Opinion
No. COA16-368
11-01-2016
IN THE MATTER OF: A.K., A.K.
Cardwell & Cardwell, by V. Elliot Cardwell, Jr., for petitioner-appellee Rockingham County Department of Social Services. McGuireWoods LLP, by Joshua D. Davey and Mary K. Grob, for guardian ad litem. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Annick Lenoir-Peek, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Rockingham County, Nos. 15 J 97-98 Appeal by respondent-mother from orders entered 30 December 2015 by Judge Christopher Freeman in Rockingham County District Court. Heard in the Court of Appeals 10 October 2016. Cardwell & Cardwell, by V. Elliot Cardwell, Jr., for petitioner-appellee Rockingham County Department of Social Services. McGuireWoods LLP, by Joshua D. Davey and Mary K. Grob, for guardian ad litem. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-appellant mother. INMAN, Judge.
Respondent-mother appeals from an order adjudicating her minor children "Amy" and "Avery" neglected and dependent juveniles and the resultant dispositional order. We affirm.
The parties have stipulated to pseudonyms for the minor children pursuant to N.C.R. App. P. 3.1(b) (2015).
I. Background
On 12 and 13 June 2015, the Rockingham County Department of Social Services ("DSS") received separate reports that respondent-mother would consume significant amounts of alcohol and pass out while caring for Amy and Avery. At the request of DSS, a member of the Reidsville Police Department went to respondent-mother's home. When the officer arrived, Amy and Avery were asleep in their beds. Although respondent-mother admitted to drinking earlier in the day, she did not appear to be intoxicated.
On 15 June 2015, Child Protective Services Investigator Jordan Houchins ("Houchins") went to respondent-mother's home to follow up on the reports made to DSS. When he arrived, respondent-mother was on the porch with her daughters, but when she saw Houchins' county vehicle, she went inside the house and shut the door, leaving Amy and Avery on the porch. Houchins knocked on the door and respondent-mother answered after a minute or two. Houchins told respondent-mother about the reports DSS had received and asked to speak with her about them. Respondent-mother was initially resistant to speaking to Houchins, but eventually relented. She told Houchins that she had completed a twelve month inpatient rehab program for substance abuse approximately a year and a half prior, but also admitted to having resumed drinking over the past few months. Respondent-mother also informed Houchins that she had recently been charged with driving while impaired ("DWI"), but that her daughters were in the care of an individual who worked at the children's daycare at the time of the incident. Respondent-mother agreed to submit to a substance abuse assessment at DSS.
Houchins obtained a highway patrol report regarding the incident on 26 May 2015 for which respondent-mother was arrested for DWI, which indicated that she had told the arresting officer that she "had 'gotten back to drinking and [couldn't] stop.' " Houchins also obtained respondent-mother's criminal record and her DSS history from Wyoming, where she was living previously. Respondent-mother had previously been convicted of multiple DWIs, including two DWIs in a thirty-six hour period.
On 18 June 2015, Houchins met with respondent-mother to take her to her substance abuse assessment. Respondent-mother acknowledged to Houchins that she had a history of serious alcohol abuse and had relapsed. She also claimed that her daughters' father was a methamphetamine addict who had abused her and claimed to have killed a man. Respondent-mother was unable to provide Houchins with any possible alternative placements for Amy and Avery.
On 19 June 2015, DSS filed a petition alleging that Amy and Avery were neglected and dependent juveniles. The petition recounted the details of respondent-mother's DWI arrest and the results of Houchin's investigation. It alleged that respondent-mother had been fired from her job due to her alcohol problem and that the staff at Amy and Avery's daycare had noticed that respondent-mother smelled of alcohol when she was transporting her children. DSS also alleged that it was not safe to leave Amy and Avery in respondent-mother's care due to the severity of her alcohol problem and that respondent-mother had no alternative placement for the children while she sought treatment. Amy and Avery were placed in nonsecure custody with DSS.
