IN THE MATTER OF
M.C.
C.P. Cumberland County
J.P. No. 02 J 264
R.C. 02 J 265
02 J 266
02 J 267
David L. Kennedy for petitioner Department of Social Services.
Rebekah W. Davis for respondent-mother.
Peter Wood for respondent-father R. Collins.
Nelson Mullins Riley & Scarborough, L.L.P., by Wallace C.
Hollowell, III for the Guardian ad Litem.
Holly Stevens for Guardian ad Litem for respondent-mother.
Carmen Battle for Guardian ad Litem.
Robin Hurmence for respondent-father W. Penick.
ELMORE, Judge.
Respondent parents appeal the order granting custody of C.P.
and J.P. to their father W. Penick, and placing R.C. and M.C. in
the custody of The Department of Social Services of Cumberland
County (DSS) for placement with suitable relatives or other court
approved caretaker. Parental rights have not been terminated for
either appellant parent. Respondent father and mother (Mr. and Mrs. Collins) are
currently married. At the time of the hearing, Mrs. Collins was
pregnant with her eighth child. Three children were born to Mrs.
Collins during a prior marriage, and are in the custody of their
father. The children who are the subject of this appeal are the
following four: R.C., a girl, was born to Mr. and Mrs. Collins
while Mrs. Collins was married to T. Hartzel. The trial court
ordered custody of R.C. to DSS. C.P. and J.P., a twin girl and boy
respectively, were born during Mrs. Collins' marriage to W. Penick.
The trial court awarded custody of the twins to their father, W.
Penick and his wife. M.C., a girl, was born during Mrs. Collins'
marriage to Mr. Collins. The trial court ordered custody of M.C.
to DSS.
The trial court made the following adjudicatory findings:
4 4.
That the following findings are made upon
clear, cogent and convincing evidence of
record or adduced at trial.
...
9 9.
That the minor children [M.C.] and [R.C ]
[C.P.] and [J.P.] and [P.H., S.H. and
K.H. were living with the respondents
[Mr. and Mrs.] Collins and were in their
care, custody and control, at the time of
the filing of the petition.
10 10.
That the respondents [Mr. and Mrs.
Collins] engaged in acts of domestic
violence in the presence of the minor
children.
11 11.
That the domestic violence consisted of
the respondents yelling at each other,
pushing and shoving each other,
communicating threats to each other and
physical fighting and punching.
12 12.
That the acts of domestic violence
occurred on a regular and frequent basis.
13 13.
That on two or more occasions the minor
children witnessed the respondent [Mr.]
Collins chasing the respondent [Mrs.]Collins around the house in an effort to
assault her.
14 14.
That on at least one occasion the
respondent [Mrs.] Collins tried to jump
out of a moving vehicle while in the
presence of the minor children.
...
17 17.
That during September, 2001, the
respondent [Mr.] Collins spanked the
minor child [J.P.] with a wooden paddle
and caused bruising to the buttocks of
the minor child.
18 18.
That the respondent [Mrs.] Collins
witnessed the spanking and observed the
bruises on the minor child.
19 19.
That the respondents [Mr. and Mrs.]
Collins kept the minor child [J.P.] home
from his school at Headstart for five (5)
days to allow the bruising to heal and to
prohibit the staff at Headstart from
discovering the bruising.
20 20.
That the minor child [R.C.] would
sometimes squirm or otherwise move about
while the respondents [Mr. or Mrs.]
Collins were spanking her.
21 21.
That on one occasion the respondents [Mr.
and Mrs.] Collins tied the minor child
[R.C.] to the bed and proceeded to spank
her.
22 22.
That on at least one occasion the minor
child [M.C.] was being held by the
respondent [Mrs.] Collins when the
respondent [Mr.] Collins assaulted Mrs.
Collins.
