Opinion
No. COA15-1185
05-10-2016
IN THE MATTER OF: J.S.K. AND J.E.K.
Hartsell & Williams, P.A., by Stephen A. Moore and H. Jay White, for Cabarrus County Department of Human Services. Winston & Strawn LLP, by Jason E. Bennett and William C. Petraglia, for guardian ad litem. Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant mother.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Cabarrus County, Nos. 15-JA-4-5 Appeal by respondent from order entered 26 August 2015 by Judge William G. Hamby, Jr., in Cabarrus County District Court. Heard in the Court of Appeals 12 April 2016. Hartsell & Williams, P.A., by Stephen A. Moore and H. Jay White, for Cabarrus County Department of Human Services. Winston & Strawn LLP, by Jason E. Bennett and William C. Petraglia, for guardian ad litem. Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant mother. BRYANT, Judge.
Where the trial court's findings of fact were supported by sufficient clear and convincing evidence, which in turn supported the conclusions of law, we affirm the judgment of the trial court adjudicating the juveniles neglected.
Jane and Joan, born on 27 October 2010 and 6 December 2012, respectively, are children of respondent-mother and the subject of this appeal. Respondent has an extensive history of, inter alia, domestic violence (including incidents which occurred in front of her children), substance abuse, and mental health issues on file with the Cabarrus County Department of Human Services ("CCDHS").
Pseudonyms will be used throughout as the juveniles were minor children during the pendency of this litigation. N.C. R. App. P. 3.1(b) (2015).
Father is not a party to this proceeding on appeal.
On 22 April 2013, CCDHS received a report alleging that one "two-year-old child [presumably Jane, as she is respondent's only child who would have been aged two at the time] was dirty and asking for food." According to the report, in respondent's home, "there was human feces on the toilet, floor, tub and wall that had dried." During CCDHS's assessment process, respondent got into an altercation with her mother, Sandra, at which time a protective order was put in place.
A pseudonym will be used for the grandmother to protect the minor children's identities.
On 12 June 2013, Sandra filed a complaint and motion for a domestic violence protective order ("DVPO") for herself against respondent based on an incident which occurred on that date in which respondent "punched [and] kicked [Sandra] in the face" and did so "in the presence of the child [Susie]," one of respondent's older children not involved in this proceeding. As a part of the DVPO, Sandra obtained temporary custody of Susie. Two days later, on 14 June 2013, respondent tested positive for cocaine and had been using and selling drugs, according to a report from respondent's probation officer. Jane and Joan were immediately placed in a safety resource with Erica Andrea Lane. On 26 June 2013, a case decision of "Services Needed" was made in order to address respondent's mental health needs and substance abuse issues.
See supra note 2. Respondent also has a fourth child who was removed from her custody in 2010 after CCDHS received a report alleging respondent was unemployed, had no home, had a history of drug use and mental health issues, and had no way to care for her new born son, Z.M., whom she had while she was in prison.
On 2 April 2014, CCDHS received a report that, while the children were placed with Sandra, the children were returned to respondent "because [respondent] started to fight with [Sandra] and [Sandra] did not want to deal with the drama anymore." At the time, respondent's electricity had been turned off "and would not be turned back on until July." A 20 April 2014 report to CCDHS alleged the children "were dirty all the time and they were not being fed." The DVPO Sandra obtained against respondent was renewed on 28 May 2014 and extended through 28 May 2016, but temporary custody of Susie was not extended.
On 18 July 2014, respondent was found to have willfully and knowingly violated the DVPO by trespassing and taking the children from Sandra's home. For the violation, respondent was imprisoned for seventy days.
On 19 October 2014, respondent was again found to have violated the DVPO. The 19 October 2014 incident report noted that Concord Police Department ("CPD") was called to Sandra's house where respondent was reported to be "threatening to jump and hurt Sandra[,]" and, while holding either Jane or Joan, respondent reportedly slipped in a ditch while attempting to evade police officers. The child was unharmed and respondent was arrested, convicted, and sentenced to sixty days in jail.
Exactly sixty days later, on 18 December 2014, respondent again removed Jane and Joan from Sandra's house without the consent of Sandra or CCDHS, violating the DVPO. On 19 December 2014, respondent signed a safety assessment, placing Jane and Joan with Sandra as the safety resource. Respondent further agreed not to visit Jane and Joan unless she was supervised, and would not remove the children from Sandra's home, their daycare, or any place the children might be.
