Appeal by respondent mother from orders entered 1 March 2005
by Judge Resson Faircloth in Johnston County District Court. Heard
in the Court of Appeals 7 March 2006.
Jennifer S. O'Connor for petitioner-appellee.
Leslie C. Rawls for respondent-appellant.
James D. Johnson, Jr. for guardian ad litem.
Respondent mother appeals from the trial court's orders
adjudicating her son K.D. to be neglected and dependent, placing
him with an aunt, and relieving the Johnston County Department of
Social Services ("DSS") of further efforts towards reunification.
On appeal, respondent mother primarily argues that the trial court
violated her psychologist-patient privilege by considering evidence
from her psychologist. We hold that respondent mother waived any
privilege, and, in any event, the evidence at issue was admissible
since this proceeding involves the neglect of a child. With
respect to respondent mother's challenge to the trial court's
adjudication order, we (1) affirm the adjudication of K.D. as
neglected because the trial court's unchallenged findings of fact
support its conclusions of law on neglect, but (2) reverse and
remand as to the adjudication of K.D. as dependent because the
trial court failed to address whether respondent mother was able to
provide a suitable alternative childcare arrangement within the
meaning of N.C. Gen. Stat. § 7B_101(9) (2005).
Factual and Procedural History
Respondent mother gave birth to her son K.D. in 2002. The
identity of the child's father is unknown. On 9 March 2004, the
police brought respondent mother to the emergency room of the
Johnston County Mental Health Center ("JCMHC"). While there, she
was assessed by staff psychologist Cynthia Koempel, who found thatshe was showing verbal aggressiveness toward those around her and
was threatening the police officer who had escorted her to the
emergency room. Respondent mother was involuntarily committed to
Holly Hill Hospital later that day because she was threatening to
kill herself and was sleeping with knives under her pillow.
Respondent mother was discharged from Holly Hill on 17 March
2004, with a diagnosis of adjustment disorder with mixed depression
and anxiety. Holly Hill recommended that she continue to receive
treatment at JCMHC. Following a subsequent intake assessment at
JCMHC, respondent mother was further diagnosed with intermittent
explosive disorder, meaning that her inability to resist her
aggressive impulses was liable to result in serious assaultive acts
or destruction of property without warning. The JCMHC assessment
also indicated that she had moderate mental retardation, with
school records estimating her IQ to be in the 40 to 50 range.
Following her intake assessment, respondent mother did not attend
any of her subsequent recommended appointments at JCMHC. Although
she initially claimed transportation problems, she later admitted
that her social worker had offered to provide transportation to
these and other appointments.
DSS began working with respondent mother in April 2004 when
she was 17 years old and living with her mother, J.T. On 6 April
2004, DSS substantiated respondent mother's neglect of K.D. based
on respondent mother's history of leaving K.D. at home without
ensuring appropriate supervision or telling her family where shewas going. After DSS became involved, respondent mother
voluntarily placed K.D. with J.T. and moved in with her boyfriend.
Following a physical altercation between respondent mother and
the boyfriend, in which the boyfriend sustained a large knife
wound, respondent mother began living with other relatives,
including, at various times, her maternal grandmother and her
sister. Meanwhile, DSS substantiated neglect of K.D. by his
grandmother J.T., after DSS became aware he was not being supplied
with basic needs, such as adequate clothing, shoes, and hygiene,
and after J.T. twice arrived in an intoxicated state to pick K.D.
up from daycare. K.D. was subsequently placed back with respondent
mother, who was then living with her sister.
On 5 May 2004 and 23 July 2004, DSS entered into a case plan
with respondent mother in which she agreed to begin treatment at
JCMHC; attend parenting classes; ensure proper supervision of K.D.
at all times; meet K.D.'s basic food, clothing, and hygiene needs;
and take K.D. to all necessary medical appointments. Because of
respondent mother's mental disabilities and retardation, respondent
mother's social worker provided her with a laminated list of
emergency phone numbers and an appointment chart.
Respondent mother failed to comply with most of the
requirements of the initial case plan, as well as a follow-up case
plan. Specifically, she failed to attend mental health
appointments at JCMHC, failed to attend scheduled parenting classes
at DSS, and did not maintain stable housing. On the other hand,
the court also found that during periods of time when respondentmother was living with relatives, she was able to make sure that
K.D.'s basic needs were met and took him to all his medical
appointments. The court found, however, that even though the
child's basic needs were at times being met, respondent mother was
not able to meet her own basic needs.
