Charlotte W. Nallan and Renee Alt for petitioner-appellee
Buncombe County Department of Social Services.
Donald Willey for respondent mother-appellant.
M. Victoria Jayne for respondent father-appellant.
Michael N. Tousey and Judy Rudolph for Guardian ad Litem.
Respondent mother and respondent father appeal from the trial court's order of adjudication and disposition filed 9 February 2004. The trial court adjudicated J.S.H. neglected and continued her custody with the Buncombe County Department of Social Services. Respondents contend the trial court's conclusion that J.S.H. is a neglected juvenile is not based on sufficient findings of fact. We affirm.
The adjudication hearing was held November 19-21, 2003. The evidence before the trial court tended to show the following: J.S.H. was born 26 June 2003. Based on her parents' history ofsubstance abuse, their failure to obtain substance abuse treatment, and her older siblings' placement in foster care, Buncombe County Department of Social Services (DSS) was granted nonsecure custody of J.S.H. on 11 September 2003.
J.S.H. is the second child born to respondents, and the sixth child born to her mother. J.S.H.'s older full sibling, S.H., was born 6 October 2001. Both mother and S.H. tested positive for cocaine at S.H.'s birth. S.H. was adjudicated neglected and placed in foster care for fourteen months. Respondent mother continued to test positive for cocaine until April 2002. Both parents failed to obtain court ordered substance abuse treatment, and in November 2002, respondents relinquished their rights over S.H. and she was later placed for adoption.
Respondent mother has a long history of substance abuse and involvement with DSS. She and her four older children, by a different father, L.H., first came to the attention of DSS in 1991 and neglect was substantiated in 1994. At that time, respondent mother's home was filthy, mother was using cocaine, and her fourth child had been born cocaine-positive. DSS maintained involvement with the family for two years, closing the case in March of 1996. In 1999, DSS received a report alleging that mother was engaging in prostitution and using her home as a crack house. The four children were adjudicated neglected. The case was closed in August of 1999 when custody was awarded to the children's father, L.H. At the time of J.S.H.'s birth, neither the baby nor respondent-mother tested positive for any illegal substances. Pursuant to a home study conducted by DSS in September 2003, J.S.H. appeared to be well-nourished, appropriately affectionate, happy, healthy and well-bonded with both parents. While respondent mother had not obtained any substance abuse treatment or AA/NA aftercare, she testified at the adjudication hearing that she was in total remission from her drug addiction and had last used drugs one and one half years prior to the hearing. Respondent mother was, however, taking an opiate-based narcotic medication for pain in her side. The respondent parents were residing with respondent mother's godmother, J.M. Respondent mother testified, however, that she and respondent father would soon move out of J.M.'s home.
J.S.H.'s father has a history of substance abuse but has not used drugs since 1994 or 1995. At the time of the hearing, he was on prescription pain medication from recent foot surgery. Respondent father's substance abuse assessment from 2003 recommended thirty hours of treatment and AA/NA aftercare. Respondent father had not received the substance abuse assessment he had been ordered to complete in 2001 and 2002 during the time S.H. was in foster care.
The trial court found that respondents' living situation was unstable and, further, that a pattern of conduct potentially causing injury is present. The trial court adjudicated J.S.H. neglected, ordered that J.S.H.'s custody remain with DSS, andgranted respondents supervised visitation. From this order, respondents appeal.
On appeal, respondents contend the trial court erred in concluding J.S.H. was neglected based solely on the prior neglect of her siblings. They argue neglect as to the siblings of J.S.H. is insufficient to support a determination that J.S.H. is neglected. We need not consider whether the prior neglect of J.S.H.'s siblings alone was sufficient to support the conclusion that J.S.H. was neglected. The trial court made additional findings which, together with the earlier neglect of the siblings, supported the trial court's conclusion that J.S.H. was a neglected juvenile.
Preliminarily, we note that, although respondents assigned error to findings of fact 7(c), (e), (f), and (i), they failed to argue these assignments in their brief. These assignments of error are therefore deemed abandoned. See N.C.R. App. R. 28(b)(6). As findings 7(c), (e), (f), and (i) were the only findings assigned as error, all the trial court's findings of fact are deemed conclusive on appeal. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003). Our review is therefore limited to whether the findings support the conclusions of law. See In re McLean, 135 N.C. App. 387, 390, 521 S.E.2d 121, 123 (1999) (Whether a child is 'neglected' is a conclusion of law which must be supported by adequate findings of fact.). In an adjudication proceeding, allegations of neglect must be proved by clear and convincing evidence. N.C.G.S. § 7B-805 (2003). If the trial court's conclusions of law are supported by findings of fact based on clear, cogent and convincing evidence, and the conclusions of law support the order or judgment of the trial court, then the decision from which appeal was taken should be affirmed. In re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999).
N.C.G.S. § 7B-101(15) (2003) defines a neglected juvenile in pertinent part as one who lives in an environment injurious to the juvenile's welfare . . . . N.C.G.S. § 7B-101(15) further states that:
In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
In cases where there have been prior findings of abuse or neglect of the siblings of a minor child:
the statute affords the trial judge some discretion in determining the weight to be given such evidence, and allows the trial court some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in which they reside. . . . [T]he decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case.
