Opinion
No. COA12–1429.
2013-07-2
In the Matter of A.P., A.P., D.S.
J. Thomas Diepenbrock for appellant-mother. Rowan County Department of Social Services, by Cynthia Dry, for appellee-father.
Appeal by mother from order entered 30 August 2012 by Judge Marshall Bickett in Rowan County District Court. Heard in the Court of Appeals 8 May 2013. J. Thomas Diepenbrock for appellant-mother. Rowan County Department of Social Services, by Cynthia Dry, for appellee-father.
Everett Gaskins Hancock LLP, by James M. Hash, for Guardian ad Litem.
STEELMAN, Judge.
Where mother had notice that the trial court was considering permanent placement of the children with father, the trial court did not err by awarding custody to father. Where the trial court did not place the children in the custody of DSS, the provisions of N.C. Gen.Stat. § 7B–507(b) were not implicated. Where evidence was admitted to show mother's state of mind preceding the filing of petition, the trial court did not abuse its discretion in admitting testimony regarding post-petition conduct. Where there was evidence that the children were neglected juveniles as defined by N.C. Gen.Stat. § 7B101(15), the trial court did not err in finding the children to be neglected juveniles.
I. Factual and Procedural Background
Mother had D.S. with her deceased husband. She later lived with Charles Parrish (father), who is the father of A.P. and A.P. (the children). She subsequently separated from father and married Nicholas Barbee. In September 2011, on several occasions, Barbee beat mother severely. On 13 September 2011, mother filed a complaint against Barbee, seeking a domestic violence protective order, alleging a danger of violence against herself and her children. Due to mother's failure to appear in court, the protective order was dismissed. Mother subsequently moved in with her parents, having left her prior home due to an inability to pay her bills. The parents procured a no-contact order pursuant to N.C. Gen.Stat. Chapter 50C as to Barbee.
During an investigation into the home by Rowan County Department of Social Services (DSS) in October 2011, mother informed social workers that she intended to discontinue her relationship with Barbee, that he had been abusive towards her, and that the children had witnessed “a lot.” In November 2011, social workers discovered that mother was still involved with Barbee.
On 17 February 2012, DSS received a Child Protective Services report as to A.P., A.P. and D.S., citing concerns that mother left her family for days, did not respond to phone calls, and spent time with her abusive husband; that D.S. had a broken tooth; and that the children and D.S. were afraid of Barbee.
On 5 March 2012, DSS filed a petition, alleging that the children and D.S. were neglected juveniles based upon risk of injury or abuse resulting from mother's failure to provide protection. That same day, the Rowan County District Court issued an order for non-secure custody of the children and D.S. with DSS. On 30 May 2012, the trial court determined that the children were neglected juveniles. On 26 July 2012, the trial court filed its Adjudication and Partial Disposition Order, adjudicating the children neglected pursuant to N .C. Gen.Stat. § 7B–101(15). Its full Disposition Order, entered the same day, directed DSS to cease efforts to reunify mother with the children, and awarded custody of the children to father. D.S. was to remain with DSS until he could be reunited with mother.
This order was filed 30 August 2012.
Mother appeals.
II. Award of Custody
In her first argument, mother contends that the trial court erred by awarding custody to father when there was no notice given that the trial court was considering a permanent plan for the children. We disagree.
A. Standard of Review
In reviewing an adjudication of neglect, we must determine whether the district court's findings of fact are supported by clear and convincing evidence and whether the findings, in turn, support the court's conclusions of law. In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000). Where, as here, the appellant does not contest any individual findings of fact, they are deemed to be supported by evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted). The determination that a child is a neglected juvenile under N.C. Gen.Stat. § 7B–101(15) is a conclusion of law subject to de novo review. See In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675–76 (1997).
In re D.W.L., ––– N.C.App. ––––, 741 S.E.2d 513 (2013) (unpublished).
B. Analysis
N.C. Gen.Stat. § 7B–907(a) provides that where custody is removed from a parent, a permanency planning hearing must be conducted within 12 months. The clerk must give 15 days' notice of the hearing and its purpose to the parent. SeeN.C. Gen.Stat. § 7B–907(a). Mother contends that the trial court established a permanent custody plan with father, and awarded custody, without ensuring that the proper statutory notice had been given.
