IN RE: ALESCIA ELIZABETH BROWN,
AMANDA L. BROWN, Davie County
CHRISTIAN J. BROWN, Nos. 99 J 3
DAMIAN V. POWELL and 00 J 56
ASHLEY L. BRADSHAW, 00 J 58
00 J 59
Minor Children. 00 J 60
Martin & Van Hoy, L.L.P., by Sally W. Smith, for petitioner-
appellee Davie County Department of Social Services.
Hosford & Hosford, P.L.L.C., by Sofie W. Hosford for
respondent-appellant, father.
Hall & Hall, P.C., by Susan P. Hall, for respondent-appellant,
mother.
Lori Hamilton-Dewitt as Guardian Ad Litem.
ELMORE, Judge.
Lisa Brown (respondent-mother) and Dennis Powell (respondent-
father) (collectively, respondents) separately appeal from a review
order which, inter alia, removed their son Damian V. Powell
(Damian) from respondents' home, granted physical custody of Damian
to petitioner Davie County Department of Social Services (DSS), and
established a permanent care plan for Damian of reunification with
respondent-parents with a concurrent plan of termination ofparental rights and adoption. For the reasons discussed herein, we
affirm the trial court's order.
Background
Prior to 3 January 2001, respondent-mother and her boyfriend,
respondent-father, maintained a household which included their son
Damian, born 7 November 1995, as well as respondent-mother's four
other children: Ashley L. Bradshaw (Ashley), born 8 August 1986;
Alescia E. Brown (Alescia), born 11 December 1989; Christian J.
Brown (C.J.), born 30 August 1992; and Amanda L. Brown (Amanda),
born 16 November 1993. Of these five juveniles, respondent-father
was only the biological father of Damian. The family moved to
Davie County in 1997 and DSS began a long history of intensive
involvement with them the following year.
On 22 September 2000, following an incident in which
respondent-mother told a social worker that she wanted Alescia out
of the house because she despised Alescia, could not stand to look
at her, and feared that she might kill Alescia, DSS filed a
juvenile petition alleging that Alescia was neglected and
dependent. DSS thereafter received non-secured custody of Alescia.
On 26 September 2000, DSS filed juvenile petitions alleging that
Ashley, C.J., Amanda, and Damian were each similarly neglected and
dependent. On 6 October 2000, DSS filed amended juvenile petitions
with respect to all five juveniles, adding additional allegations
that respondent-father: (1) resides in the home and is a primary
care-giver; (2) uses inappropriate discipline, particularly on the
younger children; and (3) screams and curses at the juvenilesoften. Each amended petition also alleged that respondent-mother's
brother was allowed to stay in the home around the juveniles,
“despite allegations and/or suspicions that he sexually molested
the respondent mother and/or one or more of the children.”
By order filed on or about 24 January 2001, the trial court
adjudicated all five juveniles neglected. Neighbors testified at
the adjudication hearing that they had witnessed the juveniles
being kicked, slapped, and beaten with sticks by respondent-father.
Further testimony indicated that respondents had subjected the
juveniles to other inappropriate forms of discipline, including
depriving the juveniles of drinks on hot summer days, locking them
out of the house, and excessive corporal punishment. DSS presented
evidence that the juveniles have a variety of special needs,
including attention deficit hyperactive disorder (ADHD) and
depression, which were not being adequately addressed by
respondents. Following a disposition hearing on 21 February 2001,
legal custody of all five juveniles was continued in DSS, with DSS
also receiving physical custody and placement authority of Alescia
and Damian, and respondents were ordered to fully cooperate with
DSS and make progress with the Family Services Case Plan. DSS
thereafter allowed Damian to remain in respondents' home with
Ashley, C.J., and Amanda, while Alescia remained in foster care.
