In re T.S. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1380
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
IN THE MATTER OF: Mecklenburg County
Nos. 13 JA 260-61
T.S., A.J.
Appeal by respondent from order entered 10 September 2013
by Judge Kimberly Best-Staton in Mecklenburg County District
Court. Heard in the Court of Appeals 31 March 2014.
Twyla Hollingsworth-Richardson for petitioner-appellee
Mecklenburg County Department of Social Services, Division
of Youth and Family Services.
Doughton Rich Blancato PLLC, by William A. Blancato for
guardian ad litem.
David A. Perez for respondent-appellant.
DAVIS, Judge.
S.S. (“Respondent”), the mother of A.J. (“Arthur”), born in
November 2000, and T.S. (“Thomas”),1 born in October 2002,
appeals from an order adjudicating the minor children to be
1
Pseudonyms are used throughout this opinion to protect the
privacy of the minor children and for ease of reading. N.C.R.
App. P.3.1(b).
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neglected and dependent juveniles. After careful review, we
affirm.
Factual Background
On 25 April 2013, the Mecklenburg County Department of
Social Services, Division of Youth and Family Services (“YFS”)
filed a juvenile petition alleging that Arthur and Thomas were
neglected and dependent juveniles. The petition alleged that
(1) Respondent was abusing substances — specifically marijuana
and Xanax; (2) she had left the children alone or with
inappropriate supervision; and (3) the children had “miss[ed] an
inordinate amount of school in Mecklenburg County.” The
petition also alleged that (1) Arthur’s father (“Mr. H.”) is
disabled and lives in a nursing home; and (2) Thomas’s father
(“Mr. S.”) had become very ill and was hospitalized. The
petition indicated that Thomas had previously resided with his
father but was now living with Respondent full-time due to his
father’s recent hospitalization. YFS obtained nonsecure custody
of the children on 25 April 2013.
On 6 June 2013, Respondent entered into a Mediated Petition
Agreement with YFS and the children’s guardian ad litem. The
Agreement contained stipulated facts and was prefaced by the
following statement:
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This agreement is based on the parties’
discussions during the mediation process and
contains the parties’ mutually acceptable
understanding of the issues discussed. 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.
Respondent also entered into a Mediated Case Plan Agreement on
the same day, indicating that she would like to work toward
reunification with her children and would obtain a mental health
assessment and comply with random drug testing.
The trial court held a hearing concerning the petition on
22 July 2013. At the hearing, the trial court asked Respondent
under oath if she (1) recalled entering into the Mediated
Petition Agreement; (2) had read the agreement; and (3)
understood that the court would use the agreement to determine
whether the children were abused, neglected, or dependent.
Respondent replied affirmatively to each of these questions.
The trial court then heard the arguments of counsel and ruled
that based upon the stipulated facts contained in the Mediated
Petition Agreement, Arthur and Thomas were neglected and
dependent juveniles. The court proceeded to disposition and
granted legal and physical custody of Thomas to Mr. S. and
authorized a trial home placement for Arthur. On 10 September
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2013, the trial court entered its written order adjudicating
Arthur and Thomas to be neglected and dependent juveniles.
Respondent appealed to this Court.
Analysis
Respondent first contends that the trial court erred by
entering a consent order outside the presence, and without the
consent, of Mr. H. in violation of the requirements of N.C. Gen.
Stat. § 7B-801(b1)(1). A consent order “is the agreement of the
parties, their decree, entered upon the record with the sanction
of the court and operates as a judgment on the merits.” In re
Thrift, 137 N.C. App. 559, 562, 528 S.E.2d 394, 396 (2000)
(citation, quotation marks, and alterations omitted). Because
the trial court did not enter a consent order in this case, we
find Respondent’s argument inapposite. Instead, as discussed
below, the trial court found facts that Respondent had
stipulated to in the Mediated Petition Agreement to support its
adjudication order. See In re L.G.I., ___ N.C. App. ___, ___,
742 S.E.2d 832, 835 (2013) (holding that order adjudicating
juvenile to be neglected was based on respondent’s stipulations
and respondent’s argument that order was consent order was,
therefore, meritless).
