In re: J.R. , 243 N.C. App. 309 ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-286
Filed: 6 October 2015
Wake County, No. 14 JA 131
IN THE MATTER OF: J.R.
Appeal by respondent father from order entered 1 December 2014 by Judge
Keith Gregory in Wake County District Court. Heard in the Court of Appeals
8 September 2015.
Anthony H. Morris for petitioner-appellee Wake County Human Services.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by J. Mitchell
Armbuster, for guardian ad litem.
Assistant Appellate Defender Joyce L. Terres for respondent-appellant father.
McCULLOUGH, Judge.
Respondent-father appeals from an order adjudicating his son “Jonah”1 a
neglected juvenile under N.C. Gen. Stat. § 7B-101(15) (2013). Because the evidence
at the adjudicatory hearing and the trial court’s findings of fact do not support the
conclusion that Jonah was neglected, we reverse.
I. Background
1 The parties stipulated to this pseudonym to protect the child’s privacy.
IN RE: J.R.
Opinion of the Court
Jonah was born out of wedlock in September 2012 and thereafter resided with
his mother (“respondent-mother”). Respondent-mother has three older children who
were placed in foster care in 2010. While in foster care, respondent-mother’s eldest
daughter disclosed prior sexual abuse by respondent-father.2 In November 2011,
respondent-father pled guilty to taking indecent liberties with a minor. He received
a suspended prison sentence and was placed on supervised probation for three years.
As a condition of his probation, respondent-father was forbidden “to socialize or
communicate with individuals under the age of eighteen (18) in work or social
activities unless accompanied by a responsible adult who is aware of the abusive
patterns and is approved in writing by the supervising [probation] officer.”
On 1 May 2014, Wake County Human Services (“WCHS”) received a report
that respondent-mother “was homeless and living from place to place” with Jonah;
that she was allowing respondent-father to have contact with Jonah; and that she
was using marijuana in Jonah’s presence. After meeting with a WCHS social worker,
respondent-mother signed a safety plan on 2 May 2014 agreeing not to allow
respondent-father to have any contact with Jonah. Respondent-father signed a
similar safety plan on 8 May 2014 agreeing to have no contact with his son.
On 2 June 2014, WCHS obtained nonsecure custody of Jonah and filed a
juvenile petition claiming that he was neglected and dependent. The petition alleged
2 The judgment revoking respondent-father’s probation indicates that the sexual abuse
occurred in December 2006.
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IN RE: J.R.
Opinion of the Court
that respondent-father had been arrested for violating his probation after police
observed Jonah sitting on his lap on 22 May 2014. It accused respondent-mother of
“willingly allowing this contact to occur.” The petition further alleged that
respondent-mother had “lost her housing through the Raleigh Rescue Mission . . . for
not complying with the program recommendations” and had obtained temporary
shelter for herself and Jonah at the Salvation Army through 12 June 2014. Moreover,
at the time WCHS took Jonah into custody, respondent-mother “was not able to
provide an appropriate alternative placement option for the child.”
At the 4 November 2014 adjudicatory hearing, a Raleigh police officer testified
that on 22 May 2014, he observed respondent-mother “in the company” of respondent-
father, who was “pushing a stroller.” The officer saw respondents get onto a Capital
Area Transit (“CAT”) bus. He followed them onto the bus and observed respondent
father “sitting on the CAT bus . . . with a small child on his lap.” The officer left the
bus and reported the incident to respondent-father’s probation officer, who filed a
violation report based thereon. Respondents both testified that they had encountered
each other by chance at the bus stop and were taking the bus to different destinations.
The trial court entered an order adjudicating Jonah neglected on
1 December 2014. At the hearing, the court made the following findings in support
of the adjudication:
8. . . . [Respondent-mother’s] three older children came
into foster care June 11, 2010 due to unstable housing and
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IN RE: J.R.
Opinion of the Court
lack of proper care. Her youngest child was adopted and
the two older children were placed in the Guardianship of
[her] mother. [Respondent-mother’s] parental rights to one
child have been terminated.
9. Respondent-mother’s] daughter disclosed sexual
abuse by [respondent-father], and he was arrested and pled
guilty to four counts of indecent liberties in 2013.
10. That on May 1, 2014, a report was made alleging
that [respondent-]mother was homeless and living from
place to place with [Jonah]. [Respondent-mother] had
stayed with a friend for as many as four months, had
resided at a Super 8 motel for a couple of months, at a
rooming house and at the Raleigh Rescue Mission. At the
time of the filing of the petition the mother and child were
residing at the Salvation Army and would need to find
another residence by June 12, 2014.
11. . . . [O]n May 2, 2014, the Social Worker and mother
met and entered a safety plan, whereby she agreed to not
allow [respondent-father] to have contact with the child.
