Opinion
No. COA12–297.
2012-07-17
In the Matter of Z.S., M.S., R.S., D.S.
Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for petitioner-appellee. Poyner Spruill LLP, by Kathryn R. Paradise, for guardian ad litem.
Appeal by respondent from order filed 29 November 2011 by Judge Louis A. Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 25 June 2012. Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr., for petitioner-appellee. Poyner Spruill LLP, by Kathryn R. Paradise, for guardian ad litem.
Assistant Appellate Defender Joyce L. Terres, for respondent-appellant.
HUNTER, ROBERT C., Judge.
Respondent is the mother of five girls, one of whom is not involved in this case, hereinafter called by stipulated pseudonyms of Zoey, Molly, Rita, and Debra. She appeals from an order adjudicating the four children as neglected and dependent juveniles. We affirm in part and reverse in part.
On 18 October 2011, Mecklenburg County Department of Social Services Youth and Family Services (hereinafter “YFS”) filed a petition alleging that the four girls were neglected and dependent juveniles. On 7 November 2011, respondent entered into two agreements with YFS and the guardian ad litem for the juveniles. The first, entitled “Mediated Petition Agreement,” contained stipulations which the court could use in making its findings of fact at the adjudication hearing. The Mediated Petition Agreement is prefaced by the following statement:
The parties acknowledge that they have entered this agreement knowingly, intelligently, voluntarily, and with a full understanding that this agreement will be submitted to the Court at the Adjudication Hearing and used by the Court to make findings of fact.
The second, entitled “Mediated Case Plan Agreement,” reflected the parties' agreement upon a case plan to be submitted to the court at the disposition hearing.
We note that the trial court refers to both documents as the “mediated agreement.” However, for purposes of clarity in the opinion, we use the formal name of the document when referencing it.
The court convened a hearing upon the petition on 29 November 2011. Respondent and her attorney appeared for the hearing. The court swore respondent in as a witness and asked her whether she attended the mediation on 7 November 2011, whether she signed the Mediated Petition Agreement, whether she understood the Mediated Petition Agreement's facts in paragraphs listed “a” through “q” concerning what had happened to her children, whether she understood that those facts would be used by the court in determining whether her children were neglected and/or dependent juveniles, and whether she gave permission to the court to make a decision based upon those facts. Respondent replied in the affirmative. The court heard arguments of counsel and ruled that based upon the Mediated Petition Agreement, clear and convincing evidence existed to adjudicate Debra and her siblings as neglected and dependent juveniles.
The court then proceeded to disposition. The court asked respondent whether she understood what she was supposed to do according to the Mediated Case Plan Agreement. She stated that she had been doing the things recommended in the agreement. The court reviewed with respondent the things she said she had done and those which she had not completed. After receiving reports and hearing arguments of counsel, the court announced that it was adopting the recommendations of the Mediated Case Plan Agreement regarding disposition, which included allowing the three children other than Debra, who had been sexually assaulted by respondent's former boyfriend, to remain in respondent's home. The court warned respondent that if it learned she was involved in a relationship with another man who is not a “positive person” for her children to be around, then he would remove the other three children from her home. The court also admonished respondent for not being open or candid to social workers and the court about the identity of a man or men with whom respondent had been associating. Respondent objected to the restriction and accused the court and the social workers of trying to “ruin [her] life.” Respondent's counsel interjected and asked the court to appoint a guardian ad litem for respondent. The court allowed counsel's request and entered a disposition adopting the recommendations of the Mediated Case Plan Agreement.
Respondent argues that the court erred in adjudicating the juveniles neglected and dependent because its decision to appoint respondent a guardian ad litem necessitated the court determining that respondent was incompetent or of diminished capacity and could not act in her own best interest. Therefore, respondent was unable to “knowingly, intelligently, voluntarily, and with a full understanding” agree to the stipulations in the Mediated Petition Agreement. Thus, the respondent argues that the court erred in incorporating those stipulations in its findings of fact when adjudicating the juveniles neglected and dependent. We do not agree.
