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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 April 2007
In re E.H. Wake County
No. 05 J 397
Appeal by Respondent from judgment entered 17 October 2005 by
Judge Monica M. Bousman, in District Court, Wake County. Heard in
the Court of Appeals 9 January 2007.
Wake County Guardian ad Litem Program, by Richard Croutharmel,
for Appellee-Guardian ad Litem.
Jeffrey L. Miller, for Respondent-Appellant.
This appeal arises from the trial court's order adjudicating
Respondent-mother's minor child, E.H., to be neglected and
Because the record shows that the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence, and the findings of fact support the conclusions of law,
we affirm the trial court's order.
We will address additional facts in our discussion of
Respondent's contentions on appeal that
the trial court erred by:
(I) concluding that E.H. was neglected; (II) concluding that E.H.
was dependent; (III) delegating its authority to grant visitation
to third party; and (IV) denying Respondent's request for
continuances of the adjudication and disposition hearings and
proceeding without having E.H.'s mental health and medicalevaluations as required by section 7B-808 of the North Carolina
Respondent first argues that the trial court erred by
adjudicating E.H. neglected because there was no clear, cogent, and
convincing evidence in the record to support the following findings
(6) That this family has a long history of
noncompliance with Wake County Human Services.
At the time of the petition, the Respondent
was living with her mother in Wake County and
was not cooperating with the social worker's
attempts to make home visits. At the time of
the petition, Respondent-father was living in
Wake County, and visiting with the [minor
(7)That. . .[Respondent-mother] has serious
mental health issues but will not pursue on-
going treatment. These mental health issues
impact her ability to care for the [minor
child] with proper supervision and discipline.
(8)That the [minor child] has serious mental
health and behavior issues which have not been
appropriately addressed. These mental health
and behavior issues have resulted in problems
at school and home.
That on June 8, 2005, a new report was
received stating. . .[Respondent-mother] and
the Respondent were physically fighting each
other at the Montessori School where . . .
[Respondent-mother] worked. The Respondent-
mother grabbed the [minor child's] face and
shook her head vigorously. [Respondent-mother]
was screaming in the [minor child's] face in
front of the school building and threatened to
send her back to Texas. She slung the
Respondent's arm down and refused to stop the
behavior even with intervention from school
administrators. During the incident, the
school administrator had to physically
separate the minor child and [Respondent-
]mother to avoid injury to the minor child.The [minor child] did attempt to retaliate
against her mother, thus increasing the risk
of harm to the minor child. [Respondent-]
mother was terminated from the Montessori
School where she worked as a result of her
fighting with her child and being out of
control. The school acknowledged that staff
has observed many unsettling situations
between the Respondent and her mother.
That while the case has been in treatment,
there have been multiple reports alleging
sexual abuse, inappropriate discipline and
failure to provide appropriate medical care.
[Respondent-mother] reported to social worker
on several occasions that the minor child gets
out of control[,] bites her, hits her, pulls
her hair, spits at her and kicks her.
We disagree with Respondent's contentions because the record
shows that these findings are supported by clear and convincing
evidence. See In re J.A.G., 172 N.C. App. 708, 712, 617 S.E.2d
325, 329(2005); N.C. Gen Stat.§ 7B-101(15) (stating that a
neglected juvenile is one 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 law.)
Indeed, at the adjudication hearing, the evidence showed that
the social worker left several messages for Respondent but never
received a return call. Moreover, when the social worker made
contact with Respondent, the social worker introduced herself and
Respondent immediately yelled and stated that she would not speak
with the worker, and that [the social worker] had to go to court,that [she] better go get [an] attorney, [Respondent] was going to
sue [her]. The social worker testified that the first few
conversations between Respondent and her transpired in this manner.
The social worker further testified that she was unable to get
into the home or have effective communication with Respondent by
telephone to be able to assess how things were going or know how
E. H. was doing. Consequently, Wake County Human Services was
unable to proceed in its investigation since Respondent would not
agree to a home visit. Eventually, Respondent ended all contact
with the Wake County Human Services.
