Opinion
No. COA16-328
10-18-2016
IN THE MATTER OF: R.G.B. and V.J.B.
Warrick, Bradshaw and Lockamy, P.A., by Frank L. Bradshaw, for petitioner-appellee Sampson County Department of Social Services. Sydney Batch for respondent-appellant. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Kayla J. Marshall, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Sampson County, Nos. 15 JA 49-50 Appeal by respondent from adjudication orders entered on or about 11 December 2015 by Judge Louis F. Foy, Jr. and disposition orders entered on or about 21 January 2016 by Judge William B. Sutton, Jr. in District Court, Sampson County. Heard in the Court of Appeals 26 September 2016. Warrick, Bradshaw and Lockamy, P.A., by Frank L. Bradshaw, for petitioner-appellee Sampson County Department of Social Services. Sydney Batch for respondent-appellant. Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Kayla J. Marshall, for guardian ad litem. STROUD, Judge.
Respondent, the mother of the juveniles R.G.B. and V.J.B., appeals from orders adjudicating the juveniles neglected and dependent and placing them in the home of their paternal aunt and uncle. After careful review, we affirm.
On 14 August 2015, Sampson County Department of Social Services ("DSS") filed petitions alleging that R.G.B. and V.J.B. were neglected and dependent juveniles. DSS stated that it had prior involvement with the family in 2012 due to respondent's mental instability. DSS alleged that respondent had been diagnosed with bipolar disorder and schizophrenia, had been previously hospitalized involuntarily, and had a history of not taking her prescribed medications. Respondent also previously admitted to marijuana use and had a history of abusing crack cocaine and alcohol. The case was closed with the juveniles' father being made the "protective parent."
DSS stated that, on 12 August 2015, it received a report that the juveniles were being neglected because there may be a methamphetamine laboratory in their home. DSS alleged that the father ran from law enforcement during the "bust" of the methamphetamine laboratory in the home where he and the children lived, and afterwards his whereabouts were unknown. When the social worker arrived at the home, she found respondent removing items from the home. Respondent became "irate in the presence of her children by yelling loudly, using vulgar language, pacing back and forth, [] talking fast and [displaying] a sarcastic attitude towards authorities present." Respondent refused to take a drug test and stated that she would refuse any mental health treatment recommended by DSS. The juveniles were taken by ambulance to the hospital where they were decontaminated from methamphetamine exposure. The next day, during an interview with DSS, respondent admitted to (1) buying Sudafed and selling it for fifty dollars per box to make extra money and (2) punching the father in the face, resulting in two black eyes, while sitting on his lap in a vehicle and in the presence of the juveniles. DSS obtained non-secure custody of the juveniles, and they were placed in a kinship placement with their paternal aunt and uncle.
On or about 11 December 2015, the trial court adjudicated the juveniles neglected and dependent. The court ordered concurrent permanent plans for the juveniles of reunification and custody with a relative or court-appointed caretaker. The court granted respondent visitation, and ordered that custody remain with DSS and placement remain with the paternal aunt and uncle. Respondent appeals.
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. 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 T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) (citation, quotation marks, and brackets omitted), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). We review the trial court's conclusions of law de novo on appeal. In re D.M.M. & K.G.M., 179 N.C. App. 383, 385, 633 S.E.2d 715, 716 (2006) (citation omitted).
Respondent first argues that the trial court erred by adjudicating the juveniles as neglected.
"Neglected juvenile" is defined in N.C. Gen. Stat. § 7B-101(15) 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. 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). 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 re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999) (citation omitted). However, to sustain an adjudication of neglect, this Court has stated that the alleged conditions must cause the juvenile some physical, mental, or emotional impairment, or create a substantial risk of such impairment. See In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993).
Here, the trial court made the following findings of fact regarding the adjudication of neglect:
5. That the Sampson County Department of Social Services received a report of potential abuse, neglect, and/or dependency on August 12, 2015, due to a potential methamphetamine laboratory at the home of the Respondent Father.
6. That the family has prior history of mental health issues in 2012 whereupon the Department of Social Services provided in-home services.
