IN THE MATTER OF J.M.H.
Person County &
nbsp;
No. 02 J 31
No brief for petitioner-appellee.
James M. Bell for respondent-appellant.
McGEE, Judge.
J.H. (respondent) appeals an order adjudicating his son J.M.H.
to be neglected and granting custody of J.M.H. to the Person County
Department of Social Services (DSS) for placement in therapeutic
foster care. We affirm the trial court's order.
DSS filed a juvenile petition on 27 June 2002 alleging that
J.M.H. was a neglected juvenile because he had "not [been] provided
necessary medical care." An order for nonsecure custody was
entered 2 July 2002, finding that there was a "reasonable factual
basis to believe that . . . [J.M.H.] is in need of medical
treatment to cure, alleviate, or prevent serious physical harm
. . . and [J.M.H.'s] parent, guardian, custodian, or caretaker is
unwilling or unable to provide or consent to the medical
treatment." A hearing was held 23 September and 30 September 2002.
Evidence showed that respondent and J.M.H.'s mother, K.H., had been
separated for six years, and that while no custody agreement or
order had been entered as to J.M.H., respondent had physical
custody of J.M.H. for the majority of the six-year period. J.M.H.
had been diagnosed as mildly mentally retarded, with depressive and
disruptive behavior disorders, and attention-deficit/hyperactivity
disorder (ADHD). J.M.H. had been placed in special education
classes for most of the time that he had been enrolled in school,
and that after being transferred from one school to another, he
began having behavioral problems. In November 2001, respondent
enrolled J.M.H. in counseling with Orange Person Chatham Counseling
Center (Counseling Center) because respondent was concerned about
J.M.H.'s aggressive behavior.
DSS's evidence showed that respondent had allowed K.H. to have
custody of J.M.H. during weekdays in May and June 2002 because
respondent had to work; respondent then resumed care of J.M.H. on
weekends. K.H. testified that on 14 June 2002, she left J.M.H. in
the care of a babysitter. K.H. further testified that J.M.H. and
his sister got into a fight and that when the babysitter tried to
break up the fight, J.M.H. pushed the babysitter into the side of
the refrigerator. The babysitter called to her boyfriend to help
restrain J.M.H. and, during this process, a table was knocked over.
J.M.H. threatened the boyfriend with a piece of wood and threatened
to start a fire in the air conditioning unit at the babysitter's
home. K.H. also testified that upon learning of this incident, she
called Jennifer Mize (Mize), a child and family therapist at the
Counseling Center, who advised K.H. to contact a social worker.
The social worker referred K.H. to Dr. McDaniel, a primary
physician who was J.M.H.'s regular general practitioner. Dr.
McDaniel recommended that K.H. have J.M.H. evaluated at Duke
University Hospital or the University of North Carolina Hospital
(UNC Hospitals). J.M.H. was admitted to UNC Hospitals for
evaluation and treatment and stayed there for approximately two
weeks. UNC Hospitals recommended therapeutic foster care.
Mize testified that she also recommended therapeutic foster
care and that she believed J.M.H. needed this extra level of care.
Mize had observed significant discord between K.H. and respondent
and stated that each blamed the other for J.M.H.'s problems. She
testified that although both K.H. and respondent cared about
J.M.H., they were unable to put aside their personal differences
and could not agree how to address J.M.H.'s problems. Mize read
from a letter that she had sent to DSS in which she stated that she
thought J.M.H. needed a legal custodian "so that more intensive
mental health services [could] begin." Mize attributed some of
J.M.H.'s problems to respondent's and K.H.'s expending "their
energy fighting with each other rather than working together for
[J.M.H.'s] benefit," and stated that until respondent and K.H. were
able "to provide a safe, stable, nurturing environment for [J.M.H.]
with consistent rules and a consistent home environment, [J.M.H.'s]
prognosis [would] be poor." Similarly, Dr. Erin Malloy (Dr. Malloy), Director of In-
patient Child and Adolescent Services with the Department of
Psychiatry at UNC Hospitals, testified that during J.M.H.'s
hospitalization, there was a high degree of conflict between
respondent and K.H. and that this ongoing discord was disrupting
J.M.H.'s progress. The psychiatric team at UNC Hospitals noted
that respondent's behavior, when he visited J.M.H., "was perceived
as hostile and threatening." UNC Hospitals ultimately made the
decision that "it was therpeutically necessary to suspend phone
calls and visits between [J.M.H.] and [respondent and K.H.]."
