Opinion
No. COA11–1594.
2012-06-5
In the matter of M.C. and E.C.
Elizabeth Kennedy–Gurnee, for Cumberland County Department of Social Services, Petitioner–Appellee. Pamela Newell for Guardian ad Litem.
Appeal by Respondents from order entered 9 September 2011 by Judge Robert J. Stiehl, III in Cumberland County District Court. Heard in the Court of Appeals 2 May 2012. Elizabeth Kennedy–Gurnee, for Cumberland County Department of Social Services, Petitioner–Appellee. Pamela Newell for Guardian ad Litem.
Edward Eldred for Respondent–Appellant Mother/Stepmother.
Robert W. Ewing for Respondent–Appellant Father.
BEASLEY, Judge.
The trial court adjudicated E.C. as an abused, neglected and dependent juvenile and adjudicated M.C. as a dependent juvenile. We affirm in part and reverse in part.
M.C. and E.C. are half siblings who share a common father (“Father”). E.C., who is the older child born in September 2004, formerly resided with his biological mother in the state of New York. Approximately four months prior to the birth of M.C. in December 2009, E.C. moved to North Carolina to reside with Father and M.C.'s mother (“Mother”).
On 10 September 2010, the Cumberland County Department of Social Services (“Petitioner”) filed juvenile petitions alleging the juveniles were abused, neglected, and dependent after it received a medical referral on 8 September 2010 regarding possible abuse of E.C. based upon injuries to his hands. On 9 September 2011, the Cumberland County District Court entered an adjudication and disposition order. The court adjudicated E.C. as an abused, neglected and dependent juvenile and M.C. as a dependent juvenile. The court dismissed the Petitioner's allegations of abuse and neglect as to M.C. The court granted legal custody of both children to Petitioner. Father and Mother (collectively “Respondents”) appeal the adjudication and disposition order.
“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, this Court determines whether the trial court's findings of fact are supported by clear and convincing evidence and whether the findings of fact support the court's conclusions of law. In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000). The trial court's findings of fact are binding “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). Review of a conclusion of law is de novo. In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [lower tribunal].” In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003).
Both Father and Mother challenge the trial court's conclusion of law that both juveniles are dependent. They argue the conclusion is not supported by the evidence and findings of fact.
A dependent juvenile is one “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.” N.C. Gen.Stat. § 7B–101(9) (2011). “Under this definition, 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 P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005).
With regard to Respondents' ability to provide care or supervision for E.C., the trial court's findings indicate that Step–Mother, several days apart, non-accidentally broke fingers on each of E.C.'s hands. Even though Father knew of the pain, swelling and discoloration of E.C.'s hands, neither Father nor Step–Mother sought immediate medical attention for the child. The findings further cite evidence that Step–Mother struck E.C. with a table leg or other stick-like object and a belt; that Step–Mother struck E.C.'s nose with scissors resulting in a cut; that Step–Mother choked E.C.; and that Father struck E.C. with a belt resulting in two gouge marks, consistent with the rectangular shape of a belt buckle, to the rear upper portion of his skull. Father claimed not to know how the gouge marks were inflicted upon the child's head; Father asserted the injury happened at school.
The foregoing demonstrates abusive and neglectful conduct by Step–Mother and Father which is not consistent with an ability to provide proper care and supervision of E.C. We conclude Petitioner established the first prong for an adjudication that E.C. is a dependent juvenile.
With regard to the availability of alternative child care arrangements for E.C., the court's findings indicate that Father called E.C.'s biological mother on 21 July 2010 and asked her to take E.C. because E.C. and Step–Mother were not “getting along” and Step–Mother did not want to care for or keep E.C. while Father was at work. At that time, E.C.'s mother was homeless, was residing at a Salvation Army shelter, and was not in a position to take E.C. When the non-secure custody order was entered, E.C.'s mother had very limited face-to-face contact with him. Afterward, E.C.'s mother called E.C. at his foster home on a daily basis until the month of December, 2010, when the calls abruptly stopped. Petitioner had difficulty contacting E.C.'s mother and after several months of trying, finally contacted E.C.'s mother via E.C.'s maternal grandmother during the week of the adjudicatory and disposition hearing in July 2011.
The foregoing findings show some instability on the part of E.C.'s mother demonstrate her inability to be an appropriate alternative child care arrangement. Indeed, Father himself questioned in discovery documents the appropriateness of E.C.'s mother as a possible placement for E.C. because she was, and still could be, using illegal substances, living in a homeless shelter, and engaging in a sexual relationship with her half-brother who has a criminal history. He also indicated that E.C. came to live with him in North Carolina at E.C.'s mother's behest because of E.C.'s mother's financial difficulties, E.C.'s behavioral and health issues, and E.C.'s desire to live with his father. Father also questioned the qualifications of E.C.'s maternal grandmother as a possible placement for E.C., noting she had allegedly provided illegal substances to children in her care in the past, participated in virtual or telephonic sexual activity for hire in the presence of children in her care, and had last resided with another daughter because she, herself, lacked the financial resources to support herself or those in her care. Thus the trial court's findings support its conclusion that E.C. lacks a parent who can care and be responsible for him and lacks an appropriate alternative child care arrangement. We affirm the trial court's adjudication that E.C. is a dependent juvenile.
As to M.C.'s adjudication as a dependent juvenile, the trial court did not make any findings of fact which indicate that Respondents are unable to care for and be responsible for M.C. All of the court's adjudication findings of fact are directed towards Respondents' ability to care for E.C., given their abuse or neglect of him.
Moreover, the adjudication findings of fact fail to indicate that an appropriate child care arrangement is unavailable for M.C. at this time. Instead, the disposition findings show otherwise as they indicate that M.C. remains “in the home on a trial home visit” with Respondents and that the “placement is going well”; that Mother stays at home and cares for M.C.; that Respondents have completed parenting and anger management classes; and that there has been no known mistreatment of M.C. by Respondents, although careful monitoring of the parents may be required as she ages to assure her continued safety and well-being.
We therefore hold that the findings of fact do not support a conclusion that M.C. is a dependent juvenile. We reverse the trial court's adjudication that M.C. is dependent.
Affirmed in part; Reversed in part. Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).