In re J.C.

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2014
• Docket: 13-848
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA13-848 NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

IN THE MATTER OF: J.C., J.J., AND D.M. Minor Children Wake County Nos. 12 JA 320-22

Appeal by respondent from order entered 3 May 2013 by Judge

Monica Bousman in Wake County District Court. Heard in the

Court of Appeals 10 December 2013.

Roger A. Askew for Wake County Department of Human Services, petitioner-appellee.

Katherine Jones for guardian ad litem.

Jeffrey L. Miller for respondent-appellant.

McCULLOUGH, Judge.

Respondent-mother appeals from an order adjudicating her

three children as neglected juveniles. We affirm.

In March 2012 Wake County Human Services (“WCHS”) received

a report that respondent’s two young children at that time, J.C.

(hereinafter “Jay”) and J.J. (hereinafter “Jon”) were neglected

and abused juveniles. WCHS investigated the report and

determined on 28 April 2012 that respondent and her two sons -2- were in need of services. Respondent gave birth to a third

child, D.M. (hereinafter “Don”), on 16 June 2012. Two days

later, WCHS received a report alleging Don was neglected because

he and respondent tested positive for marijuana at his birth.

On 21 November 2012, WCHS filed a juvenile petition alleging

that the three boys were neglected juveniles. The court

conducted a hearing on 14 March 2013 and adjudicated the boys as

neglected.

The court’s findings of fact indicate that during the

investigation of the report received in March 2012, WCHS learned

that respondent was pregnant and without stable housing and

employment. Because of her pregnancy, respondent was not taking

medication she had been prescribed for anxiety, depression and

bi-polar disorder. She was leaving the children with her family

members while she was at times sleeping in a car during nights.

From 22 May 2012 to 6 June 2012, the whereabouts of

respondent were unknown. On 7 June 2012, a service plan was

developed which included provisions for housing, employment,

substance abuse assessment, mental health services, medication

management, and a safety resource plan for the children.

Respondent agreed to place the children with a “safety resource -3- person” in South Carolina and not to remove the children from

this placement without first contacting WCHS.

On 18 June 2012, WCHS received a report concerning the

birth of Don and his testing positive for marijuana. WCHS met

with respondent at the hospital and entered into a safety

agreement with respondent in which she agreed to place Don with

a safety resource person. Respondent selected a maternal cousin

to be the safety resource person.

WCHS was unable to locate respondent from 19 to 25 June

2012, when WCHS was able to meet with respondent and her

maternal cousin at the agency. WCHS attempted to set up

services to assist respondent but respondent could not be

located after this meeting until late July 2012.

On 20 July 2012, WCHS learned that respondent had removed

Jay and Jon from their safety resource placement and placed them

with their maternal great aunt without seeking prior approval

from WCHS. Respondent met with WCHS on 25 July 2012 and

discussed her service plan. WCHS attempted to implement the

service plan but respondent failed to maintain contact with the

agency. From 5 September 2012 through 3 October 2012, WCHS did

not know respondent’s whereabouts and neither safety resource -4- placement could provide sufficient information to enable WCHS to

locate respondent.

WCHS met with respondent on 3 October 2012 and discussed

respondent’s lack of progress in complying with the service

plan. Respondent informed WCHS that she intended to move with

Don to Franklin County. WCHS approved the move to Franklin

County. Respondent and Don moved into the home on 10 October

2012 but moved out on 19 October 2012. WCHS first learned that

respondent and Don had moved when it attempted to contact

respondent at this home on 24 October 2012. Respondent informed

WCHS on 31 October 2012 that she intended to move to Harnett

County. Respondent refused to tell WCHS where she and Don were

located or provide information about the child.

The court also found that during the time WCHS was involved

in the case, respondent had not complied with services, and had

not maintained contact with WCHS or provided money, food,

clothing, or other necessities to care for her children.

Respondent had not attended any of the children’s medical

appointments. Jay and Jon both needed physical examinations and

vaccinations. Jay had severe tooth decay. Don had not received

any medical care since his release from the hospital after his

birth. -5- After not having contact from respondent since 7 November

2012, WCHS filed a juvenile petition on 21 November 2012

alleging the children were neglected and dependent juveniles.

At the time of the adjudication hearing, respondent was

incarcerated. According to a court report incorporated by

reference into the court’s order, respondent was arrested on 11

February 2013 and charged with murder. She was denied bail at

her first court appearance on 12 February 2013.

