IN THE MATTER OF:
Cumberland County
N.D., No. 06 JA 61
A Minor Child.
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
AFFIRMED.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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