Opinion
No. COA15-1365
05-03-2016
In Re: K.D., a minor child, and CD., a minor child
David S. Tedder, Asst. County Attorney, for Columbus County Department of Social Services, petitioner-appellee. Administrative Office of the Courts, by Matthew D. Wunsche, GAL Appellate Counsel, for guardian ad litem. Rebekah W. Davis for respondent-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Columbus County, Nos. 13 JA 24-25 Appeal by respondent from order entered 22 September 2015 by Judge William F. Fairley in Columbus County District Court. Heard in the Court of Appeals 11 April 2016. David S. Tedder, Asst. County Attorney, for Columbus County Department of Social Services, petitioner-appellee. Administrative Office of the Courts, by Matthew D. Wunsche, GAL Appellate Counsel, for guardian ad litem. Rebekah W. Davis for respondent-appellant. DAVIS, Judge.
R.B. ("Respondent"), the grandfather of Karen, appeals from the trial court's order appointing a guardian for Karen and denying Respondent visitation with her. After careful review, we affirm the order of the trial court.
Pseudonyms are used throughout this opinion to protect the identities of the minor children and for ease of reading. N.C.R. App. P. 3.1(b).
Factual Background
Karen was born on 26 June 2005. Later that year, her mother, C.M.D., was reported missing. In 2008, the remains of her body were discovered and Karen's father, J.D., was arrested for her murder. Upon her father's incarceration, Karen and her sister "Cathy" went to live with their paternal grandparents. Respondent, who is the children's maternal grandfather, retained visitation rights to both children.
In 2010, the trial court entered a consent order awarding primary physical custody of both Karen and Cathy to Respondent and his wife, T.B. Shortly thereafter, Respondent and T.B. separated, and he began dating S.T., who had previously been convicted of attempted rape and attempted sexual offense against her children.
On 31 October 2012, Respondent contacted employees of the Columbus County Department of Social Services ("DSS") and informed them that T.B. had sexually abused Karen. A subsequent child forensic evaluation was performed in early 2013, which determined that compelling evidence existed tending to show that Respondent had, in fact, sexually abused Karen. Furthermore, the evaluation determined that Respondent had beaten Cathy with brooms, whips, belts, leather straps, and a rubber paddle. The child forensic evaluator opined in his report that "[Respondent's] physical and psychological abuse of the children in the family serves to intimidate family members into silence, minimal and inconsistent accounts, and ultimately into recantations. [Karen] and [Cathy] are both showing signs of psychological trauma."
On 15 May 2013, DSS filed a petition alleging that Karen was an abused, neglected, and dependent juvenile. That same day, the trial court entered an order granting DSS nonsecure custody of Karen.
A hearing on DSS' petition was held before the Honorable William F. Fairley in Columbus County District Court on 21 October 2013. On 30 December 2013, the trial court entered an order adjudicating Karen as an abused and neglected juvenile, concluding that (1) "[Karen] is an abused juvenile because her custodian, [Respondent] has created or allowed to be created serious emotional damage to the juvenile"; and (2) "[Karen] is a neglected juvenile because she lives in an environment injurious to her welfare and because she does not receive proper discipline from her custodian, [Respondent.]"
The court based its conclusions on its findings that (1) "[Respondent] has been convicted of numerous offenses involving violence or threats thereof . . . . [T]he court finds that a perpetual undercurrent of violence or the threat thereof pervaded [Respondent's] household at all times when the children resided therein"; (2) "[Respondent] routinely disciplined the children physically by striking them with a belt, a leather strap, a broomstick or a rubber paddle . . . that the same [physical discipline] is, however, excessive and contributes to the psychological and emotional damage suffered by [Karen] and [Cathy]"; and (3) "[Respondent] would frequently threaten the children by saying that he was going to 'beat them half to death' or 'beat the s***' out of them; that the cumulative effect of [Respondent's] personal affect, excessive physical discipline of the children, threats of physical harm and demeaning comments about the children's parents is to create an environment in which the children were constantly intimidated, deprived of emotional support and subjected to regular fear of physical injury all of which gave rise to the emotional condition of the children[.]"
On 23 January 2014, the trial court entered a dispositional order concluding that "due to the fragile mental and emotional health of [Cathy] and [Karen], [Cathy] and [Karen] should not have any contact with their biological family members except as set out herein, and that contact with their biological family members, except as set forth herein, would not be in the best interest of [Karen] and [Cathy]." The trial court then ordered that (1) legal and physical custody of Karen and Cathy remain with DSS; (2) DSS be relieved from further reunification efforts with Respondent; (3) DSS cease reunification efforts with Respondent; and (4) there be no contact between Karen and Respondent except through DSS.
After a series of permanency planning hearings, the trial court held another permanency planning hearing on 17 August 2015. Karen's father did not attend the hearing due to his continued incarceration, but was represented by counsel.
At the hearing, the trial court heard testimony from Karen's proposed guardian (M.R.), her social worker, and her guardian ad litem. The trial court also took notice of DSS and GAL reports, which were introduced into evidence. Respondent also testified at the hearing.
On 22 September 2015, the trial court entered a permanency planning order (1) awarding guardianship of Karen to M.R.; (2) denying Respondent visitation with Karen; (3) directing DSS to make inquiries of Karen's mental health providers as to the advisability of future visits between her and Respondent; and (4) scheduling a subsequent permanency planning hearing for 23 November 2015. Defendant filed a notice of appeal of the trial court's 22 September 2015 order.
