IN THE MATTER OF: Buncombe County
C.Q. No. 05 J 488
Matthew J. Middleton for petitioner-appellee Buncombe County
Department of Social Services.
Michael E. Casterline for respondent-appellant mother.
Michael N. Tousey for Guardian ad Litem-appellee.
No brief for respondent-appellee father.
Stroud, Judge.
Erin Q. (respondent) appeals from an order adjudicating her
minor child, C.Q., to be a neglected child. For the reasons stated
below, we reverse.
On 15 November 2005, Buncombe County Department of Social
Services (DSS) received a request for an assist regarding the
child. The assist requested that DSS interview respondent and
respondent's mother (Charlayne) regarding an incident in which the
child received a black eye while in Charlayne's care. Upon
receiving the request for an assist, DSS took emergency custody of
respondent's younger sister on 16 November 2005 because ofunresolved risk issues that DSS had with Charlayne dating back to
a 2002 incident between Charlayne and respondent.
DSS allowed respondent to attend a staffing regarding its
taking of emergency custody of her younger sister. When asked
where her child was, respondent indicated at first that she was
with a friend. Eventually respondent admitted her child was with
Charlayne. According to a social worker, Erin Renee Hall,
respondent acknowledged during the meeting with them that Charlayne
had held a gun to her head during the 2002 incident. Respondent
related that Charlayne had apologized and that she had forgiven her
mother. After Ms. Hall discussed with respondent that DSS would
have to place her child in a kinship placement, respondent refused
to produce her child. DSS located the child on 10 December 2005
and took her into emergency custody. On 12 December 2005, DSS
filed a juvenile petition which alleged that C.Q. was neglected.
Pursuant to a non-secure custody order entered 10 January 2006, DSS
put the child in a kinship placement.
At the adjudication and dispositional hearing conducted on the
24th and 25th of August 2006, John Martin Moss, a social worker and
DSS case manager, testified that DSS had investigated Charlayne in
2002 and had substantiated physical abuse and neglect involving
respondent. Mr. Moss testified that he received the case involving
Charlayne on 8 October 2002 after it was substantiated for physical
abuse and neglect. Respondent disclosed to him that Charlayne had
held a gun to her head and threatened her when she was seventeen
years old. Charlayne was subsequently convicted in district courtof assault by pointing a gun, and the district court's order stated
that Charlayne could have only supervised contact with minors.
Respondent and her younger brother and sister were put in separate
kinship placements afterwards. Charlayne gave notice of appeal to
superior court, then she took her two youngest children from the
kinship placements and left the jurisdiction without the consent of
DSS. Mr. Moss attempted to locate them for several months, but he
closed out the case when respondent became eighteen years of age on
23 January 2003.
Respondent's brother testified about the 2002 incident between
respondent and his mother Charlayne. He and a friend had gone into
his room, closed the door and listened to music. While he could
hear the argument, he did not see his mother threaten respondent or
hold a gun on her. Although he gave a written statement at the
time in which he claimed to have seen his mother hold a gun to
respondent's head, he explained that he did so because he wanted to
live with his father and because respondent did not want to remain
in the house. His friend gave a written statement at the time and
also testified at the adjudication and dispositional hearing about
what he had seen about five or six years earlier. He was in
respondent's bedroom on the date in question with respondent, her
brother and her sister. He testified that Charlayne entered the
bedroom, pointed a gun at respondent, and threatened to kill her.
He left the bedroom within a minute with respondent's brother and
sister, but spent the remainder of the night in the home. The
friend also related that respondent and her brother had visited himabout six months prior to the adjudication and dispositional
hearing and that respondent told him that she had retracted her
statement and suggested that he do the same.
Charlayne during her testimony admitted yelling at respondent
that evening, but she denied pointing a gun at respondent or
threatening her life. She testified that while her son's friend
was present in her home that evening, both he and her son were in
a bedroom on the other side of the house “blaring their music”
during the incident with respondent. Charlayne stated that
respondent's younger sister was present in the bedroom during the
incident, but was in bed at the time.
Charlayne stated that although she left the area following her
conviction in district court, she returned to court for three
consecutive weeks for her assault case to be heard in superior
court. After respondent gave birth, Charlayne did provide
childcare. Charlayne moved back to Buncombe County in November of
2005, but her case had not been called in superior court as of the
date of respondent's hearing. While Charlayne admitted owning two
guns in 2002, she testified that she could no longer own guns.
Respondent's husband (the child's father) testified that he,
respondent and the child lived with Charlayne for a time in South
Carolina, and Charlayne assisted them with the child. He never saw
Charlayne do anything inappropriate with the child and never had
any concerns about the child's safety when she was with Charlayne.
