An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-237
Filed: 1 September 2015
Brunswick County, Nos. 14 JA 85-87
IN THE MATTER OF: D.H., J.H., J.H.
Appeal by respondent from order entered 25 November 2014 by Judge Sherry
Dew Prince in Brunswick County District Court. Heard in the Court of Appeals 17
August 2015.
Elva L. Jess, for petitioner-appellee Brunswick County Department of Social Services.
McGuire Woods LLP, by T. Richmond McPherson and Amanda W. Abshire, for Guardian ad Litem.
Robert W. Ewing for respondent-appellant mother.
TYSON, Judge.
Mary F. Harvey, (“Respondent-mother”), appeals from the trial court’s order
adjudicating her minor children D.H., Ja. H., and Jo. H. (collectively, “the children”),
as neglected and dependent juveniles and ordering the children to remain in the
physical and legal custody of the Brunswick County Department of Social Services
(“DSS”). We affirm.
I. Background IN RE: D.H., J.H., J.H.
Opinion of the Court
Respondent-mother’s three sons were born in 2003, 2005, and 2007.
Respondent-mother was diagnosed with bipolar disorder and post-traumatic stress
disorder, and takes daily medications. Each of the three children was diagnosed with
mental health issues and requires significant drug regimens. Respondent-father was
also diagnosed with significant mental health issues. In the adjudication order, the
trial court found “[t]here is a level of disfunction [sic] in the household as a result of
the mental illnesses with which each family member has been diagnosed.” Each child
exhibits aggressive behaviors.
School personnel stated concerns with the children’s cleanliness and attire.
Their clothes often did not fit and they arrived to school with dirt on their hands and
faces. School personnel were also concerned whether the children received adequate
food at home. The children were provided food at school. Each child was sent home
after school on Fridays with a backpack of food for the weekend.
Beginning in April of 2014, an organization named Helping Hands began
providing intensive in-home services to the family to address the children’s aggressive
behaviors. Helping Hands staff was concerned about high dosages of medications
each family member had been prescribed. While Helping Hands was involved with
the family, the trial court found little improvement was made in the manner the
parents handled the children’s behaviors. On one occasion, Ja. H. had cut his finger
on a broken window. The bandage on the bloody finger was unclean. The social
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worker assigned to the case visited the family on three dates in June of 2014. The
children were dirty and presented with pungent body odor.
On 9 June 2014, Respondent-mother executed a verified complaint seeking a
domestic violence protective order against the children’s father. She alleged the
father had choked her and all the children were present during the altercation.
Respondent-mother failed to appear in court to prosecute the action.
A social worker visited the home on 17 June 2014. Ja. H. was vomiting, and
the vomit appeared to contain blood. Respondent-mother stated that she would call
the doctor the following day. The social worker called 911 and arranged for the child
to be transported to the hospital. While the social worker was present at the home,
D.H.’s behavior was erratic. He picked up a tire iron and approached the social
worker. He put a knife to his chest and stated that he was going to kill himself.
The court found Respondent-mother “incapable of dealing with the children’s
behaviors” and she “did not have any control.” The social worker “had to control the
behavior that each child presented with and the illness that [Ja. H.] had.” Evidence
showed the children were extremely dirty and smelled “as if something was rotten.”
They were subsequently taken from the home and placed in the custody of DSS.
In its adjudication order, the trial court made the following unchallenged
finding:
[Respondent-mother] was not able to appropriately provide for her children’s care on June 17 and presented with
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challenges on numerous other occasions. She did not address their medical needs. She did not address their needs for appropriate hygiene. She has failed to properly administer prescriptions, choosing to give them medications “early,” she did not possess appropriate parenting skills to deal with [Ja. H.]’s aggressive behaviors, she did not provide necessary medical care. The children were exposed to domestic violence and their behaviors were exacerbated following the incident as shown in school following the incident.
On 25 November 2014, the trial court entered an order adjudicating the
children neglected and dependent. The trial court also entered a separate disposition
order, which kept the children in the legal and physical custody of DSS, with physical
placement in its discretion. Respondent-mother timely appealed from the
adjudication and disposition orders. The father did not appeal.
