Opinion
No. COA10-847
Filed 18 January 2011 This case not for publication
Appeal by respondent-mother from order entered 23 April 2010 by Judge Edward A. Pone in Cumberland County District Court. Heard in the Court of Appeals 21 December 2010.
Staff Attorney Christopher L. Carr for petitioner-appellee Cumberland County Department of Social Services. Richard E. Jester for respondent-appellant mother. Attorney Advocate Beth A. Hall for guardian ad litem.
Cumberland County No. 09 JA 495.
Respondent-mother appeals from the trial court's 23 April 2010 order adjudicating her son, S.M., neglected and dependent. Respondent argues that several of the trial court's findings of fact are either not supported by the evidence or do not support the trial court's conclusions that S.M. was neglected and dependent. After careful review, we affirm.
Initials are used to protect the identity of the minor child.
Facts
In January 2006, the Cumberland County Department of Social Services ("DSS") substantiated a report that respondent's three oldest children were neglected. DSS took custody of those three children in October 2006. In March 2007, respondent gave birth to a fourth child. Respondent tested positive for cocaine between October and December 2007, and DSS substantiated claims of substance abuse and domestic violence. In July 2008, respondent's fourth child was adjudicated dependent. By the time of the hearing in this case, DSS had been relieved of reunification efforts related to respondent's fourth child.
S.M., respondent's fifth child, was born in August 2008, and DSS received a child protective services report in September 2008 alleging neglect based on respondent's mental health status and inability to care for S.M. On 21 October 2008, DSS determined that family services were necessary. Throughout 2008 and 2009, respondent neglected to take S.M. for medical appointments, did not utilize the resources and services available to her, and frequently refused to answer the door when DSS attempted to provide daycare services or to check on S.M. Respondent also lived at six different addresses between August of 2008 and September of 2009, and was evicted from one of those homes for failing to pay rent. When S.M. developed bumps on his face and body, respondent initially took him to the emergency room on 25 August 2009 for treatment. However, in spite of instructions to follow up with her regular physician, respondent missed a 28 August 2009 checkup. S.M.'s condition did not improve until he was taken into DSS custody and seen by another doctor.
On 1 September 2009, DSS filed a petition alleging that S.M. was neglected and dependent, and the district court entered an order placing S.M. in non-secure custody. Specifically, the petition alleged that S.M. was not provided necessary medical care, that S.M. lived in an environment injurious to his welfare, and that S.M.'s parents were unable to provide for care or supervision. The petition identified "A.J." as S.M.'s putative father and paternity testing later confirmed that he is S.M.'s father. A.J. is also the father of three of respondent's other children.
The matter came on for hearing on 31 March and 1 April 2010. Several social workers and service providers described respondent's history with DSS, her inability to provide a stable home for S.M., her ongoing mental health and substance abuse issues, and her efforts toward addressing those issues. Respondent missed counseling appointments and refused to allow DSS to administer services; failed to complete a GED program; struggled to provide for her own basic needs; and was evicted from her home for nonpayment of rent. After respondent was evicted, she moved often and lived with various friends and family. Respondent suffered from depression and sought treatment, but frequently missed her therapy appointments. Respondent and A.J. also testified at the hearing. On 23 April 2010, the trial court entered an order in which it adjudicated S.M. neglected and dependent. Respondent filed written notice of appeal from the trial court's order. A.J. is not a party to this appeal.
Discussion
On appeal, respondent argues that several of the trial court's findings of fact either are not supported by the evidence or do not support its conclusion that S.M. is neglected and dependent. We disagree.
"When an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines the evidence to determine whether there exists clear, cogent and convincing evidence to support the findings." In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (citing N.C. Gen. Stat. §§ 7B-805, 807 (2001); In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609 (1982)). If there is competent evidence to support the trial court's findings, those findings are binding on appeal, even if some of the evidence could support a contrary finding. In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985). "The trial judge 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, he alone determines which inferences to draw and which to reject." Id.
