In re M.G.
| Decision Date | 18 December 2007 |
| Docket Number | No. COA07-643.,COA07-643. |
| Citation | 653 S.E.2d 581 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of M.G., M.B., K.R., J.R. |
Elizabeth Kennedy-Gurnee, Fayetteville, for petitioner-appellee.
Lisa Skinner Lefler, Wilmington, for respondent-appellant mother.
Annick Lenoir-Peek, San Antonio, TX, for respondent-appellant father.
Beth A. Hall, Fayetteville, for guardian ad litem.
Respondent mother is the biological mother of M.G. ("Martin") and M.B. ("Michelle"). Respondent father is the biological father of K.R. ("Kristen") and J.R. ("Jack").1 Both respondents appeal from the trial court's order adjudicating all four children abused and neglected.2 We hold that the trial court properly concluded that the four children were abused as defined by N.C. Gen.Stat. § 7B-101(1)(b) (2005) and neglected as defined by N.C. Gen.Stat. § 7B-101(15). We further affirm the trial court's determination that Kristen was sexually abused under N.C. Gen.Stat. § 7B-101(1)(d). Because, however, the trial court improperly allowed petitioner to amend its petition to add allegations of sexual misconduct as to Michelle, we must reverse the portion of the order concluding that Michelle was sexually abused. Moreover, we remand for further findings of fact regarding the trial court's jurisdiction with respect to Kristen and Jack.
On 18 May 2006, the Cumberland County Department of Social Services ("DSS") filed a juvenile petition alleging that Martin, Michelle, Kristen, and Jack were dependent, neglected, and abused children. At the time of the petition, Martin was five years old, Michelle was nine, Kristen was 13, and Jack was 14. That same day, an order for non-secure custody was entered, and the children were placed in the custody of DSS.
On 5 December 2006, DSS filed a motion for leave to amend the petition to add allegations, based on recent disclosures by Michelle, that she had been sexually abused by respondent father. A hearing was held on the motion on 4 January 2007, and the court granted the motion on 21 February 2007.
On 19 and 20 February 2007, a hearing was held on the juvenile petition. The evidence presented at the hearing indicated the following. Initially, Kristen and Jack had lived with respondent father, but moved to California to live with their biological mother and her husband. When their mother divorced their stepfather, Jack went to live with the stepfather, but Kristen continued to live with their mother. Jack subsequently moved back to North Carolina to live with his father in December 2005 or January 2006. After Jack and Kristen's mother attempted suicide twice, Kristen also returned to live with her father in February 2006. During Kristen's first night in North Carolina, respondent father allowed Kristen and Jack to drink beer.
Respondent father was living with respondent mother and her two children, Martin and Michelle. While all four children were living with respondents, respondent father often drank alcohol, especially beer, to excess. Although sometimes he was playful, other times, he would yell at respondent mother and the children and chase them. Frequently, Jack would stand up to respondent father on behalf of respondent mother and Kristen. The children became afraid of respondent father when he was drunk — which the trial court found occurred on a regular and consistent basis.
Respondent father committed acts of domestic violence on respondent mother in the presence of the children. On one occasion, respondent father demanded that respondent mother accompany him to the bedroom. Kristen heard respondent mother yelling for respondent father to get off of her, and when respondent mother came out of the bedroom, her lip was "busted" and her arms, legs, and neck were bruised. Respondent mother told Kristen that respondent father had punched and hit her. On another occasion, respondent father hit Jack in the chest with his fist, leaving a bruise.
In addition, respondent father inappropriately slapped Kristen on the buttocks and called her "bitch" and "Big Titty McGee." On one occasion, while drunk, respondent father grabbed Kristen from behind and fondled her breasts, while another time, he inappropriately touched her in the vaginal area. Not only did respondent mother not intervene, she also called Kristen a "bitch" and frequently yelled at her.
Respondent father walked in on Kristen in the bathroom at least three times when she was taking a shower. Once, while Kristen was taking a shower, Jack and respondent father decided to play a trick on her. Respondent father lit a firecracker and threw it into the bathroom and closed the door.
On at least one occasion, respondent father drove with all four children after he had consumed a large quantity of alcoholic beverages. Respondent mother allowed respondent father to take the children, although she stayed behind. Respondent father drove to a relative's house where he drank more beer. Respondent father said that he had heard that Jack was smoking, pulled out a cigarette, and demanded that Jack smoke the cigarette. Jack refused. Respondent father also began yelling at Kristen and threatened to hit her in the face. He insisted that the children get in the truck to leave. Although they did not want to ride with respondent father, they obeyed. After stopping at a friend's house, respondent father argued with and yelled at the children as he drove them home.
On other occasions, respondent father gave beer to Kristen and Jack and offered them marijuana. Jack drank beer at respondent father's insistence. Both children watched respondent father roll marijuana cigarettes.
Respondent father also engaged in sexual activities with Michelle starting when she was eight or nine years old. On one occasion, he placed his penis in her mouth. When "stuff came out" into her mouth, she almost threw up. Another time, respondent father placed his penis in Michelle's vaginal area, but when Michelle began to cry because it hurt, respondent father said, "let's quit." Although Michelle was afraid to tell anyone, she eventually confided in a family friend and to social workers.
The trial court found that respondent mother observed many of the incidents in which respondent father consumed alcohol to excess and "act[ed] out upon her and the children." According to the trial court, despite respondent mother's knowledge of respondent father's violent and abusive nature and of his alcohol abuse, she failed to protect the minor children. When DSS called respondent father as a witness regarding the petition's allegations, he invoked the Fifth Amendment and declined to testify.
On 8 March 2007, the trial court concluded that Michelle and Kristen had been sexually abused as defined by N.C. Gen.Stat. § 7B-101(1)(d). It further concluded that all four children were abused and neglected as defined in N.C. Gen.Stat. § 7B-101(1)(b) and -101(15), but dismissed the allegations of dependency. Finally, the court concluded that Kristen and Jack were abused as defined in N.C. Gen.Stat. § 7B-101(1)(f). After making 36 dispositional findings of fact, the trial court determined that return of the children to respondents would be contrary to their best interests and that custody should remain with DSS. The court further ordered that respondent father have "absolutely no contact with any of the minor children in this matter." Both respondents appealed from the trial court's order.
Respondent father contends that the court lacked subject matter jurisdiction with respect to Kristen and Jack because North Carolina did not qualify as Kristen's and Jack's home state under the Uniform Child-Custody Jurisdiction and Enforcement Act ("UCCJEA"). Under the UCCJEA, a child custody proceeding includes a proceeding for neglect, abuse, dependency, and termination of parental rights. See N.C. Gen.Stat. § 50A-102(4) (2005). Initial jurisdiction in a child custody proceeding lies in a North Carolina court only if:
(1) This State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under G.S. 50A-207 or G.S. 50A-208, and:
a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and
b. Substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;
(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under G.S. 50A-207 or G.S. 50A-208; or
(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
N.C. Gen.Stat. § 50A-201(a) (2005). The "home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding." N.C. Gen.Stat. § 50A-102(7).
North Carolina courts may also exercise temporary emergency jurisdiction if it is "necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse." N.C. Gen.Stat. § 50A-204(a) (2005). Further, "[i]f a child-custody proceeding has not been or...
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