On 16 January 2015, respondent went to Sandra's home and "took the children." On that date, respondent took Sandra's cell phone and threw it at Sandra's car, hitting the window. Both Jane and Joan were present during this incident. The same day, CCDHS filed a non-secure custody order and a petition alleging Jane and Joan were neglected juveniles because they lived in an environment injurious to their welfare. The petition and non-secure custody order were based in part on the concern that, with the extensive history of domestic violence between respondent and Sandra, there was "a great possibility [Jane and Joan] could be at harm," since they had been present during prior domestic violence incidents.
On 12 March 2015, in respondent's absence, the father of the juveniles stipulated and consented to an adjudication of neglect. A Consent Order was entered that same day in Cabarrus County District Court. The father was incarcerated at the time he entered into the Consent Order; the order adjudicated the juveniles as neglected and established terms in the disposition leaving the children in the custody of CCDHS pending further hearings.
On 11 June 2015, adjudication and disposition hearings for respondent were held. At the hearing, Rosalind Brown, an employee of CCDHS in the division of Child Protective Services testified and a CCDHS Court Summary Report ("CCDHS Report") was offered into evidence. After hearing testimony and receiving documents, the trial court entered an Adjudication/Disposition Order adjudicating Jane and Joan as neglected juveniles as to respondent, which order was filed on 26 August 2015. Respondent appeals.
On appeal, respondent makes the following arguments: (I) the trial court violated N.C. Gen. Stat. § 7B-801(b1) and erred in entering an order adjudicating the juveniles as neglected; (II) there was insufficient clear and convincing competent evidence to support the findings of fact and conclusions of law for an adjudication of neglect; (III) the trial court erred in its adjudication of neglect because it failed to make a finding or conclusion that the juveniles suffered impairment or risk of impairment; and (IV) the trial court's disposition order must be vacated.
I
Respondent first argues that the trial court erred and violated N.C. Gen. Stat. § 7B-801(b1) by entering an order adjudicating the juveniles neglected in respondent's absence. Specifically, respondent contends that such an order—here, a consent order based on father's stipulation to an adjudication of neglect—is invalid and cannot be used for any purpose in determining the juveniles' neglect status with regard to her.
North Carolina General Statutes § 7B-801(b1) states as follows:
(b1) Nothing in this Subchapter precludes the court in an abuse, neglect, or dependency proceeding from entering a consent adjudication order, disposition order, review order, or permanency planning order when each of the following apply:
N.C.G.S. § 7B-801(b1) (2015).(1) All parties are present or represented by counsel, who is present and authorized to consent.
(2) The juvenile is represented by counsel.
(3) The court makes sufficient findings of fact.
Assuming arguendo the consent order adjudicating the juveniles neglected as to the father is per se invalid, there is no contention that the consent order was an adjudication that was binding as to respondent. In fact, all parties seem to agree that such consent order, even if valid and binding as to father, is not binding as to respondent. Therefore, we do not further address this assertion regarding the validity or lack thereof of the consent order as to the father.
As for respondent's assertion that the trial court used the father's consent order "for some purpose in its adjudication and disposition against [respondent's] interest," that assertion is without merit. Here, the record shows that (1) a separate adjudication and disposition hearing was held as to the mother; (2) the trial court made specific findings of fact as to the adjudication and disposition; and (3) the trial court's findings of fact mentioned that father's consent order on adjudication was for purposes of procedural history, and were not used against respondent's interest.
Accordingly, as the trial court's findings as to respondent are more fully discussed infra, we overrule respondent's first argument.
II
Respondent next argues that there was insufficient clear and convincing evidence to support the trial court's findings of fact, and, in turn, that the findings of fact were insufficient to support the conclusions of law required for an adjudication of neglect. Respondent challenges numerous findings of fact and one conclusion of law.
"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[.]' " 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)). "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. (citing In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003)).
"When a trial court is required to make findings of fact, it must make the findings of fact specially." In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations omitted). "The trial court may not simply recite allegations, but must through processes of logical reasoning from the evidentiary facts find the ultimate facts essential to support the conclusions of law." Id. (citations and quotation marks omitted). A trial court must "mak[e] sufficient additional findings of fact which indicate [that it] considered the evidence presented at the hearing." In re S.C.R., 217 N.C. App. 166, 169, 718 S.E.2d 709, 712 (2011) (citing In re O.W., 164 N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004)).
However, "[a] trial court may consider written reports and make findings based on these reports so long as it does not 'broadly incorporate these written reports from outside sources as its findings of fact.' " In re C.M., 183 N.C. App. 207, 213, 644 S.E.2d 588, 594 (2007) (quoting In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004)). When other findings of fact support a trial court's order, "erroneous findings unnecessary to the determination do not constitute reversible error." In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240-41 (2006) (citing In re Beck, 109 N.C. App. 539, 548, 428 S.E.2d 232, 238 (1993)).
