In re T.R.T.

737 S.E.2d 823, 225 N.C. App. 567, 96 A.L.R. 6th 681, 2013 WL 599862, 2013 N.C. App. LEXIS 171
CourtCourt of Appeals of North Carolina
DecidedFebruary 19, 2013
DocketNo. COA12-905
StatusPublished
Cited by15 cases

This text of 737 S.E.2d 823 (In re T.R.T.) 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 T.R.T., 737 S.E.2d 823, 225 N.C. App. 567, 96 A.L.R. 6th 681, 2013 WL 599862, 2013 N.C. App. LEXIS 171 (N.C. Ct. App. 2013).

Opinion

McCullough, Judge.

Respondent-mother appeals from an order concluding that her son, T.R.T., was neglected and that it was in T.R.T.’s best interest to remain in the custody of the New Hanover County Department of Social Services (“DSS”). We affirm in part and reverse and remand in part.

On 6 February 2012, DSS filed a juvenile petition alleging that T.R.T. was neglected in that he lived in an environment injurious to his welfare and did not receive proper care, supervision, or discipline from his mother. DSS had previously been involved with the family [568]*568due to respondent-mother’s mental health issues; T.R.T. had previously been adjudicated neglected; and T.R.T. had been in DSS custody from July 2010 until 27 October 2011, when he was returned to respondent-mother. The petition alleged that on 9 November 2011, DSS received a report of inappropriate supervision. According to the petition, five-year-old T.R.T. had left respondent-mother’s apartment and sought food and assistance from residents in the apartment complex. The petition alleged that respondent-mother was “decompensating,” had terminated counseling, and was not adhering to her medication regimen. T.R.T. was taken into nonsecure custody on the following day.

Following a hearing on 29 March 2012, the trial court entered an order on 25 April 2012 concluding that T.R.T. was a neglected juvenile within the definition of N.C. Gen. Stat. § 7B-101(15) (2011). In the dis-positional portion of the order, the trial court maintained custody with DSS. Respondent-mother timely appealed from the order.

I.

Respondent-mother first challenges the trial court’s adjudication of neglect. The trial court made the following findings of fact to support its conclusion that T.R.T. was neglected:

1. . .. [T.R.T.] was previously in the legal custody of [DSS] from July 20, 2010 through October 10, 2011. On November 9, 2011 [DSS] received a child protective services report alleging inappropriate supervision and care of [T.R.T.].
2. [T.R.T.] was allegedly seeking food and assistance from a neighbor because he was unable to wake his mother. The distance between [T.R.T.’s] home and the neighbor’s home was estimated to be two city blocks. On January 5, 2012, the Case Decision determined the family in need of services and on January 5, 2012, the case was transferred to on-going services.
3. That between January 5, 2012 and the filing of the Juvenile Petition, [respondent-mother] refused to cooperate with [DSS]’s attempts at weekly home visits, attendance in parenting classes, development of an In-Home Family Services Plan, participation in a Child and Family Team meeting, and consistent mental health [569]*569treatment. She informed [DSS] via email of her refusal to cooperate, and demanded that [DSS] close her case.
4. That Social Worker, Pam Nelson has known [respondent-mother] for the past five years and has knowledge of [respondent-mother]’s symptoms of regression. Ms. Nelson noticed a decline in [respondent-mother] ’s personal appearance, hygiene and living environment. Ms. Nelson determined that services needed to be implemented to ensure [respondent-mother]’s mental health issues were being properly addressed.
5. That [respondent-mother]’s mental health therapist, Andrea Murrow, expressed concerns that [respondent-mother]’s mental health had deteriorated significantly and expressed concern for her welfare as well as the safety of her son. [DSS] believed [respondent-mother] to be noncompliant with her psychotropic medication regimen; however, [DSS] was unable to verify compliance with her medication and mental health treatment due to her refusal to sign releases for information.
6. That [respondent-mother]’s refusal to cooperate with [DSS], which directly impacted said agency’s ability to determine her mental status and compliance with prescribed psychotropic medications and lack of appropriate supervision, placed the juvenile at risk of substantial harm.

“Allegations of neglect must be proven by clear and convincing evidence. 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) (citation omitted). If competent evidence supports the findings, they are “binding on appeal.” In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003).

Respondent-mother argues that the findings of fact do not support the trial court’s conclusion of neglect because (1) the trial court did not and could not base its adjudication on T.R.T.’s alleged excursion from the home; and (2) the trial court improperly concluded that uncertainty regarding respondent-mother’s mental health rendered T.R.T. neglected.

[570]*570As to her first argument, respondent-mother contends that finding of fact number 2 is based solely on allegations that T.R.T. left respondent-mother’s home unsupervised, and even if the trial court had made a finding that T.R.T. left his mother’s home unsupervised, the evidence is not competent to support such a finding. Respondent-mother is correct in her assertion that finding of fact number 2 contains only an allegation that T.R.T. left his home unsupervised. However, her challenge to this finding is immaterial to the trial court’s adjudication of neglect. It appears that the trial court’s ultimate determination was not based on a finding that T.R.T. actually left the home unsupervised. Findings of fact numbers 1 and 2 provide historical context for the case and illustrate why DSS began a second investigation.

Moreover, even if the trial court had made a finding that T.R.T. left the apartment unsupervised, such a finding would have been supported by the evidence. At the hearing, Social Worker Pamela Nelson testified that at one of her home visits, T.R.T. acknowledged that he left the apartment on his own and admitted that he would probably do it again. Respondent-mother argues that this testimony is impermissible hearsay; however, she did not object to this testimony at the hearing and therefore cannot raise this issue on appeal. See State v. Robertson, 149 N.C. App. 563, 569, 562 S.E.2d 551, 556 (2002) (a party must object to testimony on the challenged basis to properly preserve the issue for appeal). Therefore, we reject respondent-mother’s challenge to finding of fact number 2.

As to her second argument, respondent-mother challenges findings of fact numbers 4 and 5, both of which pertain to her mental health. Respondent-mother contends that finding of fact number 4 is based on speculation. We disagree. First, we note that none of the language in finding 4 uses speculative terms. Rather, this finding is based solely on Ms. Nelson’s direct observations of respondent-mother and her familiarity with respondent-mother’s history of mental health issues. Furthermore, this finding of fact is supported by competent evidence in the record. At the hearing, Ms.

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Bluebook (online)
737 S.E.2d 823, 225 N.C. App. 567, 96 A.L.R. 6th 681, 2013 WL 599862, 2013 N.C. App. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-trt-ncctapp-2013.