Opinion
No. COA16-50
08-02-2016
IN THE MATTER OF: A.R.P., A.J.P. and S.L.P.
McDowell County Department of Social Services, by Aaron G. Walker, for petitioner-appellee. David A. Perez for respondent-appellant father. Lee F. Taylor Law, Pllc, by Lee F. Taylor, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. McDowell County, Nos. 15 JA 38-40 Appeal by respondent-father from orders entered 9 September 2015 and 23 October 2015 by Judge C. Randy Pool in McDowell County District Court. Heard in the Court of Appeals 5 July 2016. McDowell County Department of Social Services, by Aaron G. Walker, for petitioner-appellee. David A. Perez for respondent-appellant father. Lee F. Taylor Law, Pllc, by Lee F. Taylor, for guardian ad litem. McCULLOUGH, Judge.
Respondent-father appeals from orders concluding that his children A.R.P. ("Alice"), A.J.P. ("Arthur"), and S.L.P. ("Sarah") were abused and neglected juveniles, and that it was in the juveniles' best interest to remain in the custody of the McDowell County Department of Social Services ("DSS"). After careful review, we affirm.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
Background
On 20 March 2015, DSS filed juvenile petitions alleging that two-year-old twins Arthur and Sarah, and three-year-old Alice were neglected and abused juveniles. The trial court entered nonsecure custody orders on the same day, giving DSS legal custody of the juveniles. On 10 April 2015, DSS filed amended petitions with additional factual allegations. The petitions were based on a call DSS received on 20 March 2015. A social worker responded to the home and found the children's mother deceased from an apparent drug overdose. Respondent-father appeared impaired and admitted to past drug use. The social worker observed human feces, urine, and drug paraphernalia throughout the residence. Hypodermic needles and syringes were found within the reach of the children. The twins had been locked in a bedroom by a baby gate that was screwed into a door frame. Both twins were sitting in cribs in their own feces and urine, Arthur was naked, and his mattress was torn with stuffing protruding. Alice was lethargic and difficult to wake up. As a result, respondent-father was charged with three counts of misdemeanor child abuse and three counts of contributing to the delinquency of a minor.
The trial court held an adjudication hearing on 12 May 2015. Respondent-father did not attend the hearing and his attorney was released as counsel of record. At the conclusion of the adjudication phase, the trial court announced its decision adjudicating Arthur, Sarah, and Alice abused and neglected. The trial court then continued the disposition hearing to a later date, but elected to hear dispositional testimony from one witness who was present.
Following the conclusion of the 12 May 2015 hearing, the trial court requested the file from respondent-father's criminal case and asked for a representative from the District Attorney's office to appear. The trial court then revoked respondent-father's $10,000 secure bond and reset it at $100,000. Respondent-father was arrested following the trial court's order. He was not able to post the new bond amount and, therefore, was incarcerated.
The trial court resumed its disposition hearing on 8 and 10 September 2015. Respondent-father was appointed new counsel for the disposition hearing, at which he appeared and testified.
On 9 September 2015, the trial court entered an adjudication and temporary disposition order detailing its adjudication in open court on 12 May 2015 - that the children were abused and neglected as defined by N.C. Gen. Stat. § 7B-101(1) and (15). The trial court then entered a disposition order on 23 October 2015 concluding that it was in the juveniles' best interest to remain in DSS custody. Respondent-father appeals.
Discussion
Respondent-father's sole argument on appeal is that the trial court failed to provide him with due process of law in violation of N.C. Gen. Stat. § 7B-802 (2015). He contends that the trial court improperly revoked and reset his criminal secured bond during the adjudication hearing, thereby violating his due process rights at the adjudication hearing. As a result, respondent-father asserts the adjudicatory and dispositional orders should be reversed or vacated.
