An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
IN THE MATTER OF:
J.W.B. Buncombe County
No. 04 J 339
Appeal by respondent mother from order entered 11 August 2005
by Judge Gary S. Cash in Buncombe County District Court. Heard in
the Court of Appeals 18 May 2006.
Matthew J. Middleton, for petitioner-appellee Buncombe County
Department of Social Services.
Michael N. Tousey, for petitioner-appellee Guardian ad Litem.
Rebekah W. Davis, for respondent-appellant.
A.R. (respondent) appeals from order entered adjudicating
her minor child, J.W.B., neglected. We affirm.
J.W.B. was born prematurely in July 2003 at thirty-four weeks.
At age nine or ten months, he was diagnosed as having
Hydrocephalus, or water on his brain. J.W.B. is developmentally
delayed and receives speech and physical therapy in Asheville and
medical care from Duke University Medical Center in Durham.
Respondent is forty-one years old and was previously twice
married. Respondent and J.W.B.'s biological father met in 2002,
but never married. They resided together for approximately one
year and separated in April 2004. The relationship betweenrespondent and J.W.B.'s father became violent while the couple
lived together. The parties threw cups and plates at each other.
On several occasions, respondent threw items in the direction of
J.W.B.'s father when J.W.B. was located within a few feet of him.
Respondent would become angry two or three times per month and
would shake for no apparent reason. On several occasions,
respondent threatened to kill herself with a knife and locked
herself in the bathroom for several hours. J.W.B.'s father hid all
knives located in the house.
This behavior began when respondent was pregnant with J.W.B.
and continued after his birth. On other occasions, respondent
threatened to kill herself and walked into the public roadway as if
she might throw herself into oncoming traffic. Before J.W.B. was
born, respondent pushed the child's father into an entertainment
center. Approximately two months after J.W.B. was born, respondent
stated she was going to kill herself and was going to take J.W.B.
and set him out and walk away. On another occasion, respondent
pushed J.W.B.'s father down and slammed a door in his face.
Respondent told J.W.B.'s father that she was bipolar and had
previously been committed to a hospital.
J.W.B.'s father primarily cared for him on weekends while
respondent worked. On some weekends, J.W.B.'s father drank a
twelve pack of beer during the day while caring for J.W.B.
Respondent left J.W.B. with his father knowing he was drinking
these amounts, but testified she did not know his drinking wasgetting out of hand. J.W.B.'s father was drinking on the several
occasions when he was violent toward respondent.
The Buncombe County Department of Social Services (DSS)
received a complaint regarding an altercation between respondent,
J.W.B.'s father, and J.W.B.'s paternal grandmother in April 2004.
DSS conducted an investigation and observed respondent, J.W.B.'s
father, J.W.B.'s maternal and paternal grandparents, and eight
other persons. Based on its investigation, DSS substantiated
J.W.B. was neglected. DSS observed J.W.B., who appeared to be in
good health and dressed appropriately. J.W.B. could not pull
himself up, as appropriate for his age.
Respondent and J.W.B. lived with respondent's parents from 27
April 2004 until June 2004. From June 2004 until August 2004, they
lived in a domestic violence shelter until respondent and J.W.B.
moved back into her parents' residence.
In June 2004, respondent refused DSS's request for
authorization to obtain respondent's medical records. DSS was
concerned about: (1) the safety of J.W.B. due to the prior suicide
threats made by respondent; (2) respondent's history of domestic
violence; (3) the excessive alcohol consumption of J.W.B.'s father;
(4) acts of domestic violence; and (5) respondent's failure to
complete a prior case plan involving another child.
