In the Matter of J.W.B., No. COA05-1504 (N.C. App. 6/20/2006)

• Decision Date: 20 June 2006
• Docket Number: No. COA05-1504,COA05-1504
• Citation: In the Matter of J.W.B., No. COA05-1504 (N.C. App. 6/20/2006), No. COA05-1504 (N.C. App. Jun 20, 2006)
• Parties: IN THE MATTER OF: J.W.B.
• Court: North Carolina Court of Appeals

Page 1

Unpublished Opinion

IN THE MATTER OF: J.W.B.

No. COA05-1504

Court of Appeals of North Carolina.

Filed June 20, 2006

This case not for publication

Buncombe County No. 04 J 339.

Appeal by respondent mother from order entered 11 August 2005 by Judge Gary S. Cash in Buncombe County District Court. Heard in the Court of Appeals 18 May 2006.

Matthew J. Middleton, for petitioner-appelleeBuncombe County Department of Social Services.

Michael N. Tousey, for petitioner-appelleeGuardian ad Litem.

Rebekah W. Davis, for respondent-appellant.

TYSON, Judge.

A.R. ("respondent") appeals from order entered adjudicating her minor child, J.W.B., neglected.We affirm.

I.Background

J.W.B. was born prematurely in July 2003 at thirty-four weeks.At age nine or ten months, he was diagnosed as having Hydrocephalus, or water on his brain.J.W.B. is developmentally delayed and receives speech and physical therapy in Asheville and medical care from Duke University Medical Center in Durham.

Respondent is forty-one years old and was previously twice married.Respondent and J.W.B.'s biological father met in 2002, but never married.They resided together for approximately one year and separated in April 2004.The relationship between respondent and J.W.B.'s father became violent while the couple lived together.The parties threw cups and plates at each other.On several occasions, respondent threw items in the direction of J.W.B.'s father when J.W.B. was located within a few feet of him.

Respondent would become angry two or three times per month and would shake for no apparent reason.On several occasions, respondent threatened to kill herself with a knife and locked herself in the bathroom for several hours.J.W.B.'s father hid all knives located in the house.

This behavior began when respondent was pregnant with J.W.B. and continued after his birth.On other occasions, respondent threatened to kill herself and walked into the public roadway as if she might throw herself into oncoming traffic.Before J.W.B. was born, respondent pushed the child's father into an entertainment center.Approximately two months after J.W.B. was born, respondent stated she was going to kill herself and was going to take J.W.B. and "set him out and walk away."On another occasion, respondent pushed J.W.B.'s father down and slammed a door in his face.Respondent told J.W.B.'s father that she was bipolar and had previously been committed to a hospital.

J.W.B.'s father primarily cared for him on weekends while respondent worked.On some weekends, J.W.B.'s father drank a twelve pack of beer during the day while caring for J.W.B. Respondent left J.W.B. with his father knowing he was drinking these amounts, but testified she did not know his drinking was"getting out of hand."J.W.B.'s father was drinking on the several occasions when he was violent toward respondent.

The Buncombe County Department of Social Services("DSS") received a complaint regarding an altercation between respondent, J.W.B.'s father, and J.W.B.'s paternal grandmother in April 2004.DSS conducted an investigation and observed respondent, J.W.B.'s father, J.W.B.'s maternal and paternal grandparents, and eight other persons.Based on its investigation, DSS substantiated J.W.B. was neglected.DSS observed J.W.B., who appeared to be in good health and dressed appropriately.J.W.B. could not pull himself up, as appropriate for his age.

Respondent and J.W.B. lived with respondent's parents from 27 April 2004 until June 2004.From June 2004 until August 2004, they lived in a domestic violence shelter until respondent and J.W.B. moved back into her parents' residence.

In June 2004, respondent refused DSS's request for authorization to obtain respondent's medical records.DSS was concerned about: (1) the safety of J.W.B. due to the prior suicide threats made by respondent; (2)respondent's history of domestic violence; (3) the excessive alcohol consumption of J.W.B.'s father; (4) acts of domestic violence; and (5)respondent's failure to complete a prior case plan involving another child.

