In re OW

• Decision Date: 01 June 2004
• Docket Number: No. COA03-941.,COA03-941.
• Citation: 596 S.E.2d 851,164 NC App. 699
• Parties: In Re O.W.
• Court: North Carolina Court of Appeals

596 S.E.2d 851

164 NC App. 699

In Re O.W.

No. COA03-941.

Court of Appeals of North Carolina.

June 1, 2004.

J. Hal Kinlaw Jr., Lumberton, for petitioner-appellee.

Janet K. Ledbetter, Hillsborough, for respondent-appellant.

STEELMAN, Judge.

Respondent, K.M., appeals the district court's adjudication and disposition order finding abuse and neglect of the minor child, O.W., born 28 March 2001.

Respondent-appellant ("respondent") is the natural mother and B.F. is the natural father of O.W. On 12 August 2001, the Robeson County Department of Social Services (DSS) received a complaint from a "collateral source" that O.W. was being abused and neglected by her mother. The "collateral source" said respondent had been giving the child alcohol to drink and she had placed a plastic bag over the child's head. Due to these allegations, DSS removed the child from the home. Respondent claimed O.W.'s father made these allegations in order to avoid paying child support. DSS placed the child with its paternal grandmother.

DSS has extensive history with respondent. In 1992, DSS removed respondent's oldest daughter, K.W. from her care after respondent was incarcerated, and again in 1999 due to respondent's physical abuse of the minor child. In 2001, respondent's mother was removed from her daughter's home by DSS due to improper care.

In 1999, respondent underwent a psychological evaluation. At that time, Dr. Aiello diagnosed her as having borderline intellectual functioning, antisocial personality disorder, and episodic alcohol abuse, and she needed supervision and guidance in her care-taking responsibilities of her child. In 2001, respondent underwent another psychological evaluation by Dr. Aiello. Respondent provided Dr. Aiello with ample documentation that she had participated and completed all of the classes and programs DSS recommend. She also produced documentation showing DSS had closed her case in September 2001 regarding her oldest daughter. The results of respondent's 2001 psychological evaluation were greatly improved from the results of her 1999 evaluation. Dr. Aiello attributed these improvements to the therapeutic services she received subsequent to her 1999 evaluation. Dr. Aiello's evaluation indicated respondent no longer required reliance on a fully competent party to supervise her parental functions.

At all times respondent has denied the allegations that she gave alcohol to her child or that she ever placed a plastic bag over the child's head. During the adjudication and disposition hearing, none of the "collateral sources" appeared to testify as to what they were alleged to have witnessed.

After hearing the evidence presented at trial, the judge found O.W. was neglected and abused pursuant to N.C. Gen.Stat. § 7B-101(1), (15). Respondent appeals this determination.

In her first assignment of error, respondent contends the trial court erred when it consolidated the adjudication and disposition hearings for evidentiary purposes.

To preserve a question for appellate review, a party must have presented the trial court with "a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make...." N.C. R.App. P. 10(b)(1). When Mr. Kinlaw, the attorney for DSS requested the adjudication and disposition hearings be consolidated, respondent did not object. Thus, respondent has failed to properly preserve this issue for appellate review. However, we exercise our authority under Rule 2 of the Rules of Appellate Procedure and address the merits of this argument. N.C. R.App. P. 2.

This Court has held that although adjudicatory and dispositional hearings require the application of different evidentiary standards at each stage, there is no requirement that the adjudicatory and dispositional hearings be conducted at two separate times for the purpose of terminating parental rights. In re White, 81 N.C.App. 82, 85, 344 S.E.2d 36, 38, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 470 (1986). See also, In re Dhermy, 161 N.C.App. 424, 588 S.E.2d 555, 560 (2003)

.

We find this reasoning to be applicable to a determination of whether a child is abused or neglected. Just as a termination of parental rights proceeding involves a two stage process, so does a proceeding adjudicating whether a child is abused or neglected. See White, 81 N.C.App. at 85,

344 S.E.2d at 37 (noting that in a proceeding to terminate parental rights, petitioner must show the grounds for termination by clear, cogent and convincing evidence, while at the disposition stage, the court's decision regarding termination of parental rights is discretionary). In the adjudicatory phase of a hearing to determine if a child is abused or neglected, the petitioner is required to prove allegations of abuse or neglect by "clear and convincing evidence," N.C. Gen.Stat. § 7B-805 (2003), while in the disposition stage the court's decision as to the best interests of the child and its placement is discretionary. N.C. Gen.Stat. § 7B-901 (2003). Just as in White, we find no requirement in the statutes that the stages be conducted at two separate hearings, even though the trial court is required to apply different evidentiary standards at each stage of the proceedings. White, 81 N.C.App. at 85,

344 S.E.2d at 38. Additionally, since these proceedings are heard by a judge, and not a jury, "it is presumed ... that the judge, having knowledge of the law, is able to consider the evidence in light of the applicable legal standard and to determine whether [there is evidence of abuse or neglect] before proceeding to consider evidence relevant only to the dispositional stage." Id. Thus, the trial court did not err in consolidating the two hearings.

In her second assignment of error, respondent contends the trial court erred when it failed to recite the standard of proof the court relied on in its determination of abuse and neglect. N.C. Gen.Stat. § 7B-807 requires the trial court to affirmatively state that the allegations in the petition have been proven by clear and convincing evidence. N.C. Gen.Stat. § 7B-807 (2003). Failure by the trial court to state the standard of proof applied is reversible error. In re Wheeler, 87 N.C.App. 189, 193, 360 S.E.2d 458, 461 (1987). However, there is no requirement as to where or how such a recital of the standard should be included. In the trial court's order, it clearly states that it "CONCLUDES THROUGH CLEAR, COGENT AND CONVINCING EVIDENCE[.]" We find this to be sufficient to meet the requirement of N.C. Gen.Stat. § 7B-807. Therefore, this assignment of error is without merit.

In respondent's third assignment of error, she contends the trial court erred when it failed to make ultimate findings of fact. N.C. Gen.Stat. § 7B-805 requires that the "adjudicatory order shall be in writing and shall contain appropriate findings of fact and conclusions of law." N.C. Gen.Stat. § 7B-807(b) (2003). While petitioner is correct that there is no specific statutory criteria which must be stated in the findings of fact or conclusions of law, the trial court's findings must consist of more than a...