DSS located respondent at the local Helpmate Domestic Violence
Shelter in July 2004. Respondent agreed to a family services case
plan on 21 July 2004 in which she would: (1) obtain a mental
health evaluation; (2) obtain a substance abuse assessment andcomply with all recommendations; (3) obtain an assessment to
determine her need for domestic violence counseling; and, (4)
attend parenting classes. Respondent informed the social worker of
a scheduled appointment at Duke University Medical Center to have
J.W.B. evaluated. Respondent indicated she had no desire to
continue residing with her parents and intended to apply for
government subsidized housing. Respondent admitted she was angry
and tore the telephone out of the wall during the April 2004
altercation with J.W.B.'s father.
DSS referred respondent for government subsidized housing,
provided contact information for mental health providers, and gave
respondent a bus pass. In early August 2004, respondent told the
social worker she had been approved for government subsidized
housing, food stamps, and Medicaid.
On 21 August 2004, a DSS social worker contacted the Helpmate
Shelter and was told that respondent had left J.W.B.'s toys and
clothes at the shelter with no forwarding address. The social
worker attempted to locate respondent at her parents' house. The
social worker heard a child crying in the house, but respondent's
father refused to let her and accompanying law enforcement agents
enter without a warrant. DSS was not able to contact respondent
until 19 October 2004, when DSS learned of J.W.B.'s medical
appointment at Graham Medical Center. The social worker met
respondent at Graham Medical Center and asked if respondent would
allow her to see J.W.B. Respondent informed the social worker that
she could not come into her house and respondent would not meet thesocial worker elsewhere with J.W.B. As of the date of the hearing,
respondent has not sought a mental health evaluation or a domestic
violence assessment and did not complete any parenting classes.
DSS filed a juvenile petition on 13 December 2004 alleging the
child to be neglected because the child lives in an environment
injurious to the [child's] welfare. On 5 January 2005, DSS
obtained a court order allowing DSS to visit with the child.
Thereafter, an order was entered allowing DSS to make a home visit.
The trial court adjudicated J.W.B. neglected by both parents on 11
August 2005. The court ordered that respondent mother and J.W.B.'s
father share joint legal custody of the child contingent upon the
respondent parents cooperating with the Department and following
the Orders of this Court. Respondent appeals.
Respondent argues: (1) the trial court's findings of fact
numbered 4, 5, 6, and 7 in the adjudication judgment are not
supported by clear and convincing evidence; (2) the trial court's
findings of fact numbered 5, 6, 7, 8, 9, 12, and 17 in the
dispositional order are not supported by the evidence or are not
proper findings of fact; (3) the trial court's conclusion that the
child lived in an environment injurious to his welfare is neither
supported by the findings of fact nor evidence; (4) the trial court
exceeded its authority in giving custody of the child equally to
each parent while conditioning custody on the parents cooperating
with DSS and following court orders; and (5) the trial court abusedits discretion in modifying the custodial arrangement so that each
parent has an equal amount of physical custody of the child.
III. Standard of Review
The allegations in a petition alleging abuse, neglect, or
dependency shall be proved by clear and convincing evidence. N.C.
Gen. Stat. § 7B-805 (2005).
A proper review of a trial court's finding of
. . . neglect entails a determination of (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 Gleisner, 141
N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
(citations omitted). In a non-jury . . .
neglect adjudication, 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).
Our review of a trial court's conclusions of
law is limited to whether they are supported
by the findings of fact. Id.
In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566,
disc. rev. denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert.
denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003). We review
conclusions of law de novo. Starco, Inc. v. AMG Bonding and Ins.
Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
Once the trial court adjudicates a child neglected, the court
moves to the dispositional stage and solely considers the best
interests of the child. In re Pittman, 149 N.C. App. at 766, 561
S.E.2d at 567. We review the trial court's disposition under an
abuse of discretion standard. Id.
IV. Findings of Fact
A. Adjudication Judgment
Respondent argues the trial court's findings of fact numbered
4, 5, 6, and 7 in the adjudication judgment are not supported by
clear and convincing evidence.
The trial court's finding of fact Number 4 states:
4. The respondent mother is 41 years of age
and has been married on two prior occasions.
