In re K.M.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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1414
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF: Randolph County
Nos. 10 JA 34, 13 JA 05
K.M.C. and H.D.C., III1
TWO MINOR CHILDREN.
Appeal by Respondent-parents from order entered 7 October
2013 by Judge Scott C. Etheridge in Randolph County District
Court. Heard in the Court of Appeals 5 May 2014.
Erica Glass for Petitioner Randolph County Department of
Social Services.
Sydney Batch for Respondent-mother.
Richard Croutharmel for Respondent-father.
Ellis & Winters LLP, by Lenor Marquis Segal, for Guardian
ad Litem.
STEPHENS, Judge.
Factual and Procedural Background
1
We use initials and pseudonyms in this opinion to protect the
juveniles’ identities and for ease of reading.
-2-
Respondent-parents appeal from an order adjudicating their
two children, K.M.C. (“Kim”) and H.D.C., III (“Henry”)
(collectively, “the juveniles”), as neglected and dependent
juveniles. Kim was born in January 2010, and Henry was born in
September 2011. In October 2012, Respondent-parents, Kim, and
Henry were evicted from their home in Asheboro. In December
2012, they moved into the home of the juveniles’ paternal
grandmother. Shortly thereafter, Respondent-father’s younger
brother, J.C., also moved into the paternal grandmother’s home.2
In October 2009, D.H., the younger half-brother of Respondent-
father, had been adjudicated a dependent juvenile based in part
on J.C.’s sexual molestation of D.H. The sexual abuse had
occurred while D.H. and J.C. resided with the paternal
grandmother (the mother of both boys).3 D.H. has also alleged
sexual abuse by Respondent-father.
2
Some of the evidence in the record suggests that J.C. lived in
a tent or trailer on the grounds of the paternal grandmother’s
home.
3
D.H. was born in March 1996. It appears that J.C. was born in
1992. Thus, both D.H. and J.C. were minors during the period
when the abuse occurred.
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On 3 January 2013, DSS filed petitions4 seeking
adjudications that Kim and Henry were neglected and dependent
because (1) the juveniles lacked stable and appropriate housing,
(2) Respondent-father had untreated anger management issues, and
(3) Respondent-parents both had untreated mental health issues,
a history of domestic violence, and no appropriate alternative
child care arrangement. The court placed the juveniles in the
nonsecure custody of DSS on that date. Respondent-parents
remained in the paternal grandmother’s home until early June
2013 when they moved into another residence.
On 4 September 2013, the district court held an evidentiary
hearing and, on 7 October 2013, entered a combined adjudication
and disposition order, concluding that (1) Kim and Henry were
dependent and neglected juveniles, see N.C. Gen. Stat. § 7B-
101(9), (15) (2013), and (2) removal from the custody of
Respondent-parents was in the juveniles’ best interest. The
court placed Kim and Henry in the custody of DSS and allowed
Respondent-parents supervised visitation for a minimum of one
4
On 17 March 2010, the Randolph County Department of Social
Services (“DSS”) had filed a petition alleging that Kim was
neglected and dependent. Another petition in the case was filed
on 9 June 2010, alleging Kim was neglected and dependent. After
a hearing on the March 2010 petition, the court concluded that
Kim was not neglected or dependent, and dismissed that petition.
DSS then voluntarily dismissed the June 2010 petition.
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hour per week. The court also ordered, inter alia, Respondent-
parents to submit to random drug screens and follow through with
recommended treatment in the event of a positive result. In
addition, the court ordered Respondent-father to complete a sex
offender assessment and follow through with any resulting
recommendations. Respondent-parents appeal.
Rule 9(b)(5) Supplement to the Record on Appeal
On 24 February 2014, DSS and the Guardian ad Litem filed a
joint supplement to the printed record on appeal, consisting of
four consolidated orders of adjudication and disposition entered
between January 2010 and October 2013 (“the supplement orders”).
Respondent-parents filed objections to the supplement and moved
to strike it. Those motions were referred to this panel in
March 2014.
