IN THE MATTER OF MLJ Alamance County &nbs
p;
No. 02 J 38
Jamie L. Hamlett, for Alamance County Department of Social
Services, petitioner-appellee.
Peter Wood for respondent-appellant.
THORNBURG, Judge.
TJ (“respondent”) appeals from an order of the trial court
adjudicating his minor daughter (“the juvenile”) neglected and
dependent. For the reasons stated herein, we affirm the order of
adjudication.
The facts relevant to this appeal are as follows: The juvenile
was born 15 March 1997. Respondent is her father. On 5 March
2002, the Alamance County Department of Social Services (“DSS”)
filed a petition alleging the juvenile to be neglected and
dependent, on the grounds that the juvenile was living in an
environment injurious to the juvenile's welfare and that respondent
was unable to provide for the juvenile's care or supervision and
lacked an appropriate alternative child care arrangement.
The adjudication hearing was held before the trial court on 14
August 2002. A review of the transcript indicates the following:All parties through counsel consented to the amended allegations in
the juvenile petition. The specific question assented to was, “Is
it accurate in this case that, that all the parties are in
agreement and consent to the amended allegation in this case[?]”
The trial judge further attempted to clarify that the parties
consented to the allegations and the admissions, rather than the
adjudication or the disposition by asking, “Do we have a consent
agreement with this or just consent as to . . . the disposition or
do we just consent as to the allegations and the admissions?” The
transcript does not indicate that respondent's attorney responded
to this query. The attorneys for the guardian ad litem, DSS, and
the juvenile's mother indicated that they had not discussed the
adjudication or disposition.
At that point the trial judge said the following:
Okay. So we just got past the first hurdle in
the petition alleged. The Court finds that all
parties are present, that, and represented by
counsel. The parents are present represented
by counsel. Ms. Bass representing the
Department of Social Services. Mr. Collins
representing the Guardian Ad Litem program.
That by consent, the allegations of the
petition were amended, which has now been
filed of record. And thereon, the Court finds
[the juvenile] is a neglected and dependent
juvenile as alleged in the petition.
After that statement, the trial judge asked for arguments
concerning the disposition. DSS recommended that guardianship be
granted to the juvenile's grandparents. Respondent's counsel
argued that it was too soon to permanently interfere with the
parent-child relationship and requested that the court not take
action until another pending matter was resolved. The guardian adlitem and the juvenile's mother also opposed the grant of
custodianship. A consent juvenile adjudication and disposition
order concluding that the juvenile was a neglected and dependent
juvenile and ordering that the custody of the juvenile be vested in
Alamance County DSS was entered as a result of this proceeding.
Respondent appeals.
Respondent argues on appeal that the trial court erred in
entering the adjudication order finding the juvenile neglected and
dependent. Specifically, respondent contends that there was
insufficient proof that respondent consented to the trial court's
findings and that no evidence was presented to support the trial
court's order. We affirm the order of adjudication.
There is a presumption in North Carolina that an attorney has
the authority to act for the client she professes to represent.
Greenhill v. Crabtree, 45 N.C. App. 49, 51, 262 S.E.2d 315, 316
(1980), aff'd per curiam by an equally divided court, 301 N.C. 520,
271 S.E.2d 908 (1980). This presumption extends to actions
regarding both technical and procedural aspects of a case as well
as the client's substantive rights. Id. On appeal respondent does
not argue that his attorney's consent to the amended allegations
was unauthorized or invalid. Thus, as an initial finding we hold
that respondent's attorney's consent was effectively the consent of
her client, respondent.
Respondent's further argument that his attorney only consented
to the petition being amended, rather than to the amended
allegations, is not supported by the record. Respondent's attorneywas asked if it was accurate that respondent consented to the
amended allegations. The attorney responded, “Yes, Your Honor.”
Further, when the trial judge stated that based on the petition he
adjudicated the juvenile neglected and dependent, respondent's
attorney made no objection. Nor did respondent or any party object
to the trial court's moving to the disposition phase of the
hearing.
Thus, it is clear from the record that respondent, as well as
the other parties, consented to the following allegations in the
juvenile petition:
1. That the Alamance County Department of
Social Services has substantiated neglect of
this child by both parents on more than one
occasion.
2. That [respondent] father of [the juvenile]
has failed to comply with case management
services. The case manager has been unable to
make home visits and assess the child's safety
since August 2001 due to [respondent] staying
at different places with the child and not
maintaining contact with the Department of
Social Services.
3. That on February 25, 2002 [the juvenile]
received an injury to her head, resulting in a
gash to the forehead.
4. That no medical treatment was sought for
the injury prior to the Department of Social
Services taking custody on March 5, 2002.
5. That upon examination by Dr. Pringle, it
was determined by him that the injury should
have been treated and received stitches on
February 25, 2002.
6. That the father is currently incarcerated.
7. That the mother is unable to take care of
the child at this time.
That all parties consent that these
allegations are sufficient to support a
finding of neglect and dependency.
That all parties agree that the Juvenile is in
fact a neglected and dependent juvenile.
The dispositive issue is whether the trial court erred by
finding the juvenile neglected and dependent based on the parties'
consent to these allegations. The North Carolina juvenile code
provides for consent orders and judgments on the juvenile petition
in certain circumstances.
Nothing in this Article precludes the court
from entering a consent order or judgment on
a petition for abuse, neglect, or dependency
when all parties are present, the juvenile is
represented by counsel, and all other parties
are either represented by counsel or have
waived counsel, and sufficient findings of
fact are made by the court.
N.C. Gen. Stat. . 7B-902 (2003). North Carolina courts have had
few opportunities to interpret this relatively new statute or its
predecessor, N.C. Gen. Stat. . 7A-641, repealed effective 1 July
1999. We have held that consent judgments are appropriate only in
limited instances and that all parties must be present in order for
the consent judgment to be entered. In re Thrift v. Buncombe County
DSS, 137 N.C. App. 559, 563, 528 S.E.2d 394, 397 (2000).
Respondent argues that the trial court could not have entered
a consent judgment because respondent did not specifically consent
to the adjudication. We have indeed held that a trial court may not
on its own motion accept and enter judgment pursuant to Rule 12(c)
of the North Carolina Rules of Civil Procedure on a verified
juvenile petition. See Thrift, 137 N.C. App. at 562, 528 S.E.2d at396. This Court in Thrift indicated that a Rule 12(c) judgment on
the pleadings is “implicitly precluded” by the relevant portion of
the North Carolina juvenile code. Id. (referring to N.C. Gen.
Stat. . 7A-641, repealed effective 1 July 1999).
However, the instant case differs from Thrift in that the
trial judge in the instant case followed the mandates of our
juvenile code, rather than deciding sua sponte to grant judgment on
the pleadings. In the instant case, the attorney for DSS presented
the trial court with the amended allegations agreed to by the
parties and stated, “I believe that we have a consent agreement,
Your Honor, and I have a typewritten amended allegation.” The
trial judge then determined that all parties were present and
represented by counsel and that all parties consented to the
amended allegations of neglect and dependency in the juvenile
petition. The trial court then made sufficient findings of fact to
support an adjudication of neglect and dependency based on the
allegations to which the parties consented. Because our juvenile
code consent statute authorizes the trial court to enter judgment
on the petition under these circumstances, we find respondent's
argument to be without merit.
Affirmed.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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