IN THE MATTER OF:
Cabarrus County
C.P. No. 01 J 15
3
Kathleen Arundell Widelski for petitioner-appellee Cabarrus
County Department of Social Services; Victoria Bost for
Guardian ad Litem.
Franklin Plummer for appellee maternal relatives.
John Nance for respondent-appellee mother.
Rebekah W. Davis for respondent-appellant father.
HUNTER, Judge.
Respondent-father (“respondent”) appeals from orders of the
trial court adjudicating his minor child, C.P., neglected, and
concluding that reunification and visitation between respondent and
C.P. were not in the best interests of the child. Respondent
contends that certain findings and conclusions by the trial court
in its adjudication order are not supported by clear and convincing
evidence, and that the trial court abused its discretion in its
order of disposition. We affirm the orders of the trial court.
Respondent and respondent-mother married in October of 1997.
Shortly after their marriage, respondent-mother gave birth to a
child, T.P. Respondent was not T.P.'s biological father. C.P.,respondent's biological daughter, was born in May of 1999. When
C.P. was a few weeks old, respondent and respondent-mother placed
physical custody of the infant with maternal relatives. T.P.
remained with respondent and respondent-mother. Although
respondent and respondent-mother visited C.P. and retained legal
custody of the child, the maternal relatives remained C.P.'s
primary caregivers.
Respondent and respondent-mother separated in September of
2000, and eventually initiated proceedings to determine custody of
T.P. and C.P. On 9 May 2001, a civil custody hearing was held.
At the conclusion of the hearing, the trial court found that
neither respondent nor respondent-mother were fit and proper
persons to have custody of C.P. and her sister, and placed
temporary custody of the children with maternal relatives. In its
14 June 2001 civil custody order, the trial court specifically
found that respondent was unfit in that:
a. He has occasional fits of temper and
profanity which prevent him from providing
suitable care and discipline for the minor
children . . . .
b. He has left his minor child [C.P.]
in the permanent care and control of [maternal
relatives], who have taken good care of the
minor child, and [he] did so both before and
after the separation of the parties, from the
age of 2 weeks.
c. While in the care of [respondent]
for visitation, the minor children have
suffered repeated unexplained injuries and
patterns of bruises, and even a limp on one
occasion, which appear to be more significant
and more frequent than the ordinary playtime
injuries expected among children of their
ages.
d. [Respondent] has been classified as
Behaviorally Handicapped since high school,
and receives monthly payments for this
disability in the amount of $530.00 per month.
Though this disability does not prevent him
from doing many things, it interferes
significantly with his judgment and his
ability to act as a full-time parent without
assistance.
The trial court also found that neither respondent nor respondent-
mother “provided any formal child support or consistent financial
assistance” to the maternal relatives for their care of C.P.
Respondent did not appeal from the 14 June 2001 civil custody
order.
Following the civil custody hearing, the trial court ordered
the Cabarrus County Department of Social Services (“DSS”) to begin
an immediate investigation into allegations raised at the hearing
that T.P. had been sexually abused. Respondent-mother thereafter
entered into a consent order in which she agreed that C.P. and T.P.
were abused and neglected. The consent order allowed for monthly
supervised visitation with C.P. DSS subsequently substantiated
sexual abuse of T.P. by respondent, and the child was adjudicated
abused and neglected as to respondent.
(See footnote 1)
On 4 March 2004, DSS filed a juvenile petition alleging C.P.
lived in an environment injurious to her welfare while in her
father's care and was therefore a neglected juvenile as defined by
section 7B-101(15) of the North Carolina General Statutes. Specifically, the petition alleged C.P. was neglected in that her
sibling, T.P.,
was adjudicated an abused and neglected child
as to her legal father, [respondent], on
November 19, 2003.
[C.P.], at the time [T.P.] was abused and
neglected by her father, also had visitation
with the father at [the] same time and
location as [T.P.] and was in the same
environment.
[C.P.] is a neglected child in that she
visited in the home, and was in the care, of
[respondent] where and when another child,
[T.P.], has been abused and/or neglected.
