In re: G.T. , 250 N.C. App. 50 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-353
Filed: 18 October 2016
Buncombe County, No. 15 JA 187
IN THE MATTER OF: G.T.
Appeal by respondent-mother from orders entered 3 and 26 February 2016 by
Judge Ward D. Scott in Buncombe County District Court. Heard in the Court of
Appeals 19 September 2016.
Matthew J. Putnam for petitioner-appellee Buncombe County Department of
Social Services.
Joyce L. Terres for respondent-appellant mother.
Michael N. Tousey for guardian ad litem.
McCULLOUGH, Judge.
Respondent-mother appeals from: (1) an adjudication order concluding that
G.T. (“Gavin”)1 was a neglected and dependent juvenile; and (2) a disposition order
concluding that it was in the juvenile’s best interest to remain in the custody of the
Buncombe County Department of Health and Human Services (“DHHS”) and that
reasonable reunification efforts with respondent-mother shall cease. After careful
review, we affirm the trial court’s adjudication order, but reverse the disposition order
in part.
1 A pseudonym is used to protect the identity of the juvenile and for ease of reading.
IN RE: G.T.
Opinion of the Court
I. Background
In early July 2015, DHHS obtained non-secure custody of Gavin and filed a
petition alleging that he was a neglected and dependent juvenile. Gavin was a
newborn at the time, and both he and his mother were still in the hospital. The
petition alleged that respondent-mother used marijuana, methamphetamine, and
cocaine during her pregnancy, and that Gavin had a rapid heartbeat and was showing
signs of withdrawal. Gavin’s toxicology results were still pending at the time of the
petition. The petition also alleged that respondent-mother was belligerent and
combative with hospital staff, refused to take her psychiatric medication, and was
being held on an involuntary commitment. During one instance, respondent-mother
had to be restrained and Gavin removed from her arms. Further, the petition alleged
that respondent-mother had a domestic violence protective order (“DVPO”) against
Gavin’s father. He allegedly stabbed respondent-mother and dislocated her jaw, had
several criminal charges pending as a result, and had a concerning criminal history.
The trial court held a hearing on 12 November 2015 and subsequently entered
an adjudication and interim disposition order. Respondent-mother stipulated that
the allegations contained in the petition, with some modifications, could be found as
fact by the trial court by clear and convincing evidence. Based on the stipulated
findings of fact, the trial court concluded that Gavin was a neglected and dependent
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IN RE: G.T.
Opinion of the Court
juvenile. In the interim disposition portion of the order, the trial court concluded that
it was in Gavin’s best interest to remain in DHHS custody.
The trial court held a disposition hearing on 3 December 2015 and
subsequently entered a disposition order. The trial court concluded that it was in
Gavin’s best interest to remain in DHHS custody. The trial court also directed that,
pursuant to N.C. Gen. Stat. § 7B-901(c) (2015), reasonable reunification efforts with
respondent-mother shall cease. This conclusion was based upon the trial court’s
finding that Gavin was subjected to chronic or toxic exposure to controlled substances
that resulted in impairment of and addiction in Gavin at birth. Respondent-mother
timely appeals.2
II. Discussion
A. Adjudication of Neglect
On appeal, respondent-mother first challenges the trial court’s adjudication of
neglect. Review of a trial court’s adjudication of neglect requires a determination as
to (1) whether clear and convincing evidence supports the findings of fact, and
(2) whether the findings of fact support the legal conclusions. In re Pittman, 149 N.C.
App. 756, 763-64, 561 S.E.2d 560, 566 (2002) (citation omitted). “In a non-jury neglect
adjudication, the trial court’s findings of fact supported by clear and convincing
competent evidence are deemed conclusive, even where some evidence supports
2 The father was a party to the trial court proceedings but does not appeal.
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IN RE: G.T.
Opinion of the Court
contrary findings.” In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997)
(citations omitted). If competent evidence supports the findings, they are “binding on
appeal.” In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (citations
omitted). Here, respondent-mother does not dispute the fact that her stipulation to
the findings of fact was proper. As a result, the findings of fact are presumed to be
supported by competent evidence and are binding on appeal. See In re M.D., 200 N.C.
