In the Matter of A.T., No. COA09-813 (N.C. App. 1/5/2010)
| Decision Date | 05 January 2010 |
| Docket Number | No. COA09-813.,COA09-813. |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: A.T. MINOR CHILD. |
Paul W. Freeman, Jr., for petitioner-appellee.
Pamela Newell Williams, North Carolina Administrative Office of the Courts, for guardian ad litem.
Richard Croutharmel, for mother, respondent-appellant.
Robin E. Strickland, for father, respondent-appellant.
In this appeal, Respondent parents of a child, A.T., born in March 2008, seek relief from adjudication and disposition orders concluding that A.T. is a neglected juvenile and granting legal and physical custody of A.T. to the child's paternal cousin and her husband. We affirm the district court's orders.
The record tends to show that, shortly after A.T.'s birth, the Wilkes County Department of Social Services ("DSS") found out that A.T. tested positive for cocaine, benzodiazepines, and barbituates. DSS took A.T. into nonsecure custody and filed a juvenile petition on 30 April 2008. After a series of nonsecure custody hearings, the district court authorized A.T.'s return to Respondents on 2 June 2008. DSS voluntarily dismissed the juvenile petition on 29 July 2008.
However, DSS filed a second juvenile petition on 22 October 2008 seeking to adjudicate A.T. as a neglected juvenile. The petition alleged that A.T. was not thriving and growing, not receiving proper care due to his mother's mental health issues, and not receiving public services because Respondents had allowed Medicaid and WIC to lapse.
The district court conducted adjudication hearings on 20 January and 17 February 2009 and a disposition hearing on 3 March 2009. Thereafter, the district court filed an adjudication order on 4 March 2009 and a disposition order on 20 March 2009.
In the adjudication order, the district court found that, on 17 October 2008, DSS received a report from personnel of Child Development Services Associates which indicated that the child was failing to thrive and a report that Respondent-mother had attempted to commit suicide by jumping from a bridge. The district court further found that, despite A.T.'s positive test for cocaine shortly after his birth, Respondent-mother had steadfastly denied that she used cocaine prior to A.T.'s birth; had a history of psychiatric problems and suicide attempts; and had been hospitalized for psychiatric treatment in excess of ten times.
The evidence showed that Respondent-mother had been hospitalized on 5 October 2008 after an incident the previous day during which she fell or jumped from a highway bridge approximately thirty to forty feet above the water, causing her to have to be rescued by emergency personnel. The evidence further showed that, three months earlier, Respondent-mother fell or jumped from the side of a mountain. During an emergency psychotherapy session on 9 July 2008, Respondent-mother told her counselor that she had made a plan to kill herself which involved driving a car off a cliff. She exited the vehicle on foot to make sure the cliff was steep enough to insure her death. She slipped and fell about 35 to 40 feet down the embankment. She remained there from 8:45 p.m. until 4:00 a.m., when a passerby found her. She was taken by ambulance to Caldwell Memorial Hospital, where she was treated in the emergency room. In the opinion of the therapist, Respondent-mother's judgment was severely impaired.
There was further evidence showing that Respondent-mother has been diagnosed as suffering from disassociative-identity disorder, major depression, and post-traumatic stress disorder. As a juvenile, she was removed from her home due to physical abuse and was placed in foster care until the age of eighteen.
On 14 October 2008, Dr. Dimitios Varelas performed a psychiatric evaluation of Respondent-mother. At that time Respondent-mother stated that her marriage was deteriorating. She told Dr. Varelas that she had a nervous breakdown when she gave birth to her son. She also told him that she had been hospitalized for psychiatric problems between five to ten times, most often in connection with suicide threats.
