Powers v. Powers
| Decision Date | 07 July 1998 |
| Docket Number | No. COA97-1146.,COA97-1146. |
| Citation | 502 S.E.2d 398,130 NC App. 37 |
| Parties | Angela P. POWERS, Plaintiff, v. Lowell Gary POWERS, Defendant. In the Matter of Andrea Q. POWERS (DOB: 10/31/81), Kayla D. Powers (DOB: 09/08/85), Pearson Dylan Powers (DOB: 06/27/90), Michael R. Finley (DOB: 07/12/93). |
| Court | North Carolina Court of Appeals |
Grier J. Hurley, Jefferson, for Ashe County Department of Social Services, petitioner-appellee.
John W. Gambill, Wilkesboro, for Lowell Gary Powers, respondent-appellant.
Kilby, Hodges and Hurley by Sherrie R. Hodges, Jefferson, for Herman Finley, respondent-appellant.
Don Willey, Jefferson, for Angela Powers, respondent-appellant.
Angela P. Powers ("Angela") and Lowell Gary Powers ("Lowell") were married on 13 December 1978 and separated on 17 November 1989. Three children were born to their marriage: Andrea Q. Powers, born 31 October 1981; Kayla D. Powers, born 8 September 1985; and Pearson Dylan Powers, born 27 June 1990 (collectively "Powers children"). The Powers children lived with their mother after the separation of their parents. Angela began living with Herman Finley ("Finley") about 6 months after her separation from Lowell. Michael R. Finley ("Michael") was born to Angela and Herman on 12 July 1993.
Angela filed an action in 1993 seeking custody of the Powers children. A hearing was held in September 1993. The trial court found that both Angela and Lowell were disabled and were receiving Social Security Disability Insurance benefits. The court further found that Angela was convicted of driving while impaired in 1989, and the charge involved a wreck with both Andrea and Kayla in the automobile at the time of the accident. In addition, Angela had been the victim of domestic violence by Lowell during their marriage.
At the time of the custody hearing, Angela was living with Finley, who was also disabled and receiving Social Security Disability Insurance benefits. Finley had been convicted of various drug-related offenses in 1984 and received an active two-year prison sentence. After a full hearing, by order dated 15 September 1993, the district court awarded custody of the Powers children to the mother on certain specific conditions, including that: (1) she remain absolutely sober for 6 months, and possess no alcoholic beverages during that time; (2) she participate in a substance abuse assessment and comply with the recommended treatment program; and (3) Finley move out of her residence and remain out for six months. Lowell was awarded specified visitation privileges with the children. Neither party appealed from the entry of that order.
Since February 1990, twenty-four reports about the care of the Powers children were made to the Ashe County Department of Social Services ("DSS"). Seventeen reports were directed against Angela, and seven of those reports were substantiated based on her lack of supervision, alcoholism and emotional abuse or neglect. Two of the four reports against Lowell were substantiated, based on physical abuse of Pearson and emotional abuse of all the Powers children. None of the three reports against Finley were substantiated.
On 8 May 1996, DSS filed juvenile petitions alleging that all four of Angela's children were abused and neglected juveniles. As to Andrea and Kayla, the petitions alleged that: Angela was unable to care for her children due to her alcoholism; Lowell was uncooperative in arranging alternate care for the children; Angela and Lowell were engaged in a continual battle over custody of the children, resulting in emotional damage to the children; Lowell used the children to retaliate against the mother; and Andrea and Kayla were receiving treatment for emotional damage caused by their parents' actions. Allegations in the petition involving Pearson were similar, except it was not alleged that Pearson was receiving treatment for emotional problems. It was alleged, however, that Lowell had used excessive physical discipline on Pearson, resulting in bruising on his face in the shape of a hand. As to Michael, in addition to allegations about his mother's alcohol problems, it was alleged that he was neglected because he was living in an environment injurious to his welfare.
On 2 May 1996, Lowell filed a motion in the custody case alleging that: Angela Powers had continued to drink in the presence of the children in violation of the court's orders; Angela was placed in the local detoxification center on 12 April 1996; Angela had not married Finley, but had continued to reside with him; and Finley uses alcohol and intravenous drugs in the presence of the children. Lowell asked that custody of the Powers children be placed with him.
