Opinion
No. COA09-980.
Filed January 19, 2010.
Wilkes County Nos. 09 JA 34 09 JA 35.
Appeal by respondents from order entered 23 April 2009 by Judge Mitchell L. McLean in Wilkes County District Court. Heard in the Court of Appeals 21 December 2009.
Paul W. Freeman, Jr., for petitioner-appellee Wilkes County Department of Social Services. Pamela Newell Williams, North Carolina Guardian ad Litem Program, for guardian ad litem. Michael E. Casterline, for respondent-appellant mother. Jeffrey L. Miller, for respondent-appellant father.
Amanda S. ("Mother") and Justin S. ("Father") (collectively "respondents") appeal an order adjudicating their children, H.A.G.S. ("Hannah") and E.M.C.S. ("Eric"), as neglected and placing them in the custody of the Wilkes County Department of Social Services ("petitioner"). We reverse.
The pseudonyms "Hannah," "Eric," and "Luke" will be used to protect the children's privacy and for ease of reading.
Mother and Father are the parents of Hannah and Eric. Mother is also the parent of a third child, a son ("Luke"), by a different father. Mother, Father, Hannah and Eric lived together in the family's home ("the home").
Father, a paroled sex offender, was convicted of second degree rape for raping a victim sixteen years of age or older. At the time of the offense, Father was only sixteen years old. According to his parole officer, Father was doing well on parole. Barring any changes in father's behavior, his parole supervision should terminate in March 2011.
On or about 5 August 2008, Mother assaulted Luke and he sustained injuries to his thighs, knees, legs, scrotum, and penis. At the time of the assault, Luke lived in the home with Father, Hannah, and Mother, who was pregnant with Eric. Father was asleep at the time Mother assaulted Luke. Mother was subsequently convicted of misdemeanor child abuse and was placed on probation.
After the assault, Hannah and Luke were removed from the home. Hannah was returned to the home two weeks later on the strict condition that Father was to supervise Mother since she was not to be alone with Hannah at any time. Luke was never returned to the home. After Hannah was returned to the home, petitioner generated no new reports. Mother and Father subsequently completed parenting classes. Favorable test results subsequent to completion of the classes revealed the parents' comprehension of the program.
According to her probation officer, Mother was doing well on probation. Her probation officer reported that Mother cooperated with him, attended counseling, and maintained a residence. Mother, who suffers from major depression, confided in her mental health counselor, Dr. Patricia Segee, ("Dr. Segee") by stating at the time she assaulted Luke, she was "exhausted and frustrated." Dr. Segee anticipated that she will need ongoing counseling for the foreseeable future. Mother was being encouraged by Dr. Segee to obtain a GED and employment.
Eric was born in December 2008. Petitioner investigated the home at that time, but no further action was taken. In February 2009, petitioner advised respondents that their participation in home case management services for Hannah and Eric would be closed. Respondents were also informed that they would still need to cooperate and complete an out-of-home case plan with regard to Luke, who remained in petitioner's custody.
On 27 March 2009, petitioner's community child protection team ("the CCPT") met and reviewed the substantiation of neglect of Luke. The CCPT subsequently advised petitioner to file the present petitions based upon the severity of Luke's injuries and an alleged statement from the children's pediatrician, Dr. Julie Koch ("Dr. Koch"), that she believed Luke's injuries were more serious than she originally thought.
Subsequently, petitioner filed the subject petition alleging that Hannah and Eric were neglected in that they did not receive proper care, supervision or discipline from their parents and that Hannah and Eric lived in an environment injurious to their welfare.
On 27 March 2009, the court ordered that the children be placed in the nonsecure custody of petitioner.
On 6 April 2009, the court conducted an evidentiary hearing. At the hearing, Dr. Koch testified that although she had not seen any signs of injury to Hannah and Eric, Dr. Koch had concerns for their safety based upon Luke's injuries. Dr. Koch treated Luke in May 2008 for injuries; specifically, Luke was treated for bruises on his face and lacerations on his eye and lip. Dr. Koch also treated Luke in July 2008 for bruising around his eye and again in August 2008 after the assault by his Mother. She noted at that time that the bruises on his body varied by age and significance. Dr. Koch denied ever stating or expressing an opinion that Luke's injuries were more serious than she originally thought.
