In re L.G.O

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1454 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014 In THE MATTER OF: Martin County Nos. 12 JA 62-63 L.G.O., C.B.M. Appeal by respondent-mother from orders entered 22 October 2013 by Judge Christopher B. McLendon in Martin County District Court. Heard in the Court of Appeals 11 June 2014. J. Edward Yeager, Jr., for petitioner-appellee County Department of Social Services. Martin Rebekah W. Davis, for respondent-appellant. Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem. CALABRIA, Judge. Respondent-mother adjudicating L.G.O. ( respondent ) ( Logan ) and appeals C.B.M. (collectively the juveniles )1 neglected juveniles. 1 from orders ( Carter ) We affirm. Pseudonyms are used throughout this opinion to protect the juveniles privacy and for ease of reading. -2After receiving reports that respondent had a substance abuse problem, the Martin County Department of Social Services ( DSS ) filed neglected on a 6 petition December alleging 2012. that the juveniles Specifically, DSS were recounted instances where respondent was driving impaired, with Logan in the vehicle. The juveniles were subsequently taken into non- secure custody and placed with their respective fathers. Adjudicatory August 2013. The trial and dispositional hearings were held on 27 The juveniles were both adjudicated neglected. court found that the juveniles had been in the physical custody of their respective fathers for nine months and were thriving in their care. The court concluded that it was in the best interests of the juveniles to place them in the custody of their respective fathers. Respondent was granted visitation rights and ordered not to be impaired or under the influence of any impairing substance while exercising visitation. Respondent appeals. Respondent argues that the findings of fact do not support a conclusion that the juveniles were neglected. respondent contends that there is insufficient Specifically, evidence to support the trial court s findings of fact regarding her alleged substance abuse and Logan s physical health. We disagree. -3 Neglected juvenile is defined in N.C. Gen. Stat. § 7B101(15) as [a] juvenile who does not receive proper care, supervision, or discipline from the juvenile s parent, guardian, custodian, or caretaker; . . . or who lives in an environment injurious to the juvenile s welfare[.] 101(15) (2013). To sustain an N.C. Gen. Stat. § 7B- adjudication of neglect, this Court has stated that the alleged conditions must cause the juvenile create some a physical, substantial mental, risk of or emotional such impairment, impairment. See In or re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993). N.C. Gen. Stat. § 7B-101(15) 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 N.G., 186 N.C. App. 1, 8-9, 650 S.E.2d 45, 50 (2007) (citation omitted). If the court finds that a child is neglected, then the court may also find that any other child residing in the same home is also neglected. In re C.M., 198 N.C. App. 53, 65-66, 678 S.E.2d 794, 801 (2009). The role adjudication of of this neglect Court and in reviewing abuse [and a trial dependency] court s is to determine (1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal -4conclusions are supported by the findings of fact[.] In re T.H.T., (2007) 185 N.C. App. (citation omitted). 337, 343, 648 S.E.2d 519, 523 If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support omitted). a finding to the contrary. Id. (citation The trial court s conclusions of law are reviewable de novo on appeal. In re D.M.M., 179 N.C. App. 383, 385, 633 S.E.2d 715, 716 (2006) (citation omitted). In the instant case, the trial court s findings demonstrate that respondent was driving under the influence of an impairing substance on two separate occasions when one of her children was with her in her car. However, respondent contends the evidence was insufficient to support the trial court s findings. respondent contends that there was insufficient First, evidence to support a finding that she was driving while impaired on 16 November 2012. Specifically, respondent claims that Trooper Steven Bryant ( Trooper Bryant ) of the North Carolina State Highway Patrol ( NCSHP ) was dishonest when he testified that respondent was impaired when he stopped her vehicle. The trial court found that respondent was stopped at a driver s license checkpoint in Washington, North Carolina around 11:00 p.m. on 16 November 2012 with Logan in the car. At the hearing, Trooper -5Bryant testified that she was unsteady on her feet, in a daze, and unresponsive to questioning by the Trooper who stopped her. Respondent was in possession of controlled substances, including some that were not packaged in her name, and was under the influence of some impairing substance. Respondent asserts that Trooper Bryant had no personal knowledge of the stop because another officer actually handled the stop. Assuming, arguendo, that Trooper Bryant s testimony should have been stricken, we note that NCSHP Sergeant Brandon Craft also testified that respondent was, in his opinion, impaired. See In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (it is the trial judge s duty to weigh and consider all competent evidence, and pass witnesses, the weight to be reasonable inferences to be upon given drawn the their credibility of the testimony