Appeal by respondents from orders entered 11 February 2005, 17
June 2005 and 26 August 2005 by Judge George R. Murphy in Lee
County District Court. Heard in the Court of Appeals 10 May 2006.
Beverly D. Badsen, P.C., by Beverly D. Badsen, for petitioner-
appellee Lee County Department of Social Services.
Elizabeth Myrick Boone for Guardian ad Litem.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
respondent-appellant-grandmother.
Janet K. Ledbetter for respondent-appellant grandfather.
BRYANT, Judge.
Respondents (grandmother, C.K.
(See footnote 1)
and grandfather, R. K.) appeal
from a nonsecure custody order entered 11 February 2005
adjudicating their grandchildren, H.C. and G.C., neglected and
dependent and continuing legal and physical custody with Lee County
Department of Social Services (DSS-petitioner). Respondents also
appeal from 17 June and 26 August 2005 orders in which the trial
court denied respondent's Rule 59 Motion for a New Trial. H.C. (age 3) and G.C. (age 2) are the biological grandchildren
of C.K. and R.K. The grandparents had been the primary caregivers,
with the grandmother, a twenty-year licensed nurse practitioner,
assuming a majority of the responsibility. The grandparents were
married for forty-six years, and their daughter, J.E. is the
biological mother of H.C. and G.C. Due to J.E.'s substance abuse
problem, she cannot care for her children.
In September 2004, the grandmother was treated for physical
exhaustion and H.C. and G.C. went to stay with their biological
father in Georgia. Later that month, the grandmother brought H.C.
and G.C. back to North Carolina from Georgia and called DSS to say
she was leaving her alcoholic husband. The grandmother temporarily
moved into a studio apartment with H.C. and G.C. in late October
2004.
On 1 November 2004, DSS received anonymous calls alleging that
H.C. and G.C. were being emotionally abused and neglected because
they were being called “half-breeds.” In response to the referral,
DSS visited H.C. and G.C.'s daycare, the grandparents' home and the
grandmother's studio apartment on 2 November 2004. H.C. and G.C.
appeared to be clean and it was observed that H.C.'s tooth had been
knocked out, but her lip was not swollen or bruised. During the
visit, the grandmother explained H.C. had lost a tooth and took her
to a dentist the next morning. The grandmother denied allegations
of having had a nervous breakdown in September and stated her
physical health had greatly improved since then. She also denied
allegations that she yelled at H.C. and G.C. The grandfatherhowever, admitted to drinking several beers a day. He stated he
not only objected to interracial relationships and “mixed”
children, but also that he had a problem with H.C. and G.C. being
classified as black. The grandmother was in the process of
cleaning out the studio apartment while living there with H.C. and
G.C. The social worker, who inspected the apartment within days of
the grandmother moving in, stated it was severely cluttered such
that there was no clear walking path for the children and because
of the physical condition of the apartment felt that the children
were at risk of harm. DSS took custody of H.C. and G.C. on 3
November 2004.
At the 23 November 2004 adjudication hearing, respondents'
adult daughter testified that during her August 2004 visit to her
parent's home, she observed her father drinking heavily and making
derogatory remarks to H.C. and G.C. about their biological father.
The daughter testified she also observed the grandmother telling
the children that their “mother left you” and she “was all they
had.” At the hearing, the grandmother again denied yelling at H.C.
and G.C. and described them as well behaved, normal active children
who are not hard to handle. The grandmother expressed a desire to
care for the children and to take them home with her.
At the 7 December 2004 hearing, the grandfather testified and
admitted to drinking two to seven days a week. However, he also
testified that the grandmother takes excellent care of H.C. and
G.C. He denied allegations that the grandmother yelled at the
children, stating they were well behaved. He testified that shemoved out of their marital residence hoping to resume custody of
H.C. and G.C. Based on these facts, the trial court adjudicated
the children neglected and dependent with respect to the
grandfather and grandmother. The order was entered on 11 February
2005.
On 21 February 2005, the grandmother filed notice of appeal
and later that same day, the grandfather filed a motion for a new
trial, pursuant to N.C. Gen. Stat. § 1A-1, Rule 59. Attached to
the motion was an affidavit written by his eldest daughter stating:
“[C.K. and R.K.] take care of [my] 14 year old daughter every
afternoon after school . . . I visit my parents often and have
never seen them hit, switch, spank, pull hair or cuss any of their
grandchildren. I have never seen black eyes on [my children] or
any of the grandchildren in my parents care or any sexual abuse.”