The court also found that respondent mother "does not
recognize the inappropriateness of her relationship with her
boyfriend that involves physical violence." A DSS worker described
a meeting with respondent mother in which they discussed the
possibility of respondent mother attending a support group for
women who are victims of domestic violence. Respondent mother
asked what domestic violence was, and when it was explained to her,
she responded, "What's wrong with that?" Although the social
worker attempted to explain the effects of domestic violence on
young children, respondent mother repeated that she did not feel
there was anything wrong with it.
At the end of August 2004, respondent mother agreed to place
K.D. with an aunt. K.D.'s daycare reported that following his
placement with the aunt, K.D. became "a completely different child"
and began talking, eating better, and working towards potty
training. K.D. has remained with the aunt.
In November 2004, DSS filed a petition alleging that K.D. was
a neglected and dependent child. The case was heard on 5 January
2005, at which time respondent mother was about three months
pregnant with a second child. After hearing all the evidence, the
trial court found that K.D. was neglected and dependent. K.D.'sdispositional hearing was held on the same date, and at its
conclusion, the court gave custody of K.D. to the aunt and relieved
DSS of further efforts towards reunification with respondent
mother. The adjudication and dispositional orders were entered on
1 March 2005. Respondent mother filed a timely notice of appeal.
 Respondent mother contends that the trial court violated
her psychologist-patient privilege by considering evidence _ in the
form of a letter and testimony _ from Cynthia Koempel of JCMHC.
The patient has the burden of establishing the existence of a
privilege and of objecting to the disclosure of such privileged
information. Adams v. Lovette
, 105 N.C. App. 23, 28, 411 S.E.2d
620, 624, aff'd per curiam
, 332 N.C. 659, 422 S.E.2d 575 (1992).
Respondent mother has not preserved this question for
appellate review. Under N.C.R. App. P. 10(b)(1), "[i]n order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context." Although respondent mother objected to various
statements that Koempel made during the hearing and to admission of
the letter from Koempel to respondent mother's social worker, she
did not object on the basis of privilege. Instead, her objections
were based on hearsay and expert qualifications. A party may not
assert at trial one basis for objection to the admission of
evidence, but then rely upon a different basis on appeal. SeeState v. Benson
, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)
("[Appellant] may not swap horses after trial in order to obtain a
thoroughbred upon appeal.").
Even apart from the Rules of Appellate Procedure, it is well-
established that a failure to object to requested disclosure of
privileged information constitutes a waiver of that privilege.
, 105 N.C. App. at 28, 411 S.E.2d at 624
. In Adams
Court held that "the defendant impliedly waived his alleged
[physician-patient] privilege because he objected to the request,
not on the grounds of privilege, but on the grounds of relevance."
at 29, 411 S.E.2d at 624. Accordingly, here, respondent
mother's failure to object to Koempel's testimony on the basis of
privilege amounted to a waiver of her right to claim the
psychologist-client privilege on appeal.
Finally, our General Assembly has stated repeatedly that the
psychologist-patient privilege does not operate to exclude evidence
regarding the abuse or neglect of a child. N.C. Gen. Stat. §
7B_310 (2005) ("No privilege, except the attorney-client privilege,
shall be grounds for excluding evidence of abuse, neglect, or
dependency in any judicial proceeding (civil, criminal, or
juvenile) in which a juvenile's abuse, neglect, or dependency is in
issue . . . ."); N.C. Gen. Stat. § 8_53.3 (2005) ("Notwithstanding
the provisions of this section, the psychologist-client or patient
privilege shall not be grounds for excluding evidence regarding the
abuse or neglect of a child . . . ."). See also State v. Knight
93 N.C. App. 460, 466-67, 378 S.E.2d 424, 427 (under § 8_53.3,defendant's statement to psychologist that he had been seduced by
underage stepdaughter was not privileged because it related to
abuse or neglect of child), disc. review denied
, 325 N.C. 230, 381
S.E.2d 789 (1989).
Further, N.C. Gen. Stat. § 8-53.3 permits the trial judge to
compel disclosure of otherwise privileged information "if in his or
her opinion disclosure is necessary to a proper administration of
justice." No explicit finding is required since such a finding is
implicit in the admission of the evidence. State v. Williams
N.C. 1, 21, 510 S.E.2d 626, 640, cert. denied
, 528 U.S. 880, 145 L.