The matter came before the trial court on 10 December 2004.
DSS introduced evidence of the 14 June 2001 civil custody hearing
order. Notably, the trial judge for the civil custody action was
the same judge who presided over the adjudication hearing. At the
conclusion of the evidence, the trial court found C.P. to be
neglected. A disposition hearing was held on 23 December 2004. In
its subsequent order of disposition, the trial court determined
that efforts to reunify C.P. and respondent would be futile and
inconsistent with the child's needs. The trial court found that it
was in C.P.'s best interests to be placed in the legal guardianship
of the maternal relatives who had raised her. The trial court
ordered respondent to have no direct contact with C.P., and placed
future visitation between respondent and the child in the
discretion of her legal guardians. From the orders of adjudication
and disposition, respondent appeals. Respondent-mother does not
appeal. By his first assignment of error, respondent contends that
Findings of Fact Nos. 4 and 11 in the adjudication order are
unsupported by the evidence and must be vacated. We do not agree.
Finding of Fact No. 4 provides as follows:
In the Consent Order signed by [respondent-
mother], the mother of the juvenile [C.P.],
the mother also stipulated to the following:
“[Paragraph] 5. On August 14, 2002, the
mother stipulated that [T.P.], half sister to
[C.P.], was a neglected child based upon the
mother failing to provide proper care and
supervision in that the child [T.P.] had been
determined to have been definitely sexually
abused and the mother continued to leave the
child in the care of [respondent] when she
believed he was the perpetrator of the abuse.
The mother also failed to cooperate with the
investigation regarding . . . the sexual abuse
of [T.P.] [C.P.] is a neglected child in that
she lived in the home where another child had
been neglected.”
Respondent contends that this recitation of the stipulation entered
into by respondent-mother unfairly prejudices him and was used to
support a finding of neglect. He argues the finding “insinuates
that the father was the perpetrator in T.P.'s case” when in fact
the trial court declined to find that respondent sexually abused
T.P. We do not agree that the finding was improper or that it
prejudiced respondent.
First, respondent does not argue that the finding is not
supported or is contradicted by the evidence. In fact, the finding
is an accurate recitation of respondent-mother's stipulation in her
consent judgment. Further, any “insinuations” aside, Finding of
Fact No. 4 does not find that respondent sexually abused T.P., only
that respondent-mother believed he had. As noted supra, the sametrial judge presided over the civil custody hearing and the
adjudication and disposition hearings for T.P. and C.P. In its
adjudication order finding T.P. abused and neglected, the trial
court specifically found that, although there was circumstantial
evidence to suggest that respondent may have sexually abused T.P.,
there was no clear and convincing evidence therefor. We do not
conclude that the mere recitation of respondent-mother's
stipulation containing an allegation of sexual abuse against
respondent prejudiced him, where the trial court explicitly
declined to find respondent had committed sexual abuse.
Respondent also objects to Finding of Fact No. 11, which
states as follows:
Prior to the filing of the Chapter 50 action
in 2001, neither [respondent-mother] nor
[respondent] made any significant effort to
care for [C.P.] nor to obtain her return from
the direct care and supervision of [the
maternal relatives], even though C.P. was in
the legal custody of the respondent parents
. . . .
Again, respondent does not demonstrate that this finding is lacking
in factual basis. Rather, respondent contends that, as the trial
court found that respondent and respondent-mother were unfit to
provide proper care and supervision to their children, the decision
to place C.P. with maternal relatives showed “good judgment” on
their part and does not support a conclusion of neglect. In a
related assignment of error, respondent argues that the finding of
neglect by the trial court is unsupported by clear and convincing
evidence. We do not agree. A neglected juvenile includes one who “does not receive proper
care, supervision, or discipline from the juvenile's parent[.]”
