NO. COA06-1168
Filed: 15 May 2007
1. Child Abuse and Neglect_adjudication of neglect_prior adjudication that sibling
neglected_failure to follow case plan
Clear, cogent, and convincing evidence supported the conclusion that a child did not receive
proper care and supervision and that the neglect was likely to result in physical, mental, or emotional
impairment or a substantial risk of such impairment.
2. Child Abuse and Neglect_findings_use of psychological evaluations and reports from
GAL and social worker
The trial court's extensive adjudicatory and dispositional findings in a child neglect
proceeding showed that the court made its own determination of the facts and did not simply adopt
reports from a social worker and the Guardian Ad Litem and psychological evaluations. A court may
consider written reports and make findings based on these reports so long as it does not broadly
incorporate them as its findings.
3. Child Abuse and Neglect_reunification efforts_futility_no one to supervise respondents
The trial court did not err in a child neglect proceeding by ceasing reunification efforts where
the findings supported the conclusion that continued reunification efforts would be futile.
4. Child Abuse and Neglect_neglect_termination of visitation
The termination of respondent mother's visitation was the result of a reasoned decision where
it was supported by the findings and the evidence. The mother's parental rights to a sibling had been
terminated and the parents had not made progress in working with DSS to parent this child.
5. Child Abuse and Neglect_temporary dispositional order_no right of appeal
Respondent father is not entitled to appeal a temporary dispositional order in a child neglect
proceeding. N.C.G.S. § 7B-1001(a)(3) specifically delineates juvenile orders that may be appealed
and does not provide that a party may appeal a temporary dispositional order.
6. Child Abuse and Neglect_dispositional hearing_timeliness
Respondent father did not establish prejudice from the failure to hold a dispositional hearing
within 30 days after the completion of the adjudication hearing where the delay was due in part to
respondent's failure to complete his psychological evaluation and respondents' joint motion for a
continuance. N.C.G.S. § 7B-901.
Appeal by respondents from adjudication and disposition ordersfiled 23 March 2006 and 12 May 2006 by Judge Jimmy L. Love, Jr. in
Harnett County District Court. Heard in the Court of Appeals 22
March 2007.
E. Marshall Woodall and Duncan B. McCormick for petitioner
Harnett County Department of Social Services.
Elizabeth Myrick Boone for Guardian ad Litem of the minor
child.
Peter Wood for respondent mother.
Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, for
respondent father.
BRYANT, Judge.
Respondent mother and respondent father (respondents) appeal
adjudication and disposition orders filed 23 March 2006 and 12 May
2006 adjudicating their minor child C.M.
(See footnote 1)
to be neglected and
awarding legal and physical custody of the child to Harnett County
Department of Social Services (DSS). For the reasons stated below,
we affirm in part and dismiss in part respondents' appeal.
In 2004, respondents and N.M. (the biological child of
respondent mother) lived in the home of N.M.'s paternal
grandmother. On 26 May 2004, N.M. at the age of three months was
removed from respondent mother's custody due to the unsanitary
condition of the home (live and dead roaches found in the child's
diaper). N.M. was adjudicated to be neglected. DSS entered intoa family services case plan, the mother failed to comply with such
plan, and reunification efforts ceased. The mother's parental
rights as to N.M. were terminated on 9 September 2005.
C.M., sibling to N.M., was born to respondents in June 2005.
When C.M. was born, DSS classified the baby as being at “high
safety risk.” On 26 August 2006, DSS began intensive case
management services, including weekly visits by the social worker.
The plan required respondent mother to be supervised at all times
when caring for C.M. If respondent father was not available, the
paternal grandmother served as an alternative supervisor during
respondent mother's care of the child. Respondents were required
to obtain appropriate furniture and supplies for C.M., and
respondent mother was required to continue the services from the
previous case plan. Both respondents were required to participate
in the Parents as Teachers program, to ensure C.M. attended all
scheduled medical appointments, and to improve their parenting
skills. Respondent mother arranged for C.M. to attend medical
appointments and both respondents participated in the Parents as
Teachers program.