App. 35, 43, 682 S.E.2d 780, 785 (2009).
Respondent-mother, however, argues that the trial court’s findings of fact are
not sufficient to support the trial court’s conclusion that Gavin was a neglected
juvenile. She contends that none of the trial court’s findings of fact relate to her care
of Gavin, show that Gavin suffered an impairment, or prove a nexus between her
drug use and any harm to Gavin. We disagree.
A neglected juvenile is defined as:
A juvenile 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) (2015). Additionally, this Court has consistently
required that “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
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IN RE: G.T.
Opinion of the Court
provide proper care, supervision, or discipline in order to adjudicate a juvenile
neglected.” In re McLean, 135 N.C. App. 387, 390, 521 S.E.2d 121, 123 (1999)
(internal quotations omitted) (emphasis in original).
In arguing that the findings do not support an adjudication of neglect,
respondent-mother focuses largely on the findings of fact regarding her drug use
while pregnant. However, she overlooks the fact that the trial court made findings
regarding the father’s domestic violence towards her and took judicial notice of
respondent-mother’s DVPO, both of which support the adjudication of neglect. In the
DVPO, a district court found as follows: the father placed respondent-mother in the
fear of imminent serious bodily injury; he placed her in the fear of continued
harassment that rises to such a level as to inflict substantial emotional distress; he
inflicted serious injury upon respondent-mother in that he dislocated her jaw and
stabbed her; and he made threats to kill or seriously injure respondent-mother. As a
result of these findings, the district court entered a no-contact order against the
father. Furthermore, the stipulated findings show that the father was charged
criminally based on his actions, that he held a gun to respondent-mother’s head, and
that he threatened to kill her. Despite the no-contact order, the father was at the
hospital following Gavin’s birth.
Respondent-mother’s erratic behavior in the hospital also supports the
adjudication of neglect. The findings demonstrate that respondent-mother was being
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IN RE: G.T.
Opinion of the Court
held on an involuntary commitment, that she was belligerent towards hospital staff,
and that the hospital staff would not permit respondent-mother to be alone with
Gavin.
Lastly, the findings clearly show that respondent-mother used controlled
substances during her pregnancy. She originally admitted to using marijuana,
cocaine, and methamphetamine. She later altered her story, claiming that the father
laced her marijuana with cocaine and denying the use of methamphetamine. It was
well within the trial court’s discretion to believe her original admission. However,
even if respondent-mother’s story is believed, she still admitted to using illegal drugs
while pregnant. Therefore, contrary to respondent-mother’s assertion, the findings
of fact sufficiently establish that Gavin suffered actual exposure to controlled
substances while in utero.
We therefore conclude that the findings were sufficient for the trial court to
conclude that Gavin did not receive proper care, supervision, or discipline from his
parent and that he lived in an environment injurious to his welfare. Gavin suffered
an actual impairment due to his exposure to controlled substances, and respondent-
mother’s erratic behavior and disregard for the DVPO exposed him to a substantial
risk of impairment. Additionally, we have repeatedly held that it is proper for a trial
court to adjudicate a juvenile neglected, even if the juvenile never actually resided in
the parent’s home, as is the case here. See, e.g., In re B.M., 183 N.C. App. 84, 89, 643
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IN RE: G.T.
Opinion of the Court
S.E.2d 644, 647 (2007) (affirming an adjudication of neglect where a nine-day-old was
removed from the mother’s custody after testing positive for cocaine, the mother
admitted to using cocaine prior to the juvenile’s birth, there was domestic violence
between the parents, and the mother refused to sign a safety agreement); see also In
re A.S., 190 N.C. App. 679, 690, 661 S.E.2d 313, 320 (2008), aff’d., 363 N.C. 254, 675
S.E.2d 361 (2009) (“When . . . the juvenile being adjudicated has never resided in the
parent’s 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.”) (internal quotation marks
and citation omitted). Accordingly, we conclude that the trial court did not err in
concluding that Gavin was a neglected juvenile.
