In re S.H., W.L. III, E.L
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NO. COA11-756 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 IN THE MATTER OF: Caswell County Nos. 10 JA 18-20 S.H., E.L., W.L., Minor Children Appeal by respondents from order entered 5 April 2011 by Judge Mark Galloway in Caswell County District Court. Heard in the Court of Appeals 24 October 2011. Stuart N. Watlington for Caswell County Social Services, petitioner-appellee. Department of Deana K. Fleming, for guardian ad litem. Charlotte Gail Blake for respondent-appellant mother. Michael E. Casterline for respondent-appellant father. ERVIN, Judge. Respondent-Father W. L. and Respondent-Mother Dominique L. appeal from an order concluding that their three oldest children, S.H., E.L., and W.L.1 were neglected juveniles and that all three children should remain in the custody of the Caswell County Department of Social Services. Mother argues 1 that On appeal, Respondent- the trial court erred by concluding that S.L., E.L., and W.L. will be referred to throughout the remainder of this opinion as Susan, Emily, and Wes, respectively, which are pseudonyms that will be used to protect the juveniles privacy and for ease of reading. -2Susan, Emily, and Wes are neglected juveniles. In addition, both Respondent-Father and Respondent-Mother contend that the trial court erred by ordering that the children remain in DSS custody. trial After careful consideration of the challenges to the court s order advanced by Respondent-Father and Respondent-Mother in light of the record and the applicable law, we conclude that the trial court s adjudication order should be affirmed, that the trial court s dispositional order should be reversed, and that this case should be remanded to the Caswell County District Court for further proceedings not inconsistent with this opinion, including the entry of a new dispositional order. I. Factual Background On 6 October 2010, DSS filed juvenile petitions alleging that Susan, Emily, and Wes were neglected juveniles on the grounds that they did not receive proper care, supervision or discipline from their parents and lived in an environment that was injurious to their welfare. More specifically, DSS alleged that, on 2 October 2010, the children s youngest sibling, D.L.,2 had suffered cardiac arrest as the result of starvation and had to be airlifted to UNC Hospital. 2 In addition, DSS alleged that D.L. will be referred to throughout the remainder of this opinion as Dawn, which is a pseudonym that will be used to protect the child s privacy and for ease of reading. -3Respondent-Father had disciplined Wes using a fishing pole and belt, resulting in scarring on his back. On 21 October 2010, the trial court conducted a hearing concerning a separate respect to Dawn. juvenile petition that DSS filed with On 22 November 2010, the trial court entered an order finding that Dawn was an abused and neglected juvenile. In response to an appeal noted by Respondent-Father and Respondent-Mother, this Court filed an opinion on 5 July 2011 affirming the trial court s adjudication and disposition order with respect to Dawn. In re D.L., No. COA11-60, 2011 N.C. App. LEXIS 1405 (5 July 2011). The trial court conducted adjudication and disposition hearings concerning the petitions relating to Susan, Emily, and Wes beginning on 14 December 2010 and concluding on 4 January 2011. On 5 April 2011, the trial court entered an order finding that Susan, Emily, and Wes were neglected juveniles and ordering that they remain in DSS custody, subject to visitation with Respondent-Father and Respondent-Mother. Respondent-Father and Respondent-Mother noted an appeal to this Court from the trial court s order. II. Legal Analysis A. Adjudication The purpose of abuse, neglect and dependency proceedings is for the court to determine whether the juvenile should be -4adjudicated as dependent. In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007). In reviewing an order concluding that a juvenile is neglected, having this Court the status determines of abused, whether the neglected trial or court s findings of fact are supported by clear and convincing evidence and whether those findings of fact support the trial court s conclusions of law. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). On appeal, Respondent-Mother contends that the trial court erred by concluding that Susan, Emily, and Wes were neglected juveniles on the grounds that the trial court gave excessive weight to its prior determination that Dawn was an abused and neglected juvenile. We do not find Respondent- Mother s argument persuasive. 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. N.C. Gen. Stat. § 7B-101(15). required that impairment of there the be some juvenile [T]his Court has consistently physical, or a mental, substantial or risk emotional of such impairment as a consequence of the failure to provide proper -5care, supervision, concluding that a or discipline particular juvenile as a is precondition neglected. for In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (citations omitted). It is well established that the trial court need not wait for actual harm to occur to the child if there is a substantial risk of harm to the child in the home. In re T.S., 178 N.C. App. 110, 113, 631 S.E.2d 19, 22 (2006), aff d, 361 N.C. 231, 641 S.E.2d 302 (2007). In predicting whether there is a substantial risk of future abuse or neglect, the court must consider the historical facts of the case. In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999). As a result, a trial court may consider 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 in determining whether a juvenile is neglected. N.C. Gen. Stat. § 7B-101(15). A determination of the weight to be afforded to evidence of prior abuse or neglect of another child is committed to the sound discretion of the trial court. In re Nicholson and Ford, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994). As its adjudication order reflects, the trial court properly considered the evidence tending to show that Dawn was -6an abused or neglected Respondent-Father Emily, and and Wes. juvenile in Respondent-Mother All three determining had children whether neglected witnessed Susan, the slow deterioration of their younger sister s health as a result of the failure of Respondent-Father and Respondent-Mother to seek and obtain medical treatment for her. Moreover, a careful examination of the trial court s adjudication order shows that it considered additional evidence bearing on the issue of neglect besides the prior abuse and neglect to which Dawn was subjected. Among other things, the trial court found that Susan, Emily, and Wes had never received any medical care while in their parents home. Respondent-Father had In addition, the trial court found that beaten Wes with various implements for disciplinary purposes such that Wes experienced pain for several days and Although sustained deep bruising Respondent-Mother may and not scarring have to his back. inflicted these injuries, she failed to prevent this abuse from occurring. It is settled law that nonfeasance as well as malfeasance by a parent can constitute neglect. In re Adcock, 69 N.C. App. 222, 224, 316 S.E.2d 347, 348 (1984) (citation omitted). [i]n determining determinative surrounding whether factors the child, are not a the the child is circumstances fault or Moreover, neglected, and the conditions culpability of the -7parent. