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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
IN THE MATTER OF:
K.C.G. and J.G., Rockingham County
minor children. Nos. 04 J 15, 04 J 16
Appeal by respondent mother from orders entered 13 February
2004, 26 February 2004, and 19 March 2004 by Judge Richard W. Stone
in Rockingham County District Court. Heard in the Court of Appeals
8 March 2005.
No brief filed for petitioner-appellee.
Susan J. Hall, for respondent-appellant.
Respondent appeals the trial court's orders allowing R.G.
(father) to have custody over their minor children K.C.G. and
J.G. and the trial court's ex parte order requiring respondent to
cease obstruction of or interference with the juvenile
investigation. We affirm in part, reverse in part, and remand.
K.C.G. and J.G. are the minor daughters of father and
respondent. Respondent maintained physical custody of K.C.G. and
J.G. after her separation from their father. On 16 October 2003,
the Rockingham County Department of Social Services (DSS)
received a report alleging neglect of K.C.G. The report alleged:
(1) respondent was trying to obtain a prescription of Valium for
the child despite doctors' opinions that such a prescription wasnot appropriate; (2) respondent, who had no medical training, was
diagnosing K.C.G. herself; (3) K.C.G. was not attending school; and
(4) respondent was doctor-shopping for K.C.G.
Beretta Clayton (Ms. Clayton), a DSS Child Protective
Services Investigator, began an investigation into the allegations
regarding respondent and K.C.G. on 16 October 2003. Ms. Clayton
visited K.C.G. at school, where she first encountered K.C.G.'s
older sibling, J.G., and then respondent, who was also present at
school with K.C.G. K.C.G.'s medical records, information from
confidential sources, and information obtained through discussions
with respondent raised additional concerns about K.C.G. and
respondent. Three confidential sources alleged the relationship
between respondent and K.C.G. may evidence Munchausen's Syndrome by
Proxy, a disorder in which a caretaker fabricates or exaggerates
physical manifestations or emotional symptoms of a person in their
care for whatever reasons. Examples of reasons for the disorder
include, sympathy, or a perverse relationship with the other
person. Records confirmed respondent had seen many doctors in an
attempt to obtain Valium for K.C.G. and had prevented K.C.G. from
attending school out of concern the child had an anxiety disorder
and other medical problems.
Respondent took K.C.G. to see a psychologist, Dr. Julia
Brannon, Ph.D. (Dr. Brannon), twice. Respondent informed Dr.
Brannon of visits to several doctors for various problems she
believed K.C.G. suffered, including teeth-grinding, constipation,
and nocturnal seizures. She also said she thought K.C.G. hadschool phobia, social phobia, panic disorder, and seizures relating
to her anxiety about school. Respondent informed Dr. Brannon that
K.C.G.'s psychiatrist, Dr. King, had refused to prescribe Valium
for K.C.G. Respondent requested Dr. Brannon refer her to a doctor
who could prescribe the drug.
Dr. Brannon diagnosed K.C.G. as suffering from a parent-child
relational problem and concluded K.C.G. did not suffer from the
phobias or anxieties respondent claimed. Dr. Brannon stated
Munchausen's Syndrome by Proxy is a sort of parent-child relational
problem and based on: (1) respondent's vehement belief that she
knew more than the professionals about K.C.G.'s condition; (2)
respondent herself diagnosing K.C.G.; and (3) the extensive medical
treatment K.C.G. had undergone at respondent's request, Dr. Brannon
concluded respondent's relationship with K.C.G. may be a case of
Munchausen's Syndrome by Proxy and K.C.G. needed further
evaluation. In Dr. Brannon's opinion, a doctor should examine the
child, the caretaker, and the medical history, including which
treatments have been sought for the child, in order to make a
determination of whether Munchausen's Syndrome by Proxy was
Sometime after the investigation began, respondent withdrew
K.C.G. from public school and subsequently received her
certification to home school K.C.G. Since that time, all contact
between Ms. Clayton and K.C.G. has been at respondent's home while
respondent is present. Respondent also requested all interviews of
J.G. be performed at home, not at school. J.G. refused to speakwith Ms. Clayton at school on 5 February 2004, saying she was not
Ms. Clayton advised both respondent and K.C.G.'s father of the
nature of the concerns and requested K.C.G. be examined during a
Child Medical Evaluation (CME) which would consist of a physical
examination and another appointment for a mental health
examination. The father signed a consent for the examinations and
offered to take K.C.G. to the first appointment on 12 February
2004. Respondent repeatedly refused to allow examinations to
occur. Respondent cancelled the 12 February 2004 appointment for
the CME physical examination.