B. Dispositional Determination
Next, respondent-mother challenges the trial court’s dispositional
determination to cease reasonable reunification efforts pursuant to N.C. Gen. Stat.
§ 7B-901(c) (2015).
In 2015, the North Carolina General Assembly made amendments to our
Juvenile Code, specifically to those sections pertaining to permanency planning
hearings and orders, the implementation of permanent plans, and the cessation of
reunification efforts with a parent. See N.C. Sess. L. 2015-136. Because the
amendments apply to all actions filed or pending on or after 1 October 2015, they are
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IN RE: G.T.
Opinion of the Court
applicable to the instant case. As part of the amendments, the General Assembly
added subsection (c) to N.C. Gen. Stat. § 7B-901, the section governing a trial court’s
initial disposition hearing. The new subsection (c) permits the trial court to cease
reunification efforts at an initial disposition hearing under certain circumstances.
This section provides, in pertinent part, as follows:
(c) If the disposition order places a juvenile in the
custody of a county department of social services, the
court shall direct that reasonable efforts for
reunification as defined in G.S. 7B-101 shall not be
required if the court makes written findings of fact
pertaining to any of the following:
(1) A court of competent jurisdiction has
determined that aggravated circumstances
exist because the parent has committed or
encouraged the commission of, or allowed the
continuation of, any of the following upon the
juvenile:
a. Sexual abuse.
b. Chronic physical or emotional abuse.
c. Torture.
d. Abandonment.
e. Chronic or toxic exposure to alcohol or
controlled substances that causes
impairment of or addiction in the
juvenile.
f. Any other act, practice, or conduct that
increased the enormity or added to the
injurious consequences of the abuse or
neglect.
(2) A court of competent jurisdiction has
terminated involuntarily the parental rights
of the parent to another child of the parent.
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IN RE: G.T.
Opinion of the Court
(3) A court of competent jurisdiction has
determined that (i) the parent has committed
murder or voluntary manslaughter of another
child of the parent; (ii) has aided, abetted,
attempted, conspired, or solicited to commit
murder or voluntary manslaughter of the
child or another child of the parent; (iii) has
committed a felony assault resulting in
serious bodily injury to the child or another
child of the parent; (iv) has committed sexual
abuse against the child or another child of the
parent; or (v) has been required to register as
a sex offender on any government-
administered registry.
N.C. Gen. Stat. § 7B-901(c)(1)-(3) (2015).
In the instant case, the trial court concluded that reasonable reunification
efforts with respondent-mother were not required. This conclusion was based upon
the following ultimate finding:
Pursuant to N.C.G.S. § 7B-901(c), the Court hereby directs
that reasonable reunification efforts with the respondent
mother are not required as a result of:
a. The respondent mother’s admission of continued
substance abuse resulting in impairment of, and
addiction in, the juvenile at birth.
b. Respondent mother’s apparent lack of
understanding or concern about the toxic effect of
chronic substance abuse on the minor child.
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IN RE: G.T.
Opinion of the Court
Thus, the trial court’s determination to cease reunification efforts was based on
subsection (c)(1)(e): chronic or toxic exposure to alcohol or controlled substances that
causes impairment of or addiction in the juvenile.
Respondent-mother challenges the trial court’s determination based on several
grounds. She first argues the statute’s use of the term “has determined” must
reference a prior adjudication hearing. Therefore, she argues, the statute directs the
trial court to make the determination regarding chronic or toxic exposure to
controlled substances in a prior adjudication order. Respondent-mother argues that
because the trial court here made the determination in a disposition order, it is
erroneous. For the reasons that follow, we agree.
The issue raised by respondent-mother is one of statutory interpretation. Our
Supreme Court has repeatedly held that “[s]tatutory interpretation properly begins
with an examination of the plain words of the statute.” Lanvale Properties, LLC v.