"Our review of a trial court's conclusions of law is limited to whether the conclusions are supported by the findings of fact." In re M.J.G., 168 N.C. App. 638, 643, 608 S.E.2d 813, 816 (2005) (citing In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984)). "If the trial court's conclusions of law are supported by findings of fact based on clear, cogent and convincing evidence, and the conclusions of law support the order or judgment of the trial court, then the decision from which appeal was taken should be affirmed." In re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999) (citing Hughes, 74 N.C. App. at 756, 330 S.E.2d at 217).
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 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 re S.C.R., ___ N.C. App. ___, ___, 679 S.E.2d 905, 911 (quoting N.C. Gen. Stat. § 7B-101(15)(2007)), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).
"A dependant child is `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.'" In re D.J.D., 171 N.C. App. 230, 239, 615 S.E.2d 26, 32 (2005) (quoting N.C. Gen. Stat. § 7B-101(9)(2003)).
Here, after carefully examining the record, we hold that the trial court's adjudicatory findings of fact are supported by clear, cogent, and convincing evidence, and that those findings, in turn, support the trial court's conclusions of law. Respondent specifically challenges findings of fact 13 through 23. We address each of the challenged findings in turn.
Finding of fact 13 details respondent's history with DSS dating back to 2006, and states that "[a]t that time, she also suffered from substance abuse issues, mental health issues, and an unstable lifestyle." In her brief, respondent concedes that she "has a history with the Cumberland County Department of Social Services[,]" but takes issue with the portions of the finding that describe her drug abuse. Contrary to respondent's argument, however, the guardian ad litem's court report indicates that respondent tested positive for cocaine multiple times in 2007, and that on another occasion she indicated that she would have tested positive. Further, respondent testified at the adjudication hearing that she had drug problems when DSS became involved with her family. Thus, we hold that finding of fact 13 accurately describes the evidence presented regarding respondent's case history with DSS and drug abuse.
With respect to findings of fact 14, 15, and 16, respondent acknowledges that the evidence supports these findings, but argues that the findings do not support the trial court's conclusions that S.M. is neglected or dependent. Specifically, finding 14 describes the services offered to respondent by DSS and her failure to complete her case plan; finding 15 describes respondent's ongoing unstable housing situation; and finding 16 describes respondent's mental health and drug problems and her treatment history. We hold that each of these findings describes respondent's behavior in a way that supports the trial court's conclusion that S.M. is neglected. In re E.T.S., 175 N.C. App. 32, 39-40, 623 S.E.2d 300, 304 (2005) (trial court's finding that respondent mother failed to maintain stable housing supported conclusion of neglect); In re J.W., 173 N.C. App. 450, 465, 619 S.E.2d 534, 545 (2005) (trial court's finding that respondents failed to complete case plan supported conclusion of neglect), aff'd per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006); see In re M.J.G., 168 N.C. App. 638, 647, 608 S.E.2d 813, 818 (2005) (trial court's finding that respondent mother tested positive for drugs supported conclusion of neglect).
As to finding of fact 17, respondent specifically takes issue with the evidentiary support for a portion of the finding in which the trial court describes an incident where respondent "became violent and began throwing things around and caused a disturbance. It rose to the level where the landlord indicated that she would have to move." Contrary to respondent's argument, however, this finding is drawn directly from respondent's own testimony. Respondent testified that during an argument with a roommate, she "got upset and broke up everything in the house, throwing their stuff in the yard." As a result, respondent had to move out of the apartment. In light of respondent's own testimony, we conclude that this finding is supported by ample evidence.
In finding of fact 18, the trial court describes the therapy options offered to respondent and her history of missing appointments. Respondent acknowledges that she "did not respond perfectly to her therapeutic intervention[,]" but claims that her therapy history is not relevant to the conclusion that S.M. is neglected or dependent. To the contrary, respondent's history with mental health counseling, including her inconsistent cooperation with counseling, is highly relevant to the determination that S.M. is neglected. See E.T.S., 175 N.C. App. at 40, 623 S.E.2d at 304 (holding that a finding that respondent mother did not follow through with mental health counseling supported trial court's conclusion of neglect).
