In re S.M.L.

• Decision Date: 21 July 2020
• Docket Number: No. COA 19-476,COA 19-476
• Citation: 846 S.E.2d 790
• Parties: In the MATTERS OF: S.M.L., E.R.M.L., Minor Children
• Court: North Carolina Court of Appeals

846 S.E.2d 790

In the MATTERS OF: S.M.L., E.R.M.L., Minor Children

No. COA 19-476

Court of Appeals of North Carolina.

Filed: July 21, 2020

New Hanover County Department of Social Services, by Jill R. Cairo, Reidsville, for petitioner-appellee.

Miller and Audino, LLP, Greenville, by Jeffrey L. Miller, for appellant-mother.

Administrative Office of the Courts, by Michelle FormyDuval Lynch, for appellee-guardian ad litem.

STROUD, Judge.

This appeal arises out of an Order on Adjudication of neglect and Initial Disposition. Because there were not sufficient findings of fact to support the trial court's conclusion of neglect as to one of the juveniles, Ed,¹ we reverse the adjudication as to Ed and remand for further findings. The trial court's findings of fact as to the other juvenile, Sara, support its conclusion of law regarding her adjudication as neglected. However, the trial court failed to comply with the requirements of North Carolina General Statute § 7B-911 in terminating jurisdiction of the juvenile court and transferring the case as a Chapter 50 matter because the trial court failed to make findings of fact and conclusions of law regarding modification of the existing Chapter 50 custody order and finding no need for continued intervention by the juvenile court. In addition, the trial court failed to enter a Chapter 50 order as directed in its rendition and mandated by the Adjudication and Disposition order on appeal, so we must remand for entry of the Chapter 50 order in accord with North Carolina General Statute § 7B-911. Accordingly, with respect to Sara, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

Mother and Father were married in 2009 and separated in 2014. They are the parents of Sara, born in 2008, and Ed, born in 2013. On 14 June 2016, Father initiated a civil action under Chapter 50 against Mother seeking child custody. On 13 October 2016, the trial court entered a temporary child custody order granting Mother primary physical custody of the two children. The trial court granted Father visitation and required him to pay child support. On 17 March 2017, the trial court entered a Consent Judgment and Order adopting the custody terms of the October 2016 temporary order with minor changes and adjudged Father in contempt for nonpayment of child support. The Consent Order regarding custody was still in effect when the petition was filed in this action.

Since the trial court's findings of fact are mostly unchallenged, we will quote the portions of the facts pertinent to the issues on appeal as found by the trial court. Finding of Fact 2 was based upon a written stipulation by the parties, while the remaining findings were made by the trial court and were not stipulated:

[2.] a. On or about March 2018, the Juvenile, [Sara], disclosed to Respondent-Mother that she was being sexually abused by [Joe], a man who had resided with the family for several years prior to the disclosure.^[2]

b. The Respondent-Mother immediately took [Sara] to the hospital and reported the allegations to medical and law enforcement officials.

c. [Sara] was treated by medical professionals and made available to law enforcement.

d. [Sara] had a CME (Child Medical Examination) at the Carousel Center on March 9, 2018, during which she again made consistent disclosures regarding the sexual abuse. During her interview, [Sara] was also able to illustrate her disclosure by drawing a penis with "white stuff coming out of it."

e. [Joe] has not been charged with any criminal conduct.

f. Respondent-Mother has had a difficult time adjusting to the fact that her significant other was responsible for sexually assaulting her daughter. However, for purposes of this action, the parties stipulate and agree that [Sara] was sexually assaulted by [Joe], on or before February 2018, and any allegations she has made to law enforcement or medical professionals regarding her assault shall be deemed admissible and credible at the trial of this matter.

3. At the time [Sara] disclosed the sexual abuse to Respondent-Mother, and before taking her to seek medical attention, Respondent-Mother drove [Sara] to [Joe]’s place of employment to confront him about the allegations.

4. In her CME on March 9, 2018, [Sara] disclosed that on more than one occasion, [Joe] had her touch his genitals with her hand and also touched her genitals with his hand. This touching was skin-to-skin contact, but [Sara] denied that there was vaginal or anal penetration.

5. [Sara] disclosed that the sexual abuse would usually happen at night, at times when her mother was not present in the residence.

6. A. copy of the CME Report for [Sara] for March 9, 2018 was admitted into evidence without objection and pursuant to the stipulation of the parties and is incorporated by reference as if fully set forth herein.

