In Re CM

678 S.E.2d 794
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2009
DocketCOA08-1551
StatusPublished

This text of 678 S.E.2d 794 (In Re CM) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CM, 678 S.E.2d 794 (N.C. Ct. App. 2009).

Opinion

678 S.E.2d 794 (2009)

In The Matter of C.M. and M.H.M.

No. COA08-1551.

Court of Appeals of North Carolina.

July 7, 2009.

*795 Staff Attorney Elizabeth Kennedy-Gurnee, for Cumberland County Department of Social Services.

Attorney Advocate Beth A. Hall for guardian ad litem.

Janet K. Ledbetter, Hillsborough, for respondent-father appellant.

Robin E. Strickland, Raleigh, for respondent-mother appellant.

HUNTER, JR., ROBERT N., Judge.

Respondent-father appeals from an adjudication and disposition order entered 22 July 2008 adjudicating his minor child M.H.M. abused and neglected. Respondent-father and respondent-mother appeal from the same order adjudicating their minor child C.M. neglected. We affirm the trial court's adjudication of M.H.M. as abused, in that a parent or other person responsible for the juvenile's care inflicted or allowed to be inflicted upon the juvenile a serious physical injury by other than accidental means and created or allowed to be created a substantial risk of serious physical injury to the juvenile by other than accidental means; and we affirm the adjudication of M.H.M. and C.M. as neglected, in that they lived in an environment injurious to their welfare and did not receive proper care, supervision, or discipline from their parent, guardian, custodian, or caretaker. Because the trial court erred by not addressing visitation in its Adjudication and Disposition Order, we remand for written disposition of that issue.

I. Facts

Two children C.M. and M.H.M. (hereinafter referred to by the pseudonyms "Alexander" and "Tess") are the juveniles whose welfare is involved in this appeal. Both have the same father (hereinafter referred to by the pseudonym "Phillip"), who is one respondent. Alexander's mother, wife of Phillip (hereinafter referred to as "Olympia," also a pseudonym) was not a party to this proceeding as explained infra. Tess's mother (hereinafter referred to as "Nicei," a pseudonym) is also a respondent. During the times relevant to the instant proceedings, Alexander and Tess resided in Nicei's dwelling.

Phillip married Olympia in 2002. Olympia, who is a citizen and resident of the United Kingdom, was deported from the United States in January 2007 and barred from return for at least ten years. Upon being deported, she left Alexander and her teenaged daughter from a prior relationship behind. Phillip became responsible for both. His wife's daughter went to school each day, but Alexander needed a caretaker.

In September 2003, during Phillip's marriage to Olympia, he picked up Nicei from the side of the road as she was walking home from the store. Phillip, who was more than twenty years older than Nicei, had an ongoing affair with her and moved her into his *796 mother's house. When Phillip left Nicei at his mother's house, he would go home to the house he shared with Olympia.

Olympia gave birth to Alexander in September 2005. Nicei gave birth to Tess in December 2005 and obtained public housing for herself and Tess. She believed Phillip did not join them because it would violate public housing rules. Nicei did not know that Phillip was married to Olympia, and Olympia did not know about Nicei; they found out about one another just before Olympia was deported. Phillip then told Nicei that he had a son, Alexander, Alexander's mother had been deported, and he needed someone to take care of Alexander. He did not tell her that he was still married to Olympia.

Nicei cared for Alexander every weekday and sometimes on the weekends as well. She considered herself Alexander's "stepmom" and treated him like he was her "own son." While Phillip hired lawyers to attempt to get his wife back, he kept Nicei "on the back burner" and busy at the apartment caring for his children. She cooked, cleaned, and did laundry for them.

Nicei lost her public housing due to Phillip coming in and out of her home. Phillip then found a house that he rented. Because Olympia was out of the country, Phillip was able to live with Nicei and two of his children. He sent Olympia's daughter to live with her father.

At the time of the underlying proceedings, Phillip admitted to having fathered sixteen children by various women. He also admitted to using aliases for deceptive purposes such as business dealings and concealing his identity from law enforcement. The record does not disclose Phillip's parental status with his other fourteen offspring.

Nicei was unemployed, very dependent on Phillip, and willing to lie to protect him. She had no job, driver's license, or house phone, and she had to rely on a cell phone, on which Phillip placed minutes for her use.

In August 2007, Nicei made statements under oath in order to obtain a Domestic Violence Protective Order against Phillip She wrote: "From December the 2nd, 2003, to August the 19th, 2007, [Phillip] would always hit me when he was mad." In the same document she explained that she was scared for her life and that he would leave marks on her. As to Alexander, Nicei wrote that "[Phillip] hits his son and leaves marks." Based on that document, she was issued an ex-parte Domestic Violence Order of Protection. In addition to obtaining the protective order, she sought shelter in February 2008.

On 4, 6, and 9 August 2007, Alexander was taken to the Emergency Room at Cape Fear Valley Medical Center ("CFVMC"). On each occasion, Phillip drove Nicei to the hospital with Alexander. Rather than going in with them, Phillip instructed Nicei to take Alexander inside the hospital, since Olympia had Medicaid for Alexander, and hospital officials would not know Nicei was not Alexander's mother.

On 4 August 2007, Alexander was feverish, had a sore in his mouth, and had stomach pain. He was diagnosed with stomatitis, given medication, and released. On 6 August 2007, Alexander's fever and stomach pain continued. He was diagnosed with herpangina, given medication, and released. On 9 August 2007, Alexander was again seen for his stomach pain. He also had a lump on the back of his head and his hair was noticeably sparse. He was diagnosed with herpangina, tinea capitis, and scalp hematoma. During this visit, Nicei advised the Emergency Room physician that Alexander had fallen a couple of days earlier. Alexander was again released with medications.

On 18 August 2007, Phillip took Alexander to the races while Nicei stayed home with Tess. He returned late that evening, and Alexander would not easily go to bed. Phillip slapped Alexander's head and told him to "shut the f__ up."

The next day, Phillip, Nicei, Alexander, and Tess left the house to go grocery shopping, but Alexander did not want to go. He was dropped off at a "cousin['s]" house. After grocery shopping, they picked up Alexander, stopped by McDonald's for lunch, and went home.

During the evening hours, Nicei was cooking, cleaning, and washing clothes as well as caring for Alexander and Tess, who were *797 asleep on the couch. She noticed that Alexander was having difficulty breathing. When she tried to awaken him, he was unresponsive. Nicei made two calls to 911. The first call came in at 7:22 p.m. and the second at 7:29 p.m., a seven minute lapse. During the first call, Nicei told the 911 operator that she had a question and stated: "I don't know if it's an emergency, but what if a person is breathing and his eye ...

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Bluebook (online)
678 S.E.2d 794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cm-ncctapp-2009.