Opinion
No. COA11–1460.
2012-05-1
In re L.L. & B. M.
James N. Freeman, Jr., for Alleghany Department of Social Services, petitioner-appellee. Parker, Poe, Adams, & Bernstein L.L.P., by R. Bruce Thompson II, for guardian ad litem.
Appeal by respondent-mother from adjudication order entered 13 September 2011 by Judge Mitch McLean and disposition order entered 30 September 2011 by Judge Michael Duncan in Alleghany County District Court. Heard in the Court of Appeals 3 April 2012. James N. Freeman, Jr., for Alleghany Department of Social Services, petitioner-appellee. Parker, Poe, Adams, & Bernstein L.L.P., by R. Bruce Thompson II, for guardian ad litem.
David A. Perez for respondent-appellant.
HUNTER, JR., Robert N., Judge.
Respondent is the mother of L.L. and B.M., who were ages three years and ten months, respectively, at the time of the filing of juvenile petitions alleging that they were abused and neglected juveniles. The petitions specifically alleged the following: (1) respondent threatened to kill her children; (2) respondent was involuntarily committed on 12 July 2011; and (3) the Alleghany Department of Social Services (“DSS”) received a report that respondent planned to “take the children and run” with her fiancé upon her release from involuntary commitment on 14 July 2011.
Initials are used throughout this opinion to protect the identities of the minors.
The allegation concerning respondent's threat to kill her children was based on the following 21 June 2011 “Yahoo Messenger” internet conversation between respondent and a friend (whose name has been redacted from the record):
[Respondent:] idk
idk im jst tired f it
[Friend:] yea id be to
[Respondent:] ily
i need a break
from it all
[Friend:] ily 2 but i mean like wat
yall fight abt
[Respondent:] idk [Friend]
dumb shit
im not her i guess
[Friend:] wow really
[Respondent:] idk
[Friend:] so how are you and that nasty
bboy i hear abt?
[Respondent:] i mean it might be john
filling her head
nasty
omg [Friend]
[Friend:] lol
with wat kindda shit?
[Respondent:] idk
but shes bot a mad attitude
[Friend:] maybe period time?
[Respondent:] nope
i need a cig
been [up] [almost] all day
[Friend:] go smoke ill wait
ohhh sorry just got that
[Respondent:] yea [Friend] im about to fukn
lose it
the kids are still up
[Friend:] [Minor] is to screaming,
[Respondent:] i need a cig
ima fukn kill em
both
moentaraly
[Friend:] moentaraly?
[Respondent:] im going to kill em in a min
[Friend:] ohhhhhh ok lol isnt your mom
helping you
[Respondent:] nope
[not] really
she took off with [B.M.]
earlier
literally wouldn't tell me
where she was goin
Respondent's friend subsequently filed a petition to have respondent involuntarily committed based upon respondent's threats (via the internet conversation) to harm L.L. and B.M and respondent's requests on “numerous occasions” to have her babysit L.L. and B.M. while respondent obtained pills “for her own pleasure .”
Respondent was committed on 12 July 2011 and underwent psychiatric evaluation at New River Behavioral HealthCare on 13 July 2011. According to the examining physician's report, respondent told the physician she made the threatening statements because she was “severely stressed” and thought she could “vent” to her best friend. The examining physician noted in his report three weeks had passed since the 21 June 2011 incident and respondent had made no other threats. The report also notes that the police officer working the case “states there is no evidence of plans to harm or any harm to children.” Respondent “voluntarily” decided to stay for evaluation, and she was released from psychiatric care on 14 July 2011.
On 18 July 2011, DSS filed juvenile petitions regarding L.L. and B.M. The petitions alleged abuse and neglect of both children based upon the aforementioned allegations and stated that respondent “has created or allowed to be created a substantial risk of serious physical injury to the juvenile[s] by other than accidental means,” and that the children “live[ ] in an environment injurious to [their] welfare.”
On 30 August 2011, the matter came on for hearing in Alleghany District Court. By order entered 13 September 2011, the court concluded that both L.L. and B.M. were abused and neglected based upon the following findings of fact:
DSS has previously received reports of neglect on these children in May, 2009, December, 2010 and June, 2011. None of the prior reports generated services but did alert DSS to this family. In July, 2011 DSS became aware that on June 21, 2011 [respondent] created a Yahoo entry which stated that “I'm about to fucking lose it, the kids are still up.” She later went on to say “I'm a fucking kill them both” and “I'm going to kill them in a minute.” It is noteworthy that [L.L.] was not even present at this time and that these messages were sent by [respondent] by typing on a computer keyboard rather than an offhand oral remark. On July 12, 2011 [respondent] was involuntarily committed to a mental ward in Statesville at the behest of her best friend, [name redacted]. On July 14, 2011 DSS received a report that upon her release from the hospital she and her boyfriend were going to flee the jurisdiction with the children whereupon DSS filed its petition and took custody of the children. On July 20, 2011 a service plan was developed including requirements for housing, employment, parenting classes and mental health counseling. She has mostly complied with her service agreement and states that she did not seriously threaten the children on June 21, 2011.