All four children were adjudicated abused and neglected based
on the parents allowing them to at least be exposed to risk of
harm. Further findings are recorded in the disposition order:
3. That the respondent [Mrs.] Collins suffers
from seizures and has taken medications
including Zoloft and Topomax. She is
currently taking the Topomax and has not taken
any Zoloft since February 2002.
...
5. That the respondent [Mr.] Collins has a
highly volatile and explosive temper.
6. That at various and sundry times he has
exhibited angry and otherwise violent behaviortowards the minor children and the respondent
mother, [Mrs.] Collins.
7. That the relationship between [Mrs.] and
[Mr.] Collins is highly volatile and
explosive, and has been marked by a
significant amount of domestic violence.
8. That the environment created by the
respondents ... was a hostile one for the
children to live in.
...
11. That the respondents ... have failed to
make any progress toward alleviating the
conditions which led to the removal of the
minor children.
12. That the respondent [Mrs.] Collins is in
her third marriage and each of the marriages
have been marked by concerns of domestic
violence and child abuse or neglect.
...
21. That the respondent [Mrs.] Collins has
exhibited periods of depression in the
presence of her minor children wherein she
spoke of committing suicide, and on one
occasion, went so far as to write suicide
notes to each of her minor children.
22. That the respondent [Mrs.] Collins has
exhibited a pattern of deceptive behavior in
her relationships with others including but
not limited to, her spouses, her children, the
pastor and members of her church and others
that she comes into contact with.
...
31. That the respondent [Mr.] Collins
downloaded pornographic material onto the
computer used by the children.
...
34. That there is a strong likelihood that
the children have been exposed to pornography
while residing with the respondents....
...
40. That each of the children is doing well
[in their placements: the twins with Mr.
Penick, R.C. with Mr. Hartzel and his family,
and M.C. in foster care] and they are in a
safe and nurturing environment.
...
42. That the respondent [Mrs.] Collins is not
a fit or proper person to have care, custody
or control of the minor children.
43. That the respondent [Mr.] Collins is not
a fit or proper person to have care, custody
or control of the minor children. ...
50. That the respondent [Mr.] Collins has not
paid any child support during the pendency of
this action.
IN THE MATTER OF
M.C. Cumberland County
C.P. No. 02 J 264
J.P. 02 J 265
R.P. 02 J 266
02 J 267 &
nbsp;
TIMMONS-GOODSON, Judge, concurring in the result.
Although I agree with the majority's conclusion that the trial
court did not err, I write separately to distinguish my reasoning
in reaching this conclusion, and to address the additional
arguments made by respondents on appeal.
Mrs. Collins first argues that the trial court erred by
continuing the proceedings over a nine month period. As the
majority correctly states, N.C. Gen. Stat. § 7B-803 (2003)
authorizes the trial court to continue a juvenile hearing “for as
long as is reasonably required” to ensure that sufficient evidence
is received and the “best interests of the juvenile” are
effectuated. In the instant case, I note that Mrs. Collins made no
effort to object to the trial court's continuance of the hearing.
Instead, she requested a continuance in the case herself on 24 July
2002, and later joined in Mr. Collins' 27 January 2003 motion to
continue the trial. Thus, because I question whether this issue
was properly preserved for appeal, and because the record does not
indicate that any “delay” in the proceedings resulted in prejudice
to Mrs. Collins, I agree with the majority that the trial court didnot err in continuing the non-secure custody proceedings. However,
I believe a separate analysis should be applied to Mr. Collins'
first argument.
Mr. Collins argues that the trial court erred in denying his
27 January 2003 motion to continue the adjudication hearing. At
the beginning of the adjudication hearing, Mr. Collins' counsel
moved the court to continue the hearing because Mr. Collins was not
present in court. The trial court denied the motion and the
adjudication hearing commenced.
Where a party's motion to continue does not concern the
availability of evidence or discovery, N.C. Gen. Stat. § 7B-803
requires that “continuances shall be granted only in extraordinary
circumstances when necessary for the proper administration of
justice or in the best interests of the juvenile.” (emphasis
added). Thus, “'[c]ontinuances are not favored and the party
seeking a continuance has the burden of showing sufficient grounds
for it. The chief consideration is whether granting or denying a
continuance will further substantial justice.'” In re Humphrey,
156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (quoting Doby v.
