Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-631


Filed: 16 October 2007

                            Cumberland County
N.D.,                        No. 06 JA 61
A Minor Child.                            

    Appeal by Respondent from order entered 8 March 2007 by Judge Edward A. Pone in Cumberland County District Court. Heard in the Court of Appeals 24 September 2007.

    Mercedes O. Chut for Respondent-Appellant.

    Elizabeth Kennedy-Gurnee for Petitioner-Appellee Cumberland County Department of Social Services.
    Beth Hall for Guardian ad Litem-Appellee.

    STEPHENS, Judge.

    Respondent-mother appeals from an order adjudicating her daughter, N.D., a neglected and dependent juvenile and awarding legal and physical custody of the child to Petitioner Cumberland County Department of Social Services (“DSS”).
    After receiving a referral regarding thirteen-month-old N.D. on 25 January 2006, DSS filed a juvenile petition on 30 January 2006, alleging N.D. was a neglected and dependent juvenile pursuant to N.C. Gen. Stat. §§ 7B-101(9) and (15), in that Respondent-mother denied N.D. proper care and supervision, exposed her to an environment injurious to her welfare, and was incapable of providing care and supervision for the child. The district courtentered an order for nonsecure custody, granting DSS placement authority and authorizing DSS to obtain medical treatment and testing for the child.
    Following a hearing, the district court maintained N.D. in DSS custody and ordered Respondent-mother to provide DSS with the address of N.D.'s father. In a review order entered 10 February 2006, the court continued to maintain the child in DSS custody, ordered the appointment of a Guardian ad Litem for Respondent- mother, and directed DSS to allow Respondent-mother supervised visitation. In a series of hearings pursuant to N.C. Gen. Stat. § 7B-506(e), the court continued to maintain the child in the nonsecure custody of DSS while the child's putative father was served as a respondent in the cause, determined through genetic testing to be N.D.'s biological father, and in an order filed 9 August 2006, approved by the court as a placement for the child. The court thereafter found good cause to continue the hearing on DSS's petition until the 14 November 2006 special session of court.
    The district court heard adjudicatory evidence on 14 November, 17 November, and 7 December 2006. The court continued the dispositional hearing from 13 December, to 19 December 2006, and then to 2 January 2007, due to Respondent-mother's incarceration in Chatham County jail. In an order filed 8 March 2007, the court adjudicated N.D. a neglected and dependent juvenile, concluding that Respondent-mother had failed to provide her with proper care and supervision, was unable to provide proper care or supervision, and lacked an appropriate alternative child care arrangement. Thecourt awarded legal and physical custody of the child to DSS pending the results of a psychological and psychiatric evaluation of Respondent-mother. The court authorized DSS to continue N.D.'s placement with Respondent-father. Respondent-mother filed timely notice of appeal.
    Respondent-mother first claims that the court's adjudication of neglect was unsupported by its findings of fact or the evidence. She contends that DSS failed to show that her unstable living arrangements in January of 2006 created a substantial risk of harm to N.D. She further avers that DSS's evidence of neglect and the trial court's findings of fact related only to events that occurred one year prior to the hearing on the petition. Absent a showing “that [her] current living conditions or that any current condition she has creates a substantial likelihood of risk to the [c]hild[,]” Respondent-mother contends that the “[t]rial [c]ourt's findings of fact are inadequate to support a conclusion of neglect as of the time of trial.”
    In reviewing an adjudication of neglect or dependency pursuant to N.C. Gen. Stat. § 7B-807, we must determine whether the district court's findings of fact are supported by “clear and convincing evidence,” and whether the court's findings of fact support its conclusions of law. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (internal quotation marks and citation omitted). Where, as here, the appellant does not assign error to any of the trial court's individual findings of fact, the facts are deemed to be supported by competent evidence and are binding onappeal. Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991). The determination from such facts that a child is a neglected or dependent juvenile within the meaning of N.C. Gen. Stat. § 7B-101 is a conclusion of law fully reviewable on appeal. In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
    A neglected juvenile is one “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). To support a finding of neglect, the facts must show “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 Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)). Moreover, “the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent.” In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).
    We find no merit to Respondent-mother's claim that the trial court erred by failing to determine the existence of neglect at the time of the hearing. Unlike a termination of parental rights proceeding under Article 11 of the Juvenile Code, an adjudicatory hearing under Article 8 addresses the existence of abuse, neglect, or dependency at the time of the filing of the juvenile petition, rather than at the time of the hearing. Compare In re A.B., __ N.C. App. __, __, 635 S.E.2d 11, 15 (2006) (“As post-petitionevidence is admissible for consideration of the child's best interest in the dispositional hearing, but not an adjudication of neglect, the trial court did not err in finding the time period between the child's birth and the filing of the petition as the relevant period for the adjudication.”), with In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001) (“The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination hearing.”), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002).
    The district court concluded that N.D. was a neglected juvenile based upon the following uncontested findings:
        8. That during the month of December, 2005, [Respondent-mother] was evicted from her residence and was homeless.

