In re Pittman, COA01-349.

Citation561 S.E.2d 560,149 NC App. 756
Decision Date16 April 2002
Docket NumberNo. COA01-349.,COA01-349.
CourtCourt of Appeal of North Carolina (US)
PartiesIn re Jakel PITTMAN, A Minor Child DOB: 10-03-99.

Nash County Department of Social Services, by Jayne B. Norwood, and Guardian Ad Litem Program, by Attorney Advocate Judith L. Kornegay, for petitioner-appellees.

Etheridge, Sykes, Britt & Hamlett, LLP, by J. Richard Hamlett, II, Nashville, and Massengill & Bricio, PLLC, by Francisco J. Bricio, Rocky Mount, for respondent-appellants.

EAGLES, Chief Judge.

James Pittman ("the father") and Lekeshia Harris ("the mother") appeal from a juvenile disposition order granting continued custody of their son, Jakel Pittman ("Jakel"), to the Nash County Department of Social Services ("DSS") and relieving DSS from making further reunification efforts with both parents. On appeal, the father and the mother assign error to the trial court's denial of the mother's motion to suppress and the court's findings of fact and conclusions of law. After a careful review of the record, briefs, and arguments of counsel, we affirm.

The evidence tends to show the following. Jakel was born on 3 October 1999. When Jakel was born, the father and the mother were unmarried, but living together. From 3 October 1999 to 6 January 2000, a three month period, Jakel was cared for by a number of individuals including the father, the mother, Jessie Pittman (paternal grandmother), Tecia Bryant, Catherine Carnegie, and Brenda Williams. As early as November 1999, Jessie Pittman noticed that Jakel had problems that required medical attention. Additionally, other caretakers noticed that Jakel experienced seizures and exhibited evidence of discomfort and distress. Jakel's caretakers brought his medical condition to both parents' attention.

On 6 January 2000, Jakel experienced a seizure while he was with his mother, however, the mother did not seek immediate medical attention for him. Instead, the mother drove to Rocky Mount, where she visited with relatives for several hours. Four hours after his first seizure, Jakel experienced a second seizure. The mother then took Jakel to Nash General Hospital's emergency room. On 7 January 2000, Jakel, three months old at the time, was transferred and admitted to Pitt County Memorial Hospital, where he was diagnosed with injuries to the head, legs (fractures), and spine. Doctors determined that the fractures of the right leg were older than those of the left leg. They also deemed Jakel's injuries non-accidental, and possibly the result of severe shaking, jamming, pushing, pulling, and jabbing.

Upon receipt of a Child Protective Services' referral, DSS began investigating Jakel's case. Due to the severe nature of the injuries, the Sharpsburg Police Department was included in the investigation. On 12 January 2000, Officer Joel Batchelor of the Sharpsburg Police Department and Kendra Holley of DSS interviewed Jakel's parents. Both parents denied harming the child.

Subsequently, on 27 January 2000, Officer Batchelor interviewed the parents again. In separate interviews, the father again denied harming Jakel, however the mother started crying and signed a statement that stated in part:

Jakel was cr[y]ing and I was tr[y]ing to get him to sleep. I was having a hard time getting him to sleep. It was frustrating. While I was rocking Jakel I rocked and bounced him to[o] hard. After I calmed down the baby calmed down. Shortly after this is when the baby started having seizures.... I never told any of the doctors I rocked and bounced Jakel to[o] hard. I'm sorry I hurt my baby and I didn't do it on purpose. I would like to get some help so I don't hurt my baby any more.

Though the statement was in Officer Batchelor's handwriting, it was signed by the mother.

As a result of the investigation, the mother was charged criminally with felony child abuse, and DSS filed a juvenile petition alleging that Jakel was abused and neglected. Ultimately, an adjudicatory hearing for the abuse and neglect allegations was held on 8 and 16 June 2000 in Nash County District Court, the Honorable Robert Evans presiding. During the hearing, evidence was presented that the mother injured Jakel by nonaccidental means and that both parents were negligent and reckless in caring for Jakel. At the conclusion of the hearing, the trial court entered an adjudicatory order concluding that

2. The minor child ... is an abused juvenile as defined by N.C.G.S. § 7B-101(1)a in that his mother ... inflicted upon him a serious physical injury by other than accidental means.
3. The minor child ... is an abused juvenile as defined by N.C.G.S. § 7B-101(1)b in that his father ... created or allowed to be created a substantial risk of serious physical injury to the juvenile by other than accidental means.
4. The minor child ... is a neglected juvenile as defined by § 7B-101(15) in that his parents ... do not provide him with proper care and in that he lives in an environment injurious to his welfare,

and ordering custody of Jakel remain with DSS pending disposition.

