In re E.P.

JACKSON, Judge.

On 16 August 2005, Alexander County Department of Social Services ("DSS") filed juvenile *773petitions alleging that 2-year-old M.P. and 9-month-old E.P. were neglected and dependent juveniles. According to the petitions, the children were neglected because their parents abused alcohol, engaged in acts of domestic violence in front of the children, and had been evicted from two dwellings as a result of unpaid rent and utility bills. Additionally, the petitions alleged that respondent mother had, on one occasion, left the children unattended when she locked herself in a bathroom and cut her wrists while intoxicated. With respect to dependency, DSS alleged that, despite the provision of case management services, the parents had been unwilling to create a safe, permanent home for the children in their own household and had been unwilling to utilize efforts to create an appropriate alternative child care arrangement.

On 9 September 2005, DSS filed an application with the trial court seeking an order for the disclosure of "confidential alcohol and/or drug abuse patient records" regarding the parents pursuant to 42 C.F.R. § 2.1 et seq. (2004). The application stated that the records provided the only known documented source of evidence that would be germane to both the adjudication and dispositional stages in the juvenile proceedings. In addition, on 13 September 2005, DSS served a subpoena on John Alspaugh of Universal Mental Health, requesting that he "produce records related to substance abuse treatment provided for or scheduled for [the parents] since 2-5-2005."

It appears that DSS' motion was heard on the first day of the adjudication hearing. After hearing arguments by counsel, but without reviewing the records at issue, the trial judge declined to require production of the records or admit the records into evidence because "they [went] more to disposition than to adjudication." The trial judge stated that he would reconsider the issue "for purposes of disposition."

At the close of DSS' evidence, respondents moved to have the petitions dismissed. The trial judge orally found that there was "ample evidence" of substance abuse by respondent mother, "some evidence" of substance abuse by respondent father, but that any domestic violence between respondents had been "of a minor nature." The judge also found that there was "no substantial evidence of any connection between the substance abuse and domestic violence and the welfare of [the] two children" and that the family's issues were "being adequately addressed in the family setting at the present time." The judge entered an adjudication order on 6 January 2006, finding that "the allegations in the petition have not been proven by clear and convincing evidence." He, therefore, ordered the petitions be dismissed.

DSS appeals from the order of the district court dismissing the juvenile petitions alleging neglect and dependency as to M.P. and E.P., the two minor children of respondents mother and father. On appeal, DSS argues the trial court erred in (1) denying its motion for disclosure of the respondent parents' substance abuse records, (2) refusing to admit those records at the adjudication stage, and (3) dismissing the juvenile petitions at the close of DSS' evidence.

DSS argues the trial court erred by concluding that respondents' substance abuse records were not relevant to the adjudication hearing and, therefore, declining to require their production or admit them into evidence. DSS argued at the hearing that the disputed medical records related to respondents' substance abuse history during the period immediately preceding the filing of the petitions and would show (1) the parents' actual chemical dependence, (2) whether treatment was required for that dependence, and (3) whether the parents were obtaining available treatment. The trial court declined to admit them into evidence, concluding-based solely on the arguments of counsel-that the records went "more to disposition than to adjudication."

"Where the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply." N.C. Gen.Stat. § 7B-804 (2005). Pursuant to the North Carolina Rules of Evidence, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen.Stat. § 8C-1, Rule 401 (2005). While "[a] trial court's rulings on relevancy technically are *774not discretionary and therefore are not reviewed under the abuse of discretion standard[,] . . . such rulings are given great deference on appeal." State v. Wallace, 104 N.C.App. 498, 502, 410 S.E.2d 226, 228 (1991). In the case before us, the trial judge determined that respondents' substance abuse records were not relevant during the adjudication hearing. We agree.

Although the substance abuse records may be relevant to an adjudication of neglect in some instances where evidence of the respondents' substance abuse cannot otherwise be obtained, that is a different case than the one before us. In the case sub judice, DSS presented sufficient evidence of respondents' substance abuse without including respondents' substance abuse records. Furthermore, based upon the evidence presented by DSS, the trial court made findings regarding respondents' substance abuse and its impact on the welfare of the children. Specifically, the trial court found that there was "no substantial evidence of any connection between the substance abuse and domestic violence and the welfare of [the] two children." Also, the trial court found that respondents' issues were "being adequately addressed in the family setting at the present time."

