In re A.B. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-862
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
IN THE MATTER OF:
Cumberland County
Nos. 12 JA 491-93
A.B., M.K., and I.C.
Appeal by respondent from order entered 30 April 2013 by
Judge Edward A. Pone in Cumberland County District Court. Heard
in the Court of Appeals 13 January 2014.
Christopher L. Carr for petitioner-appellee Cumberland
County Department of Social Services.
Lane & Lane, PLLC, by Freddie Lane, Jr., for respondent-
appellant.
Beth A. Hall for guardian ad litem.
STEELMAN, Judge.
A petition for a writ of mandamus is the proper remedy for
a trial court’s failure to comply with deadlines for proceedings
under N.C. Gen. Stat. § Chapter 7B. Mother is not entitled to
relief based on the trial court’s failure to conduct an
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adjudicatory hearing within 60 days from the filing of a
juvenile petition or to enter an adjudicatory and dispositional
order within 30 days of the hearing. The trial court determines
the weight and credibility of evidence, and the appellate courts
do not revisit these determinations on appeal. Where findings of
fact, unchallenged on appeal, support the trial court’s
conclusions of law, the trial court did not err by concluding
that the children were neglected, abused, and dependent.
Mother’s allegations that the trial court was biased are
unsupported by the record. The trial court did not err by
conducting the dispositional hearing immediately following
adjudication.
I. Factual and Procedural Background
C.T. (mother) is the mother of the minor children A.B.,
M.K., and I.C., born in 2011, 2010, and 2008. On 17 August 2012,
a Sampson County DSS social worker informed Cumberland County
DSS that another of mother’s children, C.G., had reported during
an interview that mother had “choked him until he passed out”
and that she had a gun and had threatened to shoot him, A.B.,
M.K., I.C. and herself. On 21 August 2012 the Cumberland County
DSS filed a petition alleging that the three children were
abused, neglected, seriously neglected and dependent. The
petition alleged that mother was mentally unstable, that the
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children were frequently dirty and unkempt, and that mother had
threatened “to get a gun and blow [the children’s maternal
grandmother’s] brains out,” had hit M.K. in the face with her
fist, and had injured I.C.’s arm but did not take her to the
doctor. On the same day DSS obtained non-secure custody of the
juveniles.
The hearing was continued several times, partly in order to
locate the minor children’s three different fathers. At a
hearing conducted in February 2013, testimony was elicited from
mother, two of the children’s fathers, their maternal
grandmother, a maternal uncle, C.G., DSS social workers, a
psychologist, and others. At the conclusion of the hearing, the
trial court ruled that the children were abused, neglected,
seriously neglected, and dependent. Following its adjudication,
the trial court conducted a dispositional hearing. On 30 April
2013, the court entered an order concluding that the children
were abused, neglected, seriously neglected, and dependent;
continued custody with DSS; and directed DSS to pursue placement
of the children with two of the fathers.1
Mother appeals.
1
The trial court found Mr. C. and Mr. B. suitable to assume
custody of their respective children. Mr. K. indicated that he
was unable to provide a home for M.K., and would not object to
an adoptive placement. Mr. B. expressed a desire to keep A.B.
and M.K. together, and the court directed DSS to pursue this
possibility.
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II. Compliance with Statutory Deadlines
Mother first argues that the trial court committed
reversible error by failing to conduct an adjudicatory hearing
within sixty days from the filing of the petition as required by
N.C. Gen. Stat. § 7B-801(c) (2013), and by failing to enter its
order of adjudication and disposition within thirty days of the
hearing as required by N.C. Gen. Stat. § 7B-807(b) and 905(a).
We disagree.
Pursuant to N.C. Gen. Stat. § 7B-801(c), the adjudicatory
hearing shall be held “no later than 60 days from the filing of
the petition unless the judge pursuant to G.S. 7B-803 orders
that it be held at a later time.” N.C. Gen. Stat. § 7B-801(c)
(2013). In this case, the petition was filed on 21 August 2012,
and the adjudicatory hearing began on 25 February 2013, more
than sixty days later. However, N.C. Gen. Stat. § 7B-803 (2013)
provides that the trial court “may, for good cause, continue the
hearing for as long as is reasonably required to receive
additional evidence, reports, or assessments that the court has
requested, or other information needed in the best interests of
the juvenile[.]” In this case the hearing was initially
continued in order to locate the children’s fathers. The case
was also delayed until the related Sampson County matter
involving C.G. had been resolved, and due to the difficulty of
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calendaring a case that would require several days of trial
time. Mother does not argue that any of the continuances were
not for good cause, and we conclude that the trial court did not
err by granting these continuances.