N.C. Gen. Stat. § 7B-807 provides, in pertinent part, as
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follows:
(a) If 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. 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.
N.C. Gen. Stat. § 7B-807(a) (2013) (emphasis added).
Here, at the beginning of the hearing, all potential
witnesses were sworn. Counsel for YFS then announced that the
parties had signed a Mediated Petition Agreement setting forth
the facts relevant to adjudication. Respondent confirmed to the
trial court that (1) she had entered into the Mediated Petition
Agreement with the assistance of counsel on 6 June 2013; (2) she
had read it; and (3) she understood “the Court will utilize the
petition to determine whether or not your children are either .
. . neglected, or dependent[.]”2
After hearing the parties’ arguments about whether the
agreed-upon facts established neglect or dependency, the trial
court stated its intention to find by clear, cogent, and
2
Mr. S. likewise affirmed to the court his agreement with “the
portions of the petition that are regarding [him]self.”
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convincing evidence the “stipulated facts as agreed to by the
parties in a . . . mediated petition.” The trial court read the
stipulated facts into the record before addressing the parties a
second time “[j]ust to make sure those are the agreed upon
facts.” Only then did the court announce that “by clear,
cogent, and convincing evidence [it] is going to adjudicate the
children, [Arthur] and [Thomas], neglected and dependent in this
matter.” The trial court then proceeded to the dispositional
stage of the proceeding and received additional evidence and
testimony from the juveniles’ YFS case worker and guardian ad
litem, as well as from Mr. S. and Respondent. On 10 September
2013, the trial court entered a written order containing its
findings of fact and conclusions of law. Accordingly, we
conclude that the trial court properly utilized the agreed-upon
statements included in the Mediated Petition Agreement as
stipulated facts when adjudicating Arthur and Thomas to be
neglected and dependent juveniles. N.C. Gen. Stat. § 7B-807(a).
Respondent next asserts that the facts found by the trial
court do not support its adjudications of neglect and
dependency. In reviewing an adjudication under N.C. Gen. Stat.
§ 7B-807, we must determine “‘(1) whether the findings of fact
are supported by “clear and convincing evidence,” and (2)
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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). Unchallenged findings are binding on appeal.
In re C.B., 180 N.C. App. 221, 223, 636 S.E.2d 336, 337 (2006),
aff'd per curiam, 361 N.C. 345, 643 S.E.2d 587 (2007). The
conclusion that a juvenile is abused, neglected, or dependent is
reviewed de novo. In re N.G., 186 N.C. App. 1, 15, 650 S.E.2d
45, 54 (2007), aff’d per curiam, 362 N.C. 229, 657 S.E.2d 355(2008).
I. Neglect
A “neglected juvenile” is defined, in relevant part, as
“[a] juvenile who does not receive proper care, supervision, or
discipline . . .; or who is not provided necessary remedial
care; or who lives in an environment injurious to the juvenile’s
welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2013). To support an
adjudication of neglect, the facts must show “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 Stumbo,
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357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003) (citation and
quotation marks omitted).
In support of its adjudication, the trial court made the
following pertinent findings of fact:
5. YFS received this case from DSS in Union
County, NC. A referral was made to DSS
there and a case was opened on these
children in October 2012.
6. The issues in the referral were that the
mother was having her older son [Arthur]
take inappropriate pictures of her and he
was being allowed to watch pornography, the
mother was abusing drugs, and she was
leaving the children alone or with
inappropriate supervision. It was alleged
that the mother was stealing her
grandmother’s and younger son’s medication
and replacing it with Benadryl.
7. The referral was substantiated and a
treatment case was opened with Union County
DSS.
8. The mother . . . submitted to a drug
screen on 10/19/12 and tested positive for
Xanax and marijuana.
