IN THE MATTER OF: B.M.
Harnett County
No. 06-J-217
STROUD, Judge.
Respondent father (father) and respondent mother (mother)
(together, respondents) appeal the adjudication and disposition
orders adjudicating the minor child, Beth
(See footnote 1)
, as neglected and
awarding full custody of the child to Harnett County Department of
Social Services (DSS). Mother is the birth mother of threechildren, Ned, Carl, and Beth. Father is the biological father of
Carl and Beth.
In 2004, respondents and Ned lived in the home of Ned's
maternal grandmother. On 11 June 2004, Ned was adjudicated to be
neglected due to the unsanitary condition of the home, and DSS
entered into a family services case plan with mother. However,
after mother failed to comply with the case plan, reunification
efforts were ceased. The mother's parental rights as to Ned were
terminated on 18 October 2005.
In July 2005, mother gave birth to Carl. DSS began intensive
case management services soon after Carl's birth because of
mother's history with Ned. Services included weekly visits by a
social worker. A case plan was developed including, inter alia,
parenting skills training with a social worker, a mental health
evaluation and a vocational rehabilitation program. Father was
required to participate in a psychological evaluation and assist in
seeking the services outlined for Carl in the case plan.
On 2 December 2005, when Carl was almost six months old, DSS
filed a juvenile petition alleging that Carl was a neglected
juvenile. On 23 March 2006, Carl was adjudicated as neglected. As
a basis for this adjudication, the trial court relied upon both the
respondents' failure to comply with the case plan developed for
Carl as well as the prior adjudication of neglect and subsequent
termination of parental rights as to Ned. In particular, the trial
court found that mother failed to follow through on mental health
treatment and to attend vocational rehabilitation and father failedto obtain a psychological evaluation. In addition, the trial court
found that respondents had delayed seeking medical attention for
Carl after the social worker telephoned respondent father and told
him about the need to take Carl to a pediatrician. Carl was
subsequently diagnosed with an upper-respiratory infection.
Respondents appealed the adjudication and disposition orders as to
Carl, and, on 15 May 2007, this Court affirmed in part and
dismissed in part. See In re C.M., __ N.C. App. __, 644 S.E.2d 588
(2007).
In August 2006, mother gave birth to Beth. Though DSS was
aware that mother was pregnant, DSS learned of Beth's birth in
October 2006 when mother had called DSS to say that respondents had
not received notice of a permanency planning action team meeting
for Carl. On 2 October 2006, DSS investigation and assessment
social worker, Crystal Reed (Reed), received a report regarding
Beth. On 3 October 2006, Reed prepared and filed a juvenile
petition alleging that Beth was neglected and dependent. On that
same date, the trial court entered a non-secure custody order, and
Reed went to the home of Beth's paternal grandmother, D.M., to
remove the child.
When Reed arrived, she found father, but mother and Beth were
not home. Father told Reed that mother had taken Beth to a
doctor's appointment but did not know when they would return. When
Reed returned later that afternoon, father told her that he had
informed mother that DSS was looking for her and for Beth.
Thereafter, Reed, with the assistance of local law enforcement,searched for mother and Beth for approximately one month. Reed
testified that she returned to D.M.'s house approximately twelve
times looking for mother and Beth.
On 6 November 2006, DSS finally located mother and Beth and
took custody of Beth at a pediatric clinic when respondents arrived
with Beth for an appointment. Reed testified that with the
exception of a little bit of cradle cap, Beth appeared well-cared
for and well-nourished. As Reed was taking custody of Beth, mother
refused to tell Reed where she was living. However, when father
later phoned Reed to check on how Beth was doing, he informed Reed
that they were residing with his brother and gave her the address
and phone number. Reed never visited this residence. An
adjudication and disposition hearing was conducted on 5 January
2007. Following the hearing, the trial court adjudicated Beth as
neglected. Respondents now appeal.
We first address respondents' claim that there was
insufficient evidence to support the trial court's conclusion that
Beth was a neglected juvenile.
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 law. 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 beensubjected to abuse or neglect by an adult who
regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2005). This Court has further
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' to adjudicate a juvenile neglected.
In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02
(1993) (emphasis added). It is well-established that the trial
court need not wait for actual harm to occur to the child if there
is a substantial risk of harm to the child in the home. In re
T.S., III, 178 N.C. App. 110, 113, 631 S.E.2d 19, 22, rev. denied,
360 N.C. 647, 637 S.E.2d 218 (2006), aff'd, 361 N.C. 231, 641
S.E.2d 302 (2007). However, allegations of neglect must be proved
by clear and convincing evidence. N.C. Gen. Stat. § 7B-805
(2006). Clear and convincing evidence is greater than the
preponderance of the evidence standard required in most civil
cases. It is defined as evidence which should fully convince. In
re Smith, 146 N.C. App. 302, 304, 552 S.E.2d 184, 186 (2001)
(internal citations and internal quotations omitted).
Respondents assert that DSS failed to proffer sufficient
evidence specifically related to the care and supervision of Beth.
They contend that in concluding that Beth was neglected, the trial
court erred when it relied, almost exclusively, on the prior
neglect adjudications of two other children.
We have held that an adjudication of neglect may be based on
conduct occurring before a child's birth. In re A.B., found thatprior abuse and neglect of sibling and the mother's failure to
comply with the orders entered in the sibling's case supported the
conclusion that a younger child was neglected. ___ N.C. App. ___,
___, 635 S.E.2d 11, 16-17 (2006).
However, we have also recognized that the extent to which the
trial court may rely upon such prior adjudications has its limits.