In a review order entered 29 August 2001, the trial court
found that respondents' home had recently burned down, and the
family had since been living at a motel. Ashley had been placed at
Nazareth Children's Home since asking in June 2001 to be removedfrom respondents' home. C.J. had been placed at Nazareth at
respondents' request in May 2001, and Amanda was removed from
respondents' home and placed at Nazareth by the 29 August 2001
review order, leaving Damian as the only juvenile still residing
with respondents. Damian had been hospitalized at Amos Cottage in
April 2001 for therapeutic analysis and was returned to
respondents' home in June 2001. The 29 August 2001 review order
found that Damian had repeatedly been acting out at school by
pushing, spitting on, throwing food at, and pretending to choke his
classmates, and that Damian had several past instances of sexual
acting out. By its 29 August 2001 order, the trial court also
found that respondent-mother had been diagnosed as suffering from
severe depression and post-traumatic stress disorder, and that she
had failed to follow through on her court-ordered therapy. The
primary plan for each juvenile continued to be reunification with
respondents.
At a further review hearing on 17 October 2001, evidence was
presented that respondent-father had violated prior court orders by
failing to have contact with DSS since the previous review hearing,
failing to enter into a new Family Services Case Plan, and changing
Damian's school without notifying DSS. Damian continued to act out
at his new school, and the DSS case worker stated that Damian told
her that respondent-father had threatened to whip him if Damian
talked to her. In its order following the 17 October 2001 review
hearing, the trial court found respondents to be under severe
financial distress. The trial court further found that respondentshave acknowledged subjecting the juveniles to improper discipline
in the past, but that respondents had completed parenting classes
and now had better insight into appropriate discipline methods. At
this time the trial court ordered the permanent plan with respect
to Ashley and Alescia changed to adoption or legal custody with a
relative. By order entered 24 December 2001, the permanent plan
for Ashley and Alescia was changed to custody with a relative or
court-approved caretaker, with a secondary plan of adoption.
On 27 February 2002, following a review hearing held on 13
February 2002, the trial court entered the review order (order)
from which respondents now appeal. At the time of the hearing,
Damian was the only one of the five juveniles still residing in
respondents' home. The order, which incorporated by reference
comprehensive summaries prepared for the review hearing by both DSS
and the guardian ad litem, contained the following pertinent
findings of fact:
4. The record is replete of [sic] instances
demonstrating the respondent parents' failure to
comply with the orders of this court and the Family
Services Case Plan.
5. The respondent parents continue today to accept no
responsibility for the psychological and physical
harm that has been inflicted by them upon the
children.
. . . .
9. [DSS] has made reasonable efforts towards reuniting
. . . Damian with his respondent parents as are set
forth in the court summary. . . .
10. Continued placement of Damian in the home is
contrary to his welfare and best interest.
. . . .
The order also contained the following pertinent conclusion of law:
5. The best interest of Damian would be served by his
being placed immediately in foster care. The
permanent plan of care for Damian should be
reunification with his respondent parents with
termination of parental rights and adoption as a
concurrent plan.
. . . .
Finally, based upon the foregoing findings of fact and conclusions
of law, the trial court ordered as follows:
2. [DSS] shall immediately take custody of Damian and
he shall be placed in foster care.
3. The permanent plan of care for Ashley . . . shall
be placement with a relative or other court
approved caretaker with a secondary plan of
adoption. The permanent plan of care for Alescia .
. . shall continue to be custody with a relative or
court approved caretaker with a secondary plan of
adoption. The permanent plan of care for Amanda .
. . shall be termination of parental rights and
adoption with a secondary plan of custody with a
relative or court approved caretaker. The
permanent plan of care for [C.J.] shall be custody
with a relative with a concurrent plan of
termination of parental rights and adoption.
5 [sic]. The permanent plan of care for Damian . . .
shall be, at this time, reunification with the
respondent parents with a concurrent plan of
termination of parental rights and adoption.
. . . .
From this order, respondent-mother and respondent-father
timely filed separate notices of appeal. Thereafter, during the
pendency of this appeal, respondent-mother voluntarily relinquished
all of her rights with respect to Ashley, Alescia, C.J., and Amanda
by executing separate “Relinquishment of Minor for Adoption by
Parent or Guardian” documents for each child on 13 December 2002. However, neither respondent-mother nor respondent-father has
relinquished Damian for adoption.