On 18 July 2000, a dispositional hearing was held before Judge Evans. By order entered 5 September 2000, the trial court concluded that it was in the best interest of Jakel that he remain in the legal custody of DSS, and the court relieved DSS of further reunification efforts with the parents. Both parents appeal.

As a preliminary matter, we note that both the father's and the mother's notices of appeal indicate that the parents are appealing from the trial court's dispositional order entered on 5 September 2000. However, in their briefs, the parties assert and argue alleged error arising from the trial court's earlier adjudicatory order. Nevertheless, in our discretion under Rule 2 of the North Carolina Rules of Appellate Procedure, we choose to address the merits of the parents' appeal.

In the parents' first assignment of error, the mother argues that the trial court erred in denying her motion to suppress the statement that she made to Officer Batchelor. Specifically, the mother contends that the statement was obtained in violation of her Fifth Amendment right against self-incrimination as defined by Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694, 706-07 (1966). We disagree.

Here, the issue is whether Miranda is applicable to a civil juvenile abuse and neglect proceeding. See State v. Adams, 345 N.C. 745, 748, 483 S.E.2d 156, 157 (1997)

("The filing of a petition alleging abuse and neglect commences a civil proceeding"). The Fifth Amendment of the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." (Emphasis added.) By its own terms, the Fifth Amendment applies only to criminal cases.

In our legal system, a criminal defendant is entitled under the Fifth Amendment, "as incorporated by the Fourteenth Amendment, to remain silent and to refuse to testify." State v. Ward, 354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001); N.C. Const. art. I, § 23. To ensure these rights, the United States Supreme Court developed procedural safeguards to protect a person's right not to be compelled to incriminate himself under the Fifth Amendment. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-07. These Miranda warnings are required when a criminal defendant is subjected to a custodial interrogation, and failure to give the required warnings prior to interrogation precludes admission of statements obtained during the interrogation. See State v. Young, 65 N.C.App. 346, 348, 309 S.E.2d 268, 269 (1983)

.

Generally, Miranda applies only when the defendant is subject to a criminal proceeding. 2 Wayne R. LaFave, Criminal Procedure § 6.10(e), at 625-26 (2d ed.1999). Because a juvenile abuse and neglect proceeding is a civil proceeding, we hold that Miranda is inapplicable. See State v. Adams, 345 N.C. 745, 483 S.E.2d 156

(holding defendant's Sixth Amendment right to counsel, which applies only to criminal cases, did not attach when juvenile petition for abuse and neglect was filed).

We acknowledge the mother's argument that because an abuse and neglect proceeding can result in removal of a child from a parent's custody, a parent's constitutionally protected interest is at stake. However, the common thread running throughout the Juvenile Code, § 7B-100 et seq., is that the court's primary concern must be the child's best interest. See In re Shue, 63 N.C.App. 76, 81, 303 S.E.2d 636, 639 (1983),

modified,

311 N.C. 586, 319 S.E.2d 567 (1984). When determining the best interest of a child,

any evidence which is competent and relevant to a showing of the best interest of that child must be heard and considered by the trial court, subject to the discretionary powers of the trial court to exclude cumulative testimony. Without hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child.

In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574.

Here, the child's interest in being protected from abuse and neglect is paramount. While the mother is not prevented from attempting to suppress her statement to Officer Batchelor in any subsequent criminal proceeding, the mother is barred from doing so in this civil proceeding where the protection of the child's interests, as distinguished from the mother's interests, is the overriding consideration. See Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530 (1997)

(a parent's well-established constitutional "interest in the custody and care of the child is balanced against the state's wellestablished interest in protecting the welfare of children").

Additionally, we note the mother's contention that G.S. § 7A-631 applies to protect her right against self-incrimination. Section 7A-631 provided that the trial court in an adjudicatory hearing shall protect a parent's privilege against self-incrimination, inter alia; however, § 7A-631 was repealed...

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