In re JD
| Citation | 164 N.C. App. 176,605 S.E.2d 643 |
| Decision Date | 04 May 2004 |
| Docket Number | No. COA03-71-2.,COA03-71-2. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | In the Matter of J.D., Minor Child. |
Charlotte A. Wade, Asheville, for petitioner-appellee Buncombe County Department of Social Services.
Attorney Advocate Judith Rudolph, Guardian Ad Litem.
Janet K. Ledbetter, Hillsborough; The McDonald Law Office, P.A., by Diane K. McDonald, Asheville, for respondent-appellant.
An opinion was filed in this case on 2 December 2003. On 16 December 2003, respondent filed a petition for rehearing. On 13 January 2004, we allowed that petition, reconsidering the case with the filing of additional briefs only. The following opinion supersedes and replaces the opinion filed 2 December 2003.
Respondent appeals from an order terminating her parental rights to her daughter, J.D. (d.o.b. 25 February 1991). For the reasons stated herein, we reverse the trial court's order.
On 25 September 2000, the Buncombe County Department of Social Services ("BCDSS") filed a juvenile petition alleging that J.D. was an abused and neglected juvenile. The events that occurred prior to the filing of the petition were as follows.
On 28 August 1996, BCDSS received a child protective services report ("CPS report") stating that respondent had taken J.D. (then four years old) to an emergency room claiming that the child's fourteen-year-old half-brother, M.D., had raped her. Although a medical examination did not indicate the presence of any abnormality of her hymen, J.D. began seeing a therapist in connection with the alleged sexual abuse.
On 17 January 1997, BCDSS received a report from J.D.'s therapist that J.D. stated during a therapy session that M.D. played with her vaginal area. Thereafter, respondent acknowledged that her son was a sexual offender and needed to be placed outside the home to protect J.D. However, shortly after out-of-home placement was located for M.D., respondent's husband and J.D.'s step-father, John, returned M.D. to the family home when respondent was hospitalized for psychological problems.
The juvenile court proceeded with an action against M.D. for the sexual assault of J.D. The court was ultimately unable to adjudicate M.D. as a sexual offender because J.D. and respondent recanted their previous statements, and John and M.D. denied that J.D. had been sexually abused. Without any clear evidence, M.D. was only ordered to (1) complete a sex offender specific evaluation, and (2) be placed outside the family home. Thus, a trailer was placed next to the family home for M.D. to live in that was equipped with sensory devices to prevent him from leaving undetected. However, M.D. regained access to his parents' home after his supervision by the juvenile court ended.
A third CPS report was received by BCDSS on 9 September 1997 concerning a violent fight between John and M.D. At that time, the social worker investigating the incident observed that M.D. and J.D. were both living in the family home. Respondent threatened to kill anyone who tried to take M.D. away.
On 9 October 1998, another CPS report was received by BCDSS in which J.D. disclosed to her therapist that both M.D. and John had sexually abused her. The child made no further disclosures, and the matter was not substantiated.
Next, respondent reported to BCDSS on 11 April 2000 that her step-daughter and the step-daughter's husband, Tammera and Justin respectively, smoked marijuana in the presence of their two-year-old son, Brandon. Respondent further reported that Tammera and Justin, who were living with respondent at that time, were involved in drug dealing and were being targeted for revenge because they had ripped off a drug dealer. When questioned, Justin admitted using marijuana. Tammera denied all drug usage, but later gave birth to another son on 28 July 2000 who tested positive for marijuana.
The final event that led BCDSS to file a juvenile petition with respect to J.D. occurred on 24 September 2000 when Brandon was seriously burned while in the care of respondent. Respondent's initial story was that her step-grandchild had doused himself with lighter fluid and struck a match. However, after being advised that the evidence did not support her story, respondent accused J.D. of the incident. Although Brandon never specifically stated who burned him, he did state a number of times that "grandma matched me." Thus, the preliminary results of the investigation implicated respondent as the main suspect.
Following the filing of the juvenile petition, BCDSS obtained an order for non-secure custody of J.D. on 28 September 2000. J.D. underwent a medical evaluation on 26 October 2000 which indicated abnormalities of her hymen that were not present in J.D.'s 1996 medical evaluation. The evaluating physician opined that the abnormalities suggested sexual abuse.
By order filed 11 January 2001, J.D. was adjudicated a physically and sexually abused child and a neglected juvenile in that respondent and John had "created or allowed to be created a substantial risk of serious physical injury to the child by other than accidental means...." The court ordered custody of J.D. to remain with BCDSS and that a psychological evaluation of both parents and J.D. be performed.
On 4 April 2001, a permanency planning and review hearing was held. At the hearing, the court found that (1) respondent had been suffering from significant mental health issues at least since August of 1999, (2) J.D. had to be moved from her previous foster home after BCDSS received information that respondent had threatened to take the child and run to Canada, and (3) J.D. continued to be at risk if returned to her parents' care because they continued to deny responsibility for her neglect and abuse. The court concluded that BCDSS be relieved of reunification efforts and that the permanent plan be changed to adoption.
On 27 August 2001, BCDSS filed a petition to terminate respondent's parental rights on the grounds of neglect and juvenile dependency. Prior to the hearing, respondent told BCDSS social workers that but claimed that she would not be reconciling with John.
To continue reading
Request your trial
-
In re A.L.G.
...and the child's neglect "were so intertwined at times as to make separation of the two virtually, if not, impossible." 164 N.C.App. 176, 182, 605 S.E.2d 643, 646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004). We recently applied the analysis of In re J.D. to that of section 7B-6......
-
In re J.M.W.
..."mental instability and her incapacity to raise her minor children were central factors in the court's decision"); In re J.D., 164 N.C.App. 176, 182, 605 S.E.2d 643, 646 (in a neglect case, the appointment of a guardian ad litem was still required because there was "some evidence that tende......
-
In the Matter of A.A.W., No. COA06-550 (N.C. App. 12/19/2006)
...that grounds for termination based on "incapability" existed here at all. See B.M., 168 N.C. App. 350, 607 S.E.2d 698; In re J.D., 164 N.C. App. 176, 605 S.E.2d 643, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 We conclude that the requirement of N.C. Gen. Stat. . 7B-1101 (2003), that ......
-
In the Matter of A.J., No. COA06-364 (N.C. App. 12/19/2006)
...the two virtually, if not, impossible[,]" this Court has held that a guardian ad litem was required to be appointed. In re J.D., 164 N.C. App. 176, 182, 605 S.E.2d 643, 646, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004); see also In re L.W., __ N.C. App. __, __, 623 S.E.2d 626, 6......