Despite Respondent's contentions, Wake County Human Services
presented incident upon incident of failed attempts to work with
her; however, Respondent was resistant or non-cooperative. Based
on the evidence presented at the hearing, we conclude there was
clear, cogent, and convincing evidence to support trial court's
finding that Respondent had a long history of noncompliance with
As it relates to Finding of Fact number 7, the evidence
presented at the hearing revealed that Respondent had a long
history of mental illness. This history included Respondent's two
involuntary commitments to Dorothea Dix Hospital within a two-year
period as a result of her threats to harm E.H. Furthermore, Dr.
Robert Aiello diagnosed Respondent with Personality Disorder, NOS
(Not Otherwise Specified ). Respondent's psychological evaluations
indicated that her personality placed her at risk for strong
emotional reactions to her circumstances and impulsive decisions. Dr. Aiello recommended individual counseling to address
Respondent's issues; however, Respondent only received treatment
from a women's center. After carefully reviewing the record on
appeal, we conclude that there was clear, cogent, and convincing
evidence that Respondent had unaddressed mental issues which
impacted her ability to properly supervise and discipline E.H.
With regard to Finding of Fact number eight, the evidence
presented at the hearing reveals that E.H. had extreme difficulties
focusing and working independently in school. The social worker
was concerned that E.H. may possibly have attention deficit-
hyperactivity disorder, bipolar disorder, adjustment disorder, and
psychotic features. Additionally, E.H.'s first grade teacher
testified that E.H. had difficulties focusing on her academics and
wanted to discuss going to the hospital or she has this ailment
or she's very sick, she doesn't feel good or she can't focus
because she is on antibiotics.
The record shows that Respondent terminated E.H.'s mental
health therapy, despite the difficulties she had controlling the
minor child's behavior, and despite the concerns of E.H.'s
therapist and DSS. In addition, E.H.'s school guidance counselor
testified that E.H. was not performing on grade level. The school
contacted Respondent to obtain consent to conduct a school based
evaluation to address E.H.'s behavior exhibited at school, but
Respondent refused. Respondent also revoked consent to allow DSS
to complete an additional assessment by UNC Maltreatment and Trauma
Team. Thus, the record shows there was clear, cogent, andconvincing evidence to support the trial court's finding that E.H.
had serious mental health and behavioral issues that have resulted
in problems at home and at school that Respondent refused to
appropriately address. As it relates to Finding of Fact number 9,
the school administrator testified at the hearing on 9 June, 2005,
she saw Respondent with her hands around the minor child's head,
shaking her head, and screaming at her. When the administrator
approached Respondent and E.H., she ordered Respondent to stop, but
Respondent looked up and continued to yell at E.H. During this
confrontation, Respondent told E.H., I'm going to call - I'm going
to call and they're going to take you away. They're going to take
you away. The administrator testified that she prevented E.H.
from chasing after Respondent and asked Respondent to go into the
Finally, as it relates to Finding of Fact number 10,
Respondent reported the incident of sexual abuse not only to the
Wake County Human Services, but also to E.H.'s first grade teacher
and guidance counselor. When Respondent informed the guidance
counselor of the abuse, the counselor informed Respondent that she
was bound by law to report the allegations to DSS (Child
Protective Services). In addition, the trial court heard
testimony from the social worker that supported its finding that
Respondent used inappropriate discipline with E.H. We conclude
that this is clear, cogent, and convincing evidence to support the
trial court's Finding of Fact number 10. In sum, we conclude the trial court's findings of fact are
supported by clear, cogent, and convincing evidence and those
findings of fact support the trial court's conclusion that E.H. was
neglected as defined by section 7B-101(15) of the North Carolina
Respondent next argues that the trial court erred by
adjudicating E.H. dependent. North Carolina law defines a
dependent juvenile as: [a] juvenile 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 or supervision and lacks an appropriate alternative child care
arrangement. N.C. Gen. Stat.§ 7B-101(9)(2005). Under this
definition, the trial court must address . . . (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). Morever,
allegations in a petition alleging . . . dependency shall be
proven by clear and convincing evidence. N.C. Gen. Stat § 7B-805
Here, Respondent maintains that the evidence did not indicate
that she was unable to provide E.H. with care or supervision
because of Respondent's mental illness. However, the evidence
reveals numerous instances of Respondent's inability to provide for
the care and supervision of E.H. Additionally, Respondent's owntestimony showed that E.H. was difficult to control and that she
used improper methods of discipline. This evidence supported the
trial court's findings of fact which, in turn, supported the trial
court's conclusion of law that E.H. was dependent. Accordingly,
Respondent's assignment of error is rejected.