The supplement orders concern four minor children of J.C.,5
all of whom have been removed from his custody and adjudicated
dependent, abused, and/or neglected. At the adjudication
5
In his testimony, Respondent-father referred to J.C. as “my
brother,” although the “Joint Response by Appellees to
Respondent-Appellant Father’s Objection to the Record
Supplement” refers to J.C. as “Respondent-Appellant’s Father’s
brother[.]” However, every other reference in the record
indicates that J.C. is Respondent-father’s brother, rather than
his uncle.
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hearing in this matter, the attorney for DSS asked the court to
take judicial notice of the supplement orders. Contrary to the
assertions of Respondent-parents, there was no objection by
either of their attorneys when the court agreed to take judicial
notice of the supplement orders.6 A social worker from DSS then
testified about the reasons for the removals and adjudications
of J.C.’s children. Although nothing in the combined
adjudication and disposition order regarding Kim and Henry that
is the subject of this appeal references the supplement orders
and they are thus irrelevant to our resolution of this appeal,
they were part of the evidence before the district court at the
hearing. Accordingly, we deny Respondent-parents’ motions to
strike.
Discussion
Respondent-parents argue that (1) all or portions of
subparagraphs a, d, e, g, h, i, and j of the district court’s
finding of fact 5 are not supported by clear and convincing
evidence, (2) the conclusions of law that Kim and Henry are
dependent and neglected juveniles are not supported by the
6
Respondent-mother’s trial counsel did object to the court
taking judicial notice of the entire DSS “files” on the
children, but did not object when the court stated it would take
judicial notice of the adjudication orders only.
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court’s findings of fact, and (3) certain conditions imposed by
the court constituted an abuse of its discretion. We affirm in
part and reverse in part.
I. Standard of review
“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 (2013). On
appeal, an adjudication order is reviewed 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 Pittman, 149 N.C.
App. 756, 763-64, 561 S.E.2d 560, 566 (citation and internal
quotation marks omitted), appeal dismissed and disc. review
denied, 356 N.C. 163, 568 S.E.2d 608-09 (2002), cert. denied sub
nom., Harris-Pittman v. Nash Cnty. Dep’t of Social Servs., 538
U.S. 982, 155 L.E.2d 673 (2003). 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) (citation omitted). Findings of fact are also binding if
an appellant does not challenge them on appeal. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citation
-7-
omitted). We review dispositions to determine whether the court
abused its discretion in deciding what action is in the
juvenile’s best interest. In re C.W., 182 N.C. App. 214, 219,
641 S.E.2d 725, 729 (2007) (citation omitted).
II. Findings of fact
Respondent-parents challenge all or portions of
subparagraphs a,7 d, e, f, g, h, i, and j of finding of fact 5 as
not supported by clear and convincing evidence. We agree as to
finding of fact 5h, but disagree regarding the remaining
challenged findings of fact.
Finding of fact 5 states:
5. The [c]ourt finds the following facts for
the purpose of adjudication:
a. The minor children are neglected and
dependent children.
b. [Respondent-parents] were evicted from
[ABC Street], Asheboro, NC.
c. When [Respondent-parents] and the minor
children were evicted, they
([Respondent-parents] and the minor
7
Finding of fact 5a is actually a conclusion of law, and we
review it as such. See In re M.R.D.C., 166 N.C. App. 693, 697,
603 S.E.2d 890, 893 (2004) (holding that a finding of fact which
is actually a conclusion of law is reviewed as a conclusion of
law on appeal), disc. review denied, 359 N.C. 321, 611 S.E.2d
413 (2005); In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404,
409 (2007) (noting that mislabeling a finding of fact as a
conclusion of law is inconsequential if the remaining findings
of fact support it).
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children) went to the paternal
grandmother[’s] . . . home for
approximately four to five months
before the petitions in the matter were
filed.
d. [Respondent-f]ather acknowledged that
he knew that the paternal grandmother’s
home was an inappropriate home for the
minor children.
e. This [c]ourt adjudicated on or about
October 28, 2009 that [J.C.] sexually
molested the minor child [D.H.].
f. [J.C.] was living at the paternal
grandmother’s home.
g. [J.C.] had access to the minor children
at the paternal grandmother’s home.
h. When [Respondent-parents] would leave
the paternal grandmother’s home to go
[to] the store, they would leave the
minor children with [J.C.].
i. [Respondent-parents] had no other place
to take the minor children after they
were evicted from [ABC Street] in
Asheboro, NC. [Respondent-f]ather had
five to seven months to find housing
other than the paternal grandmother’s
home. [Respondent-f]ather had ample
time to find appropriate and stable
housing.
j. [J.C.] would actually play video games
in the same living room while the minor
children were at the paternal
grandmother’s home.