Respondents did not follow through with the services
recommended by the case plan and missed appointments designed to
assist with vocational rehabilitation services. A social worker
agreed to transport respondent father to an appointment for a
psychological evaluation. When the social worker arrived, thefather either was not home or did not come to the door. Respondent
mother agreed to follow through with mental health appointments and
to keep her social worker informed with respect to these
appointments; however, she did not seek mental health treatment.
Respondent father's psychological evaluation was not available at
the 27 January 2006 adjudication hearing. The evaluation was
completed on 31 January 2006 and indicated respondent father was
mildly mentally retarded, that he had an IQ of 66, that his
cognitive abilities were limited, and that he was likely to need
assistance in interpreting and developing a response to new
challenges. Respondent mother's psychological evaluation indicated
she was mildly mentally retarded, suffered from a mood disorder,
and had limited problem solving abilities.
On 2 December 2005, DSS filed a juvenile petition alleging
that C.M. was a neglected juvenile. The case came on for hearing
at the 27 January and 21 April 2006 Juvenile Sessions of District
Court, Harnett County, the Honorable Jimmy L. Love, Jr., presiding.
The trial court adjudicated C.M. to be neglected, and entered a
written adjudication order on 23 March 2006. On 12 May 2006, the
trial court entered a written dispositional order awarding custody
to DSS, ceasing further reunification efforts, and ceasing
visitation. Respondents appeal.
_________________________________
Respondents argue the trial court erred by: (I) concludingand adjudicating C.M. to be neglected and (II) making findings of
fact by incorporating the reports from the court, social workers,
GAL and psychologists pursuant to N.C. Gen. Stat. § 7B-905.
Respondent mother argues the trial court erred by: (III) ordering
reunification efforts to cease between respondents and C.M. and
(IV) ordering that visitation cease with respondents. Respondent
father argues the trial court erred by: (V) failing to make
findings of fact that DSS should use reasonable efforts pursuant to
N.C. Gen. Stat. § 7B-507 and (VI) failing to conduct a
dispositional hearing within the statutory time pursuant to N.C.
Gen. Stat. § 7B-901.
I
[1] Respondents challenge the adjudication of neglect as to
C.M. Respondents argue the findings do not support the conclusion
of neglect and that there was insufficient time to meet the case
plan goals. We disagree.
A “neglected juvenile” is “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 the law.” N.C. Gen. Stat. § 7B-101(15)
(2005). In determining whether a juvenile is a neglected juvenile,“it is relevant whether that juvenile lives in a home where another
juvenile has died as a result of suspected abuse or neglect or
lives in a home where another juvenile has been subjected to abuse
or neglect by an adult who regularly lives in the home.”
Id. In
order to adjudicate a child to be neglected, the failure to provide
proper care, supervision, or discipline must result in some type of
physical, mental, or emotional impairment or a substantial risk of
such impairment.
In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d
898, 901-02 (1993). Section 7B-101(15) affords “the trial court
some discretion in determining whether children are at risk for a
particular kind of harm given their age and the environment in
which they reside.”
In re McLean, 135 N.C. App. 387, 395, 521
S.E.2d 121, 126 (1999). An adjudication of neglect may be based on
conduct occurring before a child's birth.
In re A.B., 179 N.C.
App. 605, 609, 635 S.E.2d 11, 16-17 (2006) (
prior abuse and neglect
of siblings and the mother's failure to comply with the orders
entered in the siblings' case supported the conclusion that A.B.
was neglected)
. In an abuse, neglect and dependency case, review
is limited to the issue of whether the conclusion is supported by
adequate findings of fact.
In re Helms, 127 N.C. App. 505, 510,
491 S.E.2d 672, 676 (1997).
In this case, DSS presented evidence of respondents' failure
to comply with the respective case plans as to N.M. and C.M. The
trial court found: 8. Under a plan of reunification of [N.M.]
with the respondent mother, DSS entered into a
service plan with her incorporating in the
plan among other things the basic
recommendations of [the social worker] to
include participation in the Parents as
Teachers Program, parenting classes,
vocational rehabilitation, mental health
referrals, transportation and visitation to
continue [the] parent child relationship. The
mother failed to comply with terms of the
agreement and the court ceased reunification
efforts on February 25, 2005. Rights of the
parents [as] to [N.M.] were terminated on
September 9, 2005.
