In re J.C. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-848
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
IN THE MATTER OF:
J.C., J.J., AND D.M.
Minor Children
Wake County
Nos. 12 JA 320-22
Appeal by respondent from order entered 3 May 2013 by Judge
Monica Bousman in Wake County District Court. Heard in the
Court of Appeals 10 December 2013.
Roger A. Askew for Wake County Department of Human
Services, petitioner-appellee.
Katherine Jones for guardian ad litem.
Jeffrey L. Miller for respondent-appellant.
McCULLOUGH, Judge.
Respondent-mother appeals from an order adjudicating her
three children as neglected juveniles. We affirm.
In March 2012 Wake County Human Services (“WCHS”) received
a report that respondent’s two young children at that time, J.C.
(hereinafter “Jay”) and J.J. (hereinafter “Jon”) were neglected
and abused juveniles. WCHS investigated the report and
determined on 28 April 2012 that respondent and her two sons
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were in need of services. Respondent gave birth to a third
child, D.M. (hereinafter “Don”), on 16 June 2012. Two days
later, WCHS received a report alleging Don was neglected because
he and respondent tested positive for marijuana at his birth.
On 21 November 2012, WCHS filed a juvenile petition alleging
that the three boys were neglected juveniles. The court
conducted a hearing on 14 March 2013 and adjudicated the boys as
neglected.
The court’s findings of fact indicate that during the
investigation of the report received in March 2012, WCHS learned
that respondent was pregnant and without stable housing and
employment. Because of her pregnancy, respondent was not taking
medication she had been prescribed for anxiety, depression and
bi-polar disorder. She was leaving the children with her family
members while she was at times sleeping in a car during nights.
From 22 May 2012 to 6 June 2012, the whereabouts of
respondent were unknown. On 7 June 2012, a service plan was
developed which included provisions for housing, employment,
substance abuse assessment, mental health services, medication
management, and a safety resource plan for the children.
Respondent agreed to place the children with a “safety resource
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person” in South Carolina and not to remove the children from
this placement without first contacting WCHS.
On 18 June 2012, WCHS received a report concerning the
birth of Don and his testing positive for marijuana. WCHS met
with respondent at the hospital and entered into a safety
agreement with respondent in which she agreed to place Don with
a safety resource person. Respondent selected a maternal cousin
to be the safety resource person.
WCHS was unable to locate respondent from 19 to 25 June
2012, when WCHS was able to meet with respondent and her
maternal cousin at the agency. WCHS attempted to set up
services to assist respondent but respondent could not be
located after this meeting until late July 2012.
On 20 July 2012, WCHS learned that respondent had removed
Jay and Jon from their safety resource placement and placed them
with their maternal great aunt without seeking prior approval
from WCHS. Respondent met with WCHS on 25 July 2012 and
discussed her service plan. WCHS attempted to implement the
service plan but respondent failed to maintain contact with the
agency. From 5 September 2012 through 3 October 2012, WCHS did
not know respondent’s whereabouts and neither safety resource
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placement could provide sufficient information to enable WCHS to
locate respondent.
WCHS met with respondent on 3 October 2012 and discussed
respondent’s lack of progress in complying with the service
plan. Respondent informed WCHS that she intended to move with
Don to Franklin County. WCHS approved the move to Franklin
County. Respondent and Don moved into the home on 10 October
2012 but moved out on 19 October 2012. WCHS first learned that
respondent and Don had moved when it attempted to contact
respondent at this home on 24 October 2012. Respondent informed
WCHS on 31 October 2012 that she intended to move to Harnett
County. Respondent refused to tell WCHS where she and Don were
located or provide information about the child.
The court also found that during the time WCHS was involved
in the case, respondent had not complied with services, and had
not maintained contact with WCHS or provided money, food,
clothing, or other necessities to care for her children.
Respondent had not attended any of the children’s medical
appointments. Jay and Jon both needed physical examinations and
vaccinations. Jay had severe tooth decay. Don had not received
any medical care since his release from the hospital after his
birth.
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After not having contact from respondent since 7 November
2012, WCHS filed a juvenile petition on 21 November 2012
alleging the children were neglected and dependent juveniles.
At the time of the adjudication hearing, respondent was
incarcerated. According to a court report incorporated by
reference into the court’s order, respondent was arrested on 11
February 2013 and charged with murder. She was denied bail at
her first court appearance on 12 February 2013.