7. That at the time of the report the Juvenile[s] [were] primarily residing with the Respondent Father.
8. That when the Department of Social Services arrived the Respondent Mother was at the home and was removing the Juvenile[s'] belongings from the Father's home and was cursing and yelling in the presence of the Juvenile[s].
9. That the Department was unable to get any information from the Respondent Mother because she was out of control and could not focus on any particular question.
10. That the Respondent Mother was not on any medication and refused to take any medications despite being diagnosed with Bipolar Disorder.
11. That the Respondent Mother had been selling Sudafed on the streets for $50.00 per box for extra money.
12. That the Respondent Mother refused to take a drug screen on August 13, 2015, while at the Department of Social Services.
13. That the Respondent Mother has committed domestic violence in the presence of the Juvenile[s] in that while traveling in a car she punched Respondent Father in the face, giving him two black eyes, while the Juvenile[s] [were] watching from the back seat.
14. That . . . within the home of the Respondent Father[,] law enforcement found hypodermic needles, drug paraphernalia, methamphetamine, marijuana in plain view, as well as the Juvenile[s'] toys, clothing and other items all about the residence.
15. That the Respondent Mother's demeanor in the Court was very strange as she was leaving the courtroom at times and was talking and acting out during the hearing.
We are bound by those findings not challenged by respondent on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal). Moreover, we review only those findings necessary to support the trial court's conclusion that the juveniles were neglected. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (erroneous findings that are unnecessary to support adjudication of neglect do not constitute reversible error).
Respondent first challenges finding of fact number 6, stating that there was no competent evidence in the record concerning DSS's prior involvement with the family. While there was no specific evidence concerning the exact dates that DSS provided in-home services to the family, the substance of the finding is supported. Specifically, a DSS social worker testified that DSS previously provided "in-home services with concerns about the [respondent's] mental health. . . issues." DSS further testified that the case was closed with the understanding that "the father would be the protective parent and . . . make sure . . . the children were supervised. . . . with the [respondent]." The social worker additionally testified that DSS knew respondent was "bipolar and that [she was] not taking her medication." We conclude that this evidence is sufficient to support the trial court's finding that DSS previously provided respondent with in-home services due to her mental health issues.
Respondent next challenges the trial court's finding of fact number 7 that the juveniles primarily resided with their father. Respondent contends that this was an improper presumption for which there was insufficient supporting competent evidence.
The evidence showed that DSS previously closed its case with the family on the condition that the father be the protective parent. Based upon a report that the father was running a meth lab in the home where he lived with the children, law enforcement investigated the father's residence and found that he was manufacturing methamphetamine. In the home, the social worker found "a bedroom designated to two children. There was a bunkbed, . . . children's toys throughout the residence, clothing, . . . shoes, personal items of that nature that would suggest to me that the children were residing there." Additionally, when DSS went to investigate, respondent was "removing the children's belongings from the home like she was going to be getting them[.]" Based on this testimony, the trial court could properly find that the juveniles primarily resided in the father's home.
Respondent argues that finding of fact number 8, that she was "cursing and yelling in the presence of the Juvenile[s]" is incorrect. We disagree. Here, the DSS social worker testified that when they went to investigate and found respondent at the father's home, respondent "was cursing, yelling loudly, right in front of her children." Respondent cites testimony on cross-examination from the social worker, however, that when they found respondent at the father's home, the children were in respondent's car. This testimony is not necessarily contradictory, as it does not preclude the possibility that respondent's actions were close enough to her car that it did occur in the presence of the juveniles. Moreover, to the extent that the testimony may be inconsistent, such contradictions in the evidence were for the trial court to reconcile. See In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (It is the trial judge'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.").
Respondent argues that finding of fact 13 was in error because no timeframe was provided to determine when this incident of domestic violence occurred. However, the trial court made no findings as to timeframe, and respondent admitted that the incident occurred. Thus the finding is supported by competent evidence.