Respondent next argues that the trial court erred by
delegating its judicial power of determining visitation to Wake
County Human Services and allowing it to dictate the rules and
schedule for visitation. We disagree.
North Carolina law requires that where a juvenile is removed
from the custody of a parent under a dispositional order, the trial
. . . shall provide the appropriate visitation
as may be in the best interests of the
juvenile and consistent with the juvenile's
health and safety. If the juvenile is placed
in the custody or placement responsibility of
a county department of social services, the
court may order the director to arrange,
facilitate, and supervise a visitation plan
expressly approved by the court.
N.C. Gen Stat. § 7B-905(c))(2005). Thus, under section 7B-905, the
General Assembly authorized the trial court to allow the county
department of social services to have discretion over visitation
when it has custody of the minor child.
Here, in Findings of Fact number 27, the trial court found
that the court summary prepared by the Wake County Human Services
dated August 17, 2005, was for dispositional purposes only and
found it to be credible and factually sufficient evidence tosupport the disposition herein. Additionally, this document was
introduced into evidence without objection by any of the parties.
The document contained the rules and a schedule for visitation. In
the order, the trial court instructed Respondent to comply with the
rules of visitation set in this document. Furthermore, the trial
court set out rules for visitation within the order. The record
reflects that Respondent was to resume the visitation plan already
Thus, the trial court, within the authority set forth under
section 7B-905 of the North Carolina General Statutes, allowed the
county department of social services to set up the rules of
visitation. We recognize that this Court has previously vacated
orders that gave the appointed guardian discretion over whether the
non-custodial parent may visit the child. In re E.C., ___ N.C.
App. ___, 621 S.E.2d 647 (2005); In re Custody of Stancil, 10 N.C.
App. 545, 179 S.E.2d 844 (1971). In this case, however, the trial
court approved and ordered visitation in compliance with rules set
by a county department of social services, which is permitted under
section 7B-905(c) of the North Carolina General Statutes. We,
therefore, reject Respondent's assignment of error.
Respondent last argues that the trial court erred when it
denied the motions for continuance of the adjudication and
disposition hearing. We disagree.
It is well-established that:
A motion to continue is addressed to the
court's sound discretion and will not bedisturbed on appeal in the absence of abuse of
discretion. Continuances are not favored and
the party seeking a continuance has the burden
of showing sufficient grounds for it. The
chief consideration is whether granting or
denying a continuance will further substantial
In re Humphrey
, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425
As grounds for the continuance, Respondent argued that: (1)
E.H. was scheduled for additional evaluations; (2) Respondent
received E.H.'s psychological evaluation the morning of 17 August
2005; and (3) Respondent was concerned with ability to cross-
examine the paternal aunt from Texas on the statements found in the
psychological evaluation. The trial court found that the hearing
would last for a series of days, and, thus, Respondent's counsel
would have sufficient time to review the psychological evaluation.
Moreover, the trial court informed counsel that the paternal aunt's
testimony would be stricken if the parties were unable to complete
the testimony within a day. As we can discern no abuse of the
trial court's discretion in denying Respondent's motion for a
continuation, we uphold the trial court's decision.
Likewise, we can find no abuse of the trial court's discretion
in denying Respondent's second motion for a continuance of the
adjudication hearing. Respondent filed a motion for a continuance
of the adjudication hearing arguing that there were additional
evaluations scheduled for E.H and that these evaluations were
needed in order to proceed with the hearing. However, the trial
court found that the information contained in the forensicevaluation was not necessary for the adjudication hearing. We
cannot discern that the trial court abused its discretion when it
denied Respondent's second motion to continue the adjudication
We have reviewed the Respondent's remaining arguments and have
determined that they are without merit.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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