys, and trash. Ms. Griffith searched public records in an attempt to locate respondent-mother. Finally, she was able to contact a relative who confirmed that respondent-mother and the children had moved. On 1 July 2009, respondent-mother contacted Ms. Griffith and admitted that she had been evicted from her prior residence and had moved to High Point. Respondent-mother agreed to meet with Ms. Griffith the following day.
On 2 July 2009, Ms. Griffith went to respondent-mother's new residence. Upon arriving, she knocked on the door for an hour before respondent-mother answered. Once inside the house, Ms. Griffith observed a large dog chained up in the living room. Additionally, Ms. Griffith noticed a strong pet odor throughout the home. The house had only a dorm-sized refrigerator, and its only contents were some condiments and a forty-ounce beer. The only other food in the house was a partial jar of peanut butter, some pieces of bread, and three cans of tuna. The house did not have a stove, but had a microwave on top of the refrigerator.
The home had a number of safety issues. The bathroom contained a light switch with exposed wiring, which was within reach of the children. The kitchen and bathroom had septic issues, which caused waste to gather in the sinks and bathtub. A septic repair company was outside attempting to fix the problem. Additionally, the paint in the bedroom and bathroom was peeling.
Once again, the entire family slept in one bedroom. The children slept on four small, thin mattresses, which were pushed together, side by side, on the floor. The mattresses appeared to be crib-sized mattresses and were two to three inches in thickness. The house was very hot and only contained one small window unit air conditioner in the bedroom. However, the air conditioner was not very effective in cooling the room. At the time of the visit, respondent-mother was very close to her delivery due date, but had only a bassinet and one outfit for the baby. She did not have any other supplies necessary to care for a newborn.
Ms. Griffith asked respondent-mother whether she had any relatives or friends with whom the children could live until she was able to improve her home. Respondent-mother suggested a friend. The children stayed with respondent-mother's friend until 10 July 2009, when she reported that she could no longer care for the children. On 8 July 2009, respondent-mother gave birth to I.L. Thereafter, DSS explored other placement options for the five children and contacted two relatives, both of whom were unable to care for the children. Respondent-mother ultimately entered into a voluntary placement agreement with DSS, in order to give herself more time to improve the condition of her home. The children were placed in foster care homes in Rowan County.
After respondent-mother entered into the voluntary placement agreement, two new foster care social workers began working with family members Stanley Price and Kevin Williams. The social workers stayed in contact with respondent-mother and reported that the only furniture in her home was a futon, a baby bassinet, and the mattresses on the floor of the bedroom. Respondent-mother and her boyfriend had made some improvements, such as painting and repairing holes. The social workers obtained furniture for the family, but were reluctant to give it to respondent-mother after discovering that she was again facing eviction. Respondent-mother claimed that she was catching up on her rent. However, the social workers contacted respondent-mother's landlord and learned that eviction was nearly certain, because respondent-mother was several months behind on her $395.00 per month rent. On or about 23 September 2009, respondent-mother's landlord filed a summary ejectment action against her and the hearing was scheduled for 12 November 2009. Respondent-mother continued to receive food stamps, and Mr. Williams encouraged her to "stockpile" non-perishable food in anticipation of the children's return; however, there is no evidence she followed his advice. On one occasion, Mr. Price visited the home and the power had been turned off. A local church outreach group assisted respondent-mother with some expenses and got her power restored. Despite the foregoing, respondent-mother told the social workers that she had her finances under control and did not need assistance.
Respondent-mother and her live-in boyfriend had a volatile and, at times, violent relationship. On 5 October 2009, respondent-mother showed Mr. Price a bruise on her left arm. She explained that she and her boyfriend had been in a "shoving match" and that he had hit her, causing a bruise on her left arm. At the time of the hearing, respondent-mother had a simple assault charge pending against her, which her boyfriend had filed. Respondent-mother had been convicted in Guilford County District Court and appealed to Superior Court. Respondent-mother also had a probation violation pending in Rowan County Superior Court. At the time of the hearing, respondent-mother's boyfriend had been charged with assault on a female and was incarcerated at the Rowan County Detention Center. The charge was related to an incident that occurred between respondent-mother and her boyfriend during the early morning hours of 10 December 2009, the date of the hearing.
While she was living in High Point, respondent-mother obtained employment through a temporary service, working approximately sixteen hours per week. She had never been employed before at any time in her life. Respondent-mother maintained employment for approximately two months, but was evicted from her High Point residence and moved back to Rowan County to live with her brother. Upon her return to Rowan County, respondent-mother obtained employment with US Services in Spencer, North Carolina. At the time of the hearing the social workers had received information suggesting that respondent-mother was no longer employed.
