In the Matter of: Schoen, (02-406) 08/05/2003

Appeal by respondent from orders entered 4 October 2001 and 8 November 2001 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 10 February 2003.

    Virginia R. Hager, for respondent-appellant.

    New Hanover County Department of Social Services, by Julia Talbutt, for petitioner-appellee.

    Regina Floyd-Davis, for Guardian Ad Litem.

    GEER, Judge.

    Respondent-appellant, Patricia Schoen, appeals from orders finding her son, Luke Schoen, to be a neglected child and directing that nonsecure custody remain with the New Hanover Department of Social Services ("DSS"). Appellant contends that certain of the trial court's findings are unsupported by evidence. After a careful review of the record, we affirm.
    Ms. Schoen and her two sons, Luke and Nicholas, moved from New York to North Carolina in 1996. Nicholas moved back to New York to live with his father, while Luke remained in North Carolina with his mother.
    Ms. Schoen started dating Marc Crawford in 1998. During their relationship, Mr. Crawford engaged in domestic violence, especiallywhen he had been drinking. Ms. Schoen obtained two separate domestic violence protective orders ("DVPO") pursuant to Chapter 50B of the North Carolina General Statutes. In her applications for the DVPOs, Ms. Schoen described nine incidents of domestic violence. In addition, the 911 emergency center recorded nine calls from Ms. Schoen seeking assistance with Mr. Crawford's conduct.
    In December 1998, Mr. Crawford assaulted Ms. Schoen in front of Luke, who was then six years old. He was arrested for and convicted of that assault, but was not imprisoned. In the spring of 1999, upon Ms. Schoen's request, the district court entered a DVPO. Despite this order, Ms. Schoen still allowed Mr. Crawford to visit her home.
    From November 1999 through July 2000, Mr. Crawford was incarcerated for unspecified offenses. During his time in prison, Mr. Crawford took classes in anger management, substance abuse counseling, and parenting.
    In November 2000, Ms. Schoen married Mr. Crawford. On 29 December 2000, Ms. Schoen filed a complaint and motion for a DVPO alleging a number of instances of abuse by Mr. Crawford. Ms. Schoen stated that on 25 November 2000, Mr. Crawford pushed her and angrily pinned her down in the bedroom, that he pushed her around the living room, and that he hit her in the eye with his wedding ring. Luke woke up during the incident and was scared for his mother. Ms. Schoen further reported that on 1 December 2000, Mr. Crawford physically placed Luke (who was then eight years old) ona sofa when he tried to get a drink from the kitchen, causing Luke to be afraid to move at all. Mr. Crawford also told Luke, while they were alone, that he would burn down the shed containing the belongings of Luke's deceased grandparents. On 25 December 2000, Mr. Crawford threatened Ms. Schoen, left the home, returned intoxicated, threatened to rape Ms. Schoen, and stated that he wished that he had a gun.
    The district court entered a DVPO on 5 January 2001 barring Mr. Crawford from going to Ms. Schoen's home, from having contact with Ms. Schoen, and from going to Luke's school or sports events. The court directed Mr. Crawford to complete anger management classes and ordered that the parties only communicate in a manner prescribed by a therapist or counselor. The order was effective until 5 January 2002. Nevertheless, later in January 2001, Ms. Schoen allowed Mr. Crawford to visit Luke for a delayed Christmas celebration while her sister visited from New York.
    From April 2001 through June 2001, Mr. Crawford was incarcerated and participated in the DART-Cherry Substance Abuse program. Mr. Crawford had violated his probation so that he would be eligible to participate in that program. Upon his release, Mr. Crawford was supposed to attend AA meetings and abstain from drinking. After leaving the DART program, Mr. Crawford moved to Goldsboro. He did not attend AA meetings, but rather resumed drinking. At the hearing, he admitted to drinking 12 to 15 beers a week. Alcohol had played a significant role in most of the incidents of his domestic violence.     In July 2001, Ms. Schoen indicated on a student information form provided to Luke's school that Mr. Crawford was not allowed near Luke "under any circumstances." On Luke's birthday, 4 August 2001, however, Mr. Crawford telephoned Ms. Schoen to request her permission to purchase Luke a birthday gift. Ms. Schoen agreed and accompanied Luke and Mr. Crawford shopping. In addition, during the Labor Day weekend and on at least one other occasion, Ms. Schoen took Luke to visit Mr. Crawford in Goldsboro. Ms. Schoen continued to see Mr. Crawford, including allowing him to spend the night in her residence.
