Opinion
No. COA18-622
02-05-2019
IN THE MATTER OF: J.P.N.
Lauren Vaughan, for petitioner-appellee Iredell County Department of Social Services. Sydney Batch, for respondent-appellant mother. Schell Bray PLLC, by Christina Freeman Pearsall, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Iredell County, No. 17 JA 102 Appeal by respondent-mother from orders entered 16 March 2018 by Judge H. Thomas Church in Iredell County, District Court. Heard in the Court of Appeals 10 January 2019. Lauren Vaughan, for petitioner-appellee Iredell County Department of Social Services. Sydney Batch, for respondent-appellant mother. Schell Bray PLLC, by Christina Freeman Pearsall, for guardian ad litem. STROUD, Judge.
Respondent appeals from an order adjudicating her son a neglected juvenile and from a disposition order continuing his custody with the Iredell County Department of Social Services ("DSS"). Because the trial court's findings of fact support its conclusion that James is a neglected juvenile, the trial court did not err by adjudicating James as neglected. There was also sufficient evidence to support the trial court's order requiring respondent to submit to a substance abuse assessment. We therefore affirm.
I. Background
On 11 April 2017, respondent-mother gave birth to James. Upon leaving the hospital, respondent and James lived with her parents. On or about 2 June 2017, Iredell County Department of Social Services ("DSS") filed a juvenile petition alleging James to be a neglected and dependent juvenile. The petition alleged that James and respondent had lived with the maternal grandparents of James since his discharge from the hospital following his birth, but respondent and father were married and hope to live together after father is released from prison. The maternal grandmother had expressed fear of father and that he had "threatened to kill her in the past." The grandparents feared that father may "come and pick . . . [up respondent and James] and leave the state" and were concerned about respondent's continuing failure to participate in mental health treatment and take medication for her schizophrenia.
A pseudonym has been used throughout this opinion to protect the juvenile's privacy and for ease of reading.
Father is not a party on appeal.
The petition also alleged that respondent and father had an older child who was removed from their care by the Guilford County Department of Social Services and in the custody of a paternal aunt because the parents had been involved in a high speed chase with the child in the car, unrestrained. As a result of the chase, respondent was convicted of child abuse and father was charged with attempted murder; father admitted to using cocaine earlier that day, had several other criminal convictions, and was incarcerated at the time of the petition. Father denied that respondent has any mental health issues, although he reported that he also talks to himself.
This child is not involved in this action.
The petition further alleged that when James was born, DSS received a report of concerns about respondent's mental health. Respondent had previously been diagnosed as schizophrenic but was not receiving medical treatment and had stated she was "unwilling to engage in the treatment recommended." Respondent stated that she was not able to care for James and that it was her desire for the maternal grandparents to care for him. Respondent-mother's family expressed concern regarding respondent-mother's ability to care for James, stating that she "frequently talks to herself, leave for hours walking around the neighborhood, and takes extremely long showers while talking to herself." Respondent's family was also concerned about the domestic violence between respondent and father when he was released from prison. Any care respondent provided to James was supervised by the maternal grandparents, with whom respondent and James resided, and the maternal uncle. There were no allegations that James was not well-cared for by respondent's family.
On 6 September 2017, the trial court entered an order finding that respondent-mother had great difficulty understanding the legal process and had been observed having a conversation with herself in the courtroom for most of the past hour. The trial court also appointed a guardian ad litem ("GAL") for respondent pursuant to North Carolina General Statute § 1A-1, Rule 17 based upon respondent's untreated mental health issues. The juvenile petition came on for adjudication and disposition on 13 December 2017. On 16 March 2018, the trial court entered an order concluding that James was a neglected juvenile pursuant to North Carolina General Statute § 7B-101(15).
