In re Z.M.
| Docket Number | COA23-45 |
| Decision Date | 16 January 2024 |
| Parties | IN THE MATTER OF: Z.M., L.M., and H.M. |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 19 December 2023.
Appeal by respondent-mother from order entered 12 July 2022 by Judge Robert J. Crumpton in Alleghany County, Nos. 22 JA 11-13 District Court.
Anné C. Wright and John Benjamin "Jak" Reeves for petitioner-appellee Alleghany County Department of Social Services.
Michelle FormyDuval Lynch for the Guardian ad Litem.
Office of the Parent Defender, by Assistant Parent Defender J. Lee Gilliam, for respondent-appellant mother.
Respondent-mother appeals from a trial court's adjudication and disposition order entered 12 July 2022 adjudicating Z.M ("Zora"), L.M. ("Lydia"), and H.M ("Hudson") neglected and dependent juveniles.[1], [2] We affirm the trial court's order.
Zora was born in June 2014, Lydia in October 2015, and Hudson in June 2018. The juveniles lived with respondent-mother and respondent-father in Alleghany County. On 29 October 2021, the Alleghany County Department of Social Services ("DSS") received a report alleging domestic violence, substance abuse, improper remedial/medical care, and improper supervision in the home. After respondents failed to respond to attempted communications, social worker Juanita Del Valle ("Del Valle") and a law enforcement officer visited the home unannounced on 1 November 2021.
Respondents admitted to Del Valle that there had been instances of domestic violence, though none in front of the children, and they denied any substance abuse in the home. However, respondent-father admitted that he "did use and sold a little" to make extra income. Respondent-mother stated that she home schooled Zora, but the school was not licensed. The children had not seen a doctor, and none had been vaccinated. In her report, Del Valle described the home as cluttered: there were toys everywhere, the couch was "cut up," and dog feces and urine were on the floor. The children told Del Valle that respondents fight and that it scares them.
At the conclusion of the 1 November home visit, respondent-parents entered into a safety plan with DSS which required that they enroll Zora in school, keep pathways and exits in the home clear, clean up animal waste, and refrain from domestic violence.
Del Valle conducted follow-up visits with the family on 9, 17, and 30 November 2021. On 9 November, Zora was not enrolled in a school; the home smelled of urine; and Zora said that respondent-father had pushed respondent-mother down the stairs and choked her. But by 17 November, Zora had not observed any fighting in a week. On 30 November, Zora said that respondent-father was being nicer to respondent-mother, and respondent-mother also reported no domestic violence.
DSS conducted three more home visits in December 2021. During one visit, Zora informed Del Valle that respondents were fighting again, though respondent-mother denied any domestic violence. Respondent-mother reported that Zora had been enrolled in school, but she was unable to provide any documentation to support the claim. At a subsequent visit, respondent-mother provided a home-school license number, and Del Valle reported no other concerns.
Respondents met with Del Valle and a supervisor to develop a home family service agreement on 1 January 2022. The supervisor explained that if the plan was not followed within the time frame provided, "the next step would be court." Del Valle conducted two home visits in January 2022. On 21 January Zora said she had not witnessed any more fighting since the last visit. On 26 January 2022, respondent-parents expressed their frustration with DSS remaining involved with the family, and Zora mentioned that she had not participated in school that day because respondent-mother was working on something else.
DSS attempted home visits on 2, 8, 17, and 18 February 2022, but no one answered the door or responded to messages. Del Valle observed that the same five full trash bags had been sitting outside the home for three weeks.
Later in the day on 18 February 2022, Del Valle returned to the home with a law enforcement officer and met with respondent-mother. While in the home, Del Valle observed dog feces were on the floor, that the home was very messy and cluttered, that open food containers lay around, and that there was an odor of trash and dogs inside.