9. A case plan was developed where the
mother was to address substance abuse,
mental health, and parenting issues. The
mother was able to address the parenting
issue, but never addressed her mental health
or substance abuse issues despite many
referrals and attempts to get [her] involved
with services. . . .
10. The family moved to Mecklenburg County
in early 2013 when their home in Union
County was foreclosed. The mother’s
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grandmother owns a house in the [county] and
the mother, children and grandmother/great
grandmother moved into that house. The DSS
case was transferred to Mecklenburg County.
11. The case was assigned to YFS worker
Kelly Griffin. . . . [O]n 22 March 2013[,]
Ms. Griffin gave the mother contact
information for MeckLink so the mother could
have a mental health assessment through
Monarch. The mother told Ms. Griffin she
would follow through. . . .
12. Ms. Griffin was also going to provide
the mother a referral to McLeod for a
substance abuse assessment. Ms. Griffin
went to the family’s home on 25 March 2013,
but the mother was not there.
13. Ms. Griffin returned to the home on 28
March 2013 and again the mother was not
there. Ms. Griffin had attempted to call
the mother on several occasions and left
messages, but received no response.
14. On 27 March 2013, [Respondent] was
arrested and jailed in Union County for
failing to appear in court. [She] had
pending assault charges from an incident in
2012.
15. The mother was attacked by a friend on
27 March 2013. . . . The friend came in the
family’s home and attacked [her] with a
hammer. The children were in the mother’s
care at this time, had to see their mother
in that condition, and witnessed the
altercation that led to their mother’s
injuries. The mother’s eyes were black and
blue and she had other facial injuries.
16. YFS heard nothing from the mother until
16 April 2013 when Ms. Griffin made an
unannounced home visit. She encountered
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[Respondent] who told her she had suffered
head injuries and migraine headaches and had
been unable to follow up with her. Ms.
Griffin had learned about [Respondent] being
in jail through contact with [Thomas]’s
father.
17. The mother initially denied she had
been told to contact MeckLink, but later
admitted she had just not called them. . . .
The mother called MeckLink on 18 April 2013.
18. The mother told Ms. Griffin [Arthur]
had left the home without permission and she
did not know where he had gone. The mother
reported that this was his second time
leaving the home without permission.
19. Ms. Griffin encouraged the mother to
look for [Arthur]. . . . [He] was found at a
school’s basketball court with some friends.
[He] took off running when he saw his mother
pull up, but came back when Ms. Griffin
called his name. Ms. Griffin spoke with
[Arthur] and he reported he was not happy in
general.
20. [Respondent] agreed to come to Ms.
Griffin’s office on 18 April 2013 and pick
up a referral for a McLeod assessment.
21. The mother did not come on the 18th.
She called and said she did not have any
gas.
22. As of 25 April 2013, the mother has not
had a substance abuse or mental health
assessment even though she has been involved
with DSS in Union and Mecklenburg Counties
for over 6 months. [Arthur] missed over 30
days of school (unexcused absences) the
first 60 days the boys were to attend school
in [Charlotte-Mecklenburg]. [Thomas] has
over 10 unexcused absences.
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As discussed above, Respondent stipulated to these facts
under oath at the hearing. Thus, the only remaining issue
before us is whether the trial court’s findings support its
conclusion that the juveniles were neglected at the time YFS
filed its petition on 25 April 2013. See T.H.T., 185 N.C. App.
at 343, 648 S.E.2d at 523 (“The role of this Court in reviewing
a trial court’s adjudication of neglect . . . 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.” (citation and quotation
marks omitted)).
We hold that the trial court’s findings support its
conclusion that the juveniles were neglected. The trial court’s
findings indicate that Arthur and Thomas were not receiving
“proper care . . . [and] supervision” and “live[d] in an
environment injurious to [their] welfare” at the time the
petition was filed on 25 April 2013. N.C. Gen. Stat. § 7B-
101(15). Specifically, (1) the exposure to a disturbing act of
violence in the home; (2) the inappropriate supervision and
Arthur’s unsupervised flight from the home on at least two
occasions; and (3) both juveniles’ substantial number of
unexcused absences from school following their move to
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Mecklenburg County are facts sufficient to establish their
status as neglected juveniles. See In re T.M., 180 N.C. App.