The trial court also entered a disposition order, continuing legal custody of James with DSS and approving the maternal grandparents to continue providing placement for him. Respondent and father were ordered to: (1) enter into and comply with the terms of the case plan; (2) cooperate with DSS and the GAL; (3) sign all releases of information necessary for DSS and the GAL to exchange information with providers and monitor progress; (4) provide DSS and the GAL with a comprehensive list of all adult living relatives, "nonrelative kin," and relatives, parents, or other persons with legal custody of James' sibling, along with their contact information, within seven days of the hearing; (5) complete a mental health and substance abuse assessment and comply with recommendations; (6) complete DSS-approved parenting classes; and (7) refrain from criminal activity. Respondent was granted a minimum of two hours supervised visitation per week, as was father upon his release from prison. Respondent appeals. On appeal, respondent argues that (1) the trial court erred by concluding that James was a neglected juvenile, and (2) the trial court abused its discretion by ordering her to complete a substance abuse assessment. We address each argument in turn.
II. Adjudication of Neglect
Respondent first contends that the trial court erred in adjudicating James as neglected. A. Standard of Review
The role of this Court in reviewing a trial court's adjudication of neglect and abuse 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. 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.In re Q.A., 245 N.C. App. 71, 73-74, 781 S.E.2d 862, 864 (2016) (citations, quotation marks, and brackets omitted). A neglected child is one
. . . .
In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent.
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 the custody of whom has been unlawfully transferred under G.S. 14-321.2; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or 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) (2017).
North Carolina General Statute § 7B-101(15) has since been amended. See N.C. Gen. Stat. § 7B-101 (2018).
In order for a child to be adjudicated neglected, "this 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) (emphasis added) (citations and quotation marks omitted). This Court has also stated, however, that "[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). In addition, neglect is a status, and the trial court need not assign responsibility to a particular parent, although it may. See generally Q.A., 245 N.C. App. at 74, 781 S.E.2d at 864 ("In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent."). B. Findings of Fact
Respondent first challenges several of the trial court's findings of fact as not supported by clear and convincing evidence. The trial court made the following findings of fact in its adjudication order:
4. Respondent Mother declared incompetent based upon her significant mental illnesses on September 6, 2017 and was appointed a Rule 17 GAL.
5. The Respondent Mother is diagnosed with schizophrenia and she has not treated this disorder while she has been caring for the juvenile. Her entire family has expressed concern for Respondent Mother's ability to care for the juvenile. She leaves for hours at a time with no notice and takes long walks while she talks to herself or imaginary people.
6. The Respondent Father has never provided care for the juvenile and he is incarcerated in another state. He was previously charged with attempted murder involving a prior child of the Respondent Parents. Respondent Mother was convicted of child abuse regarding that prior child.
7. Based on the evidence presented, the information contained in "Petitioner's Exhibit A" -- which is attached hereto and incorporated by reference as if fully and specifically set forth herein -- has been proven by clear and convincing evidence, shall constitute the Court's adjudicatory findings of fact, and supports a conclusion of law that the above-
named juvenile is neglected.
As to finding of fact 7, respondent-mother argues that the trial court impermissibly found as fact that all of the allegations contained in the juvenile petition had been proven by clear and convincing evidence. Specifically, respondent challenges the following portions of facts from Petitioner's Exhibit A:
a. Respondent father has a criminal history including convictions of driving while license revoked, resisting public officer, possession of schedule VI and speeding. He also currently has fugitive warrants out of the State of South Dakota.
b. Respondent parents express their desire to be together upon [respondent-father's] release from incarceration.
c. The maternal family expresses concerns that upon the Respondent Father's release from jail that he will come and pick up the Respondent Mother and minor child and leave the state. They express that he has done this in the past.
d. The Respondent parents have had an older child that was removed from their care by the Guilford County Department of Social Services due to the parents having previously been in a high speed chase with the child in the car unrestrained, concerns with the Respondent Mother's mental health, and her ability to provide appropriate care for the child. As a result of the high speed chase with the child in the car, the Respondent Mother was convicted of child abuse. The Respondent Father was charged with attempted murder.
He also admitted to using cocaine earlier that day.(Brackets omitted.)
e. Both parents were placed on the Responsible Individuals List. That child is currently in the custody of a paternal aunt.
f. The mother and the maternal family do not have contact with this child. Respondent mother has never received consistent mental health treatment.
g. Respondent Mother has not taken an active role in caring for the minor child.
