Opinion
No. COA12–1343.
2013-05-7
In The Matter of J.P.
Office of the Wake County Attorney, by Jennifer M. Jones, for petitioner-appellee Wake County Human Services. Mellonee Kennedy for the guardian ad litem.
Appeal by respondent from order entered 17 August 2012 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 17 April 2013. Office of the Wake County Attorney, by Jennifer M. Jones, for petitioner-appellee Wake County Human Services. Mellonee Kennedy for the guardian ad litem.
David A. Perez for respondent-appellant.
DAVIS, Judge.
Respondent-mother (“respondent”) appeals from the trial court's order adjudicating J.P. (“Joseph”) to be a neglected juvenile. After careful review, we affirm the trial court's order.
The pseudonym “Joseph” is used throughout this opinion to protect the privacy of the minor child and for ease of reading. N.C. R.App. P. 3.1(b).
Factual Background
Wake County Department of Human Services (“DHS”) became involved with respondent and Joseph after a call was placed to the DHS hotline on 23 April 2012 alleging that Joseph was neglected. Ms. Antonia Zimmer (“Ms.Zimmer”), a social worker with DHS, testified that there were concerns based on respondent's prior history with Child Protective Services (“CPS”) in New York. Respondent's three older children are currently in the custody of CPS in New York. The report to the DHS hotline also included an allegation regarding a domestic assault upon respondent that occurred while she was pregnant with Joseph. Based on the report, Ms. Zimmer contacted respondent and scheduled a meeting for the next day.
Ms. Zimmer visited respondent's home and met with her, Joseph, and respondent's father and brother—who were also living at the home. Ms. Zimmer asked respondent about the domestic violence allegations and her involvement with CPS in New York. During the meeting, Ms. Zimmer expressed her concern to respondent about the fact that her father and brother were living there because both had been identified by CPS in New York as “perpetrators against [respondent's] other three children for various types of abuse and neglect.” Respondent indicated that she was the leaseholder of the residence but that she was unwilling to require her father and brother to leave the home.
A safety plan was then put into place which required respondent and Joseph to leave the residence and live with a safety resource. On 17 May 2012, respondent left the home of the safety resource. On 22 May 2012, DHS located emergency housing for respondent and Joseph at the Salvation Army. Respondent and Joseph remained at the Salvation Army until 28 May 2012 when respondent was advised that she would not be allowed back into the facility because of her repeated rule violations.
On 29 May 2012, DHS filed a juvenile petition alleging that Joseph was a neglected juvenile. On that same date, DHS obtained nonsecure custody of Joseph, and he was placed in foster care. The matter came on for hearing on 26 July 2012, and by order entered 17 August 2012, the trial court adjudicated Joseph neglected. Respondent gave timely notice of appeal.
Analysis
Respondent contends the trial court erred in concluding that Joseph was a neglected juvenile as defined by N.C. Gen.Stat. § 7B–101(15) (2011) because its conclusion is not supported by proper findings of fact based upon competent evidence. We disagree.
“The role of this Court in reviewing a trial court's adjudication of neglect ... 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. A neglected juvenile is one who “does not receive proper care, supervision, or discipline” from a parent or caretaker, or “who lives in an environment injurious to the juvenile's welfare[.]” N.C. Gen.Stat. § 7B–101(15).
In this case, the trial court made the following pertinent findings of fact:
6. That on April 26, 2012, WCHS held a CFT/TDM [ (Child–Family Team/Team Decision Making) ] meeting. During this meeting, the mother continually demonstrated a lack of understanding of the involvement of New York CPS in her children's lives and minimized her recent domestic violence issues. She indicated during the meeting that she believed an allegation of sexual abuse committed against her daughter by her brother was not serious and that she did not believe her daughter's account of what happened. Due to concerns for [Joseph] based on the mother's history of poor decision making, her failure to protect her older children, the fact that her brother (who was accused of sexually abusing the mother's daughter) and her father (who has prior CPS involvement) now reside in Wake County, a safety plan was put in place which included her residing with a safety resource. The mother was informed that, in order for her child to be safe, she needed to remain with the safety resource.