During the home visit, Del Valle spoke with Zora, who stated that respondents had been arguing that day. Zora described how respondent-father had choked respondent-mother, and Zora hit him to "get him off of" respondent-mother. Zora also stated that respondent-father had been in her closet looking for a bag and that he was upset because he could not find it. Zora was afraid that he would be upset with respondent-mother. Respondent-mother denied arguing with respondent-father and stated that he had left the residence to prevent an argument. Both Zora and Lydia stated that they were not afraid to speak with the social worker because respondent-father was not at home. Del Valle completed a safety plan with respondent-mother directing the parents to not argue in the presence of the kids.
DSS filed juvenile petitions on 21 February 2022 alleging Zora, Lydia, and Hudson were neglected and dependent juveniles. The trial court entered orders granting DSS nonsecure custody of the children the same day. On 15 March 2022, the court awarded respondents a minimum of two two-hour supervised visits per month.
The trial court conducted a hearing on the juvenile petitions on 17 May 2022. The trial court heard testimony from Del Valle setting forth the facts giving rise to the petitions. GAL case supervisor Michelle Dix testified that Zora had disclosed that she witnessed respondent-father choke respondent-mother and "tripped [her] on purpose" and that Zora was afraid of respondent-father. The trial court also reviewed two videos recorded inside respondents' home in which respondent-mother was heard yelling after respondent-father pushed her down the stairs, and respondent-father was heard going through a closet looking for drugs to sell. Respondent-mother testified that respondent-father's statements were sarcasm. The trial court also received evidence that respondent-parents had a treatment plan with Daymark Recovery Services but had not completed the plan or attended a substance abuse assessment.
The children's maternal grandmother had not been in the home since October 2020 due to domestic violence between respondents. A kinship assessment for the maternal grandmother was approved on 19 April 2022. DSS recommended that the children be placed with their maternal grandmother until respondent-parents made progress with their case plan and eliminated concerns of substance abuse, domestic violence, and unsafe or improper care for the children.
The court found that the allegations set forth in the petitions were proven by clear, cogent, and convincing evidence. Regarding DSS efforts, the trial court found the following efforts had been pursued: (1) a CPS investigative assessment; (2) safety plans; (3) contact with collaterals; (4) risk assessments; (5) strength and needs assessments; (6) attempts to maintain regular contact with the parents and children; (7) kinship assessment as requested; (8) referrals for counseling; (8) transportation as needed; (9) Medicaid for the children; (10) monitoring mental health services respondent-parents were receiving through Daymark; and (11) referrals for parenting and/or substance abuse.
The court further found that DSS had learned of the family's previous involvement with Child Protective Services ("CPS") in Wake County addressing concerns of domestic violence, substance abuse in the home, improper supervision, and improper remedial and medical care. The court found that the case plan required respondent-parents to maintain proper communication with DSS in a civil and respectful manner, but respondent-parents had failed to do so. Furthermore, Hudson needed "serious dental care" and "exhibit[ed] aggressive behaviors toward others due to modeling the violent behavior in the home."
The court adjudicated Zora, Lydia, and Hudson neglected and dependent juveniles by order entered 12 July 2022. See N.C. G.S. § 7B-101 (2021). In its disposition order, the trial court decreed that legal and physical custody of the children would remain with DSS, that respondents' visitation with the children would remain unchanged, and that the children could be placed with the maternal grandmother in the discretion of DSS. Respondents were ordered to comply with their case plan as directed by DSS. The primary plan for the children was set as reunification with a concurrent plan of custody with an approved caregiver. Respondent-mother appealed the adjudication and disposition order on 8 August 2022.
Respondent-mother challenges the trial court's adjudication of the children as (A) neglected juveniles and (B) dependent juveniles. Respondent-mother challenges findings of fact 13, 19, 24-28, 42-45, and 48, requesting this Court set aside those findings because they either recite "allegations in the petition or other documents authored by [DSS] or testimony given below." Alternatively, she contends the evidence does not show neglect. She further contends the children were not dependent because they had an appropriate alternative caregiver in their maternal grandmother. We address each argument in turn.
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