Further, our Supreme Court has held that “[in] cases such
as the present one in which the trial court fails to adhere to
statutory time lines, mandamus is an appropriate and more timely
alternative than an appeal.” In re T.H.T., 362 N.C. 446, 455,
665 S.E.2d 54, 60 (2008). On appeal, mother “acknowledges that
the Supreme Court has held that the proper remedy to address
violation of the time requirements in these cases is a writ of
mandamus” but argues that she is making “a good faith argument
for extension or modification of existing law.” However, this
Court has no authority to reverse existing Supreme Court
precedent, see Rogerson v. Fitzpatrick, 121 N.C. App. 728, 732,
468 S.E.2d 447, 450 (1996) (“It is elementary that this Court is
bound by holdings of the Supreme Court [of North Carolina]”)
(citation omitted).
Moreover, we do not find mother’s argument that she was
prejudiced by the delayed hearing to be persuasive. The basis of
this argument is not entirely clear, but appears to rest on
mother’s unsupported speculation that, if the adjudication
hearing had been held sooner, then the court might have delayed
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the dispositional hearing or scheduled the permanency planning
hearing for a later date, and that as a result mother “would
have had months” to “comply with reunification orders from the
trial court.” However, mother cites no evidentiary support for
such speculation. In addition, the children were removed from
mother’s custody as a result of her physical and emotional abuse
of the children and her failure to care for them properly, seek
gainful employment, or maintain safe and stable housing for her
family. Mother has not identified any changes in her conduct
that she was in the process of making or actions that she needed
more time to complete. We conclude that mother is not entitled
to relief on the basis of the failure of the trial court to
conduct an adjudicatory hearing within 60 days of issuance of
the petition.
Mother makes a similar argument regarding the trial court’s
failure to enter its written adjudicatory and dispositional
order within thirty days of the hearing, as required by N.C.
Gen. Stat. § 7B-807(b) and N.C. Gen. Stat. § 7B-905(a). The
adjudicatory and disposition hearings were completed on 28
February 2013 and a combined adjudicatory and disposition order
entered on 30 April 2013, past the thirty day statutory
deadline. However, we again note that the proper remedy for the
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delay in entering the order was for mother to file a petition
for writ of mandamus, rather than seek relief on appeal:
[W]hen the trial court fails to enter an
order of adjudication and disposition within
thirty days after the adjudication and
disposition hearing, a party should file a
request with the clerk of court pursuant to
N.C.G.S. § 7B-807(b) asking that the trial
court enter its order or calendar a hearing
“to determine and explain the reason for the
delay.” If the trial court refuses or
neglects to enter the order or to calendar a
hearing, or fails to enter its order within
ten days following the 7B-807(b) hearing, a
party may petition the Court of Appeals for
a writ of mandamus.
In re T.H.T., 362 N.C. at 456, 665 S.E.2d at 60-61.
Mother has not made any convincing argument that she was
prejudiced as a result of the trial court’s delayed entry of the
adjudicatory and dispositional order. “The importance of timely
resolution of cases involving the welfare of children cannot be
overstated.” T.H.T. at 450, 665 S.E.2d at 57. We urge the trial
court to make every effort to adhere to the statutory deadlines.
We conclude, however, that mother is not entitled to relief
based upon the delay in entry of the order.
II. Adjudication Order
Mother argues next that the trial court committed
reversible error by adjudicating the juveniles abused, neglected
and dependent “in the absence of clear, cogent and convincing
evidence.” This argument is without merit.
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A. Standard of Review
Mother challenges the trial court’s adjudication of the
minor children as neglected, abused, and dependent, terms that
are defined in N.C. Gen. Stat. § 7B-101 in relevant part as
follows:
(1) Abused juveniles.- Any juvenile . . .
whose parent . . . b. Creates or allows to
be created a substantial risk of serious
physical injury to the juvenile by other
than accidental means; [or] c. Uses or
allows to be used upon the juvenile cruel or
grossly inappropriate procedures or . . .
devices to modify behavior[.] . . .
(9) Dependent juvenile.- A juvenile in need
of assistance or placement because . . .