        9. That thereafter she was living from place to place and had a transient and unstable lifestyle. That she had the minor child N.D. with her during this time. The [Respondent- mother] was unemployed . . . and lacked the resources necessary to adequately provide for herself and the minor child. . . . [DSS] provided some assistance to her[.]

        10. . . . [Respondent-mother] did not have a residence suitable for herself and her minor child during this time.

        11. . . . [Respondent-mother] sought help from the First Baptist Church . . . . The church assisted her on numerous occasions.

        12. The youth minister went to the [Respondent-mother's] home and determined that there was no electricity in the home. The church assisted by providing food, blankets, clothing and other items.

        13. That in January, 2006,[Respondent-mother] came to the church in a highly agitated and aggressive state seeking assistance. Afternoticing that the minor child's milk was spoiled, the Youth Minister gave her fresh milk for the minor child[.]

        14. The minor child had a fever and was hot to the touch. [Respondent-mother] informed the youth minister that she had not taken the child to the doctor because she was afraid that DSS would take her. The youth minister eventually had to ask the respondent mother to leave due to her loud, aggressive and bizarre behavior.

        15. [Respondent-mother] returned to the church a few days later in a very angry state. She accused the Pastor of being a racist, used verbal profanities and complained that she had been evicted and . . . no one would help her.

        16. [Respondent-mother] refused to call the Department for fear they would take her baby. She became so loud and aggressive that the Pastor had to ask her to leave and the police were called for assistance.

        . . . .

        18. [Respondent-mother] and the minor child have been observed . . . on NC 210, a very busy multi_lane highway walking and pushing the minor child in the baby stroller. That at times she was observed on NC 210 as late as 11:00 PM. The weather was cold at the time.

        19. That in mid to late January, 2006, the respondent mother barged into the home of Tina Hull insisting that someone was after her and the baby. She was acting very paranoid and agitated. She acted very bizarre and irrational and her actions began to make Ms. Hull become fearful for herself and her children. She continued to act this way throughout the evening until Ms. Hull managed to call the Youth Minister who in turn called the police. The officers arrived and escorted [Respondent-mother] out of the residence. That [Respondent-mother] did not know Ms. Hull and entered the residence without any information concerning who resided there.

        20. [Respondent-mother] brought the minor child to day care on several occasions in anunkempt condition. The worker would have to feed the minor child immediately upon her arrival[.]

        21. The worker had to wash the minor child, N.D., every day upon her arrival as she had a body odor about her person and her clothes were always dirty and soiled. She also had dirt around her neck. The minor child also had a very bad diaper rash and the worker gave [Respondent-mother] some Desitin ointment to apply onto the affected area.

        . . . .

        24. That the day care worker, Davita Adkins, observed [Respondent-mother] with the minor child walking on NC 210 during rush hour traffic. [Respondent-mother] was walking on the side of the road without a sidewalk. Ms. Adkins . . . stopped to offer them a ride; however, [Respondent-mother] refused to ride.

        25. That [in] January, 2006, the respondent mother was staying with two men and was asked to leave. She became argumentative and refused to leave the premises. That she had the minor child with her at this time. One of the men pulled a gun and fired it between the feet of [Respondent-mother] in an effort to force her off the property.

        26. [Respondent-mother] placed the minor child in this dangerous situation.

    We hold these facts support a conclusion that the child was denied proper care and supervision in a manner exposing her to a substantial risk of harm. We particularly note the findings that Respondent-mother lacked housing, exposed the child to potentially dangerous situations in seeking a place to stay, failed to keep the child clean, and consciously chose not to seek medical care for the obviously feverish child. Respondent-mother's argument assigning error to the trial court's adjudication of N.D. as a neglected juvenile is overruled.    Respondent-mother also challenges the court's adjudication of N.D. as a dependent juvenile. “[A]s with the conclusion of neglect,” she contends, “the evidence does not show that [she] could not provide for the child at the time of trial.” Respondent- mother notes that DSS offered no evidence that she was homeless at the time of the hearing, and claims the court found no facts evincing her “current inability” to care for the child.
    A dependent juvenile is “[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). In adjudicating a child dependent, “the trial court must address both (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). The relevant period for assessing N.D.'s dependency is “the time period between the child's birth and the filing of the [DSS] petition” on 30 January 2006. A.B., __ N.C. App. at __, 635 S.E.2d at 15.
    In addition to the facts quoted above, the trial court found as follows:
        28. The respondent mother has at least four other children and each of them ha[s] been removed from her care. She has not raised any of her children to date.
        29. That several times during the course of the trial of this matter the court had to admonish the respondent mother to refrain from making loud outbursts, talking and otherwise disrupting the proceedings[.]

        30. That neither her attorney nor her GAL was able to keep the respondent mother under control during the course of this proceeding.