Respondent-Mother's Appeal
Respondent-mother's relinquishment of her rights to Ashley,
Alescia, C.J., and Amanda during the pendency of her appeal has
rendered the issues she raised regarding these four juveniles moot,
leaving for our review only those portions of the order removing
Damian from respondents' home and entering a permanent plan for
Damian of reunification with respondents with a concurrent plan of
termination of parental rights and adoption. We therefore address
the issues raised by respondent-mother's contentions only as they
relate to Damian.
By her first assignment of error, respondent-mother contends
the transcript of the 13 February 2002 review hearing, which was
derived solely from transcription of an audiotape of the hearing,
was of such poor quality as to materially compromise her
constitutional and due process rights to pursue her appeal.
Respondent-mother specifically argues the transcript was so
“riddled with misspelled words, incomplete sentences, and
unintelligible phrases” that meaningful appellate review was
impossible. We disagree.
First, we note that N.C. Gen. Stat. § 7B-806 requires only
that “[a]ll adjudicatory and dispositional hearings shall be
recorded by stenographic notes or by electronic or mechanical
means. . . . The court may order that other hearings be recorded.”
N.C. Gen. Stat. § 7B-806 (2003) (emphasis added). The 13 February2002 hearing was neither an adjudicatory nor dispositional hearing,
and there is no indication in the record that the trial court
ordered the hearing to be recorded. Thus, the hearing was recorded
by audiotape even though it was not required by law to be; had it
not been recorded, our review would have proceeded upon the record
and briefs alone. Because the transcript here merely supplemented
the record, we conclude that it could not and did not violate or
prejudice respondent-mother's right to pursue her appeal.
Moreover, after reviewing the portions of the transcript cited in
respondent-mother's brief as being “unintelligible,” we conclude
that these imperfections do not render the transcript so inaccurate
as to preclude meaningful review by this Court. In re Hartsock, __
N.C. App. __, __, 580 S.E.2d 395, 399 (2003). This assignment of
error is without merit.
By her second assignment of error, respondent-mother argues
that because Damian's court file contained no evidence that a
summons was issued or that either the original or amended juvenile
petitions alleging Damian to be neglected and dependent had been
served upon her, the trial court failed to obtain subject matter or
personal jurisdiction over her in the juvenile proceedings
regarding Damian. We do not agree.
Our Juvenile Code vests the district courts of North Carolina
with “exclusive, original jurisdiction over any case involving a
juvenile who is alleged to be abused, neglected, or dependent.”
N.C. Gen. Stat. § 7B-200(a) (2003). The court obtains jurisdiction
through the issuance and service of process. In re Mitchell, 126N.C. App. 432, 433, 485 S.E.2d 623, 624 (1997); see also N.C. Gen.
Stat. § 7B-401 (2003). Where no summons is issued the court
acquires jurisdiction over neither the parties to, nor the subject
matter of, the action. Id.
In the present case, DSS concedes that Damian's juvenile court
file at the Davie County Clerk of Superior Court's office does not
contain the original summons showing proof of service of the
juvenile petition upon respondent-mother. However, the record on
appeal does contain a summons issued 26 September 2000, the date
the original juvenile petition concerning Damian was filed, along
with an accompanying return of service indicating the summons and
juvenile petition concerning Damian were personally served upon
respondent-father on 27 September 2000. Our appellate courts have
previously held that in order to have a child declared dependent,
it is not necessary to serve the petition on both parents, but only
on one of them. In re Yow, 40 N.C. App. 688, 691, 253 S.E.2d 647,
649, disc. review denied, 297 N.C. 610, 257 S.E.2d 223 (1979); In
the Matter of Arends, 88 N.C. App. 550, 554-55, 364 S.E.2d 169, 172
(1988) (holding the court acquired jurisdiction over the subject
matter, determination of neglect and dependency, when the summons
was served only upon the mother and not the father). Because the
record indicates respondent-father was served with the summons and
juvenile petition alleging that Damian was neglected and dependent,
we hold that the trial court here properly obtained subject matter
jurisdiction. We further conclude that the trial court obtained
personal jurisdiction over respondent-mother when she appeared incourt on 3 January 2001 at the adjudication hearing.
