Opinion
No. COA13–311.
2013-08-6
In the Matter of A.W. and A.W.
No brief filed for Petitioner Warren County Department of Social Services. Peter Wood, for Respondent.
Appeal by Respondent from orders entered 27 November and 5 December 2012 by Judge Randolph Baskerville in Warren County District Court. Heard in the Court of Appeals 1 July 2013. No brief filed for Petitioner Warren County Department of Social Services. Peter Wood, for Respondent.
Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for Guardian ad litem.
STEPHENS, Judge.
Respondent, the mother of minor children “Agnes” and “Anthony,” appeals from an order adjudicating the children as neglected. We affirm.
Pseudonyms are used to protect the identities of the juveniles. SeeN.C.R.App. P. 3.1(b).
Petitioner Warren County Department of Social Services (“WCDSS”) first became involved with Respondent and her children when it received reports in September 2008 of alleged sexual and physical abuse of Respondent's oldest daughter, “Cecilia,” by her father. After Cecilia recanted her claims of abuse, WCDSS was not able to substantiate the reports and closed the case. Prior to the closing of the case, Respondent entered into a safety agreement with WCDSS in which she agreed not to let the children's father into the family home.
Cecilia (a pseudonym) is now over the age of eighteen and no longer resides in Respondent's home. She is not a party to the underlying juvenile matter.
In March 2012, WCDSS received a new report alleging that Agnes had assaulted Respondent and Anthony with a knife. During WCDSS's investigation, allegations arose that the father had been sexually and physically assaulting both Cecilia and Agnes, Respondent was aware of the abuse and failed to protect the children, and both Respondent and the father were facing criminal charges arising out of an assault on Cecilia. Based on these allegations, on 1 May 2012, WCDSS filed petitions alleging that Agnes was an abused and neglected juvenile and that Anthony was a neglected juvenile.
After a hearing on 25 September 2012, the trial court entered an order on 27 November 2012 in which it adjudicated Agnes and Anthony to be neglected juveniles. The court entered a separate disposition order on 5 December 2012, which continued custody of Agnes and Anthony with WCDSS and established a plan for reunification of the children with Respondent. Respondent filed notice of appeal from both orders on 19 December 2012.
Appellate Jurisdiction
We first address whether Respondent's appeal is properly before this Court. To vest this Court with jurisdiction to hear an appeal, the notice of appeal must identify with specificity the orders from which appeal is taken and must be served on all other parties. In re D.R.F., 204 N.C.App. 138, 141, 693 S.E.2d 235, 238,disc. review denied,364 N.C. 616, 705 S.E.2d 358 (2010); N.C.R.App. P. 3.1(a). However, “a mistake in designating the judgment, or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.” Von Ramm v. Von Ramm, 99 N.C.App. 153, 156–57, 392 S.E.2d 422, 424 (1990) (citation and quotation marks omitted).
Here, Respondent's written notice of appeal states that she is appealing from “the Adjudication Judgment and Dispositional Order that was filed on December 6[ ], 2012.” However, the trial court's orders are captioned “Adjudication Order” (entered 27 November 2012) and “Disposition Order” (entered 5 December 2012). Despite these discrepancies, we conclude that Respondent's “intent to appeal from [the adjudication and disposition orders] can be fairly inferred from the notice and the appellee [was] not misled by the mistake.” Id. at 157, 392 S.E.2d at 424 (citation, quotation marks, and emphasis omitted). Accordingly, Respondent's mistake in designating the orders appealed from does not subject her appeal to dismissal.
Additionally, however, the certificate of service attached to Respondent's notice of appeal states that it was served on WCDSS, but does not assert that it was served on the guardian ad litem. Appellate Rule 3.1(a) provides that a party “may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties....” N.C.R.App. P.3.1(a). However,
where the appellee fail[s], by motion or otherwise, to raise the issue as to service of notice in either the trial court or in this Court and has proceeded to file a brief arguing the merits of the case, ... he has waived service of notice and, thus, the failure to include the proof of service in the Record is inconsequential.
Hale v. Afro–American Arts Int'l, 110 N.C.App. 621, 626, 430 S.E.2d 457, 460 (Wynn, J., dissenting), reversed per curiam for the reasons stated in the dissent, 335 N.C. 231, 436 S.E.2d 588 (1993).
Here, the guardian ad litem has not raised failure of service as an issue and has filed a brief arguing the merits of the appeal. Accordingly, the guardian ad litem has waived service of the notice of appeal. Id. In sum, Respondent's appeal is properly before us, and we now turn to the merits of her appeal.