In re McLean, 135 N.C. App. at 395-96, 521 S.E.2d at 126-27 (quoting In re Nicholson, 114 N.C. App 91, 93, 440 S.E.2d 852, 853 (1994)).
In the instant case, the trial court made specific findings, particularly those numbered 7(a) through 7(d), regarding the historical neglect of J.S.H.'s siblings, respondents' lack of drug treatment, and their current use of narcotic pain medication. The trial court made the following findings of fact, 7(e) through (i), regarding probable future neglect of J.S.H.:
7(e) That a pattern of conduct potentially causing
injury is present due to substantial risk of
continued substance abuse, numerous instances
of involvement with the Department and the
court system with four oldest children,
custody of those children granted to their
father as a result of a Juvenile court case, K
being born with cocaine in her system, the
fifth child, S also being born with cocaine in
her system. That the Department performed a
risk assessment as to J that found the risk to
the minor child to be high due to the
parent[s'] substance abuse history and lack of
substance abuse treatment.
7(f) That substance abuse treatment for both parents was previously court ordered, the Court found it necessary to order substance abuse treatment and prior to this petition neither party has obtained substance abuse treatment. That the Mother's substance abuse assessment found that the mother has not used illegal drugs in over a year, but that she had not obtained treatment and the assessor was concerned that her prescription pain medications were opiate-based highly addictive substances. The Mother's cocaine addiction is in sustained remission, and it was recommended that she participate in weekly outpatient counseling as well as AA/NA aftercare. That the mother testified and the court would find that there is no evidence to suggest that the mother has taken illegal drugs since April2002[;] however[,] she is on a highly addictive opiate prescription and is at high risk for substance abuse relapse. That the relapse rate of substance abuse addiction increases with no treatment and the recidivism rate of those who participate in treatment is 75%, untreated rate is 95%.
(g) That [father's] substance abuse assessment recommended thirty hours of treatment and AA/NA aftercare. That the father has not received substance abuse treatment as previously ordered. He is currently undergoing treatment from Blue Ridge Bone & Joint and he is taking an opiate due to surgery. The Court is concerned there is a substantial risk of relapse. . . .
(h) The father received a $50,000.00 workers' compensation settlement but was unable to state to the social worker what happened to that money. Prior to the filing of the petition the parents were living with family members and did not have their own residence. That they hoped to use the $50,000.00 settlement to purchase their own home, but ultimately could not. That the parties have been living with [J.M.;] however, that living situation is now unstable and uncertain.
(i) That the minor child was born full term with no complications and immediately following birth the child and the mother both tested negative for illegal substances. Prior to the filing of the petition the minor child lived with the parents for two months and the Department has no complaints, other than the parents not following the prior court orders for treatment. That the child is well nourished, well bonded, likely receiving proper affection and the parties were appropriate with the minor child.
Here the trial court made numerous, specific findings
assessing the risk of neglect to J.S.H. and found that potential
injury was present. Despite the trial court's finding that much of
respondents' care for J.S.H. had been appropriate, in light of allthe court's findings, this one finding did not compel the
conclusion that respondents' care posed no substantial risk of
By statute, the trial court was allowed to consider the prior neglect of J.S.H.'s siblings in determining the risk of future harm to J.S.H. See G.S. § 7B-101(15). As stated above, the trial court has some discretion in determining the weight to be given such evidence [of historical abuse and neglect]. Nicholson, 114 N.C. App. at 94, 440 S.E.2d at 854. The neglect of J.S.H.'s full sibling S.H. was ongoing during the year 2002. S.H. was released for adoption in November 2002. The neglect petition for J.S.H. was filed in September 2003. Only one year had elapsed from the time respondents relinquished S.H. for adoption until the adjudication of J.S.H. that is the subject of this appeal.
The trial court evaluated all the evidence presented. It examined the potential effect on J.S.H. of the prior neglect of her siblings, as well as the effect of respondents' failure to obtain substance abuse treatment. In addition, the court considered respondents' risk of relapse, continued use of narcotic medication, and lack of stable housing. Given the trial court's consideration of all these factors, we cannot hold that the findings of fact, taken together, do not support the conclusion of law that J.S.H. was a neglected juvenile. This assignment of error is overruled.
Respondents next challenge previous nonsecure custody orders of the trial court entered on various dates in September and October 2003. Respondents failed to designate these prior ordersas orders from which they were appealing in their Notices of Appeal. See N.C.R. App. P. 3(d) (The notice of appeal . . . shall designate the judgment or order from which appeal is taken[.]). Therefore, this argument is not properly before us.
Respondents' remaining arguments are without merit.
We conclude that the findings of fact support the trial court's conclusion of law that J.S.H. is a neglected juvenile, and that the order of the trial court should be affirmed.
Chief Judge MARTIN and Judge TYSON concur.
Report per 30(e).
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