(ii) the juvenile’s parent . . . is unable
to provide for the juvenile’s care or
supervision and lacks an appropriate
alternative child care arrangement.
(15) Neglected juvenile. - A juvenile who
does not receive proper care, supervision,
or discipline from the juvenile’s parent, .
. . 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[.] . . .
N.C. Gen. Stat. § 7B-805 provides that the “allegations in
a petition alleging that a juvenile is abused, neglected, or
dependent shall be proved by clear and convincing evidence.” In
ruling on a juvenile petition, the “‘trial judge determines the
weight to be given the testimony and the reasonable inferences
to be drawn therefrom. If a different inference may be drawn
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from the evidence, he alone determines which inferences to draw
and which to reject.’” In re McCabe, 157 N.C. App. 673, 679, 580
S.E.2d 69, 73 (2003) (quoting In re Hughes, 74 N.C. App. 751,
759, 330 S.E.2d 213, 218 (1985). On appeal:
When this Court reviews an order in a
juvenile abuse, neglect or dependency
proceeding, we determine whether the trial
court made proper findings of fact and
conclusions of law in its adjudication and
disposition orders. In so doing, we consider
whether clear and convincing evidence in the
record supports the findings and whether the
findings support the trial court’s
conclusions. If there is evidence to support
the trial court’s findings of fact, they are
deemed conclusive even though there may be
evidence to support contrary findings.
In re W.V., 204 N.C. App. 290, 293, 693 S.E.2d 383, 386 (2010)
(citing In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399
(2007), In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362,
365 (2000) (internal citations omitted), and In re Montgomery,
311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). In
conducting our review, “[f]indings of fact which are not
challenged on appeal as lacking adequate evidentiary support are
deemed supported by competent evidence and are binding for
purposes of appellate review.” In re D.E.G., __ N.C. App. __,
__, 747 S.E.2d 280, 283 (2013) (citing Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
B. Analysis
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On appeal, mother makes a generalized argument that the
trial court’s findings were not supported by clear and
convincing evidence, but discusses only a few of the 73
adjudicatory findings made by the trial court. Mother
essentially argues that the trial court erred by finding the
testimony of C.G. to be credible and by failing to resolve
evidentiary inconsistencies and discrepancies in favor of
mother. However, it is the trial judge’s duty to “weigh and
consider all competent evidence, and pass upon the credibility
of the witnesses, the weight to be given their testimony and the
reasonable inferences to be drawn therefrom.” In re Whisnant, 71
N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). “The trial court
was entitled to find as it did, and it is not our duty to re-
weigh the evidence and substitute our judgment for that of the
trial court.” In re S.A., __ N.C. App. __, __, __ S.E.2d __, __
(2013 N.C. App. LEXIS 1340 *5) (citing Hughes). The trial court
was free to reject mother’s testimony and give credence to
C.G.’s testimony.
Moreover, the trial court’s unchallenged findings of fact
support its conclusions that the juveniles were abused,
neglected and dependent. These unchallenged facts include the
following:
. . .
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19. . . . [The] Respondent Mother has an
often very volatile nature. The Respondent
Mother often becomes frustrated with the
juveniles, and yells and curses at them, as
well as [at] adults in her family.
. . .
22. The Respondent Mother has a history of
alcohol and substance abuse. The Respondent
Mother has abused marijuana, Percocet, and
Xanax. That at times, the Respondent Mother
would drink to the point of total
impairment, and would then direct her anger
at others.
23. The Respondent Mother would become
frustrated with the juveniles, and would hit
them, including about the face and body. The
Respondent Mother does this on a regular and
frequent basis. The Respondent Mother calls
the juveniles “bitches” and “motherfuckers.”
The Respondent Mother physically and
verbally abuses the juveniles on a regular
and frequent basis. The Respondent Mother
threatened to kill all of the juveniles and
then commit suicide.
24. The Respondent Mother met each of the
Respondent Fathers on an internet social
networking dating site, and within a short
period of time, had moved in with them. The
Respondent Mother led the Respondent Fathers
. . . to believe that she could not have
children[.] . . .
. . .
26. That [mother’s brother,] Mr. Green, . .
. would come home and find the juvenile
[I.C.] in a urine soaked crib. That Mr.
Green complained to the Respondent Mother,
but to no avail. Mr. Green saw the
Respondent Mother slap the juvenile [I.C.]
in the face with such force that she knocked
the juvenile to the floor[.] . . .
