In re K.H. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-211
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
IN THE MATTER OF:
K.H., G.B. and J.S. Guilford County
Nos. 12 JA 42-44
Appeal by respondent-mother from orders entered 28 January
and 8 October 2013 by Judge Michelle Fletcher in Guilford County
District Court. Heard in the Court of Appeals 28 July 2014.
Mercedes O. Chut for petitioner-appellee Guilford County
Department of Social Services.
Peter Wood for respondent-appellant mother.
Smith, James, Rowlett & Cohen, LLP, by Margaret F. Rowlett,
for the guardian ad litem.
DILLON, Judge.
Respondent mother appeals from orders adjudicating her
minor children, K.H. (“Kevin”), G.B. (“Glenda”), and J.S.
(“Jack”), to be neglected juveniles and Kevin to also be an
abused juvenile.1 We affirm.
1
Pseudonyms are used to protect the children’s identities and
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On 19 April 2012, the Guilford County Department of Social
Services (“DSS”) filed petitions alleging Kevin was an abused
and neglected juvenile and that Glenda and Jack were neglected
juveniles. DSS assumed non-secure custody of Kevin, and Glenda
and Jack were placed with their father.
After a hearing on 17 December 2012, the trial court
entered an adjudicatory order concluding that Kevin was an
abused juvenile and all three children were neglected juveniles.
All three children were subsequently placed with relatives. On
8 October 2013, the court entered its dispositional order,
placing visitation and other conditions on respondent parents.
Respondent mother filed notice of appeal from both the
adjudicatory and dispositional orders.
_____________________________________________________
Respondent mother makes no argument regarding the trial
court’s adjudicatory order and only makes arguments concerning
two of the conditions contained in the disposition order.
First, respondent mother argues that the trial court abused
its discretion in setting forth the conditions of visitation
between her and the children. She contends the visitation
for ease of reading. The respondent fathers of the children are
not parties to this appeal.
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provisions are impermissibly vague and unlawfully delegate the
trial court’s authority. We disagree.
Where a court awards “visitation to a parent, the order
must include an appropriate visitation plan that sets out at
least a minimum outline, such as the time, place, and conditions
under which visitation may be exercised.” In re W.V., 204 N.C.
App. 290, 294, 693 S.E.2d 383, 387 (2010) (citation omitted). A
court’s decisions on visitation are reviewed for an abuse of
discretion. Id. “An abuse of discretion occurs when a trial
court’s ruling is so arbitrary that it could not have been the
result of a reasoned decision.” Chicora Country Club v. Town of
Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997)
(citation and quotation marks omitted), disc. rev. denied, 347
N.C. 670, 500 S.E.2d 84 (1998).
Here, the trial court’s order provides:
Visitation between the mother, [K.S.], and
the juveniles shall be supervised by the
Guilford County Department of Social
Services or its designee. The visits shall
occur at the Guilford County Department of
Social Services on Mondays from 3:30 p.m.
until 4:30 p.m. or at other days and times
as agreed to by the parties.
Respondent mother contends that this provision (1) is unlawfully
vague because it allows for other conditions of visitation upon
agreement of the parties, and (2) impermissibly delegates the
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court’s authority to the parties. However, we believe that
allowing mutually agreed-upon modifications to the visitation
schedule in this case does not render the trial court’s order
vague, as the order specifies the day, time, and place for the
visitation and thus provides the minimum outline of visitation
required by law. See In re W.V., 204 N.C. App. at 294, 693
S.E.2d at 387. The option to modify the specific provisions of
visitation may only be exercised upon the agreement of all
parties, and, without respondent mother’s agreement, no change
to the visitation provisions may occur. Similarly, so long as
the order provides for the minimum outline required by law, a
trial court’s authorization of parties to modify the visitation
order does not constitute an impermissible delegation of the
court’s authority. See, e.g., Woncik v. Woncik, 82 N.C. App.
244, 250, 346 S.E.2d 277, 280-81 (1986). Accordingly, we hold
the trial court did not abuse its discretion in setting forth
the provisions of respondent mother’s visitation with her
children.
Respondent mother also argues the provision in the trial
court’s order directing her to refrain from making negative and
derogatory comments in front of the children is impermissibly
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vague and unlawfully delegates the trial court’s authority to
DSS. Again, we disagree.
Following an adjudication of abuse, neglect, or dependency,
the trial court conducts a dispositional hearing to “design an
appropriate plan to meet the needs of the juvenile . . . .”
N.C. Gen. Stat. § 7B-900 (2013). The trial court has “broad
discretion to craft a disposition designed to serve the
juvenile’s best interests.” In re R.B.B., 187 N.C. App. 639,
643, 654 S.E.2d 514, 517 (2007), disc. review denied, 362 N.C.
235, 659 S.E.2d 738 (2008); see also N.C. Gen. Stat. §§ 7B-901,
-903, -905 (2013).
The challenged provision states:
Neither of the parties is allowed to make
negative or derogatory remarks about the
other parent, their family, or any member of
the team including DSS, GAL, therapists,
[and] other treatment providers providing
services to parties around or in front of
the juveniles. If a party makes any
negative or derogatory remarks then that
party will be subject to Contempt of Court.
We believe that this provision is neither vague nor a delegation
of the court’s authority. That is not to say, for example, that
respondent mother would be in contempt every time she makes some
statement that could be construed as negative or derogatory,
unless it is shown that she made the statement in wilful
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disobedience of the order, that is knowingly and with a stubborn
purpose. Clayton v. Clayton, 54 N.C. App. 612, 615, 284 S.E.2d
125, 127 (1981). In any event, we have held that it is within
the trial court’s discretion to prohibit a parent from making
similar comments in the presence of the children in this case.
See Woncik, 82 N.C. App. at 250-51, 346 S.E.2d at 280-81(upholding a similar provision in a civil custody order).
Further, there is nothing in the court’s order suggesting that
it is somehow delegating its contempt power to DSS. Moreover,
the trial court’s unchallenged findings of fact demonstrate that
respondent mother has a history of making negative and
derogatory remarks about and to others involved in this case.
Accordingly, we overrule this argument and affirm the trial
court’s orders.
AFFIRMED.
Judges Robert C. HUNTER and DAVIS concur.
Report per Rule 30(e).