Respondent next challenges the portion of finding of fact 19 that describes an altercation that took place between neighbors in respondent's house. Respondent does not refute the basic facts of the finding, but alleges that the incident was "not as sinister as the court's finding." In fact, respondent's own testimony supports the trial court's description of the incident contained in the finding of fact, including that the argument took place while one of the individuals was holding S.M. In making its findings of fact, the trial court determines "the weight to be given the testimony and the reasonable inferences to be drawn therefrom." Hughes, 74 N.C. App. at 759, 330 S.E.2d at 218. Accordingly, we hold that this finding of fact is supported by the evidence.
Next, respondent argues that her response to S.M.'s skin condition, as described in finding of fact 20, does not support the trial court's conclusion that S.M. is neglected. Respondent essentially argues that she acted appropriately in responding to S.M.'s condition and the initial diagnosis. In the finding, the trial court describes how respondent at first sought appropriate treatment for S.M.'s rash, but failed to obtain follow-up treatment, as directed, when the prescribed medication proved ineffective. The trial court found:
There was concern as to whether or not the Respondent Mother was keeping medical appointments. It was later determined that the Respondent Mother had missed a couple of well-checks. . . . The evidence would indicate that a follow up did not occur within a reasonable time and in fact a well-check was missed in the interim and had to be rescheduled. It was at this subsequent well-check appointment that the juvenile was brought into care.
The portions of the finding devoted to respondent's response to S.M.'s rash are supported by the testimony of social worker Patricia Carruthers. Further, respondent's failure to seek appropriate follow-up care also supports the trial court's conclusion that S.M. is neglected. See In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567, appeal dismissed and disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002) (a parent's failure to obtain medical treatment when aware of a juvenile's need for treatment supports a conclusion that a juvenile is neglected), cert. denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003). Accordingly, we hold that this finding is proper.
As to findings of fact 21 and 22, respondent does not contend that they are unsupported by the evidence, but instead argues that these findings do not support the conclusion that S.M. is neglected or dependent. Finding 21 is devoted to respondent's previous hospitalizations for mental instability and, as respondent recognizes in her brief, the trial court credits respondent for voluntarily seeking help in some prior instances. The trial court also finds that in other instances, however, respondent failed to take advantage of the services provided to her. Similarly, in finding 22 the trial court acknowledges that respondent cares for S.M., but expresses concern that her instability and use of sleeping pills create a dangerous environment for S.M. After examining the record before us, we hold that the trial court properly considered these findings in determining that S.M. is neglected. See In re E.N.S., 164 N.C. App. 146, 150, 595 S.E.2d 167, 170 (a conclusion of neglect was properly based in part on respondent mother's continued substance abuse, including sleeping pills, and her failure to comply with drug treatment), disc. review denied, 359 N.C. 189, 606 S.E.2d 903 (2004).
Finally, respondent concedes, as the trial court found in finding of fact 23, that she offered no alternative child care plan because it is her intention to regain custody of S.M. In spite of that concession, respondent contends that the finding does not support a conclusion that S.M. is neglected or dependent. The failure to provide an alternative child care plan is a component of the definition of a dependent juvenile. Considered along with the trial court's other findings of fact regarding respondent's inability to provide proper care for S.M., we hold that finding of fact 23 does support a conclusion that S.M. is dependent. See D.J.D., 171 N.C. App. at 239, 615 S.E.2d at 32.
In sum, after examining the record and trial transcript, we hold that the challenged findings of fact are supported by the evidence and support the trial court's conclusions that S.M. is neglected and dependent. Accordingly, we affirm the trial court's order.
Affirmed.
Judges CALABRIA and ELMORE concur.
Reported per Rule 30(e).