Both of her prior husbands committed acts of
domestic violence toward her. In 1999, one of
her husbands, [name omitted], beat her in
front of his friends, which resulted, in part,
to her not being able to speak and being
admitted into the Copestone Unit of Mission
Hospital, in Asheville, North Carolina where
she remained for four days. Following her
release from the Copestone Unit, she received
brief mental health services at Blue Ridge
Respondent argues the evidence only showed one of prior
husband, not both, committed acts of domestic violence against her.
Although the transcript reveals only one of respondent's prior
husbands committed acts of domestic violence against her, this
finding did not prejudice respondent. The import of this finding
of fact is, and it is not disputed, that respondent has suffered
domestic violence in the past.
Verdicts and judgments are not to be set
aside for mere error and no more. To
accomplish this result it must be made to
appear not only that the ruling complained of
is erroneous, but also that it is material and
prejudicial, and that a different result
likely would have ensued, with the burden
being on appellant to show this.
Parks v. Washington, 255 N.C. 478, 483, 122 S.E.2d 70, 73-74 (1961)
(quoting Perkins v. Langdon, 237 N.C. 159, 178, 74 S.E.2d 634, 649
(1953)). The deviations were slight and not of sufficient momentto upset the result reached below. Perkins, 237 N.C. at 178, 74
S.E.2d at 649.
The remainder of the trial court's findings of fact in the
adjudication order which respondent asserts are insufficient are:
5. The respondent mother has a daughter,
[name omitted], born of the marriage between
her and [omitted]. Prior to the respondent
mother' [sic] admission at Copestone,
[respondent's daughter] attempted to kill
herself because the respondent mother would
not let her live with her father.
[Respondent's daughter] had threatened to call
the Department of Social Services if the
respondent mother did not let her live with
her father and, as a result of a custody
action, the respondent mother no longer sees
her said daughter.
6. The respondent mother met the respondent
father sometime in 2002. Five or six months
after they met, they moved in together and
then separated in late April of 2004. During
the period of approximately one year when the
respondent mother and the respondent father
resided together, their relationship went from
being a normal one to one where the parties
were violent with each other. Instances
occurred where each party would throw items at
the other or in his or her direction including
coffee cups, plates and eating ware. On
several occasions, Angela Banks [sic] threw
these items in the direction of the respondent
father while the minor child, was within a few
feet of Mr. B. On one occasion, the
respondent father threw a cup of warm coffee
at the respondent mother, which hit her and
splattered the minor child. On at least one
occasion, when in a verbal argument, the
respondent father ripped the telephone out of
the wall. The respondent father broke the
respondent mother's glasses twice while she
was pregnant and struck her, resulting in her
glasses falling off on one occasion.
7. The respondent mother would have episodes
where she would become angry and shake for no
apparent reason. These episodes occurred two
or three times per month. During the latterpart of their residing together, she
threatened to kill herself two or three times
per month and, as a result, the respondent
father would hide all of the knives in the
house. On several occasions, the respondent
mother would threaten to kill herself with a
knife and lock herself in the bathroom of
their residence for several hours. This
suicidal gesturing behavior began while Ms.
Roberts was pregnant and extended to after the
birth of the minor child. On several
occasions when she threatened to kill herself,
she would walk out of the parties' home and
into the public roadway, where she would walk
up and down as if she might throw herself into
traffic. On one occasion, approximately two
months after the minor child's birth, she
stated to the respondent father that she was
going to kill herself and leave the parties'
child or give the parties' child away, stating
that she would take the minor child and set
him out and walk away. On one occasion
before the minor child was born, the
respondent mother pushed the respondent father
into an entertainment center and on another
occasion pushed him down and slammed a door in
his face. The respondent mother stated to the
respondent father on one occasion that she had
been committed to a hospital before and was
After thorough review of the record and transcript, these
findings of fact are supported by clear and convincing evidence,
even though other evidence was presented that would support
findings to the contrary. Pittman, 149 N.C. App. at 763-64, 561
S.E.2d at 566.