Dr. Ila Baugham, a pediatrician specializing in the treatment of children from infancy until the age of three, saw and treated A.T. after his birth. From the age of two months to six months, A.T.'s weight and linear growth dropped two standard deviations. At the age of four months, A.T. was below the fifth percentile in weight and linear growth. By the age of five months, his weight gain was leveling and by the age of six months, he was losing weight. During this period of time, A.T. resided with his parents. After A.T. was removed from his parents' residence, his weight increased significantly, by two pounds, within the span of one month. Dr. Baugham could not identify an organic reason as to why A.T. was not gaining, but losing, weight. Because of the lack of any organic explanation for A.T.'s failure to grow while in Respondents' care as compared to A.T.'s growth while in foster care, Dr. Baugham opined, and the district court found, that A.T. was failing to thrive while in Respondents' care. Dr. Baugham could not find any evidence or reason for A.T.'s failure to thrive other than lack of proper care and feeding by Respondents.
At the disposition hearing, Respondents advocated for the placement of A.T. with his paternal grandmother whereas the DSS and guardian ad litem advocated for placement with the paternal cousin and her husband. In its disposition order, the district court found that Respondents originally wanted A.T. to be placed into the home of the paternal cousin instead of the home of the paternal grandmother because Respondent-mother was afraid that the paternal grandmother would attempt to take the child away from her. The district court also noted that an earlier placement with the paternal grandmother in April 2008 was "problematic" because of the poor relationship between Respondent-mother and the child's paternal grandmother. Respondents did not become dissatisfied with A.T.'s placement with the paternal cousin until after initial unsupervised visits by Respondents with the child in the home of the paternal cousin were subsequently changed to supervised visits at the Child Advocacy Center in Wilkesboro, N.C. This change was made because the visits in the paternal cousin's home had become burdensome to the cousin and her family. Although the paternal grandmother and Respondent-mother testified that their relationship had improved, the district court expressed concern about placing A.T. in the home of the paternal grandmother given Respondent-mother's history of emotional instability, her unpredictable actions, and her past relationship with her mother-in-law.
The district court further found in its disposition order that A.T. is receiving good care in the home of the paternal cousin, that A.T. is comfortable in that home, and that A.T. has bonded with the paternal cousin and her husband. The district court found that removing A.T. from that home would be harmful to him. The district court concluded that it is in the best interest of A.T. that the paternal cousin and her husband have custody of A.T. The district court directed that custody of A.T. be placed with the paternal cousin and her husband. The district court also concluded that further efforts at reunification would be futile. The district court relieved the guardian ad litem and DSS of any further responsibilities in this case.
On appeal from the adjudication and disposition orders, Respondent-Mother contends that (I) the district court's conclusion that A.T. is a neglected juvenile is not supported by the findings of fact and the evidence; and (II) there is no evidence that her mental health issues adversely impacted her care of A.T.1 Additionally, both Respondents contend that the district court (III) erred by ceasing reunification efforts; (IV) failed to meet the requirements of N.C. Gen. Stat. § 7B-507(c) by not scheduling a permanency planning hearing within thirty days after ceasing reunification efforts; and (V) erred by granting legal and physical custody of A.T. to the paternal cousin and her husband and by releasing DSS and the guardian ad litem as parties. We find no error.
Respondent-mother first contends that the district court's conclusion that A.T. is a neglected juvenile is not supported by the findings of fact and the evidence. "The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence." N.C. Gen. Stat. § 7B-805 (2007). "A proper review of a trial court's finding of neglect entails a determination of (1) whether the findings of fact are supported by `clear and convincing evidence,' . . . and (2) whether the legal conclusions are supported by the findings of fact . . . ." In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted).
A neglected juvenile is defined as one "who does not receive proper care, supervision, or discipline from the juvenile's parent" or "who lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen. Stat. § 7B-101(15) (2007). To adjudicate a juvenile as neglected, "this court has consistently required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide `proper care, supervision or discipline.'" In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)(quoting In re Thompson, 64 N.C.App. 95, 101, 306 S.E.2d 792, 796 (1983)). The trial court is allowed "some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in...
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