Out of an abundance of caution, Respondent filed a petition for writ of certiorari with this Court on 8 April 2013. No response to Respondent's petition was filed with this Court. Because we retain jurisdiction to hear Respondent's appeal, we dismiss her petition as moot.
Discussion
Respondent argues the trial court erred in adjudicating Agnes and Anthony neglected because the court's findings of fact are not supported by clear and convincing evidence and do not support the conclusion of law “[t]hat return of the children to the home of [Respondent] ... would be contrary to the welfare of said children.” We disagree.
Appellate review of a trial court's order in an abuse, neglect, or dependency proceeding “entails a determination of (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 Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted). If clear and convincing evidence exists to support the court's findings of fact, the findings “are binding on appeal, even if the evidence would support a finding to the contrary.” In re T.H.T., 185 N.C.App. 337, 343, 648 S.E.2d 519, 523 (2007), affirmed as modified, 362 N.C. 446, 665 S.E.2d 54 (2008).
A neglected juvenile is a child
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.
N.C. Gen.Stat. § 7B–101(15) (2011). “In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile ... lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.” Id. “In cases of this sort, the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case.” In re McLean, 135 N.C.App. 387, 396, 521 S.E.2d 121, 127 (1999).
Here, all of the trial court's findings in support of its adjudication of Agnes and Anthony as neglected juveniles are contained within finding of fact 5 of the adjudication order:
Respondent's brief refers to “finding of fact 7(a) through 7(h),” but the findings she quotes in the brief are actually 5(a)-(h). The actual finding of fact 7 in the adjudication order concerns WCDSS's reasonable efforts at reunification.
5) The children are neglected children pursuant to N.C. Gen.Stat. Section 7B–101(15) in that:
a) WCDSS has worked with the family on another occasion in regard[ ] to the father being in the home.
b) The mother agreed that the father would not be allowed to come to the home.
c) WCDSS received another report that the father was in the home and had molested the children's oldest sister, [Cecilia].
d) A child and family team meeting was held on May 1, 2012 at WCDSS. The mother was present.
e) The mother admitted that she was aware that the father had sexually abused her eldest daughter, [Cecilia], but she continued to allow him to come to the home and be around her children. She admitted that she needed the father's income to maintain her household.
f) The mother was aware that there were allegations that the father had sexually abused [Agnes].
g) The mother currently has charges pending for aiding and abetting second [-]degree kidnapping, assault inflicting serious bodily injury[,] and assault by strangulation in connection with the father assaulting [Cecilia], her eldest child, who is now an adult. The father has pending charges of second[-]degree kidnapping, assault inflicting serious bodily injury[,] and assault by strangulation. [The] Warren County Sheriff's Department is currently looking for the father as he resides in Virginia.
h) The mother did not have a plan for the children to protect the children or someone with whom the children could live with in kinship.
Our review of the record reveals that the findings of fact critical to support the conclusion of law that the children were neglected are fully supported by the testimony of Brenda Jones, a WCDSS social worker involved in the case.
Jones testified that WCDSS had previously been involved with Respondent and her children due to a 2008 report of alleged sexual abuse of Cecilia by the father, and that Respondent had agreed to keep the father out of the home pursuant to a safety plan established with WCDSS at that time. On examination by the attorney advocate for the children's guardians ad litem, Jones further testified, without objection, that Respondent admitted being aware of the father's sexual abuse of Cecilia and of his “touching” Agnes on her vagina, but still allowed the father to be around the children (a violation of the 2008 safety plan). Specifically, Jones testified that Respondent told her that when the father was staying at Respondent's home, the father slept in a bed with Agnes while Respondent slept on a sofa in another room. Jones also testified that Respondent told her that the father paid Respondent's bills and that Respondent depended upon the father for support.
This testimony supports the trial court's findings that Respondent (1) was aware the father had sexually abused Cecilia, (2) agreed to keep the father out of her home, (3) was financially dependent on the father, and (4) still allowed the father into her home and to be around Anthony and Agnes. These findings of fact in turn fully support the court's conclusion of law that returning Agnes and Anthony to Respondent's home would be contrary to their welfare. Accordingly, the trial court's orders are
We agree with Respondent that finding of fact 5(g) is only partially supported because no competent evidence established the specific criminal charges pending against Respondent and the father and finding of fact 5(h) is entirely unsupported because Jones never testified during the adjudication hearing about whether Respondent had any plan to protect the children or have them live with another relative. However, these findings of fact are not necessary to support the court's finding of neglect in light of Respondent's decision to permit the father into the home despite her awareness that he had been sexually abusing Cecilia and Agnes.
AFFIRMED. Judges GEER and ERVIN, concur.
Report per Rule 30(e).