In re S.M

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA13-1154 NORTH CAROLINA COURT OF APPEALS Filed: 20 May 2014 IN THE MATTER OF: S.M., J.M. Johnston County Nos. 12 JA 135-36 Appeal by respondent from orders entered 17 July 2013 by Judge Resson Faircloth and 23 September 2013 by Judge Harris Rawls in Johnston County District Court. Addie Heard in the Court of Appeals 28 April 2014. Holland & O Connor, P.L.L.C., by Jennifer S. O Connor, for Johnston County Department of Social Services, petitionerappellee. Marie H. Mobley for guardian ad litem. Peter S. Wood for respondent-appellant mother. HUNTER, Robert C., Judge. Respondent-mother appeals from orders (1) adjudicating her minor children J.M. ( Josiah )1 and S.M. ( Susan ) to be neglected and dependent juveniles, (2) maintaining the children 1 Pseudonyms shall be used to protect the juveniles privacy and for ease of reading. -2in the custody of the Johnston County Department of Social Services ( DSS ), and (3) denying her motion for a new trial and/or for relief from the adjudication order pursuant to Rules 59 and 60 of the North Carolina Rules of Civil Procedure. Gen. Stat. §§ 1A-1, Rules 59(a), 60(b) (2013). N.C. We affirm. Procedural History DSS filed juvenile petitions on 30 August 2012, alleging that six-year-old Josiah and four-year-old Susan were neglected and dependent. A hearing on the petitions was held in May 2013. On 10 July 2013, respondent-mother s counsel, Brian Knott, moved to withdraw. The district court allowed the motion and appointed counsel Steven Walker to represent respondent-mother on 12 July 2013. On 17 July 2013, the court entered adjudications of neglect and dependency for both Josiah and Susan. disposition order, the court continued In its accompanying the children in DSS custody and relieved the department of further efforts toward reunification with respondent-mother. On 24 July 2013, respondent-mother filed in district court a motion styled Motion for a New Trial (Rule 59); Alternative Motion for Relief (Rule 60 & N.C. Gen. Stat. § 7B-1000)[.] Citing newly discovered evidence or, alternatively, ineffective -3assistance by former counsel Knott, she asked the court to grant her a new hearing pursuant to N.C.R. Civ. P. 59(a)(4) and (6), or to set aside the adjudication and disposition orders pursuant to N.C.R. Civ. P. 60(b)(4) and (6). The district court denied respondent s motion in open court after a hearing on 14 August 2013. On 15 August 2013, defendant filed notice of appeal from the court s ruling and from the 17 July 2013 adjudication and disposition orders. The court entered its written order denying defendant s motion for relief under Rules 59(a) and 60(b) on 23 September 2013. Respondent-Mother s Appeal Respondent-mother district court s does not adjudication challenge and any disposition aspect of orders. the She instead contends the court abused its discretion by denying [her] motion for a new adjudication hearing under Rule 60(b) and Rule 59. discovery, The in the basis for DSS case her file, claim of is a counsel report Walker s prepared by psychologist Dr. Milton Kraft,2 who evaluated respondent-mother s live-in boyfriend, Mr. W., after Josiah and Susan alleged that he had sexually abused them. According to respondent-mother, Dr. Kraft found it unlikely that Mr. W. abused her children, 2 The motion hearing transcript spells the surname Craft. -4and found it possible that respondent-father or his family had coached the children into making false accusations against Mr. W. In the event that Dr. Kraft s report was unavailable to counsel Knott at respondent-mother the time contends of the the adjudicatory report represents hearing, newly discovered evidence under Rule 59(a)(4) and Rule 60(b)(2). If Dr. Kraft s report was available, respondent-mother argues that counsel s failure to introduce it at the adjudicatory hearing violated her justifying right relief to from effective the assistance adjudications of of counsel, neglect and dependency under Rules 59(a)(9) and 60(b)(6). Standard of Review We review a trial court s denial of a Rule 59(a) or Rule 60(b) motion only for abuse of discretion. In re Will of Buck, 350 N.C. 621, 625, 516 S.E.2d 858, 861 (1999) (Rule 59(a)); In re E.H., __ N.C. App. __, __, 742 S.E.2d 844, 849 (2013) (Rule 60(b)), disc. review S.E.2d 417 (2014). improvidently allowed, __ N.C. __, 754 A court abuses its discretion only when its ruling is manifestly unreasonable[.] Lovendahl v. Wicker, 208 N.C. App. 193, 205, 702 S.E.2d 529, 537 (2010). Newly Discovered Evidence Under N.C.R. Civ. P. 59(a)(4), [a] new trial may be -5granted to all or any of the parties and on all or part of the issues based on [n]ewly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial[.] Gen. Stat. § 1A-1, Rule 59(a)(4). Similarly, Rule N.C. 60(b)(2) provides that the trial court may relieve a party . . . from a final judgment, order, or proceeding on the basis of [n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b). 