IN RE:
C.M.H., B.N.H., Harnett County
& S.W.A. No. 95 J 106-7; 96 J 134
Sofie W. Hosford for respondent-mother appellant.
Lisa Skinner Lefler for respondent-father appellant.
E. Marshall Woodall for petitioner-appellee Harnett County
Department of Social Services.
Elizabeth Boone for appellee Guardian ad Litem.
ELMORE, Judge.
T.H. (respondent mother) and R.A. (respondent father)
(collectively, respondents) appeal an order of the trial court
adjudicating their natural children, C.M.H., B.N.H., and S.W.A., to
be neglected juveniles and C.M.H. to be an abused juvenile. The
Harnett County Department of Social Services (petitioner) filed
petitions on 7 December 2004 alleging abuse and neglect of the
juveniles. An adjudication and disposition hearing was held on 21
January 2005 and 11 February 2005. The trial court considered the
testimony of three social workers, two probation officers, a police
officer, B.N.H., and respondent mother. The evidence establishedthe following: In August of 2004 C.M.H. was hospitalized at Holly
Hill, a mental health facility, due to suicidal thoughts. The
discharge instructions for C.M.H. were that she complete follow-up
outpatient treatment at Lee-Harnett Mental Health. Respondents
took C.M.H. to only two of her follow-up visits and then missed the
next visit and failed to schedule any further appointments. On 26
November 2004 petitioner received a report that respondent mother
and C.M.H. had been in a physical fight. Following the fight,
respondent mother went outside and got the attention of a police
officer nearby. The officer decided to transport C.M.H. to Good
Hope Hospital after C.M.H. stated that she wanted to kill herself.
C.M.H. was involuntarily committed to the hospital.
Respondent father was on probation for a conviction of
obtaining property by false pretenses until his probation was
revoked and sentence activated on 20 January 2005. Respondent
father had tested positive for cocaine on five separate drug tests
prior to the time his probation was revoked. Respondent mother
tested positive for cocaine in December of 2004, at the time she
was treated at the hospital for an overdose on C.M.H.'s sleeping
pills. Probation officers who inspected the home periodically
discovered roaches in the kitchen cabinets and very little
substantial food in the house. Also, on several occasions the
three children were left alone in the home until late at night
without supervision. C.M.H. told the Guardian ad Litem that her
parents would go into the bathroom and use crack. The court found, ex mero motu, that the abuse alleged in the
petition was emotional abuse of C.M.H. rather than physical abuse.
The court then ordered that the allegations in the petition be
amended to conform to the evidence presented. The court concluded,
inter alia, that further efforts to reunite the juveniles with
respondents would be futile and that it was in the best interest of
the juveniles that custody be granted to petitioner.
On appeal, respondents first assign error to the trial court's
motion to amend the petition to change the allegation of abuse from
physical abuse to emotional abuse. Respondents assert the
amendment of the petition denied them notice of the allegations
prior to trial. Rule 15 of the North Carolina Rules of Civil
Procedure permits amendments of the pleadings to conform to the
evidence presented at trial. See N.C. Gen. Stat. § 1A-1, Rule
15(b) (2005). The trial judge's decision to amend the pleadings is
reviewed for an abuse of discretion.
(See footnote 1)
See Auman v. Easter, 36 N.C.
App. 551, 555, 244 S.E.2d 728, 730, disc. review denied, 295 N.C.
548, 248 S.E.2d 725 (1978). The party objecting to the amendment
has the burden of showing material prejudice. Id. Also relevant
to our consideration is whether respondents were denied notice ofthe substance of the amended allegations and an opportunity to
defend them. See In re Krauss, 102 N.C. App. 112, 117, 401 S.E.2d
123, 126 (1991) (amendment to petition not in error where
respondent failed to show that he was denied a chance to be heard
on the substance of the amendments).
Respondents point out that, although Rule 15(b) permits
amendments to the pleadings, it also permits the party objecting to
request a continuance. Thus, respondents assert, the trial judge's
ruling to amend the pleadings after the evidence was presented
denied them a fair trial because they could not seek a continuance
at that point. We must note, however, that Rule 15(b) provides
that a party may object during trial to the presentation of
evidence not within the issues raised in the pleadings and that the
trial court may grant a continuance to allow the objecting party to
defend this evidence. See N.C. Gen. Stat. § 1A-1, Rule 15(b)
(2005). Thus, respondents had the opportunity to object at trial
and request a continuance if any evidence raised new issues. Yet
neither of respondents objected or requested additional time to
prepare a response.
Moreover, the record reveals that respondents already had
notice of the substance of the amended allegations. The original
petition alleged the facts of the physical fight between respondent
mother and C.M.H. in November of 2004 resulting in C.M.H. telling
a police officer that she wanted to kill herself; the failure of
respondents to transport C.M.H. to outpatient follow-up treatment
at Lee-Harnett Mental Health; and the behavioral problems of C.M.H.indicating that continued treatment at Lee-Harnett Mental Health
following C.M.H.'s commitment was necessary for C.M.H.'s mental
health. Respondents have simply failed to show an abuse of
discretion by the trial court.
Next, respondents challenge the trial court's finding that
C.M.H., B.N.H., and S.W.A. are neglected juveniles. A neglected
juvenile is defined 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 a 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) (2005). This Court's review of a
trial court's finding of neglect or abuse involves determining “(1)
whether the findings of fact are supported by clear and convincing
evidence, and (2) whether the legal conclusions are supported by
the findings of fact.” In re Pittman, 149 N.C. App. 756, 763-64,
561 S.E.2d 560, 566, disc. review denied, 356 N.C. 163, 568 S.E.2d
608 (2002) (internal quotations omitted). Significantly here,
respondent mother did not assign error to any of the trial court's
specific findings regarding neglect; she assigns error only to the
general finding that the juveniles were neglected.
