Opinion
No. COA12–1251.
2013-04-16
In the Matter of D.W.L.
Hanna Frost Honeycutt for Buncombe County Department of Social Services. Michael N. Tousey for Guardian ad Litem.
Appeal by Respondent–Mother from Order entered 25 July 2012 by Judge Andrea F. Dray in Buncombe County District Court. Heard in the Court of Appeals 3 April 2013. Hanna Frost Honeycutt for Buncombe County Department of Social Services. Michael N. Tousey for Guardian ad Litem.
Michael E. Casterline for Respondent–Mother.
STEPHENS, Judge.
Factual Background and Procedural History
Respondent–Mother (“the Mother”) appeals from the district court's order adjudicating her infant son, David, a neglected and dependent juvenile and maintaining him in the nonsecure custody of the Buncombe County Department of Social Services (“DSS”). Respondent C.L., David's putative father, is not a party to the appeal. Because the district court's findings of fact support an adjudication of neglect under N.C. Gen.Stat. §§ 7B–10K15), 7B–807, and 7B–1111(a)(1), we affirm.
A pseudonym is used to protect the juvenile's identity.
DSS began its involvement with the Mother in February of 2009, with the birth of David's older sister, S.L. (“Sara”). The Mother was experiencing auditory hallucinations and was verbally aggressive. She was subsequently admitted to a psychiatric hospital and diagnosed with bipolar schizoaffective disorder, post-traumatic stress disorder, major depression, and generalized anxiety disorder. DSS assumed nonsecure custody of Sara and subsequently determined that C.L. was not a viable placement option for Sara due to his extensive criminal record and failure to complete a court-ordered sex offender specific evaluation (“SOSE”). Following an adjudication of dependency on 1 June 2009, the district court established a permanent plan of guardianship for Sara and, on 8 July 2011, relieved DSS of its reunification efforts with the Mother. In re S.L., ––– N.C.App. ––––, 727 S.E.2d 25 (2012) (unpublished disposition), available at 2012 WL 2308371.
“Sara” is a pseudonym.
David was born prematurely on 25 February 2011. An investigation by Buncombe County Child Protective Services (“CPS”) revealed that the Mother had at that time stabilized her mental illness through medication management and therapy. After a brief stay in neo-natal intensive care, David was discharged to the Mother. DSS arranged for in-home services for David and assigned a social worker to work with both parents. The Mother signed a safety plan on 3 March 2011 and agreed to complete her mental health recommendations and prohibit C.L. from having contact with David.
The case was assigned to DSS social worker Jackie Bable (“Bable”) in June of 2011. The Mother signed a family services agreement (“FSA”) that required her to address her mental health needs and participate in a parenting capacity evaluation. Because of David's developmental delays and hand tremors, the Mother also agreed to obtain an evaluation through Children's Development Services Agency (“CDSA”).
The FSA required C.L. to complete anger management and parenting classes in addition to obtaining his SOSE. A substance abuse assessment was added to the FSA after C.L. admitted to a drinking problem. Although he eventually completed an SOSE, he did not obtain the recommended sex offender treatment or otherwise satisfy the terms of the FSA. Consequently, the safety plan forbidding C.L.'s contact with David remained in effect.
CDSA service coordinator Molly Payne evaluated David in August of 2011 and noted global developmental delays. Payne recommended physical therapy, developmental monitoring, and a feeding evaluation. She then referred the Mother to pediatric speech pathologist Alisa McCloud to address David's feeding issues.
Although the Mother initially complied with her case plan, she resisted assistance with feeding David and discontinued McCloud's services after an in-home session on 14 December 2011. During that session, both McCloud and Payne observed the Mother slap ten-month-old David on the back of his head. The Mother then attempted to force feed the child. McCloud reported her observations to the social worker.
