Opinion
No. COA10-179
Filed 6 July 2010 This case not for publication
Appeal by Respondent-Mother from orders entered 2, 8, and 24 July 2009, by Judge Timothy I. Finan in District Court, Wayne County. Heard in the Court of Appeals 28 June 2010.
Baddour, Parker Hine, PC, by James W. Spicer III, for Petitioner-Appellee Wayne County Department of Social Services. Parker, Poe, Adams Bernstein L.L.P., by Kristy L. Rice, for Guardian Ad Litem. Richard E. Jester, for Respondent-Appellant Mother.
Wayne County Nos. 09 JA 51-53
A juvenile neglect and dependency proceeding is a "civil proceeding where the protection of the child's interests, as distinguished from the mother's interests, is the overriding consideration." In the present case, Respondent Mother argues that the trial court erred in not affording her the protections generally due to a defendant in a criminal proceeding. For the reasons stated herein, we affirm the orders adjudicating T.H., J.S., and B.W. neglected and dependent juveniles.
In re Pittman, 149 N.C. App. 756, 761, 561 S.E.2d 560, 564, appeal dismissed, disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, Harris-Pittman v. Nash County Dept. of Social Services, 538 U.S. 982, 155 L. Ed. 2d 673 (2003).
On 2 April 2009, the Wayne County Department of Social Services ("DSS") filed petitions alleging that T.H., J.S., and B.W. were neglected and dependent juveniles. On 23 April 2009, the trial court granted temporary legal custody of the children to their maternal grandmother; physical custody of the children had been with the maternal grandmother since May 2008. On 21 May 2009, the trial court granted temporary joint custody of T.H. to the maternal grandmother and the juvenile's father. Sole temporary custody of J.S. and B.W. was continued with the maternal grandmother.
On 17 June 2009, Respondent-mother filed a "Motion for Appropriate Remedy." In the motion, Respondent stated that, upon the filing of the petitions in this matter, she was appointed provisional counsel. Respondent contended that, after her invocation of her right to counsel, DSS had conversations with her in violation of her Constitutional rights to due process. Respondent sought to have the petitions dismissed, or alternatively to suppress the social worker's testimony and all of Respondent's statements made to DSS which were allegedly made in violation of her Constitutional rights.
An adjudicatory hearing on the petitions was held on 18 June 2009. Respondent failed to appear at the hearing, and the trial court denied a motion by her counsel for a continuance. By orders filed 8 July 2009, the trial court denied Respondent's motion for an appropriate remedy. By orders filed 2 July 2009 and 8 July 2009, the trial court adjudicated T.H., J.S., and B.W. neglected and dependent juveniles. The trial court conducted another hearing on 9 July 2009. By orders filed 24 July 2009, the court continued custody of J.S. and B.W. with the maternal grandmother. Custody of T.H. was granted to the juvenile's father. Respondent appeals.
On appeal, Respondent alleges that the trial court erred in (I) denying Respondent's Motion for Appropriate Remedy; (II) denying Respondent's motion to continue; (III) basing any finding upon hearsay statements which were not admissible or upon statements which were outside the scope of the petition; and (IV) adjudicating the children neglected and ordering any disposition other than return to Respondent.
I
Respondent first argues that the trial court erred in denying her Motion for Appropriate Remedy. In support of this argument, Respondent relies exclusively on In re Maynard, 116 N.C. App. 616, 448 S.E.2d 871 (1994), disc. review denied, 339 N.C. 613, 454 S.E.2d 254 (1995).
In Maynard, Iredell County DSS filed petitions alleging that the respondent's two children were neglected, and the respondent later stipulated that because of her mental illness her minor children were dependent. Id. at 617, 448 S.E.2d at 872. The trial court granted DSS custody of the children, allowing the respondent supervised visitation. Id. During these visits and outside the presence of the respondent's appointed counsel, DSS workers talked with the respondent about surrendering her children for adoption. Id. at 617-18, 448 S.E.2d at 872. The respondent eventually was prevailed upon to sign documents surrendering custody of her children and consenting to adoption. Id. at 618, 448 S.E.2d at 872.
When the Maynard respondent's attorney learned of the transaction, he filed a motion to set aside the surrenders, alleging that DSS violated respondent's right to counsel. Id. The trial court granted the motion, and DSS appealed. Id. Analogizing to Miranda v. Arizona, 384 U.S. 436, 474, 16 L. Ed.2d 694, 723, reh'g denied, California v. Stewart, 385 U.S. 890, 17 L. Ed. 2d 121 (1966), this Court held that the trial court did not abuse its discretion in granting respondent's motion to set aside the surrenders. Id. at 620-21, 448 S.E.2d at 874.