A trial court's compliance with statutory mandates presents a question of law reviewed de novo on appeal. See In re J.D.C., 174 N.C.App. 157, 620 S.E.2d 49 (2005). However, technical errors and violations of the Juvenile Code are reversible error only upon a showing of prejudice. In re H.T., 180 N.C.App. 611, 613–14, 637 S.E.2d 923, 925 (2006).
Father contends that mother had notice of the trial court's intent to place the children with father. In its order dated 22 March 2012, the trial court noted that father had an interest in providing for the children, and that DSS was in the process of working with him as a placement provider for the children. In its Adjudication and Partial Disposition Order, the trial court found that father was working with DSS towards gaining custody of the children. The court also concluded that the temporary plan for the children would include custody to father. Father contends that, if it was error to establish a permanent plan as part of the full dispositional order, that error was rendered harmless in that mother had actual notice that father was pursuing custody.
Mother cites to our decision in In re D.C., 183 N.C.App. 344, 644 S.E.2d 640 (2007). In that case, the trial court, in a single order, held the minor children to be neglected juveniles, ceased efforts to reunite them with the petitioner, and awarded guardianship to foster parents. On appeal, we held that:
Because N.C. Gen.Stat. §§ 7B–507 and 907 do not permit the trial court to enter a permanent plan for a juvenile during disposition, respondent did not have statutorily required notice that the trial court would consider a permanent plan for D.C., and the trial court did not make findings mandated by sections 7B–907(b), (c), and (f), we reverse that portion of the trial court order awarding guardianship to [the foster parents].
In re D.C., 183 N.C.App. at 356, 644 S.E.2d at 646–47. Mother contends that this same reasoning applies in the instant case, and that the trial court erred in awarding permanent custody in the same order in which the trial court held the children to be neglected juveniles, without making findings in accordance with N.C. Gen.Stat. § 7B–907(b), (c), and (f) at a separate hearing.
Father notes, however, that mother had actual notice of the proceedings. The trial court also made findings consistent with N.C. Gen.Stat. § 7B–907(b) and (c) regarding the children's best interests. The trial court found that mother had caused the children psychological harm by pursuing an abusive relationship with her husband, some of which the children had witnessed; by neglecting the dental needs of D.S. in a timely manner; by failing to answer phone calls from the children; and by failing to engage in significant physical and monetary support of the children. The trial court then found that DSS had made reasonable efforts to reunify the children with mother. Based upon all of the facts, the trial court determined that it was in the best interests of the children to award permanent custody to father. Because the children were not being placed in the custody of a non-parent, findings pursuant to N.C. Gen.Stat. § 7B–907(f) were not required.
Even assuming arguendo that the trial court erred in failing to provide the explicit statutory notice, mother has failed to demonstrate that the award of custody prejudiced her. Mother has not argued prejudice on appeal. An argument not raised on appeal is deemed abandoned. N.C. R.App. P. 28(b)(6). This argument is without merit.
III. Reunification Efforts
In her second argument, mother contends that the trial court erred when it ordered reunification efforts with mother to be ceased, because its order failed to contain the findings of fact required by N.C. Gen.Stat. § 7B–507(b). We disagree.
A. Standard of Review
“This Court reviews an order that ceases reunification efforts to determine whether the trial court made appropriate findings, whether the findings are based upon credible evidence, whether the findings of fact support the trial court's conclusions, and whether the trial court abused its discretion with respect to disposition.” In re C.M., 183 N.C.App. 207, 213, 644 S.E.2d 588, 594 (2007). “ ‘An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.’ “ In re N.G., 186 N.C.App. 1, 10–11, 650 S.E.2d 45, 51 (2007) (quoting In re Robinson, 151 N.C.App. 733, 737, 567 S.E.2d 227, 229 (2002)), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008).
B. Analysis
The statute in question begins with the language “In any order placing a juvenile in the custody or placement responsibility of a county department of social services[.] ” N.C. Gen.Stat. § 7B–507 (b) (2011) (emphasis added). In the instant case, the children were placed with their father, not with DSS. D.S. was placed with DSS, but the trial court did not order DSS to cease reunification efforts between mother and D.S., only between mother and the children. As such, the requirements of N.C. Gen.Stat. § 7B–507(b) are not applicable in the instant case.