Respondent informed the court during the adjudication

hearing that from July to November 2012, she gave money to the

maternal great aunt for the care of the children although she

was not able to do it every month. She also stated she moved

out of the Franklin County home because it was infested with

roaches and bugs. She conceded that she did not notify WCHS of

her move. She also acknowledged that she moved to Harnett

County in order to avoid WCHS and that she failed to inform WCHS

of her whereabouts because she was afraid WCHS would come and

take her baby from her. She also confessed that she avoided

taking telephone calls from the social worker. She stated that

she did not visit her older children because she was told by the

social worker that she could not visit them. She also told the -6- court that she does not desire visitations with the children

while she is incarcerated.

Based upon these findings, the court concluded that the

three children are neglected juveniles as defined by N.C. Gen.

Stat. § 7B-101(15) in that the children do not receive proper

care and supervision from their parents and live in an

environment injurious to their welfare. The court ordered that

the children remain in the legal custody of WCHS. Respondent

filed notice of appeal on 15 May 2013.

“The allegations in a petition alleging that a juvenile is

abused, neglected, or dependent shall be proved by clear and

convincing evidence.” N.C. Gen. Stat. § 7B-805 (2011). In

reviewing an order adjudicating a child as neglected, this Court

determines (1) whether the findings of fact are supported by

clear and convincing evidence, and (2) whether the conclusions

of law are supported by the findings of fact. In re Gleisner,

141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). Our review

of a conclusion of law is de novo. In re D.H., 177 N.C. App.

700, 703, 629 S.E.2d 920, 922 (2006). Under a de novo standard

of review, we can consider a conclusion of law anew and freely

substitute our judgment for that of the trial court. In re

A.K.D., ___ N.C. App. ___, ___, 745 S.E.2d 7, 8 (2013). The -7- determination of whether a child is neglected requires the

application of legal principles to a set of facts and is

therefore a conclusion of law. In re Helms, 127 N.C. App. 505,

510, 491 S.E.2d 672, 675-76 (1997).

Respondent contends certain findings of fact are not

actually findings of fact but recitations of evidence, and thus

do not constitute proper findings of fact which can support the

court’s conclusions of law and adjudication. An order must

contain findings as to “the ultimate facts established by the

evidence, admissions and stipulations which are determinative of

the questions involved in the action and essential to support

the conclusions of law reached.” In re Anderson, 151 N.C. App.

94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted).

“Ultimate facts are the final resulting effect reached by

processes of logical reasoning from the evidentiary facts.”

Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App.

476, 479, 366 S.E.2d 705, 707 (1988) (citation omitted).

Findings of fact “should resolve the material disputed issues,

or if the trial court does not find that there was sufficient

credible evidence to resolve an issue, should so state.”

Carpenter v. Carpenter, ___ N.C. App. ___, ___, 737 S.E.2d 783,

790 (2013) (citation omitted). -8- We have examined the findings of fact which respondent

claims are recitations of evidence. It is true that the court

used language such as respondent “told the Court” or “stated”

certain statements within these findings of fact. However,

these findings challenged by respondent only comprise seven of

the court’s forty findings of fact. Moreover, the statements

contained within these seven findings of fact do not materially

conflict with the court’s other findings of fact or concern a

material disputed issue. As an example, in challenged finding

number 11, the court found that respondent “told the Court” that

from July to November 2012, she remained in contact with her

maternal aunt and provided the maternal aunt with money to care

for the children but not every month. Also within finding of

fact number 11, the court wrote that respondent “stated” she did

not visit her two older children because the social worker told

her she could not visit them. These findings or statements do

not conflict with the court’s findings that respondent did not

provide money to WCHS for the support of her child and that

respondent did not visit with the two older children. Many of

the “recitations” of respondent’s testimony concern

acknowledgements by respondent as to the truth of claims made by

WCHS. -9- Respondent next argues certain findings of fact are not

supported by evidence. She argues there is no evidence that she

has a history of substance abuse, that a child family team

meeting was held on 3 October 2012, that the children were

placed by WCHS in the various homes, that her children’s medical

needs were not being met, and that she was non-compliant with

services offered by WCHS because these services were not offered

or provided.

The trial judge’s findings of fact are binding “where there

is some evidence to support those findings, even though the

evidence might sustain findings to the contrary.” In re

Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984)

(citations omitted). Findings of fact are also binding if the

appellant does not challenge them on appeal. Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Erroneous

findings of fact will not result in reversible error if they are

unnecessary to the court’s ultimate adjudication. In re T.M.,

180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).

