In re M., 163 NC App 610 (03-741) 04/06/2004

Appeal by respondent-father from judgment entered 31 October 2002 by Judge Shirley Brown in Buncombe County District Court. Heard in the Court of Appeals 3 March 2004.

    Buncombe County Department of Social Services, by Kavita Uppal, for petitioner-appellee.

    Michael E. Casterline, for respondent-appellant father.

    Michael N. Tousey, for the Guardian ad Litem.

    MARTIN, Chief Judge.

    Respondent-father is the father of C.M., born 29 November 1987, J.L.M., born 8 January 1996, and J.L.M., Jr., born 7 March 1997. He is the step-father of K.W., born 26 September 1984, and the step-grandfather of L.W., born to K.W. on 2 August 2001. On 27 November 2001, the Buncombe County Department of Social Services (“DSS”) filed five juvenile petitions alleging neglect by respondent-parents of all the minor children and sexual abuse of J.L.M. and C.M. by respondent-father. Orders were entered on thesame date granting non-secure custody of all the minor children to DSS.
    An adjudicatory hearing was conducted on 18 February 2002 before Judge Peter Roda, in which the parties stipulated to various facts, including an incident where respondent-father had demanded to be in the room during his step-daughter K.W.'s pelvic exam; a report of recent sexual trauma or penetrating injury to respondents' 13-year-old daughter C.M. shortly after she was alleged to have been alone with her father; and an allegation by respondents' 5-year-old daughter J.L.M. that “her daddy touched her private parts when she was asleep at night, and it woke her up.” However, as part of the stipulation agreement, DSS agreed to withdraw, without prejudice, the allegations of respondent-father's sexual abuse of J.L.M. and C.M.
    The parties further stipulated, and the trial court adjudicated, that the minor children, C.M., J.L.M., J.L.M. Jr., and K.W., were neglected and that the minor child, L.W., was dependent. The court ordered that custody of the minor children would remain with DSS, that respondent-father would have supervised visitation with J.L.M. and J.L.M., Jr., and with C.M. only at her request, and that respondent-father “complete a psychological evaluation and follow the recommendations.” The court declined to order a sexual offender specific evaluation for respondent-father.
    A permanency planning review hearing was held on 11 April 2002 before Judge Rebecca Knight, where the trial court found, inter alia, that DSS had concerns about J.L.M. being sexually abused “asshe has engaged in some sexual acting out behavior.” The trial court ordered that DSS make reasonable efforts to reunify the minor children with respondents, and that respondents complete a psychological evaluation and comply with all treatment recommendations.
    A psychological evaluation was completed on 14 June 2002 and the results were presented at a permanency planning review hearing held on 14 August 2002 before Judge Shirley Brown. At that hearing, the trial court entered an order which continued custody of the children with DSS and included a requirement that respondent-father follow the recommendations of his psychological evaluation. Respondent-father's psychological evaluation had recommended that he undergo a sexual offender specific evaluation. Respondent-father appeals from this order.
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    The sole question presented in this appeal is whether the trial court exceeded its authority when it ordered respondent- father to follow the recommendations of his psychological evaluation, including the completion of a sexual offender specific evaluation. For the reasons set forth below, we affirm the trial court's order.
    Respondent-father first argues the trial court exceeded the authority provided by N.C. Gen. Stat. § 7B-904(c) (2003). G.S. § 7B-904(c) provides, in pertinent part:
        At the dispositional hearing or a subsequent hearing the court may determine whether the best interests of the juvenile require that the parent . . . entrusted with the juvenile'scare undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication . . . .

Id. G.S. § 7B-904 “is the trial court's only source of authority over the parent of a juvenile adjudicated abused or neglected, and the trial court may not order a parent to undergo any course of conduct not provided for in the statute.” In re Cogdill, 137 N.C. App. 504, 508, 528 S.E.2d 600, 603 (2000).
    Because there was no adjudication of sexual abuse in this case, respondent-father argues the trial court has no authority under G.S. § 7B-904(c) to order him to undergo a sexual offender specific evaluation. We disagree.
    G.S. § 7B-904(c) requires that court ordered treatment or counseling (1) be in the best interests of the juvenile; and (2) that the treatment or counseling be “directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication . . . .” N.C. Gen. Stat. § 7B- 904(c)(2003). In adjudicating the children to be neglected by the respondents, Judge Roda made findings of fact, stipulated to by the parties, which included findings indicating respondent-father's possible sexual abuse of his daughters. Upon conclusion of the review hearing conducted by Judge Brown, additional findings were made indicating that issues of sexual and physical abuse had surfaced during counseling sessions with J.L.M. and the other children. Respondent-father has not assigned error to these findings. After a careful review of the record, we hold that thetrial court's findings support its order for evaluation and treatment as being in the best interests of the juveniles and “directed toward remediating or remedying behaviors or conditions that led to or contributed to the juvenile's adjudication . . . .” Id.
    Moreover, an adjudication of neglect “does not necessarily require a finding of nonfeasance by a parent; malfeasance just as readily qualifies as improper care or discipline.” In re Thompson, 64 N.C. App. 95, 100, 306 S.E.2d 792, 795 (1983). Thus, we reject respondent's argument that the trial court exceeded its authority under G.S. § 7B-904(c) when it ordered respondent to comply with the recommendations of his psychological evaluation, including the completion of a sexual offender specific evaluation, even though there was no adjudication of sexual abuse in this case.
    Finally, respondent argues that Judge Brown exceeded her authority by “reversing” Judge Roda's initial disposition order which stated, “the Court will not order a Sexual Offender Specific Evaluation of [respondent-father].” We find no merit in this contention.
    Pursuant to G.S. § 7B-904(c), “psychiatric, psychological, or other treatment or counseling” may be ordered at any time, not just at the dispositional hearing. N.C. Gen. Stat. § 7B-904(c) (2003). While the trial court declined to order a sexual offender specific evaluation at the dispositional hearing in this case, it did order respondent to “complete a psychological evaluation and follow the recommendations.” Once the psychological evaluation was completed,the trial court, at a subsequent review hearing, ordered the respondent to comply with its recommendations, which included the completion of a sexual offender specific evaluation. This order in no way reversed the trial court's initial order at the dispositional hearing, nor did it exceed the trial court's authority. See N.C. Gen. Stat. § 7B-1000 (2003)(trial court has authority to change or modify a dispositional order as needed in order to accommodate the best interests of the juvenile). Accordingly, we overrule the respondent's assignment of error.
    Affirmed.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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