(See footnote 1)
In re Poole,
357 N.C. 151, 579 S.E.2d 248 (2003) (per curiam).
Although we conclude that the trial court here obtained
jurisdiction over the subject matter as well as personal
jurisdiction over respondent-mother, we have previously held that
“the giving of notice in cases involving child custody is subject
to due process requirements.” Yow, 40 N.C. App. at 692, 253 S.E.2d
at 650. To determine whether the apparent failure to serve
respondent-mother with the juvenile petition alleging Damian to be
neglected and dependent unreasonably deprived respondent-mother of
her due process rights, we must balance respondent-mother's right
to custody of her child with the State's interest in the welfare of
children, as well as Damian's right to be protected by the State
from abuse or neglect. Arends, 88 N.C. App. at 555, 364 S.E.2d at
172. Following the adjudication hearing, the trial court found by
clear, cogent, and convincing evidence that Damian and his four
half-siblings had been subjected to inappropriate discipline and
extensive corporal punishment by respondents, and that the
juveniles had special needs, including Damian's hyperactivity, for
which respondents had failed to procure physician-recommended
medication and therapy. The trial court also found that
respondent-mother told the DSS social worker that she couldn'tstand Alescia and was afraid she would get upset and kill Alescia.
The trial court adjudicated Damian and his four half-siblings
neglected, and at the subsequent dispositional hearing ordered
legal custody of all five juveniles continued in DSS, with DSS also
receiving physical custody and placement authority of Alescia and
Damian, although DSS thereafter allowed Damian to remain in
respondents' home with Ashley, C.J., and Amanda, while Alescia
remained in foster care. The custody determinations with regards
to Damian and his four half-siblings were regularly reviewed by the
trial court pursuant to N.C. Gen. Stat. § 7B-906 (2003), with
Damian remaining in respondents' home at all times, except while
hospitalized at Amos Cottage from April 2001 through June 2001,
until the 27 February 2002 order giving rise to this appeal.
Balancing the interest of the State in Damian's welfare with
that of the respondent-mother's right that she not be arbitrarily
deprived of custody of her child, and considering Damian's right of
protection from neglect, in conjunction with the potential for
Damian's legal and physical custody to be returned to respondent-
mother after appropriate review by the trial court, we conclude
that respondent-mother's due process rights were adequately
protected. See Arends, 88 N.C. App. at 555-56, 364 S.E.2d at 172;
Yow, 40 N.C. App. at 692, 253 S.E.2d at 650. This assignment of
error is overruled.
By her final assignment of error, respondent-mother contends
the trial court lacked jurisdiction over Damian and respondent-
mother because the amended petition alleging Damian to be aneglected and dependent juvenile was executed by the attorney for
DSS and was not verified. We disagree.
Section 7B-403 of our General Statutes states that a petition
alleging a juvenile to be abused, neglected, or dependent “shall be
drawn by the director [of DSS], verified before an official
authorized to administer oaths, and filed by the clerk, recording
the date of filing.” N.C. Gen. Stat. § 7B-403(a) (2003). In the
alternative, the chief district court judge may authorize a
magistrate to draw, verify, and issue a juvenile petition in
“emergency situations when a petition is required in order to
obtain a nonsecure custody order . . . .” N.C. Gen. Stat. § 7B-
404(b) (2003). An action to adjudicate a juvenile as abused,
neglected, or dependent “is commenced by the filing of a petition
in the clerk's office when that office is open or by the issuance
of a juvenile petition by a magistrate when the clerk's office is
closed . . . .” N.C. Gen. Stat. § 7B-405 (2003). The trial court
may allow amendment of a juvenile petition “when the amendment does
not change the nature of the conditions upon which the petition is
based.” N.C. Gen. Stat. § 7B-800 (2003).
