In re A.J.L.H., No. COA20-267

Docket NºNo. COA20-267
Citation853 S.E.2d 459
Case DateDecember 15, 2020
CourtCourt of Appeal of North Carolina (US)

853 S.E.2d 459

In the MATTER OF: A.J.L.H., C.A.L.W., M.J.L.H.

No. COA20-267

Court of Appeals of North Carolina.

Filed: December 15, 2020

Mercedes O. Chut, Greensboro, for petitioner-appellee Guilford County Department of Social Services.

Benjamin J. Kull, Raleigh, for respondent-father appellant.

Tin, Fulton, Walker & Owen, PLLC, by Cheyenne N. Chambers, Charlotte, for respondent-mother appellant.

TYSON, Judge.

Respondent-mother and Respondent-stepfather (collectively "Respondents") appeal from the trial court's adjudication and disposition order. Respondents argue the trial court erred by adjudicating their minor children, Margaret, age ten, Chris, age four, and Anna, age one, as abused and neglected, and by prohibiting visitation. See N.C. R. App. P. 42(b) (permitting the use of pseudonyms to protect the identity of the child throughout the opinion). Respondents are the biological parents of Anna. Respondent-stepfather is stepfather to Respondent-mother's daughters, Margaret and Chris, born of previous relationships.

We vacate the adjudications of abuse and neglect and remand. We also vacate the disposition order regarding Chris and Anna and dismiss the petitions and remand for entry of an order to provide Respondents visitation with Margaret.

I. Background

Guilford County Department of Health and Human Services ("GDHHS") received a report on 21 May 2019 alleging then nine-year-old Margaret had been disciplined with a belt, which had left marks on her skin. Social worker, Lisa Joyce ("Joyce") was assigned to investigate. On 22 May 2019, another report was filed of a new injury the size of a silver dollar on Margaret's upper back. Joyce testified Margaret was hiding under a desk when she arrived to interview her and asserted Margaret did not want to go home because they "were going to hurt her."

Respondent-mother acknowledged she had disciplined Margaret for lying and being untruthful about following directions, by having her inter alia , sleep upon the floor, allowing her eat only crunchy peanut butter sandwiches, having her stand in the corner at home for long periods, prohibiting her from watching TV or playing outside, and by having Respondent-stepfather to discipline her by using corporal punishment. Respondent-mother explained the marks were accidental, because Margaret had moved around a lot and the belt meant for her buttocks had landed on her back. Joyce informed Respondent-mother that GDHHS felt the discipline was "a little bit extreme." Respondents immediately agreed to a safety plan. The plan placed Margaret with her maternal grandparents, but left Chris and Anna in the home in Respondents’ care.

During her investigation, Joyce received two reports from Randolph County Department of Social Services ("RDSS") filed during 2015 and 2017, involving Respondent-mother. Respondent-mother had also been charged with misdemeanor child abuse and Respondent-stepfather had been charged with assault on a child under the age of

853 S.E.2d 463

twelve stemming from the actions related to the present petition. Respondents’ charges were pending at the time of this order on appeal.

On 8 August 2019, GDHHS held a Child and Family Team meeting. At the meeting, GDHHS decided to petition for custody of all three children, even though GDHHS had gathered all relevant family history information in May and all home visits with the intact family from May through August had revealed no concerns. GDHHS case workers had made multiple home visits. No new or ongoing concerns were raised or noted. The safety plan was never violated.

During adjudication, Joyce testified the decision resulted from "information learned during the assessment," RDSS records received in May; and GDHHS’ disagreement with Respondents "admitting that they did not feel ... their disciplinary measures and actions were unusual or cruel."

On 9 August 2019, GDHHS filed juvenile petitions alleging Margaret was abused and neglected. Her siblings, four-year-old Chris, and one-year-old, Anna, were alleged to be neglected. The court determined a need for GDHHS to take nonsecure custody of all three children.

At the filing of the petition, Margaret remained in an out-of-home kinship placement with her maternal grandparents and Chris and Anna remained at home with Respondents. Subsequently Margaret was moved to foster care and then was moved into the home of her maternal grandmother by court order, and Chris and Anna were removed from Respondents’ home and to foster care.

The adjudication and disposition hearing was held on 8 November 2019. By order entered 13 December 2019, the court concluded Margaret was an abused juvenile and all three children were neglected. The court denied Respondents any visitation with the children. Respondents timely appealed.

II. Jurisdiction

Jurisdiction lies in this Court from an appeal of the adjudication and disposition order pursuant to N.C. Gen. Stat. § 7B-1001(a)(3) (2019).

III. Issues

Respondents argue the trial court erred by: (1) admitting hearsay evidence, (2) adjudicating Margaret abused and neglected, and Chris and Anna neglected and (3) arbitrarily denying Respondents any visitation with all three children.

IV. Respondent-stepfather's Standing

Margaret, Chris, and Anna are children of different biological fathers. Respondent-stepfather is not the legal or putative father of Margaret or Chris. Respondent-stepfather is the biological father of Anna. Only Respondent-stepfather is a party to this appeal. This Court has made a distinction between a parent and stepparent.

N.C. Gen. Stat. § 7B-101(8) defines caretaker as a person other than a parent, guardian, or custodian who is responsible for the health and welfare of a juvenile, and specifies that this term includes a stepparent. N.C. Gen. Stat. § 7B-1002(4) does not authorize an appeal by a stepparent in the absence of record evidence that the stepparent has become the child's parent through adoption or is otherwise qualified under the statute.

In re M.S. , 247 N.C. App. 89, 93-94, 785 S.E.2d 590, 593 (2016) (alternations, citations, and internal quotations omitted). Respondent-stepfather has standing to appeal only on behalf of his biological daughter, Anna. He has no standing to appeal the order regarding either Margaret or Chris.

V. Analysis

A. Parental Rights

We have long recognized that the [Fourteenth] Amendment's Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests. The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.
853 S.E.2d 464

Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 2059-60, 147 L. Ed. 2d 49, 56 (2000) (alterations, internal citations and quotation marks omitted). The Supreme Court of the United States also held "the liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control the education of their own." Id.

Both of the holdings in Stanley v. Illinois , 405 U.S. 645, 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972) and Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388, 71 L. Ed. 2d 599 (1982) also demonstrate that under fundamental common law and Constitutional protections, "the parents’ right to retain custody of their child and to determine the care and supervision suitable for their child, is a ‘fundamental liberty interest’ which warrants due process protection." In re Montgomery , 311 N.C. 101, 106, 316 S.E.2d 246, 250 (1984).

[T]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations .... there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the [S]tate can neither supply nor hinder.

Troxel , 530 U.S. at 65, 120 S.Ct. 2054, 147 L. Ed. 2d at 56.

B. Hearsay Evidence

The North Carolina Constitution and General Statutes mandate the trial court must protect the due process and parental rights of the juvenile's parent and of the juvenile throughout the adjudicatory hearing. N.C. Gen. Stat. § 7B-802 (2019). "Where the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply." N.C. Gen. Stat. § 7B-804 (2019).

Respondents assert inadmissible and prejudicial hearsay was admitted at the hearing. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2019) (internal quotation marks omitted). "Hearsay is not admissible except as provided by statute or by these rules." N.C. Gen. Stat. § 8C-1, Rule 802 (2019).


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