In re K.C.

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-210 NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

IN THE MATTER OF:

K.C., H.C., C.C., S.C. Edgecombe County Nos. 12 JA 59-62

Appeal by Respondent-Mother from orders entered 16 July

2013 by Judge William C. Farris and 29 October 2013 by Judge

William G. Stewart in District Court, Edgecombe County. Heard

in the Court of Appeals 8 July 2014.

Lawrence, Best & Associates, P.A., by Natarlin R. Best, for Petitioner-Appellee Edgecombe County Department of Social Services.

Edward Eldred for Respondent-Appellant Mother.

McGEE, Judge.

Respondent-Mother (“the Mother”) appeals from orders

adjudicating her four children (“the children”) neglected and

continuing legal custody of the children with the Edgecombe

County Department of Social Services (“DSS”). We affirm. -2- This is the second appeal in this matter. DSS became

involved in 2011 with the Mother, her husband (“the

stepfather”), and the children when DSS received a report that

the Mother had been criminally charged with “stealing pills from

a woman in Franklin County and had sped away with two of the

children and [the stepfather] in the car.” At the time, the

Mother, the stepfather, and the children (collectively, “the

family”) were living with the stepfather’s parents. DSS found

the family to be in need of services due to substance abuse and

an injurious environment. The Mother entered into a safety plan

pursuant to which the family would reside at the home of the

stepfather’s parents and the children would be supervised at all

times by the stepfather’s parents.

DSS filed a petition alleging that the children were

neglected and dependent on 21 February 2012. DSS alleged that

the Mother and the stepfather lacked housing of their own; that

the Mother and the stepfather abused prescription drugs and used

marijuana daily; that the Mother and the stepfather engaged in

acts of domestic violence; that the children did not attend

school regularly while under the Mother’s care; and that the

Mother did not comply with the safety plan when she took the

children to the State of Virginia. -3- The Mother moved out of the stepfather’s parents’ home on

17 April 2012, at which time the stepfather’s parents were no

longer willing to provide care for the children and requested

that the children be removed by 24 April 2012. At the Mother’s

request, the children were placed with the Mother in the home of

a relative. The children remained in the home of the relative

until the relative was arrested for trafficking narcotics on 10

may 2012, and DSS placed the children in a licensed foster home.

The trial court held a hearing on the petition on 26 June

2012. By an amended adjudication and disposition order entered

20 September 2012, the trial court adjudicated the children

neglected and continued placement of the children in foster

homes. The Mother appealed, arguing, in part, that the trial

court’s findings of fact were insufficient to support its

conclusion that the children were neglected. This Court

reversed the adjudication and disposition order, and remanded

the case for further action. In re K.C., ___ N.C. App. ___, 745

S.E.2d 375 (2013) (unpublished).

Upon remand, the trial court entered an order on 16 July

2013, adjudicating the children neglected. In a separate

disposition order, the trial court concluded it was in the best

interest of the children that they remain in the legal custody -4- of DSS. The trial court ordered that DSS be relieved of

unification efforts with the Mother and with the natural father

of the children. The Mother appeals.

The Mother contends the trial court erred in concluding

that her children were neglected juveniles. We disagree.

This Court has stated that: “The purpose of abuse, neglect

and dependency proceedings is for the court to determine whether

the juvenile should be adjudicated as having the status of

abused, neglected or dependent.” In re J.S., 182 N.C. App. 79,

86, 641 S.E.2d 395, 399 (2007). Accordingly, the role of this

Court in reviewing a trial court’s adjudication of neglect and

abuse is 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, 480, 539 S.E.2d 362, 365

(2000)(citations omitted). If this evidence exists, the

findings of the trial court are binding on appeal, even if the

evidence would support a finding to the contrary. In re McCabe,

157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003).

A neglected juvenile is one “who does not receive proper

care, supervision, or discipline” from a parent or caretaker, or

“who lives in an environment injurious to the juvenile’s -5- welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2013). This Court

has held that an adjudication of neglect requires “that there be

some physical, mental, or emotional impairment of the juvenile

or a substantial risk of such impairment as a consequence of the

failure to provide proper care, supervision, or discipline.” In

re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02

(1993) (internal quotation marks omitted).

To support its conclusion that the children were neglected

in that they lived in an environment injurious to their welfare,

the trial court made the following pertinent findings of fact:

5. The [M]other [] and [the stepfather] are addicted to prescription pain medication and used said drugs and marijuana daily while caring for the children. They are not employed and rely upon [the stepfather’s parents] for food, shelter, and clothing for themselves and the minor children.

