In re M.M., D.L., Harnett County
Minor Children No. 05 J 155, 156
Janet K. Ledbetter for respondent-appellant mother.
Mercedes O. Chut for respondent-appellant father.
Harnett County Department of Social Services, by E. Marshall
Woodall and Duncan B. McCormick.
Elizabeth Boone for Guardian ad litem.
LEVINSON, Judge.
Respondent-parents (mother and father) appeal from an order
adjudicating their minor children abused and neglected. Petitions
were filed by Harnett County Department of Social Services on 12
September 2005 (DSS) alleging, in identical petitions for M.M. and
D.L., that the juveniles were (1) abused, on the grounds that
mother (i) did nothing to protect the juveniles when they alleged
an older male sibling made sexual gestures toward them, (ii)
punished them for telling father about the sibling's advances, and
(iii) forced the juvenile to allege father molested her and hit her
with a belt and choked her until the child made this allegation;
(2) neglected, on the grounds that the child “live[d] in an
environment injurious to the juveniles' welfare” because (i)domestic violence was ongoing in the home, (ii) mother hit them
with a belt “all over her body” and strikes them when she is “angry
or under the influence of alcohol”, and (iii) has been diagnosed as
bipolar but is not taking medications; and (3) dependent.
The parents lived together and separately at various times in
North Carolina beginning in 2004. At the time the juveniles were
removed from the home on 12 September 2005, the parents resided in
separate homes.
Sara Messer, a social worker with DSS, became involved with
the family in September 2005 as a result of a report made to the
Department. The report to DSS, according to Messer, originated
from mother, who informed the on-call social worker that father
“had been molesting” M.M., the older juvenile. Father denied
molesting the juveniles, and asserted that one of the older male
siblings touched M.M. The juveniles denied being touched
inappropriately by father. The mother “made [the juveniles] feel
uncomfortable” and “punish[ed]” the juveniles when she learned of
[the] allegation [that an older male sibling touched one or both of
them]. Father informed Messer that, on 9 September 2005, M.M. “ran
down to his home” and told him that mother was “beating up” on one
of the other children. Mother later told Messer that she “did not
remember if she had actually touched the children . . . and didn't
remember what had happened because she was under the influence.”
Messer summarized more of the family's history. During the
fall of 2005, there was ongoing weekly contacts between the family
and DSS. Father once alleged that mother had attempted to chokeand hit one of the juveniles. There were additional reports made
to DSS concerning the children. One report in August 2003 was not
substantiated; in May 2004, DSS substantiated a report “on both
parents” for “environment injurious, domestic violence, where one
of the children was hurt _ or hit during the domestic violence.”
Messer stated there were numerous domestic violence protective
orders that had been “violated or dropped.” Finally, DSS
substantiated a report wherein “the kids had been threatened by mom
to lie to the police and say that [father] was the aggressor.”
Gail McLean, a case management social worker with DSS,
testified. She had been involved with the family since May 2004
when mother arrived in North Carolina from Colorado with the
children. McLean addressed “issues of domestic violence, mother's
failure to take medication for bipolar condition, and discipline.”
As part of the case services plan, the parents were to refrain from
domestic violence, and mother was to attend parenting classes, take
medication, and participate in counseling for her bipolar
condition. Only mother was required, as part of the initial plan,
to get a mental health assessment and participate in domestic
violence classes. An April 2004 report to DSS alleged domestic
violence in the home because mother would not take her medicines
was substantiated. There were several additional reports of
domestic violence, including one when mother accused father in
April 2005 of causing a black eye. Another report alleged that
father slapped mother. During one or more of these domesticviolence incidents, at least one of the juveniles was present and
sought the help of neighbors.
McLean's testimony continued. The children had been removed
from their home twice while living in Colorado _ once in 1996, and
again in 1998. The children were placed into foster care following
their removal in 1996, returned to mother in December 1997, and
placed in foster care again between February 1998 and August 2000.
A TPR was filed in Colorado but later dropped when mother “had made
some advances and remained clean of drugs and alcohol, and [father]
had moved here to North Carolina.” Father was asked in January
2005 as part of case management to have a mental health evaluation
and to complete recommendations. He completed an evaluation
through the Veterans Administration.
Father testified that he moved to North Carolina in 2000. He
had experienced three gunshot wounds; a broken neck; a coma;
grenade injuries; and broken ribs. He was totally disabled and
drew social security and military disability. When he moved to
North Carolina, the children were still in foster care in Colorado.
Mother and the children moved to North Carolina in 2003 or 2004.
DSS worker McLean had not asked him “to do anything” because all of
the directives concerned mother. Father also stated that “every
domestic violence charge was dropped” and that he had “never” been
convicted of anything. He had only recently moved into the same
neighborhood where mother lived with the children before the events
of 9 September 2005. He moved close to mother's residence because
he wanted to be a parent to the juveniles. On the evening of 9September 2005, M.M. ran to his house, crying, and stated that
mother was “hitting us.” He walked to mother's house with M.M.
Mother had not been on medication, and was “inappropriately
hounding the girls about being touched, and she was _ I guess she
was beating them.” Father further testified that “[s]he slapped
me, and that's when the girls ran next door to go call the police.”