    In August 2001, after Mr. Crawford had re-entered Luke's life, Luke asked him why he was drinking. Towards the middle of August, Luke asked his teacher whether she knew of any web sites where he could find information about building a bomb. He explained to his teacher that he wanted one to protect his mother and himself from an unnamed person. He later identified that person as Mr. Crawford, explaining that he was afraid that prior experiences would be repeated. He felt safe if Mr. Crawford was not drinking, but was worried because he had resumed drinking. During the week of 20 August, he told his teacher that she would be surprised how many weapons he had in his closet for protection. He also claimed to have stealth powers that would allow him to sneak up undetected if his mom was in trouble and protect her. He was afraid, however, that his powers might fail him.
    On 5 September 2001, a DSS social worker, Jennifer Gosnell, began investigating a report that Luke was subjected toinappropriate discipline and that Mr. Crawford had been allowed in the home while the DVPO was still in effect. During Ms. Gosnell's interview with Luke, he mentioned that he would go into his bedroom, lock the door, and put pillows over his head so that he would not hear Ms. Schoen and Mr. Crawford arguing. Luke explained that he was not afraid of Mr. Crawford at that point because "Mark had not gotten angry yet" and because he was strong enough to stop Mr. Crawford.
    After interviewing Luke, Ms. Gosnell went to Ms. Schoen's home where she found Mr. Crawford present. When Mr. Crawford was arrested for violating the DVPO, Ms. Schoen said she would drop the DVPO in the next day or so. She and Mr. Crawford agreed, however, to sign a protection plan to stay apart until Ms. Gosnell could discuss the situation further. The protection plan was signed that same day and Ms. Schoen also orally promised that she would keep Luke and Mr. Crawford apart. Ms. Gosnell informed Ms. Schoen that she needed to investigate further and wanted to arrange for services. On the very next day, 6 September 2001, Ms. Schoen obtained a dismissal of the DVPO.
    On 21 September 2001, Ms. Schoen told Ms. Gosnell that she no longer agreed with keeping Luke and Mr. Crawford apart. She indicated that she might allow Luke to go fishing with Mr. Crawford and pointed out that the protection plan did not specifically require her to keep Luke away from Mr. Crawford. She refused to sign any new protection plan that would include such a limitation. Ms. Gosnell warned Ms. Schoen that if she learned that Mr. Crawford had contact with Luke, DSS might seek custody.
    On Sunday, 23 September 2001, DSS social worker Robin Johnson made a visit to Ms. Schoen's home and found both Mr. Crawford and Luke present. Ms. Schoen first claimed that Ms. Gosnell was aware that Mr. Crawford would be visiting Luke, but then stated that Mr. Crawford had just come to get some clothes and stayed to teach Luke a video game. When Ms. Johnson told Ms. Schoen and Mr. Crawford that they had violated the protection plan, Mr. Crawford insisted that since the restraining order had been dismissed, he had every right to be in the house and visit Luke. He became irate until Ms. Johnson threatened to call the police. Mr. Crawford then left the house at Ms. Johnson's request. While Ms. Johnson was discussing the protection plan with Ms. Schoen, Mr. Crawford telephoned. Ms. Schoen told him: "Yes, she is still here and I'll call you when she leaves." Ms. Johnson was concerned that Mr. Crawford would return as soon as she left.
    Ms. Johnson consulted with DSS staff and proceeded to remove Luke from the home. She then filed the petition upon which the court adjudicated neglect and obtained an order for nonsecure custody. Pursuant to the order, Luke was placed with DSS on 23 September 2001. At a 27 September 2001 hearing on the need for continued nonsecure custody, the court held that nonsecure custody was to remain with DSS.
    At the end of the adjudication and dispositional hearings held on 4 and 5 October 2001, the court found that Luke was a neglectedjuvenile and ordered that he remain in DSS custody. From this order entered on 8 November 2001 and the order of 4 October 2001, Ms. Schoen appealed.

