Appeal by respondent from an adjudication and disposition
order entered 7 September 2006 by Judge Lawrence C. McSwain in
Guilford County District Court. Heard in the Court of Appeals 9
April 2007.
Joyce L. Terres, for Guilford County Department of Social
Services, petitioner.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret
Rowlett, for guardian ad litem.
M. Victoria Jayne for respondent.
BRYANT, Judge.
Respondent-appellant father (respondent) appeals from an
adjudication and disposition order entered 7 September 2006. A.V.
was adjudicated as abused; A.V. and D.V. were adjudicated as
neglected and dependant. The trial court ordered a plan of
reunification and a concurrent plan of adoption.
A.V. and D.V. are two children born out of wedlock to the same
mother but different fathers. Respondent is the biological father
of A.V. By an order filed 6 June 2001, the trial court awarded
custody of both children to respondent after the children were
adjudicated as neglected by their mother. On 29 June 2006, theGuilford County Department of Social Services (DSS) filed a
petition alleging A.V. was an abused juvenile and both A.V. and
D.V. were neglected and dependent juveniles. At the conclusion of
the hearing on the petition on 25 August 2006, the trial court
found that respondent failed to comply with a directive not to
expose A.V. to contact with his brother, and as a result, his
brother sexually molested A.V. The trial court further found that
when A.V. informed respondent of the incident, respondent failed to
report it to DSS or law enforcement. The trial court adjudicated
the juveniles as abused, neglected and dependent as alleged in the
petition. The trial court awarded custody of the children to DSS
under a concurrent plan of reunification and adoption. From this
order respondent appeals.
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Respondent argues the trial court erred by: (I) denying his
motions to dismiss for insufficient evidence; and (II) failing to
comply with N.C. Gen. Stat. §§ 7B-903 and 907 in violation of his
constitutional rights. For the reasons stated below, we affirm the
decision of the trial court.
I
Respondent contends the trial court erred by denying his
motions to dismiss the petition at the close of petitioner's
evidence and at the close of all the evidence. He also argues the
trial court's findings are not supported by clear and convincing
evidence, and the trial court's findings of fact do not support its
conclusions of law. In ruling upon a motion to dismiss a juvenile petition for
insufficient evidence, the court determines “whether there is
substantial evidence to support the allegations of the petition,
viewing the evidence in the light most favorable to petitioner, and
giving petitioner the benefit of every reasonable inference to be
drawn from the evidence.”
In re Cusson, 43 N.C. App. 333, 335, 258
S.E.2d 858, 860 (1979). 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 medical care; or who is not provided necessary remedial
care; or who lives in an environment injurious to the juvenile's
welfare . . . .” N.C. Gen. Stat. § 7B-101(15) (2005). A
juvenile may be considered as neglected if the juvenile lives in a
home where another juvenile has been subjected to abuse or neglect.
Id. A juvenile is abused if the juvenile's parent or caretaker,
inter alia, “[c]ommits, permits, or encourages the commission” of
a sexual offense upon the juvenile. N.C. Gen. Stat. § 7B-101
(1)(d) (2005). Finally, a juvenile is dependent if the juvenile's
parent is unable to provide for the care and supervision of the
juvenile. N.C. Gen. Stat. § 7B-101(9) (2005).
The evidence at the hearing shows that a report of sexual
abuse of A.V. by respondent's brother was made in January 2005 to
petitioner. After meeting with petitioner's officials about this
allegation, respondent agreed not to allow his brother to have any
contact with A.V. Notwithstanding this agreement, A.V. had atleast three subsequent contacts with respondent's brother.
Respondent conceded in his testimony that these contacts occurred.
