In re: Q.A., J.A., M.A., S.G. , 245 N.C. App. 71 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-933
Filed: 19 January 2016
Mecklenburg County, Nos. 14 JA 820-23, 13 JA 359
IN THE MATTER OF:
Q.A., J.A., M.A., S.G., T.G.
Appeal by respondent-mother from order entered 13 May 2015 by Judge Rickye
McKoy-Mitchell in Mecklenburg County District Court. Heard in the Court of
Appeals 16 December 2015.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Joyce L.
Terres, for respondent-appellant mother.
Kathleen A. Jackson for petitioner-appellee Mecklenburg County Department of
Social Services, Youth and Family Services.
Melanie Stewart Cranford for guardian ad litem.
ELMORE, Judge.
The trial court erred in (1) adjudicating the two girls, but not the three boys,
neglected juveniles, despite the parties’ stipulations to the same facts regarding the
living conditions and other pertinent characteristics experienced by all five children,
and (2) subsequently dismissing the petition regarding the boys.
I. Background
IN RE: Q.A.
Opinion of the Court
In October 2014, the Mecklenburg County Department of Social Services
Youth and Family Services Division (YFS) received a report regarding juveniles
Quinn, Mark, John, Sophia, and Tori.1 Their mother (respondent) had gone to New
York two weeks prior, leaving them in the care of their grandmother. The
grandmother, however, was unable to adequately care for the children. In November
2014, she moved from a hotel into a transitional home. By 10 December 2014, the
home was without heat, had no working plumbing in the bathrooms, and no hot
water. They lost electricity two days later. On 13 December 2014, they were evicted
from the transitional home.
On 15 December 2014, YFS filed a petition alleging the children to be neglected
and dependent. The petition listed three parents for the juveniles: C.B., father of
Sophia and Tori, M.A., Sr., father of Quinn, John, and Mark, and respondent, mother
of all five children. The petition contained no known address for respondent or M.A.,
Sr.; C.B. was incarcerated in Virginia.
On 1 April 2015, the trial court held a nonsecure custody hearing for the benefit
of M.A., Sr., followed by adjudication and disposition hearings. M.A., Sr. was present,
C.B. appeared via telephone, and respondent was absent. During the nonsecure
custody hearing, the trial court denied M.A., Sr.’s request for a dismissal of the
1 We use these pseudonyms to protect the identity of the minor children.
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IN RE: Q.A.
Opinion of the Court
nonsecure custody order so that Quinn, John, and Mark could be temporarily placed
with him.
During the adjudication hearing, the petition was read into the record.
Attorneys for respondent and C.B. had stipulated to the submission of the verified
petition for purposes of adjudication. M.A., Sr.’s attorney stipulated to those portions
of the petition addressing the children’s circumstances prior to the filing of the
petition, but denied those portions addressing YFS’s unsuccessful efforts to locate
him, his unknown whereabouts, and having no relatives capable of providing for the
children. M.A., Sr. also testified at the hearing, responding affirmatively to questions
from his attorney that YFS had been in contact with him a number of times over the
years and that he gave them his address “years ago.”
At the close of the evidence, the trial court adjudicated Tori and Sophia
neglected and dependent juveniles, but did not enter an adjudication as to Quinn,
John, or Mark. In its written order, the trial court concluded that Tori and Sophia
were neglected and dependent and that it was in their best interest to “remain in the
legal custody of YFS . . . with/in appropriate placement.” The court further concluded
that it was in the best interest of Quinn, John, and Mark “to be returned to father,
[M.A., Sr.], where he/she will receive proper care and supervision . . . .” The court
then ordered the petition for Quinn, John, and Mark be dismissed, and that they “be
returned to [M.A., Sr].”
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IN RE: Q.A.
Opinion of the Court
Respondent appeals from the trial court’s adjudication and disposition order
entered 13 May 2015.
II. Discussion
Respondent argues that the trial court erred in adjudicating Tori and Sophia
neglected, but not Quinn, John, and Mark, because the pertinent circumstances
surrounding all five children were the same. We agree.
“The role of this Court in reviewing a trial court’s adjudication of neglect and
abuse is to 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 T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007)
(quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff’d as
modified, 362 N.C. 446, 665 S.E.2d 54 (2008). “If such evidence exists, the findings
of the trial court are binding on appeal, even if the evidence would support a finding
to the contrary.” Id.
The Juvenile Code defines a “neglected juvenile” 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.
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IN RE: Q.A.
Opinion of the Court
N.C. Gen. Stat. § 7B-101(15) (2013). “In determining whether a child is neglected,
the determinative factors are the circumstances and conditions surrounding the
child, not the fault or culpability of the parent.” In re Montgomery, 311 N.C. 101, 109,
316 S.E.2d 246, 252 (1984).
The trial court, in considering the stipulated facts in the petition, had evidence
that the children lived in an injurious environment. When DSS took nonsecure
custody of the children, all five were in the care of their grandmother, having no
home, no electricity, no plumbing, and no food. Neglect, the determination based
upon the factors surrounding a child, was the same for all five children. The trial
court did find that the boys’ father was “willing to take placement of his children and
would have been a resource if contact was made with him prior to the children coming
into custody.” Regardless of whether the evidence supports this finding, however, the
availability of the boys’ father in this case, while relevant to an adjudication of
dependency, has no bearing on an adjudication of neglect. On these facts, the trial
court could not have found that some of the children were neglected while others were
not. Accordingly, we reverse and remand this matter to the trial court to enter a
proper adjudication order, to wit, an order adjudicating the three boys, as well as the
girls, neglected juveniles.
In addition, because the district court’s erroneous adjudication directly
resulted in the court’s dismissal of the petition regarding the boys, we vacate that
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IN RE: Q.A.
Opinion of the Court
portion of the order. A dispositional hearing must follow the adjudication of a juvenile
as abused, neglected, or dependent. See N.C. Gen. Stat. § 7B-901(a) (2013) (“The
dispositional hearing shall take place immediately following the adjudicatory hearing
. . . .”). Thus, on remand the district court retains jurisdiction both to properly
adjudicate the boys as neglected juveniles and to enter an appropriate disposition
order for the three boys.
III. Conclusion
In conclusion, we remand to the district court for (1) a proper adjudication of
the boys and (2) entry of an appropriate disposition regarding the boys based
thereupon.
REVERSED IN PART; VACATED IN PART; AND REMANDED.
Judges GEER and STEPHENS concur.
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