The trial court made the following findings of fact, determining them supported by clear and convincing evidence:
The trial court made two sets of findings of fact. For purposes of clarity, the first set, Nos. 1—8, will be referred to herein as "procedural facts," designated as "P-1," "P-2," etc., and the second set, Nos. 1—6, are merely findings of fact.
P-1. A CCDHS Court Summary Report was received into evidence and is incorporated by reference as this Court's findings of fact as if more fully set forth herein.
P-4. CCDHS filed a petition on January 16, 2015, alleging neglect and non-secure custody was obtained. The father entered into a consent order on March 13, 2015. This case is in court today for an Adjudication and Disposition Hearing as to the mother, and a ruling as to a GAL appointment for the mother.
P-5. An assessment of the mother from Cardinal Innovations was received as evidence by the Court regarding a Rule 17 GAL for the mother. Based on that assessment, no GAL appointment is necessary.
P-6. There are no identified relatives of the juveniles for their placement to provide proper care and supervision in a safe home.
P-7. The juveniles' return to home would be contrary to their health, safety, welfare and best interests and non-secure custody is necessary to protect the juveniles.
P-8. CCDHS has made reasonable efforts to prevent and eliminate the need for placement of the juveniles.
. . .
1. The allegations contained in the petition support a finding that the juveniles are neglected, as does the testimony provided in this cause this date.
2. There is a reasonable factual basis to believe that the matters alleged in the petition are true and that the juveniles will not be provided with the adequate supervision or protection by the parent, is [sic] in need of assistance or placement because the parent is unable to provide for the care or supervision of the juveniles and lacks an appropriate alternative arrangement for the juveniles. The specific allegations are hereby incorporated by reference as if fully set forth herein.
3. [Respondent] has an extensive history with CCDHS, involving untreated mental health and substance abuse issues, domestic violence, and improper care of her children. The most recent incident was on October 19, 2014, when CCDHS received a report that the Concord Police Department (CPD) was called out to the home due to [respondent] violating the restraining order that [Sandra], her mother, had in place. [Respondent] came to her mother's home with [Jane] and [Joan] to get the WIC vouchers form the maternal grandmother, who she threatened to jump and hurt. [Sandra] called CPD and CPD confirmed [respondent] was in violation of the 50B order. [Respondent] was arrested. On December 10, 2014, the case decision was Services Needed and the case was transferred to CPS In-Home Services (IHS) to address mental health, substance abuse and housing issues.
4. On December 18, 2014, a CPS report was made alleging that [respondent] removed the children from their maternal grandmother's house after being released from jail without the consent of CCDHS or the grandmother. Additionally, [respondent] violated a Restraining Order that the children's grandmother had against [respondent]. That case decision was on January 8, 2015, Services Needed and the case remained open with CPS IHS.
5. On December 19, 2014, a safety assessment was signed by the [respondent] that placed the children with their maternal grandmother, [Sandra], being the safety resource. [Respondent] agreed that she would not visit with [the] children unless she was supervised, would not remove the children from the maternal grandmother's home, their daycare, or any place that the children may be. Supervised contact by [respondent] with her children would continue until CCDHS deemed supervised contact was no longer needed. No specific supervisor was named in the safety assessment. On[] January 15, 2015, [respondent] went to the maternal grandmother's home and took the children. While at the home, allegedly, [respondent] took maternal grandmother's cell phone and threw it at maternal grandmother's car. The children were subsequently taken to their day care by [respondent]. A CPS report was made on January 16, 2015, regarding this incident. On January 22, 2015, the case was substantiated with a case decision of Services Needed.
6. [Respondent's] prior CPS history dates back to 2008.
Respondent contends these findings of fact are not proper or sufficient findings as they (1) reference the incorporated CCDHS Report, which was not introduced into evidence for purposes of adjudication, but was admitted and received for purposes of disposition; (2) purport to incorporate specific allegations of CCDHS petitions as findings of fact; (3) are more properly considered conclusions of law rather than findings of fact and, as such, cannot support a legal conclusion or adjudication of neglect; and/or (4) are otherwise not supported by the evidence. On all points, we disagree.