We find ample evidence to support the findings. The

maternal great aunt with whom the two older boys were placed

testified that from July 2012 through November 2012, respondent

visited her sons only on three occasions. When the boys came -10- into her care, they had not had physical examinations or their

vaccinations. She voluntarily took the boys into her home when

she learned that respondent mother was at risk of losing them.

She took the boys for medical and dental care after they came

into her care. WCHS provided paperwork she needed to obtain

medical treatment for the boys. Respondent did not accompany

her to any medical or dental visits.

The court report which was received into evidence and

incorporated by reference into the court’s order indicates that

the youngest child was born testing positive for marijuana and

that respondent tested positive for the presence of “cannabises”

on 10 January 2013. The putative father of the youngest child

testified that respondent told him about a case plan she had

with WCHS which included “parenting classes, hum, cleaning her

system far as marijuana and stuff like that.” Respondent

testified and did not say anything to dispute the report that

she and the baby tested positive for marijuana at his birth.

The court report shows that the maternal great aunt took the

youngest child for vaccinations and treatment for wheezing after

he was removed from respondent’s care.

Respondent also contends the findings of fact do not

support the conclusion of law that the children are neglected -11- juveniles. A juvenile is neglected if he is not receiving

proper care, supervision, or discipline from a parent or

guardian, is not being provided necessary medical or remedial

care, or is residing in an environment injurious to the

juvenile’s welfare. N.C. Gen. Stat. § 7B-101(15) (2011).

“Where the evidence shows that a parent has failed or is unable

to adequately provide for his child’s physical and economic

needs, whether it be by reason of mental infirmity or by reason

of willful conduct on the part of the parent, and it appears

that the parent will not or is not able to correct those

inadequate conditions within a reasonable time, the court may

appropriately conclude that the child is neglected.” In re

Montgomery, 311 N.C. at 109, 316 S.E.2d at 252.

Respondent argues the court erred by failing to make

findings showing there is a substantial risk of harm to the

children in the home or establishing any nexus between her

alleged lack of care and supervision of the children and any

actual physical, mental, or emotional impairment of the

children. See In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d

898, 901-02 (1993) (stating “this Court has consistently

required that there be some physical, mental, or emotional

impairment of the juvenile or a substantial risk of such -12- impairment as a consequence of” a parent’s neglect). We do not

agree. We have held that a court’s failure to make an express

finding of fact that the child has sustained, or is at risk of

sustaining, some physical, mental, or emotional harm as a result

of the neglect does not warrant remand if all of the evidence

supports this finding. Id. at 753, 436 S.E.2d at 902. We have

also stated that when a child has been placed with a relative

prior to adjudication, the care previously provided by the

parent is a consideration in determining whether the child is

neglected or likely to be neglected if the child is returned to

the parent’s care. In re K.J.D., 203 N.C. App. 653, 657-61, 692

S.E.2d 437, 441-44 (2010). Factors we have considered relevant

to this determination include: the parent’s inability to

provide for the child’s physical and economic needs; the

parent’s failure to comply with case plans directed toward

correcting the conditions which led to the kinship placement;

the parent’s inability to maintain stable housing and

employment; the parent’s failure to show concern, parental love,

and affection by not visiting, calling, or mailing letters or

cards to the child; and the parent’s failure to make her

whereabouts known, to stay in constant contact with the county

department of social services, and to avail herself of services -13- offered by the county department of social services. See id.,

In re K.D., 178 N.C. App. 322, 329, 631 S.E.2d 150, 155 (2006);

In re J.L.K., 165 N.C. App. 311, 318-19, 598 S.E.2d 387, 392

(2004); In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676; In

re Evans, 81 N.C. App. 449, 452, 344 S.E.2d 325, 327 (1986).

We conclude the findings of fact support the court’s

conclusion that the juveniles were neglected. The findings

reflect that respondent has not provided for their health and

economic needs, has not maintained stable housing or employment,

has not been cooperative with WCHS, has not complied with case

plans, has not made her whereabouts known to WCHS and the

maternal great aunt for weeks at a time, and has not regularly

visited and shown love and affection to the two older children.

The children thus have not received proper care and supervision

from their parent.

We affirm the order.

Affirmed.

Judges MCGEE and DILLON concur.

Report per Rule 30(e).