The hearing on the petition began on 22 October 2015. The hearing was to continue on 10 November 2015, but respondent-mother came to court highly intoxicated. She was served with an involuntary commitment order and then taken to the hospital. On 3 December 2015, the hearing was completed with respondent-mother present. On 30 December 2015, the trial court entered an order concluding that Amy and Avery were neglected and dependent juveniles. The same day, the court entered a dispositional order which left the children in the custody of DSS and awarded respondent-mother supervised visitation once per month. The trial court also ordered respondent-mother to continue working on her case plan goals. Respondent-mother entered timely notice of appeal from both orders.
II. Standard of Review
This Court's review of an order adjudicating a juvenile neglected or dependent is limited to determining "(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 Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566 (2002) (citation and quotation marks omitted). Unchallenged findings are binding on appeal. In re C.B., 180 N.C. App. 221, 223, 636 S.E.2d 336, 337 (2006), aff'd per curiam, 361 N.C. 345, 643 S.E.2d 587 (2007).
"All dispositional orders of the trial court after abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing." In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). "The district court has broad discretion to fashion a disposition from the prescribed alternatives in N.C. Gen.[ ]Stat. § 7B-903(a), based upon the best interests of the child. . . . We review a dispositional order only for abuse of discretion." In re B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008) (citing Pittman, 149 N.C. App. at 766, 561 S.E.2d at 567).
III. Adjudication
Respondent-mother argues that the trial court erred by adjudicating Amy and Avery neglected and dependent. Specifically, she contends that the trial court's findings fail to show how her alcohol problems adversely affected her children or her ability to parent them. We disagree.
A. Neglect
Our General Statutes define a neglected juvenile 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 lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen. Stat. § 7B-101(15) (2015). "[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 Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (internal quotation marks and citation omitted). Conduct constituting "[s]evere or dangerous conduct or a pattern of conduct either causing injury or potentially causing injury to the juvenile may include alcohol or substance abuse by the parent, driving while impaired with a child as a passenger, or physical abuse or injury to a child inflicted by the parent." In re D.B.J., 197 N.C. App. 752, 755, 678 S.E.2d 778, 781 (2009) (internal quotation marks omitted and citation omitted). Moreover, "[i]t is well-established that the trial court need not wait for actual harm to occur to the child if there is a substantial risk of harm to the child in the home." In re T.S., 178 N.C. App. 110, 113, 631 S.E.2d 19, 22 (2006), aff'd per curiam, 361 N.C. 231, 641 S.E.2d 302 (2007).
In this case, respondent-mother challenges the trial court's determination that "the children were not receiving proper care, and resided in an environment injurious to their welfare." She argues that "the evidence in this case showed neither harm to Amy and Avery nor risk of harm" that resulted from her alcohol use. However, the trial court's order includes the following unchallenged findings of fact:
Respondent-mother asserts that several of the trial court's findings were not relevant for the purposes of adjudication. Since we conclude the listed findings fully support the trial court's conclusions of law, we need not address respondent-mother's arguments with respect to the remaining findings. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).
6. Staff at the children's daycare testified about concerns they had documented prior to the filing of the petition regarding [respondent-mother's] parenting. On one occasion [respondent-mother] showed up at 6:30 p.m. at the day care (more than 30 minutes late) and claimed she had been at the dentist, but was wearing pajamas. On another occasion, in February of 2015, staff at the day care smelled alcohol on [respondent-mother] at 9:30 a.m. [Avery] had a bruise on her head which she said was due to [respondent-mother] driving off the road.
7. . . . [Respondent-mother] had ongoing struggles with her addiction to alcohol during her employment [at a restaurant]. She passed out on the premises on three occasions. The first time, she was found asleep in her car at 3 p.m. She was very difficult to wake up. [Respondent-mother] attempted to pretend she wasn't intoxicated. The second time, she was clearly under the influence and very belligerent. [The restaurant owner] picked up the children at daycare and delivered them to [respondent-mother] at her home so [respondent-mother] wouldn't be driving with them. The third time [respondent-mother] was extremely intoxicated, and passed out on a table in the restaurant.