Cty. of Cabarrus, 366 N.C. 142, 154, 731 S.E.2d 800, 809 (2012) (internal quotation
marks and citations omitted). “ ‘Questions of statutory interpretation are questions
of law[.] . . . The primary objective of statutory interpretation is to give effect to the
intent of the legislature. The plain language of a statute is the primary indicator of
legislative intent.’ ” Purcell v. Friday Staffing, 235 N.C. App. 342, 346-47, 761 S.E.2d
694, 698 (2014) (quoting First Bank v. S & R Grandview, L.L.C., 232 N.C. App. 544,
546, 755 S.E.2d 393, 394 (2014) (internal citations omitted)). “If the language of the
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IN RE: G.T.
Opinion of the Court
statute is clear and is not ambiguous, we must conclude that the legislature intended
the statute to be implemented according to the plain meaning of its terms.” Lanvale
Properties, 366 N.C. at 154, 731 S.E.2d at 809 (quotation marks and citations
omitted).
Section 7B-901(c)(1), in pertinent part, states that the trial court shall direct
reasonable reunification efforts to cease if the trial court makes a finding that:
(1) A court of competent jurisdiction has determined
that aggravated circumstances exist because the
parent has committed or encouraged the commission
of, or allowed the continuation of, any of the
following upon the juvenile:
....
e. Chronic or toxic exposure to alcohol or
controlled substances that causes impairment
of or addiction in the juvenile.
N.C. Gen. Stat. § 7B-901(c)(1)(e) (emphasis added). Thus, the dispositional court
must make a finding that “[a] court of competent jurisdiction has determined” that
the parent allowed one of the aggravating circumstances to occur. We conclude that
the language at issue is clear and unambiguous and that in order to give effect to the
term “has determined,” it must refer to a prior court order. The legislature
specifically used the present perfect tense in subsections (c)(1) through (c)(3) to define
the determination necessary. Use of this tense indicates that the determination must
have already been made by a trial court—either at a previously-held adjudication
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IN RE: G.T.
Opinion of the Court
hearing or some other hearing in the same juvenile case, or at a collateral proceeding
in the trial court. The legislature’s use of the term “court of competent jurisdiction”
also supports this position. Use of this term implies that another tribunal in a
collateral proceeding could have made the necessary determination, so long as it is a
court of competent jurisdiction.
We further find that the legislature’s use of a contrasting verb tense in the
main body of Section 7B-901(c) supports our statutory interpretation. Rather than
using the present perfect tense, the main body states that the trial court “shall direct”
reunification efforts to cease if the court “makes written findings of fact.” N.C. Gen.
Stat. § 7B-901(c) (emphasis added). Had the legislature intended for the trial court
to make the determination at a disposition proceeding, the verb tense used in
subsection (1) would have mirrored that of the main body of Section 7B-901(c). Thus,
by our plain reading of the statute, if a trial court wishes to cease reunification efforts
pursuant to N.C. Gen. Stat. § 7B-901(c)(1)(e), it must make findings at disposition
that a court of competent jurisdiction has already determined that the parent allowed
the continuation of chronic or toxic exposure to alcohol or controlled substances that
causes impairment of or addiction in the juvenile.
Here, the trial court made no such finding. The adjudication order contains no
ultimate finding of fact that respondent-mother allowed the continuation of chronic
or toxic exposure to controlled substances that caused impairment of or addiction in
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IN RE: G.T.
Opinion of the Court
Gavin. Although the trial court’s adjudication order contains anecdotal evidence
regarding respondent-mother’s drug use while pregnant, the findings state that the
toxicology results were still pending, and the findings regarding Gavin’s withdrawal
and impairment were framed in terms of allegations received by DHHS, not in terms
of conclusive findings of fact. Therefore, while the overall findings of fact were
sufficient to sustain an adjudication of neglect, the specific findings related to Gavin’s
exposure to controlled substances were not sufficient to sustain an ultimate finding
pursuant to N.C. Gen. Stat. § 7B-901(c)(1)(e).
Because the trial court erroneously concluded that reasonable reunification
efforts must cease pursuant to N.C. Gen. Stat. § 7B-901(c)(1)(e), we reverse that
portion of the trial court’s disposition order.