On 12 October 2009, DSS filed a juvenile petition alleging that respondent-mother's five children were (1) neglected, in that they did not receive proper care, supervision, or discipline from respondent-mother, and lived in an environment injurious to their welfare and (2) dependent, in that respondent-mother was unable to provide for the juveniles' care or supervision and lacked an alternative child care arrangement. The petition alleged, inter alia: (1) that the family had lived in two residences that were cluttered, filthy, and lacked adequate furniture and food; (2) that respondent-mother had a volatile relationship with her live-in boyfriend and the two engaged in domestic violence; and (3) that respondent-mother was unable to maintain suitable housing, had been evicted from a previous residence, and was facing eviction from the residence she lived in at the time. Respondent-mother had entered into a voluntary placement agreement with DSS, and her five children had been in Rowan County foster care homes since 10 July 2009. However, the petition alleged that, in the interim 90-day period, respondent-mother had not achieved the stability needed to keep her children safe. On 12 October 2009, the children were taken into DSS custody pursuant to a nonsecure custody order, but remained in their same foster care placements.
On 10 December 2009, the trial court conducted a hearing on the juvenile petition. DSS presented testimony from three DSS social workers involved in the family's case. Respondent-mother did not present any evidence. Following the hearing, the trial court entered an adjudication and disposition order on 16 December 2009 concluding that the five children were neglected and dependent. As to disposition, the trial court kept the children in DSS custody, but maintained a permanent plan of reunification. Among other things, the trial court ordered respondent-mother to obtain and maintain suitable housing and employment. From this order, respondent-mother appeals.
Analysis I.
On appeal, respondent-mother challenges only the adjudicatory portion of the trial court's order. She challenges portions of several findings of fact, as well as the trial court's conclusion that the children were neglected and dependent. First, we address respondent-mother's challenges to findings of fact. "Allegations of neglect [or dependency] must be proven by clear and convincing evidence. In a non-jury neglect [or dependency] adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations omitted). If competent evidence supports the findings, they are "binding on appeal." In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (citations omitted).
We initially note that respondent-mother challenges only portions of findings 3, 7, 10, and 11 as lacking evidentiary support, but does not object to the remaining findings of fact. Accordingly, findings of fact numbers 1-2, 4-6, 8-9, are presumed to be supported by clear and convincing evidence, as are the unchallenged portions of findings 3, 7, 10, and 11. These findings are, therefore, binding on appeal. See In re J.D.S., 170 N.C. App. 244, 252, 612 S.E.2d 350, 355, cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005); see also In re M.D., ___ N.C. App. ___, ___, 682 S.E.2d 780, 785 (2009) ("Respondent-Father has not challenged any of the above findings of fact made by the trial court as lacking adequate evidentiary support. As a result, these findings of fact are deemed to be supported by sufficient evidence and are binding on appeal.")
First, respondent-mother challenges the following sentence in finding of fact number 3:
The bedroom contained one full size mattress and box springs set situated on the floor and one twin mattress on the floor. [Respondent-mother] explained that she and [her boyfriend] slept on the full mattress while the four juveniles slept together on the twin mattress.
Respondent-mother contends that this finding is not supported by the evidence, because the social worker testified that the children slept on four crib-sized mattresses, not one twin-sized mattress. After reviewing the transcript, we disagree with respondent-mother's contention and infer that she is confusing the sleeping conditions in her Rowan County residence with her High Point residence. Ms. Griffith testified that the children all slept on one twin-sized mattress in the Rowan County residence. However, the sleeping conditions appeared to change after respondent-mother moved to High Point. Ms. Griffith testified that, in the High Point residence, the children slept on four crib-sized mattresses which were pushed together to form one full-sized mattress. Based on the foregoing testimony, respondent-mother's challenge to finding of fact number 3 is without merit.
Next, respondent-mother challenges the following excerpt from finding of fact 11:
Social Workers Price and Williams have asked [respondent-mother] to produce pay stubs from [her] employment. [Respondent-mother] has not done so to date. Social Workers Price and Williams have received information recently suggesting that [respondent-mother] is no longer employed.
Respondent-mother contends that this excerpt is not supported by the evidence because (1) Mr. Williams was fully aware of respondent-mother's employment, and (2) the social workers' testimony does not support the finding that she is no longer employed and failed to produce pay stubs. We agree in part, as the testimony of Mr. Williams and Mr. Price only partially supports this finding of fact.