Finding of fact 7 is supported by the testimony of the DSS social worker at the adjudication hearing. The DSS social worker testified that she had reviewed the contents of the juvenile petition, that the contents were "true and accurate" to the best of her knowledge, and that she was adopting the contents as her testimony. Respondent's attorney declined to cross-examine the DSS social worker, and thus, the evidence was uncontroverted. Accordingly, the challenged portions of finding of fact 7 are supported by the evidence.
Second, respondent challenges the portions of finding of fact 5 that state that she leaves with no notice and talks to imaginary people. There was evidence presented that respondent would go on walks by herself for hours and talk to herself. The maternal uncle specifically testified she would "disappear for hours[,]" although there was no direct evidence in the record to indicate that she would leave no notice or that she was talking to "imaginary people" — although this phrase may have simply been a way for the trial court to describe respondent's talking to herself, which she continued to do even in the courtroom during the hearing. Thus, the evidence does not support the portions of finding of fact 5 regarding respondent leaving the home without notice and that she talked to "imaginary people," but even if these few words are removed, the import and meaning of the finding is the same, especially when read in context of the rest of the order.
The trial court determined respondent was incompetent and appointed a guardian ad litem for her under Rule 17 of Civil Procedure. "[T]he role of the GAL should be determined based on whether the trial court determines that the parent is incompetent or whether the trial court determines that the parent has diminished capacity and cannot adequately act in his or her own interest. Rule 17(e), which addresses the duties of a GAL for an incompetent person, should apply if the parent is incompetent—the role of the GAL should be one of substitution." In re P.D.R., 224 N.C. App. 460, 469, 737 S.E.2d 152, 158 (2012). --------
Third, respondent contests the portion of finding of fact 6 in which the trial court found that respondent-mother was convicted of child abuse regarding her older child and that respondent-father was charged with attempted murder. But as previously discussed, the juvenile petition contained these allegations; the DSS social worker testified that the contents of the juvenile petition were true and accurate, and the DSS social worker adopted the contents as her testimony without objection. Therefore, there was sufficient evidence presented to support this finding. C. Conclusion of Law Regarding Neglect
Respondent also contends that findings of fact do not support the trial court's conclusion that James was a neglected juvenile. We review a trial court's conclusions of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006). Respondent argues that there is no finding that she had harmed James or placed him at a substantial risk of harm because "taking long walks and showers in conjunction with a mental health diagnosis do[ ] not justify adjudicating a child neglected," nor does her relinquishment of her rights to her older child. Respondent is correct that there is no evidence that James has suffered any "physical, mental or emotional impairment" from a lack of "proper care, supervision, or discipline" while living with his grandparents and respondent. See Safriet, 112 N.C. App. at 752, 436 S.E.2d at 901-02. And further, if there were "a substantial risk of such impairment[,]" presumably the trial court would not have left James living in essentially the same circumstances, but for the grant of legal custody to DSS. Id. at 112 N.C. App. at 752, 436 S.E.2d at 902. But respondent's argument overlooks the other findings of fact regarding the risk of the child's potential removal from the grandparent's home and the substantial risk of harm those facts support.
The limited facts noted by respondent do not accurately reflect all of the trial court's reasons for adjudicating James as neglected. If taking long showers and walks, schizophrenia, and involuntary relinquishment of another child were the only facts to support the adjudication, we may agree with respondent. But all of the findings of fact other than the limited portions of finding of fact 5 noted above were supported by the evidence. Those findings show that respondent has untreated schizophrenia and she was unwilling to engage in treatment; her mental health condition had rendered her unable to care for James on her own since his birth. She was convicted of child abuse of James's sibling; she had admitted she was not able to care for the child and wanted the maternal grandparents to do so; that she had never taken an active role in caring for James; that she and James had lived with her parents since James was born; that she had expressed a desire to be with father when he is released from jail; that father had threatened to kill James's grandmother; that her family was aware of domestic violence between respondent and father; and that father either suffers from a similar disorder to respondent's or has no insight into respondent's condition, as he denies that she has any mental health issues and also talks to himself.