B. Dispositional Order
Respondent also argues that the trial courts findings of fact
numbered 5, 6, 7, 8, 9, 12, and 17 in the trial court's
dispositional order are neither supported by competent evidence nor
proper findings of fact.
The trial court must 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). When reviewing the evidence, the
trial court must use processes of logical reasoning. In re
Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)
(quotation omitted). Mere recitation of evidence presented at
trial does not constitute an ultimate finding of fact. In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000).
Finding of fact Number 17 states:
17. A letter was received into evidence as
Respondent Mother's Exhibit 2 from Dr. Carl
Mumpower, Ph.D., dated July 13, 2005. Dr.
Mumpower stated that respondent mother's
primary symptoms centered on an anxiety
disorder with dependency features and panic
attacks. She has some developmental
difficulties. (These would require testing to
nail down but I am not sure as to the value of
such.) I am aware that she has acted out on
occasion and has had what appear to be
hysterical meltdowns in years past that have
required temporary hospitalization.
The trial court's finding of fact Number 17 is a recitation of
evidence presented at the hearing and does not constitute an
ultimate finding of fact. Id. However, the trial court made
other findings of fact sufficient to support its dispositional
order. After careful review of the record and transcript, the
remaining findings of fact in the dispositional order are supported
by clear and convincing evidence. This assignment of error is
V. Conclusion of Neglect
Respondent argues the trial court's conclusion that the minor
child is neglected is neither supported by the findings of fact nor
by clear and convincing evidence. We disagree.
In a non-jury adjudication of . . . neglect .
. . the trial court's findings of fact
supported by clear and convincing competent
evidence are deemed conclusive, even where
some evidence supports contrary findings.
This Court reviews the trial court's
conclusions of law to determine whether they
are supported by the findings of fact. . . .
An appellate court's review of the sufficiency
of the evidence is limited to those findings
of fact specifically assigned as error.
In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005)
(internal quotations omitted).
Here, the trial court concluded:
That by clear, cogent, and convincing
evidence, the minor child is a neglected child
pursuant to N.C.G.S. §7B-101(15) in that the
juvenile lived in an environment injurious to
his welfare when living with the respondent
parents due to the domestic violence, that
respondent mother could have hit the child
when she threw the dishes at respondent father
who was near the child at the time; the abuse
of alcohol by the respondent father in the
presence of the minor child; the respondent
mother's prior mental health commitment and
her behaviors of acting out her suicide and
that after respondent mother left the
residence of the respondent parents, she was
not able to show that her mental health issues
had been addressed.
N.C. Gen. Stat. § 7B-101(15) (2005) defines a neglected juvenile as
one who lives in an environment injurious to the juvenile's
Respondent urges this Court to apply the rules our Supreme
Court set forth in In re Ballard, 311 N.C. 708, 319 S.E.2d 227(1984) to the issue at bar. Ballard dealt with termination of