As for finding of fact 5d, when asked if he was “aware that
[the paternal grandmother’s] home was not an appropriate place
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for your children[,]” Respondent-father replied, “I guess so,
yeah.” He also testified that he knew (1) his brother, D.H.,
had been removed from the paternal grandmother’s custody and had
not been returned and (2) DSS had recommended that the paternal
grandmother’s home was not an appropriate place for his
children. Respondent-father further testified that he knew the
children of his other brother, J.C., had been removed from
J.C.’s custody before Respondent-father moved his children to
his mother’s residence. This evidence fully supports finding of
fact 5d.
As for finding of fact 5e, the district court took judicial
notice of juvenile adjudication orders pertaining to Respondent-
father’s relatives, including an order adjudicating his brother
D.H. as neglected and dependent. That order contains a finding
of fact that D.H. was sexually assaulted by J.C. This evidence
fully supports finding of fact 5e.
With regard to findings of fact 5f, 5g, and 5j, Respondent-
father testified that, “right before the date that the petitions
in this matter” were filed, his brother J.C. “moved in after a
short while” and “stayed there certain nights.” Although
Respondent-father testified that J.C. often “slept in a tent or
his camper outside” in the yard of the paternal grandmother’s
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house, he also testified about watching television and playing
video games with J.C. at night in the living room where Kim and
Henry slept. This evidence fully supports findings of fact 5f,
5g, and 5j.
As to finding of fact 5i, Respondent-father testified that
Respondent-parents could not find housing for their family
anywhere other than at the home of the paternal grandmother
during the period between their eviction and the filing of the
petition. The supervising social worker testified that, before
DSS filed the petition, Respondent-parents declined a request by
DSS to move Kim and Henry to the home of the maternal
grandmother. This evidence fully supports finding of fact 5i.
Regarding finding of fact 5h, our review reveals no
evidence that Kim and Henry were left alone with J.C. on
occasions when Respondent-parents went to the store. Because
this finding of fact is not supported by any evidence in the
record, we do not consider it when reviewing the court’s
conclusions of law.
III. Conclusions of law
Respondent-parents next argue that the court’s conclusions
of law that Kim and Henry are dependent and neglected juveniles
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are not supported by the findings of fact. We agree as to
dependency, but disagree as to neglect.
A dependent juvenile is one whose “parent, guardian, or
custodian is unable to provide for the care or supervision [of
the juvenile] and lacks an appropriate alternative child care
arrangement.” N.C. Gen. Stat. § 7B-101(9) (2013). In
determining whether a juvenile is dependent, “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 adjudicatory
findings contained in finding of fact 5 do not address the
ability of the parents to provide care or supervision or the
availability of alternative child care arrangements. We thus
hold the findings of facts do not support a conclusion that Kim
and Henry are dependent juveniles.8 Accordingly, we reverse this
adjudication.
A juvenile is neglected if, inter alia, he or she does not
receive proper care, supervision, or discipline from a parent or
8
We further note that, although some of the findings of fact
which the court included in its dispositional determination
could be construed as relating to the Respondent-parents’
“ability to provide care and supervision” for the juveniles,
none address the “availability . . . of alternative child care
arrangements.” See id.-12-
guardian; is not being provided necessary medical or remedial
care; or is residing in an environment injurious to his or her
welfare. N.C. Gen. Stat. § 7B-101(15). In making this
determination, the district court must assess whether there is
“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
re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02
(1993) (citation and internal quotation marks omitted). A court
“need not wait for actual harm to occur if there is a
substantial risk of harm to the child in the home.” In re T.S.,
178 N.C. App. 110, 113, 631 S.E.2d 19, 22 (2006), affirmed per
curiam, 361 N.C. 231, 641 S.E.2d 302 (2007).
“In determining whether a juvenile is a neglected juvenile,
it is relevant whether that juvenile . . . 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).