C. Denial of Respondent-Mother’s Continuance
In her final argument, respondent-mother essentially contends that the trial
court erred by denying her a continuance to prepare for a hearing on the issue of
whether the trial court was required to cease reasonable reunification efforts
pursuant to N.C. Gen. Stat. § 7B-901(c). Respondent-mother argues that she did not
have notice of the guardian ad litem’s intent to raise the issue at the disposition
hearing, and that she has a right to notice and effective representation. She further
contends that by denying a continuance of the matter, the trial court denied her
effective assistance of counsel. However, because we have reversed the trial court’s
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IN RE: G.T.
Opinion of the Court
dispositional determination ceasing reunification efforts pursuant to N.C. Gen. Stat.
§ 7B-901(c), her argument is mooted. Accordingly, we need not address respondent-
mother’s final argument on appeal.
AFFIRMED AS TO ADJUDICATION ORDER; REVERSED IN PART AS TO
DISPOSITION ORDER.
Judge DILLON concurs in part and dissents in part in a separate opinion.
Judge ENOCHS concurs
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No. COA16-353 – IN RE: G.T.
DILLON, Judge, concurring in part and dissenting in part.
I. Discussion
A. Adjudication of Neglect
I concur with the majority that the trial court did not err in concluding that
Gavin was a neglected juvenile at the adjudication phase of the proceeding.
B. Dispositional Determination
I dissent from the majority’s conclusion that the trial court erred by directing
that reasonable reunification efforts must cease pursuant to N.C. Gen. Stat. § 7B-
901(c)(1)e. in its Initial Dispositional Order.3
The version of N.C. Gen. Stat. § 7B-901(c)(1)e. applicable to this proceeding
provides that if the trial court finds that “[a] court of competent jurisdiction has
determined that” one of the aggravated circumstances enumerated in the statute
exists, then the trial court must “direct that reasonable efforts for reunification . . .
shall not be required[.]” N.C. Gen. Stat. § 7B-901(c)(1)e. (2013). 4
3 The trial court did not demand that the county reunification efforts cease. Rather, the court
simply stated that the county was “not required” to use reasonable efforts for reunification, tracking
the language of N.C. Gen Stat. § 7B-901(c).
4 This statute has since been amended (during the 2016 short session) to provide the trial court
more discretion. Specifically, under the statute’s current version, even where the trial court makes a
finding concerning the existence of an aggravated circumstance, the trial court may, nonetheless,
direct that reasonable efforts for reunification continue if the trial court “concludes that there is
compelling evidence warranting continued reunification efforts[.]” 2016 Appropriations Act, §
12C.1.(g), Session Law 2016-94 (codified as amended at N.C. Gen. Stat. § 7B-901(c)(2016)).
IN RE: G.T.
DILLON, J., concurring in part and dissenting in part
In the present case, the court determined itself that one of the enumerated,
aggravated circumstances did exist; namely, that Mother has “allowed the
continuation” of “[c]hronic or toxic exposure to alcohol or controlled substances that
causes impairment of [Gavin].” Id. The court’s determination was based on its
findings that Mother had used controlled substances while she was pregnant with
Gavin, that Gavin was currently impaired and was undergoing treatment due to his
exposure to these drugs, and that Mother still used and intended to continue using
illegal drugs. Specifically, the trial court found that: (1) Mother “tested positive for
benzos”; (2) Mother admitted that she was currently using marijuana; (3) Gavin “has
withdrawal symptoms and has been on methadone for months, which shows the toxic
effects of chronic exposure to [Mother’s] use of controlled substances during
pregnancy”; and (4) Mother “intends to continue to use marijuana despite the impact
her illegal drug use has had on her ability to parent.” Accordingly, the trial court
concluded that reasonable efforts for reunification were not required pursuant to N.C.
Gen. Stat. § 7B-901(c)(1)e.
