Opinion
No. COA14–900.
01-20-2015
In the Matter of C.M., J.M.
Gail E. Carelli for Onslow County Department of Social Services, petitioner-appellee. Raleigh Divorce Law Firm, (Williams Law Firm, PLLC), by Heather Williams Forshey, for guardian ad litem. Richard Croutharmel for respondent-appellee father. Mark L. Hayes for respondent-appellant mother.
Gail E. Carelli for Onslow County Department of Social Services, petitioner-appellee.
Raleigh Divorce Law Firm, (Williams Law Firm, PLLC), by Heather Williams Forshey, for guardian ad litem.
Richard Croutharmel for respondent-appellee father.
Mark L. Hayes for respondent-appellant mother.
STEELMAN, Judge.
Although the District Court violated the provisions of N.C. Gen.Stat. §§ 7B–801(c) and 7B–803 by holding the adjudicatory hearing in these matters far beyond the statutorily prescribed time limits, mother has failed to show prejudice arising out of the delay. The trial court's adjudicatory order of 4 June 2014 is affirmed.
I. Factual and Procedural Background
On 27 April 2012, Onslow County Department of Social Services (DSS) filed a juvenile petition seeking adjudications of neglect as to thirteen-year-old C.M. and four-year-old J.M. DSS reported that B .M. (mother) had taken C.M. to the emergency room on 27 March 2012, seeking to have him committed because he was suicidal and homicidal. C.M. accused his stepfather (Mr. M.), who is J.M.'s father, of molesting him when he was nine years old. Upon C.M.'s release from an involuntary commitment at Bryn Mawr Hospital on 12 April 2012, mother failed to obtain the medications prescribed for her son. On 16 April 2012, after four days without medication, C.M. was involuntarily committed again. Mother also acknowledged that C.M. had not been enrolled in school since his expulsion from a school in Pennsylvania in February 2011. As to J.M., DSS reported that she had a stutter and “apparent speech delays” and that mother had failed to have J.M. assessed for these conditions, even after a request by a social worker. J.M. had also been “observed to have a strong body odor[,]” had come to school on several days dirty and dressed in dirty clothes, and had “disclosed that she has not had breakfast on occasion[.]” The petition further alleged that mother had pending charges of driving while impaired, drug possession, speeding, and hit and run arising out of an incident on 30 March 2012, and that she admitted to having attention deficit hyperactivity disorder and “a heart condition which impacts on her ability to care for the juveniles.”
DSS obtained nonsecure custody of C.M., who was scheduled to be released from his involuntary commitment on 30 April 2012. J.M. remained in mother's custody.
On 1 August 2013, DSS filed a second juvenile petition alleging that J.M. was neglected after a social worker supervising mother's visit with C.M. observed mother in a state of intoxication while she was taking care of J.M. According to the social worker, mother “admit[tted] that she consumed [v]odka and Mountain Dew with Valium and Xan[a]x on July 30, 2013 prior to the visit between the respondent mother and [C.M.].” After voluntarily placing J.M. with a neighbor on 30 July 2013, mother “was transported to Onslow Memorial Hospital for chest pains on the evening of July 30, 2013[.]” The following day, the neighbor advised DSS that she could no longer care for J.M. The petition further alleged that, “when the ... social worker talked with [mother] on July 31, 2013 regarding placement, [mother] was again observed to be under the influence of intoxicating substances.” DSS assumed nonsecure custody of J.M. on 31 July 2013.
The district court held an adjudicatory hearing on 17 and 18 February 2014. Addressing the allegations in the petition filed by DSS on 27 April 2012, the court found that mother “did not adequately ensure that [C.M.] received sufficient therapy to deal with his mental health diagnoses” and “did not home school [C.M. or] sufficiently pursue his re-enrollment in school” when he returned to North Carolina to live with mother. The court further found “[t]hat despite being informed of [J.M.'s] speech delays, [mother] did not seek out treatment before or after” those delays were confirmed by a Psychoeducational Evaluation Report on 11 September 2012. As a result, J.M. “did not receive treatment until after [DSS] took custody” of the child on 31 July 2013.