parental rights. The Court held, The petitioner seeking
termination bears the burden of showing by clear, cogent and
convincing evidence that such neglect exists at the time of the
termination proceeding. Id. at 716, 319 S.E.2d at 232 (emphasis
supplied). The Court further held: The trial court must also
consider any evidence of changed conditions in light of the
evidence of prior neglect and the probability of a repetition of
neglect. Id. at 715, 319 S.E.2d at 232. In In re Ballard, our
Supreme Court did not address adjudications under what is now
Article 8 of the Juvenile Code. Proof of neglect in a termination
of parental rights proceeding is not the same as proof of neglect
in a adjudication of neglect proceeding. This court has noted
that a substantive difference exists between the quantum of proof
of neglect and dependency necessary for purposes of termination and
for purposes of removal. In re Krauss, 102 N.C. App. 112, 115,
401 S.E.2d 123, 125, aff'd, 347 N.C. 371, 493 S.E.2d 428 (1991).
Presuming arguendo In re Ballard applies to an adjudication of
neglect, the trial court's findings of fact support its conclusion
that J.W.B. is neglected. Respondent argues that the issues of
domestic violence, alcohol abuse of J.W.B.'s father, respondent's
prior mental health commitment, and her suicidal gestures did not
exist at the time of the adjudication hearing. Respondent and
J.W.B.'s father resided together until April 2004. The hearing on
the neglect petition was held in July 2005. On 21 July 2004, respondent agreed to a family services case
plan wherein she would obtain a mental health evaluation, obtain a
substance abuse assessment to determine if she had mental heath
issues to be addressed, obtain an assessment to determine her need
for domestic violence counseling, and attend parenting classes.
The trial court found:
15. . . . As of the date of the hearing of
this matter, the respondent mother has not
sought an evaluation to determine if there are
mental health issues that need to be
addressed, has not obtained an assessment to
determine the need for domestic violence
counseling and has not completed any parenting
education to learn the development stages,
appropriate behavior and age appropriate
discipline for the child.
We find that the trial court's conclusion of law that J.W.B.
is neglected is supported by its findings of fact. This assignment
of error is overruled.
VI. Custody of the Child
In respondent's final two assignments of error, she argues:
(1) the trial court erred in awarding physical custody of J.W.B.
equally to each parent while conditioning custody on the parents'
cooperating with DSS; and (2) the trial court abused its discretion
in modifying the custodial arrangement so that each parent has
physical custody of J.W.B. an equal amount of time.
The trial court ordered:
2. That respondent mother and respondent
father shall share joint legal custody of the
minor child. The minor child shall be placed
with the respondent mother and the respondentfather, with his placement alternating between
them on a week-to-week basis . . . .
. . . .
3. That this joint custody and placement
shall be contingent upon the respondent
parents cooperating with the Department and
following the Orders of this Court. If the
respondent mother does not cooperate with the
Department of Social Services and the Guardian
Ad Litem, the Court shall consider removal of
the minor child from the respondent mother's
N.C. Gen. Stat. § 7B-903 (2005) offers the court dispositional
alternatives for abused, neglected, or dependent juveniles, and
(a) The following alternatives for disposition
shall be available to any court exercising
jurisdiction, and the court may combine any of
the applicable alternatives when the court
finds the disposition to be in the best
interests of the juvenile:
. . . .
(2) In the case of any juvenile who needs more
adequate care or supervision or who needs
placement, the court may:
a. Require that the juvenile be supervised in
the juvenile's own home by the department of
social services in the juvenile's county, or
by other personnel as may be available to the
court, subject to conditions applicable to the
parent, guardian, custodian, or caretaker as
the court may specify[.]
This statute provides explicit authority for the trial court
to establish joint custody of J.W.B. with his parents and to
require the parents to cooperate with DSS and court orders. Id.
Permitting each parent to have custody of the child an equal
amount of time rests within the discretion of the trial court anddoes not violate the statute. The purposes of the Juvenile Code
include preventing the unnecessary or inappropriate separation of
juveniles from their parents. N.C. Gen. Stat. § 7B-100(4) (2005).
The trial court's decision to alternate custody of J.W.B. between
his parents, with each having an equal amount of time with the
child, is not manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
decision. Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649,
656 (1998). These assignments of error are overruled.
The trial court's findings of fact in the adjudication
judgment and dispositional order are supported by clear and
convincing evidence. The trial court's conclusion that J.W.B.
lived in an environment injurious to his welfare is supported by
the findings of fact.
The trial court did not exceed its authority in awarding
custody of J.W.B. equally to each parent while conditioning custody
on their cooperating with DSS and complying with court orders. The
trial court did not abuse its discretion in modifying the custodial
arrangement so that each parent has an equal amount of physical
custody of J.W.B. The trial court's adjudication judgment and
dispositional order is affirmed.
Judges MCCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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