In re L.M.
| Decision Date | 03 May 2022 |
| Docket Number | COA21-344 |
| Citation | 871 S.E.2d 583 (Table) |
| Parties | In the MATTER OF: L.M., K.M., K.M., Juveniles |
| Court | North Carolina Court of Appeals |
Speaks Law Firm, PC, by Garron T. Michael, for respondent-appellant-father.
Patrick A. Kuchyt, for petitioner-appellee Cumberland County Department of Social Services.
Michelle Peter, for appellee Village of Kaltag.
Matthew D. Wunsche, for appellee guardian ad litem.
¶ 1 Respondent-father argues the trial court erred in adjudicating Ky.M. ("Kelly"), Ki.M. ("Kim"), and L.M. ("Luke") to be neglected juveniles.1 Specifically, he contends there was not a valid consent adjudication order and the stipulated facts do not support a conclusion of neglect. We vacate and remand in part and reverse in part.
¶ 2 On 20 September 2019, the Cumberland County Department of Social Services ("CCDSS") filed a verified petition alleging Kelly, Kim, and Luke were neglected juveniles. At the time, Kelly was fifteen years old, Kim was thirteen years old, and Luke was one year old.
¶ 3 The petition alleges that on 3 September 2019, CCDSS received a Child Protective Services ("CPS") referral. Respondent-father reportedly struck Kim in the mouth with a closed fist. Respondent-father then avoided a social worker who attempted to contact him after receiving the report. Respondent-father initially denied that he hit Kim, but later told the social worker that he could discipline his children however he wanted. After learning about the allegations in the CPS referral, respondent-father yelled at and berated Kelly and Kim. The petition also alleged respondent-father appeared in a video uploaded to Facebook, in which he was waving a semi-automatic handgun around with his finger on the trigger. In that video, Luke was seen sitting in a chair next to respondent-father.
¶ 4 On 19 September 2019, Kelly and Kim were afraid to leave school and go home to respondent-father. They were "visibly shaking and upset," concerned that respondent-father would yell at them and force them to move to New York. On 20 September 2019, Kelly and Kim did not attend school. Respondent-father called the school administrator to withdraw their enrollment and stated they were moving to New York.
¶ 5 Respondent-father has a history of homelessness and unemployment. At the time CCDSS filed its petition, respondent-father and the juveniles had been evicted from their home for non-payment of rent, and they lived with family friends in Fayetteville, North Carolina. Respondent-father is a United States Army veteran, honorably discharged, and receives financial benefits for his military service-connected disability. He previously generated supplemental income for his family through various employments.
¶ 6 Respondent-father has a mental health condition and was not receiving treatment at the time CCDSS filed its petition. Respondent-father received mental health services in 2017 for diagnoses of Post-Traumatic Stress Disorder
, Depression, Traumatic Brain Injury, and Chronic Adjustment Disorder.
¶ 7 Kim and Kelly have an estranged relationship with their mother, respondent-mother Marsh,2 and had minimal contact with her in years prior. Respondent-mother Marsh's whereabouts were unknown during the CCDSS investigation that led to the petition. Luke's mother, respondent-mother Calhoun, resided in California and was not involved in Luke's daily care. In May of 2019, respondent-father obtained a one-month Domestic Violence Protective Order ("DVPO") against respondent-mother Calhoun, along with temporary custody of Luke. On 11 July 2019, respondent-father obtained sole custody of Luke in Cumberland County District Court.
¶ 8 The first non-secure custody hearing was held on 25 September 2019. Respondent-father and respondent-mother Calhoun were served and received their first appearances. The trial court found that the Indian Child Welfare Act ("ICWA") may apply in this matter, and an inquiry was sent to the Doyon Group in Alaska. Respondent-father's visitation was conditioned upon Kelly's submission to a forensic interview. Service remained outstanding for respondent-mother Marsh until service by publication was effectuated on 21 August 2020.
¶ 9 Non-secure custody was continued by the trial court following a second hearing on 2 October 2019. An additional hearing on non-secure custody and a Pre-Adjudication Conference was set for 12 November 2019. Respondent-father did not appear at the 12 November 2019 hearing. The trial court ordered continued non-secure custody for all three juveniles and respondent-father was not permitted visitation with Kelly and Kim. The Adjudication was set for 23 January 2020.