DSS entered into a second safety plan with the Mother at a “Child and Family Team meeting” on 19 December 2011. The parties agreed that David would reside in South Carolina with his maternal grandmother, who would also supervise any contact between the Mother and David. On 23 January 2012, DSS filed a juvenile petition alleging that David was a neglected juvenile. Two months later, on 3 April 2012, DSS filed a second petition, alleging dependency and neglect, after the Mother violated the 19 December 2011 safety plan by absconding with David. When she and the child were found by law enforcement two hours later, the Mother was disoriented and appeared to be hallucinating. Following this episode, the maternal grandmother informed DSS that she could no longer care for David. DSS thereupon obtained nonsecure custody of David and placed him in foster care.
The district court conducted an adjudicatory hearing on 26, 27, and 28 June 2012, and made the following pertinent findings of fact based on the evidence received at the hearing:
26. [On 3 March 2011,] a safety assessment was completed. The respondent parents agreed that [C.L.] would have no contact with [David].... In addition, the [Mother] agreed to comply with all recommendations of her mental health providers.
....
28. [An FSA] was completed with the [Mother. She] agreed to continue ... with treatment and services recommended by Western North Carolina Community Health Services (“WNCCHS”) and NC Ray of Hope. The [Mother] also agreed to participate in a parenting capacity evaluation and participate in services ... at the Health Department. The [Mother] signed the FSA on March 3, 2011.
....
30. The respondent parents were aware that the safety plan prohibited contact between [David] and [C.L.] to ensure the safety of [David]. The respondent parents violated the terms of the safety assessment numerous times by arranging and participating in contact between [David] and [C.L.] The [Mother] is proud of her decision to violate the safety plan. [DSS] was unaware of these violations of the safety plan at the time they were occurring.
....
32. The [Mother] initially met with Dr. Wallenius on December 3, 2010.[She] had prior diagnoses of Bi–Polar, Schizoaffective disorder, and possible borderline personality disorder. Dr. Wallenius evaluated[ ] and diagnosed her with schizoaffective disorder bi-polar type, post-traumatic stress disorder, generalized anxiety disorder, and major depression. He also deferred an Axis II diagnosis of borderline Personality disorder.
33. Dr. Wallenius treated the [Mother] with several medications for these diagnoses. [She] was stabilized on these medications
....
34. Doug Zeh [ (“Zen”) ], one of the [Mother's] mental health providers, reported ... that the [Mother had] stated that she was self-adjusting her psychotropic medications.... [S]elf-adjustment of psychotropic medications can cause instability in the treatment of [the Mother's] mental illness.
35. On one occasion, the [Mother] called Dr. Wallenius and ... asked for a refill of Klonopin, which is a medication that has a high potential for abuse.... Dr. Wallenius refused, and referred her to her therapist. The [Mother] became agitated and threatened suicide. Dr. Wallenius believes that the [Mother] was not taking her medication according to directions and that she was taking too much.
....
41. [Zeh] terminated services with the [Mother] because she failed to set treatment goals and participate meaningfully in therapy. Additionally, [she] was in need of more intensive services than he could provide. [Zeh] attempted to refer her to another agency but she declined....
....
51. [David] participated in [a] Pediatric Speech–Language Evaluation on September 30 and October 5, 2011 to address difficulties with feeding with Alisa McCloud.... The [Mother] agreed to participate in weekly home based assistance with feeding.
52. The initial meeting with Ms. McCloud occurred on October 12, 2011.... During this meeting, the [Mother] was unable to follow a consistent train of thought, appeared agitated, and a large part of the conversation was related to how [she] was tricked into giving up [David's] sibling. The [Mother] moved to a corner of the room and made comments about being forced to give up [David's] sibling and sign paperwork while under the influence of anesthesia.
53. The [Mother] cancelled appointments with Alisa McCloud on October 19, October 26, November 2, and November 9, 2011.
....
57. At the December 14, 2011 appointment the [Mother] stated that the minor child would not participate in the gag reflex exercises as she did not want to turn [David] gay. During the appointment [David] pinched or bit the [Mother] and ... she retaliated by slapping the back of [his] head. Ms. McCloud did not see [David's] reaction to being hit. Also during the appointment the [Mother] tried to feed [David] when he did not want to eat.