The only reason James has not been harmed is that respondent and James lived with her parents since James's birth and father has been incarcerated so he has been unable to take respondent and James away. James's grandparents and uncle have been his primary caregivers his entire life. Respondent lived in the same house but has never taken an active role in caring for James without supervision. In that sense, this case is similar to those where a child has never lived with a parent, since the trial court must make a prediction that the child would be at a substantial risk of harm if left in the sole custody of the parent. In a similar case, In re K.J.D., this Court noted:
The difficulty in this particular case arises because it is an adjudication of neglect pursuant to N.C. Gen. Stat. § 7B-805 and not a termination of parental rights under N.C. Gen. Stat. § 7B-1111 (2009). . . .
. . . .
The factual situation presented in a termination of parental rights case is normally different from that presented by an adjudication case because in a termination case, the child has usually been removed from the parent's home a substantial period of time before the filing of the petition for termination. An adjudication case normally arises immediately following the child's removal from the parent's home. Thus, this is an unusual appeal in which this Court is being asked to pass upon the sufficiency of evidence to support findings of neglect at the removal, rather than at the termination, stage. This Court noted in In re Evans that
there is a substantive difference between the quantum of adequate proof of neglect and dependency for purposes of termination and for purposes of removal. The most significant difference is that while parental rights may not be terminated for threatened future harm, the DSS may obtain temporary custody of a child when there is a risk of neglect in the future.
However, there is no difference in the definition of neglect as used in cases addressing termination of parental rights under N.C. Gen .Stat. § 7B-1111 and cases addressing adjudication of neglect under N.C. Gen.Stat. § 7B-805; both use the same definition of neglect, referring to N.C. Gen. Stat. § 7B-101(15). Therefore, we may look to cases arising in either context to determine if neglect has been demonstrated in this case.
This case resembles those that deal with termination of parental rights based upon neglect in that
the child has not lived in a home with a parent for a substantial period of time prior to the filing of the petition. For this reason, our courts have addressed the evidence needed to demonstrate neglect of a child who has previously been removed from the parent's home. A prior adjudication of neglect is not sufficient for termination of parental rights. The court must look at the circumstances as they currently exist and
take into consideration any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.
Therefore, to apply the same standard in this situation, the court should consider evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the adjudication proceeding. The need for the court to consider the conditions and the fitness of the parent to provide care at the time of the adjudication is based upon the court's obligation to consider the best interests of the child. Our Supreme Court has stated that
our discussion would not be complete unless we re-emphasized the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody, to wit, that the best interest of the child is the polar star. The fact that a parent does provide love, affection and concern, although it may be relevant, should not be determinative, in that the court could still find the child to be neglected within the meaning of our neglect and termination statutes. Where the evidence shows that a parent has failed or is unable to adequately
provide for his child's physical and economic needs, whether it be by reason of mental infirmity or by reason of willful conduct on the part of the parent, and it appears that the parent will not or is not able to correct those inadequate conditions within a reasonable time, the court may appropriately conclude that the child is neglected. In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent.
The need for the court to consider the conditions as they exist at the time of the adjudication as well as the risk of harm to the child from return to a parent is also reflected in cases in which the child has never resided with the parent. A child may be adjudicated as neglected by a parent even if the child has never resided in the parent's home. The court in In re McLean noted that in cases where the child has never lived with the parent, 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.203 N.C. App. 653, 659-61, 692 S.E.2d 437, 442-44 (citations, quotation marks, ellipses, and brackets omitted). Here too, due to respondent's "inability to care for the child" and "problems which made her unable to care for the child[,]" "[t]he court's findings of fact show that respondent-mother has been and remains unable to adequately provide for her child's physical and economic needs." Id. at 661, 692 S.E.2d at 444.