In considering the identically-worded
predecessor statute, this Court held, . . .
that while this language regarding neglect
of other children does not mandate a
conclusion of neglect, the trial judge has
discretion in determining the weight to be
given such evidence. Since the statutory
definition of a neglected child includes
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living with a person who neglected other
children and since this Court has held that
the weight to be given that factor is a
question for the trial court, the court, in
this case, was permitted, although not
required, to conclude that P.M. was
neglected. . . . In cases of this sort, the
decision of the trial court must of
necessity be predictive in nature, as the
trial court must assess whether there is a
substantial risk of future abuse or neglect
of a child based on the historical facts of
the case.
In re P.M., 169 N.C. App. at 427, 610 S.E.2d at 406 (citations
and internal quotation marks omitted). In that case, before
P.M. was born,
P.M.’s father sexually abused one of [the]
respondent’s daughters after [the]
respondent allowed him to be in the presence
of that daughter, in violation of a safety
plan with . . . [DSS] that prohibited the
father from having contact with that
daughter. A psychologist who evaluated
[the] respondent after that event concluded
that [the] respondent had failed to take
responsibility for the consequences of her
failing to care for her four children.
. . . [A] month after the birth of P.M., DSS
filed a petition alleging that P.M. was
neglected and dependent based on the prior
adjudications as to [the] respondent’s other
children and her current lack of insight
into the harm suffered by those children.
Id. at 425, 610 S.E.2d at 405. We held that “the historical
facts of the case [which] included the fact that [the]
respondent had twice violated court-ordered protection plans
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with DSS . . . and was failing to take responsibility” were
sufficient to support a conclusion of neglect. Id. at 427, 610
S.E.2d at 406. We see no meaningful distinction between the
facts in that case and those presented here, to wit, that
Respondent-parents moved their minor children into a home with
J.C., a man with a history of sexually abusing his minor
relatives.9
Respondent-father concedes that the “court here was
permitted” to conclude that Kim and Henry were neglected
juveniles based upon their exposure to J.C., and he further
acknowledges that the court had discretion in weighing the
evidence before it in reaching that conclusion. See In re
Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)
(holding that the district court has discretion in determining
the weight to be afforded to evidence of the abuse or neglect of
other children). We agree and conclude that the court’s
findings of fact support its conclusion of law that Kim and
Henry are neglected juveniles. This argument is overruled.
9
We also observe that there is copious evidence in the record
and in the findings of fact which the district court labeled as
dispositional rather than adjudicatory regarding the paternal
grandmother’s refusal to believe that J.C. had abused D.H. and
her denial of any responsibility in the events that led to the
removal of D.H. from her custody and his eventual adjudication
as a dependent juvenile.
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IV. Conditions placed on Respondent-parents
Respondent-mother argues that the court abused its
discretion by ordering her to submit to random drug screens
because nothing in the record and no allegations in the
petitions suggest that she has a substance abuse problem. We
disagree.
In a juvenile proceeding under Chapter 7B, “the child’s
interest in being protected from abuse and neglect is
paramount.” In re Pittman, 149 N.C. App. at 761, 561 S.E.2d at
564. A juvenile court has the authority, if it determines that
it is in the juvenile’s best interest, to require a parent of a
juvenile who has been adjudicated abused, neglected, or
dependent to “undergo psychiatric, psychological, or other
treatment or counseling directed toward remediating or remedying
behaviors or conditions that led to or contributed to the
juvenile’s adjudication or to the court’s decision to remove
custody of the juvenile from the parent . . . .” N.C. Gen.
Stat. § 7B-904(c) (2013). Under this grant of authority, a
court may, in its discretion, order a parent to submit to a
substance abuse assessment. See In re A.S., 181 N.C. App. 706,
712-13, 640 S.E.2d 817, 821, affirmed per curiam, 361 N.C. 686,
651 S.E.2d 883 (2007). “A ruling committed to a trial court’s
-16-
discretion is to be accorded great deference and will be upset
only upon a showing that it was so arbitrary that it could not
have been the result of a reasoned decision.” White v. White,
312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
We considered and rejected Respondent-mother’s argument in
a recent case. In In re A.R., the parents contended that the
court erred by requiring them, inter alia, to submit to mental
health assessments, substance abuse evaluations, and drug
screens when the children had been removed for domestic violence
and not for substance abuse or mental health reasons. __ N.C.
