Appeal by respondent from orders entered 8 and 14 May 2002 by
Judge Jacquelyn L. Lee in Johnston County District Court. Heard in
the Court of Appeals 16 March 2004.
W. A. Holland and Jennifer S. O'Connor for petitioner-appellee
Johnston County Department of Social Services.
James D. Johnson, Jr. for Guardian ad Litem.
Katharine Chester for respondent-appellant.
HUNTER, Judge.
Respondent mother appeals both an adjudication order and
disposition order concluding that her minor child, E.S., was a
neglected and dependent juvenile whose best interests would be
served by remaining in the custody of the Johnston County
Department of Social Services (“JCDSS”).
(See footnote 1)
For the reasons stated
herein, we affirm.
On 25 February 2002, respondent, then sixteen years of age,
gave birth to E.S. while in the custody of JCDSS. E.S. was her
second child, respondent having given birth to another son, R.S.,
when she was fourteen. At the time of E.S.' birth, respondent was
living at PORT, a treatment facility for drug and alcohol abuse.
However, PORT did not have accommodations for its patients' minor
children, and JCDSS did not have another available placement that
could provide the treatment and care respondent and E.S. needed.
Therefore, due to respondent's inability to develop a plan of care
for E.S., JCDSS took custody of the juvenile on the day he was
born. A juvenile petition was filed on that same day alleging
E.S.' dependency.
On 28 February 2002, JCDSS amended its juvenile petition to
include allegations of neglect in that E.S. “live[d] in an
environment injurious to the juvenile's welfare.” Facts listed by
JCDSS to support the neglect allegations were as follows: The juvenile's mother, [respondent], is a
minor and is currently residing in a
residential treatment facility and is not
capable of providing care for the juvenile
while residing in this facility. [JCDSS] has
been working with [respondent] on or about
November 1999 regarding [respondent's] first
child. [Respondent's] first child was removed
from her custody in 11/99. The first child
was adjudicated as being neglected and
dependent by [respondent] in that [respondent]
failed to ensure that the child was properly
fed. On or about November 2000, the Court
ordered that DSS no longer had to work toward
reunifying [respondent] with her oldest child.
[Respondent] failed to make significant
progress in addressing her neglect issues and
she failed to show an interest in providing
care for the juvenile. The juvenile's alleged
father is unknown and no one has come forward
at this time to claim paternity of this
juvenile. [Respondent] has stated she does
no[t] know the identity of the father.
Therefore, this juvenile is an environment
injurious to her [sic].
The adjudication hearing was held on 3 April 2002. At the
call of the case, respondent informed the trial court that she
would consent to an adjudication of dependency only. JCDSS did not
accept the stipulation, and the hearing commenced. After the
presentation of the evidence, the court concluded that E.S. was a
dependent and neglected juvenile. Findings of fact supporting that
conclusion included, inter alia:
[Respondent] has been discharged from
PORT, the drug and alcohol treatment facility
as of March 28, 2002. She has been placed in
a therapeutic foster care home. The minor
child, [E.S.], continues to reside in a
licensed foster care home. The Court finds
that he is gaining weight and is appropriately
progressing. The JCDSS has continued to
explore relative placement without success.
[Respondent] had three weekend visits
while at PORT. These weekend visits were
attempts to recommit her to the local
community and were arranged at hergrandmother's home. During all three of these
visits she violated curfews by spending the
night away from her grandmother's home. The
mother also admitted taking a sleeping pill
and upon returning to PORT, tested positive
for THC. The Court finds from this evidence
that the mother had [been] given an
opportunity to establish a home with her
grandmother and present an understanding [of]
following rules in the home so that she could
develop the skills to maintain and manage her
own child. The mother's failure to stay in
the place provided and decision to violate
both the curfew and the substance problems
constitutes neglect in that the mother has not
demonstrated that she can supervise and
control an infant. The Court further finds
that the child is a dependent child and that
the mother has no money, no source of income,
no place to live and has demonstrated an
inability to remain in placements where she
could care for the minor infant.
The case immediately proceeded to disposition whereby the trial
court concluded that E.S.' best interests would be served by
remaining in the custody of JCDSS. A supervised visitation plan
for respondent was also approved that was contingent upon
respondent complying with her family services case plan.
Respondent and the guardian ad litem appeal.
(See footnote 2)
I.