Lowder, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984) (citations
omitted)).
In the instant case, nothing in the record indicates that the
trial court requested or needed additional information to ensure
the children's best interests were protected. Furthermore, nothing
in the record indicates that the parties needed more time for
expeditious discovery in the case. Instead, Mr. Collins' counselmoved the trial court to continue the hearing because Mr. Collins
was “not able to get down here because his truck that he would use
is not operational.” I note that Mr. Collins was aware of the date
of the adjudication hearing and had been absent at previous non-
secure custody hearings. Because I am not convinced Mr. Collins'
inability to obtain proper transportation to the adjudication
hearing is an “extraordinary circumstance” that warrants a
continuance, I agree with the majority's conclusion that the trial
court did not err in denying Mr. Collins' motion to continue the
adjudication hearing.
I also agree with the majority's conclusion that the trial
court did not err in its disposition order by finding (i) that Mrs.
Collins is unfit to have care, custody, or control of the minor
children, and (ii) that Mr. Penick is fit to have care, custody,
and control of J.P. and C.P.
Evidence presented during the proceedings tended to show that
Mrs. Collins had a history of making false representations to
others in order to obtain money from them, and that she “continues
to exhibit such behavior in the presence of and with the knowledge
of her minor children,” who, according to evidence presented at
trial, are “embarrassed by the actions” of their mother. Evidence
also tended to show that Mrs. Collins had previously considered and
spoke of committing suicide, that she had written suicide notes to
each of her minor children, and that she had jumped out of a moving
vehicle in the presence of her children. Evidence tended to show
that while the children were in Mrs. Collins' care, the childrenwere exposed to pornography and one child was evaluated for alleged
sexual abuse. Evidence also tended to show that Mr. and Mrs.
Collins engaged in multiple acts of domestic violence in the
presence of the minor children, including yelling, pushing and
shoving, and physical fighting and punching. On at least one
occasion, Mrs. Collins was holding M.C. while being assaulted by
Mr. Collins. Finally, evidence was presented that tended to show
that Mrs. Collins imposed and witnessed several acts of corporal
punishment on each of her minor children, including spanking and
paddling with a wooden paddle. On one occasion, Mrs. Collins
witnessed Mr. Collins spank J.C. with a wooden paddle that caused
bruising on the child's buttocks. Mrs. Collins subsequently kept
J.C. home from school for at least five days to allow the bruising
to heal and to prohibit school staff from discovering the bruising.
On a second occasion, Mrs. Collins and Mr. Collins tied R.C. to a
bed and spanked her with a paddle. After Mr. Collins broke the
paddle on R.C.'s hip, R.C. was told, “Go to your room, you stupid
bitch.” Although Mrs. Collins enrolled in domestic violence and
parenting classes, evidence presented at trial tended to show that
Mrs. Collins “failed to demonstrate that she has obtained any
benefit from the courses or the training received.” I conclude
that the foregoing evidence sufficiently supports the trial court's
finding that Mrs. Collins is unfit to have care, custody, and
control of her minor children.
I also conclude that the evidence sufficiently supports the
trial court's finding that Mr. Penick “is a fit and proper personto have care, custody and control” of J.P. and C.P. Evidence
presented during the proceedings established that Mr. Penick was
the biological father of J.P. and C.P. The two children were
placed in Mr. Penick's custody during the proceedings, and the
evidence tended to show that J.P. and C.P. were “doing very well in
that placement.” Although Mrs. Collins asserted that Mr. Penick
had sexually abused the children, subsequent medical tests
established that Mrs. Collins' assertion was without merit.
Despite Mrs. Collins' continued insistence to the contrary, there
was no physical evidence to support her assertion, and the trial
court properly disregarded it.