DSS located respondent at the local Helpmate Domestic Violence Shelter in July 2004.Respondent agreed to a family services case plan on 21 July 2004 in which she would: (1) obtain a mental health evaluation; (2) obtain a substance abuse assessment and comply with all recommendations; (3) obtain an assessment to determine her need for domestic violence counseling; and, (4) attend parenting classes.Respondent informed the social worker of a scheduled appointment at Duke University Medical Center to have J.W.B. evaluated.Respondent indicated she had no desire to continue residing with her parents and intended to apply for government subsidized housing.Respondent admitted she was angry and tore the telephone out of the wall during the April 2004 altercation with J.W.B.'s father.

DSS referred respondent for government subsidized housing, provided contact information for mental health providers, and gave respondent a bus pass.In early August 2004, respondent told the social worker she had been approved for government subsidized housing, food stamps, and Medicaid.

On 21 August 2004, a DSS social worker contacted the Helpmate Shelter and was told that respondent had left J.W.B.'s toys and clothes at the shelter with no forwarding address.The social worker attempted to locate respondent at her parents' house.The social worker heard a child crying in the house, but respondent's father refused to let her and accompanying law enforcement agents enter without a warrant.DSS was not able to contact respondent until 19 October 2004, when DSS learned of J.W.B.'s medical appointment at Graham Medical Center.The social worker met respondent at Graham Medical Center and asked if respondent would allow her to see J.W.B. Respondent informed the social worker that she could not come into her house and respondent would not meet the social worker elsewhere with J.W.B.As of the date of the hearing, respondent has not sought a mental health evaluation or a domestic violence assessment and did not complete any parenting classes.

DSS filed a juvenile petition on 13 December 2004 alleging the child to be neglected because the child "lives in an environment injurious to the [child's] welfare."On 5 January 2005, DSS obtained a court order allowing DSS to visit with the child.Thereafter, an order was entered allowing DSS to make a home visit.The trial court adjudicated J.W.B. neglected by both parents on 11 August 2005.The court ordered that respondentmother and J.W.B.'s father share joint legal custody of the child "contingent upon the respondent parents cooperating with the Department and following the Orders of this Court."Respondent appeals.

II.Issues

Respondent argues: (1)the trial court's findings of fact numbered 4, 5, 6, and 7 in the adjudication judgment are not supported by clear and convincing evidence; (2)the trial court's findings of fact numbered 5, 6, 7, 8, 9, 12, and 17 in the dispositional order are not supported by the evidence or are not proper findings of fact; (3)the trial court's conclusion that the child lived in an environment injurious to his welfare is neither supported by the findings of fact nor evidence; (4)the trial court exceeded its authority in giving custody of the child equally to each parent while conditioning custody on the parents cooperating with DSS and following court orders; and (5)the trial court abused its discretion in modifying the custodial arrangement so that each parent has an equal amount of physical custody of the child.

III.Standard of Review

"The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence."N.C. Gen. Stat. § 7B-805(2005).

"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)."In a non-jury . . . neglect adjudication, the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings."In re Helms,127 N.C. App. 505, 511, 491 S.E.2d 672, 676(1997)."Our review of a trial court's conclusions of law is limited to whether they are supported by the findings of fact."Id.

In re Pittman,149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566, disc. rev. denied,356 N.C. 163, 568 S.E.2d 608(2002), cert. denied,538 U.S. 982, 155 L. Ed. 2d 673(2003).We review conclusions of law de novo.Starco, Inc. v. AMG Bonding and Ins. Servs.,124 N.C. App. 332, 336, 477 S.E.2d 211, 215(1996).

Once the trial court adjudicates a child neglected, the court moves to the dispositional stage and solely considers the best interests of the child.In re Pittman,149 N.C. App. at 766, 561 S.E.2d at 567.We review the trial court's disposition under an abuse of discretion standard.Id.

IV.Findings of Fact

A.Adjudication Judgment

Respondent argues the trial court's findings of fact numbered 4, 5, 6, and 7 in the adjudication judgment are not supported by clear and convincing evidence.

The trial court's finding of fact Number 4 states:

4.The respondentmother is 41 years of age and has been married on two prior occasions.Both of her prior husbands committed acts of domestic violence toward her.In 1999, one of her husbands, [name omitted], beat her in front of his friends, which resulted, in part, to her not being able to speak and being admitted into the Copestone Unit of Mission Hospital, in Asheville, North Carolina where she remained for four days.Following her release from the Copestone Unit, she received brief mental health services at Blue Ridge Center.

Respondent argues the evidence only showed one of prior husband,...