II. Issues
Respondent-mother does not challenge the trial court’s conclusion that the
children are neglected. She argues the trial court erred by adjudicating her children
dependent. Respondent-mother contends that (1) the evidence presented by DSS was
only sufficient for an adjudication of neglect, but not dependency; and (2) the trial
court failed to find she lacked availability of an alternative child care arrangement.
III. Standard of Review
We review an adjudication of dependency 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 Gleisner, 141 N.C. App. 475,
-4- IN RE: D.H., J.H., J.H.
480, 539 S.E.2d 362, 365 (2000). Unchallenged findings of fact are deemed to be
supported by the evidence and are binding on appeal. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). The conclusion that a juvenile is dependent is
reviewed de novo. In re V.B., ___ N.C. App. ___, ___, 768 S.E.2d 867, 868 (2015).
IV. Dependency
A dependent juvenile is “[a] juvenile in need of assistance or placement because
. . . the juvenile’s parent, guardian, or custodian is unable to provide for the juvenile’s
care or supervision and lacks an appropriate alternative child care arrangement.”
N.C. Gen. Stat. § 7B-101(9) (2013). “In determining whether a juvenile is dependent,
the trial court must address both (1) the parent’s ability to provide care or
supervision, and (2) the availability to the parent of alternative child care
arrangements.” In re T.B., C.P., & L.P., 203 N.C. App. 497, 500, 692 S.E.2d 182, 184
(2010) (citation and internal quotation marks omitted).
A. Inability to Provide Care or Supervision
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-237
Filed: 1 September 2015
Brunswick County, Nos. 14 JA 85-87
IN THE MATTER OF: D.H., J.H., J.H.
Appeal by respondent from order entered 25 November 2014 by Judge Sherry
Dew Prince in Brunswick County District Court. Heard in the Court of Appeals 17
August 2015.
Elva L. Jess, for petitioner-appellee Brunswick County Department of Social Services.
McGuire Woods LLP, by T. Richmond McPherson and Amanda W. Abshire, for Guardian ad Litem.
Robert W. Ewing for respondent-appellant mother.
TYSON, Judge.
Mary F. Harvey, (“Respondent-mother”), appeals from the trial court’s order
adjudicating her minor children D.H., Ja. H., and Jo. H. (collectively, “the children”),
as neglected and dependent juveniles and ordering the children to remain in the
physical and legal custody of the Brunswick County Department of Social Services
(“DSS”). We affirm.
I. Background IN RE: D.H., J.H., J.H.
Opinion of the Court
Respondent-mother’s three sons were born in 2003, 2005, and 2007.
Respondent-mother was diagnosed with bipolar disorder and post-traumatic stress
disorder, and takes daily medications. Each of the three children was diagnosed with
mental health issues and requires significant drug regimens. Respondent-father was
also diagnosed with significant mental health issues. In the adjudication order, the
trial court found “[t]here is a level of disfunction [sic] in the household as a result of
the mental illnesses with which each family member has been diagnosed.” Each child
exhibits aggressive behaviors.
School personnel stated concerns with the children’s cleanliness and attire.
Their clothes often did not fit and they arrived to school with dirt on their hands and
faces. School personnel were also concerned whether the children received adequate
food at home. The children were provided food at school. Each child was sent home
after school on Fridays with a backpack of food for the weekend.
Beginning in April of 2014, an organization named Helping Hands began
providing intensive in-home services to the family to address the children’s aggressive
behaviors. Helping Hands staff was concerned about high dosages of medications
each family member had been prescribed. While Helping Hands was involved with
the family, the trial court found little improvement was made in the manner the
parents handled the children’s behaviors. On one occasion, Ja. H. had cut his finger
on a broken window. The bandage on the bloody finger was unclean. The social
-2- IN RE: D.H., J.H., J.H.
worker assigned to the case visited the family on three dates in June of 2014. The
children were dirty and presented with pungent body odor.
