Opinion
No. COA15-1131
05-03-2016
In re: E.R.M.D.
Merri Burwell Oxley for petitioner-appellee Rutherford County Department of Social Services. Leslie Rawls for appellant-mother. EVERETT GASKINS HANCOCK LLP, by James M. Hash, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Rutherford County, No. 14JA113 Appeal by mother from Order entered 16 June 2015 by Judge Robert K. Martelle in Rutherford County District Court. Heard in the Court of Appeals 13 April 2016. Merri Burwell Oxley for petitioner-appellee Rutherford County Department of Social Services. Leslie Rawls for appellant-mother. EVERETT GASKINS HANCOCK LLP, by James M. Hash, for guardian ad litem. ELMORE, Judge.
On 16 June 2015, the Rutherford County District Court adjudicated Ellie a neglected and dependent juvenile. At disposition, the court entered an order concluding that Ellie shall remain in Rutherford County Department of Social Services' (DSS) custody and that DSS shall cease any reunification and visitation efforts with the mother. The mother appeals.
We employ this pseudonym to protect the identity of the minor child.
I. Background
On 26 September 2014, DSS filed a petition alleging that Ellie was a neglected and dependent juvenile. Regarding neglect, DSS alleged that the juvenile lives in an environment injurious to her welfare. Regarding dependency, DSS alleged that the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement. Specifically, DSS stated that it is currently involved in terminating the mother's parental rights to another child who was adjudicated seriously neglected due to near drowning and bruising to the face and head when the child was less than one year old. DSS was relieved of reunification efforts in that case on 13 August 2014 because of the following: (1) the mother was in a relationship of violence; (2) no stability in the marital relationship; (3) failure to address issues of substance abuse and mental health; and (4) the mother did not complete her current case plan to address her substance issues and mental health needs. The petition further alleged that the court took into consideration that the mother has a third child who was placed in foster care in Pennsylvania due to lack of appropriate, stable housing, lack of parenting, financial instability, and mental health concerns. In March 2014, a psychological and parental fitness evaluation found that the mother would be unable to meet the needs of or to parent any child.
Also on 26 September 2014, the trial court entered a nonsecure custody order naming the mother and the mother's husband as respondents. After conducting a DNA test, DSS filed an amended petition on 30 October 2014 adding the biological father as a respondent and naming the mother's husband as the legal father. At the time DSS filed the original petition, Ellie was fourteen days old.
After a hearing on 21 May 2015, the trial court entered an order adjudicating Ellie neglected and dependent. The court then proceeded to disposition where it concluded that it is in Ellie's best interest to remain in DSS custody and that reunification and visitation efforts with the mother cease. It also concluded that the plan for Ellie is reunification with the biological father. The mother timely appeals.
II. Analysis
The mother argues that the trial court erred in adjudicating Ellie dependent and neglected, the trial court made adjudicatory findings of fact based on post-petition evidence, and the trial court made findings of fact that were not supported by the evidence.
Allegations that a juvenile is abused, neglected, or dependent shall be proved by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2015). "The role of this Court in reviewing a trial court's adjudication of neglect and [dependency] is to determine '(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) (quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). "If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary." Id. (citing In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003)). " 'The trial [court] determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom. If a different inference may be drawn from the evidence, [the trial court] alone determines which inferences to draw and which to reject.' " Id. (quoting In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985)).
A. Dependency
The mother first argues the trial court erred in adjudicating Ellie dependent because DSS failed to prove dependency by clear and convincing evidence, and the findings of fact do not support the conclusions of law. The mother claims, "None of the trial court's findings of fact establish that Mother was unable to provide for Ellie's care and supervision. On the contrary, the trial court's findings of fact 22 and 23 contradict such a finding by showing that Mother had taken care of Ellie, attended to her medical care needs, provided a home for her, and supplied the home to meet her needs." We disagree.
N.C. Gen. Stat. § 7B-101(9) defines a dependent juvenile as "a juvenile in need of assistance or placement because . . . the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen. Stat. § 7B-101(9) (2015). "[T]he trial court must 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).
