In re Gleisner
| Decision Date | 29 December 2000 |
| Docket Number | No. COA99-1585.,COA99-1585. |
| Citation | 141 NC App. 475,539 S.E.2d 362 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of Leanna (Sarah) GLEISNER and Tobias (Isaac) Gleisner. |
Onslow County Department of Social Services, by Ed Blackwell, Jacksonville, for petitioner-appellee.
McNeil & Gilbert, by Joseph B. Gilbert, Jacksonville, for respondent-appellant.
McNamara & Smith, P.L.L.C., by Lynn Smith, Jacksonville, for Guardian ad Litem.
Christine Gleisner (respondent), the mother of the two juveniles in question (Sarah and Isaac), appeals from the 17 May 1999 order of the trial court finding both juveniles neglected. For the reasons set forth herein we remand.
The Onslow County Department of Social Services (petitioner) first investigated the family on 2 June 1997 after receiving a report that Sarah had been left at home unattended. Stacy Specht, a social worker employed by petitioner, went to the family's trailer home that Sunday afternoon and found Sarah, approximately eight years old at the time, alone in the trailer. Conflicting testimony was presented as to how long Sarah had been left alone. Specht testified that Sarah had been left alone for three and a half hours. Respondent testified that Sarah had only been left alone for two and a half hours. Conflicting testimony was also presented regarding Sarah's physical appearance. Specht testified that Sarah had a cut on her lip and bruises on her face, while respondent testified that Sarah had a small cut but no bruises. Conflicting testimony was presented as to the cause of Sarah's physical appearance. Specht testified that Sarah told her that respondent's fiancee, Lonnie Rush, had slapped Sarah in the face. Although this testimony was clearly hearsay, respondent did not object to its admission. Specht also testified without objection that Rush admitted to her that he had spanked Sarah at church that morning when she had misbehaved, and that after he brought Sarah home, he grabbed her face and hit her face. Respondent, on the other hand, testified that the trailer door had swung open in the wind and had hit Sarah in the face when she returned home from church. Respondent further testified that Rush had never hit Sarah. Rush testified that Sarah had been hit in the face by the trailer door, and that he did not hit Sarah. He also testified that although he had placed his hand over Sarah's mouth at church to get her to stop screaming, he did not believe this could have caused any bruising.
The following day, petitioner continued the investigation by sending Robin Grantham to the family's home. Grantham did not find the family at home, but learned that Sarah had been placed overnight with a neighbor. According to Grantham's testimony, she interviewed Sarah at the neighbor's home and observed three bruises on her right cheek and a split lip. Grantham testified that Sarah told her that Rush had hit her as discipline for disobeying him. This statement was objected to as hearsay, and the trial court sustained the objection. However, the trial court admitted the statement for the limited purpose of explaining the continued investigation by petitioner.
Grantham testified that when she confronted respondent with Sarah's statement about Rush hitting her, respondent told Grantham that Sarah had been hit in the face by the trailer door when it blew open in the wind, and respondent denied that Rush had hit Sarah. Grantham also interviewed Rush on this visit. Grantham testified without objection that Rush admitted that he had punched holes in the walls, and that he had once cracked the car windshield with his fist while the children were in the vehicle. Respondent acknowledged at the hearing that Rush once lost his temper in the car and hit the windshield. Grantham testified that she also interviewed several neighbors on this visit who expressed concern that both children were often left alone all day and were allowed to play unsupervised across the street. This hearsay evidence was not objected to by respondent. Grantham also testified that she found respondent to be completely uncooperative. Respondent testified that Grantham threatened to have her children taken away if respondent did not cooperate.
Approximately nine months later, on 7 March 1998, Specht investigated a report that Isaac had a cut lip. During this second investigation, Specht went to the home and saw that Isaac did, in fact, have a wound on his upper lip. Respondent told Specht that the wound was a cold sore. A subsequent medical examination showed that the wound was a cut that had become infected and not a cold sore. Conflicting evidence was presented as to the cause of the cut on Isaac's lip. Specht testified without objection that once Isaac and Sarah were placed in petitioner's custody, Isaac told Specht that Rush had hit him five times in the face as a form of discipline, and that Sarah similarly told Specht that Isaac's cut lip was a result of Rush hitting Isaac. Respondent testified that she and Rush have never hit either child other than spanking them.
Specht also testified that respondent had a blackened eye at the time of the second investigation. Conflicting evidence was presented regarding the cause of respondent's blackened eye. Specht testified that respondent told her that she had a blackened eye because she had been wrestling with Isaac and he had kicked her accidentally. Respondent testified that Rush has never hit her. However, Specht testified without objection that once Isaac was placed in petitioner's custody, Isaac told Specht that he had not been wrestling with his mother and had not kicked her.
On the same day as the second investigation, 7 March 1998, petitioner filed a petition alleging neglect with regard to both juveniles, and alleging abuse with regard to Isaac, pursuant to N.C.G.S. § 7A-517 (1996) (repealed effective 1 July 1999, 1998 N.C. Sess. Laws ch. 202, § 5). Following an adjudicatory hearing, the trial court concluded that Isaac was not abused, but found that both children were neglected. The court ordered physical placement of Isaac with his maternal great aunt and uncle, with petitioner retaining legal custody, and further ordered physical and legal custody of Sarah to remain with petitioner for future placement. On appeal, respondent raises three assignments of error.
Respondent first contends the trial court erred in denying her motion to dismiss at the close of petitioner's evidence. Upon a motion to dismiss, the court must view the evidence in the light most favorable to the petitioner, giving the petitioner the benefit of any inference. In re Cusson, 43 N.C.App. 333, 335, 258 S.E.2d 858, 860 (1979). The test is whether there is substantial evidence to support petitioner's allegations. Id. In the instant case, the petition alleges that both children are neglected juveniles. A "neglected juvenile" is defined as "[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." G.S. § 7A517(21). In the instant case, the evidence presented by petitioner, taken in the light most favorable to petitioner, amounts to the following: (1) that Sarah had been left alone, at approximately eight years of age, for approximately three and a half hours by respondent as a form of discipline; (2) that Sarah was found to have a cut on her lip and bruising on her face; (3) that Rush had spanked Sarah at church when she misbehaved, and had grabbed her face and hit her face once they arrived home; (4) that Rush had punched holes in the walls, and that he had once cracked the car windshield with his fist while the children were in the vehicle; (5) that respondent was completely uncooperative with petitioner; (6) that Isaac had a wound on his upper lip which respondent insisted was a cold sore but which was later determined to be an infected cut;...
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