Respondent-father raises a procedural due process challenge to the trial court's adjudication hearing. "Procedural due process protection ensures that government action depriving a person of life, liberty, or property is implemented in a fair manner." In re W.B.M., 202 N.C. App. 606, 615, 690 S.E.2d 41, 48 (2010). A parent's right to the custody, care, and control of their children is a constitutionally protected liberty interest. See Petersen v. Rogers, 337 N.C. 397, 406, 445 S.E.2d 901, 906 (1994). Therefore, parents must be afforded due process of law in juvenile proceedings. To that end, our Juvenile Code provides that "[i]n the adjudicatory hearing, the court shall protect the rights of the juvenile and the juvenile's parent to assure due process of law." N.C. Gen. Stat. § 7B-802. "The fundamental premise of procedural due process protection is notice and the opportunity to be heard." In re Padgett, 156 N.C. App. 644, 649, 577 S.E.2d 337, 341 (2003) (internal citation omitted).
Respondent-father argues that while the trial court's actions in revoking and resetting his criminal secured bond may have been authorized by N.C. Gen. Stat. § 15A-534(f) (2015) (governing bond revocation), doing so without notice to respondent-father or his counsel violated his due process rights. Respondent-father also argues that the trial court violated Canon 3(A)(4) of the North Carolina Code of Judicial Conduct, which provides that judges should not knowingly initiate ex parte communications.
We find respondent-father's arguments to be misplaced. Even assuming arguendo that the trial court's bond revocation was erroneous, we find no evidence in the record that it affected respondent-father's adjudication hearing. To that end, the trial court did not inquire into respondent-father's criminal bond until after the conclusion of the adjudication hearing. At the adjudication hearing, DSS presented ample evidence to support the allegations contained in the petition, and the trial court found the juveniles to be abused and neglected. The trial court decided to continue the disposition hearing to a later date but elected to hear dispositional evidence from one witness who was present at the hearing. It was only after the conclusion of the 12 May 2015 juvenile hearing that the trial court inquired into defendant's pretrial release and decided to revoke and reset respondent-father's bond. Thus, respondent-father's argument is contradicted by the timeline of events at the hearing.
Furthermore, we must note that respondent-father does not appear to raise counsel's withdrawal or his own failure to attend the hearing as part of his due process challenge. Here, the petition and nonsecure custody order were personally served on respondent-father, and he does not in any way argue that he failed to receive notice of the hearing. See In re H.D.F., 197 N.C. App. 480, 496, 677 S.E.2d 877, 887 (2009) (reversing and remanding adjudication and disposition orders where the father failed to receive notice). Nor does he argue that he was denied the right to counsel. Thus, while notice and the opportunity to be heard are the cornerstones of procedural due process, respondent-father's argument is silent on both within the context of the adjudication hearing.
Respondent-father also argues that he suffered prejudice from the bond revocation. Respondent-father was arrested on the same day his bond was reset, and he remained incarcerated because he was not able to post bond at the higher amount. He argues that his incarceration prevented him from working towards reunification. We are not persuaded.
At the time of the adjudication hearing on 12 May 2015, respondent-father had entered into a case plan with DSS, but had made minimal, if any, progress on the plan's directives. He also refused to submit to drug screens and failed to take any responsibility for the events of 20 March 2015. He was afforded weekly visitation with the children, but only attended two of six visits. He attended one team meeting with the social worker on 6 April 2015, but his contact with the social worker ceased from that date through the date of the adjudication hearing. Furthermore, as DSS and the GAL point out, it appears that the trial court's decision to cease reunification efforts was based on the events that occurred prior to respondent-father's bond revocation. Lastly, respondent-father offers no indication that he attempted to modify the terms of the case plan to accommodate his incarceration. Therefore, respondent-father has failed to demonstrate that he was prejudiced as a result of the trial court's action.
In conclusion, we find that respondent-father has failed to show that the trial court's action of revoking and resetting his criminal bond, at the conclusion of the adjudication hearing, deprived him of due process of law in the juvenile proceedings.
AFFIRMED.
Judges ELMORE and HUNTER, Jr., concur.
Report per Rule 30(e).