(See footnote 2)
These
unchallenged findings, then, are deemed to be supported bycompetent evidence. See Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991). The following findings of the trial court
were not separately assigned as error:
8. All Juveniles have not received proper
care, supervision and discipline from their
parents when
a. Respondent Mother engage in a fight as
mentioned above with Juvenile [C.M.H.] in the
presents of the other juveniles;
b. The Parents failed to seek and obtain
appropriate and timely medical and/or remedial
services and treatment for the juveniles, to
include mental health treatment for [C.M.H.],
dental attention for all the juveniles, and
optometric services for [B.N.H.] and [S.W.A.],
when the family had Medicaid benefits
available for the juveniles.
c. The Parents engaged in the use of illegal
drugs to the extent that they both were
addicted to the use thereof and failed to be
employed on a full time basis;
d. The Parents failed to use their income for
proper housing and support of their household
to the extent of having the family needs
furnished by others;
e. The Parents failed to keep their home in a
sanitary condition, failed to maintain stable
housing for the family unit, and failed to
maintain adequate food supplies in the home
when the family had food stamp benefits
available for the family unit;
f. The Parents allowed the juveniles to be
home alone late at night and without any adult
being present;
g. The Father engaged in criminal activity
resulting in a probationary sentence and later
violated the terms of his probation (to
include larceny and the storing of stolen
property in the family home) causing
incarceration in the State's Prison System.
Said activity has robbed the juveniles of
their father's parental presence.
9. As a result of the foregoing, the juveniles
have been allowed to live in an environment
which has been injurious to their welfare.
The findings stated supra establish that respondents have failed to
maintain stable housing and a sanitary home environment; have used
illegal drugs in the home; have failed to seek necessary medical
treatment for the children; and have failed to properly supervise
the children. These findings of fact are conclusive on appeal, see
In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991)
(findings of fact supported by competent evidence are conclusive on
appeal), and the findings support the conclusion of neglect.
Respondents argue nonetheless that the trial court failed to
consider evidence of changed circumstances and the probability of
repetition of neglect. Specifically, respondent mother points out
the testimony that she had obtained a job in the past month and a
two-bedroom mobile home. But the record also contains evidence
that respondents were not following the case plan outlined by
petitioner. In particular, respondent mother failed to obtain a
substance abuse assessment; the children have not been examined by
a physician in over a year; the children have reported being locked
out of the home for hours while their parents used illegal drugs;
and respondents have not maintained stable employment. As such,
petitioner presented evidence of a likelihood of repetition of
neglect in the future. See In re Shermer, 156 N.C. App. 281, 287-
88, 576 S.E.2d 403, 407-08 (2003) (evidence that parent has or has
not completed various parts of the case plan is relevant to
consideration of probability of repetition of neglect). Next, respondent mother contends the trial court erred in
concluding that she abused C.M.H. because petitioner failed to
present clear, cogent and convincing evidence that she created or
allowed serious emotional damage to C.M.H. An abused juvenile is
defined in pertinent part as:
Any juvenile less than 18 years of age whose
parent, guardian, custodian, or caretaker:
. . .
e. Creates or allows to be created serious
emotional damage to the juvenile; serious
emotional damage is evidenced by a juvenile's
severe anxiety, depression, withdrawal, or
aggressive behavior toward himself or
others[.]
N.C. Gen. Stat. § 7B-101(1)(e) (2005). Neither of respondents
assign error to any of the specific findings of fact concerning
emotional abuse; respondent mother assigns error only to the
general finding of abuse. As such, the following findings not
excepted to are deemed to be supported by competent evidence:
7. Juvenile [C.M.H.] is an emotionally abused
juvenile as defined by statute when
a. The Respondent Mother engaged in a fight
with the juvenile and caused the juvenile to
be thrown across the bed and then upon the
floor in such manner that the incident caused
the Juvenile to become so upset as to threaten
suicide to a police officer resulting in the
hospitalization of the juvenile in Holly Hill
Hospital which is a mental hospital;
b. The Respondent Parents failed to follow up
with appropriate and timely mental health
treatment for said Juvenile after she was
hospitalized at a mental health hospital by
failing to keep appointments after the
Juvenile's discharge from the hospital and
failing to take sufficient interest in the
Juvenile's mental health condition to know andunderstand the Juvenile's needs, thus allowing
the juvenile to suffer serious emotional
damage which exacerbated her emotional well-
being and problems.
The competent evidence establishes that the fight between C.M.H.
and her mother resulted in C.M.H. being hospitalized for suicide
threats; that respondents failed to transport C.M.H. to follow-up
mental health services and failed to schedule the necessary visits;
and that C.M.H. was hospitalized twice for suicidal idealizations
arising out of her home life. The unchallenged findings in the
trial court's order support its conclusion that C.M.H. was an
emotionally abused juvenile.
Respondents have abandoned their remaining assignments of
error in the record. Respondent father lists two additional
assignments of error and respondent mother lists one additional
assignment of error; however, these assignments are not addressed
or argued in the briefs. As such, they are abandoned pursuant to
our Rules of Appellate Procedure. See N.C.R. App. P. 28(b)(6).
We affirm the order of adjudication entered by the trial
court.
Affirmed
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
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