Opinion
No. COA12–319.
2012-09-4
In the Matter of C.B.B.
Senior Associate Attorney Twyla Hollingsworth–Richardson for Mecklenburg County Department of Social Services petitioner appellee. Peter Wood for respondent-mother appellant. Mercedes O. Chut for respondent-father appellant.
Appeal by respondents from order entered 22 December 2011 by Judge Louis A. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 14 August 2012. Senior Associate Attorney Twyla Hollingsworth–Richardson for Mecklenburg County Department of Social Services petitioner appellee. Peter Wood for respondent-mother appellant. Mercedes O. Chut for respondent-father appellant.
Donna Taylor Law, PLLC, by Donna Taylor, for guardian ad litem appellee.
McCULLOUGH, Judge.
Respondents, the parents of C.B.B., appeal from an order adjudicating C.B.B. a neglected and dependent juvenile. After careful review, we affirm.
On 19 October 2011, Mecklenburg County Department of Social Services, Youth and Family Services Division (“DSS”), filed a petition alleging that C.B.B. was a neglected and dependent juvenile. DSS stated that it had been working with the family since 19 April 2011 following a referral regarding domestic violence between the respondents, and due to respondent-father's issues with alcohol abuse. Services were recommended and the case was later closed. DSS received another referral on 6 July 2011, this time regarding a report of domestic violence made by respondent-mother against respondent-father, continued alcohol issues concerning respondent-father, and respondent-mother's “limited abilities to provide care for the juvenile due to her mental and physical health.” A domestic violence protection order was entered against respondent-father. Services were recommended and the case was later closed. On 28 September 2011, DSS received another referral concerning domestic violence and respondent-mother's ability to care for the juvenile.
On 19 October 2011, a social worker made an unannounced visit to respondent-mother's home. Respondent-mother did not answer the door, and the police were called because the social worker was concerned for respondent-mother's safety. Upon entry by police, the landlord, and the social worker, respondent-mother was found standing just inside the doorway with the juvenile. Respondent-mother repeatedly denied that respondent-father was in the home. However, respondent-father was found by police hiding in a closet and was arrested for violating the restraining order taken out by respondent-mother.
DSS alleged in the petition that respondents had failed to follow through with services and had continued to maintain a relationship despite their domestic violence issues. DSS expressed concern that once respondent-father was released from jail, he would return to the home. Accordingly, DSS alleged that C.B.B. was a neglected and dependent juvenile. A non-secure custody order was entered and the juvenile was placed in foster care. On 22 December 2011, C.B.B. was adjudicated neglected and dependent. Respondents appeal.
Respondent–Mother's Appeal
Respondent-mother's sole argument is that the trial court erred when it failed to adequately consider placing C.B.B. with a suitable relative. We disagree.
Pursuant to N.C. Gen.Stat. § 7B–903(a)(2)(c) (2011), when placing a juvenile outside of the home,
the court shall first consider whether a relative of the juvenile is willing and able to provide proper care and supervision of the juvenile in a safe home. If the court finds that the relative is willing and able to provide proper care and supervision in a safe home, then the court shall order placement of the juvenile with the relative unless the court finds that the placement is contrary to the best interests of the juvenile.
Id. This Court has recognized that our statutes give a preference, where appropriate, to relative placements over non-relative, out-of-home placements. See, e.g., In re L.L., 172 N.C.App. 689, 701–03, 616 S.E.2d 392, 399–400 (2005). However, before determining whether relative or non-relative placement is in the best interests of the juvenile, the statute first requires the trial court to determine whether the relative in question is “ willing and able to provide proper care and supervision in a safe home.” N.C. Gen.Stat. § 7B–903(a)(2)(c) (emphasis added). We review a dispositional order only for abuse of discretion. In re Pittman, 149 N.C.App. 756, 766, 561 S.E.2d 560, 567 (2002).
Here, at the hearing, the trial court specifically asked the social worker about a relative placement. The social worker testified that a paternal aunt had been considered for placement, but the aunt did not feel she could meet the juvenile's needs. The social worker further testified that a maternal uncle [J.D.] had been considered, but he stated that he believed the juvenile should be with his parents, so he was not considered as a placement option. The social worker met with a second maternal uncle [B.D.], but he was not presented as a placement option. The social worker finally testified that she was aware of no other family members at that point in time who could be considered for placement.
