Opinion
No. COA11–1385.
2012-05-15
In the Matter of A.M.R.
Eggers, Eggers, Eggers & Eggers, by Kimberly M. Eggers and Stacy C. Eggers, IV, for petitioner-appellee Watauga County Department of Social Services. Pamela Newell for Guardian ad litem.
Appeal by respondent-mother from orders entered 29 August 2011 and 2 September 2011 by Judge Kyle Austin in Watauga County District Court. Heard in the Court of Appeals 17 April 2012. Eggers, Eggers, Eggers & Eggers, by Kimberly M. Eggers and Stacy C. Eggers, IV, for petitioner-appellee Watauga County Department of Social Services. Pamela Newell for Guardian ad litem.
Robert W. Ewing for respondent-appellant, mother.
HUNTER, Robert C., Judge.
Respondent-mother appeals from adjudication and disposition orders adjudicating her son A.M.R. a neglected and dependent juvenile. After careful review, we reverse in part and affirm in part.
Background
On 9 May 2011, Watauga County Department of Social Services (“DSS”) filed a petition alleging that A.M.R. was a neglected and dependent juvenile. DSS stated that it became involved with the family on 14 February 2011 when it received a report of domestic violence between respondent-mother and the juvenile's father (“Mr. R.”) which occurred in the presence of the juvenile. On 7 April 2011, DSS visited respondent-mother's home, at which time she disclosed that she was afraid of Mr. R. and reported additional incidents of domestic violence committed by Mr. R. Respondent-mother was taken to a shelter and was left there to meet with the staff. However, respondent-mother soon began telling the staff that the situation at home was not as dire as her original complaints may have indicated. Respondent-mother stayed one night at the shelter, but refused to stay any longer. DSS eventually arranged for Mr. R. to move out of the home so that respondent-mother and the juvenile could return. Additionally, safety plans were put in place limiting Mr. R.'s contact with A.M.R.
DSS further alleged facts concerning an incident occurring on 24 April 2011 involving Mr. R. DSS claimed that Mr. R. called relatives of respondent-mother (“Mr. and Mrs. J.”). Mr. R. purportedly told Mrs. J. that he believed Mr. J. was the true father of A.M.R. and that he was coming over to their house to rape Mrs. J. and her children. Shortly after the phone call, Mr. R. arrived at Mr. and Mrs. J's home and broke a window. Mr. J. confronted Mr. R. and an altercation ensued which resulted in the arrival of police and Mr. R. being taken to the hospital. Mr. R. was reportedly intoxicated at the time of the incident.
DSS additionally alleged that, despite the safety plans that had been put in place to limit contact between A.M.R. and Mr. R., and their attempts to enforce the safety plans, DSS had received information that Mr. R. was violating the safety plans by returning to the home in secret. As a result, DSS filed the petition alleging neglect and dependency and sought custody of A.M.R. because DSS was unable to ensure the juvenile's safety.
An adjudicatory hearing was held on 25 July 2011. On 29 August 2011, the trial court adjudicated A.M.R. a neglected and dependent juvenile. The trial court entered a dispositional order on 2 September 2011 and ordered that custody remain with DSS. Respondent-mother appeals, arguing that the trial court erred in adjudicating A.M.R. a dependent juvenile; however, respondent-mother does not contest the adjudication of neglect.
Discussion
Respondent-mother first argues that the trial court erred by finding as fact that she had failed to keep Mr. R. “from being in the home and in the presence of the children.” We agree.
“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 T.H.T., 185 N.C.App. 337, 343, 648 S.E.2d 519, 523 (2007) (quoting In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (internal quotation marks omitted)), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). “If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary .” Id.