On 13 February 2004, DSS filed a petition alleging obstruction
of or interference with a juvenile investigation with the Clerk of
Superior Court in Rockingham County. On 13 February 2004, an ex
parte order to cease obstruction of or interference with a juvenile
investigation was filed. On 25 February 2004, the court continued
the 13 February 2004 order and further ordered that: (1) neither
parent would obstruct or interfere with DSS's pending
investigation; and (2) respondent would have K.C.G. ready for her
father to pick up and transport her to the first CME appointment.
The order was not filed until 19 March 2004.
Respondent demanded a hearing on the ex parte order.
Following an informal emergency hearing on 26 February 2004, a
temporary custody order was signed and filed awarding the father
temporary sole and exclusive custody of K.C.G. and J.G. On 26
February 2004, a second order was issued declaring that the 25February 2004 order remained in effect and was stayed only insofar
as respondent's own cooperation with and participation in the CME
was concerned. The order also denied respondent's motion to seal
the results of the CME. The order stated the temporary custody
order entered earlier on 26 February 2004 was fully incorporated by
reference and awarded temporary custody to the father due to the
evidence heard the prior day and the court's concerns about the
safety of the children. This order was filed on 19 March 2004.
The issues on appeal are whether: (1) the trial court had
jurisdiction to place sole and exclusive temporary custody of the
juveniles with the father without proper notice to the parties and
without a juvenile abuse/neglect/dependency petition being filed;
(2) the court abused its discretion in finding Dr. Brannon to be an
expert in psychology and mental disorders due to a lack of
evidentiary foundation; and (3) the trial court abused its
discretion in concluding as a matter of law that the reports
received by DSS, if true, would constitute neglect of the juvenile
K.C.G. due to insufficiency of the evidence.
A. Cease Interference Order
We initially consider whether the trial court had jurisdiction
to issue the ex parte order to cease respondent's interference with
DSS's investigation. N.C. Gen. Stat. § 7B-200(a) (2003) states:
[t]he court has exclusive, original jurisdiction over any caseinvolving a juvenile who is alleged to be abused, neglected, or
dependent. In addition, the court also has exclusive original
jurisdiction over [p]roceedings in which a person is alleged to
have obstructed or interfered with an investigation required by
G.S. 7B-302. N.C. Gen. Stat. § 7B-200(a)(6) (2003). N.C. Gen.
Stat. § 7B-302(a) (2003) states:
[w]hen a report of abuse, neglect, or
dependency is received, the director of the
department of social services shall make a
prompt and thorough investigation in order to
ascertain the facts of the case, the extent of
the abuse or neglect, and the risk of harm to
the juvenile, in order to determine whether
protective services should be provided or the
complaint filed as a petition.
N.C. Gen. Stat. § 7B-303(a) (2003) provides, [i]f any person
obstructs or interferes with an investigation required by G.S. 7B-
302, the director may file a petition naming said person as
respondent and requesting an order directing the respondent to
cease such obstruction or interference. N.C. Gen. Stat. § 7B-
303(b) (2003) states obstruction of or interference with an
refusing to disclose the whereabouts of the
juvenile, refusing to allow the director to
have personal access to the juvenile, refusing
to allow the director to observe or interview
the juvenile in private, refusing to allow the
director access to confidential information
and records upon request pursuant to G.S.