and the Thus, we therefrom. ). conclude that the trial court did not err when it found that respondent was driving while impaired on 16 November 2012. Second, respondent contends there was insufficient evidence that she was impaired when she drove to the Medicaid Office on 3 December 2012 with Logan. Martin County However, Anna Manning ( Manning ), an income and family maintenance caseworker for Family and Children s Medicaid in Martin County, testified -6that respondent was very unstable, unsteady on her feet. Her speech was slurred. Her eyes looked weak-looking [sic], and her speech was, kind of, like thick-tones [sic] and very slow. She acted confused. In Manning s opinion, respondent was impaired. While respondent attempts to provide other alternatives for her conduct and appearance on 3 December 2012, the trial court was free to reject any evidence to the contrary and give greater weight to Manning s testimony. Although the trial court did not find that either juvenile suffered any injury or impairment from respondent s actions on these occasions, we conclude that the trial court did not err when it found that respondent was impaired. Third, respondent argues that the evidence does not support findings number that of randomly[,] she was obtaining controlled prescriptions substances from for different a large doctors, and without regard to the proper treatment of a medical condition[.] Further, respondent contends the evidence does not support a finding that she exceeded the amount of pain medication recommended by her doctor[.] that respondent had prescriptions for The trial court found various controlled substances and her prescription record indicated a substantial use of controlled substance pain medication. However, neither -7finding of findings fact merely states state what that respondent respondent suggests. possessed substantial amount of controlled substances. and The two used a Respondent does not contend that the evidence fails to support the trial court s findings of fact as stated. Fourth, respondent challenges the trial court s findings that Logan Respondent suffered claims from that scabies, this finding lice, was and taken body from sores. Logan s father s testimony, and notes that social workers, babysitters or preschool staff had not previously noticed these afflictions. Nevertheless, respondent concedes that testimony supports this finding of fact. fact is binding on appeal. Logan s father s Thus, this finding of In re D.M.M., 179 N.C. App. at 385, 633 S.E.2d at 716. Each of respondent s contested findings are supported by competent evidence. presented to the Therefore, we conclude that the evidence trial court, as well as the trial court s findings of fact, support a conclusion that the juveniles were at substantial risk of injury or impairment. See In re Safriet, 112 N.C. App. at 752, 436 S.E.2d at 902 (the juvenile need not suffer physical, mental, or emotional impairment, but only be at substantial risk of impairment). Moreover, as noted by the -8finding of fact concerning Logan s physical ailments, it is clear that at least one of the juveniles suffered physical harm due to respondent s neglectful behavior. the trial court did not err Carter neglected juveniles. by Accordingly, we hold adjudicating both Logan and Respondent s arguments are without merit. Respondent finally argues that the trial court s dispositional order should be reversed because the trial court failed to hold a proper hearing, and there was no competent evidence to support the court s dispositional findings. We disagree. Following an adjudication of neglect, abuse, or dependency, the court proceeds to the dispositional stage. At the dispositional hearing, the trial court must make a determination based on the best interests of the child, and the trial court s decision will not be overturned absent an abuse of discretion. In re Dexter, 147 N.C. App. 110, 114, 553 S.E.2d 922, 924 25 (2001). Although adjudicatory and dispositional hearings require the application of different evidentiary standards at each stage, there is no requirement that the adjudicatory and dispositional hearings be conducted at two separate times. In re O.W., 164 N.C. App. 699, 701, 596 S.E.2d 851, 853 (2004). In -9fact, [t]he dispositional hearing may be informal and the court may consider written reports or other evidence concerning the needs of the juvenile. N.C. Gen. Stat. § 7B-901 (2013). At the adjudication stage in the instant case, the court heard evidence concerning respondent s substance abuse and the condition of juveniles fathers. respective the At upon the their placement conclusion of the with their adjudicatory hearing, the court then received the guardian ad litem and DSS reports into evidence. The DSS report raised concerns regarding respondent s treatment cooperation programs. with The DSS DSS and report failure also to noted complete that both juveniles were happy and content in their current placements with their respective fathers. Since the trial court considered the reports and the evidence, we hold that the trial court held a proper dispositional hearing. Furthermore, there was competent evidence upon which the court could determine the best interests of the juveniles. Accordingly, we affirm. Affirmed. Judges STROUD and DAVIS concur. Report per Rule 30(e).

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