On 22 March 2005 the trial court declined to hear the
grandfather's motion for a new trial for lack of jurisdiction. On
9 August 2005, the trial court denied the grandfather's motion for
a new trial. The orders were entered 17 June and 26 August 2005,
respectively. From these orders, in addition to the 11 February
2005 order adjudicating H.C. and G.C. neglected and dependent,
respondents appeal.
________________________________
Respondent grandmother raises the following issue on appeal:
whether the trial court erred in (I) failing to enter the
adjudication and disposition order within thirty days of the 7
December 2004 termination hearing. Respondent grandmother andgrandfather both raise on appeal: whether the trial court erred in
(II) denying respondent grandfather's Rule 59 motion for a new
trial; and (III) adjudicating H.C. and G.C. neglected and
dependent.
I
Respondent grandmother argues the trial court erred in failing
to enter the adjudication and disposition order within thirty days
of the 7 December 2004 termination hearing. We disagree.
(See footnote 2)
North Carolina General Statutes, Section 7B-807(b) requires
that an adjudication order “shall be in writing and shall contain
appropriate findings of fact and conclusions of law. . . .
[E]ntered no later than 30 days following the completion of the
hearing.” N.C. Gen. Stat. § 7B-807(b) (2005). However, reversing
orders absent a showing of prejudice and “simply because they were
untimely filed would only aid in further delaying a determination
regarding [] custody because juvenile petitions would have to be
re-filed and new hearings conducted.”
In re E.N.S., 164 N.C. App.
146, 153, 595 S.E.2d 167, 172 (trial court's failure to file child
neglect adjudication and disposition orders within thirty days as
required under G.S. 7B-807(b) was not grounds for reversal becausethe mother could not show how she was prejudiced by the late
filing),
disc. review denied, 359 N.C. 189, 606 S.E.2d 903 (2004).
In the case
sub judice, the adjudication hearing was held on
7 December 2004. The adjudication order was entered on 11 February
2005, thirty-four days after the orders should have been entered
pursuant to N.C.G.S. § 7B-807(b). Respondent grandmother alleges
that the thirty-four day delay in filing the order has “extended
the time she has been away from the children.” However, absent
specific evidence to support her argument and the
de minimis
violation, we hold the time delay in filing the adjudication and
disposition order did not prejudice respondent grandmother. This
assignment of error is overruled.
II
Respondents argue the trial court abused its discretion when
it denied respondent grandfather's Rule 59 motion for a new trial.
We disagree.
The 2003 version of N.C. Gen. Stat. § 7B-1003, which was in
effect at the time of the trial court's decision
(See footnote 3)
, states: Pending disposition of an appeal, the return
of the juvenile to the custody of the
[custodian] . . . with or without conditions,
may issue unless the court orders
otherwise. . . . For compelling reasons, which
must be stated in writing, the court may enter
a temporary order affecting the custody or
placement of the juvenile as the court finds
to be in the best interests of the juvenile or
the State.
N.C.G.S. § 7B-1003 (2003). A trial court's ruling on a Rule 59
motion is reviewable only for an abuse of discretion.
In re Will
of Buck, 350 N.C. 621, 516 S.E.2d 858 (1999). “[O]nce a party
gives notice of appeal, such appeal divests the trial court of its
jurisdiction, and the trial judge becomes
functus officio.”
R.P.R.
& Assocs. V. Univ. of N.C.-Chapel Hill, 153 N.C. App. 342, 346, 570
S.E.2d 510, 513 (2002),
disc. review denied, 357 N.C. 166, 579
S.E.2d 882 (2003);
see N.C. Gen. Stat. § 1-294 (2005). Only if a
party appeals a non-appealable interlocutory order, may the trial
court properly proceed with the case.
Id. at 347, 570 S.E.2d at
514. Adjudication and disposition orders are final, appealable
orders and this exception does not apply to those cases. N.C. Gen.
Stat. § 7B-1001(3) and (4) (2005).