When asked about respondent-mother's wages, Mr. Williams, replied that he did know how much money she earned, and he explained: "[M]y understanding is that we've requested [] perhaps some paycheck stubs. I'm not sure that we've received those." Thus, Mr. Williams' testimony was equivocal; he testified that he did not know whether respondent-mother submitted pay stubs to DSS. However, the finding of fact contains no equivocation or uncertainly; it simply states that respondent-mother did not submit pay stubs. Mr. Williams' testimony cannot be characterized as clear, cogent, and convincing evidence that respondent-mother failed to submit pay stubs to DSS. Accordingly, this sentence in finding of fact number 11 lacks evidentiary support. Nevertheless, we do not perceive any prejudice resulting from the trial court's erroneous statement in its finding. See In re Clark, ___ N.C. App. ___, ___, 688 S.E.2d 484, 496 (2010) ("After careful review of the challenged findings, we conclude that they either have sufficient record support or that any deficiencies in the evidentiary support for these findings of fact did not prejudice the Clarks."); In re Estate of Mullins, 182 N.C. App. 667, 670-71, 643 S.E.2d 599, 601 ("In a non-jury trial, where there are sufficient findings of fact based on competent evidence to support the trial court's conclusions of law, the judgment will not be disturbed because of other erroneous findings which do not affect the conclusions." (internal citation and quotation marks omitted)), disc. review denied, 361 N.C. 693, 652 S.E.2d 262 (2007).
However, the remainder of the challenged finding is supported by the testimony of Mr. Williams. Respondent-mother contends that there was no evidence she had lost her job. However, the finding of fact does not definitively state that she lost her job. Moreover, Mr. Williams testified that, "I've also [] received [] some information that she may as of today, no longer be employed, but I've not been able to verify that." Although this testimony is rather speculative, respondent-mother failed to object to this testimony at the hearing. Therefore, she has failed to preserve this issue for appeal. See State v. Robertson, 149 N.C. App. 563, 569, 562 S.E.2d 551, 556 (2002) (a party must object to testimony on the challenged basis to properly preserve the issue for appeal). Thus, the finding of fact is binding on appeal.
Next, respondent-mother challenges the portion of finding of fact number 7, which states that, "[s]afety issues included a light switch in the bathroom without a cover with wiring exposed and within reach of the juveniles. . . ." Respondent-mother argues that this portion of the finding is not supported by competent evidence, because Ms. Griffith testified that the exposed wiring was within the reach of only the oldest child, not all five children. We acknowledge that respondent-mother is correct in pointing out a slight inaccuracy regarding the finding. Ms. Griffith testified that only "the oldest" child was tall enough to reach the wiring. Nonetheless, we decline to conclude that the finding is not supported by clear and competent evidence. Regardless of whether the exposed wiring was within the direct reach of all or just one of the juveniles, the trial court made the reasonable inference that it was a safety hazard to the juveniles. Therefore, any error in this finding is harmless.
Within finding of fact number 7, respondent-mother also challenges the statement that, "[a] strong pet odor was present throughout the home." Respondent-mother contends that this finding is not supported by the evidence, because respondent-mother claims that Ms. Griffith merely testified that it smelled like dog. We disagree, as we find direct support for this finding in the testimony of Ms. Griffith. When asked about the dog tied up in the house, Ms. Griffith responded: "I did ask her about the dog because one of the things I remember is that it was, it was a strong odor in the house." (Emphasis added.) Ms. Griffith then clarified that the odor was a dog odor. Accordingly, respondent-mother's challenge is without merit.
Finally, respondent-mother challenges the finding that, "[respondent-mother] disclosed to Social Worker Price that [her boyfriend] batters her," which is contained in finding of fact number 10. Respondent-mother contends that this sentence is not supported by the evidence, because none of the social workers used the term "battered" in their testimony. After reviewing the record, we acknowledge that respondent-mother is correct in pointing out that none of the witnesses used the term "battered." Mr. Price testified that respondent-mother showed him a bruise and explained that she and her boyfriend got into a "shoving match." However, the social workers' testimony does support a finding that both respondent-mother and her boyfriend engaged in domestic violence against each other, as both have domestic violence charges pending against them. Therefore, we again decline to conclude that the finding is not supported by clear and competent evidence. Regardless of the exact terms used by the respondent-mother and the social workers, the evidence shows that respondent-mother's boyfriend engaged in domestic violence against respondent. Therefore, to the extent that there is a discrepancy in the wording used in the finding of fact, we conclude that any error is harmless.