First, respondent's assertion that CCDHS's report was admitted and received for purposes of disposition only is incorrect. Although the report indicates the type of hearing for which the support was submitted was "Disposition Hearing," the report also indicates the date of the hearing—"June 11, 2015." The hearing on 11 June 2015, as indicated by the written order entered 25 August 2015 was a hearing on Adjudication and Disposition. The transcript of the hearing as well as the order of the court show that the CCDHS report was incorporated into the trial court's findings in its adjudication of neglect. Respondent's assertion that the trial court's consideration of the CCDHS report was for disposition purposes only is overruled.
Respondent challenges the incorporation of certain language from the allegations in the petition as improper and insufficient. This challenge is without merit. "[A] trial court may not incorporate wholesale the allegations in the petition as a substitute for making its own findings of fact." S.C.R., 217 N.C. App. at 169, 718 S.E.2d at 712 (citations omitted). However, simply because the findings of fact
are similar, or even identical to the wording of the juvenile petition . . . it is not per se reversible error for a trial court's fact findings to mirror the wording of a petition or other pleading prepared by a party. Instead, this Court will examine whether the record of the proceedings demonstrates that the trial court, through processes of logical reasoning, based on the evidentiary facts before it, found the ultimate facts necessary to dispose of the case. If we are confident the trial court did so, it is irrelevant whether those findings are taken verbatim from an earlier pleading.In re J.W. & K.M., ___ N.C. App. ___, ___, 772 S.E.2d 249, 253-54 (2015) (emphasis added) (affirming the trial court's adjudication of neglect and holding that "[a]lthough many of these findings in the court's orders appear to be 'cut-and-pasted' from wording in the juvenile petitions, the findings are based on evidence presented to the court. In light of the entire record and the transcript of the proceedings, we are confident that the trial court's findings are the result of its own independent, reasoned decision"). Indeed, this Court in J.W. also noted that "it would impose an impossible burden on trial court judges if we were to hold that any findings 'cut-and-pasted' from a party's pleading automatically warranted reversal of the order. . . . The purpose of trial court orders is to do justice, not foster creative writing." Id. at ___, 772 S.E.2d at 253.
Here, even though Findings of Fact Nos. 3-6 appear to be "cut-and-pasted" from the CCDHS Report and the juvenile petitions, respondent's argument fails where the trial court went beyond merely incorporating by reference the Court Summary Report and juvenile petitions, see S.C.R., 217 N.C. App. at 169, 718 S.E.2d at 712, but rather went on to make its own findings of fact. See J.W., ___ N.C. App. at ___, 772 S.E.2d at 253.
In addition to incorporating by reference the CCDHS report and the juvenile petitions, the trial court heard testimony from Rosalind Brown, of CCDHS, Child Protective Services division. Brown testified that due to domestic violence issues concerning respondent, including her violation of the DVPOs, "it's a great possibility those children could be at harm." As in J.W., viewing the record and transcript of proceedings, "we are confident that the trial court's findings are the result of its own independent, reasoned decision." Id. at ___, 772 S.E.2d at 254.
As for respondent's challenge that the trial court's findings of fact are actually conclusions of law and cannot support an adjudication of neglect, it is also without merit. Our case law on this issue is very clear.
"A finding of fact that is essentially a conclusion of law will be treated as a fully reviewable conclusion of law on appeal." Lamm v. Lamm, 210 N.C. App. 181, 189, 707 S.E.2d 685, 691 (2011) (citation omitted). "Generally, 'any determination requiring the exercise of judgment . . . or the application of legal principles . . . is more properly classified a conclusion of law.' " Id. (alterations in original) (quoting In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997)). Certain determinations are more properly designated as conclusions of law, including whether it is in the "best interest" of the child to remain in the custody of a social services department and whether that department has made "reasonable efforts" to prevent removal or placement of the juvenile. See Helms, 127 N.C. App. at 510-11, 491 S.E.2d at 675-76. "Mislabeling of a finding of fact as a conclusion of law is inconsequential if the remaining findings of fact support the conclusion of law." Lamm, 210 N.C. App. at 189, 707 S.E.2d at 691 (citation omitted).
In S.C.R., the trial court made three findings of fact on adjudication, one of which this Court determined to be "more properly considered a conclusion of law, leaving only two findings for [this Court's] evaluation." 217 N.C. App. at 168-69, 718 S.E.2d at 712 (citing In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 893 (2004)). Of the two remaining findings of fact, one purported to "incorporate[] the factual allegations from the petition as its findings of fact." Id. at 169, 718 S.E.2d 712. In concluding that the "one additional finding of fact beyond those incorporated from the petition . . . [was] insufficient" to allow for meaningful review, this Court determined that "the trial court did not satisfy the mandate to enter findings of fact by incorporating [the] petition" and reversed the adjudication order and remanded it for further findings of fact. Id. at 170, 718 S.E.2d at 712 (citation omitted).