539, 547, 638 S.E.2d 236, 241 (2006) (holding that juvenile’s
“exposure to an environment of violence” supported adjudication
of neglect); In re McMillan, 30 N.C. App. 235, 238, 226 S.E.2d
693, 695 (1976) (“It is fundamental that a child who receives
proper care and supervision in modern times is provided a basic
education.”).
Respondent argues that there was no showing that her
substance abuse or her failure to obtain mental health and
substance abuse assessments harmed her children or posed a
substantial risk of such harm. See In re E.P., 183 N.C. App.
301, 307, 645 S.E.2d 772, 776 (upholding dismissal of juvenile
petitions absent “evidence that the children had been harmed
because of respondents' substance abuse or that the children
were exposed to a substantial risk of harm”), aff'd per curiam,
362 N.C. 82, 653 S.E.2d 143 (2007). We believe, however, that a
parent’s illicit drug use, noncooperation with YFS, and inaction
on her case plan are relevant factors in assessing the risk of
harm to children in her care. See In re C.M., 183 N.C. App.
207, 212, 644 S.E.2d 588, 593 (2007) (concluding that
respondents’ failure to comply with case plan supported trial
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court’s conclusion that juvenile was neglected and that “the
neglect was likely to result in physical, mental, or emotional
impairment or a substantial risk of such impairment”).
Respondent asserts that the violent assault that occurred
in the home is not relevant to a determination of neglect and
that she “cannot be found to have neglected her children by
having been violently assaulted by a friend[.]” However, a
child’s exposure to violence is relevant in determining if that
child is “liv[ing] in an environment injurious to [his]
welfare,” whether the respondent is — or is not — the
perpetrator of the violence. See In re C.M., 198 N.C. App. 53,
66, 678 S.E.2d 794, 802 (2009) (concluding that domestic
violence by father towards mother in presence of juveniles
created injurious environment “in that it involved violence”);
In re Helms, 127 N.C. App. 505, 512, 491 S.E.2d 672, 676 (1997)
(holding that juvenile was in injurious environment and
respondent placed juvenile at risk by repeatedly exposing her to
“violent individuals”).
Respondent also makes a similar argument regarding the
trial court’s failure to make a finding as to the reason for the
juveniles’ many unexcused absences from school. Respondent’s
arguments are not persuasive, however, because at the
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adjudicatory stage of an abuse, neglect, or dependency
proceeding, the juvenile’s status — rather than the degree of
fault attributable to the parent — is the determinative issue
and paramount consideration. In re B.M., 183 N.C. App. 84, 90,
643 S.E.2d 644, 647 (2007). Accordingly, this Court has
emphasized that “[t]he purpose of the adjudication and
disposition proceedings should not be morphed on appeal into a
question of culpability regarding the conduct of an individual
parent.” In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399
(2007).
II. Dependency
Respondent next challenges the trial court’s conclusion
that Arthur and Thomas were dependent juveniles. The Juvenile
Code defines a dependent juvenile, in pertinent part, as one “in
need of assistance or placement because . . . the juvenile’s
parent, guardian, or custodian is unable to provide for the
juvenile’s care or supervision and lacks an appropriate
alternative child care arrangement.” N.C. Gen. Stat. § 7B-
101(9). “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
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403, 406 (2005).
In light of her position that the adjudication of neglect
was improper, Respondent asserts that “she cannot be
demonstrated as having been ‘unable’ to provide for the proper
care and supervision of either juvenile.” Respondent further
contends that the trial court’s findings failed to show the lack
of “an alternative child care arrangement at the time of the
filing of the juvenile petition.”
“Our courts have, however, consistently held that in order
for a parent to have an appropriate alternative child care
arrangement, the parent must have taken some action to identify
viable alternatives.” In re L.H., 210 N.C. App. 355, 364, 708
S.E.2d 191, 197 (2011). Moreover, an adjudication under N.C.