Father further testified that the domestic violence ordinarily
occurred on a payday, and when mother was drinking alcohol and not
taking her medication. “And it was usually _ and it was always in
the defense of the children. Always.” Father also testified that
mother “is bipolar and schizophrenic[,]” and that he has a drivers
license but does not own a vehicle. Mother drives him to places on
occasion _ including the courthouse on the day of the adjudication
hearing. Notwithstanding his concerns about mother's parenting
deficiencies, domestic violence, and mental health challenges,
father has not ever filed a custody action.
After a series of continuances, the petitions came on for
hearing 22 May 2006. An adjudication and disposition order was
entered 9 June 2006. In this order, the trial court made the
following findings of fact:
4. [Father] is alleged to be the biological
father of juvenile D.L. (and in all events he
is the stepfather of juvenile D.L.) and is the
stepfather of M.M.
. . .
8. At the time of the filing of the petitions
herein, North Carolina is the home state of
these juveniles. No other state currently is
exercising jurisdiction as to custody of the
juveniles. There had been DSS involvementwith this family in Colorado where they once
lived. The children had been removed from the
parents on two occasions by the authorities in
Colorado (the first time in October 1996 and
later in 1998). There are no reports of
outstanding orders from any court in that
state.
9. In April 2004, the mother and the juveniles
moved to North Carolina to join the father who
was already in North Carolina. . . .
10. [DSS] has investigated CPS reports on the
family and after investigation extended case
management services and made certain
referrals. Service plans were entered with
the parents who both failed to consistently
comply with the terms thereof.
11. The parents have engaged in acts of
domestic violence in the presence of the
children and with the children becoming
involved at times in the altercations between
the parents, thereby resulting in a risk of
physical and emotional harm to the juveniles.
The parents have each disobeyed the provisions
of domestic violence orders.
12. The mother abuses alcoholic beverages and
other impairing substances and during the time
of being under the influence of such
substances, she has inappropriately supervised
and disciplined the juveniles. She made
accusations of sexual misconduct by the father
against the juveniles (which the father
denied), she beat one or both juveniles to
make her or them admit sexual wrongdoings by
the father, she improperly punished the
juveniles by choking them and she generally
disregarded proper parental duties and
responsibilities toward the juveniles.
13. The father was aware of the circumstances
and the actions of improper parental care of
the juveniles by the mother; however, he took
no actions to protect them.
14. Although the mother has accused the father
with inappropriate sexual conduct relating to
the juvenile, she has taken no action to
protect them.
15. The mother has punished the juveniles for
revealing that the oldest brother in the
family had made improper sexual advances
toward them. The mother failed to take steps
to properly deal with the allegations.
16. On February 21, 2006, [father] filed for a
restraining order against [mother], which is
effective until June 21, 2006. The parents
have continued to have contact and continued
incidents of domestic violence.
Upon these findings, the trial court concluded the juveniles were
abused juveniles, pursuant to N.C. Gen. Stat. § 7B-101(1)(2005), in
that “the parents have created or allowed to be created a
substantial risk of injury to the juveniles by other than
accidental means and have created or allowed to be created a risk
of serious emotional damage to the juveniles.” In addition, the
trial court concluded the juveniles were neglected juveniles, under
N.C. Gen. Stat. § 7B-101(15)(2005), in that they “did not receive
proper care and supervision from their parent or parents and the
juveniles have been allowed to live in an environment injurious to
their welfare.”
The court moved immediately to disposition, in accordance with
N.C. Gen. Stat. § 7B-901 (2005), and made findings that, inter
alia, the DSS service plans were “appropriate” and needed in the
event the parents “are able to correct their parental behavior for
a return of the juveniles to their care”; the parents had not
complied with the service plans and had made “no real progress
toward reunification for eight months”; the juveniles had been
removed from their parents' home three times; and that a
“continuation of efforts to reunite them with their parents wouldbe futile.” Moreover, the court found that the parents had not
maintained visitation on a consistent basis; that conflicts had
developed between father and M.M., who did not wish to visit with
him; that the “risk to the juveniles if returned to the parents
would be intensive”; that a return of custody to the parents would
be “contrary to the welfare of the juveniles”; that DSS had
provided a variety of services to the family; and that DSS should
be relieved of further efforts to reunite the juveniles with the
parents. After making numerous conclusions of law concerning best
interests, reasonable efforts and jurisdiction, the trial court
decreed that DSS would have custody of the juveniles with placement
authority; that visitation could be allowed if deemed “appropriate”
by DSS, and that DSS was released from any further obligation to
reunite the juveniles with the parents.
On appeal, mother contends that findings of fact 10-17 of the
adjudication order are not supported by the evidence. Mother's
central argument is that the “clear and convincing” standard
required in juvenile adjudications is not met here because (1) none
of the DSS social workers had personal knowledge of any of the
incidents inside the household, and (2) father's testimony adds
little or no support for the findings of fact. Father challenges
portions of findings 8 and 16, and 11, 13 and 17 in their entirety.