Here, the uncontested findings of fact demonstrate that the child was placed in a kinship placement with the maternal grandmother because of both parents' inability to care for the child. In addition, respondent-mother's problems which made her unable to care for the child have continued ever since that time. The court's findings of fact show that respondent-mother has been and remains unable to adequately provide for her child's physical and economic needs.
By respondent's argument, even if at the hospital immediately upon the child's birth, a mother is clearly not capable of caring for a newborn, the child would have to be placed in her sole care long enough for the child to be harmed by her failure to provide proper care before the child could be adjudicated as neglected; this is not the law. See In re A.B., 179 N.C. App. 605, 611, 635 S.E.2d 11, 16 (2006) ("To hold that a newborn child must be physically placed in the home where another child was abused or neglected would subject the newborn to substantial risk, contrary to the purposes of the statute.").
Section 7B-101(15) affords the trial court some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in which they reside. In cases of this sort involving a newborn, 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 N.G., 186 N.C. App. 1, 8-9, 650 S.E.2d 45, 50 (2007) (citations, quotation marks, and brackets omitted), per curiam aff'd, 362 N.C. 229, 657 S.E.2d 355 (2008). All of the trial court's findings support its prediction that James would be subjected to a substantial risk of harm if left in Respondent's mother's sole custody and care.
In addition, respondent's argument overlooks the trial court's findings regarding father's actions. Neglect under North Carolina General Statute § 7B-101(15) is a status, and the trial court need not assign responsibility for that status to either parent: "In determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent." K.J.D., 203 N.C. App. at 660-61, 692 S.E.2d at 443.
Here, the trial court's findings addressed the actions of both respondent and father and the risk posed to James by both parents - a risk which is magnified in this case if respondent and father were to have James in their joint care. The trial court's order addressed actions of both respondent and James's father, who did not appeal the trial court's order. The findings of fact regarding father also support the trial court's conclusion of neglect as father was in prison at the time of the hearing; had taken cocaine and then drove at a high speed with a child unrestrained in the car; did not believe that respondent had mental health issues as he also talked to himself; and one of his many criminal charges involved the attempted murder of his other child. See generally N.C. Gen. Stat. § 7B-101(15). Father never provided any care for James. Further, James's maternal grandparents were concerned that when father is released from prison, he would attempt to take James. Since James had never lived with father, again the trial court's determination must be predictive, but the findings support the trial court's conclusion that James would be at a substantial risk of harm in the care of father as well. This argument is overruled.
III. Substance Abuse Assessment
Respondent contends that the trial court abused its discretion in ordering her to complete a substance abuse assessment when there was no evidence presented that she had a substance abuse problem.
The district court has broad discretion to fashion a disposition based upon the best interests of the child. We review a trial court's disposition order only for an abuse of discretion. Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.Matter of L.Z.A., ___ N.C. App. ___, ___, 792 S.E.2d 160, 170 (2016) (citations and quotation marks omitted).
As pointed out by DSS, the trial court did not order respondent to seek substance abuse treatment but rather to seek an assessment to determine if she has any issues with substance abuse. And there was evidence to support the need for at least an assessment to determine if respondent was abusing drugs. The record shows that respondent stated "drugs were meant to be abused[.]" Respondent's own statement along with her erratic behavior justifies the trial court's order for an assessment; the assessment would aid the court in determining what remedial conditions may be necessary for respondent to be able to care for James on her own, and thus the trial court did not abuse its discretion. See generally In re A.R., 227 N.C. App. 518, 522, 742 S.E.2d 629, 632-33 (2013) ("The children here were initially removed primarily for respondents' issues with domestic violence. Requiring respondent-mother and/or respondent-father to receive and comply with recommendations of mental health assessments, medical professionals supplying prescription medications, substance abuse evaluations, and drug screens is reasonably related to aiding respondents in remedying the conditions which led to the children's removal; all of these requirements assist respondents' in both understanding and resolving the possible underlying causes of respondents' domestic violence issues."). This argument is overruled.
IV. Conclusion
For the foregoing reasons, we affirm the trial court's determination that James is a neglected juvenile.
AFFIRMED.
Judges DILLON and BERGER concur.
Report per Rule 30(e).