In the Matter of L.O., No. COA08-323 (N.C. App. 9/2/2008)
| Decision Date | 02 September 2008 |
| Docket Number | No. COA08-323,COA08-323 |
| Parties | IN THE MATTER OF: L.O. |
| Court | North Carolina Court of Appeals |
Janna D. Allison for Respondent-Appellant.
Tracie M. Jordan for Guardian ad Litem.
Respondent-Mother A.L. (Respondent) appeals from the trial court's consolidated adjudication and disposition order finding Respondent's minor child, L.O., to be neglected and directing that reunification efforts with Respondent cease. For the reasons set forth herein, we reverse and remand the dispositional portion of the trial court's order.
The Alleghany County Department of Social Services (DSS) filed a juvenile petition on 30 November 2007 alleging that four-month-old L.O. was a neglected juvenile in that he did not receive "proper care, supervision, or discipline from [his] parent[.]" Specifically, the petition alleged that L.O. had been left home alone with no supervision, food, or diapering from 6:30 a.m. on Monday, 26 November 2007 until 7:30 p.m. on Tuesday, 27 November 2007. The trial court granted non-secure custody of L.O. to DSS and DSS placed L.O. in a foster home. Following the seven-day hearing, the trial court ordered supervised visitation of one hour per week between Respondent and L.O. The trial court also ordered Respondent to comply with a family services agreement, and it set the adjudication hearing for 18 December 2007.
DSS social worker Christy Johnson (Ms. Johnson) testified to the following at the adjudication hearing. On 28 November 2007 DSS received a report that L.O. had been left alone for thirty-seven hours with no adult present, no feeding, no diapering, and no comfort. Respondent explained to Ms. Johnson that Respondent's sister and brother-in-law had moved in with Respondent the Friday prior to the incident, and that they were supposed to watch L.O. while Respondent went to work. Respondent did not check to see that her sister and brother-in-law were in the house before she left for work at 6:30 a.m. on the morning of Monday, 26 November 2007. Respondent worked at a tree farm in Laurel Springs until midnight. Respondent stayed at a bunk house at the tree farm overnight because she had to be back at work early the next morning. Ms. Johnson did not know whether the bunk house had a telephone, but she knew the office at the tree farm had a telephone. Respondent did not have a telephone at her residence, but she lived in a trailer park with neighbors.
Ms. Johnson also testified that Respondent's sister told Ms. Johnson that she got mad at Respondent on the Sunday night before the incident in question, when Respondent came home from work around 10:00 p.m. Respondent's sister told Ms. Johnson that Respondent appeared to be high and that Respondent passed out on the floor asleep. Respondent's sister and brother-in-law left Respondent's house that night around 11:00 p.m. and saw L.O. lying asleep on the floor next to Respondent. Ms. Johnson also related that after Respondent left L.O. alone for thirty-seven hours, Respondent returned to her residence around 7:30 p.m. on Tuesday, 27 November 2007 to find L.O. "just lying there," and that it took Respondent two hours to get L.O. to take a bottle. Upon urging by Ms. Johnson, Respondent took L.O. to the emergency room on 28 November 2007 and L.O. was found to have no lasting negative health effects.
Ms. Johnson stated that Respondent's older child, M.O., had been removed from Respondent's home at four months of age due to abuse, and had been placed with a relative in South Carolina. M.O.'s father, who is also L.O.'s father, was convicted of felonious child abuse and served an active sentence. Respondent was charged with, and served time for, harboring a fugitive when she gave shelter to the father after he escaped from prison. Respondent was not charged with any crime with regard to the abuse of M.O. Ms. Johnson indicated that the father had moved back to Mexico.
Other witnesses testified regarding the three one-hour visits between Respondent and L.O. Guardian ad litem Allen Williams (Mr. Williams) witnessed the third visit only, and he reported that when he arrived for the visit, L.O. was in a good mood. However, within five minutes of handing L.O. to Respondent, L.O. was "yelling and screaming pretty violently," and it continued for about fifteen minutes before the director of the facility, Pam Sizemore (Ms. Sizemore), went in to help calm L.O. down. From that point on, Respondent carried L.O. facing outward away from Respondent, and L.O. did not actively cry for the last twenty minutes of the visit. Mr. Williams testified that L.O. was afraid of Respondent. Although this was the only interaction observed by Mr. Williams, who had only been involved in the case for a few days at the time of the hearing, he agreed with DSS's recommendation to terminate visitation.