Respondent argues that the trial court's finding of fact 14, that methamphetamine was found within respondent's home, was based on incompetent evidence. Specifically, respondent cites the trial court's admission over objection of testimony from Officer Dustin Irvin of the Sampson County Sheriff's Office that he found in the father's home a "glass jar containing a pinkish liquid which later tested positive for -- . . . -- methamphetamine." Respondent asserts that Officer Irvin was not an expert in laboratory analysis, and no foundation was laid to qualify him as an expert in identifying methamphetamine. We conclude, however, that any error was not prejudicial.
"Where the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply to the adjudication hearing." In re A.L.T. & C.T., ___ N.C. App. ___, ___, 774 S.E.2d 316, 318 (2015) (citation and quotation marks omitted). "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." N.C. Gen. Stat. § 8C-1, Rule 602 (2015). Pursuant to N.C. Gen. Stat. § 8C-1, Rule 701 (2015), lay witness "testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."
Here, Officer Irvin was not tendered as an expert witness, either in the identification of methamphetamine or in laboratory analysis. Moreover, no foundation was laid to allow him to testify as a lay witness concerning identification of the jar's contents. Officer Irvin merely testified that he was a narcotics investigator, with no testimony presented regarding his training or experience in identifying methamphetamine. See State v. Hargrave, 198 N.C. App. 579, 584, 680 S.E.2d 254, 258 (2009) (no error in admitting officers' testimony where they first testified as to their training and experience and thus their "respective testimony was based on personal knowledge of drug practices"); State v. Greenlee, 146 N.C. App. 729, 732, 553 S.E.2d 916, 918 (2001) ("[O]pinion testimony by a lay witness [admissible] because it was based on his specialized training and work experience"). Thus, we conclude it was error for the trial court to allow Officer Irvin to testify that the substance he recovered from the father's home was methamphetamine.
But this is an adjudication of neglect, not a criminal prosecution of the father for manufacturing or possession of methamphetamine. In fact, the father's counsel noted as much. After Officer Irvin began his testimony regarding his entry to the father's home and mentioned the "strong chemical odor," respondent's counsel objected, and the father's counsel stated that
Your Honor, if I may, I mean, we're at a point uhm, and we appreciate Mr. Irvin being here today, we can acknowledge that my client is currently being held on a trafficking allegation -- I don't think, I don't know how much further we really need to go into something that is already fairly obvious.The trial court responded that it "might not allow it in a criminal proceeding but I'm going to allow it in this proceeding. So overruled."
In a bench-trial, where the trial judge is sitting as finder of fact, the trial court is " 'presumed to have disregarded any incompetent evidence.' " In re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005) (quoting In re Huff, 140 N.C. App. 288, 298, 536 S.E.2d 838, 845 (2000)). Moreover, here, there is sufficient other competent evidence, independent from Officer Irvin's testimony, to support the trial court's finding concerning the presence of methamphetamine in the father's home. Specifically, respondent admitted that she knew the father was operating a methamphetamine laboratory, although she tried to minimize it by referring to it as a "shake and bake" operation. See State v. Davis, 236 N.C. App. 376, 380, 762 S.E.2d 886, 889, disc. review denied, 367 N.C. 802, 766 S.E.2d 642 (2014) ("At trial, officers testified about the methamphetamine production process and explained that the remnants of packaging of four out of five ingredients -- drain cleaner, sodium hydroxide, lithium batteries, and pseudoephedrine -- used to manufacture methamphetamine using the 'shake and bake' or 'one pot' method were recovered at the scene[.]"(Emphasis added)).
Nevertheless, respondent's attempt to downplay the seriousness of this production method fails, as the "shake and bake" method has been found to be an extremely dangerous method of producing methamphetamine. See, e.g., U.S. v. Wells, 706 F.3d 908, 912 (8th Cir. 2013) (affirming district court's application of substantial-risk-of-harm sentencing enhancement where "[DEA senior forensic chemist] explained that the explosive nature of the shake and bake method makes it dangerous and stated that pouring the contents of an active shake and bake laboratory down the sink could trigger an explosion or flash fire."). Whether the father had succeeded in producing methamphetamine in its final form or not, the production process and precursor chemicals themselves pose a danger to the children living in the home. In addition, DSS noted in its petition that the children had to be taken to the hospital to be decontaminated for their exposure to methamphetamine.