The trial court made the following, unchallenged findings of fact: In addition to Ellie, the mother has two other children, Jake and John. Jake was born in August 2010, and the mother's parental rights were terminated in Pennsylvania in 2011. John was born in October 2012 and was brought to the emergency room in July 2013. John was "found unresponsive and floating face down in the bathtub after being unsupervised by the [mother]." John was adjudicated a seriously neglected and dependent juvenile in December 2013 and is in DSS custody. Afterward, the mother did not follow up with mental health services for herself, did not pay child support, and continued to live in an abusive relationship with her husband, who had substance abuse issues. The mother was dependent on her husband and was the victim of domestic violence in their home. On 13 August 2014, DSS was relieved of reunification efforts with the mother. In that order, the court found that the mother was still in an abusive and unstable relationship with her husband, and she failed to address her mental health and substance abuse issues. Further, the court found that no family members are available and appropriate to care for Ellie. Based on the above findings, the trial court concluded that "the juvenile's parents, guardian, or custodian were unable to provide for [Ellie's] care or supervision and lack an appropriate alternative child care arrangement as defined by N.C. Gen. Stat. § 7B-101(9)."
We employ these pseudonyms to protect the identity of the minor children.
The mother points out that findings of fact twenty-two and twenty-three show that Ellie was healthy and uninjured when DSS took custody, and the mother had taken Ellie to her wellness check after her birth. Such findings, however, do not negate the conclusion that Ellie was dependent. Even if the two-week-old juvenile was uninjured at the time the petition was filed, the record evidence supports the findings that the mother was unable to provide for the juvenile's care or supervision.
At the time Ellie was born and when the petition was filed two weeks later, the mother was still living in an abusive relationship with her husband and had not sought treatment for her mental health issues. In the intervening month from when DSS ceased reunification efforts with the mother and John to when Ellie was born, the mother had not done anything to address the issues that caused the court to cease reunification efforts. Additionally, the mother had not made a commitment to the treatment process. The mother had not changed her circumstances from the time John was injured in July 2013 such that a child would be safe in the mother's home. Additionally, the record shows that Jake, the mother's first child, was placed in foster care via an emergency court order two days after his birth due to the mother's lack of appropriate, stable housing, lack of parenting skills, financial inability to support the child, and mental health concerns.
We think that the findings support the trial court's conclusion that Ellie is a dependent juvenile. Based on the findings as to the mother's lack of changed circumstances since her second child, John, was adjudicated seriously neglected and dependent, her untreated mental health issues, and the violence in the home, the trial court properly concluded that the mother was unable to provide for Ellie's care or supervision and that she lacked an appropriate alternative child care arrangement.
B. Post-Petition Findings of Fact
The mother next argues that the trial court erred by basing findings of fact twenty and twenty-one on post-petition events and by resting its conclusions of law on the improper findings. We disagree.
In an adjudicatory hearing, the trial court shall determine if the conditions alleged in the petition exist. N.C. Gen. Stat. § 7B-802 (2015). Events after the petition was filed may be admissible for disposition, but not for adjudication. In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 14 (2006). As a general rule, "[i]n a nonjury trial, if incompetent evidence is admitted and there is no showing that the judge acted on it, the trial court is presumed to have disregarded it." Powers v. Powers, 130 N.C. App. 37, 46, 502 S.E.2d 398, 404 (1998) (quoting In re Oghenekevebe, 123 N.C. App. 434, 438, 473 S.E.2d 393, 397 (1996)).
Here, the amended petition was filed on 30 October 2014. Finding of fact number twenty states, "That since August 13, 2014, the Respondent Mother has continued living in the abusive relationship with [her husband] and has not sought treatment for her mental health issues." Nothing in this finding supports the mother's argument or indicates that the court considered events after the amended petition was filed. As discussed below, the transcript confirms that the mother was living with her husband at the time DSS filed the petition.
Finding of fact number twenty-one starts by stating, "That after almost two years of being involved with DSS, the Respondent Mother has not done anything to address the issues that caused the Court to cease reunification efforts with [John]." The mother argues that the "almost two years" timeframe must refer to July 2013, when John was taken to the emergency room, to May 2015, the date of Ellie's adjudicatory hearing. DSS and the guardian ad litem claim that "whether the trial court was referring to the 15-month-period from July 2013 to October 2014 or the 22-month-period from July 2013 to May 2015[,]" the trial court's findings regarding the mother's failure to address the issues are equally valid.