In the present case, a juvenile petition alleging Damian to be
neglected and dependent, verified by DSS social worker Gail
McCuiston, was filed on 26 September 2000. The petition's
allegations of neglect were based on respondent-mother's statements
to a social worker that she despised Damian's half-sister Alescia,
could not stand to look at her, and feared that she would kill
Alescia. We conclude that the filing of this petition commencedthe proceeding in which Damian was adjudicated to be neglected and
ultimately ordered removed from respondents' home. See In re
Mitchell, 126 N.C. App. at 433, 485 S.E.2d at 624 (1997) (“A
juvenile action, including a proceeding in which a juvenile is
alleged to be abused or neglected, is commenced by the filing of a
petition.”) The amended petition, which was filed on 6 October
2000, merely contained some additional factual averments supporting
the original petition's allegations of neglect and dependency; it
neither added any additional charges, such as abuse or delinquency,
to those set forth in the original petition, nor changed the nature
of the allegations previously set forth therein. Significantly,
our review of the record indicates that respondents had notice of,
and were given ample opportunity to address, the various factual
averments contained in both the original and amended petitions
supporting the allegations of neglect and dependency of Damian.
Accordingly, we hold that on these facts, execution of an amended
juvenile petition by the attorney for DSS and filing of same
without verification did not constitute reversible error.
Respondent-mother's third and final assignment of error is
overruled.
Respondent-Father's Appeal
By his first assignment of error, respondent-father contends
the trial court's 27 February 2002 order removing Damian, the only
one of the five juveniles of whom respondent-father was the
biological father, from respondents' home and placing him in foster
care violated the purposes and policies of the Juvenile Code byconstituting an “unnecessary and inappropriate separation of
[Damian] from [his] parents.” We disagree.
Our legislature has enumerated the purposes and policies of
the Juvenile Code in pertinent part as follows:
(1) To provide procedures for the hearing of juvenile
cases that assure fairness and equity and that protect
the constitutional rights of juveniles and parents;
(2) To develop a disposition in each juvenile case that
reflects consideration of the facts, the needs and
limitations of the juvenile, and the strengths and
weaknesses of the family.
(3) To provide for services for the protection of
juveniles by means that respect both the right to family
autonomy and the juveniles' needs for safety, continuity,
and permanence; and
(4) To provide standards for the removal, when necessary,
of juveniles from their homes and for the return of
juveniles to their homes consistent with preventing the
unnecessary or inappropriate separation of juveniles from
their parents.
. . .
N.C. Gen. Stat. § 7B-100 (2003). We are mindful that family
relationships are to be afforded constitutional protection. In re
Eckard, 148 N.C. App. 541, 547, 559 S.E.2d 233, 236, disc. review
denied, 356 N.C. 163, 568 S.E.2d 192-93 (2002). However, after a
careful review of the record, we conclude that the 27 February 2002
order removing Damian from respondents' home, placing him in foster
care, and establishing a permanent care plan of reunification with
respondents with a concurrent plan of termination of parental
rights and adoption did not violate the Juvenile Code's purposes
and policies. Our review of the record indicates intensive involvement by
DSS with this family over the four-year period prior to February
2002. During this time, DSS provided many services to respondents
and the five juveniles, including medical and psychological
evaluation and treatment, assessment and treatment of the
juveniles' various special needs, parenting and anger management
classes, and foster care. Nevertheless, by the time of the 13
February 2002 review hearing, only Damian was still residing in
respondents' home, the other four juveniles having previously been
placed in the physical custody of third parties either by court
order, at the request of respondents, or at the request of the
juvenile. In its 27 February 2002 order, the trial court found the
record showed numerous instances of respondents' noncompliance with
court orders and the Family Services Case Plan. The trial court
also found that respondents had inflicted psychological and
physical harm upon Damian and the other juveniles, for which
respondents continued to deny responsibility. The trial court then
concluded that Damian's best interests would be served by his
immediate removal from respondents' home and placement in foster
care.