Respondent contends that her testimony was unreliable, considering she is not an expert in methamphetamine, nor were her motives for making such a disclosure clear. However, unlike Officer Irvin, respondent's statement to DSS was not offered for the purpose of identifying any alleged methamphetamine in the home, but was instead offered to demonstrate her knowledge of the conditions inside the home. Moreover, her motives and credibility in regards to her statement were for the trial court to decide. Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435. Thus, in light of respondent's testimony, the presence of other drugs and drug paraphernalia, and the need for medical decontamination of the children for exposure to methamphetamine, the trial court could properly find based on clear and convincing evidence that methamphetamine was present in the father's home.
Respondent next argues that the trial court erred in making finding of fact 15, concerning her courtroom demeanor. Respondent contends that it was erroneous for the court to consider this "post-petition evidence." We disagree. This Court has stated "[t]he demeanor of a witness on the stand is always in evidence." In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996); see also In re M.P.M., ___ N.C. App. ___, ___, 776 S.E.2d 687, 694 (2015), aff'd per curiam, ___ N.C. ___, 782 S.E.2d 510 (2016) ("The trial court properly considered respondent's in-court demeanor in determining whether Respondent properly appreciated the harmfulness of his and Mother's prior abuse."). Consequently, we conclude the trial court did not err when making finding of fact number 15.
Respondent next argues that the trial court failed to make any finding that the juveniles were impaired or at risk of impairment due to the alleged neglectful conditions. Thus, respondent contends that the trial court's findings of fact were insufficient to sustain an adjudication of neglect. 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).
Here, as demonstrated by the trial court's findings: (1) respondent has a history of mental illness; (2) respondent was not taking her prescribed medications to treat her mental illness; (3) respondent acted "out of control" when interviewed by DSS prior to the removal of the juveniles; (4) respondent had previously committed domestic violence in the presence of the juveniles; (5) the juveniles primarily resided in a home that was used to produce methamphetamine; (6) other drugs and drug paraphernalia were found in the home; (7) respondent refused to take a drug screen; (8) respondent sold Sudafed on the streets for extra money; and (9) respondent's demeanor in court was "very strange" and she "was talking and acting out[.]" Therefore, although the trial court failed to make a specific finding, all the evidence and findings of fact support a determination that the juveniles were at a substantial risk of physical, mental, or emotional impairment. Accordingly, we affirm the adjudication of neglect.
Respondent next argues that the trial court erred by adjudicating the juveniles as dependent. A dependent juvenile is defined as "[a] juvenile in need of assistance or placement because (i) the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or (ii) 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). "In determining whether a juvenile is dependent, 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 B.M., 183 N.C. App. 84, 90, 643 S.E.2d 644, 648 (2007) (citation and quotation marks omitted).
Respondent contends that the trial court's finding regarding the second prong, that she lacked an appropriate alternative caregiver arrangement, was erroneous, as evidenced by the fact the children were placed with an appropriate caregiver prior to the filing of the petitions. Appellees cite In re L.H., 210 N.C. App. 355, 364, 708 S.E.2d 191, 197 (2011) and argue that the finding was proper because it was DSS, not respondent, who proffered the paternal aunt and uncle as caregivers.