Ed. 2d 162, 120 S. Ct. 193 (1999). This assignment of error is,
 Respondent mother next argues that the trial court erred
by adjudicating K.D. a neglected child. In a non-jury adjudication
of abuse, neglect, and dependency, "the trial court's findings of
fact supported by clear and convincing competent evidence 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). This Court reviews the trial court's conclusions of
law to determine whether they are supported by the findings of
Respondent mother specifically assigns error only to the
adjudication order's first and second findings of fact. Her brief,
however, contains no arguments challenging the first finding of
fact. We, therefore, deem that assignment of error abandoned. N.C.R. App. P. 28(a) ("Questions raised by assignments of error in
appeals from trial tribunals but not then presented and discussed
in a party's brief, are deemed abandoned."). As to the second
finding of fact, the only argument in respondent mother's brief
that addresses this finding pertains to the admissibility of
evidence from Koempel _ an argument we have already rejected.
As for the remaining findings of fact in the adjudication
order, respondent mother employs a single assignment of error to
challenge all of them generally. It is well-established that "[a]
single assignment generally challenging the sufficiency of the
evidence to support numerous findings of fact . . . is broadside
and ineffective." Wade v. Wade
, 72 N.C. App. 372, 375-76, 325
S.E.2d 260, 266, disc. review denied
, 313 N.C. 612, 330 S.E.2d 616
(1985). Respondent mother's broadside assignment of error is,
therefore, inadequate to preserve for review the sufficiency of the
evidence to support the findings of fact. Accordingly, our review
as to whether K.D. was correctly adjudicated to be neglected is
limited to determining whether the trial court's findings of fact
support its conclusions of law.
The Juvenile Code defines a neglected juvenile as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15). With respect to adjudications of
this Court has explained that "the 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
, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
In this case, the trial court found that respondent mother had
a history of leaving K.D. without ensuring he was properly
supervised, without advising her family that she was leaving, and
without making arrangements for his care. The court further found
that (1) despite a history of mental illness, which resulted in
hospitalization, respondent mother failed to follow through with
needed mental health services; (2) respondent mother, who is
mentally retarded, failed to attend parenting classes; (3)
respondent mother had not attended domestic violence or anger
management classes as suggested by DSS; and (4) respondent mother
does not recognize the inappropriateness of physical violence in
her relationships. Based on these specific findings, the court
entered an ultimate finding that K.D. was neglected because he "is
at substantial risk of harm of physical and emotional care as the
mother has failed to address the protective issues identified
during her involvement with the JCDSS including, but not limited to
h[is] mother's mental health issues, domestic violence issues,
anger management issues and parenting issues and lack of stable
housing." Respondent mother argues on appeal that these aspects of her
life, cited by the trial court as reasons why her son was
neglected, all pertain to her own functioning and not to the care
provided to the child. We disagree. Respondent mother's struggles
with parenting skills, domestic violence, and anger management, as
well as her unstable housing situation, have the potential to
significantly impact her ability to provide "proper care,
supervision, or discipline" for K.D. See In re M.J.G.
, 168 N.C.
App. 638, 647, 608 S.E.2d 813, 818 (2005) (trial court properly
adjudicated juvenile neglected based in part on mother's history of
domestic violence, unstable housing, and failure to utilize
services offered to her by DSS). We therefore conclude that the
trial court properly adjudicated K.D. to be a neglected juvenile.
 Respondent mother also argues that the trial court erred
in adjudicating K.D. a dependent child. A dependent juvenile is
one who is:
in need of assistance or placement because
this juvenile has no parent, guardian, or
custodian responsible for the juvenile's care
or supervision or whose parent, guardian, or
custodian is unable to provide for the care or
supervision and lacks an appropriate
alternative child care arrangement
N.C. Gen. Stat. § 7B_101(9) (emphasis added). Here, the trial
court found that K.D. was dependent because "the mother is not able
to provide proper care and supervision for the juvenile." On
appeal, respondent mother contends that she does not lack anappropriate alternative child care arrangement since she
voluntarily placed K.D. with her aunt.
This Court has previously held that a trial court failed to
make sufficient findings to support an adjudication of dependency
when a relative had agreed to take custody of the child in order to
prevent him from going into foster care. In re P.M.
, 169 N.C. App.
423, 427-28, 610 S.E.2d 403, 406 (2005). In P.M.
, the Court noted
that, although the trial court entered findings that the mother was
unable to provide for the child's care and supervision, the trial
court "never addressed the second prong of the dependency
definition. The trial court made no finding that respondent lacked
'an appropriate alternative child care arrangement.'" Id.
610 S.E.2d at 407. We are faced with the same situation here: the
trial court's language in the adjudication order tracks the first
prong of the definition of dependency, but ignores the second. We,
therefore, reverse as to K.D.'s dependency, and remand to the trial
court for further findings as to whether K.D. lacks "an appropriate
alternative child care arrangement."
Affirmed in part, reversed in part, and remanded.
Judges McGEE and CALABRIA concur.
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