Dr. Malloy also read from a letter that UNC Hospitals had sent
to DSS, which stated that
[a] number of our staff [have] felt threatened
by [respondent's] belligerent and accusatory
tone. He has accused our staff of giving him
misinformation and falsifying information.
One example of many is that he hung up on our
doctor after accusing her of giving a
medication that kills people.
We believe that [J.M.H.] is at significant
risk of developing further maladaptive coping
skills such as aggression unless he is removed
from this chaotic and severely dysfunctional
environment.
DSS's evidence further showed that while K.H. was not happy
about the recommendation for therapeutic foster care, she thought
it would be best for J.M.H. Respondent, however, thought it would
be best for J.M.H. to stay with his family, specifically with
respondent. No immediate therapeutic foster care could be found
and, upon discharge from UNC Hospitals, J.M.H. was placed with his
paternal grandmother, Bertha Gallant (Gallant). Shortlythereafter, J.M.H. was hospitalized in the mental health facility
at Moses Cone Hospital in Greensboro. After this hospitalization,
J.M.H. was placed in therapeutic foster care in Durham on 6
September 2002.
Respondent testified that J.M.H. did not have any behavior
problems when he lived with respondent, and that J.M.H.'s behavior
problems occurred only when he was with K.H. Respondent further
testified that while J.M.H. was living with Gallant, J.M.H. was
hospitalized after he became so angry he kicked a hole in the wall.
Respondent attributed this violence to the medication prescribed by
the doctors at UNC Hospitals. Respondent testified that after one
visit with J.M.H. at UNC Hospitals, he was denied access to J.M.H.,
and that he was told by Robert Laws (Laws), the clinical social
worker handling J.M.H.'s case at UNC Hospitals, that he could not
visit or speak to J.M.H. Respondent testified that Laws also
informed him about the recommendation that J.M.H. be placed in
therapeutic foster care, to which respondent objected. Respondent
testified that he did not want J.M.H. to receive therapeutic foster
care because he believed that J.M.H. had not assaulted or
threatened the babysitter. Respondent testified that J.M.H. had
told respondent that the babysitter had grabbed J.M.H. by the
throat and told J.M.H. she would kill him. Respondent believed the
decision to recommend therapeutic foster care "was recommended
without knowledge of how [J.M.H.] . . . was in [respondent's]
home."
Respondent also testified that no one ever offered to trainhim to provide the therapeutic care that would be offered to J.M.H.
through therapeutic foster care. He further testified that no one
ever told him why J.M.H. required therapeutic foster care other
than he needed it because respondent and K.H. argued. Respondent
testified that he did not argue with K.H., but that she argued with
him when he was trying to make sure J.M.H. was safe when J.M.H. was
with her. Respondent further testified that he only talked once
with J.M.H.'s attending physician at UNC Hospitals. Respondent
stated that he did not deliberately hang up on this doctor but that
his cell phone had "lost the signal and cut off."