Subsequent cases clarified the Maynard holding. In a case decided seven years after Maynard, this Court stated, "[b]ecause a juvenile abuse and neglect proceeding is a civil proceeding, we hold that Miranda is inapplicable." In re Pittman, 149 N.C. App. 756, 760, 561 S.E.2d 560, 564, appeal dismissed, disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, Harris-Pittman v. Nash County Dept. of Social Services, 538 U.S. 982, 155 L. Ed. 2d 673 (2003). "While the mother is not prevented from attempting to suppress her statement . . . in any subsequent criminal proceeding, the mother is barred from doing so in this civil proceeding where the protection of the child's interests, as distinguished from the mother's interests, is the overriding consideration." Id. at 761, 561 S.E.2d at 564.
The rationale of Pittman followed the reversal of this Court's decision in State v. Adams, 122 N.C. App. 538, 470 S.E.2d 838 (1996), rev'd, 345 N.C. 745, 483 S.E.2d 156 (1997). In Adams, the Court of Appeals held that "[u]nder the Sixth Amendment and the decision of this Court in Maynard," the trial court did not err in suppressing defendant's statements, which were elicited by police without the presence of defendant's court-appointed attorney in a concurrent juvenile petition. 122 N.C. App. at 545, 470 S.E.2d at 843. Our Supreme Court reversed our decision in Adams, stating "[b]y its terms, the Sixth Amendment [right to an attorney] applies only to criminal cases. We cannot say, as did the Court of Appeals, that the civil and criminal proceedings are so intertwined that the commencement of a civil proceeding triggers the protection involved in a criminal case." 345 N.C. at 748, 483 S.E.2d at 157.
In the present case, Respondent filed her Motion for Appropriate Remedy alleging that her "Constitutional rights to Due Process of law under the Fifth and Fourteenth Amendments, United States Constitution, have been flagrantly violated," citing Maynard. In her brief, Respondent argues that "the trial court's reliance on a difference between criminal and these proceedings is not fully appropriate." In light of case law decided since Maynard, Respondent's argument is without merit. Accordingly, we hold the trial court did not abuse its discretion in denying Respondent's Motion for Appropriate Remedy.
II
Respondent next argues that the trial court erred in denying Respondent's motion to continue.
N.C. Gen. Stat. § 7B-803 provides that:
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-803 (2009). "A trial court's decision regarding a motion to continue is discretionary and will not be disturbed on appeal absent a showing of abuse of discretion." In re J.B., 172 N.C. App. 1, 10, 616 S.E.2d 264, 270 (2005). A new hearing will not be granted on the basis of the denial of a motion to continue absent a showing of prejudice. In re D.W., No. COA09-1349, 2010 WL 699817, at *2 (N.C. App. March 2, 2010).
In the present case, Respondent argues that she failed to appear at the 18 June 2009 hearing because of a motor vehicle breakdown. We have previously held that respondent's lack of transportation to a hearing is not sufficient grounds for the trial court to grant a continuance. In re Mitchell, 148 N.C. App. 483, 487, 559 S.E.2d 237, 240, rev'd on other grounds, 356 N.C. 288, 570 S.E.2d 212 (2002); see also Mitchell County DSS v. Carpenter, 127 N.C. App. 353, 356-57, 489 S.E.2d 437, 439 (1997) (respondent's lack of transportation to termination hearing was not excusable neglect), aff'd per curiam, 347 N.C. 569, 494 S.E.2d 763 (1998).
Respondent argues moreover that she was prejudiced by the denial of her motion to continue in that she "could not put on her testimony concerning here [sic] interaction with the social workers indicated in our first argument." As we explained above, Respondent's first argument is without merit. Respondent has therefore failed to demonstrate prejudice resulting from the denial of her motion to continue. The trial court did not abuse its discretion in denying Respondent's motion to continue.
III
Respondent next argues that the trial court erred in basing any finding upon hearsay statements which were not admissible or upon statements which were outside of the scope of the petition. Respondent argues that the trial court erred in admitting (1) medical records; (2) statements of Respondent's children; and (3) statements regarding matters not addressed in the petition.
N.C. Gen. Stat. § 7B-804 states that "[w]here the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply." N.C. Gen. Stat. § 7B-804 (2009). "Under the North Carolina Rules of Evidence, statements, other than those made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted are hearsay and are generally inadmissible." In re T.M. M.M., Jr., 187 N.C. App. 694, 698, 654 S.E.2d 502, 505 (2007) (citing N.C. Gen. Stat. § 8C-1, Rules 801(c), 802 (2005)).
