In the Matter of A.E., No. COA08-556 (N.C. App. 10/21/2008)
| Decision Date | 21 October 2008 |
| Docket Number | No. COA08-556,COA08-556 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: A.E. |
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee.
Mercedes O. Chut for respondent-appellant mother.
Levine & Stewart, by James E. Tanner III, for respondent-appellant father.
Pamela Newell Williams for appellee Guardian ad Litem.
Respondents mother and father appeal from an order adjudicating their son, A.E. ("Andrew"), neglected.1 We agree with respondents that the trial court failed to make sufficient findings of fact to support its adjudication of neglect. Specifically, the trial court's order lacks any determination whether Andrew suffered harm or was at a substantial risk of harm in respondents' care. We must, therefore, remand for further findings of fact.
In 2005, the Chatham County Department of Social Services ("CCDSS") assumed custody of respondents' two oldest children following a drug raid at their home. Those two children were later adjudicated neglected.
Andrew was born on 16 March 2006. When Andrew was one week old, CCDSS removed him from respondents' home and filed a juvenile petition, alleging that respondents' history of domestic violence, drug use, and drug dealing placed Andrew at risk of harm. After a permanent planning conference on 28 March 2006, Andrew was returned to respondents' custody.
In October 2006, an incident of domestic violence occurred between respondents. When CCDSS learned of this incident, it did not remove Andrew, but rather increased services to the family. Because of these services, the family began to make some progress, and in February 2007, Andrew's two older siblings were returned to respondents for a trial period.
On 15 March 2007, at about 10:00 p.m., Officer Kevin Dodson of the Siler City Police Department stopped respondents because of a suspicious license plate. In a search of the car, officers found a prescription pill bottle containing 101 Oxycontin pills in the name of James Howard, an empty prescription pill bottle in the name of Linda Alston, about a gram of marijuana residue, and some rolling papers. As a result of this stop, respondents were charged with fictitious registration plates, felony possession of Oxycontin, trafficking in Oxycontin, and misdemeanor possession of marijuana. On 16 March 2007, the day after the stop, CCDSS removed all three children from respondents' home.
On 20 March 2007, CCDSS filed a second petition regarding Andrew, alleging that Andrew was a neglected juvenile in that he did not "receive proper care, supervision, or discipline from [his] parent, guardian, custodian, or caretaker" and he "live[d] in an environment injurious to [his] welfare." CCDSS alleged that Andrew's parents had "a long history of domestic violence and drug use" and that his brother and sister had been removed from respondents' home following a drug raid at the home prior to Andrew's birth. CCDSS asserted that the second petition had been filed "as a result of the Respondent's [sic] having been recently charged with possession of marijuana and prescription drugs." CCDSS concluded that "[g]iven the Respondent's [sic] continuing use and/or sale of illegal drugs, and their obvious lack of progress, the juvenile is at risk in their custody."
At the adjudication hearing, beginning on 1 June 2007, the trial court heard testimony from two law enforcement officers regarding the traffic stop on 15 March 2007. Officer Phillip Cook, who searched respondents' car that day, testified that he was familiar with respondents because he had previously investigated their involvement in drug deals in Chatham County. Officer Cook testified that he had used undercover informants to purchase cocaine, marijuana, and Oxycontin from respondents in the past. The officer also testified that during the drug raid on respondents' home in 2005, officers found drug paraphernalia, tool sused to grow and cultivate marijuana, and a loaded gun hanging on the back of a door in reach of the children. CCDSS also called as witnesses respondent father's probation officer, a foster care social worker, and respondent mother's former employer.
Mr. James Howard, the person to whom the prescription found in respondents' car was written, testified on behalf of respondents. He stated that he employed respondent mother as a private nurse; that on 15 March 2007, she had driven him to an appointment earlier in the day; and that he had left his Oxycontin in the car by accident.
At the end of the first day of the hearing, the trial court decided to defer any further hearing until after the completion of the criminal proceedings. The District Attorney's Office ultimately dismissed all the drug-related charges against respondents.
When the abuse, neglect, and dependency hearing resumed, CCDSS called as witnesses two psychologists, the social worker who had previously testified, and a visitation supervisor. Respondents in turn offered the testimony of their individual therapists, respondent father's probation officer, and the family physician. The Guardian ad Litem also testified. On 29 February 2007, the trial court entered an order determining that Andrew was a neglected child and ordering that he be placed in CCDSS custody with supervised visitation. Respondents timely appealed to this Court.
"The role of this Court in reviewing an initial adjudication of neglect and abuse is to determine (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 D.S.A., 181 N.C. App. 715, 717, 641 S.E.2d 18, 20 (2007) (internal quotation marks omitted). In a non-jury neglect and abuse 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.'" Id. at 717-18, 641 S.E.2d at 21 (quoting In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)).
Respondents first contend that the trial court's findings of fact are insufficient to support its adjudication of Andrew as a neglected juvenile because the trial court failed to make findings that there existed a risk of repeated neglect in the future if Andrew was left in respondents' care. The test recited by respondents, however, was adopted for termination of parental rights proceedings and not initial abuse, neglect, and dependency proceedings. See In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) ( ).
In an abuse, neglect, and dependency proceeding, the trial court first determines whether the juvenile met the definition of a neglected juvenile under N.C. Gen. Stat. § 7B-101(15) (2007) at the time the petition was filed. That statute defines a neglected juvenile to be:
A juvenile 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; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
Id. In this case, the trial court made sufficient findings of fact relating to whether Andrew met the statutory definition of a neglected juvenile.
The trial court's inquiry, in these cases, does not, however, end with the definition of a neglected juvenile. Our appellate courts have further held that "[i]n order to adjudicate a child to be neglected, the failure to provide proper care, supervision, or discipline must result in some type of physical, mental, or emotional impairment or a substantial risk of such impairment." In re C.M., 183 N.C. App. 207, 210, 644 S.E.2d 588, 592 (2007). The trial court has "'some discretion in determining whether childrenare at risk for a particular kind of harm given their age and the environment in which they reside.'" Id. (quoting In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999)). Moreover, "[a]n adjudication of neglect may be based on conduct occurring before a child's birth." Id.
In this case, however, the trial court failed to make any finding that respondents' neglect had resulted in any impairment or substantial risk of impairment to Andrew. Because of the absence of such findings, we must remand for further findings of fact on that issue. See In re E.P., M.P., 183 N.C. App. 301, 307, 645 S.E.2d 772, 775-76 (), aff'd per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007).
Respondents contend that we should simply reverse the decision below since the record contains insufficient competent evidence of neglect at the time of the adjudication hearing. Respondents have focused on the wrong time frame. In an initial adjudication proceeding, in contrast to...
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