We note that the evidence presented at the 13 February 2002
review hearing supported the trial court's findings, which are
therefore binding on appeal. In re Weiler, __ N.C. App. __, __,
581 S.E.2d 134, 137 (2003) (trial court's findings are binding on
appeal if supported by competent evidence). At every review
hearing, the trial court is required to consider information from,in addition to the parent and juvenile, “the custodian or agency
with custody, the guardian ad litem, and any other person or agency
which will aid in its review.” See N.C. Gen. Stat. § 7B-906(c)
(2003). Following the 21 February 2001 disposition hearing and
each subsequent review hearing, respondent-mother was ordered to
follow through with therapy based on the results of her
psychological evaluation, which found her to be suffering from
severe depression and post-traumatic stress disorder. However, the
DSS summary prepared for the 13 February 2002 review hearing states
that respondent-mother attended only eight counseling sessions in
the past year and failed to provide any documentation regarding her
counseling or medical treatment, and that she is physically unwell
and suffers from incidents of crying, anger, erratic behavior, and
severe physical shaking. The DSS summary also states respondents
failed to bring Damian to therapy, as had been recommended by DSS,
and that respondents are resistant to Damian receiving medication
or therapy, despite Damian's ADHD diagnosis and substantial
evidence of behavioral problems. There is also evidence that
respondent-father repeatedly violated the trial court's orders by
failing to communicate with DSS, by moving Damian to a new school
in the fall of 2001 without notifying DSS, by refusing to enter
into a new Family Services Case Plan after January 2001, and by
having “all but isolated himself, Damian, and [respondent-mother].”
Moreover, respondent-mother testified at the 13 February 2002
review hearing that the juveniles were not telling the truth about
the discipline measures employed by respondents or the conditionsin their home, and that respondent-father had never used
inappropriate corporal punishment with the juveniles. Similarly,
respondent-father testified at the hearing that he never punished
the juveniles out of anger and never forced them to eat spoiled
food as punishment, contrary to the juveniles' assertions contained
in the DSS summary that respondents, particularly respondent-
father, regularly yelled and cursed at juveniles, inflicted
excessive corporal punishment, and alternately withheld food or
forced the juveniles to eat large quantities of food as punishment.
We conclude that the trial court's findings of fact, which
were supported by competent evidence, in turn support its
conclusion that Damian's best interests would be served by his
immediate placement in foster care. We hold that removal of Damian
from respondents' home, with a permanent care plan of reunification
with respondents along with a concurrent plan of termination of
parental rights and adoption, did not constitute an “unnecessary
and inappropriate separation” of Damian from respondents, and
therefore did not violate the purposes and policies of the Juvenile
Code. This assignment of error is without merit.
By his second and final assignment of error, respondent-father
argues the trial court erred by determining that it would be in
Damian's best interest to be removed from respondents' home and
placed in foster care. Our Supreme Court has stated that “the
fundamental principle underlying North Carolina's approach to
controversies involving child neglect and custody . . . [is] that
the best interest of the child is the polar star.” In reMontgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984).
Moreover, a different panel of this Court has previously “noted
that a substantive difference exists between the quantum of proof
of neglect and dependency necessary for purposes of termination and
for purposes of removal,” and that DSS may obtain temporary custody
of a juvenile when there is a risk of future neglect. In re
Krauss, 102 N.C. App. 112, 116, 401 S.E.2d 123, 125-26 (1991).
Following a review hearing, the trial court “after making findings
of fact, may . . . make any disposition authorized by G.S. 7B-903
. . . . The court may enter an order continuing the placement under
review or providing for a different placement as is deemed to be in
the best interests of the juvenile.” See N.C. Gen. Stat. § 7B-
906(d) (2003). Based on our thorough review of the record, as
discussed above, we conclude that the trial court did not err by
determining that removal from respondents' home and placement in
foster care, with a permanent care plan of reunification with
respondents along with a concurrent plan of termination of parental
rights and adoption, was in Damian's best interests.
Affirmed.
Judges TIMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).
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