The pertinent statutory provision governing the appointment of a guardian ad litem for a parent in a neglect, abuse, or dependency proceeding provides that upon motion of a party or on its own motion, a court
may appoint a guardian ad litem for a parent in accordance with G.S. 1A–1, Rule 17, if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest.
N.C. Gen.Stat. § 7B–602(c) (2011) (emphasis added). The decision whether to appoint a guardian ad litem for the parent is within the discretion of the court. In re M.H.B., 192 N.C.App. 258, 261, 664 S.E.2d 583, 585 (2008). An adult is incompetent for the purpose of legal proceedings when the adult
lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.
N.C. Gen.Stat. § 35A–1101(7) (2011).
Respondent is correct that this Court has held that it was reversible error for a trial court to not exercise its discretion and hold a hearing to determine whether a parent was entitled to a guardian ad litem, pursuant to N.C. Gen.Stat. § 7B–602(c), based on the evidence presented at the hearing. See In re M.H.B., 192 N.C.App. at 265–67, 664 S.E.2d at 587–88. However, here, respondent is not contending that the error was based on the court's failure to hold a hearing. Nor is respondent arguing that the appointment of the guardian ad litem was inappropriate. Respondent's argument relies on an assumption, unsupported by our caselaw, that an appointment of a guardian ad litem pursuant to N.C. Gen.Stat. § 7B–602(c) equates with a finding that a parent is incompetent. We are not persuaded.
In its adjudication and disposition order, the court noted that its appointment of a guardian ad litem for respondent was based on: (1) respondent's attorney's request that one be appointed; (2) respondent's “numerous angry outbursts in court;” (3) respondent's statement that she needs intensive therapy; and (4) reports from DSS social workers that respondent is hostile. While we find that the evidence presented at the hearing supports the court's “reasonable basis” for appointing a guardian ad litem, we do not believe that this same “reasonable basis” necessitates a finding that respondent was incompetent and, thus, unable to agree to the stipulations in the Mediated Petition Agreement. In other words, the court's decision to appoint respondent a guardian ad litem does not, by itself, constitute a definitive ruling that respondent is incompetent. Therefore, the court did not err in relying on the stipulations in the Mediated Petition Agreement in its adjudication order.
Respondent also argues the court erred by entering an adjudication order prior to respondent's receiving the assistance of the guardian ad litem. She submits that the guardian ad litem could have preserved her due process rights. We are not persuaded.
The duty to ensure that the parent's due process rights are protected is derived from and shared with the parent's attorney. SeeN.C. Gen.Stat. § 7B–602(e) (2011) (duties of a guardian ad litem include “[a]ssisting the parent and the parent's counsel, if requested by the parent's counsel, to ensure that the parent's procedural due process requirements are met.”). From the time of the filing of the petition at bar, respondent has been represented by an attorney. This attorney attended the initial seven-day hearing with respondent, attended the mediated settlement conference with respondent, signed the Mediated Petition Agreement and Mediated Case Plan Agreement, and represented respondent at the adjudication and disposition hearing. At each of these proceedings, counsel was in a position to protect respondent's procedural rights. Respondent makes no contention that her rights were inadequately protected by counsel.
Respondent next contends the evidence and findings do not support the conclusions or adjudications that the four children are neglected juveniles and that the three younger children are dependent juveniles. In reviewing an adjudication of neglect and dependency, we determine whether the trial court's findings of fact are supported by clear and convincing evidence and whether those 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). “[T]he trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.” In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997). 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).
Respondent argues the court improperly delegated its fact finding duty by broadly incorporating the Mediated Petition Agreement into its order. She also argues the findings are broad, vague, general, and unsupported by sufficient competent evidence to support the court's conclusions.
The Mediated Petition Agreement summarized the agreements reached by the parties, including agreements as to statements listed in paragraphs (a) through (q). Although not expressly stated in the court's order, it is apparent from the colloquy with respondent at the beginning of the hearing that the trial court treated these statements as stipulated facts. Specifically, the court asked respondent whether she understood the Mediated Petition Agreement recited facts listed in those paragraphs and whether she gave permission to the court to make a decision based upon those facts. Respondent granted the court permission to do so.
