In re C.A.G. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-928
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN THE MATTER OF: Sampson County
No. 12 JA 94
C.A.G.
Appeal by respondent from orders entered 21 May 2013 by
Judge James L. Moore, Jr. in Sampson County District Court.
Heard in the Court of Appeals 10 December 2013.
Warrick and Bradshaw, P.A., by Frank L. Bradshaw, for
petitioner Sampson County Department of Social Services.
Administrative Office of the Courts, by Appellate Counsel
Tawanda N. Foster, for guardian ad litem.
Leslie Rawls for respondent-grandmother.
DILLON, Judge.
Respondent-grandmother, custodian of the minor child C.A.G.
(“Caleb”)1, appeals from orders adjudicating Caleb an abused and
neglected juvenile and designating respondent-grandmother a
responsible individual pursuant to N.C. Gen. Stat. § 7B-
311(b)(2)(b) (2011).
1
A pseudonym is used to protect the juvenile’s privacy.
-2-
The Sampson County Department of Social Services (“DSS”)
filed a juvenile petition on 17 August 2012, alleging that Caleb
was abused and neglected and that both respondent-grandmother
and Caleb’s mother had abused or seriously neglected Caleb such
that they were responsible individuals as defined by N.C. Gen.
Stat. § 7B-101(18a) (2011). At the time the petition was filed,
Caleb lived with respondent-grandmother, who was granted legal
custody of the juvenile by the Cumberland County District Court
in January of 2012. DSS obtained non-secure custody of Caleb on
17 August 2012 and placed him in foster care.
After hearing evidence on 19, 20, and 21 March 2013, the
district court entered an order adjudicating Caleb an abused and
neglected juvenile on 21 May 2013. In a separate dispositional
order, the court ordered that Caleb remain in DSS custody and
that a home study of his maternal uncle be conducted.
Respondent-grandmother was denied visitation with the juvenile
“unless [she] first completes two consecutive and random
negative drug screenings and the Juvenile’s therapist recommends
such visitations.”
Although respondent-grandmother gave notice of appeal from
both orders entered 21 May 2013, she confines her appellate
arguments to the adjudication order. In reviewing the district
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court’s adjudication order under N.C. Gen. Stat. § 7B-807
(2011), we must determine “‘(1) whether the findings of fact are
supported by “clear and convincing evidence,” and (2) whether
the legal conclusions are supported by the findings of fact[.]’”
In re T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007)
(citation omitted). Unchallenged findings of fact are deemed to
be supported by the evidence and are binding on appeal. In re
C.B., 180 N.C. App. 221, 223, 636 S.E.2d 336, 337 (2006). The
court’s conclusion that a juvenile is abused or neglected is
reviewed de novo. In re N.G., 186 N.C. App. 1, 15, 650 S.E.2d
45, 54 (2007).
In her first two arguments, respondent-grandmother
challenges sixty of the district court’s 276 enumerated
findings. Forty-seven of the findings, she contends, merely
recite witness testimony and thus do not constitute the
affirmative findings required of a court acting as trier of
fact. See In re L.B., 184 N.C. App. 442, 450, 646 S.E.2d 411,
415 (2007) (providing that “verbatim recitations of the
testimony of each witness do not constitute findings of fact by
the trial judge”) (citation omitted) (emphasis in original).
Respondent-grandmother objects to thirteen additional findings
as involving “post-petition” events irrelevant to an
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adjudication of the allegations filed by DSS on 17 August 2012.
In re A.B., 179 N.C. App. 605, 609, 635 S.E.2d 11, 14 (2006).
She further notes that these findings reflect disclosures to, or
observations by, psychologist and expert witness Lauren A.
Rockwell. While such evidence is admissible to show the basis
for an expert’s opinion under N.C.R. Evid. 703, respondent-
grandmother insists that it cannot be used as substantive
evidence of adjudicatory facts. See State v. Golphin, 352 N.C.
364, 467, 533 S.E.2d 168, 235 (2000) (“Testimony as to matters
offered to show the basis for a physician’s opinion and not for
the truth of the matters testified to is not hearsay. . . .
‘[S]uch testimony is not substantive evidence.’”) (Citation
omitted).
We find respondent-grandmother’s exception to these sixty
findings to be well taken. Neither the court’s findings that a
witness “testified” a certain way nor its findings about events
that occurred after DSS filed its petition were proper bases for
an adjudication of abuse or neglect. See In re L.B., 184 N.C.
App. at 450, 646 S.E.2d at 415; In re A.B., 179 N.C. App. at
609, 635 S.E.2d at 14.
Nonetheless, this Court has previously held that “erroneous
findings unnecessary to the determination do not constitute
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reversible error” where an adjudication is supported by
sufficient additional findings grounded in competent evidence.
In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006)
(citing In re Beck, 109 N.C. App. 539, 548, 428 S.E.2d 232, 238
(1993)). The district court’s remaining adjudicatory findings,
as supported by the testimony at the hearing, amply support its
conclusions that Caleb is an abused and neglected juvenile.
