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.
LEVINSON, Judge.
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.
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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
harm.
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.
Affirmed.
Chief Judge MARTIN and Judge TYSON concur.
Report per 30(e).
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