12. As a condition of his parole [respondent-father] was
not allowed to be in the presence of any child and on
May 8, 2014, [he] signed a safety plan to not have any
contact with [Jonah].
13. On May 22, 2014, Raleigh Police [O]fficer Alexander
Johnson observed [Jonah] sitting on the lap of [respondent-
father]. [Respondent-mother] willingly allowed this
contact to occur. [Respondent-father] was arrested for
violating this term of his probation and he remains
incarcerated for this incident. . . .
14. That [Jonah] was neglected at the time of the filing
of the petition in that he was subjected to an injurious
environment, did not receive proper care and supervision
and lived in a home where another juvenile was subjected
to abuse and neglect by an adult who regularly lived in the
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IN RE: J.R.
Opinion of the Court
home.
The court found insufficient evidence to support an adjudication of dependency under
N.C. Gen. Stat. § 7B-101(9) (2013).
II. Discussion
On appeal, respondent-father argues that the trial court’s adjudication of
neglect is not supported by the evidence at the adjudicatory hearing or by the court’s
findings of fact. This Court reviews an adjudication of neglect under N.C. Gen. Stat.
§ 7B-807 (2013) to determine whether the trial court’s findings of fact are supported
by “clear and convincing competent evidence” and whether the court’s findings, in
turn, support its conclusions of law. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d
672, 676 (1997). Findings supported by competent evidence are “binding on appeal.”
In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003). Moreover, “erroneous
findings unnecessary to the determination do not constitute reversible error” where
an adjudication is supported by sufficient additional findings grounded in competent
evidence. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006). We review
a trial court’s conclusions of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628
S.E.2d 387, 389 (2006).
As an initial matter, we agree with respondent-father that certain of the trial
court’s findings of fact are unsupported by competent evidence adduced at the
adjudicatory hearing. Finding nine lacks evidentiary support insofar as it states that
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IN RE: J.R.
Opinion of the Court
respondent-father pled guilty to “four counts of indecent liberties in 2013.” The record
shows respondent-father’s conviction of a single count of this offense in November
2011. Finding twelve also erroneously refers to respondent-father being on “parole”
rather than probation in May 2014. We will disregard these unsupported findings
for purposes of our review. See In re T.M., 180 N.C. App. at 547, 638 S.E.2d at 240.
We further agree with respondent-father that no evidence supports the trial
court’s averment in Finding fourteen that Jonah “lived in a home where another
juvenile was subjected to abuse and neglect by an adult who regularly lived in the
home.” See N.C. Gen. Stat. § 7B-101(15). While it appears that respondent-mother’s
older children were placed in foster care, the court received no evidence regarding the
circumstances of these placements.3 WCHS made no proffer that respondent-mother
“subjected” her older children “to abuse and neglect[;]” that respondent-father
“regularly live[d] in the home” with respondent-mother’s older children; or that
respondent-father “regularly lives in the home” with Jonah, as contemplated by N.C.
Gen. Stat. § 7B-101(15).
In pertinent part, the Juvenile Code defines a “neglected juvenile” as follows:
A juvenile who does not receive proper care, supervision, or
discipline from the juvenile’s parent, . . . or who lives in an
environment injurious to the juvenile’s welfare . . . . In
determining whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a home . . . where
3 During her testimony, respondent-mother acknowledged a “history of Child Protective
Services involvement” involving “unstable housing” and “a lack of income[.]” If WCHS was going to
rely on this basis for removal of Jonah, it is incumbent that it offer further evidence.
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IN RE: J.R.
Opinion of the Court
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). “[T]he decisions of this Court require there be some
physical, mental, or emotional impairment of the juvenile or a substantial risk of such
impairment as a consequence of the failure to provide ‘proper care, supervision, or
discipline’ in order to adjudicate a juvenile neglected.” In re McLean, 135 N.C. App.
387, 390, 521 S.E.2d 121, 123 (1999) (citations, internal quotation marks, and
emphasis in original omitted). “Whether a child is ‘neglected’ is a conclusion of law
which must be supported by adequate findings of fact.” Id.The trial court’s adjudicatory findings focus primarily on respondent-father’s
contact with Jonah on 22 May 2014, which violated both the conditions of respondent-
father’s probation and the safety plan developed by WCHS and signed by both
parents. The findings further show that respondent-father is a convicted child sex
offender, having pled guilty to taking indecent liberties with respondent-mother’s
eldest daughter.