¶ 10 At the 23 January 2020 hearing, respondent-father's court-appointed counsel moved to withdraw due to a "breakdown of the client relationship." The motion was granted. Based on respondent-father's updated financial affidavit, the trial court determined that he no longer qualified for court-appointed counsel. The matter was continued to permit respondent-father time to retain counsel, and non-secure custody remained in effect.
¶ 11 At the next Continued Non-secure Custody/Adjudication hearing on 20 February 2020, the trial court found that the ICWA applied as to Kim and Kelly and permitted the Village of Kaltag Tribe to intervene as party to the proceedings. Respondent-father did not appear at the February hearing or at the next two hearings. The trial court determined that this matter necessitated a further continuance to allow a representative from the Village of Kaltag to be present. The 19 March 2020 and 20 May 2020 hearings were continued because of COVID-19 Administrative Orders made by Chief Justice Beasley.
¶ 12 Respondent-father did not appear for the 17 June 2020 non-secure hearing. He resided in Florida at that time. CCDSS moved the trial court to continue the adjudication to allow time for respondent-mother Marsh to be served by publication, and to provide the representative from the Village of Kaltag with requested documentation. Over no objection, the trial court concluded that such a continuance was in the best interest of the parties and juveniles, granted the motion, and concluded that the "interim statutory days between hearings should be waived."
¶ 13 The Adjudication was set for 17 September 2020. The juveniles Kelly and Kim were engaged in therapy at this time. Kelly and Kim had no desire to have contact with respondent-father and expressed fear of him. Visitation with respondent-father remained contingent upon being "therapeutically appropriate."
¶ 14 On 17 September 2020, the trial court reconsidered respondent-father's financial circumstances and appointed counsel to represent him. The trial court granted another continuance for CCDSS to effectuate service by publication.
¶ 15 This matter was continued to 19 November 2020 when the Adjudication was held. After respondent-father met "extensively" with his counsel over the course of two days, the parties arrived at a stipulation of facts that was signed by the parties present. The Village of Kaltag representative, who appeared by phone, also agreed to the stipulated facts after it was read on the record. There was no objection to the facts being read on the record, or the written version being submitted to the Court. Respondent-father was sworn and so verified his signature and confirmed his agreement with the stipulated facts as they were read into the record. The trial court found that, based on the stipulated facts and without receiving further evidence, all three children were neglected juveniles by clear, cogent, and convincing evidence. Following the hearing, a written Order on Adjudication and Temporary Disposition was entered on 17 February 2021.
¶ 16 The Disposition hearing was continued from 21 January 2021 to 18 February 2021 based on the Adjudication Order not being in the file and to allow a tribal representative to appear from the Village of Kaltag. A substitute tribal representative appeared by phone at the Dispositional hearing with no objection.
¶ 17 The 18 February 2021 hearing began with counsel for respondent-father informing the trial court that respondent-father had concerns related to his representation. Respondent-father expressed discontent with his counsel's late-night email informing him of the continuance in January, a lack of effective communication, not receiving documentation, argued the petition was "falsely filed," and that "nobody wanted to explain to [him] what adjudication was." After hearing from the trial court, counsel for CCDSS and the Guardian ad Litem ("GAL"), respondent-father elected to proceed with the assistance of appointed counsel.
¶ 18 On Disposition, the trial court heard evidence from four witnesses including a CCDSS social worker, the GAL, the representative for the Village of Kaltag, and respondent-father. Following arguments of counsel, the trial court ordered legal and physical custody of the juveniles to remain with CCDSS. Respondent-father retained both in-person and electronic visitation with Luke. The trial court restricted visitation with Kim and Kelly, finding that the juveniles "expressed concerns about returning to the [respondent-father] ...." Kim and Kelly's therapist reported that The trial court ordered family therapy for respondent-father, Kim, and Kelly.
¶ 19 The trial court further ordered a home study to be conducted on respondent-father's home in Alaska, noting that respondent-father had moved several times during the pendency of this action. Additionally, the trial court ordered respondent-father to comply with recommendations from his psychological evaluation, participate in a parenting class, obtain a pain management consult, and maintain stable housing and employment or income.
¶ 20 The trial court entered its...
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