The first occurred when respondent's brother attended a Super Bowl
party at respondent's house and A.V. arrived home before the party
ended and respondent's brother was present. The second occurred
when respondent and A.V. stopped at the house of respondent's
mother to deliver something and respondent's brother was present
there. The third encounter occurred in June 2006 at a birthday
party. Witnessed by D.V., respondent's brother touched A.V.'s
breasts at this party. A.V. testified that she told respondent
about the incident at the party and respondent stated he would talk
to his brother. Respondent also instructed A.V. not to tell anyone
about the incident. Respondent conceded that he did not report the
incident to DSS or to law enforcement. DSS subsequently received
a report of the birthday party incident after A.V. disclosed it to
her mother. During a meeting with DSS officials on 28 June 2006,
respondent expressed disbelief that his brother inappropriately
touched A.V. Respondent also appeared to be ambivalent as to
whether the abuse actually occurred.
We hold the foregoing evidence is sufficient to withstand the
motions to dismiss.
This evidence supports the findings of fact,
which in turn support the conclusions of law that A.V. is an
abused, neglected and dependent juvenile and that D.V. is a
neglected and dependent juvenile. These assignments of error are
overruled.
II
Respondent also contends that the trial court violated his due
process and constitutional rights by failing to comply with N.C.
Gen. Stat. §§ 7B-903 and 7B-907. He argues the trial court failed
to comply with N.C. Gen. Stat. § 7B-903 by failing to consider
dispositional alternatives other than placement with DSS. He
argues the trial court failed to comply with N.C. Gen. Stat. § 7B-
907 by failing to give notice of hearing before ordering a
concurrent plan of reunification and adoption.
N.C. Gen. Stat. § 7B-903 provides that in placing a juvenile
outside of the home, “the court shall first consider whether a
relative of the juvenile is willing and able to provide proper care
and supervision of the juvenile in a safe home.” N.C. Gen. Stat.
§ 7B-903(a)(2)(c) (2005). However, placement with the relative is
not mandatory if “the court finds that the placement is contrary to
the best interests of the juvenile.”
Id. The trial court's best
interest determination is reviewable only for abuse of discretion.
In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567,
disc.
review denied, 356 N.C. 163, 568 S.E.2d 608,
appeal dismissed, 356
N.C. 163, 568 S.E.2d 609 (2002),
cert. denied, 538 U.S. 982, 155 L.
Ed. 2d 673 (2003).
With respect to placement of the children, the trial court
specifically found,
inter alia:
that the plan for both children is
reunification, with a concurrent plan of
adoption.
The Court finds that Ms. Colliar, therapist,
has said she is willing to work with all
family members; that initially, she indicated
that [respondent] was “ambivalent” about theallegations of sex abuse by his brother. This
has caused tension in the paternal family.
The Court finds that [D.V.] has been
experiencing trouble adjusting to placement.
On occasion, [respondent] has assisted the
foster parent in talking with [D.V.] to assist
him in calming down and processing his anger.
[D.V.] began therapy . . . on August 3, 2006,
on a weekly basis.
The Court finds that a referral has been made
for in-home Family Preservation Services for
both parents to address communication,
parenting, sexual abuse and other concerns as
related to the children and their safety
when
returned home to either parent. . . .
(Emphasis added). The trial court also found that there were
pending charges of sex crimes against A.V.'s sexual abuser and that
respondent continued to allow the abuser to be in physical contact
with A.V. The trial court then concluded “[i]t is in the best
interest of the juveniles to remain in the legal custody of [DSS]
and contrary to their best interest to be returned to any parent
at
this time.” (Emphasis added). Where the trial court's findings of
fact and conclusions reflect the evidence presented at the hearing,
including the current efforts of the parents, no abuse of
discretion is shown.
N.C. Gen. Stat. § 7B-907 establishes procedures and guidelines
for a permanency planning hearing, which is a review hearing
conducted within twelve months after entry of an initial order
removing custody of a juvenile from a parent. N.C. Gen. Stat. §
7B-907(a) (2005). The express purpose of a permanency planning
hearing is “to develop a plan to achieve a safe, permanent home for
the juvenile within a reasonable period of time.”
Id. As thepresent order is an original custody order, respondent's citation
of N.C. Gen. Stat. § 7B-907 is inapposite. This assignment of
error is overruled.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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