Pending the hearing of the juvenile petitions, the trial court awarded DSS legal custody of the children, while Angela retained physical custody of the four children. On 3 July 1996, an emergency nonsecure order was issued placing the children in the physical custody of DSS, due to new petitions alleging that Angela was intoxicated while caring for her children on that same day. The new petitions were filed on 5 July 1996, and amended petitions were filed on 9 July 1996.
A seven-day custody hearing was held on 8 July 1996, as the result of which DSS was ordered to do a home study of Marsha Owens, the half-sister of the Powers children. Based on the home study, the Powers children were placed in the home of Marsha Owens on 2 August 1996. The four juvenile petitions and the motion in the custody case were consolidated for hearing. Hearings were held on 27 September 1996, 4 November 1996, 3 January 1997, and 7 February 1997.
At the 7 February 1997 hearing, the Powers children were adjudicated to be abused and neglected, and Michael was adjudicated to be neglected. The legal and physical custody of all four children was placed with DSS. Angela, Lowell, and Herman all appeal.
Angela and Lowell contend on appeal that: (I) there was insufficient clear and convincing evidence from which the trial court could find the Powers children to be abused and neglected, and further, that the petitions should have been dismissed. Angela also contends that: (II) the admission of certain evidence relating to her alleged alcohol abuse was reversible and prejudicial error. Herman contends that: (III) DSS did not offer clear and convincing evidence to support a finding that Michael was a neglected juvenile.
Petitioner DSS contends the Powers children are abused juveniles within the meaning of N.C. Gen.Stat. § 7A-517(1)(d) (Cum.Supp.1997) because their parents, Angela and Lowell, have created or allowed to be created "serious emotional damage to the juvenile[s]" due to the parents' longstanding, acrimonious marital dispute. The parents contend that none of the Powers children have suffered "serious emotional damage" within the meaning of the statute.
A psychologist testified that Andrea had a diagnosis of "Chronic Adjustment Disorder due to her symptoms of defiance, sadness, depression and suicidal thoughts." In the expert opinion of the witness, Andrea's condition was "caused from the constant conflict between the parents and the minor child having witnessed physical and verbal confrontations between the mother, Angela Powers, and the father, Lowell Powers." A second psychologist testified that she diagnosed Kayla with "Chronic Adjustment Disorder," which she felt was "clearly linked to the family situation in that Kayla has gastric distress with increased family conflict and arguments between parents." Kayla's school counselor testified about the child becoming physically sick when her father would telephone her at school. In its detailed order relating to Pearson, the trial court recited its findings with regard to the conditions from which Andrea and Kayla were suffering, and concluded that Pearson was also an abused child since his parents "created or allowed to be created serious emotional damage" to him.
There are ample findings to support the trial court's conclusions that Andrea and Kayla are abused juveniles within the above definition. Andrea exhibited symptoms of depression and had entertained suicidal thoughts. In the seventh grade, Andrea was described as "energetic, bubbly and the class clown." She was also a cheerleader. During the eighth grade, however, as the conflict between her parents worsened, Andrea quit cheerleading, became less involved in school activities, was "no longer outgoing and was more reserved." Her school counselor testified that Andrea "did not smile and seemed to lack the confidence in herself that she had in the 7th grade." In addition to the testimony of her school counselor, Kayla testified about the severe anxiety her parents' actions caused her. She testified that her stomach hurt "when she got upset and that her parents fighting caused it to hurt." She further testified that when she became upset, she would sometimes get physically sick on her stomach in the classroom. At the time of the hearing, Kayla had been taking Zantac to "make her stomach feel better." Kayla also testified that, since her removal from her mother's home, her stomach does not hurt as often. The findings of the trial court are based on competent evidence and support the conclusions that both Andrea and Kayla are abused juveniles within the meaning of N.C. Gen.Stat. § 7A-517(1)(d). There are, however, no findings with regard to Pearson having sustained "severe emotional damage" and the determination that he is an abused juvenile must be reversed.
As to the allegations that the children are neglected, the petitioner's allegations center around Angela's continuing alcohol...
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...severe or dangerous conduct or a pattern of conduct either causing injury or potentially causing injury to the juvenile. For example, in Powers, the Court of Appeals ultimately adjudicated four children neglected based on clear and convincing evidence of the mother's severe abuse of alcohol......
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