Father's challenge to the findings of fact does not rely on whether
DSS witnesses had firsthand knowledge of the events, but on whether
the evidence, taken in its entirety, supports the findings. “Where the trial court sits without a jury and hears the
evidence in an abuse and neglect adjudication, the facts found by
the trial court are binding on an appellate court if supported by
clear and convincing competent evidence.” In re McLean, 135 N.C.
App. 387, 394, 521 S.E.2d 121, 125 (1999). The trial court's
conclusions of law are reviewed de novo by this Court. In re
J.D.C., __ N.C. App. __, __, 620 S.E.2d 49, 51 (2005). Where
statements by out-of-court declarants are admitted without
objection or requests that the same be considered for limited
purposes, the statements can be considered as substantive evidence.
See, e.g., State v. Dyson, 165 N.C. App. 648, 652, 599 S.E.2d 73,
76 (2004) (“[W]hen admitted without objection, otherwise
inadmissible hearsay may be considered with all the other evidence
and given such evidentiary value as it may possess.”); State v.
Featherson, 145 N.C. App. 134, 137, 548 S.E.2d 828, 831 (2001)
(prior inconsistent statements admitted without objection properly
considered substantive evidence); State v. Laws, 16 N.C. App. 169,
170, 191 S.E.2d 401, 402 (1972).
Neither mother nor father assigned as error the admissibility
or use of evidence by the trial court. See N.C.R. App. P. 10
(c)(1) (“Each assignment of error shall . . . be confined to a
single issue of law; and shall state plainly, concisely and without
argumentation the legal basis upon which error is assigned.”).
During the hearing, counsel made numerous general objections to the
admission of testimony by DSS employees. These objections were
overruled, and at no time during the hearing did counsel ask thetrial court to consider testimony for purposes other than for the
truth of the matter asserted. As a consequence, consistent with
Dyson, we have evaluated whether the proffered evidence, properly
received for “such evidentiary value as it may possess[,]” supports
the challenged findings of fact. We conclude that the testimony
cited above does support the challenged findings of fact. The
relevant assignments of error are therefore overruled.
Mother and father next challenge the trial court's conclusions
of law that M.M. and D.L. are abused and neglected juveniles.
Here, the trial court concluded that the juveniles were neglected
because they “did not receive proper care and supervision from
their parent or parents and juveniles have been allowed to live in
an environment injurious to their welfare.” The trial court also
concluded that the juveniles were abused in that “the parents have
created or allowed to be created a substantial risk of serious
injury to the juveniles by other than accidental means and have
created or allowed to be created a risk of serious emotional damage
to the juveniles.”
A neglected juvenile is defined by N.C. Gen. Stat. § 7B-
101(15)(2005):
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 law. An abused juvenile is defined by N.C. Gen. Stat. §§ 7B-
101(1)(b),(e) (2005) as one whose parent or caretaker “creates or
allows to be created a substantial risk of serious physical injury
to the juvenile by other than accidental means”, or who “creates or
allows to be created serious emotional damage to the juvenile. . .
.”
Here, the findings reveal ongoing domestic violence and
improper discipline. There has been a risk of physical injury to
the children, and one or both of the juveniles had been physically
struck on one or more occasions. Moreover, the parents did not
take appropriate actions in response to reports of inappropriate
sexual advances. We conclude that the findings support the
conclusions of law that M.M. and D.L. were abused and neglected
juveniles. The relevant assignments of error are overruled.
Respondents' remaining arguments are addressed to the
disposition order. The parents primarily challenge the trial
court's decision to cease reunification efforts. Mother argues,
citing In re Weiler, 158 N.C. App. 473, 581 S.E.2d 134 (2003), and
In re Everett, 161 N.C. App. 475, 588 S.E.2d 579 (2003), that the
trial court did not make specific findings supporting the statutory
conditions for the discontinuation of reunification efforts.
Mother also argues that the disposition order should be reversed
insofar as it changes the permanent plan to adoption. Finally, the
respondents urge this Court to reverse the disposition order
insofar as it ceases reunification on grounds already considered
and rejected in this opinion above. N.C. Gen. Stat. § 7B-507(b)(1)(2005) provides:
(b) In any order placing a juvenile in the
custody or placement responsibility of a
county department of social services, whether
an order for continued nonsecure custody, a
dispositional order, or a review order, the
court may direct that reasonable efforts to
eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
that:
(1) Such efforts clearly 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[.]
The findings and conclusions in the present disposition order
are remarkably different than the ones presented in Weiler and
Everett. The findings contained in this adjudication and
disposition order support the trial court's determination, pursuant
to G.S. § 7B-507(b)(1), that reunification efforts should cease.
Moreover, we reject mother's contention that the trial court
erroneously changed the permanent plan to adoption. The order on
appeal did not decree that termination of parental rights and
adoption be the permanent plan; instead, in compliance with the
requirements of N.C. Gen. Stat. § 7B-507(c) (2005), it directed
that a permanency planning be held within thirty (30) days
thereafter. The relevant assignments of error are overruled.
We have evaluated the respondents' remaining arguments and
conclude that they should be overruled.
Affirmed.
Chief Judge MARTIN and Judge McCullough concur.
Report per Rule 30(e).
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