Respondent informed the court during the adjudication
hearing that from July to November 2012, she gave money to the
maternal great aunt for the care of the children although she
was not able to do it every month. She also stated she moved
out of the Franklin County home because it was infested with
roaches and bugs. She conceded that she did not notify WCHS of
her move. She also acknowledged that she moved to Harnett
County in order to avoid WCHS and that she failed to inform WCHS
of her whereabouts because she was afraid WCHS would come and
take her baby from her. She also confessed that she avoided
taking telephone calls from the social worker. She stated that
she did not visit her older children because she was told by the
social worker that she could not visit them. She also told the
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court that she does not desire visitations with the children
while she is incarcerated.
Based upon these findings, the court concluded that the
three children are neglected juveniles as defined by N.C. Gen.
Stat. § 7B-101(15) in that the children do not receive proper
care and supervision from their parents and live in an
environment injurious to their welfare. The court ordered that
the children remain in the legal custody of WCHS. Respondent
filed notice of appeal on 15 May 2013.
“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 order adjudicating a child as neglected, this Court
determines (1) whether the findings of fact are supported by
clear and convincing evidence, and (2) whether the conclusions
of law are supported by the findings of fact. In re Gleisner,
141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). Our review
of a conclusion of law is de novo. In re D.H., 177 N.C. App.
700, 703, 629 S.E.2d 920, 922 (2006). Under a de novo standard
of review, we can consider a conclusion of law anew and freely
substitute our judgment for that of the trial court. In re
A.K.D., ___ N.C. App. ___, ___, 745 S.E.2d 7, 8 (2013). The
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determination of whether a child is neglected requires the
application of legal principles to a set of facts and is
therefore a conclusion of law. In re Helms, 127 N.C. App. 505,
510, 491 S.E.2d 672, 675-76 (1997).
Respondent contends certain findings of fact are not
actually findings of fact but recitations of evidence, and thus
do not constitute proper findings of fact which can support the
court’s conclusions of law and adjudication. An order must
contain findings as to “the ultimate facts established by the
evidence, admissions and stipulations which are determinative of
the questions involved in the action and essential to support
the conclusions of law reached.” In re Anderson, 151 N.C. App.
94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted).
“Ultimate facts are the final resulting effect reached by
processes of logical reasoning from the evidentiary facts.”
Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App.
476, 479, 366 S.E.2d 705, 707 (1988) (citation omitted).
Findings of fact “should resolve the material disputed issues,
or if the trial court does not find that there was sufficient
credible evidence to resolve an issue, should so state.”
Carpenter v. Carpenter, ___ N.C. App. ___, ___, 737 S.E.2d 783,
790 (2013) (citation omitted).
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We have examined the findings of fact which respondent
claims are recitations of evidence. It is true that the court
used language such as respondent “told the Court” or “stated”
certain statements within these findings of fact. However,
these findings challenged by respondent only comprise seven of
the court’s forty findings of fact. Moreover, the statements
contained within these seven findings of fact do not materially
conflict with the court’s other findings of fact or concern a
material disputed issue. As an example, in challenged finding
number 11, the court found that respondent “told the Court” that
from July to November 2012, she remained in contact with her
maternal aunt and provided the maternal aunt with money to care
for the children but not every month. Also within finding of
fact number 11, the court wrote that respondent “stated” she did
not visit her two older children because the social worker told
her she could not visit them. These findings or statements do
not conflict with the court’s findings that respondent did not
provide money to WCHS for the support of her child and that
respondent did not visit with the two older children. Many of
the “recitations” of respondent’s testimony concern
acknowledgements by respondent as to the truth of claims made by
WCHS.
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Respondent next argues certain findings of fact are not
supported by evidence. She argues there is no evidence that she
has a history of substance abuse, that a child family team
meeting was held on 3 October 2012, that the children were
placed by WCHS in the various homes, that her children’s medical
needs were not being met, and that she was non-compliant with
services offered by WCHS because these services were not offered
or provided.
The trial judge’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)
(citations omitted). Findings of fact are also binding if the
appellant does not challenge them on appeal. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Erroneous
findings of fact will not result in reversible error if they are
unnecessary to the court’s ultimate adjudication. In re T.M.,
180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).