3 N.C. Gen. Stat. § 1A-1, Rule 60(b)(2). Based on respondent-mother s own allegations, the report prepared by Dr. Kraft does not qualify as newly discovered evidence for purposes of Rules 59(a)(4) or 60(b)(2). for evidence to be newly discovered evidence In order under these rules, it must have been in existence at the time of the trial, and not discoverable through due diligence. Broadbent v. Allison, 176 N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006). In respondent-mother s motion filed 24 July 2013, counsel Walker reported discovering Dr. Kraft s report in the DSS case file following his appointment as substitute counsel. 3 The motion Inasmuch as respondent-mother timely served her Rule 59(b) motion, the conditions for relief contemplated by Rule 60(b)(2) manifestly do not apply. -6further averred that that Mr. W. was aware of this conclusion by Dr. Kraft and . . . had informed respondent-mother of the results of his psychological evaluation. Insofar as the report was in existence at the time of the May 2013 adjudication hearing, it was plainly obtainable through due diligence. A respondent in an abuse, neglect, or dependency proceeding may seek discovery from DSS pursuant to N.C. Gen. Stat. § 7B-700(a), (c) (2013).4 Given respondent-mother s avowed awareness of the results of Mr. W. s evaluation, her failure to seek this evidence from DSS pursuant to N.C. Gen. Stat. § 7B700, or from Dr. Kraft himself by subpoena or otherwise, can hardly be characterized as due diligence. 104 N.C. App. 294, 297, 408 See Waldrop v. Young, S.E.2d 883, 885 (1991). Accordingly, we conclude that the district court did not abuse its discretion in denying relief pursuant to Rules 59(a)(4) and 60(b)(2). Ineffective Assistance of Counsel Rules 59(a)(9) and 60(b)(6) allow the trial court to grant a new trial or relief from a judgment for [a]ny . . . reason heretofore 4 recognized as grounds for new trial[,] or that Indeed, respondent-father s counsel informed the court that she had reviewed the DSS file on multiple occasions but concluded that Dr. Kraft s evaluation wasn t of any consequence to me[.] -7otherwise justif[ies] judgment. relief from the operation of the N.C. Gen. Stat. § 1A-1, Rules 59(a)(9), 60(b)(6). Despite the rules expansive language, we have emphasized that a court should reluctantly wield and its only authority where miscarriage of justice[.] thereunder necessary to carefully avoid a and palpable Boykin v. Wilson Med. Ctr., 201 N.C. App. 559, 561, 563, 686 S.E.2d 913, 915, 917 (2009) (Rule 59(a)(9)); accord Vaglio v. Town and Campus Int., Inc., 71 N.C. App. 250, 255, 322 S.E.2d 3, 7 (1984) ( Courts have the power to vacate judgments . . ., yet they should not do so under Rule 60(b)(6) except in extraordinary circumstances and after a showing that justice demands it. ). Respondent-mother argues that introduce Dr. Kraft s report into counsel Knotts failure to evidence at the May 2013 adjudicatory hearing violated her right to effective assistance of counsel. Inasmuch as Dr. Kraft found it unlikely Mr. W. had sexually abused Josiah and Susan, respondent-mother contends that his report would children s accusations. have vindicated her disbelief of her She points out that the district court cited her refusal to believe her children in its findings of fact supporting the adjudications of neglect and dependency. -8Under N.C. Gen. Stat. § 7B-602(a) (2013), a parent has a right to counsel in an abuse, neglect, or dependency proceeding. This right to counsel also includes the right to effective assistance of counsel. In re S.C.R., 198 N.C. App. 525, 531, 679 S.E.2d 905, 909, appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009). To establish a successful claim that counsel s assistance was ineffective, a parent must show that counsel s performance was deficient and the deficiency was so serious as to deprive the represented party of a fair hearing. Oghenekevebe, (1996). 123 N.C. Judicial App. review of 434, 436, counsel s 473 S.E.2d In re 393, performance must 396 be highly deferential so as to avoid the prejudicial effects of hindsight. State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d 354, 360 (2003). Moreover, [a] parent must also establish [s]he suffered prejudice in order to show that [s]he was denied a fair hearing. In re S.C.R., 198 N.C. App. at 531, 679 S.E.2d at 909. Initially, we note there is no showing that respondentmother ever provided the district court with a copy of Dr. Kraft s report; nor has she included the document in the record on appeal. See generally Walker v. Penn Nat l Sec. Ins. Co., 168 N.C. App. 555, 560, 608 S.E.2d 107, 110 (2005) ( [W]hen the -9evidence is not in the record the matter is not reviewable. ) (citation and internal quotation marks omitted); see also N.C.R. App. P. 9(a)(1)(e). The record does not indicate when the report was prepared or delivered to DSS. reveal the actual contents of the report. Nor does the record We are thus unable to assess Dr. Kraft s actual findings and