In re K.B., COA16-970

• Decision Date: 16 May 2017
• Docket Number: No. COA16-970,COA16-970
• Citation: 801 S.E.2d 160,253 N.C.App. 423
• Court: North Carolina Court of Appeals
• Parties: In the MATTER OF: K.B.

253 N.C.App. 423

801 S.E.2d 160

In the MATTER OF: K.B.

No. COA16-970

Court of Appeals of North Carolina.

Filed: May 16, 2017

Senior Assistant County Attorney Cathy L. Moore, for petitioner-appellee Durham County Department of Social Services.

Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for Guardian ad Litem.

Rebekah W. Davis, for respondent-appellant mother.

ELMORE, Judge.

Respondent-mother appeals from the trial court's orders adjudicating her son, K.B. (Kirk)¹ , an abused, neglected, and dependent juvenile. For the following reasons, we affirm.

I. Background

Respondent-mother and respondent-father adopted Kirk when he was five years old. When Kirk was two years old, he tested positive for cocaine and was removed from his biological mother's home. Kirk was placed in a foster home where he resided for three years. His biological mother relinquished her parental rights and his biological father's parental rights were terminated by the court. Although Kirk's foster mother wished to adopt him, his foster father did not. Kirk was quickly placed for adoption with respondents in July 2011 and the adoption was finalized in December 2011.

Shortly after adopting Kirk, respondent-mother became pregnant with twins, a boy and a girl. Kirk began to act out and exhibit behavioral issues. Respondent-mother attributed Kirk's change in behavior to his past experience of being displaced by a new baby boy in his foster home.

From 21 February 2012 to 9 November 2015, the Durham County Department of Social Services (DSS) received fifteen Child Protective Services (CPS) reports regarding Kirk. DSS substantiated three reports filed 7 May 2012, 11 September 2013, and 26 September 2013 for neglect due to improper discipline. Respondent-mother admitted to hitting Kirk with a ruler in 2012, and Kirk was found to have thirty to fifty belt marks on his buttocks, right thigh, and hip in September 2013. Respondent-father admitted that he and respondent-mother spanked Kirk as a form of discipline. After the September 2013 reports, DSS began in-home services with the family. They completed the services and the case was closed in July 2014.

Because respondents continued to have issues with Kirk's behavior, he was placed in a kinship placement from 26 September to 7 October 2013, a therapeutic foster home from 23 October 2013 to 31 March 2014, and the Wright School from 2 February to 10 September 2015.

After Kirk returned home from the Wright School, DSS received a CPS report on 9 November 2015 alleging that Kirk had " ‘black and bruising’ around the left eye, ... bruising around the lips, scratches on the bridge of the nose, and below the lips, [Kirk's] right pointer finger [was] swollen from the knuckle to the tip and the side of the fingers on the right hand [were] punctured." The report also alleged that respondents did not seek a psychiatrist for Kirk as recommended upon his release from the Wright School and allowed Kirk's prescription for Prozac to lapse from 30 October to 10 November 2015, at a minimum.

DSS filed a petition on 13 November 2015 alleging that Kirk was an abused juvenile in that respondents "inflicted or allowed to be inflicted on the juvenile a serious physical injury by other than accidental means." Specifically, the petition alleged that on or about 8 November 2015, Kirk "sustained a black eye, and broken right index finger. The injuries are unexplained. Neither parent or grandmother could provide an explanation for the injuries. After a visit to his psychiatrist, it was stated that his injuries are not self-inflicted." DSS also alleged that Kirk was a neglected juvenile in that he "does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker." Specifically, the petition alleged that on or about 9 November 2015, respondent-father and the grandmother "were home at the time [Kirk] sustained the injuries but neither could provide an explanation as to what happened to the child." As a result, DSS was granted nonsecure custody of Kirk.

The trial court held an adjudication hearing on 13 to 14 April 2016, and on 9 to 10 May 2016. Dr. Beth Herold was accepted as an expert in the field of child physical abuse, child neglect, and child maltreatment. Dr. Herold treated Kirk in November 2015 after receiving a referral from DSS. When she saw Kirk, he "had a broken finger," "bruises on his face, he had a busted lip, and he had an injury to his chest, some sort of a contusion. He had a purple and yellow bruise and some linear marks through it." Kirk offered multiple explanations for his injuries, claiming "that he got hit with a rake, that he was wrestling with his father, that he was doing cartwheels, that he dropped a weight on his finger, and that he did it himself." Dr. Herold testified that Kirk's injuries were not consistent with his explanations or with typical self-injury behavior. She opined that it was "highly probable" Kirk was physically abused.