The Juvenile Code defines an “abused” juvenile as one
“whose parent, guardian, custodian, or caretaker . . . [c]reates
or allows to be created a substantial risk of serious physical
injury to the juvenile by other than accidental means[,]” or
“[c]reates or allows to be created serious emotional damage to
the juvenile[.]” N.C. Gen. Stat. § 7B-101(1) (2011). A
neglected juvenile is one “who does not receive proper care,
supervision, or discipline . . .; or who is not provided
necessary remedial care; or who lives in an environment
injurious to the juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-
101(15) (2011). To support an adjudication of neglect, the
facts must show “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,
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or discipline.’” In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d
255, 258 (2003) (citations omitted).
The adjudication order includes the following findings of
fact concerning Caleb’s status at the time DSS filed its
petition on 17 August 2012:
54. That the Juvenile’s attitude and grades
began to fall during the [2011-12] school
year, becoming very disrespectful to all
people around him and was quick to anger.
55. That the Juvenile would “bow” up at
other students and draw back his fists.
56. That the Juvenile would call other
students inappropriate names such as
“bitches”, “sons of bitches”, and “niggers”.
57. That the Juvenile resided with
[respondent-grandmother] during the last
school year.
. . . .
60. That [respondent-grandmother] has used
inappropriate words such as “nigger,” “gay,”
and “fag[g]ot” during conversations with
school officials with the Juvenile present.
61. That over the course of the last school
year the Juvenile developed a bad attendance
record and a pattern of tardiness.
. . . .
74. That the juvenile . . . was very
disrespectful, derogatory, and threatening
to other students.
75. That the Juvenile . . . was very
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threatening towards African American
students and girls.
. . . .
77. That over the course of the last school
year the Juvenile would wear the same
clothes repeatedly, smelled of urine, and .
. . [a teacher] washed his backpack due to
the smell of urine.
. . . .
115. That [respondent-grandmother] has used
marijuana all her life and she was a
frequent user of marijuana.
. . . .
118. That the Respondent Mother moved from
the home of [respondent-grandmother] in
October of 2011, taking with her three minor
children but leaving the Juvenile in the
care of [respondent-grandmother].
. . . .
120. That . . . [respondent-grandmother]
encouraged the Juvenile to be disrespectful
towards [respondent-mother,] telling the
Juvenile that the Respondent Mother
abandoned him and she encouraged the
Juvenile to be physically abusive towards
her.
. . . .
128. That [respondent-grandmother] has
actually shot at a family member with a
firearm.
129. That on one particular occasion
[respondent-grandmother] got angry after the
death of her husband because she was out of
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marijuana and the Juvenile had not done his
chores and therefore she grabbed a nine
millimeter handgun and pointed it at the
Juvenile as the Juvenile pleaded with her
not to shoot him and that he loved her.
130. That when the various dogs belonging to
[respondent-grandmother] had puppies the
puppies would often be kept in the
Juvenile’s bedroom . . ., leaving feces all
over the floor.
. . . .
132. That the Juvenile was required to feed
and take care of the animals before
attending school.
133. That the Respondent Mother has caught
the Juvenile attempting to smoke a marijuana
roach belonging to [respondent-grandmother].
. . . .
156. That the Respondent Mother was very
“nomadic” over the course of several years
and Juvenile was often residing with
[respondent-grandmother].
157. That the Respondent Mother was very
abusive towards all her children,
specifically: physically threw her children,
kicked them, and would often curse at them.
. . . .
202. That [respondent-grandmother]
threatened that the Juvenile would have to
eat dog feces but never forced him to eat
any.
. . . .
212. That the Respondent Mother has hit,
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kicked, and thrown [Caleb’s] siblings and
the Juvenile has seen these actions himself.
213. That the Respondent Mother once tried
to choke the Juvenile.
. . . .
261. That [respondent-grandmother] has
consistently exposed the Juvenile to her
anger, name calling, and racial slurs and
use of threats of violence.
262. That . . . [respondent-grandmother] has
treated the Juvenile [as] more of a spouse
than . . . a child relying on him for daily
activities and conferring with him on topics
that should be reserved for adults.
263. That [respondent-grandmother] has shown
a complete ignorance of how her actions
negatively impact the Juvenile . . . .
. . . .
265. That the Juvenile has unfairly been
placed in a position of feeling like he has
to choose between his mother and
grandmother, a situation that is
exa[cerb]ated by the extreme hatred
expressed by each against the other.
. . . .
267. That the violence and threats of
violence witnessed by the Juvenile are real,
ongoing, continuous, chronic, and injurious
to the Juvenile’s mental[,] physical, and
emotional well-being.