58. On December 14, 2011, the [Mother] stated that she knew enough and terminated [ ]feeding services with Alisa McCloud....
....
61. [The Mother] admitted to physically reacting to the minor child with a “firm tap” on the head and further explained that the “firm tap” was not meant to be corrective. [She] felt that firmly tapping a [ten-month-old] child on the head is appropriate....
....
63. Based upon the December 15, 2011 report and subsequent investigation, a safety plan was put in place on December 19, 2011 in which [David] and the [Mother] would stay with the maternal grandmother. The maternal grandmother agreed to supervise the [Mother's] contact with [David] and the [Mother] agreed to be supervised by an approved supervisor at all times with [David]. On December 21, 2011, [David] was placed in kinship with the maternal grandmother due to a determination of neglect due to improper care....
....
65. .... The [Mother] sent numerous text messages to Molly Payne.... In addition, the [Mother] called Ms. Payne on January 13, 2012 requesting personal information about Ms. McCloud [and] attempted to find information about Ms. McCloud via the University's Alumni Association. The CDSA determined that no further services would be completed in the [Mother's] home due to parenting and safety concerns.
....
67. On March 29, 2012, the [Mother] called All Kids Pediatrics and requested an appointment for [David]. [She] reported that [David] needed to be seen because his testicles disappeared[.] The [Mother] stated that she determined [David's] testicles were gone when she was changing [his] diaper and physically felt [his] scrotum. An appointment was scheduled for April 3, 2012 with a pediatrician.
68. The [Mother], [David], and the maternal grandmother attempted to attend the appointment on April 3, 2012. In the parking lot of the doctor's office prior to the appointment ..., the [Mother] became anxious and paranoid that the maternal grandmother was going to have her involuntarily committed, so she left the pediatrician's office with [David]. This was a knowing violation of the safety plan.
69. The [Mother] was heading to her apartment. [C.L.] was residing in her apartment at that time.
70. The [Mother] was alone with [David] for about two hours and knowingly violated the safety plan.
....
74. ... [The Mother] and [David] were located walking in the Applebee's parking lot on Tunnel Road in Asheville, North Carolina. [ ]Bable arrived ... and observed the [Mother], [David,] and two law enforcement officers. [David] was overdressed for the weather.
75. [ ]Bable reminded the [Mother] of the safety plan and requirement that her contact with [David] always be supervised. The [Mother] stated that she was not aware of the supervision requirement. The [Mother] had no recollection of the meetings placing [David] in kinship placement.
76. The [Mother] told [ ]Bable and the law enforcement officers that she had scars or marks on her chest. While standing in the Applebee's parking lot, the [Mother] pulled down her shirt and exposed her chest. There were no marks of any kind on the [Mother's] chest.
77. The [Mother's] mental health status appeared unstable in that she did not appear to understand where she was or what was being said to her.... [Her] behaviors on April 3, 2012 were consistent with the presentation of her mental illness when not properly controlled by medication.
78. On April 3, 2012, the maternal grandmother was no longer willing to provide care for [David] and asked [ ]Bable if the Department could take custody.
79. The [Mother] has a history of noncompliance with treatment providers.
80. The [Mother] has failed to demonstrate insight into her mental health status.
81. The [Mother] has had numerous hospitalizations, but she blames others for her hospitalizations.
82. The [Mother] has failed to demonstrate insight into the circumstances which led to [David's] sibling's custody with the Department and guardianship being granted to the foster parents.
Based on these findings, the court concluded that David was a dependent and neglected juvenile as defined by N.C. Gen.Stat. §§ 7B–10K9), (15) (2011). The court maintained DSS's custody of the child and granted supervised visitation to the Mother.