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27. The Respondent Mother developed a
pattern of behavior wherein she would leave
the juveniles with others . . . for days at
a time, without having any communication
with them. . . .
28. . . . The Respondent Mother did not
leave any documentation for the Maternal
Grandmother or the Maternal Uncle to further
care for the juveniles or to seek medical
attention for the juveniles in the event of
an emergency or if the juveniles became
sick.
29. The Respondent Mother was evicted from
one of her residences in part due to her
loud behavior, including yelling and using
abusive language towards the juveniles. . .
. That Mr. Green observed the Respondent
Mother to become angry and frustrated with
the juveniles. He witnessed the Respondent
Mother throwing the girls, particularly
[A.B. and I.C.] onto the couch. That he also
saw the Respondent Mother smack the
juveniles around . . . [and] curse and yell
at them while calling them names.
30. That during the latter part of 2011,
[Mr. Green] came home and [I.C.] was crying.
The juvenile told Mr. Green that “mommy hit
me.” That Mr. Green observed the juvenile’s
lip to be busted. That evidence of the same
was presented to the Court via photograph .
. . [which] shows a child, identified as
[I.C.], with a busted lip. The Respondent
Mother busted the juvenile’s lip by hitting
her in the mouth.
31. That during April 2012, Mr. Green came
home again during one afternoon and the
juvenile [I.C.] came up to him crying and
sobbing . . . [and] said “mommy hit me.”
That Mr. Green observed the juvenile’s eye
to be bruised and swollen. The Court
received evidence of the eye injury[.] . . .
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Respondent Mother claimed that the eye
injury was caused by a bee sting . . .
[which was] not credible[.] . . . [The]
Respondent Mother hitting the juvenile
caused the injury.
32. . . . The Respondent Mother has lacked
stability in housing and relationships . . .
[and] has moved more than ten (10) times in
the eighteen (18) to twenty-four (24) months
prior to the filing of the verified Juvenile
Petition. The Respondent Mother is currently
unemployed and is residing in a place where
the rent is paid by a Mr. Charles Thompson.
. . . .
35. The Respondent Mother frequently
threatens the juveniles and adults. That on
one occasion, she was angry with the
Maternal Grandmother . . . [and threatened]
to get a gun and blow the Maternal
Grandmother’s brains out. The Respondent
Mother frequently makes such threats.
. . . .
48. That the Respondent Father [B.] . . .
observed the Respondent Mother . . .
[being] abusive to the juveniles. The
Respondent Mother called the juveniles names
in anger and frustration, such as “bitch”
and “whore.” . . . The Respondent Father
[B.] saw the Respondent Mother toss the
juveniles around and yell at them[.] . . .
. . .
55. . . . The maternal family is full of
drinking, fighting, violent and threatening
behavior; guns and alcohol are a part of the
culture. . . .
. . .
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57. The Respondent Mother created an abusive
and injurious environment for the juveniles;
that this was not a safe and nurturing
environment. The Respondent Mother is
unstable. The Respondent Mother’s behavior
and lifestyle is not conducive to child-
rearing. She has acted inconsistently with
her constitutionally protected status as a
parent.
58. The juvenile [C.G.] is currently in the
custody of the Sampson County [DSS]. . . .
[C.G.] disclosed to [a DSS social worker]
that the Respondent Mother had choked him to
the point that he had lost consciousness.
Additionally, the Respondent Mother had
threatened to kill the juvenile, his
siblings, and herself.
59. The juvenile [C.G.] testified in this
matter. The Court had an opportunity to
observe the juvenile closely. The juvenile
was a truthful and credible witness[,who] .
. . showed a level of maturity beyond his
stated age[.] . . .
. . . .
65. The Respondent Mother injured the
juvenile [I.C.’s] arm and failed to take the
juvenile to the doctor, even after being
prompted to do so by the Maternal
Grandmother.
. . .
70. The Respondent Mother has acknowledged
that she was not honest and truthful in her
testimony [regarding] being seen with Mr.
John Thompson during a recess in these
proceedings. In short, the Respondent Mother
admitted that she lied while under oath. . .
. The Respondent Mother’s relationship with
Mr. Thompson . . . point[s] to a pattern of
behavior by the Respondent Mother where men
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are concerned . . . [and] points to her
continued dependence on others[.] . . .
. . .
72. That the Respondent Fathers in this case
were paying child support to the Respondent
Mother in excess of $2,000.00 per month[,
but] . . . Respondent Mother was unable or
unwilling to obtain and maintain a stable
residence for herself and the juveniles[.] .