Father's sister ("Aunt") testified at the hearing that she had been caring for Hannah and Eric in her home. Aunt agreed and desired to provide care and supervision for them. She was not only willing, but also able, since she was previously a licensed day care operator.
Although the trial court was critical of the CCPT's recommendation to file the current petitions based upon a false allegation of a change of opinion by Dr. Koch, the court nonetheless concluded that the children were neglected juveniles as defined by N.C. Gen. Stat. § 7B-101. The trial court further concluded that it was contrary to the welfare of the children to be returned to respondents' home. The trial court awarded legal and physical custody of the children to petitioner, and stated petitioner "shall have the authority to place said children, including placing the children into the home of [Aunt]." Respondents separately appeal.
Respondents first contend that the trial court lacked subject matter jurisdiction because the petitions failed to allege or establish sufficient facts to support invocation of the court's jurisdiction over the juveniles and respondents. We disagree.
"`Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it[,] . . . [and] is conferred upon the courts by either the North Carolina Constitution or by statute.'" In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003) (quoting Haker-Volkening v. Haker, 143 N.C. App. 688, 693, 547 S.E.2d 127, 130 (2001) and Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987)). By statute, the district courts of this State are conferred "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent." N.C. Gen. Stat. § 7B-200(a) (2007). "The pleading in an abuse, neglect, or dependency action is the petition." N.C. Gen. Stat. § 7B-401 (2007). The district court's subject matter jurisdiction in a juvenile action is invoked by the filing of a properly verified petition. In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). "The issue of subject matter jurisdiction may be considered by the court at any time, and may be raised for the first time on appeal." In re T.B., J.B., C.B., 177 N.C. App. 790, 791, 629 S.E.2d 895, 896-97 (2006).
Respondents do not contend that the petition is not properly verified or filed. Instead, they solely challenge the sufficiency of the allegations of the petition itself. The pertinent statute governing the content of a petition in an abuse, neglect, or dependency proceeding provides that the petition "shall contain the name, date of birth, address of the juvenile, the name and last known address of the juvenile's parent, guardian, or custodian, and allegations of facts sufficient to invoke jurisdiction over the juvenile." N.C. Gen. Stat. § 7B-402(a) (2007). Respondents' arguments are directed at the alleged failure of petitioner to allege "fact[s] sufficient to invoke jurisdiction over the juvenile."
The factual allegations of a petition in a juvenile proceeding need not be extensive or exhaustive, but must be sufficient to put a respondent on notice regarding the acts, omissions, or conditions at issue. In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002). The petition in the instant case identifies the children, their locations, and their parentage. The petition alleges that each juvenile is neglected in that the juveniles do not receive proper care, supervision or discipline from their parents and the juveniles live in an environment injurious to their welfare. More specifically, each petition alleges that a community child protection team "met and reviewed the substantiation of abuse and neglect of the elder half-sibling" of each child and that "[d]ue to the severity of the injuries, the CCPT recommended that the younger two children be immediately removed from the home." We conclude these allegations adequately placed respondents on notice and are sufficient to invoke the jurisdiction of the court. Respondents next contend that the trial court erred by adjudicating the children as neglected. We agree.
As defined by N.C. Gen. Stat. § 7B-101(15), a neglected juvenile is one
who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15)(2007). This Court has also required that, in order to adjudicate a juvenile neglected, "there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide `proper care, supervision, or discipline.'" In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (citations omitted). In reviewing an adjudication of neglect, we must determine whether the trial court's findings of fact are supported by clear and convincing evidence and whether those findings of fact support the court's conclusions of law. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). Whether a child is neglected or abused is a conclusion of law, which is reviewed de novo. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997).
Respondents contend that the evidence does not clearly and convincingly show that the children were not receiving proper care, supervision or discipline from their parents or that the children were living in an injurious environment at the time the juvenile petitions were filed. They argue the trial court erred by relying solely upon the Mother's prior abuse of Luke when Luke's younger half-siblings were adjudicated as neglected.