App. __, __, 742 S.E.2d 629, 632 (2013). We disagreed, holding
that imposition of these mandates “is reasonably related to
aiding [the parents] in remedying the conditions which led to
the children’s removal; all of these requirements assist [the
parents] in both understanding and resolving the possible
underlying cause of [the parents]’ domestic violence issues.”
Id. at __, 742 S.E.2d at 632-33.
We believe the same reasoning applies here. Respondent-
parents acknowledge a history of domestic violence. Respondent-
father has “an extensive history with drugs and alcohol.”
Respondent-mother has been diagnosed with recurrent major
depression with psychotic features. All of these issues
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contributed to the removal of the juveniles from Respondent-
parents’ custody. Drug screens and substance abuse treatment if
indicated, along with mental health treatment, may assist
Respondent-mother in understanding and resolving these issues.
Accordingly, we conclude the court did not abuse its discretion.
Respondent-father argues that the court abused its
discretion by ordering him to complete a sex offender assessment
and comply with its recommendations. Specifically, Respondent-
father contends that the district court was collaterally
estopped10 from imposing this condition because prior courts had
ruled that all previous allegations of sexual abuse by
Respondent-father were unfounded. We disagree.
The March 2010 petition regarding Kim alleged that
Respondent-father “exhibited sexually deviant behaviors[.]” In
the order dismissing the March 2010 petition, the district court
made no findings regarding the allegation that Respondent-father
“engage[d] in sexually deviant behaviors[,]” finding only that
he had “not been involved with [Kim] since birth.” The June
10
Collateral estoppel applies only to parties, and not to
courts. See King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d
799, 805 (1973) (observing that under the doctrine of
“collateral estoppel by judgment, parties and parties in privity
with them — even in unrelated causes of action — are precluded
from retrying fully litigated issues that were decided in any
prior determination and were necessary to the prior
determination”) (citations omitted; emphasis added).
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2010 petition alleged several acts of sexual abuse by
Respondent-father against Kim and stated that Respondent-mother
believed Respondent-father had “molested his half-sibling[,]”
presumably a reference to the allegations made by D.H. In the
order dated 21 July 2010 which returned Kim to the custody of
Respondent-parents, the court found that no reasonable factual
basis existed to support the allegations that Kim had been
sexually abused by Respondent-father or that Kim was at risk of
sexual abuse while in his care. DSS then voluntarily dismissed
the June 2010 petition. At the adjudication hearing in the
current matter, a DSS social worker testified that D.H. had
accused Respondent-father of sexually abusing him.11
However, nothing in the adjudication and disposition order
before this Court suggests that these previous concerns about
Respondent-father’s possible sexual abuse of Kim or D.H.
prompted the condition that he undergo a sexual offender
assessment and any treatment recommended as a result thereof.
Rather, it appears that Kim’s sexual acting out, which appears
to have occurred after June 2010, led to the condition that
Respondent-father undergo a sexual offender assessment. In
11
Nothing in the record suggests there has been any legal
determination that Respondent-father did or did not sexually
abuse D.H.
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unchallenged findings of fact 52-55 the district court found
that: (1) at a March 2013 home visit, Kim’s foster parents
expressed concerns about Kim’s sexual acting out in the form of
public masturbating and possible attempted sexual interactions
with Henry;12 (2) Respondent-parents acknowledged this behavior
began before Kim was removed from their custody; (3) Respondent-
father felt these behaviors were normal; and (4) Kim has been
referred for appropriate counseling. None of these facts had
been introduced into evidence in any previous matter nor has any
court previously considered them. In light of these
unchallenged findings of fact, we hold the court did not abuse
its discretion by ordering Respondent-father to complete a sex
offender assessment and follow any recommended treatment.
In sum, we affirm the adjudication of Kim and Henry as
neglected juveniles and the court’s resulting disposition. We
reverse the adjudication of dependency.
AFFIRMED in part; REVERSED in part.
Judges BRYANT and DILLON concur.
Report per Rule 30(e).
12
At the time of these reports, Kim was just over three years
old, and Henry was about 18 months old.