Respondent-mother testified at the adjudicatory hearing and admitted that she was living with Mr. R. However, respondent-mother further testified that Mr. R. had only been living in the home since 6 May 2011, after DSS took custody of the children. Respondent-mother unequivocally stated that Mr. R. had not been in the home with her children since the 12 April 2011 safety plan was put in place. Jocelyn Coan, a DSS social worker, testified that, pursuant to the safety plan, Mr. R. agreed not to have contact with A.M.R. outside of the prearranged, supervised visitation schedule. Coan testified that she suspected that Mr. R. was visiting the home. Coan claimed that when respondent-mother and the children were asked whether Mr. R. had been in the home in violation of the safety plan, they appeared nervous and would not make eye contact with her. She further claimed that “someone” had called in to report that Mr. R. had been in the home. However, when asked whether respondent-mother had violated the safety plan by allowing Mr. R. to be in the presence of the juvenile, Coan testified:
We don't know if she violated it. The concern that we have is the potential risk of harm to the children if she did, indeed, violate it. There's been enough reports and suspicions that have generated enough concern from the Department that could indicate a potential risk to the children, and based on our inability to determine, we had to err on the side of caution.
Coan admitted that she had no direct knowledge concerning visits by Mr. R. The trial court found as fact that “[i]t is not known if [Mr. R. ] ... had contact with [A.M.R.] since the case plan was entered[.]” Thus, the trial court's finding that respondent-mother had permitted Mr. R. to be in the presence of the juvenile appears to be entirely speculative and in contradiction with its other finding of fact. Accordingly, based on the evidence presented at the hearing, as well as the trial court's contradictory finding of fact, we conclude that the trial court erred by finding as fact that respondent-mother failed to keep Mr. R. “from being in the home and in the presence of the children.”
We next consider whether the trial court erred by concluding that A.M.R. was a dependent juvenile. “Dependent juvenile” is defined in N.C. Gen.Stat. § 7B–101(9) (2011) as:
A juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.
“In determining whether a juvenile is dependent, ‘the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.’ “ In re B.M., 183 N.C.App. 84, 90, 643 S.E.2d 644, 648 (2007) (quoting In re P.M., 169 N.C.App. 423, 427, 610 S.E.2d 403, 406 (2005)). “Findings of fact addressing both prongs must be made before a juvenile may be adjudicated as dependent, and the court's failure to make these findings will result in reversal of the court.” Id. The burden of proof in an adjudicatory hearing lies with the petitioner. N.C. Gen.Stat. § 7B–805 (2011).
This Court has found a juvenile to be dependent based on the parents' failure to abide by a safety plan. In re K.W., 192 N.C.App. 646, 656, 666 S.E.2d 490, 497 (2008) (holding that the juvenile was dependent where the father violated the safety plan by moving back in with the child, and the mother did not seek to enforce the safety plan). In the instant case, however, the evidence regarding whether Mr. R. had contact with A.M.R. in violation of the safety plan, and whether respondent-mother had permitted the violation of the safety plan, is entirely speculative. We have concluded that the trial court's finding of fact that respondent-mother failed to keep Mr. R. “from being in the home and in the presence of the children” was erroneous. Arguably, Mr. R. violated the safety plan on 24 April 2011 when he threatened respondent-mother on the telephone and purportedly went to the home; however, respondent-mother was not there with the children at that time and there is no indication that she permitted the visit.
Coan testified that respondent-mother had never physically harmed A.M.R. to her knowledge and that respondent-mother provided the necessities of life such as food and clothing. In sum, DSS was not concerned that respondent-mother was not adequately providing for the juvenile; rather, DSS was concerned that respondent-mother was allowing Mr. R. to violate the safety plan by coming in contact with the juvenile. However, the evidence that Mr. R. had been in the presence of A.M.R. since the 12 April safety plan was put in place was entirely speculative. Consequently, we conclude that the trial court erred by adjudicating A.M.R. a dependent juvenile.
Nevertheless, the trial court also determined that A.M.R. is a neglected juvenile and respondent-mother does not challenge this adjudication. The neglect adjudication is sufficient to support the continued removal of A.M.R. from the home. See In re E.C., 174 N.C.App. 517, 525, 621 S.E.2d 647, 653 (2005) (holding that a single adjudication that a juvenile is either abused, neglected, or dependent, standing alone, is sufficient to support the removal of a child from the home).
Reversed in part, affirmed in part. Judges STROUD and ERVIN concur.
Report per Rule 30(e).