In re A.W

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-161 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 IN THE MATTER OF: A.W., C.P. Chatham County No. 12 JA 32, 33 Appeal by mother from order entered 25 October 2012 by Judge Joseph Moody Buckner in Chatham County District Court. Heard in the Court of Appeals 5 August 2013. J. Lee Gilliam, Assistant Appellate Defender, for motherappellant. Tawanda N. Foster for Guardian ad Litem-appellee. Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe, for Chatham County Department of Social Servicesappellee. STEELMAN, Judge. Where essential the to trial its court s ultimate extraneous holding, any findings error was were not harmless. Where unchallenged evidence in the record supported the trial court s findings of fact and conclusions of law, the trial court did not abuse its discretion in concluding that the children -2were neglected. Where the children had been previously placed with a kinship caretaker, the trial court erred in adjudicating the children dependent. Where the trial court failed to give clear instructions as to the time, place, and conditions imposed on visitation, we remand this portion of the order to the trial court for entry of additional instructions.1 I. Factual and Procedural History In July 2011, Belinda Patterson (mother) placed her children, A.W. and C.P. (the children) in the care of her niece Linda, in Chatham County, where they had lived off and on since November, 2010[.] On 23 September 2011, Chatham County Department of Social Services (DSS) received a report alleging that the children were sexually abused, improperly supervised and living in an injurious environment when they lived with mother. On 22 June 2012, DSS filed petitions, alleging that the children were abused, neglected and dependent juveniles. On 26 October 2012, the adjudication and disposition order. trial court entered its The trial court found that, during the investigation, mother had moved at least four times; 1 The General Assembly recently amended the statutes dealing with juvenile proceedings, including § 7B-905(c), § 7B-906(b), and § 7B-907(b). 2013 North Carolina Laws S.L. 2013-129. As this action was filed prior to the amendments effective date of 1 October 2013, the amendments do not apply to this case. -3had at least seven telephone numbers; was unemployed and had no verifiable income; and that as of the summer of 2012, mother began living in public housing with her boyfriend and children who are not the subject of these proceedings. two The trial court further found that the children had suffered various minor injuries which were inconsistent with mother s explanations of how they occurred; that upon returning from a trip with mother, the children were dirty and hungry, and stated that they had hardly seen [] mother while they were away[;] that during this trip they stayed with mother s boyfriend who was subsequently arrested for trafficking by possession and transportation; that while the children were staying with Linda, mother rarely called or requested visits; that while the children were staying with mother, they were frequently being placed with different people, being poorly supervised and left home alone[;] and that when Linda took them to a doctor, the children were immunizations. found to be about a year behind on their The trial court also found that mother admitted to using marijuana. The trial court concluded that the children were neglected pursuant to N.C. Gen. Stat. § 7B-101(15) in that they did not receive proper care, supervision or discipline from mother, and -4in that they lived in an environment injurious to their welfare. The trial court concluded that the children were dependent pursuant to N.C. Gen. Stat. § 7B-101(9) in that their parents were unable to provide for their care or supervision and lacked an appropriate child care arrangement. The trial court ordered that the children remain in custody of DSS, placed in the care of Linda, with weekly supervised visits from mother. Mother was further ordered to participate in a case plan. Mother appeals. II. Standard of Review The role of this Court in reviewing a trial court s adjudication of neglect and abuse 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. -5 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. . . . We review a dispositional order only for abuse of discretion. In re B.W., 190 N.C. App. 328, 336, 665 S.E.2d 462, 467 (2008) (citing In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567, disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982, 155 L. Ed. 2d 673 (2003). III. Findings Outside the Scope of Petition In her first argument, mother contends that the trial court erred by making findings outside of the scope of the petition. We disagree. The petitions by DSS alleged that the children were sexually abused; that they had been exposed to and witnessed substance abuse; that they were behind on immunizations; that mother was difficult to reach due to her changing address and phone number; that the children returned from their trip smelling as if they hadn t bathed; that they did not stay with their mother; and that one caregiver with whom mother had placed the children was delivery of drugs. later arrested for trafficking, sale and In its findings, the trial court found as fact many of these allegations. The trial court also found that -6mother had received food stamps, housing assistance and child support for the children despite not caring for them. Mother contends that these specific findings were erroneous. Mother cites to N.C. Gen. Stat. § 7B-802, which mandates that the trial court adjudicate the existence or nonexistence of the conditions alleged in a petition. We acknowledge that the trial court erred in making these specific extraneous findings. error was harmless. We nonetheless hold that this The findings of fact listed above which mother does not challenge are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These unchallenged findings, exclusive of the challenged findings, are sufficient to support the trial court s conclusions of law. Where ample other findings support the trial court s decision on neglect, the inclusion of erroneous findings is harmless error. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240-41 (2006). This argument is without merit. III. Neglected Juveniles In court her erred juveniles. second in argument, concluding We disagree. mother that the contends children that were the trial neglected -7Mother first contends that the children were not neglected, because they were thriving in Linda s care. Mother contends that the finding of neglect was an attempt to assign fault to mother, rather than to examine the current circumstances of the children. It is true that mother s placement of the children in her niece s care was a positive step. However, the harms enumerated in the trial court s findings were harms that transpired while the children Linda s were care. We in mother s have care, previously not while held that, they even were in when a juvenile has been placed with a family member, the juvenile may nonetheless be adjudicated neglected when the parent is unable to care for the child, when the parent is unable to correct the conditions which caused placement with the family member, and when the parent lacks stable housing or income. See In re K.J.D., 203 N.C. App. 653, 661, 692 S.E.2d 437, 444 (2010). In the instant case, evidence in the record showed that mother did not enjoy stable housing or income, used marijuana, and did not bathe her children or spend time with them. not abuse its discretion in examining the The trial court did circumstances and conditions of the children while they stayed with mother, even though they were presently in the care of Linda. -8Mother next challenges several support a conclusion of neglect. findings of fact which Specifically, she contends that there was not clear and convincing evidence to support the trial court s findings that there was a history of referrals to child protective services in multiple counties, that the children stayed with mother s boyfriend who was later arrested for drug trafficking, and that the children were placed with multiple caregivers who left them unsupervised. Even assuming arguendo that these findings of fact were not supported by clear and convincing evidence, we hold that there were still ample supported findings to support a conclusion of neglect. Mother also contends that the trial court s findings were too general, and that they failed to establish a risk of harm to the children. While it is generally true that findings of actual or substantial risk of harm are necessary to support an adjudication of neglect, we have held that an adjudication lacking such findings may nonetheless be affirmed when all the evidence supports such a finding. In re Safriet, 112 N.C. App. 747, 753, 436 S.E.2d 898, 902 (1993). In the instant case, the record showed that the children were filthy, behind on their immunizations, frequently injured, and exposed to sexual abuse and drug abuse. These facts support a conclusion of neglect. -9Because the evidence in the record supports the trial court s findings of fact, and the findings support the trial court s conclusions of law, we hold that the trial court did not abuse its discretion in concluding that the children were neglected juveniles. This argument is without merit. IV. Dependent Juveniles In her third argument, mother contends that the trial court erred in concluding that the children were dependent juveniles. We agree. Pursuant to N.C. Gen. Stat. § 7B-101(9), a juvenile is dependent because of a lack of a caregiver, requiring the State to intercede. Mother argues that she placed her children in the custody of her niece, in whose care the children were thriving. We have previously held that, under the statutory definition of dependent juvenile provided by N.C. Gen. Stat. § 7B-101(9), the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements. In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005). In the instant case, the trial court addressed mother s failure to care for the children. This alone, however, is insufficient; -10the trial court must also find an absence of alternative child care arrangements, requiring action by the State. record shows arrangement, placement. the and existence that the of an children Here, the alternative were child thriving in care kinship Because the trial court failed to correctly apply the second prong of this analysis, we hold that it erred in concluding that the children were dependent juveniles. V. Visitation Schedule In her fourth argument, mother contends that the trial court erred in outlining the time, place, and conditions under which she may exercise her weekly visits with the children. We agree. In its adjudication and disposition, the trial court ordered that [v]isits with [mother] shall be supervised and shall occur visitation weekly. plan lacking Mother correctly observes details regarding time, that place, a and conditions of visitation must be remanded for clarification of a respondent s visitation rights. See In re K.S., 183 N.C. App. 315, 330-31, 646 S.E.2d 541, 549-50 (2007); In re E.C., 174 N.C. App. 517, 523, 621 S.E.2d 647, 652 (2005). These cases relied on N.C. Gen. Stat. § 7B-905(c), which states in relevant part that [a]ny dispositional order under which a juvenile is -11removed from the custody of a parent, guardian, custodian, or caretaker, or under which the juvenile's placement is continued outside the home shall provide for appropriate visitation as may be in the best interests of the juvenile and consistent with the juvenile's health and safety. N.C. Gen. Stat. § 7B-905(c) (emphasis added). We have previously held that a visitation plan offering supervised visitation every other week, which may be reduced to monthly based details and on the was parent s remanded instructions on visitation. 742 S.E.2d proposed 853, plan 857-58 of for conduct, further In order inadequate. of weekly and vital clearer supervised the instant case, the visits offers even less structure than that found in In re J.P. court s findings these In re J.P., ___ N.C. App. ___, ___, (2013). weekly lacked visits, We hold that the trial absent more detail, is We vacate this portion of the order and remand to the trial court for further findings and clear instructions as to the time, place and conditions under which mother may exercise her weekly visits. VI. Conclusion The trial court s findings of fact that were beyond the scope of the petition were harmless error. The trial court did -12not err juveniles. in concluding The trial that court the erred children were dependent juveniles. children in were concluding neglected that the The trial court erred in failing to set forth specific time, place, and conditions for mother s visitation with the children. We remand this matter to the trial court for entry of an order setting forth the time, place, and conditions of mother s visitation with the juveniles. AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED IN PART. Chief Judge MARTIN and Judge DILLON concur. Report per Rule 30(e).

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