In re C.M.

Citation644 S.E.2d 588
Decision Date15 May 2007
Docket NumberNo. COA06-1168.,COA06-1168.
CourtCourt of Appeal of North Carolina (US)
PartiesIn the Matter of C.M., A Minor Child.

E. Marshall Woodall and Duncan B. McCormick, Lillington, for petitioner Harnett County Department of Social Services.

Elizabeth Myrick Boone, Sanford, for Guardian ad Litem of the minor child.

Peter Wood, Raleigh, for respondent mother.

Hall & Hall Attorneys at Law, P.C., by Susan P. Hall, Morganton, for respondent father.

BRYANT, Judge.

Respondent mother and respondent father (respondents) appeal adjudication and disposition orders filed 23 March 2006 and 12 May 2006 adjudicating their minor child C.M.1 to be neglected and awarding legal and physical custody of the child to Harnett County Department of Social Services (DSS). For the reasons stated below, we affirm in part and dismiss in part respondents' appeal.

In 2004, respondents and N.M. (the biological child of respondent mother) lived in the home of N.M.'s paternal grandmother. On 26 May 2004, N.M. at the age of three months was removed from respondent mother's custody due to the unsanitary condition of the home (live and dead roaches found in the child's diaper). N.M. was adjudicated to be neglected. DSS entered into a family services case plan, the mother failed to comply with such plan, and reunification efforts ceased. The mother's parental rights as to N.M. were terminated on 9 September 2005.

C.M., sibling to N.M., was born to respondents in June 2005. When C.M. was born, DSS classified the baby as being at "high safety risk." On 26 August 2006, DSS began intensive case management services, including weekly visits by the social worker. The plan required respondent mother to be supervised at all times when caring for C.M. If respondent father was not available, the paternal grandmother served as an alternative supervisor during respondent mother's care of the child. Respondents were required to obtain appropriate furniture and supplies for C.M., and respondent mother was required to continue the services from the previous case plan. Both respondents were required to participate in the Parents as Teachers program, to ensure C.M. attended all scheduled medical appointments, and to improve their parenting skills. Respondent mother arranged for C.M. to attend medical appointments and both respondents participated in the Parents as Teachers program.

Respondents did not follow through with the services recommended by the case plan and missed appointments designed to assist with vocational rehabilitation services. A social worker agreed to transport respondent father to an appointment for a psychological evaluation. When the social worker arrived, the father either was not home or did not come to the door. Respondent mother agreed to follow through with mental health appointments and to keep her social worker informed with respect to these appointments; however, she did not seek mental health treatment. Respondent father's psychological evaluation was not available at the 27 January 2006 adjudication hearing. The evaluation was completed on 31 January 2006 and indicated respondent father was mildly mentally retarded, that he had an IQ of 66, that his cognitive abilities were limited, and that he was likely to need assistance in interpreting and developing a response to new challenges. Respondent mother's psychological evaluation indicated she was mildly mentally retarded, suffered from a mood disorder, and had limited problem solving abilities.

On 2 December 2005, DSS filed a juvenile petition alleging that C.M. was a neglected juvenile. The case came on for hearing at the 27 January and 21 April 2006 Juvenile Sessions of District Court, Harnett County, the Honorable Jimmy L. Love, Jr., presiding. The trial court adjudicated C.M. to be neglected, and entered a written adjudication order on 23 March 2006. On 12 May 2006, the trial court entered a written dispositional order awarding custody to DSS, ceasing further reunification efforts, and ceasing visitation. Respondents appeal.

Respondents argue the trial court erred by: (I) concluding and adjudicating C.M. to be neglected and (II) making findings of fact by incorporating the reports from the court, social workers, GAL and psychologists pursuant to N.C. Gen.Stat. § 7B-905. Respondent mother argues the trial court erred by: (III) ordering reunification efforts to cease between respondents and C.M. and (IV) ordering that visitation cease with respondents. Respondent father argues the trial court erred by: (V) failing to make findings of fact that DSS should use reasonable efforts pursuant to N.C. Gen.Stat. § 7B-507 and (VI) failing to conduct a dispositional hearing within the statutory time pursuant to N.C. Gen.Stat. § 7B-901.

I

Respondents challenge the adjudication of neglect as to C.M. Respondents argue the findings do not support the conclusion of neglect and that there was insufficient time to meet the case plan goals. We disagree.

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 the law." N.C. Gen. Stat. § 7B-101(15) (2005). 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 been subjected to abuse or neglect by an adult who regularly lives in the home." Id. In order to adjudicate a child to be neglected, the failure to provide proper care, supervision, or discipline must result in some type of physical, mental, or emotional impairment or a substantial risk of such impairment. In re Safriet, 112 N.C.App. 747, 752, 436 S.E.2d 898, 901-02 (1993). Section 7B-101(15) affords "the trial court some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in which they reside." In re McLean, 135 N.C.App. 387, 395, 521 S.E.2d 121, 126 (1999). An adjudication of neglect may be based on conduct occurring before a child's birth. In re A.B., ___ N.C.App. ___, ___, 635 S.E.2d 11, 16-17 (2006) (prior abuse and neglect of siblings and the mother's failure to comply with the orders entered in the siblings' case supported the conclusion that A.B. was neglected). In an abuse, neglect and dependency case, review is limited to the issue of whether the conclusion is supported by adequate findings of fact. In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 676 (1997).

In this case, DSS presented evidence of respondents' failure to comply with the respective case plans as to N.M. and C.M. The trial court found:

8. Under a plan of reunification of [N.M.] with the respondent mother, DSS entered into a service plan with her incorporating in the plan among other things the basic recommendations of [the social worker] to include participation in the Parents as Teachers Program, parenting classes, vocational rehabilitation, mental health referrals, transportation and visitation to continue [the] parent child relationship. The mother failed to comply with terms of the agreement and the court ceased reunification efforts on February 25, 2005. Rights of the parents [as] to [N.M.] were terminated on September 9, 2005.

9. After the birth of [C.M.], DSS offered intensive case management services in order to assist the parents in maintaining the juvenile in this proceeding in their home. DSS entered into a service plan with the parents wherein continuous supervision of the child in the care of the mother was to be maintained by the father, detailed instructions were given for furniture and supplies to be obtained for the juvenile and referrals for services previously designated for the mother were continued.

10. The parents were able to obtain needed furniture and supplies for the juvenile and were first able to continue with the juvenile in their custody. DSS concerns were raised when notified that the mother was missing appointments, service providers were unable to make contact with the family relative to services, the whereabouts of the mother and juvenile were unknown to the paternal grandmother (who was the person supervising placement with the mother), the parents either being missing or hiding when DSS came to assist with transportation to appointments and the father's failure to cooperate with participation in a psychological evaluation.

Respondent mother had over two years (since May 2004) to work on a case plan with DSS, she had ample time to follow through with the services designed to assist her in learning to parent. At the time of C.M.'s adjudication, respondent mother had attended only one mental health appointment and had not participated in vocational rehabilitation. The trial court found that respondent father missed a psychological evaluation despite the social worker's efforts to provide transportation. The trial court also found that service providers were unable to make contact with respondents, and that respondents delayed seeking medical attention for C.M. after the social worker telephoned respondent father and told him about the need to take C.M. to a pediatrician. The findings relating to the prior adjudication of neglect and subsequent termination of parental rights as to N.M. and respondents' failure to comply with the case plan established that C.M. was a neglected juvenile. Clear, cogent, and convincing evidence supports the conclusion that C.M. did not...

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