In Re KD

631 S.E.2d 150
CourtCourt of Appeals of North Carolina
DecidedJuly 5, 2006
DocketCOA05-1027
StatusPublished

This text of 631 S.E.2d 150 (In Re KD) 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 KD, 631 S.E.2d 150 (N.C. Ct. App. 2006).

Opinion

631 S.E.2d 150 (2006)

In the Matter of K.D., Minor Child.

No. COA05-1027.

Court of Appeals of North Carolina.

July 5, 2006.

Jennifer S. O'Connor, Raleigh, for petitioner-appellee.

Leslie C. Rawls, Charlotte, for respondent-appellant.

James D. Johnson, Jr., Benson, for guardian ad litem.

*152 GEER, Judge.

Respondent mother appeals from the trial court's orders adjudicating her son K.D. to be neglected and dependent, placing him with an aunt, and relieving the Johnston County Department of Social Services ("DSS") of further efforts towards reunification. On appeal, respondent mother primarily argues that the trial court violated her psychologist-patient privilege by considering evidence from her psychologist. We hold that respondent mother waived any privilege, and, in any event, the evidence at issue was admissible since this proceeding involves the neglect of a child. With respect to respondent mother's challenge to the trial court's adjudication order, we (1) affirm the adjudication of K.D. as neglected because the trial court's unchallenged findings of fact support its conclusions of law on neglect, but (2) reverse and remand as to the adjudication of K.D. as dependent because the trial court failed to address whether respondent mother was able to provide a suitable alternative childcare arrangement within the meaning of N.C. Gen.Stat. § 7B-101(9) (2005).

Factual and Procedural History

Respondent mother gave birth to her son K.D. in 2002. The identity of the child's father is unknown. On 9 March 2004, the police brought respondent mother to the emergency room of the Johnston County Mental Health Center ("JCMHC"). While there, she was assessed by staff psychologist Cynthia Koempel, who found that she was showing verbal aggressiveness toward those around her and was threatening the police officer who had escorted her to the emergency room. Respondent mother was involuntarily committed to Holly Hill Hospital later that day because she was threatening to kill herself and was sleeping with knives under her pillow.

Respondent mother was discharged from Holly Hill on 17 March 2004, with a diagnosis of adjustment disorder with mixed depression and anxiety. Holly Hill recommended that she continue to receive treatment at JCMHC. Following a subsequent intake assessment at JCMHC, respondent mother was further diagnosed with intermittent explosive disorder, meaning that her inability to resist her aggressive impulses was liable to result in serious assaultive acts or destruction of property without warning. The JCMHC assessment also indicated that she had moderate mental retardation, with school records estimating her IQ to be in the 40 to 50 range. Following her intake assessment, respondent mother did not attend any of her subsequent recommended appointments at JCMHC. Although she initially claimed transportation problems, she later admitted that her social worker had offered to provide transportation to these and other appointments.

DSS began working with respondent mother in April 2004 when she was 17 years old and living with her mother, J.T. On 6 April 2004, DSS substantiated respondent mother's neglect of K.D. based on respondent mother's history of leaving K.D. at home without ensuring appropriate supervision or telling her family where she was going. After DSS became involved, respondent mother voluntarily placed K.D. with J.T. and moved in with her boyfriend.

Following a physical altercation between respondent mother and the boyfriend, in which the boyfriend sustained a large knife wound, respondent mother began living with other relatives, including, at various times, her maternal grandmother and her sister. Meanwhile, DSS substantiated neglect of K.D. by his grandmother J.T., after DSS became aware he was not being supplied with basic needs, such as adequate clothing, shoes, and hygiene, and after J.T. twice arrived in an intoxicated state to pick K.D. up from daycare. K.D. was subsequently placed back with respondent mother, who was then living with her sister.

On 5 May 2004 and 23 July 2004, DSS entered into a case plan with respondent mother in which she agreed to begin treatment at JCMHC; attend parenting classes; ensure proper supervision of K.D. at all times; meet K.D.'s basic food, clothing, and hygiene needs; and take K.D. to all necessary medical appointments. Because of respondent mother's mental disabilities and retardation, respondent mother's social worker provided her with a laminated list of emergency phone numbers and an appointment chart.

*153 Respondent mother failed to comply with most of the requirements of the initial case plan, as well as a follow-up case plan. Specifically, she failed to attend mental health appointments at JCMHC, failed to attend scheduled parenting classes at DSS, and did not maintain stable housing. On the other hand, the court also found that during periods of time when respondent mother was living with relatives, she was able to make sure that K.D.'s basic needs were met and took him to all his medical appointments. The court found, however, that even though the child's basic needs were at times being met, respondent mother was not able to meet her own basic needs.

The court also found that respondent mother "does not recognize the inappropriateness of her relationship with her boyfriend that involves physical violence." A DSS worker described a meeting with respondent mother in which they discussed the possibility of respondent mother attending a support group for women who are victims of domestic violence. Respondent mother asked what domestic violence was, and when it was explained to her, she responded, "What's wrong with that?" Although the social worker attempted to explain the effects of domestic violence on young children, respondent mother repeated that she did not feel there was anything wrong with it.

At the end of August 2004, respondent mother agreed to place K.D. with an aunt. K.D.'s daycare reported that following his placement with the aunt, K.D. became "a completely different child" and began talking, eating better, and working towards potty training. K.D. has remained with the aunt.

In November 2004, DSS filed a petition alleging that K.D. was a neglected and dependent child. The case was heard on 5 January 2005, at which time respondent mother was about three months pregnant with a second child. After hearing all the evidence, the trial court found that K.D. was neglected and dependent. K.D.'s dispositional hearing was held on the same date, and at its conclusion, the court gave custody of K.D. to the aunt and relieved DSS of further efforts towards reunification with respondent mother. The adjudication and dispositional orders were entered on 1 March 2005. Respondent mother filed a timely notice of appeal.

Psychologist-Patient Privilege

Respondent mother contends that the trial court violated her psychologist-patient privilege by considering evidence — in the form of a letter and testimony — from Cynthia Koempel of JCMHC. The patient has the burden of establishing the existence of a privilege and of objecting to the disclosure of such privileged information. Adams v. Lovette, 105 N.C.App. 23, 28, 411 S.E.2d 620, 624, aff'd per curiam, 332 N.C. 659, 422 S.E.2d 575 (1992).

Respondent mother has not preserved this question for appellate review. Under N.C.R.App. P.

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Related

Wade v. Wade
325 S.E.2d 260 (Court of Appeals of North Carolina, 1985)
State v. Benson
372 S.E.2d 517 (Supreme Court of North Carolina, 1988)
In Re PM
610 S.E.2d 403 (Court of Appeals of North Carolina, 2005)
Matter of Helms
491 S.E.2d 672 (Court of Appeals of North Carolina, 1997)
Adams v. Lovette
411 S.E.2d 620 (Court of Appeals of North Carolina, 1992)
In Re McLean
521 S.E.2d 121 (Court of Appeals of North Carolina, 1999)
State v. Williams
510 S.E.2d 626 (Supreme Court of North Carolina, 1999)
State v. Knight
378 S.E.2d 424 (Court of Appeals of North Carolina, 1989)
State v. Knight
381 S.E.2d 789 (Supreme Court of North Carolina, 1989)
In re K.D.
631 S.E.2d 150 (Court of Appeals of North Carolina, 2006)
In re M.J.G.
608 S.E.2d 813 (Court of Appeals of North Carolina, 2005)
In re P.M.
169 N.C. App. 423 (Court of Appeals of North Carolina, 2005)

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Bluebook (online)
631 S.E.2d 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kd-ncctapp-2006.