. . [O]ther than a brief stint at a Hooters’
restaurant, the Respondent Mother has not
obtained and maintained employment[,] . . .
[and her] residence, utilities, school
bills, and a monthly stipend of nearly
$1,600.00 are being paid by the Thompson
family.
. . .
74. . . . The only maternal relative that
seems to be not violent and aggressive
towards the juveniles is the Maternal Uncle,
[Mr.] Green. The Respondent Mother, the
Maternal Grandmother[, and other family
members have] . . . engaged in acts of
domestic violence in the presence of the
juveniles. The maternal family has a culture
of fussing, fighting, drinking, guns, drugs
and violence. . . . The juveniles have
witnessed this violence on a regular and
frequent basis. . . .
75. There is a family culture of drugs,
violence, physical and emotional abuse. . .
.
76. The juveniles have been yelled at,
tossed around, slapped, beaten, and verbally
abused, practically from the day each of
them were born. The environment is toxic,
and is not conducive to child-rearing. The
environment is highly injurious to the
juveniles’ mental, physical and emotional
well-being.
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. . . .
79. There was not an appropriate
alternative child care plan at the time of
the filing of the verified Juvenile
Petition. . . .
. . . .
82. . . . [The] abuse and neglect are
chronic, and occurred over a substantial
period of time, following the birth of each
of these juveniles. . . .
We conclude that these unchallenged findings of fact support the
conclusion that the juveniles were abused, neglected and
dependent. See N.C. Gen. Stat. § 7B-101 (1), (9) and (15)
(2013). “[S]ince we have not relied on those [findings] . . .
that Respondent-Mother has challenged in examining the
lawfulness of the trial court’s [adjudication order] . . . we
need not examine the validity of Respondent-Mother’s challenges
to these [findings.]” In re T.B., C.P., & I.P., 203 N.C. App.
497, 503 n.2, 692 S.E.2d 182, 186 n.2 (2010) (citing In re T.M.,
180 N.C. App. 539, 638 S.E.2d 236, 240 (2006)). We conclude that
the trial court’s adjudication order was amply supported by its
findings, and that the trial court did not err in its
adjudication.
IV. Dispositional Hearing
Mother next argues that the trial court ignored the basic
purposes of the Juvenile Code by holding a dispositional hearing
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immediately following its adjudication of abuse, neglect and
dependency, and that the trial court evinced a “predisposition”
to “deny fairness and equity, [and] to violate her
constitutional rights[.]” This argument has no merit.
This argument consists primarily of mother’s allegations of
improper bias on the part of the trial court. For example,
mother contends that the dispositional hearing was “a farce”
because “the judge had determined that these juveniles would not
be returned to their mother before the adjudication proceeding
commenced,” that the court’s order “treads upon the rights of
Respondent-Mother” and “the conduct of these proceedings by the
court was simply an effort to rubberstamp the goals of
Cumberland County DSS[.]” However, mother identifies no evidence
beyond her self-serving and unsupported claims to sustain a
conclusion that the trial court operated under any bias or
predetermined the result of the adjudicatory and dispositional
hearings. Instead, the evidence and accordant findings of fact
established that mother abused and neglected the juveniles and
they were dependent. Because mother fails to direct our
attention to specific evidence of bias or misconduct by the
trial court, we reject these arguments and, in addition, caution
the counsel for mother to refrain from unsupported personal
attacks on the trial court.
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Mother also appears to argue that it was improper for the
trial court to proceed to the dispositional hearing at the
conclusion of the adjudicatory hearing. However, mother fails to
acknowledge that N.C. Gen. Stat. § 7B-901 provides in relevant
part that “[the] dispositional hearing shall take place
immediately following the adjudicatory hearing[.]” Nor does
mother articulate any specific prejudice arising from the fact
that the court proceeded immediately to the dispositional phase
of the proceedings, as directed by N.C. Gen. Stat. § 7B-901. For
example, she does not argue that she was unable to produce a
specific witness, or to complete a particular program as a
result of the timing of the dispositional hearing. We conclude
that mother is not entitled to relief on the basis of this
argument.
For the reasons discussed above, we conclude that the trial
court did not commit reversible error in its adjudication or
disposition of this case and that its order is
AFFIRMED.
Judges HUNTER, Robert C., and BRYANT concur.
Report per Rule 30(e).