On 9 June 2014, Respondent-mother executed a verified complaint seeking a
domestic violence protective order against the children’s father. She alleged the
father had choked her and all the children were present during the altercation.
Respondent-mother failed to appear in court to prosecute the action.
A social worker visited the home on 17 June 2014. Ja. H. was vomiting, and
the vomit appeared to contain blood. Respondent-mother stated that she would call
the doctor the following day. The social worker called 911 and arranged for the child
to be transported to the hospital. While the social worker was present at the home,
D.H.’s behavior was erratic. He picked up a tire iron and approached the social
worker. He put a knife to his chest and stated that he was going to kill himself.
The court found Respondent-mother “incapable of dealing with the children’s
behaviors” and she “did not have any control.” The social worker “had to control the
behavior that each child presented with and the illness that [Ja. H.] had.” Evidence
showed the children were extremely dirty and smelled “as if something was rotten.”
They were subsequently taken from the home and placed in the custody of DSS.
In its adjudication order, the trial court made the following unchallenged
finding:
[Respondent-mother] was not able to appropriately provide for her children’s care on June 17 and presented with
-3- IN RE: D.H., J.H., J.H.
challenges on numerous other occasions. She did not address their medical needs. She did not address their needs for appropriate hygiene. She has failed to properly administer prescriptions, choosing to give them medications “early,” she did not possess appropriate parenting skills to deal with [Ja. H.]’s aggressive behaviors, she did not provide necessary medical care. The children were exposed to domestic violence and their behaviors were exacerbated following the incident as shown in school following the incident.
On 25 November 2014, the trial court entered an order adjudicating the
children neglected and dependent. The trial court also entered a separate disposition
order, which kept the children in the legal and physical custody of DSS, with physical
placement in its discretion. Respondent-mother timely appealed from the
adjudication and disposition orders. The father did not appeal.
II. Issues
Respondent-mother does not challenge the trial court’s conclusion that the
children are neglected. She argues the trial court erred by adjudicating her children
dependent. Respondent-mother contends that (1) the evidence presented by DSS was
only sufficient for an adjudication of neglect, but not dependency; and (2) the trial
court failed to find she lacked availability of an alternative child care arrangement.
III. Standard of Review
We review an adjudication of dependency 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 Gleisner, 141 N.C. App. 475,
-4- IN RE: D.H., J.H., J.H.
480, 539 S.E.2d 362, 365 (2000). Unchallenged findings of fact are deemed to be
supported by the evidence and are binding on appeal. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). The conclusion that a juvenile is dependent is
reviewed de novo. In re V.B., ___ N.C. App. ___, ___, 768 S.E.2d 867, 868 (2015).
IV. Dependency
A dependent juvenile is “[a] juvenile in need of assistance or placement because
. . . the juvenile’s parent, guardian, or custodian is unable to provide for the juvenile’s
care or supervision and lacks an appropriate alternative child care arrangement.”
N.C. Gen. Stat. § 7B-101(9) (2013). “In determining whether a juvenile is dependent,
the trial court must address both (1) the parent’s ability to provide care or
supervision, and (2) the availability to the parent of alternative child care
arrangements.” In re T.B., C.P., & L.P., 203 N.C. App. 497, 500, 692 S.E.2d 182, 184
(2010) (citation and internal quotation marks omitted).
A. Inability to Provide Care or Supervision
Respondent-mother asserts she was able to provide for the children’s care and
supervision. She argues the trial court’s findings may show evidence of neglectful
parenting, but fail to support the conclusion that she was unable to care for or
supervise the children. She contends she did not exhibit a complete inability to
parent. She asserts evidence that a parent demonstrates some care for the child may
support an adjudication of neglect, but not dependency. She also asserts evidence
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that a parent demonstrates “no ability to care or supervise the child” is required to
support an adjudication of dependency.