conclusions or ascertain the evidence Significantly, he relied there is upon no in reaching allegation his that conclusions. Dr. Kraft ever interviewed Josiah or Susan about the alleged sexual abuse, or that he spoke with witnesses other than Mr. W. Moreover, the purpose of the adjudication hearing is to adjudicate the existence or nonexistence conditions alleged in a petition. of any of the In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 15 (2006) (quoting N.C. Gen. Stat. § 7B-802). petition Accordingly, we have barred consideration of postevidence at the adjudicatory neglect, or dependency proceeding. Id. stage of an abuse, In the case sub judice, the issue before the court at adjudication was Josiah s and Susan s status as neglected and dependent juveniles at the time DSS filed its petitions on 30 August 2012. Given that DSS did not allege sexual abuse by Mr. W. in support of its allegations of neglect and dependency, Dr. Kraft s evaluation of Mr. W. -10subsequent to the petitions filing was not obviously germane to the proceeding. Based on respondent-mother s limited proffer, we cannot conclude that her counsel s failure to adduce Dr. Kraft s report at the adjudicatory hearing amounts to ineffective assistance of counsel. DSS did not seek adjudications of abuse or allege that Josiah and Susan had been sexually abused. As shown below, the adjudications of neglect and dependency were based on several factors, including respondent-parents mutual history of domestic violence and violation of domestic violence protective orders, Mr. W. s threatening behavior toward respondent-father and the children s caretaker, Ms. T., and respondent-father s volatility and deteriorating mental health. In support of its adjudication, the district court found, inter alia, as follows: 7. . . . [T]he parents engaged in multiple incidents of domestic violence in the presence of the children. . . . 8. [Respondent-]mother used a wire hanger to discipline the juvenile, [Josiah], when he was a toddler, which left marks on the juvenile that remain to date. 9. In April of 2012, the mother enlisted the help of . . . [Mr. W.] to separate from [respondent-father]. . . . 10. In June of 2012, the parties separated. -11. . . 11. Thereafter the mother obtained a Domestic Violence Protective Order ( DVPO ) due to [respondent-father s] threats, including threats of harming her or having her deported. As part of the [DVPO], the mother was given temporary custody of the minor children. . . . 12. The mother quit her job so could be with the children. . . . that she 13. After approximately four days, [respondent-]mother and the minor children went to stay at the residence of [Mr. W.] and his roommate. 14. While at the home of Mr. [W.], both children reported that Mr. [W.] touched them inappropriately. Both children disclosed that Mr. [W.] put his hand down their pants and touched their privates . . . . Both children further disclosed that while Mr. [W.] was touching [Susan], [Josiah] jumped on him and Mr. [W.] punched [Josiah] in the stomach. 15. The children further observed the mother drinking while they were staying at Mr. [W.] s apartment. . . . 16. On July 19, 2012, [Josiah] telephoned his father and told him something bad had happened but before he could explain, the mother hung up the phone. 17. On July 20, 2012, [the children s adult sister, Ms. T.,] went to pick up the children for their . . . visitation with the father. Mr. [W.] was at the exchange and attempted to prevent the children from going on the visit. Once at the father s residence, the children disclosed to the -12father and their sister the sexual assault by Mr. [W.] physical and 18. [Respondent-father] obtained a DVPO against the mother and obtained custody of the children. . . . . 20. After the DVPO was put in place in late July, 2012, both parties continued to violate the no contact provision. . . . . . . . 22. The children went to stay with their sister, [Ms. T.] in August of 2012, with the father s consent. . . . 23. On or about August 10, 2012, [respondent-father], while intoxicated, contacted the mother and threatened her and threatened to kill himself. . . . 24. Although the mother was advised of the children s disclosure against Mr. [W.], she continued to maintain a relationship with him, including up to the time of the filing of the juvenile petitions. [Respondentmother] was further aware of Mr. [W.] s mental health past that resulted in a previous hospitalization. . . . Mr. [W.] has further provided the mother financial support and assistance with remaining in the country. 25. Although the mother believes her children are truthful, she refused to believe their disclosures against Mr. [W.] 26. [Respondent-father] believed he being followed by Mr. [W.] and that he receiving threatening phone calls from [W.] . . . Both [respondent-father] was was Mr. and -13[Ms. T.] observed Mr. [W.] in a vehicle out front of [respondent-father s] home and observed Mr. [W.] point a gun at them. 27. In mid to late August 2012, the father threatened to take the children from Ms. [T.] and take them to see their mother in Raleigh, North Carolina, in violation of the safety assessment entered into by [DSS]. 