[1] Respondent argues the trial court's adjudication order
should be reversed because she did not neglect E.S. within the
meaning of N.C. Gen. Stat. § 7B-101 (2003). The relevant portion
of this statute provides
:
Neglected juvenile. -- A juvenile who does
not receive proper care, supervision, or
discipline from the juvenile's parent,
guardian, custodian, or caretaker; or who has
been abandoned; or who is not providednecessary medical care; or who is not provided
necessary remedial care; or
who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (emphasis added). Respondent contends
that since E.S. was taken from respondent immediately following his
birth and before either of them had left the hospital, the trial
court erred in concluding E.S. was living in an environment
injurious to the juvenile's welfare. We disagree.
“In a non-jury neglect adjudication, the trial court's
findings of fact supported by clear and convincing competent
evidence are deemed conclusive, even where some evidence supports
contrary findings.”
In re Helms, 127 N.C. App. 505, 511, 491
S.E.2d 672, 676 (1997). Also, in determining whether a parent has
neglected a juvenile, a prior adjudication of neglect involving
that parent is a relevant factor to consider, and “the trial judge
[is afforded] some discretion in determining the weight to be given
such evidence.”
In re Nicholson and Ford, 114 N.C. App. 91, 94,
440 S.E.2d 852, 854 (1994).
See also N.C. Gen. Stat. § 7B-101(15).
In the case
sub judice, the trial court's adjudication of
neglect was based primarily on events that took place before E.S.'
birth, in particular, the circumstances regarding respondent's
oldest child being adjudicated neglected and dependent on 27
January 2000. The trial court further found that following that
prior adjudication, respondent continued to demonstrate behavior
that evidenced she would neglect E.S. That evidence established
that while in the PORT program and prior to E.S.' birth, respondent
was allowed three weekend visits with her grandmother. The purposeof those visits was to ensure that respondent could show a change
in previous patterns of instability, give her an opportunity to
live with R.S.
(See footnote 3)
, and determine if respondent could abide by
established house rules. The first visit took place around
Thanksgiving of 2001, and respondent disappeared for six hours
without permission. The second visit took place around Christmas
of 2001, and respondent behaved appropriately. The third visit
took place in February of 2002 (approximately two weeks before
E.S.' birth), and respondent stayed out all night without
permission.
After E.S. was born, the evidence revealed that respondent's
behavior did not improve. Shortly after E.S.' birth, respondent
resumed visits with her grandmother with the following results:
(1) on 15 March 2002, respondent violated her established curfew
and took a sleeping pill, which was considered a violation of
PORT's policy against taking drugs of any kind; and (2) in early
April of 2002, respondent had another visit with her grandmother,
stayed out all night again, and smoked marijuana. Thereafter,
respondent was discharged from PORT because her PORT counselor felt
that the program could offer respondent no further assistance.
While her discharge was not technically considered an unsuccessful
completion of the program, additional evidence established that
respondent “still struggles with substance abuse.” “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 McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
Here, the trial court carefully weighed and assessed the evidence
regarding a past adjudication of neglect and the likelihood of its
continuation in the future before concluding that E.S. would be at
risk if allowed to remain with respondent. “Because the neglect
statute 'affords the trial judge some discretion in determining the
weight to be given such evidence,' we hold that the findings of
fact taken in their entirety are sufficient to support the
conclusion that [E.S.] was a neglected child.”
Id. This
assignment of error is overruled.
II.
[2] Respondent argues the trial court failed to make
appropriate findings of fact and conclusions of law. We disagree.
“In all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specially and state
separately its conclusions of law thereon and direct the entry of
the appropriate judgment.” N.C.R. Civ. P. 52(a)(1). “Findings of
fact are defined as '[d]eterminations from the evidence of a case
. . . concerning facts averred by one party and denied by another.'
Conclusions of law are defined as '[f]inding[s] by [a] court as
determined through [the] application of rules of law.'”
In re
Johnston, 151 N.C. App. 728, 731, 567 S.E.2d 219, 221 (2002)
(citations omitted). “If the trial court's findings of fact aresupported by competent evidence, and they support its conclusions,
they are binding on appeal.”
Id.
Testimony was offered by two child placement workers, a child
protective service investigator, and respondent. From their
testimony, the trial court found respondent had demonstrated
behavior inconsistent with caring for a child such as running away
from child placements, violating established curfews, and failing
to develop a connection or demonstrate a willingness to provide any
parenting skills to her oldest child that would have assisted her
with the supervision and control of E.S. These findings were
clearly distinguished from the court's conclusions that E.S. was a
dependent and neglected juvenile as designated by the titles
“Findings of Fact” and “Conclusions of Law” in the adjudication
order.
See id. at 732, 567 S.E.2d at 221 (holding that the trial
court's findings of fact and conclusions of law must be
distinguishable in the order in some recognizable fashion).