Analysis
I. Motion to Dismiss Appeal
On 22 February 2016, DSS filed a motion to dismiss Respondent's appeal. In this motion, DSS contends that because Respondent was erroneously granted court-appointed counsel both at the 17 August 2015 hearing and in connection with his appeal, his appeal is fatally defective and must be dismissed. We disagree.
In support of its argument, DSS cites to N.C. Gen. Stat. § 7B-602(a) and N.C. Gen. Stat. § 7B-1101.1(a), which provide that indigent parents have a right to court-appointed counsel in cases where a juvenile is alleged to be abused, neglected, or dependent. DSS argues that because these statutes do not expressly authorize the appointment of counsel for custodians, the trial court erred in appointing counsel for Respondent, thereby warranting the dismissal of Respondent's appeal.
We need not decide the question of whether Respondent was statutorily entitled to appointment of counsel. Even assuming arguendo that the trial court erred in providing him with court-appointed counsel, DSS has cited no legal authority for the proposition that such an error would warrant the dismissal of Respondent's appeal. Consequently, we deny DSS' motion to dismiss the appeal.
II. Standing to Assert the Rights of Karen's Father
Respondent first contends that the trial court erred by failing to sufficiently define the rights or obligations of J.D. (Karen's father) in its order. However, because he lacks standing to assert J.D.'s rights on appeal, this issue is not properly before us.
While J.D. could not personally attend the 17 August 2015 permanency planning hearing due to his incarceration, he was represented in court by his attorney. No appeal was taken by J.D. of the trial court's 22 September 2015 order.
"Only 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) (internal citations and quotation marks omitted). Generally, a party may not raise another party's rights on appeal. See In re L.D.B., 168 N.C. App. 206, 211, 617 S.E.2d 288, 291 (2005) ("Respondent . . . also argues that the trial court erred by entering a TPR order because there was no service on any prospective father other than him . . . . Petitioner asserts that [the respondent] lacks standing to raise this argument. We agree that [the respondent] lacks standing to raise any issue regarding the court's lack of service on a potential John Doe father . . . ."); Goodson v. Goodson, 32 N.C. App. 76, 82, 231 S.E.2d 178, 182 (1977) ("Plaintiff next assigns error to the conclusion that the grandmother, Mrs. Dorothy Goodson, was in contempt for refusing to return the child to his mother. . . . Plaintiff was not aggrieved by the contempt order against Mrs. Goodson and has no standing to appeal in her behalf.").
Similarly, Respondent here lacks standing to assert the rights of J.D. Therefore, we do not reach the merits of Respondent's arguments on this issue.
III. Visitation
Respondent's final argument is that the trial court erred in denying him visitation with Karen. Specifically, he asserts that the trial court's order lacks necessary findings explaining why visitation with Respondent was not in Karen's best interests and that insufficient evidence existed for the trial court to be able to make such findings. We disagree.
"This Court reviews the trial court's dispositional orders of visitation for an abuse of discretion." In re M.H.B., 192 N.C. App. 258, 267, 664 S.E.2d 583, 588 (2008) (citation and quotation marks omitted). Pursuant to N.C. Gen. Stat. § 7B-905.1(a),
[a]n order that removes custody of a juvenile from a parent, guardian, or custodian or that continues the juvenile's placement outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile consistent with the juvenile's health and safety. The court may specify in the order conditions under which visitation may be suspended.N.C. Gen. Stat. § 7B-905.1(a) (2015).
We have held that "[i]f the court finds that the parent has by conduct forfeited the right of visitation or if the court finds that the exercise of the right of visitation would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, the child . . . ." M.H.B., 192 N.C. App. at 267, 664 S.E.2d at 588 (citation and brackets omitted). This same principle applies to the issue of visitation by a custodian.
In the present case, the trial court incorporated the 25 February 2015 and 11 August 2015 GAL reports into its findings of fact. The 25 February 2015 report states that "[a]ccording to Karen Kirk, PHD licensed Child/Adolescent Psychologist she has advised all professional's [sic] involved in this case including this GAL that the children have no contact with family members at this time." The 11 August 2015 report also provides that "in order to protect and promote the best interest of the juvenile(s), Guardian Ad Litem recommends the following: . . . . That no visits or communication of any kind with any family members take place."
The trial court proceeded to make the following findings in its order regarding the issue of visitation with Respondent:
45. That this Court finds that the juveniles' mental status associated with adjusting to living together again is sufficient upheaval at this time and the Court is not inclined to establish visitation with [Respondent] at this time.
46. That CCDSS should inquire of the juveniles' mental health providers as to the advisability of visitations with [Respondent] under CCDSS supervision.
Thus, the trial court determined that it was in Karen's best interests not to have visitation with Respondent, a finding that was supported by competent evidence in the record. As such, we cannot say the trial court abused its discretion in denying visitation to Respondent.
Although not essential to our holding, we note that while the trial court determined visitation with Respondent was not presently in Karen's best interests, the court did not completely foreclose the possibility of future visitation with Respondent, directing DSS to "inquire of the juveniles' mental health providers as to the advisability of visits with [Respondent] under CCDSS supervision."
Conclusion
For the reasons stated above, the 22 September 2015 order of the trial court is affirmed.
AFFIRMED.
Chief Judge McGEE and Judge STEPHENS concur.
Report per Rule 30(e).