7. That the safety plan also involved the participation in services by the mother including weekly visits by the social worker, securing stable housing without her father and brother, mental health services, domestic violence victim counseling, follow up with the domestic violence action pending against [the alleged perpetrator], parenting education, and regular medical treatment for [Joseph].
8. That the mother has admitted to filing a false application for Section 8 housing and [ ] falsifying a letter regarding employment to enable her to rent an apartment. She asked the WCHS social worker to write a letter on her behalf stating that the mother worked for the social worker, in order that she might obtain housing. The mother left the safety resource on May 17, 2012, and WCHS [/]CPS was unable to locate her for several days. [Joseph] had undergone emergency surgery at five (5) days of age for malrotation of the duodenum but the mother has not made sufficient arrangements for followup care.
9. That on May 21, 2012, WCHS held another CFT/TDM meeting. The mother had not identified a safe location for herself and [Joseph]. WCHS contacted numerous shelters, and ultimately located emergency housing for the mother and child at the Salvation Army. WCHS was informed on May 29, 2012 that [respondent] would not be permitted to remain at the Salvation Army due to repeated rules violations. [Respondent] did not have anywhere for herself and [Joseph] to stay. A friend that the mother suggested to WCHS as a safety resource informed the agency that she was not willing or able to provide for the mother and [Joseph]. The friend had seven (7) children of her own and resided in Section 8 housing. [Respondent] also suggested that she might return to the home where her father and brother lived, stating that the home is in her name. The mother was not willing to evict her father and brother. The mother elected to make herself and [Joseph] homeless rather than have her father and brother leave the residence.
10. That the mother missed [Joseph's] first weight check appointment on March 23, 2012, but brought the child to WakeMed Emergency Department on March 25, 2012, for treatment for vomiting. The child was admitted and, after emergency surgery, was released on April 2, 2012. He was seen at the WakeMed Pediatric clinic on April 9, April 11, April 16, and April 24, 2012. The mother missed the next scheduled weight check appointment on May 22, 2012.
11. That after [Joseph] was placed in nonsecure custody, the child was examined by Dr. Susan [Sinden], pediatrician with WakeMed Faculty Physicians, in the WakeMed Pediatric Clinic. The first visit occurred on [sic] within hours of the filing of the petition in this matter. Dr. [Sinden] found [Joseph] to be poorly nourished weighing 2.72 kilograms. During a period between April 24, 2012, and May 30, 2012, [he] had gained only an average of 6 grams per day when normal weight gain for a child of this age would be 20 to 30 grams per day. Between May 30, 2012, and June 7, 2012, [Joseph] had gained 280 grams, an average of 40 grams per day. Once on an appropriate diet, [Joseph] gained weight as expected. There were no physiological causes of his failure to gain weight prior to his coming into foster care. The surgery performed in March 2012 was successful in repairing the malrotation and, as a result, that condition did not affect [his] ability to digest food.
12. That the child's medical record included a notation that the mother had given the baby cereal at some point prior to his reaching two (2) months of age. She was instructed by the health care professional that it was not appropriate to do so.
Respondent challenges findings of fact 6, 8, 9, and 11. She first contends finding of fact 6 is not supported by competent evidence. Respondent argues that she denied any recent domestic violence at the hearing, and, as such, there was no competent evidence presented to support a finding of recent domestic violence.
We believe that finding of fact 6 is supported by Ms. Zimmer's testimony regarding the 26 April 2012 CFT/TDM meeting. Respondent asserts that the trial court's characterization of respondent's domestic violence issues as “recent” is not supported by competent evidence in light of the trial judge's statement during the hearing that “there is no evidence of domestic violence following the birth of the child.” Respondent's argument is not persuasive as it fails to consider the trial court's description of the domestic violence issues in its appropriate context.