N.C. Gen. Stat. § 7B-101(15) (2005) (emphasis added). Here, the
trial court found that “[f]rom the age of a few weeks until on or
about June 14, 2001, [C.P.] was in the physical care of [the
maternal relatives], having been placed there by her parents, who
retained legal custody of the juvenile [C.P.]” Respondent does not
assign error to this finding of fact. In the 14 June 2001 civil
custody order from which respondent did not appeal, the trial court
found that respondent never “provided any formal child support or
consistent financial assistance” to the maternal relatives caring
for C.P. The trial court concluded that “for the entire life of
the juvenile [C.P.] from the age of a few weeks, the juvenile
clearly did not receive proper care, supervision or discipline from
the juvenile's parent, to wit, respondent father . . . .” There
was clear and convincing evidence before the trial court that, for
almost the entirety of C.P.'s life, respondent did not personally
care for or supervise her, and that he also failed to provide
financial assistance for her support. Having failed to provide
personal care or financial support for C.P., respondent cannot now
seriously contest a finding of neglect by the trial court.
The trial court also found C.P. neglected in that
during those periods of overnight parental
visitation with respondent . . . from May,
2001 to July, 2001 set out in the prior
Chapter 50 order concerning both [T.P.] and
[C.P.], the juvenile [C.P.] was living in a
home where another juvenile had been subjected
to abuse or neglect by an adult who regularly
lives in the home, to wit, [respondent] whowas required under the Chapter 50 order to
exercise his visitation at that location.
Under section 7B-101(15) of the General Statutes, “[i]n determining
whether a juvenile is a neglected juvenile, it is relevant whether
that juvenile lives in a home where another juvenile . . . has been
subjected to abuse or neglect by an adult who regularly lives in
the home.” N.C. Gen. Stat. § 7B-101(15). As noted supra, the
trial court found, and this Court has affirmed, that respondent
abused and neglected C.P.'s sister, T.P. We conclude the trial
court did not err in adjudicating C.P. neglected, and we overrule
this assignment of error.
Finally, respondent argues the trial court abused its
discretion in its order of disposition by concluding that contact
between respondent and C.P. was not in the best interests of the
child. Respondent contends that respondent-mother was equally
responsible for neglecting C.P., yet still enjoys supervised
visitation with the child. Respondent argues this disparity by the
trial court demonstrates abuse of discretion. We disagree.
In an abuse and neglect proceeding, “the court's primary
concern must be the child's best interest.” In re Pittman, 149
N.C. App. 756, 760-61, 561 S.E.2d 560, 564, disc. review denied,
356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982,
155 L. Ed. 2d 673 (2003). In determining a child's best interests,
any evidence which is competent and relevant
to a showing of the best interest of that
child must be heard and considered by the
trial court, subject to the discretionary
powers of the trial court to exclude
cumulative testimony. Without hearing and
considering such evidence, the trial courtcannot make an informed and intelligent
decision concerning the best interest of the
child.
In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).
In the present case, the trial court found that respondent had
left C.P. at a very early age in the care of maternal relatives and
never took any action to have the child returned to his care; nor
did he provide financial support for the care of C.P. while she
lived with her caretakers. The trial court found that respondent
had problems managing his anger, and that he had been convicted of
the felony of intimidating a witness after respondent attempted, in
the presence of C.P., to break into a vehicle driven by C.P.'s
caretaker, and threatened to kill the caretaker. Following that
incident, C.P. experienced nightmares. Respondent was also
convicted of two counts of communicating threats. In addition, the
trial court noted that C.P. and her sister, while in respondent's
care, “suffered repeated and unexplained injuries and patterns of
bruises, and even a limp on one occasion, which appeared to be more
significant and more frequent than the ordinary playtime injuries
expected among children of their ages.” Further, the trial court
found that respondent “had fits of temper and profanity that
prevented him from providing suitable care and discipline to his
children.” Finally, the trial court during the civil custody
hearing determined that respondent was unfit to have custody of his
children. Although we agree that respondent-mother was also
responsible for the events necessitating DSS's involvement with
C.P., in light of the evidence and the trial court's findings, wefind no abuse of discretion by the trial court in concluding that
contact between respondent and C.P. would not be in the child's
best interests. We overrule respondent's final assignment of
error.
The orders of adjudication and disposition are affirmed.
Affirmed.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).
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