9. After the birth of [C.M.], DSS offered
intensive case management services in order to
assist the parents in maintaining the juvenile
in this proceeding in their home. DSS entered
into a service plan with the parents wherein
continuous supervision of the child in the
care of the mother was to be maintained by the
father, detailed instructions were given for
furniture and supplies to be obtained for the
juvenile and referrals for services previously
designated for the mother were continued.
10. The parents were able to obtain needed
furniture and supplies for the juvenile and
were first able to continue with the juvenile
in their custody. DSS concerns were raised
when notified that the mother was missing
appointments, service providers were unable to
make contact with the family relative to
services, the whereabouts of the mother and
juvenile were unknown to the paternal
grandmother (who was the person supervising
placement with the mother), the parents either
being missing or hiding when DSS came to
assist with transportation to appointments and
the father's failure to cooperate with
participation in a psychological evaluation.
Respondent mother had over two years (since May 2004) to work on a
case plan with DSS, she had ample time to follow through with theservices designed to assist her in learning to parent. At the time
of C.M.'s adjudication, respondent mother had attended only one
mental health appointment and had not participated in vocational
rehabilitation. The trial court found that respondent father
missed a psychological evaluation despite the social worker's
efforts to provide transportation. The trial court also found that
service providers were unable to make contact with respondents, and
that respondents delayed seeking medical attention for C.M. after
the social worker telephoned respondent father and told him about
the need to take C.M. to a pediatrician. The findings relating to
the prior adjudication of neglect and subsequent termination of
parental rights as to N.M. and respondents' failure to comply with
the case plan established that C.M. was a neglected juvenile.
Clear, cogent, and convincing evidence supports the conclusion that
C.M. did not receive proper care and supervision and that the
neglect was likely to result in physical, mental, or emotional
impairment or a substantial risk of such impairment.
Safriet, 112
N.C. App. at 752, 436 S.E.2d at 901-02. These assignments of error
are overruled.
II
[2] Respondents next argue the trial court erred by
incorporating the court reports, psychological evaluations and GAL
reports as findings of fact. Specifically, respondents contend the
trial court improperly delegated its duty to make specific findingstwo and three at the dispositional hearing. We disagree.
A trial court's findings of fact are binding on appeal if the
findings are supported by competent evidence in the record.
In re
J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004);
In re
Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). The
standard of review that applies to an assignment challenging a
dispositional finding is whether the finding is supported by
competent evidence.
Id.;
Helms, 127 N.C. App. at 511, 491 S.E.2d
at 676. “Where there is directly conflicting evidence on key
issues, it is especially crucial that the trial court make its own
determination as to what pertinent facts are actually established
by the evidence, rather than merely reciting what the evidence may
tend to show.”
In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d
362, 366 (2000).
In this case, the trial court's extensive adjudicatory and
dispositional findings show the trial court made its own
determination with respect to the facts established by the evidence
presented at trial. The trial court did not simply adopt the
social worker's report, the GAL's report, and the psychological
evaluations as findings.
J.S. at 511, 598 S.E.2d at 660. The
trial court made separate findings relating to respondents'
residence at the time of the hearing and respondents' employment.
The trial court made findings with respect to the circumstances
surrounding N.M.'s removal from the home in May 2004, the serviceplan developed in that case, respondents' failure to comply with
the terms of that plan, and the ultimate termination of respondent
mother's parental rights to N.M. The trial court made findings
with respect to the intensive case management services provided in
this case, the efforts made to keep C.M. in the home, and
respondents' failure to comply. In addition to incorporating the
psychological evaluations, the trial court made findings with
respect to respondent mother's 16 August 2004 evaluation,
respondent father's January 2006 psychological evaluation, the
results of those evaluations, and the ensuing recommendations. In
this case, the trial court considered the written reports,
incorporated the written reports, and made findings based upon the
reports. The trial court also incorporated the adjudicatory
findings and made numerous other findings based on the evidence
presented at trial. A trial court may consider written reports and
make findings based on these reports so long as it does not
“broadly incorporate these written reports from outside sources as
its findings of fact.”
J.S. at 511, 598 S.E.2d at 660. This
assignment of error is overruled.