The entirety of finding of fact 6 describes DHS's meeting on 26 April 2012 with respondent. Finding of fact 6 states that during this meeting, respondent “demonstrated a lack of understanding of the involvement of New York CPS in her children's lives and minimized her recent domestic violence issues.” (Emphasis added.) The domestic violence incident referenced was reported to have occurred in March 2012–a month before the April meeting. Thus, we find that the trial court's description of respondent's domestic violence issues as “recent” is an accurate interpretation of the testimony and evidence received at the hearing.
Respondent also asserts that any findings within finding of fact 6 “which appear to set forth as fact” that respondent's brother sexually abused respondent's daughter or that her father has a prior CPS history “are erroneous as the same are based upon the testimony of Ms. Zimmer which the trial court specifically did not receive for the truth of the matter asserted.” Contrary to respondent's assertion, however, the statements within finding of fact 6 do not set forth as fact that her brother sexually abused her daughter or that her father had a prior history with CPS. Rather, these statements indicate the basis for Ms. Zimmer's concern and articulate why DHS determined that a safety plan—which involved respondent and Joseph leaving the home and residing with a safety resource—was appropriate and warranted.
During the hearing, the trial court sustained respondent's objection to the above testimony and admitted it solely for “the basis for [Ms. Zimmer's] concern.” Finding of fact 6 reflects the trial court's use of the testimony for that same limited purpose as the information regarding respondent's father and brother is discussed only in relation to DHS's concerns and why respondent was asked to live with a safety resource. We conclude, therefore, that the trial court properly considered Ms. Zimmer's testimony for a limited non-hearsay purpose. See In re Mashburn, 162 N.C.App. 386, 390, 591 S.E.2d 584, 588 (2004) (finding that a social worker's testimony regarding a report which included statements by an out-of-court declarant was not inadmissible hearsay because it was offered to explain why DSS initiated an investigation).
Respondent next argues that the portion of finding of fact 8 stating that she did not make “sufficient arrangements for follow-up care” of Joseph lacks an adequate foundation. We disagree.
Dr. Susan Sinden (“Dr.Sinden”) testified that there was a period of time from 24 April 2012 to 30 May 2012 when Joseph did not gain weight. She testified that respondent did not bring Joseph in for his regular appointment on 22 May 2012 so there was no opportunity to examine Joseph and question respondent about Joseph's nutritional intake.
Susan DeKarske (“Ms.DeKarske”), another social worker with DHS, also testified that throughout her visits with respondent she would repeatedly ask respondent about Joseph's next medical appointment and respondent would reply that she did not know when the next appointment was scheduled to occur. Respondent was not able to give Ms. DeKarske the date of Joseph's next two-month checkup. Furthermore, Ms. DeKarske testified that respondent “became agitated” when asked about Joseph's medical appointments and that respondent could not provide specific information regarding Joseph's medical appointments. This testimony supports the trial court's finding that respondent “has not made sufficient arrangements for [Joseph's] follow-up care.”
Respondent next challenges portions of finding of fact 9. Specifically, respondent objects to the following:
[Respondent] also suggested that she might return to the home where her father and brother lived, stating that the home is in her name. The mother was not willing to evict her father and brother. The mother elected to make herself and [Joseph] homeless rather than have her father and brother leave the residence.
Respondent contends these findings are not supported by competent evidence because the evidence failed to show any reason why she could not have lived in her home with her brother and father. Respondent further contends that she was, in fact, willing to evict her brother and father, but DHS would not allow her the opportunity. We do not find this argument persuasive.
Ms. Zimmer testified that respondent was not willing to evict her brother or father and that respondent agreed to leave the home to live with the safety resource. Likewise, Ms. DeKarske testified that DHS had spoken with respondent “since day one in regards to her father and brother moving out of the home” and that respondent did not suggest “kick[ing] out” her brother and father until she was informed that DHS was taking custody of Joseph and an officer was present to assist DHS in doing so. DHS did not believe, however, that respondent was serious about making her brother and father actually leave the home.