The mere admission by the trial court of incompetent evidence over proper objection does not require reversal on appeal. Rather, the appellant must also show that the incompetent evidence caused some prejudice. In the context of a bench trial, an appellant must show that the court relied on the incompetent evidence in making its findings. Where there is competent evidence in the record supporting the court's findings, we presume that the court relied upon it and disregarded the incompetent evidence.
In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000) (quotations and citations omitted), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
In the present case, Respondent argues that the trial court erred in admitting her medical records to establish that she was addicted to prescription medications. Respondent argues also that the trial court erred in admitting her children's statements to establish that the children were afraid of her. Finally, Respondent argues that the trial court erred in admitting statements to establish that she locked the children out of the house.
Respondent argues further that our holding in In Re T.M. requiring a showing of prejudice is in error. Be that as it may, we are bound by our prior decisions. Dunkley v. Shoemate, 129 N.C. App. 255, 258, 497 S.E.2d 713, 715 (1998), aff'd, 350 N.C. 573, 515 S.E.2d 442 (1999).
With regard to Respondent's first argument, Respondent fails adequately to show that she was prejudiced by this evidence. It is true that the trial court found as a fact in its adjudication orders that "the respondent mother is addicted to prescription drugs and has not sought help for this addiction." But there is no indication in the orders that this fact was dispositive. Indeed, the orders contain sufficient other evidence regarding Respondent's treatment of the juveniles to justify the rulings of the trial court. These findings include:
11. That the mother has failed to provide food and drink for [the juveniles].
12. That the mother is mentally unstable and has not demonstrated a care or concern for her children since angrily leaving the home . . . where she and her children were residing on December 29, 2008.
. . . .
15. That on December 29, 2008, the respondent mother made suicidal gestures by going to the bathroom with razors, candles and rum and spreading a towel on the floor.
16. That Sherri Dickerson, who shares the home with [the maternal grandmother] asked the respondent mother to leave because she did not want her committing suicide in front of the children. The respondent mother became irate and has not returned to live in the home . . .
17. That since January, 2009, the mother has had no telephone contact nor has she made other attempts to maintain a relationship with [the juveniles].
. . . .
20. That the respondent mother has not maintained stable housing for herself or for her children.
The three orders are consistent in their recitation of these facts. The order adjudicating J.S. neglected and dependent also includes the finding that "the mother has over medicated the juvenile with ADHD medications."
Respondent does not challenge these findings on appeal, and they are therefore binding on this Court. See In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005). We have upheld a finding of neglect based on similar evidence. See In re Adcock, 69 N.C. App. 222, 225, 316 S.E.2d 347, 349 (1984)("respondents' failure to provide a stable living environment and proper food and clothing are clearly evidence of neglect that cannot be ignored.")
With regard to Respondent's second argument, the trial court's orders contain no finding of fact that the children were afraid of their mother. Respondent cannot demonstrate that the trial court erroneously relied on evidence when there is no indication in the orders that the trial court relied upon it at all. See In re L.C., I.C., L.C., 181 N.C. App. 278, 284, 638 S.E.2d 638, 642 ("In a bench trial, `it will be presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby.'")( quoting Stanback v. Stanback, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696 (1976), disc. review denied, 291 N.C. 712, 232 S.E.2d 205 (1977)), disc. review denied, 361 N.C. 354, 646 S.E.2d 114 (2007).
With regard to Respondent's third argument, Respondent argues that she preserved her objection to the evidence as hearsay. It is clear from the transcript, however, that the objection Respondent actually made to the evidence that she locked her children out of the house was that "[t]hat's not in the petition." Respondent has, therefore, failed to preserve any objection to the statements as inadmissible hearsay. See N.C. R. App. P. 10(a)(1) (2010) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make. . . ."); In re Rhyne, 154 N.C. App. 477, 480 n. 1, 571 S.E.2d 879, 881 n. 1 (2002) (failure to object to hearsay evidence constitutes waiver), disc. review denied, 356 N.C. 672, 577 S.E.2d 637 (2003).
IV
Respondent next argues that the trial court erred in its order adjudicating the children neglected and in ordering any disposition other than return to Respondent.
It is clear from Respondent's argument that the success of her fourth claim is predicated on the success of those already discussed above. Respondent argues, for example, that "[w]ithout the improper interviews of [Respondent], and without the medical records and hearsay statements through the social worker there is no evidence to support the findings of fact and conclusions of law." Insofar as we discovered no prejudicial error in the admission of that evidence, we find no merit to Respondent's argument.
Affirmed.
Judges ELMORE and HUNTER, Jr., concur.
Report per Rule 30 (e).