In re S.R.J.T.

Decision Date06 April 2021
Docket NumberNo. COA20-29,COA20-29
Citation857 S.E.2d 345
CourtNorth Carolina Court of Appeals
Parties In the MATTER OF: S.R.J.T.

Vannoy, Colvard, Triplett & Vannoy, PLLC, North Wilkesboro, by Daniel S. Johnson, for petitioner-appellee Wilkes County Department of Social Services.

Lisa Anne Wagner, for respondent-appellant-mother.

STROUD, Chief Judge.

¶ 1 Respondent-Mother appeals from the trial court's order adjudicating Scottie1 as a neglected and dependent juvenile and from the trial court's disposition order which ceased reunification efforts and granted guardianship of Scottie to his aunt. Because the trial court's findings support its conclusion that Scottie was neglected, we affirm the adjudication order as to neglect, and we affirm in part, reverse in part, and remand the disposition order for entry of an order containing findings of fact in compliance with North Carolina General Statute § 7B-906.1(n).

I. Background

¶ 2 Mother has an extensive history with the Wilkes County Department of Social Services ("DSS"), and her parental rights were terminated to two children in 2008 and 2010. DSS initially removed Scottie and his brother2 in 2015 due to issues of domestic violence and substance abuse. Scottie was adjudicated neglected, and Mother previously appealed this order. On 20 June 2017, this Court reversed the trial court's adjudication order in an unpublished opinion. See In re J.L.T. and S.R.J.T., 254 N.C. App. 240, 801 S.E.2d 391 (2017) (unpublished).

¶ 3 On 3 July 2017, DSS filed a new petition alleging Scottie was neglected and dependent. An adjudication hearing was held on 18 December 2017. On 17 July 2018 the trial court entered an adjudication order which declared Scottie to be neglected and dependent. Disposition hearings were held on 8 January 2018, 6 March 2018, and 21 August 2018. The written disposition order, entered on 27 September 2019, ceased reunification efforts, granted guardianship of Scottie to his paternal aunt, and suspended visitation and further hearings. Mother timely appealed from the disposition order and petitioned this Court for a writ of certiorari in the event we found her notice of appeal to be defective.

II. Petition for Writ of Certiorari

¶ 4 Mother's notice of appeal stated, Mother "hereby gives Notice of Appeal to the Court of Appeals of North Carolina from the Adjudication Judgment and Dispositional Order that was filed on September 27th 2019."

However, the adjudication order was filed on 17 July 2018. Because we can infer from the notice of appeal that Mother intended to appeal the both the adjudication and disposition orders, in our discretion, we allow her petition as to the disposition order. N.C. R. App. P. 21(a)(1).

III. Adjudication

¶ 5 Mother argues, "[t]he trial court erred by adjudicating Scottie neglected and dependent when the trial court failed to make necessary finding of fact, there is insufficient evidence to support the findings of fact the trial court did make, and the findings that are supported by the evidence are insufficient to support its conclusions of law."

A. Standard of Review
We review an adjudication under N.C. Gen. Stat. § 7B-807 to determine whether the trial court's findings of fact are supported by clear and convincing competent evidence and whether the court's findings support its conclusions of law. The clear and convincing standard is greater than the preponderance of the evidence standard required in most civil cases. Clear and convincing evidence is evidence which should fully convince.... [W]e review a trial court's conclusions of law de novo.

In re N.K. , ––– N.C. App. ––––, ––––, 851 S.E.2d 389, 392 (2020) (quoting In re M.H. , ––– N.C. App. ––––, ––––, 845 S.E.2d 908, 911 (2020) ). Unchallenged findings are binding on appeal. Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

B. Adjudication of Neglect

¶ 6 Mother argues, "DSS failed to present any evidence that the children were present for, or impacted by, any acts of domestic violence or substance use, or that they suffered any physical, mental or emotional impairment as a result."

¶ 7 A neglected juvenile is defined as one

who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare[.]

N.C. Gen. Stat. § 7B-101(15) (2017). "[I]n order for a court to find that the child resided in an injurious environment, evidence must show that the environment in which the child resided has resulted in harm to the child or a substantial risk of harm." In re K.J.B. , 248 N.C. App. 352, 354, 797 S.E.2d 516, 518 (2016). "A trial court's failure to make specific findings regarding a child's impairment or risk of harm will not require reversal where the evidence supports such findings." Id.