This Court has previously observed that the statutory definition of a neglected juvenile affords "the trial court some discretion in determining whether children are at risk for a particular kind of harm given their age and the environment in which they reside." In re McLean, 135 N.C. App. 387, 395, 521 S.E.2d 121, 126 (1999) (citation omitted). In the case of a newborn infant or child who has never resided in the home, "the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." Id. at 396, 521 S.E.2d at 127. The language of N.C. Gen. Stat. § 7B-101(15) permitting a court to consider evidence of prior abuse or neglect of other children "does not mandate" a conclusion that a juvenile is neglected but gives the trial judge "discretion in determining the weight to be given such evidence." In re Nicholson and Ford, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994).
However, the discretion afforded the trial court is not unlimited. This Court has acknowledged that "the fact of prior abuse, standing alone, is not sufficient to support an adjudication of neglect." In re N.G., 186 N.C. App. 1, 9, 650 S.E.2d 45, 51 (2007), aff'd per curiam, 362 N.C. 229, 657 S.E.2d 355 (2008). Instead, this Court has generally required the presence of other factors to suggest that the neglect or abuse will be repeated. See, e.g., In re C.M., N.C. App., 678 S.E.2d 794, 801-02 (2009) (affirming adjudication of neglect based upon prior abuse of another child and a history of domestic violence between the parents); In re A.S., 190 N.C. App. 679, 690-91, 661 S.E.2d 313, 320-21 (2008), aff'd per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009) (affirming adjudication of neglect of a child based upon mother's act of intentionally burning another child's foot and falsely claiming that the burning was accidental); In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005) (affirming adjudication of neglect of one child based on prior adjudication of neglect with respect to other children and parent's lack of acceptance of responsibility).
In the instant case, the trial court's findings show that the children's pediatrician was concerned about the safety of the children based upon the history of Luke's injuries. The findings reflect that Luke "had been subject [sic] to a lot of abuse," which had been escalating in significance and severity over a period of several months. The trial court also noted the severity of the injuries inflicted upon Luke based upon viewing photographs of Luke's body that were taken on 5 August 2008. However, the trial court also found as fact that Dr. Koch never stated that Luke's injuries were more serious than she had originally thought, contrary to previous allegations by petitioner.
The trial court's order also included extensive findings about the progress respondents made since the 5 August incident. The trial court found that Father was being monitored and doing well on parole and that Mother was also being monitored and doing well on probation. Additionally, while the home was being monitored by petitioner, no new reports had been generated since Luke's injuries on 5 August. The trial court also found as fact that respondents had both successfully completed parenting classes and that Mother had been attending therapy sessions and planned to continue therapy in the future.
Based upon its findings, the trial court adjudicated Hannah and Eric as neglected. The court stated that its determination that the children were neglected is strongly influenced by the fact that the above-named juveniles live in a home where another child has been seriously injured as a result of the actions of an adult regularly living in this home. Based upon the evidence and the severity of injuries depicted in DSS Exhibit 1, the Court cannot believe anything other than that there is a substantial risk of harm to the children should they be placed into the parents' home.
The trial court then went on to chastise petitioner, stating:
With all due respect for the Community Child Protection Team, this is not the way to run the Department of Social Services. This case is an example of something less than how the Department of Social Services should handle its cases. In making this conclusion, the Court is strongly influenced by the justification that was given concerning Dr. Koch's opinion. This was not an accurate statement.
The findings in the trial court's order do not support an adjudication that Hannah and Eric were neglected. The only findings that support an adjudication of neglect refer solely to Mother's prior abuse of Luke on or before 5 August 2008.
The remaining findings of the trial court indicate that respondents worked diligently with petitioner in the period of approximately seven months between the 5 August incident and the filing of the petition to ensure that the home was a safe environment for Hannah and Eric. Hannah and, subsequently, Eric had been living with respondents without incident during those months. Additionally, the trial court acknowledged that the neglect petition was based, at least in part, upon faulty information. There are no findings in the trial court's order referring to conditions in the home at the time of the filing of the petition that would indicate that the children were subject to a substantial risk of future harm. Therefore, the trial court's findings were neither based upon clear and convincing evidence nor supportive of the trial court's conclusion of law that Hannah and Eric were neglected as defined by N.C. Gen. Stat. § 7B-101.
Because we have ruled in favor of respondents, we need not consider their arguments regarding the trial court's written dispositional order. The trial court's order adjudicating Hannah and Eric as neglected juveniles and placing the children in the legal and physical custody of petitioner must be reversed.
Reversed.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).