In the case before us, the trial court found the evidence presented by DSS confirmed that both respondent-mother and respondent-father were substance abusers. The excluded records were additional evidence of respondents' substance abuse and only would have corroborated the evidence presented but did not provide additional evidence regarding the neglect and dependency of the children as the dissent concludes.

The records indicate respondent-father abused alcohol on a frequent basis and that he was diagnosed with alcohol dependence. However, the records do not indicate that the children suffered any harm or were in anyway neglected as a result of respondent-father's substance abuse. Further, the records do not indicate that the children were exposed to a substantial risk of harm due to the father's use of alcohol. The evidence in the records regarding respondent-mother indicates she had not kept her therapy appointments and she was involved in a number of harmful situations involving alcohol. However, there was no indication in the record that respondent-mother's alcohol abuse led to the children's neglect or that they were harmed in any manner, or that her use of alcohol exposed the children to a substantial risk of harm.

Because the records contained no evidence regarding the neglect or dependency of the children, the records were not relevant to the adjudication hearing. Thus, the trial court did not err by excluding the records when other evidence of respondents' substance abuse was presented and the records did not provide any additional evidence regarding the neglect of the children or a substantial risk of neglect.

We recognize that evidence of substance abuse and a parent's progress in treatment may be relevant in determining whether a child meets the definitions of neglect and dependency. See, e.g., In re L.W., 175 N.C.App. 387, 391-92, 623 S.E.2d 626, 628 (noting dependency exists when substance abuse problems render parent incapable of providing proper care and supervision), appeal dismissed and disc. review denied, 360 N.C. 534, 633 S.E.2d 818 (2006); In re E.C., 174 N.C.App. 517, 524, 621 S.E.2d 647, 653 (2005) (mother's attempt to care for child while intoxicated and failure to complete substance abuse program supported trial court's conclusion that mother neglected her child). See also In re J.B., 172 N.C.App. 1, 16-18, 616 S.E.2d 264, 274 (2005) (holding medical records detailing mother's substance abuse issues were admissible in neglect proceeding). However, the instant case is distinguishable from the above cited cases.

In E.C., this Court affirmed the trial court's order adjudicating a minor child neglected. This Court concluded that sufficient evidence had been presented to support the determination that respondent neglected the child, including evidence that the mother kept the child in a filthy room, would leave home several days at a time, and that when the mother returned, she would sleep for long hours and would not awaken when the child cried. E.C., 174 N.C.App. at 524, 621 S.E.2d at 653. In affirming the trial court's order, this Court considered evidence of the mother's substance abuse. However, the evidence as a whole showed that the mother, as *775a result of her substance abuse, failed to provide "proper care, supervision or discipline" to the minor child and that the minor child was neglected. Although evidence of substance abuse was considered as a basis for determining that the minor child in E.C. was neglected, this Court reiterated that we have "``consistently required ... 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 provide ``proper care, supervision, or discipline.'" Id. (quoting In re Safriet, 112 N.C.App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).

In addition, in In re Leftwich, 135 N.C.App. 67, 518 S.E.2d 799 (1999), the children were adjudicated neglected prior to the filing of the termination of parental rights proceedings. The ground for the adjudication of neglect was the respondent's failure to properly care for the children due to her alcoholism. The evidence supporting the adjudication of neglect showed that respondent's alcoholism affected the children's development. Id. at 72-73, 518 S.E.2d at 803. Specifically, neither the six-year-old child nor the three-year-old child was toilet-trained and both lacked age appropriate social skills. Id. at 73, 518 S.E.2d at 803. However, the adjudication of neglect was based upon the harm to the children as a result of respondent's substance abuse; it was not based solely upon respondent's substance abuse. This Court affirmed the Order terminating the respondent's parental rights because the mother failed to address her substance abuse issues. Id. at 72-73, 518 S.E.2d at 803.

Although DSS was able to offer evidence of the parents' substance abuse without access to these records, the question remains whether the failure to require production of the records and the exclusion of the records were prejudicial. DSS' evidence at the hearing indicated that respondent father occasionally abused alcohol and that respondent mother abused alcohol and prescription medication, had once cut her wrists while caring for the children, and periodically had engaged in domestic violence against respondent father. Based upon this evidence, the trial court found only that there had been "some evidence" of substance abuse by respondent father, that there was "no substantial evidence of any connection between the substance abuse and domestic violence and the welfare of [the] two children," and that the family's issues were "being adequately addressed in the family setting at the present time."