Respondent-mother also challenges finding of fact numbers 12, 13, 17, 18, and 19 on the ground that these findings are actually conclusions of law. "A `conclusion of law' is the court's statement of the law which is determinative of the matter at issue between the parties." In re Hughes, 74 N.C. App.751, 759-60, 330 S.E.2d 213, 219 (1985). We agree with respondent-mother; these determinations are statements which are determinative of the matters between the parties: (1) finding of fact number 12 determines that the children are neglected; (2) finding of fact number 13 determines that the children are dependent; (3) finding of fact number 17 determines that DSS has made reasonable and diligent efforts to reunify the juveniles with respondent-mother; (4) finding of fact number 18 determines that it would be contrary to the welfare of the juveniles to return to the care and custody of respondent-mother; and (5) finding of fact number 19 determines that it is within the best interests of the juveniles to remain in DSS custody. However, we are permitted to reclassify these findings of fact and consider them with the challenged conclusions of law. See In re T.H.T., 185 N.C. App. 337, 345, 648 S.E.2d 519, 524 (2007) (determining that an improperly classified finding of fact could be considered with the challenged conclusions of law). And, as explained in the sections that follow, we find no error in the trial court's conclusions that the children were neglected and dependent.
II.
We next turn to respondent-mother's argument that the trial court erred in concluding that the children were neglected juveniles. A neglected juvenile is defined as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2009). Respondent-mother argues that DSS failed to prove that the children were neglected. She contends that, even if the findings of fact are taken as true, they do not lead to the conclusion that the children were physically or emotionally harmed or subjected to risk of such harm.
Respondent-mother's argument appears to be based on this Court's longstanding requirement "that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide `proper care, supervision, or discipline.'" In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (quoting In re Thompson, 64 N.C. App. 95, 99, 306 S.E.2d 792, 794 (1983)). However, "[w]here there is no finding that the juvenile has been impaired or is at substantial risk of impairment, there is no error if all the evidence supports such a finding." In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003) (citation omitted).
Here, the trial court concluded that "[t]he juveniles are neglected juveniles, as defined in N.C.G.S. § 7B-101(15), in that the juveniles lived with their mother in an environment injurious to their welfare" and that "[t]he children were also neglected in that they did not receive proper care in the home with their mother." This conclusion was based on the fact that the children lived "with insufficient food and beverages in the home, excessive clutter piled dangerously high, insufficient sleeping arrangements, dogs on metal chains hazardous to small children, exposed paint and wiring, extreme heat and foul smells in the home, and constant financial and housing instability." Although the trial court failed to make a finding of fact that the children had been impaired or were at substantial risk of impairment, we find no error in the order, because the uncontroverted evidence support such a finding. See Padgett, 156 N.C. App. at 648, 577 S.E.2d at 340; see also Helms, 127 N.C. App. at 511, 491 S.E.2d at 676 ("The inability to maintain secure living arrangements is relevant to a determination of whether there is a substantial risk of injury to the juvenile."). Accordingly, we conclude that the trial court's findings of fact support its conclusion that the children were neglected juveniles.
III.
Finally, we address respondent-mother's argument that the trial court erred in concluding that the children were dependent juveniles. Respondent-mother argues that the trial court erred in concluding that the children were dependent because DSS failed to show that they had no parent to care for them or that respondent-mother was under an incapability that precluded her from caring for her children.
It appears that respondent-mother is confusing the adjudication of dependency pursuant to N.C. Gen. Stat. § 7B-805 (2009) and the termination of parental rights on the ground of dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6) (2009). Under N.C. Gen. Stat. § 7B-1111(a)(6), a parent's rights may be terminated upon a finding "[t]hat the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future." Thus, in order to terminate a parent's rights based on the ground of dependency, our statutes require a finding of "incapability."
However, a finding of "incapability" is not necessary for an adjudication of dependency pursuant to N.C. Gen. Stat. § 7B-805. The term "incapability" is not used in N.C. Gen. Stat. § 7B-101(9) (2009). Rather, N.C. Gen. Stat. § 7B-101(9) defines a dependent juvenile as "[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement." In determining whether a juvenile is dependent, the trial court is required to "address both[:] (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements." In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).
Here, the trial court's findings of fact support both prongs. First, as previously detailed in the factual background of this case, the findings of fact establish that respondent-mother was unable to provide adequate housing for her children due to the filthy, cluttered, and, unsafe conditions of her residences, the inadequacy of the food for the children, the inadequacy of furnishings in the residences, and her pattern of being evicted. The inadequacy of food and suitable housing establish that respondent-mother was unable to provide for the proper care of her children. Second, in finding of fact number 8, the trial court made a detailed finding regarding any possible alternative placements. Respondent-mother's friend kept the children for little over a week and then returned them. Respondent-mother's brother and aunt were also contacted, but neither were able to care for the children. Therefore, the trial court ultimately concluded that the children had no alternative caretakers. Accordingly, we find that the trial court's conclusion that the juveniles were dependent is supported by clear and convincing evidence.
Affirmed.
Chief Judge MARTIN and Judge BEASLEY concur.
Report per Rule 30(e).