Ms. Sizemore, the director of the Alleghany County Children's Resource Center (the Center), testified regarding her interactions with Respondent and L.O. Her first contact with them occurred several weeks before the incident at issue, when Respondent went to the Center to sign up for parenting classes in her efforts to regain custody of M.O. Ms. Sizemore next testified regarding her observations of the three visits between Respondent and L.O., and she recalled the following from those visits:
[L.O.] was okay with me. After [Respondent] arrived, [L.O.] did begin crying. [L.O.] actually slept for about forty minutes of that first visit; I think just wore out. And so [L.O.] was awake for about 20 minutes. [Respondent] did feed [L.O.], diaper-change during the time he was awake, but he was very fussy, cried. Second visit was more or less a repeat of the first visit. [L.O.] slept for about 40 minutes of the second visit also. Yesterday was the first time [L.O.] actually stayed awake for the entire hour-long visit. Ms. Sizemore further testified that with regard to the third visit, held the day before the hearing, "there were two points in time that [Ms. Sizemore] observed that [Respondent] was actually able to stop [L.O.'s] crying on her own for brief periods of time, which to [Ms. Sizemore] was a little bit of an improvement over what had been." Ms. Sizemore testified that although she did not hold the opinion that L.O. was afraid of Respondent, she felt that L.O. did not trust Respondent, and that L.O. had been traumatized to the point where the trauma had a profound effect on him.
L.O.'s foster mother, Amanda Miller (Ms. Miller), testified that L.O. is generally happy before he visits with Respondent, but that after visits it takes several days for L.O. to get back to a routine, and that L.O. resists nurturing and feeding. Ms. Miller also stated that L.O. exhibited "classic" symptoms of attachment disorder, based on her observations of other foster children that she had cared for over time.
At the conclusion of the adjudication hearing, the trial court determined that L.O. was a neglected juvenile. Following arguments related to disposition, the trial court determined that it was in L.O.'s best interest to be removed from Respondent's home. The trial court ordered DSS to retain custody of L.O. and relieved DSS of its obligation to pursue further reasonable efforts to reunite L.O. with Respondent. The trial court also ordered visitation to cease due to "the obvious trauma experienced by [L.O.] on all prior visits." A permanency planning hearing was set for 18 January 2008. Respondent appeals. We first recognize that Respondent did not assign error to the trial court's third conclusion of law that "[L.O.] is a neglected juvenile as defined by N.C.G.S. [§] 7B-101(15)." Moreover, Respondent expressly abandoned her only assignment of error that dealt with the trial court's adjudication of L.O. as a neglected juvenile. Therefore, our review is limited to the dispositional portion of the trial court's order. See N.C.R. App. P. 10(a) ().
In challenging the dispositional portion of the order, Respondent assigned error to several findings of fact. "'All dispositional orders of the trial court in abuse, neglect and dependency hearings must contain findings of fact based upon the credible evidence presented at the hearing.'" In re K.S., 183 N.C. App. 315, 323, 646 S.E.2d 541, 545 (2007) (quoting In re Eckard, 144 N.C. App. 187, 197, 547 S.E.2d 835, 841, remanded on other grounds, 354 N.C. 362, 556 S.E.2d 299 (2001)). "'[W]here the trial court's findings are supported by competent evidence, they are binding on appeal, even if there is evidence which would support a finding to the contrary.'" Id. (quoting In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004)). "The standard of review that applies to an assignment [of error] challenging a dispositional finding is whether the finding is supported by competent evidence." In re C.M., 183 N.C. App. 207, 212, 644 S.E.2d 588, 593 (2007). First, Respondent contests the finding that "[Respondent] testified that she thought her sister was in the home and would look after [L.O.]" on the ground that Respondent never testified at the hearing. Although it is clear from the transcript of the proceedings that Respondent did not testify, the transcript reflects that the substance of the finding is supported by the evidence. Ms. Johnson testified regarding Respondent's explanation for why L.O. was left unattended. We do not find that the trial court's mistaken use of the word "testified" subverts the basic information contained therein. This assignment of error is overruled.
Respondent next challenges the trial court's...
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