    Ms. Schoen first argues that the evidence does not support the trial court's decision following the 27 September 2001 hearing to continue nonsecure custody with DSS. The trial court conducted the 27 September 2001 hearing pursuant to N.C. Gen. Stat. § 7B-506. In such a hearing, the court "shall be bound by criteria set forth in G.S. 7B-503 in determining whether continued custody is warranted." N.C. Gen. Stat. § 7B-506(c) (2001). The trial court had placed Luke in nonsecure custody on 23 September 2001 pursuant to N.C. Gen. Stat. § 7B-503 (2001), on the grounds that there was a reasonable factual basis to believe that DSS's allegations weretrue, that there were no other reasonable means available to protect Luke, and that Luke was:
        exposed to a substantial risk of physical injury or sexual abuse because the parent, guardian, custodian, or caretaker has created the conditions likely to cause injury or abuse or has failed to provide, or is unable to provide, adequate supervision or protection[.]

N.C. Gen. Stat. § 7B-503(a)(3) (2001).
    At the hearing for continued nonsecure custody, the State bore the burden of proving by clear and convincing evidence that the juvenile's placement in custody was necessary. N.C. Gen. Stat. § 7B-506(b) (2001). Under N.C. Gen. Stat. § 7B-503(a), "[a] juvenile alleged to be abused, neglected, or dependent shall be placed in nonsecure custody only when there is a reasonable factual basis to believe that there are no other reasonable means available to protect the juvenile." N.C. Gen. Stat. § 7B-503(a) (emphasis added). Ms. Schoen argues that she urged the court to return Luke to her subject to an order prohibiting Mr. Crawford from being around Luke pending the adjudication hearing. She contends that entry of such an order constituted "reasonable means" available to protect Luke and that the State, therefore, failed to carry its burden to prove the necessity of continued nonsecure custody. We disagree.
    Ms. Schoen has not assigned error to the trial court's findings of fact in the 4 October 2001 order, so they are binding on appeal. In any event, we find competent evidence in the record to support those findings. In concluding that continued nonsecure custody was necessary, the trial court relied upon the facts thatwithin days of obtaining a DVPO, Ms. Schoen allowed Mr. Crawford into her home and in contact with her son contrary to that order; that shortly after providing the school with a form stating that her son was to have no contact with Mr. Crawford, she had the existing DVPO dismissed so that Mr. Crawford could lawfully visit her home; and two weeks later, Ms. Schoen violated her agreement with DSS by allowing Mr. Crawford into her house to play a video game with her son. These facts, unchallenged by appellant, reveal a pattern of repeatedly disregarding the risk posed by Mr. Crawford to Luke. The trial court reasonably discounted Ms. Schoen's expressed willingness to have an order entered barring contact between Mr. Crawford and Luke given the fact that she had disregarded a DVPO, a protection plan with DSS, and her own prior assurances to DSS. While it is possible that Ms. Schoen might have complied with such an order, the trial court was justified in determining that the facts presented a risk of neglect in the future. See In re Evans, 81 N.C. App. 449, 452, 344 S.E.2d 325, 327 (1986) ("DSS may obtain temporary custody of a child when there is a risk of neglect in the future.") (emphasis original).
    The evidence in the record supports the trial court's finding at the 27 September 2001 hearing that Ms. Schoen's refusal "to abide by the protection plan and injunctions of the social worker and her insistence upon having Luke in the presence of Mr. Crawford created an unreasonable risk to the child and necessitated his placement." Based on this finding, the court concluded that Lukeshould remain in nonsecure custody with DSS. We find no error in the trial court's ruling.

    Ms. Schoen also has appealed the trial court's 8 November 2001 Order adjudicating Luke to be a neglected child. DSS filed a petition alleging that Luke is a neglected juvenile in that he lives in an environment injurious to his welfare due to the three- year history of domestic violence between Ms. Schoen and Mr. Crawford. Under N.C. Gen. Stat. § 7B-802, the court holds a hearing to "adjudicate the existence or nonexistence of any of the conditions alleged in a petition." N.C. Gen. Stat. § 7B-802 (2001). At the hearing, DSS must prove its allegations by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2001). If the court finds that DSS has met its burden, then the court holds a dispositional hearing "to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction." N.C. Gen. Stat. § 7B-900 (2001).
    Ms. Schoen specifically challenges only two of the findings of fact contained in the adjudicatory order:
            5. That both Ms. Schoen Crawford and Mr. Crawford violated the protection plan and both exhibited an agenda to evade or resist supervision by the Department of Social Services.

            . . .

            11. That the New Hanover County Department of Social Services [made] reasonable efforts to eliminate the need for placement and to abate any risk to the child, but the refusal of Ms. Schoen Crawford to abide by the protection plan and injunctionsof the social worker and her insistence upon having Luke in the presence of Mr. Crawford created an unreasonable risk to the child and necessitated his placement. That return of Luke to his mother at this time would be contrary to his welfare and continued placement is in his best interests. However, timely reunification of the family with safeguards in place is appropriate and in the best interests of the child.