Unlike in S.C.R., where this Court was able to review only two findings of fact for adjudication, one of those being the incorporation of the factual allegations set forth in the petition, the trial court here made six findings of fact for adjudication, none of which could more properly be considered a conclusion of law, see id. at 168-69, 718 S.E.2d at 712 (citation omitted), and three of which provide multiple details on the background of this case such that each one could have been broken down into a greater number of findings.
Pursuant to the reasoning established in Helms, however, we agree with respondent that Findings of Fact Nos. P-7 and P-8 are more properly designated conclusions of law and we treat them as such for the purposes of this appeal. See 127 N.C. App. at 510-11, 491 S.E.2d 675-76. However, because "the remaining findings of fact support the conclusion of law" that Jane and Joan are neglected juveniles, see Lamm, 210 N.C. App. at 189, 707 S.E.2d at 691, the mislabeling of Findings of Fact Nos. P-7 and P-8 is "inconsequential."
We note respondent's assertion that there is no evidence to support Finding of Fact No. P-6: "There are no identified relatives of the juveniles for their placement to provide proper care and supervision in a safe home." However, CCDHS considered placement with four different individuals: the father, Sandra, Andrea Lane, and Valerie Gill. The father was unavailable because he was incarcerated. Sandra expressed interest in being considered for placement of the children, but CCDHS had concerns as respondent had a habit of violating the DVPO Sandra had against respondent. Additionally, both children were behind on dental treatment, and Jane was behind on her well-child check, while in the care of Sandra. Andrea Lane decided to withdraw her request for placement of the children, as she was just getting established in housing of her own. CCDHS also had concerns with this placement because of conflicts between Lane and respondent. Finally, Valerie Gill was unavailable, as she refused to go through with a home study once Gill learned that background checks would be completed on her adult son, daughter, and a male friend, all who were present in the home during home visits.
Accordingly, respondent's argument that the findings of fact were not supported by the evidence or were otherwise insufficient to support the conclusions of law required for an adjudication of neglect is overruled.
III
Next, respondent argues that the trial court erred in its Conclusion of Law No. 2 because it failed to make a finding that the juveniles suffered any physical, mental, or emotional impairment or a substantial risk of such impairment. We disagree.
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 lives in an environment injurious to the juvenile's welfare . . . ." N.C. Gen. Stat. § 7B-101(15) (2015). In order for a child to be adjudicated neglected, "[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 S.H., 217 N.C. App. 140, 142, 719 S.E.2d 157, 158-59 (2011) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)). Furthermore, this Court has previously explained that the term "neglect" as it is defined in N.C.G.S. § 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 F.C.D., ___ N.C. App. ___, ___, 780 S.E.2d 214, 221 (2015) (quoting In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999)).
However, an exception to this general rule exists, allowing an adjudication order to be affirmed without a finding as to harm or substantial risk of harm to the child where "all the evidence supports such a finding." Id. at ___, 780 S.E.2d at 222 (quoting In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003)) (holding that where the trial court failed to make an express finding that a juvenile was at risk of impairment based on exposure to abuse, there was no error where all the evidence supported such a finding).
Here, Conclusion of Law No. 2 states that "[t]he juveniles are adjudicated neglected, based on living in an injurious environment." The record before us contains ample evidence that Jane and Joan are at risk of substantial impairment: (1) respondent repeatedly violated a DVPO that Sandra had in place against her; (2) Jane and Joan witnessed incidents of domestic violence between Sandra and respondent, including an incident where respondent kicked and punched Sandra, in the face; (3) respondent has untreated mental health, substance abuse, and domestic violence issues; (4) in 2013, a two-year-old child, presumably Jane, was reported to CCDHS as asking for food and looking like she had not been bathed in a week; (5) during a home assessment, there was discovered in respondent's home human feces on the toilet, floor, tub, and wall that had dried; (6) and CCDHS spoke with respondent's probation officer on 14 June 2013, who reported that respondent tested positive for cocaine and that she had been using and selling drugs.
Accordingly, where all the evidence supported the trial court's findings, even absent a specific finding as to harm or substantial risk of harm to the children, the trial court did not err in adjudicating the children neglected based on this record. Respondent's argument is overruled.
IV
Lastly, respondent argues that because the trial court's adjudication of neglect must be reversed, its disposition order must be vacated. However, because the trial court's adjudication of neglect was not in error, the court's disposition was authorized and valid, and respondent's argument is without merit.
AFFIRMED.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).