In the case
sub judice, the grandmother filed her notice of
appeal of the nonsecure custody order conferring jurisdiction on
this Court. This was done before the grandfather filed his Rule 59
motion, even though both filings occurred on 21 February 2005. At
the 22 March 2005 Rule 59 hearing, the trial denied the motion for
lack of jurisdiction. On 9 August 2005, the trial court held a
rehearing of the grandfather's motion for a new trial and decided
that since the grandmother's appeal had not been dismissed by thisCourt, the trial court was divested of jurisdiction to hear the
motion and issued an order denying the motion pending the appeal
process.
Respondents' rely on
In re R.T.W., 359 N.C. 539, 614 S.E.2d
489 (2005), for the proposition that the jurisdiction of the trial
court continues notwithstanding a pending appeal.
See R.T.W., 359
N.C. at 547, 614 S.E.2d at 494 (holding a trial court does retain
jurisdiction to enter an order terminating parental rights while
appeal is pending in the same case). The Juvenile Code requires
that review “of a final order of the court in a juvenile matter
shall be made directly to the Court of Appeals.” N.C. Gen. Stat.
§ 7B-1001 (2003). A final order includes any order modifying
custodial rights. N.C. Gen. Stat. § 7B-1001(4) (2003). Thus,
pending disposition of such an appeal, the trial court's authority
over the juvenile is statutorily limited to entry of “a temporary
order affecting the custody or placement of the juvenile as the
court finds to be in the best interests of the juvenile or the
State.” N.C. Gen. Stat. § 7B-1003 (2003). In the instant case,
however, respondent filed a motion for a new trial while
grandmother's custody appeal was pending. Neither the holding in
R.T.W. nor the 2003 version of N.C.G.S. § 7B-1003 allows the trial
court to continue to exercise jurisdiction to hear motions for a
new trial after a custody order has been appealed to this Court.
N.C.G.S. § 7B-1003 (2003). Consequently, the trial court properly
denied respondent grandfather's motion for a new trial. This
assignment of error is overruled.
III
Respondents argue the trial court erred in adjudicating H.C.
and G.C. neglected and dependent as there was a lack of clear and
convincing evidence of neglect and dependency. 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 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 the law.
N.C. Gen. Stat. § 7B-101(15) (2005).
“When an appellant asserts that an adjudication order of the
trial court is unsupported by the evidence, the appellate court
examines the evidence to determine whether there exists clear,
cogent and convincing evidence to support the findings.”
In re
McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003). Clear
and convincing evidence should be evidence which will “fully
convince.”
In re Smith, 146 N.C. App. 302, 304, 552 S.E.2d 184,
186 (2001). The petitioner bears the burden of showing neglect and
dependency by clear and convincing evidence. N.C. Gen. Stat. § 7B-
805 (2005). While the determination of neglect is a fact specific
inquiry, “not every act of negligence” results in a “neglected
juvenile.”
In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258
(2003) (an anonymous call reporting an unsupervised, naked,
two-year-old in her driveway, standing alone, does not constitute
neglect). A parent's conduct in a neglect determination must be
viewed on a case-by-case basis considering the totality of theevidence.
Speagle v. Seitz, 354 N.C. 525, 531, 557 S.E.2d 83, 86
(2001),
cert. denied, 536 U.S. 923, 153 L. Ed. 2d 778 (2002).
The grandmother was H.C. and G.C.'s primary caretaker since
their birth. The grandmother separated and relocated from the
abusive and alcoholic grandfather, her husband of forty-six years,
to provide a more conducive child rearing environment for H.C. and
G.C. After making such a significant lifestyle change, DSS
appeared within days of grandmother's relocation to a studio
apartment and reported that it was severely cluttered with boxes
such that there was no clear walking path. Other than H.C.'s tooth
being knocked out after falling in the grandmother's new apartment,
the record contains no evidence of an “environment injurious to the
juveniles' welfare” as stated in the trial court's order.
The standard of appellate review of a trial court's
conclusions of law is limited to whether the court's conclusions
are supported by the findings of fact.
In re Helms, 127 N.C. App.
505, 511, 491 S.E.2d 672, 676 (1997).
“When a trial court is
required to make findings of fact, it must make the findings
specially. The trial court may not simply recite allegations, but
must through processes of logical reasoning from the evidentiary
facts find the ultimate facts essential to support the conclusions
of law.”