These findings – the substance of which is uncontested – fully
support the trial court’s ultimate finding and conclusion that
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Caleb was an abused juvenile, inasmuch as his parent or
custodian exposed him to “a substantial risk of serious physical
injury . . . by other than accidental means” and subjected him
to “grossly inappropriate procedures or cruel or grossly
inappropriate devices” to modify his behavior. See N.C. Gen.
Stat. § 7B-101(a)(1). Likewise, the findings support the
court’s determination that Caleb was denied “proper care,
supervision, or discipline” and “live[d] in an environment
injurious to [his] welfare” such that he was a neglected
juvenile as defined by N.C. Gen. Stat. § 7B-101(15).
Respondent-grandmother next claims that the district court
erred in adjudicating Caleb abused and neglected based on prior
“events that were too remote in time to be relevant.”
Specifically, she notes that the episode in which she pointed a
gun at Caleb occurred in the summer of 2011, approximately one
year before DSS filed the petition in this cause. Likewise, the
court’s finding that respondent-grandmother “actually shot at a
family member with a firearm” involved an event occurring in
2008 or 2009. Citing the Juvenile Code’s use of “present tense
verbs” to define abused and neglected juveniles, respondent-
grandmother insists that “the question is not whether abuse or
neglect has occurred in the past, but whether it exists at the
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time of the petition.”2 See N.C. Gen. Stat. § 7B-101(1)
(defining “abused juvenile” as, inter alia, one whose parent or
custodian “creates or allows to be created a substantial risk of
serious physical injury . . .”), (15) (defining “neglected
juvenile” as one “who does not receive proper care, supervision
or discipline . . .”).
“[T]he purpose of the adjudication hearing is to adjudicate
‘the existence or nonexistence of any of the conditions alleged
in a petition.’” In re A.B., 179 N.C. App. at 609, 635 S.E.2d
at 15 (quoting N.C. Gen. Stat. § 7B-802). Accordingly, this
Court has barred consideration of “post-petition evidence” at
the adjudicatory stage of an abuse, neglect, or dependency
proceeding under N.C. Gen. Stat. § 7B-802 (2011). Id. However,
we have not applied a limitations or repose period to prior
events for the purpose of establishing a juvenile’s status as
abused or neglected. Cf. id. (concluding that “the trial court
did not err in finding the time period between the child’s birth
and the filing of the petition as the relevant period for the
adjudication”). Even in proceedings to terminate parental
rights based on neglect – which require a showing of a parent’s
unfitness at the time of the termination hearing – we have
2
Respondent-grandmother cites no case law or additional authority
in support of this argument. See N.C.R. App. P. 28(b)(6).
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allowed the court to consider evidence of events occurring years
before the filing of the termination petition. See In re
McDonald, 72 N.C. App. 234, 241, 324 S.E.2d 847, 851 (1985) (two
years) (citing In re Moore, 306 N.C. 394, 293 S.E. 2d 127(1982), appeal dismissed sub nom. Moore v. Guilford County Dept.
of Social Services, 459 U.S. 1139 (1983) (six years)). “The
remoteness of evidence goes to its weight, not to its
admissibility.” Id.We find no error by the district court. Among the
allegations in DSS’s petition filed 17 August 2012 was “[t]hat,
upon information and belief, the Maternal Grandmother has held a
loaded 9mm handgun to Juvenile’s head.” This incident thus
constitutes one of “the conditions alleged in [the] petition.”
N.C. Gen. Stat. § 7B-802. Evidence that respondent-grandmother
had previously fired a gun at other relatives, including
respondent-mother, was relevant and admissible to contextualize
her assault on Caleb in 2011. Therefore, her argument is
overruled.
In her remaining issue on appeal, respondent-grandmother
challenges the district court’s determination that she was a
“responsible individual” under N.C. Gen. Stat. § 7B-
311(b)(2)(b). See N.C. Gen. Stat. § 7B-101(18a) (defining
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responsible individual as “[a] parent, guardian, custodian, or
caretaker who abuses or seriously neglects a juvenile”), (19a)
(defining serious neglect) (2011).3 She offers no independent
argument on this issue but merely “incorporate[s] by reference”
her preceding arguments that the court’s underlying
“adjudication is fatally flawed and should be reversed.”
“It is not the duty of this Court to supplement an
appellant’s brief with legal authority or arguments not
contained therein.” Goodson v. P.H. Glatfelter Co., 171 N.C.
App. 596, 606, 615 S.E.2d 350, 358 (2005); see also Foster v.
Crandell, 181 N.C. App. 152, 173, 638 S.E.2d 526, 540 (2007)
(“It is not the responsibility of this Court to construct
arguments for a party.”). Having overruled respondent-
grandmother’s preceding arguments, we find no basis to overturn
her designation as a responsible individual.
The district court’s orders are hereby affirmed.
AFFIRMED.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).
3
A determination of “serious neglect” is made under a
preponderance of the evidence standard ancillary to an
adjudication of neglect. N.C. Gen. Stat. §§ 7B-402(a), -807(a1)
(2011).