The majority concludes that the trial court erred in directing that reasonable
efforts for reunification were not required. The majority reaches this conclusion
based on its reading of a portion of N.C. Gen. Stat. § 7B-901(c), which provides that
the trial court (at the initial dispositional hearing stage) shall direct that
reunification efforts no longer be required if that court finds that “[a] court of
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IN RE: G.T.
DILLON, J., concurring in part and dissenting in part
competent jurisdiction has determined that” an aggravated circumstance exists. N.C.
Gen. Stat. § 7B-901(c). The majority reads this language to mean that the trial court
cannot direct that reunification efforts are no longer required based on its own
determination that an aggravated circumstance exists. Rather, the majority reads
the statutory language to mean that the determination regarding the existence of an
aggravated circumstance must be made in some prior order by a court of competent
jurisdiction, either in the same cause or in some other proceeding.
I disagree with the majority’s restrictive reading of N.C. Gen. Stat. § 7B-901(c).
I agree with the majority that the statutory language provides that the trial court at
the initial dispositional hearing stage may rely on a determination made in some
prior order. But I also believe that the General Assembly intended that the court at
that stage could itself consider evidence and determine the existence of an aggravated
circumstance, and, based on its own determination, conclude that “a court of
competent jurisdiction” has made the determination sufficient to relieve DSS from
having to pursue reunification. Certainly, the Buncombe County District Court is “a
court of competent jurisdiction,” whether at the initial dispositional hearing phase or
at some prior stage of the proceeding. And, here, that court at the initial dispositional
phase “has determined” that an aggravated circumstance exists.
Under the majority’s interpretation of the statute, the trial court here would
not have committed error if it had simply entered two separate orders, instead of one;
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IN RE: G.T.
DILLON, J., concurring in part and dissenting in part
namely, an order determining the existence of the aggravated circumstance and then
an initial dispositional order based on the first order’s determination. However,
under the majority’s interpretation, the trial court here committed error simply by
issuing a single order combining these two steps. I do not think this result was
intended by the General Assembly, and this result is certainly not compelled by the
phrase “has determined” in the statute. Rather, I believe that the General Assembly
intended that a trial court, even at the initial dispositional hearing phase, continued
to have authority to consider any reliable evidence and make any determination(s)
based on that evidence as to the presence of an aggravated circumstance in its effort
to determine the appropriate plan for the juvenile. See In re Vinson, 298 N.C. 640,
666, 260 S.E.2d 591, 607 (1979) (discussing the broad powers of the district court to
consider evidence and matters at the dispositional phase).
C. Denial of Mother’s Continuance
Mother argues that the trial court erred in denying her a continuance to
prepare for a hearing, contending that she was not aware that the issue regarding
reunification efforts would be raised. The majority held that this issue was moot
based on its reversal of the dispositional order. I would reach this third issue.
Based on my review of the record, I conclude that the trial court did not err in
proceeding with the hearing. Here, competent evidence demonstrates that Gavin was
exposed to toxic substances during the pregnancy and that he was required to receive
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IN RE: G.T.
DILLON, J., concurring in part and dissenting in part
treatment from birth for many months. Mother stipulated that she used cocaine,
methamphetamines, and marijuana during the pregnancy. There were undisputed
reports that Gavin was receiving methadone to treat his addiction and that he was
suffering from tremors. See In re L.G.I., 227 N.C. App. 512, 515-16, 742 S.E.2d 832,
835 (2013) (determining that evidence of illegal drugs in a newborn’s system coupled
with the mother’s admission that she used illegal drugs during the pregnancy is
sufficient to support a conclusion that the mother’s drug use caused the presence of
illegal drugs in her newborn). This evidence was sufficient to sustain the trial court’s
determination that Gavin was impaired due to his exposure to illegal drugs consumed
by Mother during the pregnancy; and the trial court did not err in proceeding with
the hearing. See In re Vinson, 298 N.C. at 669, 260 S.E.2d at 608 (stating that a trial
court may consider matters not raised in the petition during a dispositional hearing,
so long as the information is reliable, accurate, and competently obtained).
II. Conclusion
My vote is to affirm Judge Scott’s orders.
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