See In re A.K., 178 N.C. App. 727, 731-32, 637 S.E.2d 227, 229-30
(2006). In the case of In re A.K., we held that the prior
adjudication of neglect of a sibling several months earlier,
standing alone, was insufficient to support a subsequent
adjudication of neglect with respect to another child where there
was no evidence that the conditions that led to the prior
adjudication still existed. Id; see also, In re Ellis, 135 N.C.
App. 338, 342, 520 S.E.2d 118, 121 (1999) (affirming trial court's
conclusion of no neglect for two children where older sibling died
in the home because there was insufficient evidence to demonstrate
that the children would be subject to a risk of future harm).
The record in the case before us reveals that DSS made no
factual investigation regarding the status of Beth's health or
well-being or the appropriateness or safety of the environment in
which she was living prior to filing the juvenile petition. As a
result, the juvenile petition contains no specific allegations
relating to Beth. The petition alleged only that two children
previously were removed from respondents' home due to their
failure to extend proper care and supervision. The petition also
alleged that respondent-mother suffered from mild mentalretardation and a mood disorder and that father was also mildly
mentally retarded and had limited cognitive abilities. The
petition further alleged that respondent-mother had been
uncooperative in participating in recommended treatment during DSS
involvement with the older children.
At the adjudication hearing, Reed testified that the
allegations in the petition were based entirely on what had
happened in the previous case and she admitted that there was no
new evidence available at the time she drew the petition of
specific neglect related to Beth. She further admitted that prior
to the filing of the petition, she made no contact with either of
the guardians ad litem that had been appointed for respondents in
the prior actions. The testimony of two other social workers
involved in the case indicates that, except for the phone call in
which mother disclosed that she had given birth, they also had no
contact with respondents prior to Beth's removal. In essence, the
juvenile petition alleging that Beth was neglected was filed solely
on the basis of the prior adjudications of Ned and Carl.
In its adjudication order, the trial court made several
findings about the two prior minor children and the respondents'
interactions with DSS relating to those children. In fact, the
trial court specifically found that the juvenile petition filed
with respect to Beth was based upon the history of the two other
juveniles being removed from the parents upon findings of neglect
and dependency. However, the only findings made by the trial
court that related specifically to the respondents' care of Bethwere as follows: 1) the respondents evaded contact with DSS for
approximately one month while DSS attempted to serve the juvenile
petition on the respondents; 2) when the juvenile was finally
removed from respondents during Beth's appointment at a children's
clinic, a review of Beth's medical records indicated multiple
visits to the clinic; 3) respondents had fed Beth baby food,
bananas, from a jar, in addition to baby formula food, which was
inappropriate nourishment for a child of that age and was also a
health hazard by way of choking, although there was no evidence
that the child choked on the baby food; 4) respondents were the
primary caretakers of [Beth] from her birth on August 28, 2006
until her removal from [respondents] on November 6, 2006; 5) at
the time of Beth's removal, Beth was clean, appropriately dressed
and was apparently healthy; 6) since Beth's removal, respondents
had attended nine of eleven scheduled visits with Beth after her
placement in foster care, but were late for several of the visits;
and 7) during the visits with Beth, the respondents were
appropriate with the child and nurturing to the child and the
parents and the child ha[d] formed a bond.
In addition to citing the adjudication of Ned and Carl, the
trial court also relied upon the reports and testimony of a
psychologist, David Rodamacher (Rodamacher), who evaluated the
respondent-mother on 16 August 2004 and respondent-father on 31
January 2006 for the purposes of the prior juvenile petitions.
Based on this evidence, the trial court found that [t]he parents
are not mentally capable of parenting a child without the help ofsome responsible adult. While the trial court's finding is
generally reflective of Rodamacher's testimony, it does not reflect
the extent of the supervision he recommended. Rodamacher testified
that both respondents had mild mental retardation and that
respondent-mother had an unspecified mood disorder. Based on these
diagnoses, Rodamacher concluded that respondents would be able to
care for a child within a typical routine, but felt that it would
be important to have someone checking in regularly to make sure
that the routine is maintained and to help make judgments. He
further qualified his conclusion that live-in supervision would not
be required but rather suggested that someone visit weekly or
more to see how things are going.
This testimony combined with the evidence that Beth appeared
healthy and that she was under the care of a pediatrician after
having been in the respondents' custody for a period of over two
months prior to her removal does not support the trial court's
conclusion that Beth was, or had been, neglected. We conclude that
the trial court erroneously concluded that Beth was a neglected
juvenile because the juvenile did not receive proper care and
supervision from the respondent parents and the juvenile has been
allowed to live in an environment injurious to the juvenile's
welfare.
Neither does the evidence support an alternative conclusion,
which would have been a more appropriate consideration in this
particular case, that Beth was at a substantial risk of impairment.
See In re Safriet, 112 N.C. App. at 752, 436 S.E.2d at 901-02. Tothe contrary, the evidence demonstrates that respondents are
capable of caring for Beth with appropriate services and
monitoring. While the trial court made the finding that DSS had
made reasonable efforts to prevent foster care placement of the
juvenile by extension of case management services after
investigations and reports the record before us is completely
devoid of any evidence that DSS made any such efforts as to Beth.
For the foregoing reasons, we conclude that the trial court's
findings, combined with the complete lack of any evidence of the
current care environment being provided by the respondents at the
time that the juvenile petition was filed, are insufficient to
support the trial court's conclusion that Beth was a neglected
juvenile. Consequently, the adjudication and disposition orders
are reversed. We conclude that the orders must be reversed, and
thus we do not address respondents' remaining assignments of error.
REVERSED.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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