7B-302, refusing to allow the director to
arrange for an evaluation of the juvenile by a
physician or other expert, or other conduct
that makes it impossible for the director to
carry out the duty to investigate.
Further, N.C. Gen. Stat. § 7B-303(d) (2003) provides: If the director has reason to believe that the
juvenile is in need of immediate protection or
assistance, the director shall so allege in
the petition and may seek an ex parte order
from the court. If the court, from the
verified petition and any inquiry the court
makes of the director, finds probable cause to
believe both that the juvenile is at risk of
immediate harm and that the respondent is
obstructing or interfering with the director's
ability to investigate to determine the
juvenile's condition, the court may enter an
ex parte order directing the respondent to
cease such obstruction or interference. The
order shall be limited to provisions necessary
to enable the director to conduct an
investigation sufficient to determine whether
the juvenile is in need of immediate
protection or assistance.
Here, DSS received a report K.C.G. was neglected and initiated
an investigation. On 13 February 2004, pursuant to N.C. Gen. Stat.
§ 7B-303(d), DSS filed a petition of obstruction of or interference
with a juvenile investigation seeking an ex parte order commanding
respondent to cease interference with the investigation and allow
K.C.G. to be examined.
According to N.C. Gen. Stat. § 7B-303(d), the court may enter
an ex parte order directing the respondent to cease such
obstruction or interference and the order shall be limited to
provisions necessary to enable the director to conduct an
investigation sufficient to determine whether the juvenile is in
need of immediate protection or assistance.
The trial court concluded as a matter of law that respondent
obstructed or interfered with the investigation in that she refused
to allow K.C.G. to be examined in a CME and interfered with the
social worker's ability to interview the two children. See N.C.Gen. Stat. § 7B-303(b). The trial court had exclusive, original
jurisdiction over the case pursuant to N.C. Gen. Stat. § 7B-
This statute conferred upon the trial court the authority to
issue the ex parte order to cease interference with DSS's
investigation. This assignment of error is overruled.
We next consider whether the trial court had authority to
place K.C.G. and J.G. in the temporary sole and exclusive custody
of their father. N.C. Gen. Stat. § 7B-500(a) (2003) governs the
procedure for removing and taking a child into temporary custody:
A juvenile may be taken into temporary custody
without a court order by a law enforcement
officer or a department of social services
worker if there are reasonable grounds to
believe that the juvenile is abused,
neglected, or dependent and that the juvenile
would be injured or could not be taken into
custody if it were first necessary to obtain a
This statute is a narrow exception to the requirement that a
petition must be filed prior to the issuance of a court order for
non-secure custody. In re Ivey, 156 N.C. App. 398, 402, 576
S.E.2d 386, 389 (2003). In the case of any juvenile alleged to be
within the jurisdiction of the court, the court may order that the
juvenile be placed in nonsecure custody pursuant to criteria set
out in G.S. 7B-503 when custody of the juvenile is necessary.
N.C. Gen. Stat. § 7B-502 (2003). N.C. Gen. Stat. § 7B-503(a)
(2003) provides in part:
[w]hen a request is made for nonsecure custody
. . . [a]n order for nonsecure custody shallbe made only when there is a reasonable
factual basis to believe the matters alleged
in the petition are true, and . . . [a]
juvenile alleged to be abused, neglected, or
dependent shall be placed in nonsecure custody
only when there is a reasonable factual basis
to believe that there are no other reasonable
means available to protect the juvenile.
In Ivey, DSS filed petitions to have the respondents' (mother
and father) children adjudicated neglected. 156 N.C. App. at 399,
576 S.E.2d at 388. The trial court adjudicated the three children
as neglected and DSS received nonsecure custody of the children.