Regarding the incident described in the second petition filed by DSS on 1 August 2013, the district court found as follows:
That on July 30, 2013, social worker Mills accompanied [C.M.], to his mother's home for [a] planned, supervised visit.... [J.M.] was still residing with and in the custody of her mother at the time. That during the visit [mother] ... slurred her words and appeared to be under the influence of intoxicating substances. She admitted she had taken Xanax, Valium, and Adderrall which were prescribed by her doctor, and had poured herself a drink of vodka with Mountain Dew.... Shortly after the visit commenced, [mother] became agitated and began to use inappropriate, disturbing, and offensive language in the presence of the children, relating to the alleged sexual assault of [C.M.] by [his stepfather]. That she called [C.M.] a “murderer” and “pedophile” in front of both children. [C.M.] was removed from the home.... The social worker ... spent approximately thirty minutes eating ice cream with [C.M.] before returning to the home. [T]he social worker was advised to return to the home for [J.M.].... [U]pon [the social worker's] return to the home, ... [J.M.] was in the living room alone. The social worker ... called out to [mother] repeatedly and received no response.... When she reached [mother]'s bedroom, she noticed [mother] lying on the bed and unresponsive.... That when she was awakened by the social worker, [mother] had no idea where [J.M.] was or that she had been without proper supervision during the time [mother] was passed out.
Based on these findings, the court adjudicated C.M. and J.M. neglected juveniles as defined by N.C. Gen.Stat. § 7B101(15) (2013).
After hearing further evidence on 8 and 9 April 2014, the district court awarded legal custody of C.M. and J.M. to DSS, with mother to have a minimum of one hour of supervised visitation every other week with each child. The court ordered mother to obtain a full psychological evaluation and follow all resulting recommendations; participate in family therapy with C.M. as directed by the therapist; continue with the medication management and individual and group therapy recommended by her mental health assessment; and submit to random drug screens at the request of DSS. This disposition order was filed on 4 June 2014.
Mother appeals the 4 June 2014 order of adjudication resulting from the hearing held on 17–18 February 2014.
II. Mother's Appeal
In her sole argument on appeal, mother challenges the district court's “inexcusable delay” in holding adjudicatory hearings on the two juvenile petitions. She notes that, after granting a series of continuances to DSS and C.M.'s stepfather, the court did not hold the first hearings in these matters until February 2014, more than six months after the second petition was filed on 1 August 2013, and almost 20 months after the first petition was filed on 27 April 2012. Inasmuch as N.C. Gen.Stat. § 7B–801(c) (2013) requires the adjudicatory hearing to be held within 60 days of a petition's filing, and N.C. Gen.Stat. § 7B–803 (2013) authorizes a continuance beyond this 60–day deadline only for specific reasons not shown here, mother contends that the court violated the prescribed statutory time limits. Mother further asserts that she was prejudiced by the delay, because the court discredited her testimony based on its inconsistency with testimony she provided at an earlier hearing on 21 August 2013. Mother attributes these inconsistencies to her inability to recall the details of events that occurred months or years prior to the February 2014 hearing.
By statute, “[t]he adjudicatory hearing [on a juvenile petition alleging abuse, neglect, or dependency] shall be held ... no later than 60 days from the filing of the petition unless the judge pursuant to G.S. 7B–803 orders that it be held at a later time.” N .C. Gen.Stat. § 7B–801(c). As stated in N.C. Gen.Stat. § 7B–801(c), the district court may continue the adjudicatory hearing beyond the 60–day deadline only as authorized by N.C. Gen.Stat. § 7B–803, as follows:
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile ...
N.C. Gen.Stat. § 7B–803. “We review a trial court's decision to continue a case on an abuse of discretion standard.” In re R.L., 186 N.C.App. 529, 533, 652 S.E.2d 327, 331 (2007) (citing In re J.B., 172 N.C.App. 1, 10, 616 S.E.2d 264, 270 (2005) ).
The record reflects that the adjudicatory hearing for the petition filed 27 April 2012 was initially set for hearing in July 2012, beyond the 60–day deadline contemplated by N.C. Gen.Stat. § 7B–801(c). For reasons not appearing in the record, the hearing was continued until 16 November 2012. On 16 November 2012, the court found good cause to continue the adjudicatory hearing and schedule a pre-trial conference for 4 January 2013 at the request of counsel for Mr. M., in order to obtain and review “the juvenile's therapy records from Coastal Carolina Neuropsychiatric Center[.]” Another unexplained continuance resulted in the pre-trial conference being set for 20 May 2013, at which time the parties agreed to continue the pre-trial hearing until 12 July 2013, so that they could “review all records that they have received in this matter.” On 12 July 2013, the court set the adjudicatory hearing for 19 August 2013.
The order mistakenly lists the pre-trial conference date as 4 January 2012.