The trial court made the following findings of fact:
19. That [respondent] was not consulted prior
to this hospitalization [at UNC Hospitals];
the fact that he was not consulted made him
upset;
20. That [K.H.] was able to discuss
[J.M.H.'s] condition with the medical
personnel and social workers at UNC Hospitals
on a daily basis;
21. That the personnel at UNC Hospitals
testified that [respondent] was belligerent,
uncooperative, and they could not deal with
his attitudes in their facility; they deemed
that he was not helping in [J.M.H.'s]
treatment;
22. That [respondent] testified that he did
not regularly attempt to make contact with
personnel at UNC Hospitals relative to the
treatment of [J.M.H.];
23. That [respondent] was made aware that UNC
Hospitals recommended a therapeutic foster
home for [J.M.H.], to continue his treatment;
24. That [respondent] was made aware that OPC
recommended a therapeutic foster home for
[J.M.H.] prior to [J.M.H.'s] release from UNC
Hospitals;
25. That [respondent] rejected those
recommendations and offers, saying that he
wished to look after [J.M.H.] as he had done
for the previous six years;
26. That [respondent and K.H.] are unable to
discuss the treatment of [J.M.H.] without
argument between themselves; they also argue
about the treatment needed for [J.M.H.] in
front of [J.M.H.], and in front of treating
personnel;
. . . .
30. [Respondent] further asserts that the
diagnosis and recommendations of UNC Hospitals
were based on bad and incomplete information
in that the professionals at UNC Hospitals had
insufficient contact with him;
31. However, [respondent's] behavior was in
fact the reason he was unable to convey any
necessary information to [the] professionals;
32. [Respondent] did not make reasonable and
appropriate efforts to contact the doctors at
UNC Hospitals and provide them such
information;
33. [Respondent's] behavior had the very
effect of preventing appropriate contact
between [respondent] and such medical
professionals;
34. There was clear evidence of family
discord between [respondent and K.H.], and
that was even conceded by [respondent] in
testimony;
35. That [respondent] was asserting that the
medications prescribed for [J.M.H.] were
wrong, when in fact [respondent] had never
determined the diagnosis for [J.M.H.];
36. That prior to filing this action, [DSS]
discussed [J.M.H.'s] situation with
[respondent] and allowed [respondent] to take
reasonable steps to get [J.M.H.] proper
medical assistance; [respondent] failed and
refused to acquire recommended mental health
treatment for [J.M.H.];
37. That [DSS] has made reasonable efforts
prior to removal, to keep [J.M.H.] in the
custody of [either respondent or K.H.];
38. Due to the conduct of [respondent] in
refusing medical treatment for [J.M.H.],
efforts have not been undertaken to reunite
the family;
39. That despite the efforts of [DSS], the
conduct of [respondent and K.H.] and other
factors mentioned above render that living
situation inappropriate for [J.M.H.][.]
Based on these findings of fact, the trial court entered an
adjudication and disposition order on 2 December 2002, concluding:
1. That [J.M.H.] is a neglected child as
alleged in the Petition;
2. That it is not in the best interest of
[J.M.H.] for his custody to be returned to
[respondent and K.H.], or either of them;
3. That it is in the best interest of
[J.M.H.] that his custody be granted to
[DSS][.]
Respondent petitioned this Court for a writ of certiorari on
21 October 2003 to appeal the 2 December 2002 order, which our
Court granted on 13 November 2003.
Respondent's sole assignment of error is that the trial court
erred in finding J.M.H. to be a neglected child and in awarding
custody to DSS for placement in therapeutic foster care. We
disagree.
In reviewing a trial court's finding of neglect, our Court
must determine "(1) whether the findings of fact are supported by
'clear and convincing evidence,' [N.C. Gen. Stat. § 7B-805
(2003)],and (2) whether the legal conclusions are supported by the
findings of fact." In re Gleisner, 141 N.C. App. 475, 480, 539S.E.2d 362, 365 (2000). If there is clear and convincing evidence
to support the trial court's findings of fact, then the findings
"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). We uphold a trial court's conclusions of law when they
are supported by the trial court's findings of fact. Id.; see also
In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566,
disc. review denied, 356 N.C. 163, 568 S.E.2d 609 (2002).
