Opinion
No. COA12–549.
2012-11-20
In the Matter of H.R., A.G., C.Z.G., and C.G.
Randolph County Department of Social Services, by Erica Glass, for Petitioner–Appellee. Parker Poe Adams & Bernstein, LLP by Katie M. Iams for Guardian ad Litem.
Appeal by Respondent from order entered 22 February 2012 by Judge Robert M. Wilkins in Randolph County District Court. Heard in the Court of Appeals 23 October 2012. Randolph County Department of Social Services, by Erica Glass, for Petitioner–Appellee. Parker Poe Adams & Bernstein, LLP by Katie M. Iams for Guardian ad Litem.
Mercedes O. Chut for Respondent–Appellant mother.
BEASLEY, Judge.
Respondent appeals from the trial court's order adjudicating the minor children H.R., A.G., C.Z.G., and C.G. neglected and dependent juveniles. We affirm.
To protect the privacy of the minor children, their initials are used in this opinion.
On 3 May 2011, Randolph County Department of Social Services (“RCDSS”) filed juvenile petitions alleging H.R. and A.G. were neglected and dependent, and C.Z.G. and C.G. were neglected. RCDSS obtained nonsecure custody of H.R. and A.G. C.Z.G. and C.G. were initially placed with the maternal grandparents. However, the maternal grandparents were not able to continue the placement and on 5 May 2012, RCDSS filed juvenile petitions alleging C.Z.G. and C.G. were neglected and dependent. RCDSS then obtained nonsecure custody of C.Z.G. and C.G. The matter came on for hearing, and by order entered 22 February 2012, all four children were adjudicated neglected and dependent. Respondent appeals.
Respondent challenges several findings of fact, as well as the trial court's conclusion that the children were neglected and dependent. We first address Respondent's challenges to the findings of fact. “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.
The trial court's adjudicatory findings of fact are contained in paragraph four of the order. Respondent contends the following findings of fact are not supported by evidence:
b. On or about March 2, 2010, the Mother entered into a safety plan with the Randolph County Department of Social Services wherein she would obtain a lock box for medications to keep the children from having access to the medication. While the Mother obtained to [sic] a lockbox, the Mother violated the March 2, 2010 safety plan by leaving prescription medications in locations easily accessible to the minor children and by allowing the minor child [H.R.] to provide over-the-counter medication to the other minor children. In addition, the Mother left numerous packs of matches accessible to the children.
c. The Mother used inappropriate discipline on the minor child [H.R.] by striking him in the face with a spatula, on the arm with a belt and by slapping his face.
d. In 2007, the minor child [A.G.] alleged that the minor child [H.R.] had sexually abused him. The Mother had the minor child [H.R .] evaluated and he was placed out of the home. In 2008–2009, the minor child [H.R.] returned to the home. Subsequent to his return, the minor children reported that [H.R.] was sexually touching them again. The Mother indicated that she was unaware of any incidents. The only safety measure in place was that [H.R.] was provided a separate bedroom. No other safety measures were put in place.
e. The Mother has an extensive history of domestic violence with [Mr. G.], including at least five prior incidences of domestic violence between 2001 and 2007, including in 2005 when [Mr. G.] pointed a gun at the Mother and in 2006, which resulted in the children being placed with [Mr. G's] mother by the Alabama Department of Social Services.
....
j. RCDSS Social Worker Tasha Hall advised the Mother that [Mr. C .] had extensive history of domestic violence issues, including convictions for assault with a deadly weapon and assault on a female, a pending charge for assault on a female, and at least one outstanding 50–B protective order.
....
q. The Mother has admitted occasional use of marijuana in addition to alcohol use.
With regard to Finding of Fact Number 4b, Respondent contends there is no evidence to support the finding that she violated the 2 March 2010 safety plan by leaving prescription medications easily accessible to the minor children. This finding is supported by the testimony of social worker Tasha Hall. Ms. Hall testified that she made an unannounced visit to the home in April 2011 and observed prescription medication bottles on the kitchen counter. During this visit, Respondent also admitted she allowed the minor child H.R. to give the other children Tylenol whenever they needed it.
Respondent next contends the record contains no evidence to support Finding of Fact Number 4e that she had at least five incidents of domestic violence with Mr. G. in Alabama from 2001 to 2007, including one involving a gun. This finding is supported by Respondent's testimony. Respondent testified that she was in a relationship with Mr. G. from 2001 to 2007. She testified that there were previous incidents of domestic violence with Mr. G. in Alabama, and that she did not think there were more than five incidents. She indicated that there was an incident in Alabama in which Mr. G. pointed a gun at her.
Respondent further contends there is no evidence that H.R. sexually molested his siblings after his return from a group home in 2008, as stated in Finding of Fact Number 4d. Respondent notes that in a psychological evaluation performed in October 2011, H.R. admitted inappropriately touching his siblings when he returned home in 2008. However, Respondent contends this evidence cannot support the finding of fact because the court may consider only evidence that existed up to and on the time of the filing of the petition.
