In Re ENS

595 S.E.2d 167
CourtCourt of Appeals of North Carolina
DecidedMay 4, 2004
DocketCOA03-718
StatusPublished

This text of 595 S.E.2d 167 (In Re ENS) 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 ENS, 595 S.E.2d 167 (N.C. Ct. App. 2004).

Opinion

595 S.E.2d 167 (2004)

In the Matter of E.N.S., DOB: 2/25/02.

No. COA03-718.

Court of Appeals of North Carolina.

May 4, 2004.

*168 W.A. Holland and Jennifer S. O'Connor, Smithfield, for petitioner-appellee Johnston County Department of Social Services.

James D. Johnson, Jr., Benson, for Guardian ad Litem.

Katharine Chester, Siler City, for respondent-appellant.

HUNTER, Judge.

Respondent mother appeals both an adjudication order and disposition order concluding that her minor child, E.S., was a neglected and dependent juvenile whose best interests would be served by remaining in the custody of the Johnston County Department of Social Services ("JCDSS").[1] For the reasons stated herein, we affirm.

On 25 February 2002, respondent, then sixteen years of age, gave birth to E.S. while in the custody of JCDSS. E.S. was her second child, respondent having given birth to another son, R.S., when she was fourteen. At the time of E.S.' birth, respondent was living at PORT, a treatment facility for drug and alcohol abuse. However, PORT did not have accommodations for its patients' minor children, and JCDSS did not have another available placement that could provide the treatment and care respondent and E.S. needed. Therefore, due to respondent's inability to develop a plan of care for E.S., JCDSS took custody of the juvenile on the day he was born. A juvenile petition was filed on that same day alleging E.S.' dependency.

On 28 February 2002, JCDSS amended its juvenile petition to include allegations of neglect in that E.S. "live[d] in an environment injurious to the juvenile's welfare." Facts listed by JCDSS to support the neglect allegations were as follows:

The juvenile's mother, [respondent], is a minor and is currently residing in a residential treatment facility and is not capable of providing care for the juvenile while residing in this facility. [JCDSS] has been working with [respondent] on or about November 1999 regarding [respondent's] first child. [Respondent's] first child was removed from her custody in 11/99. The first child was adjudicated as being neglected and dependent by [respondent] in that [respondent] failed to ensure that the child was properly fed. On or about November 2000, the Court ordered that DSS no longer had to work toward reunifying [respondent] with her oldest child. [Respondent] failed to make significant progress in addressing her neglect issues and she failed to show an interest in providing care for the juvenile. The juvenile's alleged father is unknown and no one has come forward at this time to claim paternity of this juvenile. [Respondent] has stated *169 she does no[t] know the identity of the father. Therefore, this juvenile is an environment injurious to her [sic].

The adjudication hearing was held on 3 April 2002. At the call of the case, respondent informed the trial court that she would consent to an adjudication of dependency only. JCDSS did not accept the stipulation, and the hearing commenced. After the presentation of the evidence, the court concluded that E.S. was a dependent and neglected juvenile. Findings of fact supporting that conclusion included, inter alia:

[Respondent] has been discharged from PORT, the drug and alcohol treatment facility as of March 28, 2002. She has been placed in a therapeutic foster care home. The minor child, [E.S.], continues to reside in a licensed foster care home. The Court finds that he is gaining weight and is appropriately progressing. The JCDSS has continued to explore relative placement without success.
[Respondent] had three weekend visits while at PORT. These weekend visits were attempts to recommit her to the local community and were arranged at her grandmother's home. During all three of these visits she violated curfews by spending the night away from her grandmother's home. The mother also admitted taking a sleeping pill and upon returning to PORT, tested positive for THC. The Court finds from this evidence that the mother had [been] given an opportunity to establish a home with her grandmother and present an understanding [of] following rules in the home so that she could develop the skills to maintain and manage her own child. The mother's failure to stay in the place provided and decision to violate both the curfew and the substance problems constitutes neglect in that the mother has not demonstrated that she can supervise and control an infant. The Court further finds that the child is a dependent child and that the mother has no money, no source of income, no place to live and has demonstrated an inability to remain in placements where she could care for the minor infant.

The case immediately proceeded to disposition whereby the trial court concluded that E.S.' best interests would be served by remaining in the custody of JCDSS. A supervised visitation plan for respondent was also approved that was contingent upon respondent complying with her family services case plan. Respondent and the guardian ad litem appeal.[2]

I.

Respondent argues the trial court's adjudication order should be reversed because she did not neglect E.S. within the meaning of N.C. Gen.Stat. § 7B-101 (2003). The relevant portion of this statute provides:

Neglected juvenile.—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.

N.C. Gen.Stat. § 7B-101(15) (emphasis added). Respondent contends that since E.S. was taken from respondent immediately following his birth and before either of them had left the hospital, the trial court erred in concluding E.S. was living in an environment injurious to the juvenile's welfare. We disagree.

"In a non-jury neglect 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." In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997). Also, in determining whether a parent has neglected a juvenile, a prior adjudication of neglect involving that parent is a relevant factor to consider, and "the trial judge [is afforded] some discretion in determining the weight to be given such evidence." In re Nicholson and Ford, 114 N.C.App. 91, 94, 440 S.E.2d 852, 854 (1994). See also N.C. Gen.Stat. § 7B-101(15).

*170 In the case sub judice, the trial court's adjudication of neglect was based primarily on events that took place before E.S.' birth, in particular, the circumstances regarding respondent's oldest child being adjudicated neglected and dependent on 27 January 2000. The trial court further found that following that prior adjudication, respondent continued to demonstrate behavior that evidenced she would neglect E.S. That evidence established that while in the PORT program and prior to E.S.' birth, respondent was allowed three weekend visits with her grandmother.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Johnston
567 S.E.2d 219 (Court of Appeals of North Carolina, 2002)
In Re Eades
547 S.E.2d 146 (Court of Appeals of North Carolina, 2001)
In Re Humphrey
577 S.E.2d 421 (Court of Appeals of North Carolina, 2003)
In Re Church
525 S.E.2d 478 (Court of Appeals of North Carolina, 2000)
Matter of Helms
491 S.E.2d 672 (Court of Appeals of North Carolina, 1997)
Matter of Nicholson
440 S.E.2d 852 (Court of Appeals of North Carolina, 1994)
In Re Estes
579 S.E.2d 496 (Court of Appeals of North Carolina, 2003)
In Re McLean
521 S.E.2d 121 (Court of Appeals of North Carolina, 1999)
Caldwell County Department of Social Services v. Joplin
525 S.E.2d 478 (Court of Appeals of North Carolina, 2000)
In re E.N.S.
595 S.E.2d 167 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
595 S.E.2d 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ens-ncctapp-2004.