Gen. Stat. § 7B-807 must be based on the facts existing at the
time the juvenile petition was filed. See In re A.B., 179 N.C.
App. 605, 609, 635 S.E.2d 11, 14-15 (2006) (ruling post-petition
evidence inadmissible at adjudicatory stage or hearing).
The trial court made the following additional findings
relevant to Arthur’s and Thomas’s status as dependent juveniles:
23. [Thomas] is diagnosed with Asperger’s
Syndrome. [His] father, who does not live
with the family, decided to have [Thomas]
live with him after he was notified about
[Thomas]’s absences. Mr. [S.] was dropping
[Thomas] off at [Respondent’s] home in the
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morning so she could take him to school.
Mr. [S.] would pick him up at 4:30 PM after
school. [Thomas] would spend nights and
weekends with his father due to
[Respondent’s] injuries from the 27 March
2013 incident.
24. Mr. [S.] became very ill and was in the
hospital when the Juvenile Petition was
filed. [Thomas] had returned to his
mother’s home full time due to Mr. [S.]’s
illness.
25. [Arthur]’s father . . . is disabled and
lives in a nursing home in Wilmington, NC.
[Respondent] does not know the name of the
facility. Ms. Griffin completed a search on
[Mr. H.], but was unable to obtain any
additional information.
26. YFS is not aware of any relative or
fictive kin who live in North Carolina who
are willing or able to provide placement for
[Arthur]. Ms. Griffin has obtained contact
information for [Thomas]’s paternal
grandparents as a potential placement. Mr.
[S.]’s fiancée has expressed an interest in
caring for [Thomas].
Taken together with the findings supporting the
adjudication of neglect, we conclude these findings support the
court’s conclusions that (1) neither Respondent nor the
juveniles’ fathers were able to parent the juveniles at the time
the petition was filed; and (2) no appropriate alternative
placements then existed.
In In re T.B., 203 N.C. App. 497, 692 S.E.2d 182 (2010),
this Court upheld an adjudication of dependency based upon the
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trial court’s determination that (1) the respondent and her
partner were unable to “meet the substantial needs of the
children,” id. at 506, 692 S.E.2d at 188; and (2) “[c]ustody
with a relative is not an option as no relative has been
identified as a potential placement option,” id. at 502-03, 692
S.E.2d at 186. In the present case, the trial court’s findings
reflect that the juveniles were neglected while in Respondent’s
care and that she failed to take action to address the issues
identified in her case plan. See P.M., 169 N.C. App. at 428,
610 S.E.2d at 406-07 (stating that “a failure to comply with
court-ordered protection plans may establish an inability to
care for or supervise a child if the plans were adopted to
ensure proper care and supervision of the child”). Findings of
fact 24 and 25 further showed that Mr. S. was hospitalized and
thus unavailable as a placement option at the time the petition
was filed and that Mr. H. also lacked the capacity to provide
care.
Finally, we hold that finding of fact 26 is sufficient to
demonstrate the lack of an available alternative placement
option for either child as of the date of the petition. While
Respondent observes that finding 26 does not foreclose the
existence of an out-of-state placement for Arthur and identifies
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two potential options for Thomas, she does not contend that
either she or the fathers affirmatively identified an
appropriate placement to YFS. See L.H., 210 N.C. App. at 366,
708 S.E.2d at 198 (“Having an appropriate alternative childcare
arrangement means that the parent [her]self must take some steps
to suggest a childcare arrangement . . . .”); In re D.J.D., 171
N.C. App. 230, 239, 615 S.E.2d 26, 32 (2005) (affirming
juveniles’ adjudication as dependent “since their parents were
neither able to care for them nor did they suggest appropriate
alternate placements”).
Conclusion
For the reasons stated above, we affirm the trial court’s
order adjudicating Arthur and Thomas to be neglected and
dependent juveniles.
AFFIRMED.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).