He never saw Charlayne act violently toward anyone. Respondent testified about the 2002 incident. After getting
off work early one evening in September of 2002, respondent spent
the evening with friends at their house. She fell asleep while
there and did not awaken until 1:00 p.m. the next day. Respondent
eventually returned home. Her brother and his friend ran to her
brother's bedroom when Charlayne came home. Respondent testified
that Charlayne was ranting and raving about filing a missing person
report and a stolen car report. Charlayne said she was going to
take away respondent's car, driver's license, cell phone, pager and
CDs.
Respondent called DSS the next day and told them that
Charlayne had pulled a gun on her and threatened to kill her. She
later testified in district court that Charlayne had pointed a gun
at her. After the birth of her child, respondent moved in with
Charlayne and allowed Charlayne to take care of her child.
Respondent testified that she had not ever seen Charlayne do
anything inappropriate or violent with her child, and she indicated
that she did not believe that Charlayne constituted a risk to her
child.
After finding that the friend's testimony about the 2002
incident was “the least biased and very credible[,]” the trial
court made the following findings:
19. [T]hat approximately four years ago
Charlayne [] did point a gun at [respondent],
the mother of the minor child, while in a rage
and threatened to end her (the respondent
mother['s]) life. The respondent mother, on
several occasions prior to the filing of this
juvenile petition, admitted that this act did
occur. However, she has subsequently denied,and continues to deny, that Charlayne []
threatened her life with a gun. The
respondent mother has attempted to get an
eyewitness [her brother's friend] to change
his story and to deny that the assault
occurred. The minor child has been in the
care and control of Charlayne [], and at
times, Charlayne [] has provided sole care for
the minor child. At this time, the respondent
mother has denied that the assault occurred,
and continues to deny that Charlayne []
threatened her life with a gun. The
respondent mother's denial, in combination
with the assault constitutes an environment
injurious to the minor child.
20. The court finds 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 did not receive
proper care or supervision from the respondent
mother and lived in an environment injurious
to her welfare due to the respondent mother
leaving the minor child in the care of the
maternal grandmother, after the maternal
grandmother pointed a gun at the respondent
mother and threatened to end her life, due to
the respondent mother's denial that said act
occurred, and due to the respondent mother not
cooperating with the Department, as specified
above.
After concluding that it was in the child's best interest that
her custody remain with DSS and “[t]hat the best plan to achieve a
safe permanent home for the minor child within a reasonable period
of time is reunification[,]” the trial court ordered that the
child's custody would remain with DSS with placement in the
discretion of DSS. From the trial court's adjudication and
dispositional order, respondent appeals.
Respondent contends the trial court's findings of fact do not
support its conclusion that the child was neglected. She argues
that the bases for the trial court's conclusion - the 2002 assaultby Charlayne upon respondent, respondent's current denial that the
2002 incident occurred, respondent's having left the child in
Charlayne's care, and respondent's failure to cooperate with DSS -
are insufficient to support a conclusion that the child is
neglected. We agree.
A “neglected juvenile” is “[a] juvenile who does not receive
proper care, supervision, or discipline from the juvenile's parent
. . . or who lives in an environment injurious to the juvenile's
welfare . . . .” N.C. Gen. Stat. § 7B-101(15) (2005). N.C. Gen.
Stat. § 7B-101(15) is
silent on whether the juvenile, to be
neglected, must sustain some injury as a
consequence of the failure to provide 'proper
care, supervision, or discipline[,]' [but]
this Court has consistently required that
there be some physical, mental, or emotional
impairment of the juvenile or a substantial
risk of such impairment as a consequence of
the failure to provide 'proper care,
supervision, or discipline.'
In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02
(1993); see also In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255,
258 (2003).
The trial court here made no finding that the child sustained
injury or impairment as a consequence of the failure to provide
proper care, supervision, or discipline. The trial court's
findings as to the 2002 assault, respondent's lack of veracity, her
lack of cooperation with DSS, and her leaving the child in
Charlayne's care do not rise to the level of a substantial risk of
physical, mental, or emotional impairment. The trial court made no
findings to suggest that Charlayne had provided inappropriate carewhen the child was left in her care. While Charlayne's assault
four years earlier upon the then seventeen-year-old respondent
demonstrated appallingly poor judgment and lack of self-control, it
appears from the lack of findings or testimony of other
inappropriate conduct either prior to or after the 2002 assault
that the incident was an aberration rather than the norm. After
reviewing the record, we conclude the trial court's findings of
fact do not support its conclusion of law that respondent was
neglected. The trial court's adjudication judgment and
dispositional order is therefore reversed and remanded.
Reversed and remanded.
Judges JACKSON and STEPHENS concur.
Report per Rule 30(e).
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