The trial court’s unchallenged findings of fact demonstrate Respondent-mother
was unable to properly care for the children, at least during a period of time preceding
DSS’s removal of the children from her care. The trial court’s findings demonstrate
the children suffer from mental health issues and aggressive behaviors, and are
difficult to manage. When the social worker visited the home, D.H. engaged in
dangerous and erratic behaviors. Ja. H. was ill and vomiting blood, which
Respondent-mother failed to timely address. Because Respondent-mother was
“incapable of dealing with the children’s behaviors,” the social worker intervened and
dealt with Ja. H.’s illness and D.H.’s behavior. The trial court properly concluded
Respondent-mother, at least during this period of time, was unable to provide proper
care and supervision of the children under N.C. Gen. Stat. § 7B-101(9).
B. Alternative Childcare Arrangement
Respondent-mother next contends the trial court failed to find she lacked the
availability of an alternative childcare arrangement. The adjudication order
explicitly incorporated the trial court’s “pre-hearing order,” which was entered after
a hearing to establish the trial court’s jurisdiction. The order included a finding that
“[t]here are no other family members who can serve as placement options for the
minor children.” This finding was supported by Respondent-mother’s testimony at
-6- IN RE: D.H., J.H., J.H.
the jurisdictional hearing that she was unable to identify any family members as
alternative caregivers. This finding is sufficient to establish that Respondent-mother
lacked the availability of appropriate alternative childcare. See In re T.H., ___ N.C.
App. ___, ___, 753 S.E.2d 207, 215 (2014) (trial court’s finding that “[a]t the time that
the juvenile petition was filed, there were no appropriate family members
immediately available to care for the children long-term” was sufficient to satisfy the
second part of the dependency definition). Since the trial court made sufficient
findings as to both parts of the definition of dependency, the court properly concluded
the children were dependent juveniles. This argument is overruled.
V. Disposition
Respondent-mother argues the trial court erred by placing the children in DSS
custody without making sufficient findings of fact to support that placement. We
disagree.
“All dispositional orders of the trial court after abuse, neglect and dependency
hearings must contain findings of fact based upon the credible evidence presented at
the hearing.” In re Weiler, 158 N.C. App. 473, 477, 581 S.E.2d 134, 137 (2003). “The
district court has broad discretion to fashion a disposition from the prescribed
alternatives in N.C. Gen. Stat. § 7B-903(a), based upon the best interests of the child.”
In re B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008).
-7- IN RE: D.H., J.H., J.H.
N.C. Gen. Stat. § 7B-903 permits the trial court to place “any juvenile who
needs more adequate care or supervision or who needs placement . . . in the custody
of the department of social services” as a disposition after a neglect and dependency
adjudication. N.C. Gen. Stat. § 7B-903(a)(2) (2013). This Court has held a finding
that the “juvenile . . . needs more adequate care or supervision or needs placement”
is a “precondition” to considering this disposition as well as the other dispositional
alternatives outlined in N.C. Gen. Stat. § 7B-903(a). In re S.H., 217 N.C. App. 140,
145, 719 S.E.2d 157, 160 (2011).
Here, the trial court found “[a]lthough the boys [sic] behaviors have improved,
there remain issues with regard to discipline” and “[t]hat the juveniles cannot be
returned to the legal custody of either parent today, however it is possible that they
may be returned within the next six months, provided the parents meet the goals and
objectives of the case plan and present with appropriate housing.” In addition, the
court incorporated as findings the reports submitted by DSS and the guardian ad
litem, including the DSS statement that “[r]eturn to the parents at this time would
be inconsistent with the juvenile[s’] health, safety, and need for a safe, permanent
home.”
These findings, which are unchallenged and binding on appeal, show the trial
court determined the children needed placement outside the home, such that the
court could properly consider the dispositional alternatives in N.C. Gen. Stat. § 7B-
-8- IN RE: D.H., J.H., J.H.
903(a). We sustain the trial court’s decision to maintain placement of the children
with DSS at that time, pending further review and orders.
VI. Conclusion
The trial court made sufficient findings to establish Respondent-mother was
unable to provide for the children’s care and supervision and lacked an alternative
childcare arrangement. The court properly concluded the children were dependent.
The trial court’s adjudication and disposition orders are affirmed.
AFFIRMED.
Judges STROUD and DILLON concur.
Report per Rule 30(e).
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