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On 19 August 2013, after DSS filed its second petition concerning J.M., the district court continued the adjudicatory hearing until 16 September 2013, citing the unavailability of the DSS social worker involved in the case. The court subsequently granted four additional continuances of the adjudicatory hearing until the 17 February 2014 term. Counsel for Mr. M. requested two of the continuances based on his client's inability to appear on the scheduled hearing date. A third continuance was requested by DSS in order to have additional time to review the “over 1000 pages of medical records” involved in the case. The fourth continuance was also sought by DSS, for reasons undisclosed in the record.
When Mr. M. and DSS sought to continue the adjudicatory hearing beyond the 17 February 2014 court term, mother objected. Based on mother's concern “that these cases have not been adjudicated and ... the petition was filed over a year ago[,]” the district court denied the continuance and proceeded with the adjudicatory hearing on 18 February 2014. The court continued the dispositional hearing until April 2014.
We agree with mother that the district court abused its discretion under N.C. Gen.Stat. § 7B–803 in delaying the adjudicatory hearing in this cause until February 2014. Assuming arguendothat one or more of the continuances were justified, the record before this Court reveals several unexplained delays of substantial length. As noted above, even the initial scheduled adjudication hearing date was untimely under N.C. Gen.Stat. 7B–801(c).
“However, we have consistently held that violations of ‘time limitations in the juvenile code ... do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay.’ “ In re R.L., 186 N.C.App. at 536, 652 S.E.2d at 333 (quoting In re C.L.C., 171 N.C.App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd in part and disc. review improvidently allowed in part, 360 N.C. 475, 628 S.E.2d 760 (2006) ). On appeal, mother must “ ‘articulate the prejudice arising from the delay in order to justify reversal.’ “ Id.(quoting In re S.N.H., 177 N.C.App. 82, 86, 627 S.E.2d 510, 513 (2006) ). Because an adjudication of a juvenile as abused, neglected or dependent “does not alter the rights, duties and obligations of the parent[,]” we have emphasized that “it is much more difficult for respondents to show how the delay prejudiced the parties” when the court postpones an adjudicatory hearing under N.C. Gen.Stat. § 7B–801, rather than a hearing for termination of parental rights under N.C. Gen.Stat. § 7B–907 (2013). In re B.M., 183 N.C.App. 84, 87, 643 S.E.2d 644, 646 (2007).
In assessing mother's claim of prejudice, we note that none of the continuances were granted over her objection. See id.at 88, 643 S.E.2d at 646 ; In re T.M., 180 N.C.App. 539, 545, 638 S .E.2d 236, 240 (2006). The first occasion that mother objected to a request for a continuance was at the hearing scheduled for 17 February 2014, and the court denied the request.
Moreover, our Supreme Court has made clear that “[m]andamus is the proper remedy when the trial court fails to hold a hearing ... as required by statute.” In re T.H.T., 362 N.C. 446, 454, 665 S.E.2d 54, 59 (2008) ; N.C.R.App. P. 22. Because the delays inherent in the appeal process only serve to compound the delay by the trial court, mother's failure to seek timely relief by writ of mandamus effectively precludes an appropriate remedy for the error asserted. See id.at 455, 665 S.E.2d at 60 (“A writ of mandamus ensures that the trial courts adhere to statutory time frames without the ensuing delay of a lengthy appeal.”).
Mother argues that the excessive delay caused the district court to find her testimony at the adjudicatory hearing not credible. She cites the following finding of fact included in the court's “Juvenile Adjudication Order”:
That on August 21, 2013, this Court heard testimony from [mother] and said testimony was inconsistent with her testimony at this Adjudicatory hearing. As such the court finds respondent mother to lack credibility and her testimony denying such admissions to be without merit.
This finding refers to mother's earlier testimony at a 21 August 2013 hearing to determine J.M.'s need for continued nonsecure custody under N.C. Gen.Stat. § 7B–506 (2013). When asked at the adjudicatory hearing about her prior testimony, mother testified as follows:
Q.... With respect to the second petition that was filed August 1st of 2013, did you admit that you were drinking vodka and you had consumed vodka and Xanax just prior to the visit with your children?
A. No, ma‘am.
Q. Ma‘am, did you not admit that in a prior hearing in testimony under oath?
A. No.
Q.... Did you not admit in a prior hearing under oath that a neighbor friend of yours distributes your medication because you can't handle that by yourself?