III
[3] Respondent mother argues the trial court erred by ceasing
reunification efforts. The trial court may “order the cessation of
reunification efforts when it finds facts based upon credible
evidence presented at the hearing that support its conclusion oflaw to cease reunification efforts.”
Weiler at 477, 581 S.E.2d at
137. This Court reviews an order that ceases reunification efforts
to determine whether the trial court made appropriate findings,
whether the findings are based upon credible evidence, whether the
findings of fact support the trial court's conclusions, and whether
the trial court abused its discretion with respect to disposition.
Id. at 477-78, 581 S.E.2d at 137; N.C. Gen. Stat. § 7B-507 (2005);
N.C. Gen. Stat. § 7B-903 (2005); N.C. Gen. Stat. § 7B-905 (2005).
“An abuse of discretion occurs when a trial court's ruling is so
arbitrary that it could not have been the result of a reasoned
decision.”
Chicora Country Club v. Town of Erwin, 128 N.C. App.
101, 109, 493 S.E.2d 797, 802 (1997) (quotation omitted),
disc.
rev. denied, 347 N.C. 670, 500 S.E.2d 84 (1998). When a trial
court ceases reunification efforts with a parent, it is required to
make findings of fact pursuant to N.C. Gen. Stat. § 7B-507 (b).
In
re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003);
N.C.G.S. § 7B-507(b) (2005). A trial court may cease reunification
efforts upon making a finding that further efforts “would be futile
or would be inconsistent with the juvenile's health, safety, and
need for a safe, permanent home within a reasonable period of
time[.]” N.C.G.S. § 7B-507(b)(1) (2005). The court may also cease
reunification efforts upon making a finding that a “court of
competent jurisdiction has terminated involuntarily the parental
rights of the parent to another child of the parent[.]” N.C.G.S.§ 7B-507(b)(3) (2005).
The trial court made seventeen findings of fact and concluded
that continued reunification efforts would be futile.
(See footnote 2)
In its
dispositional order, the trial court found that respondents were
mildly mentally retarded. Respondent mother had an IQ of 67 and
did not clearly understand the reason for DSS involvement in the
sibling's case. She shared characteristics with parents who have
been known to abuse their children and needed ongoing support and
role modeling to effectively learn parenting skills. The trial
court reviewed the terms of the case plan with respect to N.M., the
sibling and found that respondent mother failed to comply with the
terms of that case plan. Following C.M.'s birth, DSS offered
intensive case management services and entered into a service plan
with respondents. The plan required respondent father to supervise
respondent mother when the mother cared for C.M. Respondent mother
began missing appointments, and service providers were not able to
contact the family. At times, the whereabouts of C.M. and themother were unknown to the paternal grandmother. After
adjudication, respondent father completed a psychological
examination which indicated he had an IQ of 66 and had limited
cognitive abilities. The trial court found that there was a
concern with respect to respondent father's ability to be a primary
caretaker and that he would need ongoing assistance and supervision
to meet C.M.'s needs and to ensure the child's safety. The trial
court found that respondent father failed to seek necessary medical
care despite being prompted. The trial court found that there did
not appear to be a person available to supervise respondents if
C.M. was placed in their home or the home of a relative. The trial
court's findings support that further reunification efforts would
be futile.
See N.C.G.S. §§ 7B-507(b)(1) and (3) (2005). This
assignment of error is overruled.
IV
[4] Respondent mother argues the trial court erred by
terminating visitation with C.M. This Court reviews the trial
court's dispositional orders of visitation for an abuse of
discretion.
Weiler at 477-78, 581 S.E.2d at 137; N.C.G.S. §§
7B-507 , 7B-901, 7B-903, and 7B-905 (2005).
The trial court found that N.M., the older sibling, had been
adjudicated neglected, a case plan had been developed,
reunification efforts had ceased, and respondent mother's parental
rights to N.M. had been terminated. Based upon respondents'unsuccessful parenting of N.M. and their lack of progress in
working with DSS to parent C.M., the trial court ceased
reunification efforts and terminated respondents' visitation with
C.M. The termination of respondent mother's visitation is
supported by the findings and the evidence, and the ruling is the
result of a reasoned decision.