This argument is without merit.
IV. Admission of Post–Petition Evidence
In her third argument, mother contends that the trial court erred when it admitted post-petition evidence at the adjudication hearing. We disagree.
A. Standard of Review
Although the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court's ruling on relevancy pursuant to Rule 401 is not as deferential as the “abuse of discretion” standard which applies to rulings made pursuant to Rule 403.
Dunn v. Custer, 162 N.C.App. 259, 266, 591 S.E.2d 11, 17 (2004) (citation and quotation marks omitted).
B. Analysis
Events that occur after the filing of a petition are not to be considered at adjudication because the issue at adjudication is whether the facts alleged in the petition are true. In re A.B., 179 N.C.App. 605, 609, 635 S.E.2d 11, 14–15 (2006).
In the instant case, the trial court allowed a witness to testify, over mother's objection, about events which occurred after the filing of the petition. The trial court observed that the testimony showed “whether it's ongoing.” The trial court admitted such evidence to determine “[mother's] state of mind when she was doing the things in the petition.”
Mother's argument that the evidence is irrelevant rests entirely on the premise that the evidence was post-petition evidence which mother contends was not limited to the witness' state of mind. Mother cites to our decision in In re A.B. in support of the premise that post-petition evidence should not be admitted. Even assuming arguendo that the trial court erred in admitting this evidence, however, mother has not shown that she was prejudiced by the admission of the evidence. The trial court's findings of fact, even in the absence of those based upon this evidence, are more than sufficient to support its conclusions of law.
This argument is without merit.
V. Neglected Juvenile Status
In her fourth argument, mother contends that the trial court's conclusion of law that the children were neglected juveniles is not supported by adequate findings of fact. We disagree.
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[.]' “ 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)), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). “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. B. Analysis
N.C. Gen.Stat. § 7B–101(15) defines 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 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 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) (2011).
The evidence in the record shows that mother left the children repeatedly to pursue her relationship with Barbee, that the children were without food and electricity, that mother was aware of D.S.'s dental needs but took no action, and that mother intended to take the children to live with Barbee, of whom the children were afraid.
Based upon the evidence in the record, the trial court found that the children had observed their mother being abused, that they feared the man with whom mother was having a relationship, and that they worried about her safety. The trial court found that mother repeatedly told the children that her abusive relationship was over, and then resumed it; that mother acknowledged to her mother that she and the children were not safe; and that there had been occasions where mother and the children were staying with her abusive spouse, without food or electricity. The trial court's findings catalogued the emotional damage that this relationship inflicted on the children. The trial court specifically found that mother was neglectful of the children by:
subjecting the juveniles to repeated psychological abuse and the danger of physical abuse by repeatedly leaving the safety of [her mother's] home and the presence of her children to be with her abusive husband, Nicholas Barbee, by allowing the children to witness multiple acts of domestic violence while maintaining a relationship with Mr. Barbee, by promising the children on numerous occasions that the relationship between herself and Mr. Barbee was over when it was not, by talking regularly with Mr. Barbee on the phone in the presence of the children, and by maintaining a relationship of which the children were aware with Mr. Barbee even after the traumatic effects of that relationship on the children were evident.
The court further found that mother had failed to attend to the dental needs of D.S., had withheld her love and affection from the children, had failed to physically and monetarily support the household, and had left the children for days at a time with their grandparents without making plans to do so. We note that mother does not specifically challenge these findings, but rather points to other evidence in the record which she contends tends to contradict them.
Our standard, however, is not whether evidence exists in the record that contradicts the trial court's findings of fact, but whether there is clear, cogent, and convincing evidence in the record to support these findings. Further, where the trial court's findings of fact are not challenged on appeal, they are deemed supported by competent evidence, and are binding upon this Court. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). We hold that the findings of fact challenged by mother on appeal are supported by clear, cogent, and convincing evidence in the record, and that these findings together with the findings of fact that are not challenged support the court's conclusion of law that the children were neglected juveniles as defined by N.C. Gen.Stat. § 7B–101(15).
This argument is without merit.
AFFIRMED. Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).