Though the parties do not contest the issue of visitation, we note that the court's dispositional order—which merely requires (1) that visitation be “supervised at the Department, by the Department” and (2) that the Mother is prohibited from participating in David's medical appointments—is woefully inadequate under N.C. Gen.Stat. § 7B–905(c). See In re E.C., 174 N.C.App. 517, 523, 621 S.E.2d 647, 652 (2005) (“An appropriate visitation plan must provide for a minimum outline of visitation, such as the time, place, and conditions under which visitation may be exercised.”); see also In re W.V., 204 N.C.App. 290, 295, 693 S.E.2d 383, 387 (2010) (affirming the trial court's order, but remanding on grounds that the court failed to establish a “minimum outline of visitation” when it only ordered “weekly visitations supervised by petitioner”).
Standard of Review
In reviewing an adjudication of neglect, we must determine whether the district court's findings of fact are supported by clear and convincing evidence and whether the findings, in turn, support the court's conclusions of law. In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000). Where, as here, the appellant does not contest any individual findings of fact, they are deemed to be supported by evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted). The determination that a child is a neglected juvenile under N.C. Gen.Stat. § 7B–101(15) is a conclusion of law subject to de novo review. See In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675–76 (1997).
Discussion
On appeal, the Mother challenges the district court's adjudication of David as a neglected juvenile. She contends that the facts found by the court are insufficient to establish that he either received improper care or supervision, was denied necessary medical or remedial care, or was exposed to an environment injurious to his welfare, as required for a determination of neglect under N.C. Gen.Stat. § 7B–101(15). Acknowledging her inexperience as a parent and non-compliance with certain DSS demands, the Mother nonetheless argues that the findings show neither actual harm nor a substantial risk of harm to David. We disagree.
A neglected juvenile is one “who does not receive proper care, supervision, or discipline ...; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare[.]” N.C. Gen.Stat. § 7B–101(15). To support an adjudication of neglect, the facts found by the court must show “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 Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003) (citations and quotation marks omitted). “[N]ot every act of negligence on the part of parents or other care givers constitutes ‘neglect’ under the law[.]” Id. Rather, the district court must consider “the totality of the evidence” when assessing the juvenile's condition. In re L.T.R. & J.M.R., 181 N.C.App. 376, 384, 639 S.E.2d 122, 127 (2007) (citation omitted).
Here, the district court's findings demonstrate a substantial risk of impairment to David. The facts show that the Mother repeatedly violated David's safety plan in arranging contact between David and C.L. The Mother testified that she was “very proud” of her actions and that C.L. “deserved as much time as we could weasel in before it went to court order that he couldn't see [David.]” The trial court's findings portray the decline in the Mother's mental health and her non-adherence to her treatment regimen, leading up to the events of 3 April 2012 at Applebee's, where, among other things, she did not appear to understand where she was or what was being said to her.
Unable to progress in therapy with Zeh, the Mother declined a referral for alternative services. She began to self-adjust her medications and threatened suicide when Dr. Wallenius refused to provide her with additional Klonopin—a drug with a high potential for abuse. After striking David's head on 14 December 2011, the Mother was later barred from services through CDSA because of her threatening and harassing behavior toward staff. By the time the Mother fled from the pediatrician's office with David, she was disoriented and experiencing visual hallucinations in the form of imaginary scars on her chest. She claimed no memory of her agreements with DSS regarding David's supervision and care. Such behavior is consistent with the conditions that resulted in the Mother's previous hospitalization.
Viewed in their totality, the Mother's actions, culminating in the incident on 3 April 2012, created a substantial risk of impairment to David supporting his adjudication as a neglected juvenile. Cf. In re T.R.T., ––– N.C.App. ––––, 737 S.E.2d 823 (2013) (affirming the trial court's adjudication of neglect even though the infant did not suffer from an actual impairment because, inter alia, the respondent-mother refused to cooperate with DSS). Accordingly, we affirm the district court's adjudication of neglect.
AFFIRMED. Judges STEELMAN and DAVIS concur.
Report per Rule 30(e).