Moreover, while respondent may contend that some of the findings
were inaccurate and thus, did not support the conclusions of law,
we have carefully reviewed the record and found competent evidence
indicating otherwise.
Nevertheless, respondent contends the trial court erred by not
orally stating at the adjudication hearing whether “the allegations
in the petition have been proven by clear and convincing
evidence[]” pursuant to N.C. Gen. Stat. § 7B-807(a) (2003). While
the trial court did not make such an oral statement, neither
statutory authority nor case law require the court to do so.
However, there is clear case law that holds the order of the trialcourt must affirmatively state the standard of proof utilized.
See
In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000). The first
page of the trial court's adjudication order did state: “For
purposes of adjudication, the Court finds . . . the following facts
have been proven by clear and convincing evidence . . . .” That
statement satisfies N.C. Gen. Stat. § 7B-804. Morever, the
statement in the adjudication order disproves another contention of
respondent's that the order failed to clearly state the requisite
standard of proof.
Next, respondent contends the trial court confused matters by
entering an amended juvenile adjudication order before the original
order. For reasons not clearly denoted in the record, the amended
adjudication order was filed on 8 May 2002, several days before the
original order was filed on 14 May 2002. Yet, despite the original
order being inadvertently filed on a later date, respondent's
notice of appeal clearly stated that she was “appealing the amended
Adjudication Order . . . .” Thus, whether or not respondent had
seen the original adjudication order at that time, she knew the
order from which she was appealing had either added, deleted or
rephrased the content of the original order.
See The American
Heritage College Dictionary 42-43 (3rd ed. 1997).
The remainder of respondent's contentions with respect to this
second argument are completely without merit and warrant no further
discussion. Accordingly, we conclude the trial court made
appropriate findings of fact and conclusions of law.
III.
[3] Finally, respondent argues the trial court's decision
should be reversed because it failed to timely enter the
adjudication and disposition orders. We conclude the trial court's
failure to timely enter the orders did not prejudice defendant.
Chapter 7B of our statutes governs the filing of adjudication
and disposition orders. Specifically, an adjudication order “
shall
be reduced to writing, signed, and entered no later than 30 days
following the completion of the hearing.” N.C. Gen. Stat. § 7B-
807(b) (emphasis added). Likewise, a disposition order “
shall be
in writing, signed, and entered no later than 30 days from the
completion of the hearing . . . .” N.C. Gen. Stat. § 7B-905(a)
(2003) (emphasis added).
Here, the adjudication and disposition hearing took place on
3 April 2002. The adjudication order was filed on 8 May 2002, and
the disposition order was filed on 14 May 2002, both of which
occurred after the thirty-day statutory time period. Respondent
cites several cases in which this Court held that “use of the
language 'shall' is a mandate to trial judges, and that failure to
comply with the statutory mandate is reversible error.”
In re
Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001).
See
also In re Estes, 157 N.C. App. 513, 579 S.E.2d 496,
disc. review
denied, 357 N.C. 459, 585 S.E.2d 390 (2003). However, none of
those cases involved the untimeliness of orders, nor do the
statutes at issue address the repercussions associated with
untimely filing these types of orders.
The General Assembly added the thirty-day filing requirement
to these statutes in 2001.
See 2001 Sess. Laws 2001-208, § 17. While we have located no clear reasoning for this addition, logic
and common sense lead us to the conclusion that the General
Assembly's intent was to provide parties with a speedy resolution
of cases where juvenile custody is at issue. Therefore, holding
that the adjudication and disposition orders should be reversed
simply because they were untimely filed would only aid in further
delaying a determination regarding E.S.' custody because juvenile
petitions would have to be re-filed and new hearings conducted.
Further, although the order was not filed within the specified
time requirement, respondent cannot show how she was prejudiced by
the late filing.
See In re Humphrey, 156 N.C. App. 533, 538, 577
S.E.2d 421, 426 (2003) (citation omitted) (holding the respondent
failed to demonstrate how she was prejudiced by petitioner's
failure to comply with N.C. Gen. Stat. § 7B-1104's requirement that
a petition or motion for termination of parental rights
shall state
that it “'has not been filed to circumvent the provisions of . . .
the Uniform Child-Custody Jurisdiction and Enforcement Act'”). The
record shows that respondent's right to visitation with E.S. was
not affected by the untimely filings nor was her right to appeal
the orders. Thus, the trial court's failure to file the
adjudication and disposition orders within thirty days amounted to
harmless error and is not grounds for reversal.
Affirmed.
Judges WYNN and TYSON concur.
Footnote: 1