We find ample evidence to support the findings. The
maternal great aunt with whom the two older boys were placed
testified that from July 2012 through November 2012, respondent
visited her sons only on three occasions. When the boys came
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into her care, they had not had physical examinations or their
vaccinations. She voluntarily took the boys into her home when
she learned that respondent mother was at risk of losing them.
She took the boys for medical and dental care after they came
into her care. WCHS provided paperwork she needed to obtain
medical treatment for the boys. Respondent did not accompany
her to any medical or dental visits.
The court report which was received into evidence and
incorporated by reference into the court’s order indicates that
the youngest child was born testing positive for marijuana and
that respondent tested positive for the presence of “cannabises”
on 10 January 2013. The putative father of the youngest child
testified that respondent told him about a case plan she had
with WCHS which included “parenting classes, hum, cleaning her
system far as marijuana and stuff like that.” Respondent
testified and did not say anything to dispute the report that
she and the baby tested positive for marijuana at his birth.
The court report shows that the maternal great aunt took the
youngest child for vaccinations and treatment for wheezing after
he was removed from respondent’s care.
Respondent also contends the findings of fact do not
support the conclusion of law that the children are neglected
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juveniles. A juvenile is neglected if he is not receiving
proper care, supervision, or discipline from a parent or
guardian, is not being provided necessary medical or remedial
care, or is residing in an environment injurious to the
juvenile’s welfare. N.C. Gen. Stat. § 7B-101(15) (2011).
“Where the evidence shows that a parent has failed or is unable
to adequately provide for his child’s physical and economic
needs, whether it be by reason of mental infirmity or by reason
of willful conduct on the part of the parent, and it appears
that the parent will not or is not able to correct those
inadequate conditions within a reasonable time, the court may
appropriately conclude that the child is neglected.” In re
Montgomery, 311 N.C. at 109, 316 S.E.2d at 252.
Respondent argues the court erred by failing to make
findings showing there is a substantial risk of harm to the
children in the home or establishing any nexus between her
alleged lack of care and supervision of the children and any
actual physical, mental, or emotional impairment of the
children. See In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d
898, 901-02 (1993) (stating “this Court has consistently
required that there be some physical, mental, or emotional
impairment of the juvenile or a substantial risk of such
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impairment as a consequence of” a parent’s neglect). We do not
agree. We have held that a court’s failure to make an express
finding of fact that the child has sustained, or is at risk of
sustaining, some physical, mental, or emotional harm as a result
of the neglect does not warrant remand if all of the evidence
supports this finding. Id. at 753, 436 S.E.2d at 902. We have
also stated that when a child has been placed with a relative
prior to adjudication, the care previously provided by the
parent is a consideration in determining whether the child is
neglected or likely to be neglected if the child is returned to
the parent’s care. In re K.J.D., 203 N.C. App. 653, 657-61, 692
S.E.2d 437, 441-44 (2010). Factors we have considered relevant
to this determination include: the parent’s inability to
provide for the child’s physical and economic needs; the
parent’s failure to comply with case plans directed toward
correcting the conditions which led to the kinship placement;
the parent’s inability to maintain stable housing and
employment; the parent’s failure to show concern, parental love,
and affection by not visiting, calling, or mailing letters or
cards to the child; and the parent’s failure to make her
whereabouts known, to stay in constant contact with the county
department of social services, and to avail herself of services
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offered by the county department of social services. See id.,In re K.D., 178 N.C. App. 322, 329, 631 S.E.2d 150, 155 (2006);
In re J.L.K., 165 N.C. App. 311, 318-19, 598 S.E.2d 387, 392
(2004); In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676; In
re Evans, 81 N.C. App. 449, 452, 344 S.E.2d 325, 327 (1986).
We conclude the findings of fact support the court’s
conclusion that the juveniles were neglected. The findings
reflect that respondent has not provided for their health and
economic needs, has not maintained stable housing or employment,
has not been cooperative with WCHS, has not complied with case
plans, has not made her whereabouts known to WCHS and the
maternal great aunt for weeks at a time, and has not regularly
visited and shown love and affection to the two older children.
The children thus have not received proper care and supervision
from their parent.
We affirm the order.
Affirmed.
Judges MCGEE and DILLON concur.
Report per Rule 30(e).