Id. While a permanency planning review was pending, the respondent
mother gave birth to an infant who remained in the respondents'
custody. Id. at 400, 576 S.E.2d at 388. At the permanency
planning hearing, the court found that no child, including the
infant who presently resides with [the respondent mother], should
be forced to endure such circumstances and the court further found
that non-secure custody should be taken of the infant presently
living in the [respondents'] home, to be followed as reasonably
soon as possible with a Juvenile Petition. Id. at 400, 576 S.E.2d
This Court held the trial court lacked jurisdiction to order
DSS to assume nonsecure custody of the infant because [a]t the
time of the hearing, DSS had not filed any petition alleging that
[the infant] was an abused or neglected child. Id. at 401, 576
S.E.2d at 389. We stated, N.C. Gen. Stat. § 7B-503(a) sets forth
the criteria for nonsecure custody and states: 'an order for
nonsecure custody shall be made only when there is a reasonable
factual basis to believe the matters alleged in the petition aretrue . . . .' Id. (quoting N.C. Gen. Stat. § 7B-503(a)). The
trial court did not possess jurisdiction to grant DSS nonsecure
custody of the infant because no petition alleging the infant to be
an abused or neglected child had been filed. Id.
N.C. Gen. Stat. § 7B-500 allows a narrow exception for a child
to be taken into temporary custody without a court order only by a
law enforcement officer or a department of social services worker.
Here, however, the trial judge issued a court order granting sole
and exclusive temporary custody of K.C.G. and J.G. to their father.
K.C.G. was within the jurisdiction of the court. As established
above, N.C. Gen. Stat. § 7B-502 provides the trial judge with
authority to place K.C.G. in nonsecure custody pursuant to [the]
criteria set out in G.S. 7B-503. However, an order issuing
nonsecure custody will only be granted when a request is made for
nonsecure custody and when there is a reasonable factual basis to
believe the matters alleged in the petition are true . . . . N.C.
Gen. Stat. § 7B-503(a). The plain language of the statute shows
that a request for nonsecure custody must be made and a petition
must be filed before the court may issue an order for nonsecure
custody. N.C. Gen. Stat. § 7B-503.
As in Ivey, no request for nonsecure custody was presented in
this case. In the preamble to the temporary custody order entered
on 26 February 2004, the trial court stated, [n]o juvenile
petition has been filed and the only pending matter was the
petition concerning non-interference. As the trial court noted,
the only request or petition pending was the petition allegingobstruction of or interference with a juvenile investigation filed
by DSS on 13 February 2004 seeking an order commanding respondent
to cease interfering with DSS's investigation. At no time did DSS
request nonsecure custody or file a petition alleging that K.C.G.
was a neglected child.
As we stated in Ivey, [w]ithout such petition, the trial
court did not have the jurisdiction to order [K.C.G.'s father] to
assume nonsecure custody of K.C.G. and J.G. Ivey, 156 N.C. App at
401, 576 S.E.2d at 389. The trial court's order of sole exclusive
custody of K.C.G. and J.G. to their father is reversed.
The trial court possessed jurisdiction to issue the ex parte
order to cease interference with DSS's investigation. That portion
of the trial court's order is affirmed.
Without a filed petition alleging K.C.G. and J.G. to be
neglected children, the trial court was without jurisdiction to
place K.C.G. and J.G. solely and exclusively in the custody of their
father. The trial court erred in assigning sole and exclusive
nonsecure custody of K.C.G. and J.G. to their father. That portion
of the trial court's order is reversed.
Because we find the trial court lacked jurisdiction to place
K.C.G. in the custody of her father, we do not prematurely reach or
decide the issues of whether the trial court abused its discretion
in: (1) finding Dr. Brannon to be an expert in psychology and
mental disorders due to lack of evidentiary foundation; and (2)
concluding as a matter of law that the reports received by DSS, iftrue, would constitute neglect of the juvenile K.C.G. due to
insufficiency of the evidence in the record.
Affirmed in Part, Reversed in Part, and Remanded.
Judges WYNN and ELMORE concur.
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