A neglected juvenile is "[a] juvenile who does not receive
proper care, supervision, or discipline from a juvenile's parent
. . . or who is not provided necessary medical care; or who is not
provided necessary remedial care[.]" N.C. Gen. Stat. § 7B-101(15)
(2003). Respondent argues, and this Court has held, that to find
neglect, "there [must] be some physical, mental, or emotional
impairment of the juvenile or a substantial risk of such impairment
as a consequence of the failure to provide 'proper care,
supervision, or discipline.'" In re Safriet, 112 N.C. App. 747,
752, 436 S.E.2d 898, 901-02 (1993) (quoting N.C. Gen. Stat. § 7B-
101(15)). Respondent, however, stops short of arguing that J.M.H.
has not been impaired or is not at risk of such impairment as a
result of the failure to provide proper care. Due to the failure
of respondent and K.H. to provide proper care to J.M.H., the record
includes sufficient evidence of mental and emotional impairment of
J.M.H. to support the trial court's findings of fact.
DSS presented evidence, and the trial court found, that J.M.H.
was diagnosed as being mildly mentally retarded, having depressiveand disruptive behavior disorders, and ADHD. He underwent
counseling and therapy and had to be involuntarily committed to
psychiatric units at UNC Hospitals and Moses Cone Hospital because
of violent and aggressive behavior. UNC Hospitals submitted a
letter to DSS that said its doctors believed that "the severe
family discord [between respondent and K.H.] is a root cause of
[J.M.H.'s] maladaptive behavior." The letter said that when the
doctors or social workers at UNC Hospitals talked with respondent
and K.H., each one
spent most of that time berating the other
parent. Furthermore, each parent has
inappropriately shared such information [with
J.M.H.]. Despite earnest attempts on the part
of our staff to supervise contact between each
parent and [J.M.H.], his exposure to their own
conflict has continued. In fact, we believe
this conflict is so detrimental to the child
that we have restricted all contact from the
parents with [J.M.H.]. . . . We believe that
this child is at significant risk of
developing further maladaptive coping skills
such as aggression unless he is removed from
this chaotic and severely dysfunctional
environment.
Similarly, Mize, the counselor who treated J.M.H. at the Counseling
Center, wrote a letter to DSS in which she stated:
[i]n order for [J.M.H.] to receive some
symptom relief and begin to improve, it is our
recommendation that he receive therapeutic
foster care to provide a calm, stable,
nurturing environment and to remove him from
the chaos and violence he witnesses at home
and between his parents. Until both parents
are able to recognize their part in [J.M.H.'s]
problems and to provide a safe, stable,
nurturing environment for him with consistent
rules and a consistent home environment, his
prognosis will be poor.
This evidence is clear and convincing that J.M.H. has sufferedemotional and mental impairment due to respondent's and K.H.'s
troubled relationship, which disrupts their ability to provide
proper care, and that J.M.H. will continue to risk such suffering.
See Safriet, 112 N.C. App. at 752, 436 S.E.2d at 901-02.
Respondent argues that, in addition to causing an impairment,
a parent's conduct must be severe or dangerous to constitute
neglect. Respondent directs us to a recent North Carolina Supreme
Court case, In re Stumbo, in which the Court noted that "not every
act of negligence on the part of parents or other care givers
constitutes 'neglect' under the law and results in a 'neglected
juvenile.'" In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258
(2003) (holding that a "single report of a naked, unsupervised
two-year-old in the driveway of her home does not trigger the
investigative requirements of N.C.G.S. § 7B-302," Stumbo, 357 N.C.
at 288, 582 S.E.2d at 261, which mandates DSS to investigate
reports of abuse, neglect and dependency). In Stumbo, the Court
reviewed a number of cases where neglect had been found and held
that the parents' conduct in those cases "constituted either severe
or dangerous conduct or a pattern of conduct either causing injury
or potentially causing injury to the juvenile." Id. at 283, 582
S.E.2d at 258. Respondent argues that our present case is
distinguishable from the cases described in Stumbo where neglect
was found, because those cases involved "severe alcohol abuse,
physical injuries to the child, insufficient food in the house and
failure to immunize children against childhood diseases," and that
none of those issues are implicated here. However, we do not findthat our Supreme Court intended to limit the instances of neglect
to just the circumstances listed.