The standard of review on appeal is whether the trial court's findings are supported by clear and convincing evidence. N.C. Gen.Stat. § 7B-805 (2005). In addition, the findings must support the conclusions of law. In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6 (2004). The burden of proof in an adjudicatory hearing lies with the petitioner to show by clear and convincing evidence that a minor child has been neglected. N.C. Gen.Stat. § 7B-805 (2005). If any competent evidence supports the trial court's findings, even if some other evidence supports contrary findings, the decision of the trial court must be left undisturbed. In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997).

A dependent juvenile is defined as one who is "in need of assistance or placement because the juvenile has no parent ... responsible for the juvenile's care or supervision or whose parent . . . is unable to provide for the care or supervision [of the juvenile]." N.C. Gen.Stat. § 7B-101(9) (2005). A neglected juvenile is defined in part as one "who does not receive proper care, supervision, or discipline from the juvenile's parent . . .; or who lives in an environment injurious to the juvenile's welfare ...." N.C. Gen.Stat. § 7B-101(15) (2005). In addition, this Court has "``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 provide "proper care, supervision, or discipline"' in order to adjudicate a juvenile neglected." Helms, 127 N.C.App. at 511, 491 S.E.2d at 676 (quoting Safriet, 112 N.C.App. at 752, 436 S.E.2d at 901-02).

In the case before us, the trial judge found no instances of neglect or harm to the children. Furthermore, the treatment records requested by DSS contained no evidence that actual harm to the children had occurred, or that the parents' substance abuse issues created a substantial risk of harm to the children.

*776More importantly, DSS failed to present other evidence that the children had been harmed because of respondents' substance abuse or that the children were exposed to a substantial risk of harm. We in no way contend that DSS was required to have shown that the children were actually harmed in order for the trial court to have found that they were neglected or dependent. However, DSS failed to present clear and convincing evidence that the parents' problems created a substantial risk of harm to the children, and we hold the subject records would not have aided DSS in satisfying its burden of proof. DSS failed to prove by clear and convincing evidence that respondents' home was not suitable for the children. Thus, the trial court did not err by dismissing the juvenile petitions.

For the foregoing reasons, the trial court did not err either by excluding respondents' substance abuse records when evidence of respondent's substance abuse had already been presented or by dismissing the juvenile petitions when DSS failed to present evidence that the children were neglected and dependent.

As a final matter, we note the parents have argued in their brief that this appeal should be dismissed because the record on appeal was not settled within the time limitations provided by the North Carolina Rules of Appellate Procedure. The parents filed a motion to dismiss the appeal on the same grounds in the trial court. The court denied the motion. The parents have not cross-appealed from that order and, therefore, the trial court's determination that appellants acted in a timely fashion is not properly before this Court. See State v. McCarn, 151 N.C.App. 742, 745-46, 566 S.E.2d 751, 753-54 (2002) (holding that the issue whether a trial court properly denied a motion to dismiss an appeal was not properly before this Court when the appellee only cross-assigned error rather than cross-appealing).¹

Affirmed.

Judge CALABRIA concurs.

Judge GEER dissents in a separate opinion.

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1. With respect to the parents' suggestion that we disregard the medical records because of the untimeliness of the trial court's order settling the record, we note that DSS, the appellant, proposed to include the records in the record on appeal, but the parents objected. Rule 11(c) of the North Carolina Rules of Appellate Procedure places the burden of seeking settlement of the record on the party who "contends that materials proposed for inclusion in the record ... were not filed, served, submitted for consideration, admitted, or made the subject of an offer of proof...." In this case, the parents bore the burden under Rule 11(c) to "in writing request the judge from whose judgment, order, or other determination appeal was taken to settle the record on appeal." N.C. R.App. P. 11(c) (2006). The parents, however, failed to take any such action.

2. The better practice would have been for the trial court to review the limited number of records involved prior to making a ruling on relevance. See 1 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 103.02[7], at 103-15 (9th ed.2006) (noting that, in addition to its function on appeal, an offer of proof at trial "informs the Judge what the proponent expected to prove by the evidence, thereby enabling the Judge to determine whether the evidence would be admissible for any purpose").