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984). concerning As a result, given that the trial court s findings the neglect issue had ample evidentiary support, showed that the trial court considered all relevant factors in an appropriate manner, and adequately supported the trial court s conclusion that Susan, Emily, and Wes were neglected juveniles, we conclude that Respondent-Mother s challenge to the trial court s adjudication order lacks merit. B. Disposition 1. Failure to Order that the Children be Returned Home The district court has broad discretion to fashion a disposition from the prescribed alternatives in N.C. Gen. Stat. § 7B-903(a), based upon the best interests of the child. B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008). In re For that reason, [w]e review a dispositional order only for abuse of discretion. Id. A trial court s discretionary ruling is to be accorded great deference and will be upset only upon a showing that that it was so arbitrary that it could not have been the result of a reasoned decision. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). The trial court s findings of fact clearly establish that Susan, Emily, and Wes lived in an environment that was injurious to their welfare given that Respondent-Father and Respondent- -8Mother failed to take the children for medical treatment and inappropriately disciplined Wes. The trial court also found that returning the children to their parents custody would be contrary to their health, safety and welfare. According to the trial court, Susan, Emily, and Wes currently reside with their maternal aunt, who was a licensed therapeutic prior to taking the children into her home. foster parent The trial court expressed concern, based upon reports that had been presented for its consideration at Respondent-Father might family, this manifest which at itself threatening. [in] the dispositional allow his point appears behavior that As a result, the desire to be other trial to hearing, that reunite this very folks strong, to might find court determined that what is best for these children is for them to be back in a home that is safe, and this Court will have to make sure that there is a level of safety in the home. In order to achieve that end, the trial court determined that the children should remain in DSS custody and have supervised visitation with their parents at least once each month. In her brief before this Court, Respondent-Mother contends that the trial court erred in determining that it was contrary to the juveniles health, safety and welfare to be returned to the parents home. Similarly, Respondent-Father argues that the -9trial court s findings of fact do not support its determination that returning Susan, Emily, and Wes to the parents custody would be contrary to the children s health, safety and welfare and argues that the evidence received for dispositional purposes and the trial court s findings of fact demonstrate that the trial court should have made the opposite decision. After carefully examining the trial court s order, however, we hold, based on the information cited above, that the that returning the children to the parents home was not in the children s best interests. As a result, we conclude that the parents challenges to the substance of the trial court s dispositional order lack merit. 2. Need for Adequate Care or Supervision Finally, Respondent-Father erred by placing the contends children in that the trial court DSS custody without specifically determining that they needed more adequate care or supervision than they could receive in the parents home. This contention has merit. According to N.C. Gen. Stat. § 7B-903(a), the trial court may choose one or more of the following dispositional alternatives to the extent that they are in the best interests of the juvenile: the case of any (1) dismiss or continue the case or (2), [i]n juvenile who needs more adequate care or -10supervision or who needs placement[:] juvenile be supervised in the (a) require that the juvenile s own home by the department of social services; (b) place the juvenile in the custody of a parent, relative, private agency offering placement services, or some other suitable person; or (c) place the juvenile in the custody of the department of social services in the county of the juvenile s residence. N.C. Gen. Stat. § 7B- 903(a). language Thus, the relevant statutory plainly and unambiguously indicates that the trial court s ability to adopt one of the dispositions outlined in N.C. Gen. Stat. § 7B- 903(a)(2), including placing the juvenile in DSS custody, is limited to situations involving a juvenile who needs adequate care or supervision or who needs placement. required to give effect to clear and unambiguous more We are statutory language, In re A.R.G., 361 N.C. 392, 396, 646 S.E.2d 349, 351 (2007), and conclude, for that reason, that the relevant statutory language requires that a finding that the juvenile . . . needs more adequate care or supervision or needs placement be made as a precondition for the adoption of one of the dispositional alternatives outlined in N.C. Gen. Stat. § 7B903(a)(2). The trial court erred by failing to include such a finding in its dispositional order was. -11In seeking to persuade us to reach a contrary result, DSS and the Emily, guardian and Wes ad need litem argue more that adequate a care finding or that Susan, supervision or placement is implicit in the trial court s decision to leave the children in DSS custody. In essence, DSS and the guardian ad litem argue that the fact that the trial court left the children in DSS custody demonstrates that the trial court determined that the children placement. needed more adequate care or supervision or However, in the absence of the required finding, we are unable to determine whether the trial court utilized the required analysis in determining that Susan, Emily, and Wes should remain in DSS custody. As a result, we hold that the trial Susan, court erred by placing Emily, and Wes in DSS custody without making a required finding and remand this case to the Caswell County District Court for further proceedings not inconsistent with this opinion, including the entry of a new dispositional order. III. Conclusion Thus, we conclude that Respondent-Mother s challenge to the trial court s adjudication order lacks merit and that the trial court s adjudication order should be, and hereby is, affirmed. However, given that the trial court s dispositional order failed to contain a finding required for the adoption of one of the -12dispositional alternatives outlined in N.C. Gen. Stat. § 7B903(a)(2), we conclude that the trial court s dispositional order should be, and hereby is, reversed and that this case should be, District and Court hereby for is, further remanded proceedings to the not Caswell County inconsistent with this opinion, including the entry of a new dispositional order. AFFIRMED IN PART; REMANDED IN PART. Judges BRYANT and ELMORE concur.
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