In other cases, a child has been neglected if he or she "is
not provided necessary medical care." In re Huber, 57 N.C. App.
453, 458, 291 S.E.2d 916, 919, disc. review denied, 306 N.C. 557,
294 S.E.2d 223 (1982). In Huber, neglect was found where the
mother refused to allow her daughter to have speech and hearing
treatment and other remedial care, when the child had a hearing and
speech defect. Id. Without treatment, the child would "not be
educated to her full potential; she [would] suffer emotionally by
being unable to communicate with other persons; she [would]
probably be unable to read." Id. This Court thus held that the
mother's refusal "to permit [the child] to receive this opportunity
to progress toward her full development" constituted neglect. Id.
Respondent presented some evidence that he took steps to
provide necessary care for J.M.H. For instance, respondent argues
that his conduct is not severe in that he worked with the public
schools "to ensure that [J.M.H.] received educational services that
met the child's individual and specific needs," that he
"voluntarily took [J.M.H.] to counseling services," and that he
"had also agreed to various trial medications for [J.M.H.] although
logistically this had proven problematic." However, although there
is some evidence to possibly support contrary findings, see In re
Helms, 127 N.C. App. at 511, 491 S.E.2d at 676, there is sufficient
evidence to show that this case is similar to Huber in that
respondent refused medical treatment that would allow J.M.H. todevelop to his full potential.
There was competent evidence presented at trial showing that
on several occasions before DSS filed a petition alleging neglect,
respondent had refused to provide recommended mental health
treatment to J.M.H. or had interfered with J.M.H.'s being provided
with much of the recommended mental health treatment. At the
hearing, Mize testified that respondent did not allow J.M.H. to
continue on a Ritalin study for the full recommended period in
January 2002. Respondent testified that he believed the medication
prescribed by UNC Hospitals caused J.M.H.'s violent behavior.
Mize, Dr. Malloy, and respondent testified that respondent objected
to J.M.H. being placed in therapeutic foster care. Additionally,
evidence showed that despite having been advised that their discord
was getting in the way of J.M.H.'s treatment, respondent and K.H.
continued to argue and continued to disagree on a course of
treatment for J.M.H. Mize noted in her letter to DSS that
the opportunity for change is minimal as long
as both parents continue to expend their
energy fighting with each other rather than
working together for [J.M.H.'s] benefit. As
this has been recommended multiple times I am
not convinced that either parent will be able
to meet this goal without considerable
intervention for themselves.
DSS also presented evidence that respondent had called UNC
Hospitals to say that it was illegally treating J.M.H. because
K.H., who had committed J.M.H., did not have custody. Treatment
was stopped until UNC Hospitals could verify that there was no
legal custody arrangement. Finally, the letter from UNC Hospitals
to DSS detailed how respondent hung up on one of J.M.H.'s treatingphysicians after accusing the physician of prescribing medication
that killed people. When respondent was asked about this telephone
call, he gave conflicting testimony. He first testified that his
"phone [had] lost the signal and cut off," and that he had tried to
call back immediately but did not get a signal. Respondent later
testified, however, that he called the doctor back to apologize for
his telephone shorting out but "was told that she didn't want to
speak to [him]." As in Huber, respondent's conduct regarding
medical treatment for J.M.H. constitutes neglect. See Huber, 57
N.C. App. at 458, 291 S.E.2d at 919. The trial court's conclusion
that J.M.H. was a "neglected juvenile" is consistent with the
cases, described in Stumbo, where neglect was found. See Stumbo,
357 N.C. at 284-85, 582 S.E.2d at 258-59.
There was clear and convincing evidence to support the trial
court's findings of neglect; the trial court's findings of fact
supported its conclusion that J.M.H. was a neglected juvenile and
that his best interests were served by granting custody of J.M.H.
to DSS. We affirm the order of the trial court.
Affirmed.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).
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