6. The [M]other took at least one of the children with her on several occasions to hospital emergency rooms in Nash and Wilson Counties complaining of kidney stones and seeking pain medication. While at the Nash emergency room with her one year old child, [Respondent] fell asleep.

7. On September 9, 2011, the [M]other drove with the stepfather and [Mr. P.] and with the children [K.C.] and [S.C.] to the Family Dollar store in Castalia, N.C. to purchase stolen prescription drugs. The [M]other was arrested on criminal charges involving the stolen drugs, but the charges were later dismissed. -6-

8. The stepfather [] also abused pain medication and sold the family’s food stamps to obtain said drugs. The [stepfather] also used the children’s Attention Deficit Disorder medications recreationally.

9. Prior to moving into the home of [the stepfather’s parents], the [M]other failed to have her children attend school regularly. The three older children have a history of excessive absences. With the help of [the stepfather’s parents], the children were properly clothed and well- nourished, and they attended school regularly[.]

10. In September, 2011, the [M]other agreed on a safety plan with Edgecombe County Department of Social Services to address the needs of her children which included drug treatment for the [M]other; not leaving the children alone with the [M]other and [the stepfather]; and living with the children in [the stepfather’s parents’] home. But the [M]other failed to appear for appointments with her caseworker; failed a drug screen; failed to take several drug screens; attended drug counseling sporadically; moved with the children to Virginia without notice to DSS or [the stepfather’s parents] in December, 2011 with no firm plans for housing there; and did not enroll the children in school in Virginia. Mr. [D.] went to Virginia on December 15, 2011 and brought the children and the [M]other back to his home.

11. The [M]other exhibited extreme mood swings in the presence of her caseworker and her children. She was cordial and cooperative at times but angry, cursing, crying, shaking, and nauseated at other times. The [M]other reported to the -7- Department of Social Services that she was in physical discomfort from drug withdrawal.

The Mother challenges the portion of finding of fact 10

that she “moved with the children to Virginia without notice to

DSS or [the stepfather’s parents] in December, 2011 with no firm

plans for housing there[.]” The Mother asserts the evidence

shows that DSS and the stepfather’s parents were given notice

and that she had plans for housing.

The Mother is correct that she called a DSS investigator on

the day she was moving to Virginia and gave the investigator “an

address that [the Mother] would be moving to and a phone number

that [the Mother] could be contacted with[.]” The DSS social

worker assigned to the family testified that she initially

received information from the stepfather’s mother, but explained

to her that it would be better if she could hear from the

Mother, “[a]nd then [the Mother] did contact [the social worker]

and leave a contact number.” There is no direct testimony from

the stepfather’s parents concerning the notice to them from the

Mother of her move to Virginia. However, the social worker

testified she initially received information about the Mother’s

move to Virginia from the stepfather’s mother and only later

from the Mother. While the Mother did make contact with DSS and -8- the stepfather’s parents, she failed to provide a “specific plan

for the safety of the children.”

The social worker also testified (1) that the agency was

concerned because the Mother had uprooted the children “with no

specific plan for the safety of the children[,]” and (2) the

Mother had returned to North Carolina after a few days because

“she had nowhere to stay[.]” As to housing, the social worker

also testified the Mother first took the children to the

residence of her mother and then to the residence of her cousin;

however, at neither location was there any place available for

the Mother and the children. We therefore conclude that, while

the Mother did make contact with DSS and the stepfather’s

parents, it was more important for the well-being of the

children that she provide a specific plan for the safety of the

children, and she failed to do so. The portion of finding of

fact 10 challenged by the Mother is supported by the evidence.

The Mother also contends the trial court erred in

adjudicating her children neglected because the findings failed

to establish a risk of harm to the children. While it is

generally true that findings of actual or substantial risk of

harm are necessary to support an adjudication of neglect, this

Court has held that an adjudication lacking such findings may -9- nonetheless be affirmed when “all the evidence supports such a

finding.” Safriet at 753, 436 S.E.2d at 902.

In this case, the enumerated findings of fact show that the

Mother lacked stable housing and income, abused marijuana and

prescription drugs, engaged in domestic violence, and did not

properly supervise the children’s school attendance. Further,

the Mother disregarded the safety plan to the detriment of her

children’s well-being by removing them from school in mid-

December and taking them to Virginia. The trial court’s

findings demonstrate an injurious environment which had the

effect of placing the children at substantial risk of physical

or emotional impairment. As a result, we affirm the trial

court’s determination that the children were neglected

juveniles.

Affirmed.

Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).