Mrs. Collins also objects to the trial court's finding “[t]hat
[the] disposition order will be filed in [a pending custody action
between Mr. Penick and Mrs. Collins] and will be the Order of the
Court in that case.” However, I note that the appeal in the
instant case involves only the trial court's determination of the
juvenile proceedings involving Mr. and Mrs. Collins, specifically
case file numbers 02 J 264, 02 J 265, 02 J 266, and 02 J 267.
Assuming arguendo that the trial court erred in including a
reference to the civil custody action in its disposition order, I
am not convinced that a different result would have occurred in the
instant case had the trial court excluded the finding from its
order. Thus, I conclude that any such error was harmless.
Therefore, without deciding whether it was proper for the trial
court to file the disposition order in the instant case as the
final order in a separate case, I agree with the majority'sconclusion that the trial court did not err in making the findings
of fact contained within its disposition order.
Mrs. Collins also argues in her brief that the trial court
erred in concluding that Mrs. Collins' visitation of J.P. and C.P.
“shall be supervised by either the Cumberland County Department of
Social Services, the respondent [Mr. Penick] or [Mrs. Penick].” I
recognize that this Court has previously held that the trial court
“should not assign the granting of [the] privilege of visitation to
the discretion of the party awarded custody of the child,” but
instead “should safeguard the parent's visitation rights by a
provision in the order defining and establishing the time, place
and conditions under which such visitation rights may be
exercised.” In re Custody of Stancil, 10 N.C. App. 545, 551-52,
179 S.E.2d 844, 849 (1971). However, in the instant case, the
trial court's order does not leave the time, place, or conditions
of visitation solely in Mr. and Mrs. Penick's discretion. Instead,
the order merely requires that Mrs. Collins' visitation be
supervised by officials from the Cumberland County Department of
Social Services or Mr. and Mrs. Penick. There is no indication in
the order nor the record that Mrs. Collins is prevented from filing
a motion in the cause requesting specific details and conditions of
visitation. Therefore, I conclude that the trial court did not err
in ordering supervision of Mrs. Collins' visits with J.P. and C.P.
Finally, I agree with the majority's conclusion that the trial
court did not err in finding that the minor children had been both
abused and neglected by Mr. and Mrs. Collins. The proceedings werereplete with testimony and evidence tending to show that Mr. and
Mrs. Collins created a substantial risk of serious physical injury
to the minor children. As discussed above, the evidence presented
during the proceedings tended to show that Mr. and Mrs. Collins
continuously engaged in various types of domestic violence in front
of their children, including verbal and physical fighting. The
evidence also tended to show that on at least one occasion, Mr.
Collins hit Mrs. Collins while the latter was holding M.C., and
that “the minor children were often afraid and scared while they
witnessed the acts of domestic violence.”
The evidence also tended to show that Mr. and Mrs. Collins'
methods of punishing their children created a substantial risk of
serious injury to the children as well as an environment injurious
to the children's welfare. J.P.'s brother, P.P., testified during
the proceedings that J.P. was spanked “every other day for
something” by Mr. and Mrs. Collins, who would employ a “hand, belt,
fly swatter, or paddle” to discipline the child. Evidence
presented at the hearings also tended to show that Mr. and Mrs.
Collins tied their children to a bed and spanked the children with
a wooden paddle, which on at least one occasion left substantial
bruises on the legs, buttocks, and back of M.C. K.C. testified
that Mr. Collins spanked M.C. when she was four or five months old
“because she was crying too much.” I conclude that the evidence in
the instant case is sufficient to support a determination that Mr.
and Mrs. Collins' method of discipline and parenting “falls below
the normative standards imposed upon parents by our society and is[thus] considered neglectful.” In re Thompson, 64 N.C. App. 95,
99, 306 S.E.2d 792, 794 (1983). Therefore, I agree with the
majority's conclusion that the trial court did not err in finding
that Mr. and Mrs. Collins had neglected and abused their children.
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