Chicora Country Club at 109, 493
S.E.2d at 802. This assignment of error is overruled.
V
[5] Respondent father argues the trial court erred by entering
a temporary dispositional order on 23 March 2006. North Carolina
General Statutes, Section 7B-1001(a)(3) provides that a party may
appeal any “initial order of disposition and the adjudication order
upon which it is based.” N.C. Gen. Stat. § 7B-1001(a)(3) (2005).
However, Section 7B-1001 specifically delineates the juvenile
orders that may be appealed and does not provide that a party may
appeal a temporary dispositional order. N.C.G.S. § 7B-1001(a)
(2005);
see In re Laney, 156 N.C. App. 639, 643, 577 S.E.2d 377,
379 (construing a prior version of Section 7B-1001, the
Laney Court
held that a party was not entitled to appeal an adjudication and
temporary dispositional order in that it was not a final order),
disc. review denied, 357 N.C. 459, 585 S.E.2d 762 (2003) .
Accordingly, respondent father is not entitled to appeal the
temporary dispositional order.
See Laney at 642, 577 S.E.2d at 379
(“The broad reading advocated by respondent would open the door formultiple appeals whenever adjudication orders and temporary
dispositions are entered before a final disposition. The statutory
language does not show that the General Assembly intended this
result.”). Therefore, the assignments of error challenging the
temporary dispositional order are dismissed.
VI
[6] Respondent father argues the trial court erred by failing
to complete the dispositional hearing within thirty days of the
adjudication. North Carolina General Statutes, Section 7B-901
provides that the dispositional hearing shall be concluded within
thirty days of the conclusion of the adjudication hearing. N.C.
Gen. Stat. § 7B-901 (2005). A trial court's violation of a
statutory time limit is not reversible
per se.
In re D.M.M.,179
N.C. App. 383, 386, 633 S.E.2d 715, 717 (2006);
In re J.L.K., 165
N.C. App. 311, 598 S.E.2d 387,
rev. denied, 359 N.C. 68, 604 S.E.2d
314 (2004). A parent must show prejudice by a delay in conducting
a hearing.
In re D.J.D., 171 N.C. App. 230, 242-44, 615 S.E.2d 26,
34-35 (2005).
The trial court conducted the adjudication hearing on 27
January 2006 and the dispositional hearing on 21 April 2006. The
trial court did not conduct a dispositional hearing on 27 January
2006 because the father failed to complete his court-ordered
psychological examination prior to the hearing. The social worker
arranged an appointment and arranged to take respondent father tothe appointment. When she arrived to pick him up, he was not at
the home. For this reason, the psychological evaluation was not
available on 27 January 2006. The trial court continued the
dispositional hearing based on its need to review the psychological
evaluation.
See N.C.G.S. § 7B-803 (2005) (“The court may, for good
cause, continue the hearing for as long as is reasonably required
to receive additional evidence, reports, or assessments that the
court has requested, or other information needed in the best
interests of the juvenile[.]”). The case was scheduled to be heard
at the 23-24 March 2006 Juvenile Session of District Court, Harnett
County. At that time, respondents moved for a continuance. The
trial court entered a written continuance order, noting that DSS
asked the trial court to continue the existing temporary
dispositional order and that the parties did not object to this
request. The trial court conducted the adjudication hearing within
the sixty-day deadline established by N.C.G.S. § 7B-801(c) and
entered the adjudication order on 23 March 2006. The dispositional
order was entered on 12 May 2006, less than thirty days after the
21 April 2006 dispositional hearing. N.C. Gen. Stat. § 7B-905(a)
(2005). The trial court did not cease reunification efforts until
the 21 April hearing. The dispositional hearing was completed
eighty-four days after the conclusion of the adjudication hearing
and fifty-four days after the deadline established by N.C. Gen.Stat. § 7B-901. N.C.G.S. § 7B-901 (2005)
(See footnote 3)
. Here, delay was due in
part to respondent father's failure to complete his psychological
evaluation and respondents' joint motion for a continuance. Under
these circumstances, respondent father has not established
prejudice. This assignment of error is overruled.
Affirmed in Part; Dismissed in Part.
Judges STEELMAN and LEVINSON concur.
Footnote: 1