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IN THE MATTER OF Y.S.P., COA12-721. (2012)

Court: Court of Appeals of North Carolina Number: inncco20121218526 Visitors: 2
Filed: Dec. 18, 2012
Latest Update: Dec. 18, 2012
Summary: UNPUBLISHED OPINION ELMORE, Judge. Respondents appeal from: (1) an order adjudicating the juveniles neglected; and (2) a disposition order awarding legal custody and placement of the juveniles to the McDowell County Department of Social Services. After careful review, we affirm. On 29 August 2011, the McDowell County Department of Social Services ("DSS") filed petitions alleging that Y.S.P., A.M.B., E.D.B., N.E.B., R.C.T.B., T.C.T.B, and Y.D.T.B. were neglected and abused juveniles. DSS recei
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UNPUBLISHED OPINION

ELMORE, Judge.

Respondents appeal from: (1) an order adjudicating the juveniles neglected; and (2) a disposition order awarding legal custody and placement of the juveniles to the McDowell County Department of Social Services. After careful review, we affirm.

On 29 August 2011, the McDowell County Department of Social Services ("DSS") filed petitions alleging that Y.S.P., A.M.B., E.D.B., N.E.B., R.C.T.B., T.C.T.B, and Y.D.T.B. were neglected and abused juveniles. DSS received a report on 11 March 2011 concerning allegations of sexual abuse, domestic violence and medical and dental neglect. DSS stated that the juveniles all required routine medical, dental, and vision care. The allegations of sexual abuse concerned the juveniles' older sibling, A.B., and a child medical evaluation concluded that respondent-father, who was A.B.'s stepfather, had "placed his penis in [A.B.'s] mouth and ejaculated afterwards, placed his finger in her vagina, asked to perform oral sex on her, touched her breasts with his mouth and hands and encouraged her not to tell her mother."1

The family was put into a case management plan and respondent-father agreed to have no contact with respondent-mother and the juveniles. Respondents underwent a psychological assessment but were unwilling to participate in a Child and Family Team meeting to discuss the recommendations. The psychological assessment claimed that the juveniles were at risk if respondent-father did not receive sex offender treatment. Accordingly, because respondents refused to accept the protective services arranged by DSS, DSS filed the petition alleging abuse and neglect.

Adjudicatory hearings were held on 17 November 2011 and 5 January 2012 and dispositional hearings were held on 16 and 23 February 2012. The trial court concluded that the juveniles were neglected and that a return to respondents' home would be contrary to their welfare. Accordingly, the court awarded custody of the juveniles to DSS. Respondents appeal.

I. Subject Matter Jurisdiction

The threshold issue for this Court to consider is whether the trial court acquired jurisdiction of the subject matter of this juvenile action. Respondents argue that the trial court lacked subject matter jurisdiction over N.E.B., Y.D.T.B., E.D.B., and R.C.T.B. because the copies of the verified petitions alleging abuse and neglect of these juveniles were not included in the record on appeal. We disagree.

We review de novo questions of subject matter jurisdiction. See In re J.A.P., 189 N.C. App. 683, 685, 659 S.E.2d 14, 16 (2008).

"A trial court's subject matter jurisdiction over all stages of a juvenile case is established when the action is initiated with the filing of a properly verified petition." In re T.R.P., 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). N.C. Gen. Stat. § 7B-403 specifically provides that "the petition shall be drawn by the director, verified before an official authorized to administer oaths, and filed by the clerk, recording the date of filing." N.C. Gen. Stat. § 7B-403(a) (2011).

Here, not all of the juvenile petitions contained within the record on appeal were verified. However, on 5 September 2012, DSS filed a motion to supplement the record on appeal to include copies of the petitions as well as an affidavit from the social worker who filed the petitions. This Court granted respondent's motion and the copies of the petitions were designated as exhibits to the record. The copies of the petitions submitted by DSS were properly verified. It is therefore apparent from the petitions in the record on appeal and the copies submitted by DSS that not all copies of each juvenile petition were properly verified. Nevertheless, at least one verified petition concerning each juvenile was filed with the court. The filing of a single verified petition is sufficient to invoke the subject matter jurisdiction of the courts. Conversely, the failure of the clerk of court to verify duplicate copies of the petitions did not deprive the court of jurisdiction. Therefore, we conclude the trial court had subject matter jurisdiction.