In In re J.C.B., the respondent-father was accused of sexually abusing his first
cousin’s twelve-year-old step-daughter R.R.N. during her overnight visit to the
residence that respondent-father shared with his wife, their twelve-year-old son
J.C.B., and their nieces C.R.R. and H.F.R. __ N.C. App. __, __, 757 S.E.2d 487, 488,
disc. review denied, 367 N.C. 524, 762 S.E.2d 213 (2014). Absent some additional
indicia that respondent-father’s actions posed a threat of harm to the other children
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IN RE: J.R.
Opinion of the Court
in the home, we found his actions insufficient to support their adjudication as
neglected:
Even if we assume arguendo that respondent-father
abused R.R.N., a juvenile, in the home where J.C.B.,
C.R.R., H.F.R., and respondent-father lived, this fact alone
does not support a conclusion that J.C.B., C.R.R., and
H.F.R. were neglected. . . . The trial court made virtually
no findings of fact regarding J.C.B., C.R.R., or H.F.R., and
wholly failed to make any finding of fact that J.C.B.,
C.R.R., and H.F.R. were either abused themselves or were
aware of respondent-father’s inappropriate relationship
with R.R.N. Additionally, the trial court failed to make any
findings of fact regarding other factors that would support
a conclusion that the abuse would be repeated. As a result,
the findings of fact do not support a conclusion that
respondent-father’s conduct created a substantial risk that
abuse or neglect of J.C.B., C.R.R., and H.F.R. might occur.
Id. at __, 757 S.E.2d at 489-90 (citations and internal quotation marks omitted).
As in In re J.C.B., the evidence and the trial court’s findings are insufficient to
show that respondent-father’s single contact with Jonah on 22 May 2014 either
harmed the child or created a substantial risk of such harm. The court received no
evidence regarding the nature of respondent-father’s prior sex offense, including the
age of respondent-mother’s daughter at the time of the abuse. Moreover, the court
heard no evidence and made no findings tending to show that respondent-father was
at risk of sexually abusing his own nineteen-month-old son. Accordingly, the findings
about the bus incident do not establish neglect under N.C. Gen. Stat. 7B-101(15).
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IN RE: J.R.
Opinion of the Court
Respondent-mother’s lack of stable housing likewise is insufficient to support
the trial court’s adjudication of neglect, absent some evidence of harm or a substantial
risk of harm to Jonah. The court made no finding that Jonah was ever without shelter
or that he suffered harm or a substantial risk of harm from respondent-mother’s
frequent moves. WCHS social worker Paula Hill acknowledged that it was the
incident on the bus with respondent-father, rather than respondent-mother’s housing
situation, that led the department to file the petition in this cause:4
Q. Is it true that the only reason that this petition was
filed by your agency is because of the events that happened
on the day of the bus incident?
A. [That was] the initial evidence that precipitated our
filing the petition, yes.
Q. And so had those events not occurred, you would not
have filed a petition?
A. Probably not.
A lack of stable housing may certainly contribute to a juvenile’s status as neglected.
E.g., In re Adcock, 69 N.C. App. 222, 226, 316 S.E.2d 347, 349 (1984) (noting, inter
alia, “that respondents moved approximately eight times within an eighteen-month
period”). Here, however, there is no evidence or finding that respondent-mother’s
housing instability impeded her care and supervision of Jonah or exposed the child
4 Regarding the report that respondent-mother had used marijuana in Jonah’s presence, Hill
testified, “I never observed her to be impaired or have any signs of impairment. There was no never
[sic] any reason to suspect” such drug use.
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IN RE: J.R.
Opinion of the Court
to an environment injurious to his welfare. The fact that respondent-mother had just
ten more days to stay at the Salvation Army at the time WCHS filed its petition does
not alter our conclusion. See generally In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d
11, 15 (2006) (“[P]ost-petition evidence is admissible for consideration of the child’s
best interest in the dispositional hearing, but not an adjudication of neglect[.]”); see
also N.C. Gen. Stat. § 7B-802 (2013).
Our Supreme Court has characterized parental behavior constituting “neglect”
as “either severe or dangerous conduct or a pattern of conduct either causing injury
or potentially causing injury to the juvenile.” In re Stumbo, 357 N.C. 279, 283, 582
S.E.2d 255, 258 (2003). Considering as we must the totality of the evidence, In re
L.T.R., 181 N.C. App. 376, 384, 639 S.E.2d 122, 127 (2007), we conclude that neither
the evidence nor the trial court’s findings are sufficient to establish Jonah as a
neglected juvenile. Accordingly, we reverse the court’s adjudication.
Respondent-father also challenges the provision of the order requiring him to
maintain stable housing and income, arguing that it exceeds the trial court’s
dispositional authority under N.C. Gen. Stat. § 7B-904(d1)(3) (2013). Having
reversed the underlying adjudication, we need not address this issue.
REVERSED.
Judges BRYANT and INMAN concur.
Report per Rule 30(e).
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