. . . .
12. On June 18, 2015, Respondent Mother met with Mr. Houchins at RCDSS. She acknowledged having a serious history of alcohol abuse and having relapsed. She acknowledged that she does "crazy irrational things" when
she drinks and needs additional treatment to be able to safely parent her children. ...
These findings demonstrate that respondent-mother's alcohol abuse directly created a substantial risk of harm to Amy and Avery. Avery sustained a bruise on her head that she reported resulted from respondent-mother running off the road at a time when daycare workers noticed that respondent-mother smelled of alcohol. Respondent-mother was also intoxicated when she was supposed to be picking the children up from daycare and admitted to Houchins that she needed treatment so that she could safely parent her children. In light of this evidence, the trial court properly concluded that Amy and Avery were neglected juveniles.
B. Dependency
A dependent juvenile is defined, in relevant part, as "[a] juvenile in need of assistance or placement because . . . the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care . . . and lacks an appropriate alternative childcare arrangement." N.C. Gen. Stat. § 7B-101(9) (2015). Respondent-mother argues that the evidence presented at the adjudication hearing shows that on every occasion she abused alcohol, such as the incident for which she was charged with DWI, she had successfully made alternative childcare arrangements for Amy and Avery. However, this assertion is contradicted by the trial court's findings that daycare workers reported that respondent-mother smelled of alcohol when dropping the children off and that the owner of the restaurant where respondent-mother worked was forced to pick Amy and Avery up from daycare because respondent-mother was too intoxicated to do so. Moreover, she specifically told Houchins that she needed additional treatment in order to be able to safely parent the children and she did not have an alternative child care arrangement to use as a "safety placement" if she were to receive such treatment. Accordingly, the trial court properly determined that respondent-mother "was unable to safely care for her children and lacked a suitable alternative custody arrangement," such that Amy and Avery were dependent juveniles.
IV. Disposition
Respondent-mother argues that the trial court erred by ordering her to "continue to work on her case plan goals" without setting out the case plan's specific requirements. We disagree.
Pursuant to N.C. Gen. Stat. § 7B-904(d1), the trial court may order a 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[.]" N.C. Gen. Stat. § 7B-904(d1)(3) (2015). In this case, the trial court ordered respondent-mother to, inter alia,
continue to work on her case plan goals, in particular her substance abuse treatment. She shall cooperate with the REMMSCO program rules, and can look at other treatment options as they come available to her. [Respondent-mother] shall attend a minimum of 1 or 2 AA meetings per
week, and obtain written proof that she attended and stayed at each meeting.Respondent-mother contends that the general directive to continue her work on her case plan fails to make clear "specifically what [respondent-mother] is expected to do in order to regain custody of her daughters."
However, during the dispositional hearing, the DSS foster care social worker reported that respondent-mother had entered into a case plan with DSS which required her to (1) obtain and maintain safe and appropriate housing, (2) obtain and maintain employment and income, (3) enter into an agreement for child support and remain in compliance, (4) locate transportation, (5) attend all scheduled visitations, (6) not engage in any criminal activity, (7) follow up and complete the recommendations of her substance abuse assessment, (8) submit to random drug screens, and (9) complete a parenting capacity psychological assessment. Respondent-mother also testified during the disposition hearing that she had entered into a case plan and had begun to comply with its requirements. Thus, contrary to respondent-mother's argument, the evidence at the dispositional hearing clearly set out the specific actions respondent-mother was required to undertake to regain custody of Amy and Avery.
V. Conclusion
The trial court's unchallenged findings of fact showed that respondent-mother's alcohol abuse directly created a substantial risk of harm to Amy and Avery and left her unable to safely care for them. Consequently, the trial court properly adjudicated Amy and Avery as neglected and dependent juveniles. The trial court's directive requiring respondent-mother to continue to work on her case plan was sufficiently detailed when considered in the context of the evidence presented at the dispositional hearings. The trial court's adjudication and dispositional orders are affirmed.
AFFIRMED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).