Respondent next argues the trial court erred in entering finding of fact 11 in that the facts found therein were not alleged in the juvenile petition as required by N.C. Gen.Stat. § 7B–402 (2011). She contends that she did not receive notice of the “factual averments” in finding of fact 11 and, accordingly, was not given an opportunity to properly prepare to address the allegations. We do not agree.
Section 7B–402 provides in pertinent part that a juvenile petition “shall contain ... allegations of facts sufficient to invoke jurisdiction over the juvenile.” N.C. Gen.Stat. § 7B–402(a). “While there is no requirement that the factual allegations be exhaustive or extensive, they must put a party on notice as to what acts, omissions or conditions are at issue.” In re Hardesty, 150 N.C.App. 380, 384, 563 S.E.2d 79, 82 (2002).
Here, the petition alleged that Joseph was neglected in that he “does not receiv[e] proper care ... [and] is not provided necessary medical care[.]” It further alleged: “It is reported that the mother pays little attention to the child and has not procured appropriate medical services for him.” We conclude that these allegations were sufficient to put respondent on notice that Joseph's physical condition and health would be addressed at the hearing.
Respondent also argues that it was improper and erroneous for the trial court to enter finding of fact 11 because (1) Dr. Sinden's testimony formed the basis for this finding; and (2) Dr. Sinden did not examine Joseph until after he was placed in foster care. However, Dr. Sinden examined Joseph within hours of his placement in foster care. His “very emaciated and poorly nourished” state did not occur within a matter of hours, and it is undisputed that prior to coming into foster care, Joseph had been in respondent's care. Therefore, we find that the trial court did not err in entering finding of fact 11.
Finally, respondent cites In re Safriet, 112 N.C.App. 747, 752, 436 S.E.2d 898, 901–02 (1993) (citation and quotation marks omitted), which discusses this Court's “consistent[ ] require[ment] 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.” Respondent contends that the trial court made no findings that establish that her conduct resulted in Joseph's physical, mental, or emotional impairment or created a substantial risk of such an impairment. This contention is also without merit.
In Safriet, this Court affirmed the trial court's adjudication of neglect, determining that “[a]lthough the trial court failed to make any findings of fact concerning the detrimental effect of [the respondent's] improper care on [the juvenile's] physical, mental, or emotional well-being, all the evidence supports such a finding.” Id. at 753, 436 S.E.2d at 902. Here, despite the fact that the trial court did not specifically articulate that respondent's improper care had a detrimental effect on Joseph's physical well-being, we conclude that—as in Safriet—the evidence supports such a finding. As shown above, finding of fact 11 is supported by competent evidence and thus was properly entered by the trial court. This finding states that when Joseph was examined by Dr. Sinden—a few hours after he was removed from respondent's custody—she determined that he was “poorly nourished” and was gaining only 6 grams per day as opposed to the average weight gain of 20 to 30 grams a day for a child his age. Finding of fact 11 also noted that once Joseph was on an appropriate diet, he gained an average of 40 grams per day and that “[t]here were no physiological causes of his failure to gain weight prior to his coming into foster care.” Here, findings of fact 8–11 demonstrate that Joseph's physical well-being was impaired, or at a substantial risk of being impaired, as a result of respondent's improper care.
We conclude that the trial court's findings of fact adequately support its conclusion that Joseph was a neglected juvenile under N.C. Gen.Stat. § 7B–101(15) in that he “does not receive proper care and supervision from his mother and lives in an environment injurious to his welfare.”
Conclusion
For the reasons set out above, the trial court's findings of fact are supported by clear and convincing evidence, and those findings of fact, in turn, support its conclusion that Joseph is a neglected juvenile. Accordingly, the trial court's order is affirmed.
AFFIRMED. Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).