The DSS social worker, Pamela Stanton, testified that at the time of the CPS report respondent-mother told her that Kirk had been off Prozac for at least a week and that "she was sure that some of his behaviors that he was experiencing or displaying in school [were] due to that." Stanton also testified that Kirk gave multiple histories for his injuries, including that he had punched himself in the face, but none explained the severity of injuries he sustained. She testified further that DSS did not receive any reports regarding injuries to Kirk while he was in his other placements outside respondents’ home, and that there were instances where mental health treatment was recommended for Kirk but never accessed by respondents. Finally, Stanton testified that respondent-mother previously requested Kirk be removed from her home in 2012 and April 2014, when she told DSS: "I need someone to come get this boy, because if I lay my hands on him, it won't be good."

Respondent-mother testified that she only asked Kirk to be removed from her home when it became "a safety concern," and that she had not spanked Kirk since 2013. She claimed that she was not home when Kirk sustained the injuries in November 2015 and did not know how Kirk was injured: "I was at work during the time that he allegedly snuck out of the home. By the time I got home, he visually had marks on him."

After the hearing, the trial court entered an order on 25 May 2016 adjudicating Kirk an abused, neglected, and dependent juvenile. Respondent-mother entered written notice of appeal.²

II. Discussion

A. Adjudication of Dependency

Respondent-mother first argues the trial court erred in adjudicating Kirk a dependent juvenile because the petition only alleged that Kirk was abused and neglected. We disagree.

"The pleading in an abuse, neglect, or dependency action is the petition." N.C. Gen. Stat. § 7B-401 (2015). In an adjudicatory hearing on a juvenile abuse, neglect, or dependency petition, a trial court is required to "adjudicate the existence or nonexistence of any of the conditions alleged in a petition ." N.C. Gen. Stat. § 7B-802 (2015) (emphasis added). "If the court finds ... that the allegations in the petition have been proven by clear and convincing evidence, the court shall so state" in a written order. N.C. Gen. Stat. § 7B-807(a) (2015) (emphasis added).

"[A]llegations in a petition may include specific factual allegations attached to a form petition for support." In re D.C. , 183 N.C.App. 344, 349, 644 S.E.2d 640, 643 (2007) (citation omitted) (internal quotation marks omitted). Moreover, "[w]hile it is certainly the better practice for the petitioner to ‘check’ the appropriate box on the petition for each ground for adjudication, if the specific factual allegations of the petition are sufficient to put the respondent on notice as to each alleged ground for adjudication, the petition will be adequate." Id. at 350, 644 S.E.2d at 643.

A "dependent juvenile" is defined as

[a] juvenile in need of assistance or placement because (i) the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or (ii) the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative child care arrangement.

N.C. Gen. Stat. § 7B-101(9) (2015).

Here, DSS did not "check the box" alleging dependency on the form petition filed on 13 November 2015. The allegations attached to the petition, however, were sufficient to put respondent-mother on notice that dependency would be at issue during the adjudication hearing. The attached specific statement of facts alleged:

The child [Kirk] (9 years old) has "black and bruising" around the left eye, bruising around the lips, scratches on the bridge of the nose, and below the lips, the child's right pointer finger is swollen from the knuckle to the tip and the side of the fingers on the right hand are punctured all [sic] the injuries listed above were unexplained by the legal custodians.

The legal custodian was unable to provide an alternative placement resource for the child . The child is diagnosed with ODD, PTSD, Adjustment DX, reactive attachment DX and suicidal thoughts. The child was prescribed the following medications Prozac 10mg and adderal [sic] 40 mg.

The legal custodian reported the child left the home several times over the weekend and the injuries were sustained. The legal custodian failed to provide proper supervision .

(Emphasis added.) These allegations encompass the language reflected in the statutory definition of dependency—specifically, that respondent-mother failed "to provide for [Kirk's] care or supervision and lacks an appropriate alternative child care arrangement." N.C. Gen. Stat. § 7B-101(9). Moreover, the first sentence of the trial court's order entering stipulations for adjudication provides: "This matter coming on to be heard before the undersigned judge [ ], on the Durham County...