A. No.
Q.... Did you admit in a prior hearing that your medication regime had varied a lot and you were being overmedicated at the time during July, June, July of
A. My doctor was regulating my medication and he wasn't getting the amount correct.... We have since corrected that problem ....
Q.... Did you admit in that prior hearing that you had been paranoid and hallucinating and calling law enforcement and having delusions during July of 2013?
A. I did on one occasion....
Q.... And do you admit that you hadn't been getting therapy or medication management during May, June and July, 2013?
A. I have—I was getting medication management.
Q. Didn't you admit in court under oath that you were not receiving any therapy in May, June and July of 2013?
A. No, ma‘am.
The court's findings in the “Order on Need for Continued Nonsecure Custody” entered 24 October 2013 reflect mother's previous testimony and admissions.
We are not persuaded by mother's arguments. At the adjudicatory hearing, DSS social workers Evelyn Denise and Roxanne Mills each attested to the condition of C.M., J.M., and mother's home at the time the two petitions were filed. They also described mother's conduct and statements during their investigations. Denise recounted her conversation with mother on 9:00 a.m. on 31 July 2013, during which mother had “slurred speech” and was “a little bit erratic.” Discussing her supervised visitation with C.M. the previous day, 30 July 2013, mother admitted that she took her prescribed “Xanax and Valium” and “sipped a little bit of vodka and Mountain Dew” before social worker Mills arrived. Mother expressed to Denise that “she feels like she's an adult and she can have a drink if she would like to.”
Mills testified as to mother's visit with C.M. on the afternoon of 30 July 2013. Mills “could smell alcohol on” mother while sitting beside her. Although mother did not admit to drinking alcohol, she told Mills “that she had taken Xanax, Valium and Adderall that day.” During the visit, mother “was slurring her words; her speech was slow. Her eyes were glassy. Some sentences that she was speaking ... didn't make sense. She was easily agitated at times.” Despite Mills' efforts to redirect mother toward visiting with her son, mother remained focused on Mr. M.'s alleged molestation of C.M., stating in front of both juveniles “how [C.M.] was now going to be a rapist and a pedophile and a murderer[.]”
Contrary to mother's contentions, the district court's findings do not suggest that the court “punished” mother for her inability to recall her previous admissions at the time of the 18 February 2014 adjudicatory hearing. Instead, the court reasonably chose to credit mother's admissions, which were consistent with the testimonies of Denise and Mills, rather than the more self-serving denials that she made at the adjudicatory hearing. We find it highly unlikely that the court would have been more favorably inclined to give credence to mother's denials but for the untimeliness of the 18 February 2014 hearing. We note further that mother's testimony at trial, as quoted above, was a clear denial, not an assertion of her inability to remember; mother's lack of recall is an unwarranted assumption by counsel on appeal.
Nothing in the hearing transcript or the district court's findings of fact indicates that the court based its adjudication upon mother's inability to recall particular details of the events that led DSS to file the original petition on 27 April 2012. Irrespective of her ability to recall the name of the person with whom she spoke at the Onslow County School Board, mother acknowledged that C.M. had missed a year of school and was receiving no education in her home at the time DSS filed its petition. See generally In re McMillan, 30 N.C.App. 235, 238, 226 S.E.2d 693, 695 (1976) (“A child does not receive ‘proper care’ and lives in an ‘environment injurious to his welfare’ when he is deliberately refused this education, and he is ‘neglected’ within the meaning of” the Juvenile Code.). Nor does mother's inability to remember the specific dates of C.M.'s institutionalizations have any bearing on his failure to receive necessary medication following his release from Bryn Mawr Hospital into mother's care on 12 April 2012. Moreover, the issue before the court was the juveniles' status as neglected within the meaning of N.C. Gen.Stat. § 7B–101(15), not mother's “culpability” therefor. In re J.S., 182 N.C.App. 79, 86, 641 S.E.2d 395, 399 (2007).
Because mother has failed to show prejudice arising from the district court's excessive delays in conducting the adjudicatory hearing, her argument is overruled. See In re B.M., 183 N.C.App. at 85–86, 643 S.E.2d at 645 (fifteen-month delay). The order of adjudication entered on 4 June 2014 is affirmed.
AFFIRMED.
Chief Judge McGEE and Judge DAVIS concur.
Report per Rule 30(e).
Opinion
Appeal by mother from orders entered 4 June 2014 by Judge Sarah C. Seaton in Onslow County District Court. Heard in the Court of Appeals 22 December 2014.