II. Neglect

Respondents next argue that the trial court erred by adjudicating the juveniles as neglected. We disagree.

"The role of this Court in reviewing a trial court's adjudication of neglect [] is to 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) (quoting In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). "If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary." Id. (citation omitted).

"Neglected juvenile" is defined in N.C. Gen. Stat. § 7B-101(15) 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. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home... where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen. Stat. § 7B-101(15) (2011) (emphasis added). In determining whether a child is neglected based upon the abuse or neglect of a sibling, "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." In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999). "A determination of the weight to be afforded to evidence of prior abuse or neglect of another child is committed to the sound discretion of the trial court." In re S.H., ___ N.C. App. ___, ___, 719 S.E.2d 157, 159 (2011) (citing In re Nicholson and Ford, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994)).

Here, the trial court found as fact:

35. That inappropriate sexual contact between [A.B.] and [respondent-father] occurred when [A.B.] was 15 and 16 years old. At that time, [respondents] were married and were living together with the juveniles. .... 37. That MCDSS received Dr. Sansbury's report on August 24, 2011 which had recommendations for [respondents] to complete in order to allow them to provide a safe home for the juveniles. The recommendations included: a. That [respondent-father] undergo a sex offender specific evaluation to determine his risks, cognitive beliefs and attitudes that contributed to his sexual crimes, and identify needed treatment and treatment goals; b. That [respondent-father] complete this recommended sexual offender treatment; c. That [respondent-mother] complete her psychological assessment and follow all recommendations, participate in needed treatment, and be educated/demonstrate adequate knowledge and understanding of the effects of sexual abuse on the development on a child; f. Whether [respondent-father] should be allowed in the home at any point in time is highly dependent upon the above participation and progress in the recommended treatments[.] 39. That Dr. Sansbury authored a letter dated August 25, 2011 concerning the safety of the juveniles. Dr. Sansbury stated and the court finds that [respondent-mother] was more focused on [respondent-father's] return to the family than addressing [A.B.'s] needs, that if [respondent-father] was allowed back into the home without doing the work, the other children would be at risk for sexual abuse and psychological abuse and that if the mother was unwilling to work with DSS nor protect her children then the children may need to be placed in another setting. 40. That after receiving the report from Dr. Sansbury, MCDSS asked [respondents] to attend a Child and Family Team meeting to discuss the recommendations of Dr. Sansbury. [Respondents] expressed their desire to remain a couple at the meeting and refused to cooperate with the recommendations of Dr. Sansbury. 41. That [respondent-mother] has failed to complete a psychological parenting assessment. 42. That [respondent-father] has failed to obtain a sexual offender specific evaluation. 43. That Respondent Mother continues to express her desire to maintain a relationship with [respondent-father].

Respondent-mother makes a general argument that finding of fact 39 is not supported by sufficient evidence. We find her objection to be without merit. Dr. Sanbury's letter that was referenced by the court was attached to the juvenile petitions. Additionally, Dr. Sanbury testified at the hearing and his testimony was consistent with the letter. Thus, we conclude there was sufficient evidence in the record to support the trial court's finding of fact. Respondents do not challenge any of the other findings of fact and they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal); see also In re S.N.H. & L.J.H., 177 N.C. App. 82, 83, 627 S.E.2d 510, 512 (2006).

A careful examination of the trial court's adjudication order also shows that it considered additional evidence bearing on the issue of neglect besides the prior abuse to which A.B. was subjected. The trial court found as fact:

26. That the [] juveniles [] received a child medical examination. All of the juveniles were found to be in need of routine dental, medical and vision care. All of the juveniles had numerous dental issues that required treatment. 27. That the dental issues of the juveniles were so serious that the examiner, Beth Browning, believed and the court finds that the juveniles to be at risk of medical complications because of the untreated dental problems. 28. That [T.C.T.B.] was previously diagnosed and treated for leukemia. Her oncologists recommended follow up care that was not provided by the Respondents. The child medical evaluation for [T.C.T.B.] recommended that she receive the follow up treatment her oncologists previously stated was necessary.