In an adjudication order, “[i]f the court finds from the evidence, including stipulations by a party, that the allegations in the petition have been proven by clear and convincing evidence, the court shall so state.” N.C. Gen.Stat. § 7B–807(a) (2011). Moreover, “[a] record of specific stipulated adjudicatory facts shall be made by either reducing the facts to a writing, signed by each party stipulating to them and submitted to the court; or by reading the facts into the record, followed by an oral statement of agreement from each party stipulating to them.” Id. “[S]tipulations are judicial admissions and are therefore binding in every sense, preventing the party who agreed to the stipulation from introducing evidence to dispute it and relieving the other party of the necessity of producing evidence to establish an admitted fact.” Thomas v. Poole, 54 N.C.App. 239, 241, 282 S.E.2d 515, 517 (1981), disc. review denied,304 N.C. 133, 287 S .E.2d 902 (1982).
The court in its written order found that the statements contained in the Mediated Petition Agreement were true and proved by clear and convincing evidence. The court also made additional findings of fact in the order. We therefore conclude the court did not improperly delegate its fact finding function.
We next address whether the findings of fact support the court's conclusions that all of the children are neglected juveniles and that the three youngest children are dependent juveniles. A neglected juvenile is defined as one
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. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen.Stat. § 7B–101(15)(2011). The facts narrated in the Mediated Petition Agreement and adopted by the court as findings of fact show that in March of 2005, YFS received three referrals regarding respondent's drug usage, sexual molestation of Debra by another juvenile, and domestic violence between respondent and her boyfriend. YFS transferred the case to Family Intervention for services, including substance abuse treatment which respondent did not complete.
In August 2007, YFS substantiated another referral alleging that respondent's eldest daughter, who is not a subject of the present petition, and Debra had been sexually assaulted by respondent's boyfriend. Respondent did not follow through with recommended sexual abuse counseling.
The certified criminal record of respondent's boyfriend was also incorporated by reference into the court's order as a part of the Mediated Petition Agreement stipulations. This record shows that on 17 September 2008, respondent's boyfriend pled guilty to taking indecent liberties with a minor for an offense occurring on 19 August 2007. Respondent's boyfriend was placed on probation and required to register as a sex offender.
In December 2010, YFS received a referral that Zoey tested positive for marijuana at birth. Respondent admitted during the mediated settlement conference that she continues to consume marijuana.
On 4 March 2011, YFS received a referral that respondent's boyfriend had been sexually abusing Debra for the past three years. The certified criminal record shows that respondent's boyfriend was criminally charged on 13 June 2011 with two counts of failure to register as a sex offender, taking indecent liberties with a child, first degree rape of a child, and first degree sexual offense with a child. Those charges were scheduled for trial on 17 January 2012. Respondent maintained a domestic relationship with this man, the putative father of her two youngest children, and allowed him to have access to her children over the course of seven years until his incarceration in March 2011.
Since June 2011, there have been at least two physical altercations between respondent and Debra. On 17 October 2011 respondent requested that Debra be removed from the home because Debra was becoming too aggressive for respondent to maintain in the home with the other children.
We conclude the foregoing findings support a conclusion that the juveniles were neglected within the statutory definition.
We next address the adjudication that the juveniles were dependent. A dependent juvenile is defined as 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).
The court's findings clearly reflect that respondent is unable to provide proper care or supervision of Debra and that Debra is a dependent juvenile. Respondent does not contest this adjudication. Not so clear, however, is the adjudication of the three youngest children as dependent. The court stated in the order that it concluded the juveniles are dependent “due to no alternate placement being available.” The court made no findings with regards to the first prong of the dependency definition that addresses respondent's ability to provide care or supervision of the three younger juveniles, ages 10 months through seven years at the time of the filing of the petition. We therefore conclude that the court's findings do not support the adjudication of the three youngest children as dependent juveniles.
Conclusion
We affirm the adjudications of all four juveniles as neglected. We reverse the adjudications of the three youngest juveniles, Zoey, Molly, and Rita, as dependent.
Affirmed in part; reversed in part. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).