In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337
(2003) (citations omitted).
In the disposition order, the trial court concluded that DSS
“was precluded from making reasonable efforts to prevent and/or
eliminate the need for the juveniles' [out of home] placement.” However, there is no finding to indicate what DSS' reasonable
efforts were in this case. N.C. Gen. Stat. § 7B-507(b) (2005)
(See footnote 4)
.
From the time DSS removed the children from respondent
grandmother's custody and placed them in foster care, the record
does not reflect reasonable efforts by DSS to reunify the children
with their grandmother; rather the opposite appears true.
See In
re Everett, 161 N.C. App. 475, 480, 588 S.E.2d 579, 583 (2003)
(“[T]he record reveals that DSS never pursued reunification efforts
with respondent, or properly evaluated [respondent's] parenting
capabilities. Therefore, the record would not support a finding
that reunification was futile under N.C. Gen. Stat. §
7B-507(b)(1).”).
The trial court's order incorporated by reference the 7
December 2004 DSS court report stating although the grandmother has
“secured an appropriate home environment” and “continues to reside
separate from [her husband]”, DSS stated H.C. and G.C.'s risk of
harm had not decreased. At the time of the seven-day hearing, thegrandmother had moved out of the cluttered studio apartment into
another home and the social worker testified that it was clean,
uncluttered and had separate bedrooms for H.C. and G.C. The
grandmother testified that she experienced occasional back and knee
pain, but at the time of the hearing did not have physical
limitations preventing her care for her grandchildren. In addition
to meeting the daily needs of H.C. and G.C., she read to them and
indicated that they are well behaved. At the time the children
were taken into DSS custody, testimony from the social worker
indicated they appeared healthy, well fed and clean.
See Stumbo at
283, 582 S.E.2d at 258 (“In order to adjudicate a juvenile
neglected, [our] courts have additionally required that there be
some physical, mental, or emotional impairment of the juvenile or
a substantial risk of such impairment as a consequence of the
failure to provide proper care, supervision, or discipline.”)
(citations omitted) (internal quotation marks omitted). Clearly,
the conditions that initially led to the removal of H.C. and G.C.
had been corrected by the grandmother at the time of the hearing,
such that she was no longer living with the grandfather and she had
no physical limitations to caring for her grandchildren. We find
no clear and convincing evidence to support the trial court's
conclusion of neglect as to the grandmother.
A dependent juvenile is defined as one who is:
in need of assistance or placement because the
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 orsupervision and lacks an appropriate
alternative child care arrangement.
N.C. Gen. Stat. § 7B-101(9) (2005). “Under this definition, the
trial court must address both (1) the parent's ability to provide
care or supervision, and (2) the availability to the parent of
alternative child care arrangements.”
In re P.M., 169 N.C. App.
423, 427, 610 S.E.2d 403, 406 (2005).
Here, the adjudication hearing occurred only one month after
DSS filed the petition for abuse, neglect and dependency. At that
time, the grandmother's health had greatly improved from her
medical condition of September 2004. By the time of the hearing,
the grandmother testified that she did not feel like her health
would interfere or keep her from caring for H.C. and G.C. There
was no testimony that challenged the grandmother's physical ability
to care for H.C. and G.C. The grandmother testified she was able
and capable of caring for H.C. and G.C. and had since moved to a
suitable uncluttered home environment. The trial court concluded
“[n]o clear, cogent or convincing evidence has been presented . . .
[of any] serious emotional damage” to the grandchildren. Based on
the absence of evidence of abuse or a lack of care on the
grandmother's part, petitioner failed to meet its burden and the
trial court erred in adjudicating H.C. and G.C. neglected and
dependent. We therefore reverse the trial court's judgment as to
the grandmother.
With respect to the grandfather, who lives in a separate
residence from the grandmother, we note the trial court's findings
regarding his alcoholism and his lack of assistance in rearing H.C.and G.C.,
inter alia, support its conclusions as to neglect and
dependency. The trial court did not err in adjudicating the
children neglected and dependent as to the grandfather.
Affirmed as to the denial of the new trial motion and
adjudication of neglect and dependency as to grandfather.
Reversed as to the adjudication of neglect and dependency as
to the grandmother.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1