The court ordered a disposition hearing on 20 September 2011. At the conclusion of the disposition hearing on that date, the court rendered a decision awarding custody of the children to DSS and granting visitation to respondent and to the children's separate fathers pursuant to a plan of reunification. The court filed the disposition order on 30 September 2011. Respondent filed notice of appeal from both orders on 27 September 2011.
Although notice of appeal was given prior to entry of the disposition order, it was given after its rendering in open court and thus notice of appeal is timely. Merrick v. Peterson, 143 N .C.App. 656, 660, 548 S.E.2d 171, 174 (2001).
Respondent first contends the court lacked subject matter jurisdiction because the petitions were not properly verified. “A trial court's subject matter jurisdiction over all stages of a juvenile case is established when the action is initiated with the filing of a properly verified petition.” In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). To be proper, “the petition shall be drawn by the director, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing.” N.C. Gen.Stat. § 7B–403(a) (2011). Respondent acknowledges that the petitions at bar were verified but argues the verifications are invalid because the person before whom DSS' authorized representative appeared did not indicate the basis of his authority to administer the oaths.
A challenge to a court's subject matter jurisdiction may be made at any stage of the proceedings, even for the first time on appeal. In re T.R.P., 360 N.C. at 595, 636 S.E.2d at 793. Because respondent did not raise this issue in the court below and did not list it in her proposed issues, it became necessary for DSS to file a motion to amend the record on appeal to include the affidavits of Danny Linker and Chief District Judge Mitchell L. McLean. We allowed the motion. Mr. Linker stated that he administered the oath to the DSS representative in this case in his capacity as magistrate after the clerk's office had closed on 14 July 2011. Judge McLean stated that it was the authorized practice in the 23rd Judicial District for magistrates to administer oaths and verify petitions for DSS after regular business hours of the clerk's office and that Magistrate Linker was authorized by him to administer oaths on 14 July 2011. Our statutes provide that (1) a magistrate is empowered to administer oaths, N.C. Gen.Stat. § 7A–292(1) (2011); and (2) a magistrate may be authorized by a chief district court judge to “draw, verify, and issue” petitions in juvenile matters after the office of the clerk has closed, N.C. Gen.Stat. § 7B–404(a) (2011). The record, as amended, shows that the petitions were indeed properly verified by an official authorized to administer oaths. The court had subject matter jurisdiction. Respondent's contention is overruled.
Respondent next contends the court erred in finding and concluding that the juveniles were abused and neglected and that there was an immediate threat of harm to them. Respondent argues these conclusions are not supported by findings of fact based upon clear, cogent, and convincing evidence.
“The allegations in a petition alleging that a juvenile is abused, neglected, or dependent shall be proved by clear and convincing evidence.” N.C. Gen.Stat. § 7B–805 (2011). In reviewing an adjudication order, we 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 Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (internal citations omitted). We are bound by the trial judge's factual findings “where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984).
The petitions at bar alleged, and the trial court concluded, that (1) each juvenile was abused in that her parent “has created or allowed to be created a substantial risk of serious physical injury to the juvenile by other than accidental means” as defined by N.C. Gen.Stat. § 7B–101(1)(b) (2011); and (2) each juvenile was neglected in that she “lives in an environment injurious to the juvenile's welfare” as defined by N.C. Gen.Stat. § 7B–101(15) (2011). We agree with respondent that the court's findings of fact and the evidence do not support its conclusions of law that the juveniles were abused or neglected within the statutory definitions.
The findings show that DSS had received three reports alleging respondent had neglected the children; however, the findings also show that the reports were not substantiated and that the services of DSS were not required. The findings also indicate that respondent had made threats over the internet to kill her children; however, the findings also indicate that one of the children whom she threatened to kill was not even in her home at the time. The findings indicate that DSS received a report that respondent and her boyfriend were planning to run away upon her release from commitment; however, no evidence was presented to support or substantiate this report.
The evidence does show that the mental health professional who examined respondent for involuntary commitment found that respondent displayed no evidence of a desire to harm herself or her children, that the message was written three weeks earlier while respondent was “venting” to a friend, that respondent had not harmed her children in the three weeks after the messages were written, and that respondent voluntarily agreed to be committed for evaluation. Respondent testified that she was discharged the very next day. The person who filed the involuntary commitment petition testified that she did not think respondent meant what she said in the message, that she had never seen respondent hurt her children, and that respondent was “a great parent,” who was “good at controlling her anger.” The director of a family resource center which provided parenting classes to respondent testified that respondent had done very well in her classes and visits with her children and had demonstrated superior parenting and disciplining skills for one her young age.
Accordingly, we reverse the court's adjudication of the children as abused and neglected and remand for entry of an order returning the children to respondent's custody. This disposition renders it unnecessary to consider respondent's challenges to the disposition order.
Reversed and remanded. Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).