¶ 8 Here, the trial court found:

5. The Respondents have unstable living arrangements and maintain a strange, ongoing, and inappropriate relationship with one another. [Mother] alternates living with [Scottie's Father] and [Aaron], choosing to stay with whichever father has money and drugs to offer to her.
6. [Mother] and [Scottie's Father] have failed numerous drug screens during the time that the children have been in the care of DSS.
....
8. On October 6, 2017, the Respondents submitted to hair follicle drug tests and the results were as follows: [Mother]: positive for amphetamines

and methamphetamine[.]

9. On October 13, 2017, social worker Carver made a surprise visit to [Aaron's] home. When she arrived, [Aaron] was lying on a couch and [Mother] was scurrying around the kitchen. [Mother] told social worker Carver that she was pouring a beer out. Social worker Carver noticed a needle on the kitchen counter, two more needles in the sink, a packet of some sort, and a spoon containing a burned substance. [Aaron] told the social worker that he didn't know why [Mother] was using the "junk" in his home. [Mother] admitted that she was using drugs and that she was depressed since her children had not been at home.

....

13 Since the children have been in the care of DSS, .... [Scottie] has been diagnosed with post-traumatic stress disorder

.

15. [Scottie] receives counseling from Brooke Gregory at Kids Count Pediatrics. Therapist Gregory was duly qualified as an expert witness and provided the following opinions regarding [Scottie]:

(a) He suffers from post-traumatic stress disorder as a result of matters he witnessed while in the care of [Mother] and [Scottie's Father], including drug use, domestic violence, and his mother moving back and forth between [Scottie's Father] and [Aaron];

(b) He regressed in treatment following visits with his parents. Interaction with his parents increased his behaviors of acting out, not listening, and oppositional defiance;

(c) He experienced nightmares of being left alone and someone cutting his head off after contact with his parents;

(d) He was exposed to sexual behavior during the time that he was with his parents. He has talked to other children about sexual behavior and engaged in sexualized conduct; and

(e) It is not in the best interests for [Scottie] to have visitation with his biological parents.

And the trial court concluded:

3. With regard to neglect, each child would be placed at a serious risk of impairment in the event that they were placed with their parents due to the parents’ ongoing drug abuse and their unstable living arrangements. Each of the children would be placed at substantial risk of physical, mental, and emotional impairment in the event that they were returned to their parents.

1. Finding of Fact No. 15

¶ 9 Mother raises several arguments regarding Finding of Fact No. 15. Mother argues that portions of finding of fact 15(a) and (e) are conclusions of law and should be reviewed de novo. We disagree. First, we note that Finding No. 15 is phrased as a recitation of testimony as to facts about the juvenile since it specifically lists the observations and opinions of Therapist Gregory. See In re L.C. , 253 N.C. App. 67, 70, 800 S.E.2d 82, 86 (2017). Although recitations of evidence may not allow for appropriate appellate review where the trial court fails to make findings demonstrating if it found the evidence to be credible, id. , when we consider Finding No. 15 in the context of the entire order, the trial court did determine the evidence to be credible and this finding is supported by the evidence. To the extent that Finding 15(e) is a finding of fact and not a recitation of testimony, we review the trial court's determination of whether visitation is in the best interest of the juvenile for abuse of discretion. In re C.M. , 183 N.C. App. 207, 215, 644 S.E.2d 588, 595 (2007) ("This Court reviews the trial court's dispositional orders of visitation for an abuse of discretion.").

¶ 10 Mother also contends Finding 15(d) is not supported by the evidence. Ms. Gregory testified about the reasons she saw Scottie:

Q. Why did you begin work counseling with [Scottie]?
A. He was referred to my case load due to family circumstances where he was removed from his family and lives with [his Aunt]. There's a pretty significant neglect and abuse history there, so he has post-traumatic stress disorder

.

Q. When did you diagnose [Scottie] with post-traumatic stress disorder ?

A. On 6/14/16.

Q. And it's your opinion that that stress disorder resulted from abuse and the circumstances that he encountered in his parents home?

A. Yes, sir.

Q. How did you arrive at that diagnosis?

A. Well, there are several criteria you need in order to get diagnosed with post-traumatic stress disorder. [Scottie] exhibits mood changes, anxiety, sleep disturbances, eating disturbances, attachment issues, and [Scottie] qualifies for all of those.

....

Q. Now, has [Scottie] indicated to you during counseling sessions that he had witnessed his parents using illegal drugs?

A. Yes.

Q. What did
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