The trial court's findings were supported by the testimony of Elizabeth Browning, an adolescent and pediatric nurse employed with South Mountain Children and Family Services. Browning testified that the juveniles "didn't have a primary care provider, that they did not have regular well checks, that they had not had immunizations, that they hadn't had regular dental care, that they'd not had vision care." Browning stated that the juveniles "had poor dental care and it was visible[,]" noting that some of the juveniles had "brown spots" on their teeth due to decay. Browning further testified that T.C.T.B. did not have the regular checkups with her oncologists recommended for a child who was in remission from leukemia. "It is settled law that nonfeasance as well as malfeasance by a parent can constitute neglect." In re Adcock, 69 N.C. App. 222, 224, 316 S.E.2d 347, 348 (1984) (citation omitted).

We conclude that the trial court's findings of fact concerning respondent-father's abuse of A.B., respondents' failure to cooperate with Dr. Sanbury's recommendations, respondent-mother's desire to continue a relationship with respondent-father, the risk of harm to the juveniles, as well as the medical and dental neglect suffered by the juveniles, supports the trial court's adjudication of neglect.

III. Custody

Respondent-mother next argues the trial court abused its discretion by continuing custody of the juveniles with DSS. We are not persuaded.

"The district court has broad discretion to fashion a disposition from the prescribed alternatives in N.C. Gen. Stat. § 7B-903(a), based upon the best interests of the child." In re B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008). A court's decision on best interests is reviewed for abuse of discretion. See In re D.S.A., 181 N.C. App. 715, 720, 641 S.E.2d 18, 22 (2007). A trial court may be reversed for abuse of discretion only upon a showing that the court's ruling is "manifestly unsupported by reason" or "so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

Among the dispositional alternatives for abused, neglected, or dependent children is to place "any juvenile who needs more adequate care or supervision or who needs placement" in the custody of DSS. N.C. Gen. Stat. § 7B-903(a)(2) (2011). Here, the trial court found as fact in its dispositional order that:

15. Prior to [the dispositional hearing], the respondent mother and the respondent father [] told the social worker that they did not want to follow the recommendations of the Department[.] 20. The respondent mother testified that [respondents] were no longer living together and she had no plans to get back together with the respondent father[.] 21. The Court does not find respondent mother's testimony credible. The respondent mother has been repeatedly seen with the respondent father [] and it is clear to the Court that the respondent mother has put her relationship with the respondent father[] over the best interest of her children[.] 22. The respondent mother continues to minimize and deny her knowledge of the [the sexual abuse], and her complicity in the abuse that occurred to her daughter. 27. [R]espondent mother... has [not] participated in and completed psychological evaluations as ordered. 29. The concerns of the GAL are that neither the respondent father [] nor the respondent mother have complied with therapy sessions and both have made unsubstantiated allegations of anti-semitism against the therapist; that the respondent mother has maintained that she wishes to separate from the respondent father [] due to the allegations of sexual misconduct/abuse of her daughter; however, she has been seen in the presence of the respondent father [] multiple times since her statement to the Court on February 16, 2012 of intending to separate from him. 38. The Court specifically finds that the respondent father [] is still in the picture in that he continues to stay with the respondent mother and it is wholly inappropriate that the respondent mother continues this relationship. The respondent mother has not supported her daughter and the respondent mother has continued to support the respondent father[.]

Respondent-mother does not challenge the trial court's dispositional findings as being unsupported by the evidence and they are therefore binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Based upon these uncontested findings, as well as the historical facts of this case, we hold that the trial court's decision to continue custody with DSS was not manifestly unsupported by reason.

IV. Conclusion

We conclude that the trial court had subject matter jurisdiction to adjudicate this matter. Furthermore, the trial court did not err in adjudicating the juveniles as neglected and it properly awarded legal custody and placement of the juveniles to the McDowell County Department of Social Services. After careful review, we affirm.

Affirmed.

Judges STEELMAN and STROUD concur.

Report per Rule 30(e).

FootNotes


1. A petition was filed concerning A.B. but was dismissed because she turned eighteen years of age prior to adjudication.
Source:  Leagle

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