In its order, the trial court found as fact that:
Prior to bringing the juvenile into custody, Social worker Price was unaware of any relative that was able to provide appropriate care for the juvenile. [The social worker] had concerns regarding the maternal uncle [J.D.] being able to keep the juvenile safe because during prior interactions with the uncle, he minimized or denied any domestic violence between the parents. There were no other known relatives who were willing and/or able to provide placement for the juvenile prior to bringing him into custody. Social worker Price was unaware of maternal uncle [B.D.] (present at today's hearing) prior to bringing the juvenile into custody.
Respondent-mother does not challenge this finding of fact on appeal, and thus we are bound by the trial court's finding. 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). Based on the testimony at the hearing and the trial court's finding of fact, it is apparent that the trial court did inquire into a relative placement, but no suitable option was available. Accordingly, we conclude the trial court did not abuse its discretion by placing the juvenile in a non-relative placement.
Respondent–Father's Appeal
Respondent-father first argues that respondent-mother's guardian ad litem failed to fulfill her statutory duties. SeeN.C. Gen.Stat. § 7B–602(e) (2011). We decline, however, to review respondent-father's argument. It is well established that “[o]nly a ‘party aggrieved’ may appeal from an order or judgment of the trial division. An aggrieved party is one whose rights have been directly and injuriously affected by the action of the court.” Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990) (citations omitted).
Here, assuming arguendo that the guardian ad litem failed to fulfill her statutory duties, respondent-mother was the aggrieved party. Respondent-father was not directly and injuriously affected by the guardian ad litem's purported inaction. See id. at 626, 398 S.E.2d at 325 (husband lacked standing to appeal appointment of a guardian ad litem for his wife in a divorce proceeding), superseded by statute on other grounds as recognized in In re J.A.A., 175 N.C.App. 66, 72–73, 623 S.E.2d 45, 49 (2005). Accordingly, because respondent-father lacks standing to raise this issue, we shall not address it.
Respondent-father next argues that the trial court's findings of fact are not supported by sufficient competent evidence. Respondent-father further contends that the trial court's findings of fact, as well as the evidence, does not support the trial court's conclusion that C.B.B. was a neglected and dependent juvenile. We are not persuaded.
“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[.]’ “ In re T.H.T., 185 N.C.App. 337, 343, 648 S.E.2d 519, 523 (2007) (second alteration in original) (quoting In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted)), 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.
Here, the trial court found as fact:
On more than one occasion, the mother informed the police, Therapist McEachern, Social worker Price and Domestic Violence court that she was involved in a domestically violent relationship with [respondent-father]. She also informed service providers that she was having issues in providing care for the juvenile. The mother never completed any domestic violence services despite them being in place to assist her. The mother did not follow through with ensuring developmental services were put in place for [the] juvenile despite him having some identified issues. The father failed to consistently maintain contact with the social worker or complete any services to address substance abuse or domestic violence. Also, neither the mother nor father adhered to the DVPO [domestic violence protection order] that was in place.
During their testimony, the mother and father denied any domestic violence. The court does not find the mother or father's testimony to be credible. The court believes the mother told the police, therapist and social worker that she had been beaten and choked by the father. The mother also informed the social worker that the father would mistreat the juvenile by sitting on him and once the father threw the juvenile. The mother reported being afraid of the father. She also reported to the Social worker Price the father had issues with male children and he kept her from soothing the juvenile when he cried. An interpreter was present when the mother disclosed abuse by the father and mistreatment of the juvenile by the father to Therapist McEachern and Social worker Price. When the mother reported to the police that [respondent-father] assaulted her, her brother [J.D.] was her interpreter.
On July 7, 2011, the mother filed a sworn court document (DSS's Exhibit # 2—A Certified Copy of Respondent Mother's Complaint and Motion for Domestic Violence Protective Order (DVPO)) reporting the father's drinking, drug use, rape and physical assaults against her and making their home unsafe. During some of the incidents when the father was strangling the mother, she was holding the juvenile. In the mother's sworn court document, she also repeatedly states being afraid of [respondent-father], being afraid for the juvenile and needing protection. On July 25, 2011, based on the mother's Motion for DVPO, the mother and father consented to a DVPO ... in which the father would stay away from the mother until July 25, 2012.
After not hearing from the mother in a while, on October 19, 2011, Social worker Price made an unannounced visit to the mother's home. The mother did not answer the door when he knocked. Social worker Price subsequently contacted the police for assistance due to safety concerns for the mother. The police arrived and repeatedly and loudly knocked on the mother's door and there was still no answer. The apartment's landlord unlocked the mother's door and she was standing a few feet away from the door. The mother vehemently denied the father was in the home. The police subsequently found the father, in the home, hiding in a closet. The juvenile was also in the home.