    These observations tend to corroborate the court's findings regarding the unstable behavior displayed by Respondent-mother during the period relevant to the adjudication. We further hold the findings sufficient to support a conclusion that Respondent- mother was incapable of providing N.D. with appropriate care and supervision at the time DSS filed its petition. Moreover, although the order lacks a designated finding on the issue, the district court's second conclusion of law states that Respondent-mother “lacks an appropriate alternative child care arrangement” for N.D. Notwithstanding its failure to classify this statement as a finding of fact, the court properly accounted for both elements of dependency under N.C. Gen. Stat. § 7B-101(9). See In re Faircloth, 153 N.C. App. 565, 569, 571 S.E.2d 65, 68 (2002) (deeming the mislabeling of findings of fact and conclusions of law “not fatal to the trial court's adjudicatory order”). Respondent-mother's argument assigning error to the trial court's adjudication of N.D. as a dependent juvenile is also overruled.   (See footnote 1)      Additionally, although Respondent-mother never challenged the trial court's jurisdiction in this matter, we take this opportunity to stress the importance of clearly conferring subject matter jurisdiction on the trial court by completing a juvenile petition in strict accordance with the statute. “Subject matter jurisdiction is the indispensable foundation upon which valid judicial decisions rest, and in its absence a court has no power to act.” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). In juvenile proceedings, verified pleadings are necessary to invoke the jurisdiction of the court over the subject matter. In re Triscari Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993). A petition in a juvenile abuse, neglect, or dependency case must “be drawn by the [DSS] director,” N.C. Gen. Stat. § 7B-403(a) (2005), or his or her authorized representative. N.C. Gen. Stat. § 7B-101(10) (2005); N.C. Gen. Stat. § 108A-14(b) (2005). It must also be “verified before an official authorized to administer oaths[.]” N.C. Gen. Stat. § 7B-403(a).
    In In re T.R.P., a petition alleging respondent-mother's daughter was a neglected juvenile was neither signed nor verified by the Director of Wilkes County Department of Social Services or any authorized representative thereof. The North Carolina Supreme Court held the trial court lacked subject matter jurisdiction to act in the case because “[t]he statutory requirement for verification of juvenile petitions is a minimally burdensome limitation on government action,” 360 N.C. at 598, 636 S.E.2d at 794-95, and “'failure to verify a juvenile petition is a fataldefect[.]'” Id. at 598, 636 S.E.2d at 795 (quoting In re Green, 67 N.C. App. 501, 504, 313 S.E.2d 193, 195 (1984)).
    In In re A.J.H-R., __ N.C. App. __, 645 S.E.2d 791 (2007), petitions alleging respondent-mother's children were neglected juveniles bore the signatures “[Director] by MH” and “[Director] by Mhenderson” with the “Director” box instead of the “Authorized Representative” box checked. Id. at __, 645 S.E.2d at 792. This Court held the petitions were insufficient to vest the district court with subject matter jurisdiction because they were not signed by either the DSS director or an authorized representative of the director. Id.
    In In re Dj.L., __ N.C. App. __, 646 S.E.2d 134 (2007), a petition alleging respondent-mother's children were neglected and dependent juveniles was signed by “Betty Hooper” with an address of “Youth and Family Services.” Id. at __, 646 S.E.2d 137. This Court held the petition contained sufficient information from which the trial court could determine that Betty Hooper was an employee of Youth and Family Services and thus was an authorized agent of the director. Id.
    Here, the petitioner is William F. Scarlett, Director of Cumberland County Department of Social Services. The actual signature on the juvenile petition is that of “Elizabeth Kennedy-Gurnee for” John Campbell, Agency Attorney. The face of the petition indicates that an authorized representative of the Director, and not the Director himself, signed the petition. See A.J.H-R., __ N.C. App. at __, 645 S.E.2d at 792 (“[J]uvenilepetitions may be signed and verified by an authorized representative of the director[.]”). Furthermore, while the petition does not identify Kennedy-Gurnee as Scarlett's authorized representative, the record on appeal reflects that Kennedy-Gurnee was an attorney with the Cumberland County Department of Social Services who appeared in this matter numerous times, and thus was in fact an authorized agent of the Director whom the trial court would recognize as such. While we hold that the petition herein was sufficient to confer subject matter jurisdiction on the trial court, we emphasize that when a juvenile petition is signed by someone other than the DSS director, it is the better practice for the face of the petition to clearly designate the person who actually signs the petition as being the director's authorized representative. Further, we disapprove of the practice of one authorized representative signing the petition “for” another authorized representative.
    For the reasons stated, the order adjudicating N.D. a neglected and dependent juvenile is
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

Footnote: 1
        (See footnote 2)  The record on appeal includes a third assignment of error not addressed by Respondent-mother in her brief to this Court. Pursuant to N.C. R. App. P. 28(b)(6), we deem this assignment of error abandoned.
Footnote: 2
The record on appeal includes a third assignment of error not addressed by Respondent-mother in her brief to this Court. Pursuant to N.C. R. App. P. 28(b)(6), we deem this assignment of error abandoned.

*** Converted from WordPerfect ***