After reviewing the record, we conclude that clear and convincing competent evidence exists to support the trial court's findings.
    Ms. Schoen argues first that, contrary to finding of fact 5, there is no evidence that she violated the protection plan entered into with DSS. That plan, signed by both Ms. Schoen and Mr. Crawford, specified that they would "stay apart/separated" until they had spoken further with the social worker regarding the DVPO. Ms. Schoen does not contend that this protection plan had lapsed or that the "stay apart" provision was no longer in effect. Instead, she argues that the "stay apart" provision did not prohibit contact between Mr. Crawford and her son. Since the sole purpose of the protection plan was to protect Luke from domestic violence, Ms. Schoen's proposed reading of the plan's terms is unreasonable, especially in light of the evidence that she also orally assured the DSS social worker that she would keep Luke separate from Mr. Crawford. Her admitted failure to do so supports the trial court's finding that she violated the protection plan.
    Ms. Schoen also denies that she and her husband "exhibited an agenda to evade or resist supervision by the Department of Social Services." This finding is, however, supported by evidence that only a day after DSS pointed to the DVPO as a basis for insistingthat Mr. Crawford not be allowed in the home, Ms. Schoen ensured that the DVPO was dismissed. The trial court reasonably concluded that the dismissal represented an attempt to evade supervision by DSS, especially given that both Ms. Schoen and Mr. Crawford have relied upon that dismissal in contending that they did not violate any protection plan. Additional evidence supporting this finding includes Ms. Schoen's refusal on 21 September to continue to keep Luke apart from Mr. Crawford, her refusal to sign a new protection plan, her misrepresentation to the on-call social worker on 23 September that the assigned social worker knew of Mr. Crawford's visit, Mr. Crawford's hostility to the social worker until she threatened to call the police, and the phone call suggesting Mr. Crawford planned to return as soon as the social worker left. Although Ms. Schoen suggests a more innocent interpretation of the evidence, the trial court was not required to accept Ms. Schoen's view.
    In challenging finding of fact 11, Ms. Schoen contends that the evidence does not support the finding of "unreasonable risk" to her son. She claims that the lack of evidence of any actual domestic violence during the nine-month period since 28 December 2000 precludes a finding of "unreasonable risk."
    The petition alleged that Luke was a neglected juvenile in that he "lives in an environment injurious to the juvenile's welfare." Although it is difficult to find persuasive the absence of violence when the evidence indicates that Mr. Crawford had no contact with Luke for almost seven months out of the nine-monthperiod, the evidence of Luke's conversations with his teacher and the social worker reveals that upon Mr. Crawford's re-entering Luke's life in August 2001, Luke began experiencing emotional harm. Indeed, Ms. Schoen does not challenge the trial court's finding of fact 9, based on those conversations, "that Luke has been adversely affected by the long history of domestic violence between Mr. Crawford and Luke's mother."
    In addition, the court was entitled to rely on Ms. Schoen's undisputed pattern throughout her relationship with Mr. Crawford of seeking assistance regarding his abuse followed by reconciliation and then separation again when Mr. Crawford's relapse into excessive alcohol use led to more abuse. Because of this pattern, the trial court was entitled to view with skepticism Ms. Schoen's assessment of her husband and her claims that she was moving cautiously and would protect her son from any violence. Given the unchallenged evidence of Mr. Crawford's prior acts of domestic violence, his acknowledged substantial alcohol use, and his emotional reaction to the social worker, the trial court could reasonably embrace Luke's own assessment as to the reason for the lack of domestic violence during the month prior to DSS's assuming custody: "Mark had not gotten angry yet." Under these circumstances, a trial court is not required to hope for the best and await yet another act of domestic violence when the mere threat of violence is having a substantial emotional impact on the child already.    We note the court's finding that "timely reunification of the family with safeguards in place is appropriate and in the best interests of the child." An order adjudicating Luke neglected does not terminate Ms. Schoen's parental rights; a different standard applies at this stage. Evans, 81 N.C. App. at 452, 344 S.E.2d at 327 (evidence need only show that the child is exposed to substantial risk of harm). The trial court has set out specific requirements for a protection plan, counseling, and psychological evaluations, which have not been challenged on appeal. The order provides that "the child may be returned to the home upon the concurrence of the Department of Social Services and the Guardian ad Litem and upon the absolute compliance of the mother with the provisions of the protective plan." Ms. Schoen has the means to ensure that her son is returned to her custody.
    We find no error in the trial court's ruling.

    Affirmed.
    Chief Judge EAGLES and Judge MARTIN concur.
    Report per 30(e)

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