Respondent-father argues that there was insufficient evidence to support the trial court's findings that he perpetrated domestic violence upon respondent-mother. Respondent-father contends that respondent-mother “lacks credibility because of her reported psychotic symptoms” and because respondent-mother recanted her allegations of domestic violence at the adjudicatory hearing. We are not persuaded.
Officer David Counce Marrero of the Charlotte–Mecklenburg Police Department testified that he answered a call regarding domestic violence at respondents' home on 19 April 2011. Officer Marrero testified that respondent-mother informed him that respondent-father had hit her while she was feeding the juvenile. Officer Marrero further testified that respondent-father's sister told him that respondent-father had assaulted respondent-mother and she was the one who called 911. When Officer Marrero found respondent-father and detained him, he was intoxicated. In addition to this evidence, Jessica McEachern, an outpatient therapist with Restart Behavioral Healthcare, testified that respondent-mother told her she had been “abused in the past” by respondent-father and a restraining order was in place. Respondent-mother discussed with McEachern “a history of [respondent-father] beating her in the head, choking her, pulling her hair” and “there was a brief mentioning of some physical aggression by the father to the—towards the [juvenile].” Respondent-mother also acknowledged domestic violence with respondent-father to the DSS social worker.
Respondent-mother filed a motion and complaint for a domestic violence protection order against respondent-father on 7 July 2011. In the complaint, respondent-mother alleged that respondent-father was drunk, pulled her hair, threw her against a wall, and strangled her, all while she was holding the juvenile. Respondent-mother further alleged that respondent-father threatened to kill her and the juvenile. Respondent-father consented to the entry of the domestic violence protection order. Respondents later violated the protection order.
In light of the repeated claims of domestic violence made by respondent-mother, Officer Marrero's testimony that respondent-father's sister called 911 because of respondent-father's assault on respondent-mother, and respondent-father's consent to entry of the domestic violence protection order, we conclude that the trial court was free to disregard respondents' self-serving denial of domestic violence made at the adjudicatory hearing. 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”). Accordingly, we hold that sufficient competent evidence supported the trial court's findings of fact.
We next consider whether the trial court's findings of fact support its conclusion that C.B.B. was neglected and dependent. “Neglected juvenile” is defined in N.C. Gen.Stat. § 7B–101(15) (2011) 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.
Id. Section 7B–101(15) “allows 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). 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).
Respondent-father argues that the trial court erred in its conclusion that the juvenile was neglected because the record contains no evidence or finding of harm to the juvenile. We find respondent-father's argument unpersuasive. The trial court's findings establish that respondent-father perpetrated domestic violence against respondent-mother in the presence of the juvenile, abused alcohol, and failed to complete recommended services aimed at addressing these issues. The trial court found that the domestic violence had both a direct and indirect impact on the juvenile. Additionally, the court found that respondent-mother failed to complete domestic violence services, and did not follow through with services aimed at addressing the juvenile's developmental issues. Although the trial court failed to make a specific finding that C.B .B. was at risk of injury or impairment, we conclude the evidence presented to the trial court, as well as the trial court's findings of fact, support a finding that C.B.B. was at substantial risk of injury or impairment. See In re Padgett, 156 N.C.App. 644, 648, 577 S.E.2d 337, 340 (2003) (“Where 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.” (citing Safriet, 112 N.C.App. at 753, 436 S.E.2d at 902)). Accordingly, we hold the trial court did not err by adjudicating C.B.B. a neglected juvenile.
“Dependent juvenile” is defined in N.C. Gen.Stat. § 7B101(9) (2011) as:
[a] juvenile 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.
Id. “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) (quoting In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005)). “Findings of fact addressing both prongs must be made before a juvenile may be adjudicated as dependent, and the court's failure to make these findings will result in reversal of the court.” Id. (citing In re K.D., 178 N.C.App. 322, 329, 631 S.E.2d 150, 155 (2006)).
In the instant case, the trial court found there was domestic violence in the home and in the presence of the juvenile, respondents failed to comply with a domestic violence protection order, there was alcohol abuse by respondent-father, and respondent-mother did not follow through with services aimed at addressing the juvenile's developmental issues. Neither respondent complied with recommended services put in place to address these issues in an effort to allow C.B.B. to remain in the home. Furthermore, we concluded previously herein that respondents failed to present a suitable relative for placement. Thus, the trial court's findings of fact adequately address both prongs required to adjudicate dependency. Cf. In re B.M., 183 N.C.App. at 90, 643 S.E.2d at 648. Therefore, we conclude the trial court did not err by adjudicating C.B.B. a dependent juvenile. Accordingly, we affirm.
Affirmed. Judges McGEE and GEER concur.
Report per Rule 30(e).