28. On or about August 24, 2012, [respondent-father] again threatened to take the children from Ms. [T.] After Ms. [T.] refused to give the children to [respondentfather], he grabbed Ms. [T.] and threatened to kill her. . . . . 30. [Respondent-father] s mental health became noticeably concerning as the month of August progressed. Ms. [T.], his daughter, and [DSS] became fearful of his mental health status. . . . . 32. [On August 30, 2012], the father purposely overdosed on his medication and had to be hospitalized. 33. The children were originally placed in the nonsecure custody of [Ms. T.], but had to be moved due to threats by Mr. [W.], as well as [respondent-father] coming to the home in violation of the order. No other alternative placement was available for the children and they were placed in foster care. Based on these facts, the court determined that Josiah and Susan lived in an environment injurious to their health and welfare -14and further were at a substantial risk of physical and/or emotional impairment if returned to the care of either parent. See N.C. Gen. Stat. § 7B-101(15) (2013) (defining neglected juvenile ). able to The court further found that neither parent was provide proper care and supervision appropriate alternative care arrangement. and lacked an See N.C. Gen. Stat. § 7B-101(9) (2013) (defining dependent juvenile ). Respondent-mother does not challenge any finding of fact or conclusion of law in the adjudication and disposition orders entered on 17 July 2013. binding on this Court. Unchallenged findings of fact are In re S.N., X.Z., 194 N.C. App. 142, 147, 669 S.E.2d 55, 59 (2008), aff d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009). These unchallenged findings fully support the conclusion that Josiah and Susan were neglected and dependent juveniles, irrespective of the truth of their sexual abuse allegations. dismissed their Moreover, the fact that respondent-mother allegations and remained with Mr. W. well before his evaluation by Dr. Kraft was properly considered by the court in assessing the extant risks to the children. Respondent-mother counsel s failure adjudicatory to hearing. has not introduce shown Dr. Accordingly, she was Kraft s we find prejudiced report no at abuse by the of -15discretion by the district court in denying relief pursuant to Rule 59(a)(9) and 60(b)(4). her motion for See In re L.C., 181 N.C. App. 278, 283, 638 S.E.2d 638, 641 (2007) ( Because respondent has failed to demonstrate the prejudice he suffered, he has likewise failed to establish his claim of ineffective assistance of counsel. ). Remaining Issues To the extent respondent-mother claims excusable neglect as a basis for relief under N.C.R. Civ. P. 60(b)(1), we find that she failed to present this issue to the district court and may not now swap horses between courts in order to get a better mount [on appeal]. Regions Bank v. Baxley Commercial Props., LLC, 206 N.C. App. 293, 298-99, 697 S.E.2d 417, 421 (2010) (quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996)); see also N.C.R. App. P. 10(a)(1). We likewise reject respondent-mother s suggestion that the order denying her motion lacks sufficient findings of fact and conclusions of law respondent-mother did and not is impermissibly request the vague. entry of Because findings and conclusions pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(2), none were required. Creasman v. Creasman, 152 N.C. App. 119, 124, 566 S.E.2d 725, 729 (2002) ( A trial court is not required -16to make written findings of fact when ruling on a Rule 60(b) motion, unless requested to do so by a party. ); Edge v. Metropolitan Life Ins. Co., 78 N.C. App. 624, 626, 337 S.E.2d 672, 674 (1985) (same for Rule 59(a)). Finally, we find no merit to respondent-mother s argument that the district court erred by characterizing her claims under Rules 59 and 60 as more appropriately classified as appellate issues redressable under N.C. Gen. Stat. § 7B-1001 (2013). court also found no evidentiary or relief pursuant to Rule 59 or 60[.] factual basis to The grant [A] correct decision of a lower court will not be disturbed because the reason assigned for it is wrong, insufficient, or superfluous. The question on review of the decision in this Court is whether the ruling of the court below was correct, not whether the reason given for it is sound or tenable. State v. Parker, 316 N.C. 295, 302, 341 S.E.2d 555, 559 (1986). Conclusion Respondent-mother does not contest the disposition orders entered on 17 July 2013. adjudication and The district court did not abuse its discretion in denying her Rule 59 and 60 motion. Accordingly, we affirm each of these orders. -17AFFIRMED. Judges GEER and McCULLOUGH concur. Recommend Report per Rule 30(e).

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