In L.H., upon the juvenile's birth, "DSS went to the hospital . . . and made a safety plan, which provided that [the juvenile] would be placed with a relative. DSS then, according to the trial court, 'on its own, placed the juvenile with . . . the maternal grandmother.' " Id. at 363, 708 S.E.2d at 197. On appeal, the respondent-father argued that the trial court's finding that " 'neither parent has offered an alternative placement for the juvenile' " was not sufficient to establish that he lacked an appropriate alternative child care arrangement. Respondent further argued that "whether DSS arranged the placement of [the juvenile] with his maternal grandmother 'should not have a bearing on whether there was an appropriate, alternative child care arrangement.' " Id. This Court disagreed, stating that "in order for a parent to have an appropriate alternative child care arrangement, the parent must have taken some action to identify viable alternatives." Id. at 364, 708 S.E.2d at 197. "Having an appropriate alternative childcare arrangement means that the parent [her]self must take some steps to suggest a childcare arrangement -- it is not enough that the parent merely goes along with a plan created by DSS." Id. at 366, 708 S.E.2d at 198. Of importance to this Court in reaching its conclusion was the fact that "the trial court specifically made a finding of fact that neither parent offered an alternative childcare arrangement." Id. at 365, 708 S.E.2d at 198 (emphasis added). This crucial finding of fact "permitted [the trial court] to find, as it did, that respondent father did not suggest any alternative placement plan, but rather merely went along with the arrangement made by DSS." Id. at 366, 708 S.E.2d at 198.
Here, the record establishes that DSS, not respondent, made the decision to place the juveniles with caregivers. A DSS social worker testified:
Q: Okay, and what else did you witness while you were at the home?As in L.H., there is no evidence in the record, nor any finding of fact, indicating that respondent, at any point in time, suggested an appropriate alternative caregiver or placement. The DSS social worker pointed out that respondent was "so irate and . . . out of control" that she could not even discuss it with her when the children were removed from the father's home. Respondent mother did not challenge the trial court's finding that "the Department was unable to get any information from the Respondent Mother because she was out of control and could not focus on any particular question." Thus, we find that the trial court did not err in finding that respondent lacked an appropriate alternative caregiver arrangement.
A: Uhm, just mother's behavior was very out of control. So we made the decision at that point that uhm, the children would go with a relative who was actually present when we were there, uhm, this is the paternal aunt, uhm, Amanda Stewart, so the children were placed in kinship care with her and because of mom's uhm, demeanor, we chose -- I told her that I would be in touch with her the next day so that we could, so that maybe she could calm down hopefully and we could talk to her more rationally about everything and maybe get more information because we actually could not even get any information from her. She was just so irate and just out of control. Uhm, we thought that maybe once she calmed down, she could tell us more about her mental health and what she has been doing since our, our involvement before.
Respondent's final argument is that the trial court erred in its disposition orders by failing to direct her to complete specific services in order to reunify with her children. Respondent contends that without such a "roadmap," she had no reasonable expectations of what the trial court required her to accomplish in order to effect reunification.
Pursuant to N.C. Gen. Stat. § 7B-904(d1)(3) (2015), "[a]t the dispositional hearing or a subsequent hearing, the court may order the parent . . . [to] [t]ake appropriate steps to remedy conditions in the home that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile from the parent[.]" (Emphasis added). "The word 'may,' when used in a statute, is generally construed as permissive rather than mandatory." Wise v. Harrington Grove Cmty. Ass'n, 357 N.C. 396, 403, 584 S.E.2d 731, 737 (2003) (citation omitted); see also Patterson v. Patterson, 137 N.C. App. 653, 664, 529 S.E.2d 484, 490 ("[T]he use of 'may' generally connotes permissive or discretionary action and does not mandate or compel a particular act." (quoting Campbell v. Church, 298 N.C. 476, 483, 259 S.E.2d 558, 563 (1979)).
Here, the trial court found in its dispositional orders that respondent: (1) refused to participate with DSS in developing a case services plan; (2) refused to sign a release so DSS could access her health records; (3) stated that she would "never comply" with requests made by DSS; and (4) threatened to abscond with the juveniles. Respondent does not challenge any of these dispositional findings on appeal, and thus we are bound by these findings. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Under these circumstances, we conclude the trial court did not err by failing to specify in the dispositional order services for respondent to complete in order to achieve reunification. Respondent made it clear that she would refuse to participate in any testing or treatment offered to her and ordering her to participate would be futile. Thus, the disposition orders are affirmed.
AFFIRMED.
Judges CALABRIA and INMAN concur.
Report per Rule 30(e).