7. [Sara] disclosed to Helen DePuy, Family Preservation and Reunification Specialist with Methodist Home for Children, that the sexual abuse began when she was six years old. She described that it was very confusing to her, because [Joe] would be nice to her otherwise.

8. Neither Respondent-Parent was aware of the sexual abuse of [Sara] by [Joe] prior to [Sara] making the disclosure in March 2018.

9. From March 29, 2018 to April 5, 2018, both Juveniles were placed with the Respondent-Father. They were allowed to move back to Respondent-Mother's residence upon assurance that the Juveniles would have no contact with [Joe].

10. Respondent-Mother and the Juveniles remained in the same residence throughout the CPS investigation. This residence is owned by [Joe]’s brother and was being rented jointly by Respondent-Mother and [Joe].

11. As the Child Protective Services (CPS) investigation continued, Respondent-Mother continued to have contact with [Joe]. As of May 30, 2018, Respondent-Mother reported that she still talked to [Joe] because she was worried about him as he had been sleeping in his car and has a seizure disorder. At that time, she denied that he had been to her home or had contact with the Juveniles.

12. Both [Sara] and Respondent-Mother were referred for therapy services. In her sessions, Respondent-Mother continued to express doubt about the sexual abuse allegations, often actively seeking to discredit [Sara] and the details of her account.

13. The family was referred to Helen DePuy, a Family Preservation and Reunification Specialist with Methodist Home for Children. The first session was held on June 5, 2018. The goals of this intervention were to support [Sara] and help Respondent-Mother come to terms with what had happened. The plan for services included in-home family sessions twice per week and individual sessions for Respondent-Mother as well as joint sessions with one or both Juveniles for a six- to eight-week period. [Sara] was ultimately transitioned into Cognitive Behavioral Therapy

which lasted until November 2018.

14. Ms. DePuy provided counseling and psychosocial education to Respondent-Mother to educate her regarding various aspects of sexual abuse, including the disclosure process of sexual assault victims as Respondent-Mother continued to question why, if the allegations were true, [Sara] waited so long to disclose. Respondent-Mother expressed the belief that [Sara] was manipulating the family to "get rid of" [Joe] in hopes that the Respondent-Parents would reunite. Respondent-Mother compared her own sexual activities with [Joe] to [Sara]’s account in attempting to discredit the allegations. Respondent-Mother stated that [Joe] was the first man who made her happy and was not abusive or aggressive towards her, asserting that she has "a right to be happy." Respondent-Mother was confronted about having put pictures of herself and [Joe] back on the walls in the residence where she and the Juveniles continued to reside; she responded that those were her happy times, and she did not want to not have them up because of the happy memories they represented, evidencing a complete lack of insight as to how this would affect [Sara]. Respondent-Mother expressed that she felt it was unfair to ask her to take the pictures down, but agreed to do so, only if she could place them on her bedside table. In counseling with [Sara], the Juvenile was very upset about these pictures continuing to be displayed in the household, saying that nobody believed her (about the allegations) and that her mother did not care.

15. On June 14, 2018, police responded to Respondent-Mother's home to do a welfare check of the Juveniles at the request of Respondent-Father who was standing by down [sic] the street with law enforcement. Misti Campbell, Social Worker with the Department, was summoned to the scene at approximately 10:30 p.m.

16. Upon her arrival, Social Worker Campbell learned that law enforcement had located [Joe] inside the home and asked him to leave. Respondent-Mother had initially denied that he was present within the residence, but he was discovered in her bedroom playing video games when law enforcement searched the premises with Respondent-Mother's consent.

17. Social Worker Campbell attempted to interview Respondent-Mother on scene, but Respondent-Mother refused to answer questions as to when [Joe] had arrived at the residence. When confronted by Social Worker Campbell about the prohibition of [Joe] being present in the residence, Respondent-Mother refused to directly answer the questions, but stated "but he isn't around the kids" and went on to say that she did not feel the allegations of sexual abuse were true. At no time did Respondent-Mother claim that [Joe] had broken into her residence,^[3

^] that she did not know he was in the residence, or that she was surprised law enforcement found him there; she made no inquiry about pressing criminal charges against [Joe] related to him being in the home that night or at any other time.

18. Social Worker Campbell advised that the Juveniles were being removed from the home to go stay with Respondent-Father

as a result of [Jo

...