Although the introductory portion of the trial court's finding could have been worded more clearly, we do not think that the trial court considered post-petition evidence in its adjudication. The transcript reveals that no evidence presented at the adjudication portion of the hearing related to the mother's current situation. Rather, when questioning social worker Katlyn Sloop, counsel for DSS asked Ms. Sloop to only address the mother's progress, or lack thereof, up until September 2014. Moreover, when counsel for DSS asked Ms. Sloop about the status of the mother's living arrangement, Ms. Sloop clarified, "At the filing of the petition[,] . . . [s]he was living with [her husband]." Counsel for DSS also specifically directed its additional questions at events prior to the date the petition was filed, e.g., "And at the time we filed the petition, was she in compliance with her probation at that point in time?" and "[P]rior to filing the petition, had she been paying her child support?"
Accordingly, based on the information actually presented at the adjudication portion of the hearing, the trial court limited its analysis to events prior to the date DSS filed the petition. The trial court did not base finding of fact twenty-one on post-petition events or rest its conclusions of law on any improper findings.
C. Unsupported Findings of Fact
Lastly, the mother argues that the following findings of fact were unsupported by the evidence: "13. That the injury to [John] was not accidental. . . . 24. That there has been no change of circumstances as to the Respondent Mother since the injuries to [John] that would make a child safe in the Respondent Mother's home." The mother claims, "Nothing in the record supports the finding that John's near drowning was not accidental." She makes no argument regarding finding of fact number twenty-four. The mother contends the trial court rested its adjudication of neglect on these improper findings. We disagree.
Here, the record reveals that at John's adjudication hearing, the mother stipulated that she left her nine-month-old child "unattended for a period of time while he was in the bathtub." He was found unresponsive and floating face down, and he had multiple bruises on his body, including "a linear bruise on his left upper arm and a similar bruise on his right chest over his ribs. [The mother] was unable to give a history for how the bruising occurred." During Ellie's adjudication hearing, Casey Watson testified that the mother is her aunt through marriage, and the mother told her the following about John:
[The mother] told me that [John] had had an accident in the bathtub. She was giving him a bath. The bathtub seat that [John] was in came loose from the bathtub itself and that is the reason for the accident and when she turned around to get a towel, turned back around, the seat was loose, the baby was blue or the baby was unresponsive and they took the correct steps toward getting help for the child.Ms. Watson also testified that the mother did not tell her anything about how the bruising on John's body occurred. Based on the record as a whole and the testimony presented, the trial court's finding regarding John's injury was supported by the evidence. The trial court alone "determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom." In re T.H.T., 185 N.C. App. at 343, 648 S.E.2d at 523.
The mother presents no argument as to why finding of fact number twenty-four is not supported by the evidence. Accordingly, this issue is not properly before this Court. N.C.R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.").
Furthermore, numerous other findings of fact support the trial court's conclusion of law that Ellie is a neglected juvenile. A neglected juvenile is one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; . . . or who lives in an environment injurious to the juvenile's welfare. . . . 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.N.C. Gen. Stat. § 7B-101(15) (2015).
This court has previously explained that the statutory definition of neglect "allows the trial court to consider the substantial risk of impairment to the remaining children when one child in a home has been subjected to abuse or neglect." In re McLean, 135 N.C. App. 387, 394, 521 S.E.2d 121, 126 (1999). In McLean, a neglect petition was filed while the newborn was still in the maternity ward. Id. We stated, "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." Id. at 396, 521 S.E.2d at 127.
Here, the trial court properly assessed whether, based on the historical facts of this case, there was a substantial risk of future neglect. The unchallenged findings show that on the day the petition was filed, Ellie "lived in a home where another child, [John] (her older half-brother), was subjected to serious neglect by an adult who regularly lived in the home and that the home created an environment injurious to the Child's welfare and where she would not receive proper care or supervision." As previously stated, the mother's situation remained unchanged at the time Ellie was born. The trial court properly weighed the evidence and made findings to support its conclusion that Ellie was neglected.
III. Conclusion
The trial court did not err in adjudicating Ellie a neglected and dependent juvenile. Additionally, the trial court did not base its findings of fact on post-petition evidence and did not base its conclusions of law on unsupported findings of fact.
AFFIRMED.
Judges McCULLOUGH and INMAN concur.
Report per Rule 30(e).