Respondent correctly notes that post-petition evidence is not admissible for consideration during adjudication. See In re A.B., 179 N.C.App. 605, 609, 635 S.E.2d 11, 15 (2006). The psychological evaluation was performed after the petitions were filed; however, the incidents of inappropriate touching by H.R. occurred prior to the filing of the petition. Moreover, Respondent testified that when RCDSS became involved in 2010, the children alleged that H.R. touched them sexually after his return to the home in 2008. We therefore conclude that Finding of Fact Number 4d is supported by evidence in the record.
With regard to Findings of Fact Numbers 4c, 4q, and 4j, Respondent does not allege that the findings are not supported by evidence. Rather, Respondent contends the only source of evidence to support Findings of Fact Numbers 4c and 4q comes from the testimony of social worker Christine Mills. Similarly, Respondent contends Ms. Hall's testimony supplies the only evidence to support Finding of Fact Number 4j. It is the trial court's duty “to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.” In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984). Therefore, it was for the trial court to determine the credibility of the social workers' testimony, and the trial court's findings based on their testimony are binding on appeal.
We next turn to Respondent'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.
N.C. Gen.Stat. § 7B–101(15) (2011). “[T]his Court has consistently required 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, 101, 306 S.E.2d 792, 796 (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)
Respondent contends the evidence and findings of fact fall short of showing tangible harm or substantial risk of harm to support neglect. We do not agree. As discussed above, the evidence tended to show that Respondent had an extensive history of domestic violence with Mr. G.; that H.R. sexually molested his siblings; that Respondent inappropriately disciplined H.R.; and that Respondent was dating Mr. C., a man with a history of domestic violence. In addition to the findings of fact based on this evidence, the trial court found:
a. The minor children [A.G.] and [C.Z.G] have had extensive unexcused absences and late arrivals at school during the 2010–2011 school year, with the minor child [A.G.] having 12 unexcused absences and 9 unexcused tardies and the minor child [C.Z.G.] having 14 unexcused absences and 10 unexcused tardies.
....
f. On or about Thanksgiving of 2010, [Mr. G.] came to the home. The mother admitted him into the home. He was intoxicated. The Mother had drunk alcohol. [Mr. G.] continued drinking. Despite the Mother's testimony to the contrary, the Court finds that the Mother intentionally cut [Mr. G.] with a knife because she was angry with him. The two older children were present during that incident.
g. On or about December 18, 2010, at the “Christmas Incident,” the Mother allowed [Mr. G.] to come back into the home. He assaulted her. Anything she did in response was self-defense.
....
i. Sometime after the Christmas incident in 2010, the Mother began a relationship with [Mr. C.] and he moved in with the family.
....
k. On April 14, 2011, [Mr. C.] moved out of the home taking his belongings and throwing the house key onto a neighbor's roof.
l. On April 15, 2011, the Mother entered into a safety plan wherein she agreed to keep [Mr. C.] away from herself and her children. The Mother acknowledged that the RCDSS might remove the children if she violated the safety plan.
m. On April 29, 2011, the Mother resumed her relationship with [Mr. C.] and indicated that she found him not to be a threat to her children.
Respondent does not challenge these findings of fact, and they are deemed supported by competent evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Respondent attempts to suggest that what happened more than a year before the petitions were filed should not have been considered by the trial court for purposes of the adjudication hearing. Respondent also contends the case rests on speculation that she, a victim of domestic violence in the past, will again be the victim of domestic violence because of her relationship with Mr. C., a man with a bad reputation. We note that “[t]he adjudicatory hearing shall be a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in a petition.” N.C. Gen.Stat. § 7B–802 (2011). Moreover, “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. 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). Accordingly, the trial court could consider events which occurred more than one year prior to the filing of the petition. In addition, the trial court could consider Respondent's past history of domestic violence and her relationship with Mr. C. Based on the foregoing, we conclude that the evidence and the trial court's findings of fact support its conclusion that the children were neglected.
Finally, we address Respondent's argument that the trial court erred in concluding that the children were dependent juveniles. A dependent juvenile is defined 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.
N.C. Gen.Stat. § 7B–101(9) (2011). “Under this definition, the 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). Respondent contends the record contains no evidence that she could not care for the children or was not caring for the children. Respondent asserts that she had housing, could provide adequate food and otherwise meet the needs of the children.
This Court has upheld an adjudication of dependency based upon the parents' failure to comply with a safety plan. See In re K.W., 192 N.C.App. 646, 656, 666 S.E.2d 490, 497 (2008) (holding that the juvenile was dependent where the father violated the safety plan by moving back in with the child, and the mother did not seek to enforce the safety plan). In the present case, the trial court found that Respondent violated the 2 March 2010 safety plan addressing the children's access to medications and the safety plan in which Respondent agreed to keep Mr. C. away from her and the children. The trial court also found that two of the children had extensive unexcused absences and late arrivals at school; that Respondent inappropriately disciplined H.R.; and that H.R. sexually abused his siblings subsequent to his return to the home in 2008. Additionally, the trial court found that Respondent could not offer an appropriate, alternative placement for the children. Accordingly, we conclude the trial court did not err in adjudicating the children dependent. As such, we do not address Respondent's arguments as to the trial court's adjudication of the children as neglected.
Affirmed. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).