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In re J.M.

Court of Appeals of North Carolina

September 19, 2017

IN THE MATTER OF: J.M. & J.M.

         Appeal by Respondent-Father from order entered 21 November 2016 by Judge William A. Marsh, III in District Court, Durham County Nos. 15 JA 146-147 Heard in the Court of Appeals 31 August 2017.

          Office of the Durham County Attorney, by Senior Assistant County Attorney Cathy L. Moore, for Petitioner-Appellee Durham County Department of Social Services.

          Assistant Appellate Defender Joyce L. Terres for Respondent-Appellant Father.

          K&L Gates, by Erica R. Messimer, for Guardian ad Litem.

          McGEE, Chief Judge.

         Respondent-Father appeals from an adjudication, disposition, and permanency planning order concluding that his son, J.M. ("the son"), was an abused juvenile; that his daughter, J.M. ("the daughter"), was a seriously neglected juvenile (together, "the children"); that it was in the children's best interests to remain in the custody of the Durham County Department of Social Services ("DSS"); and that DSS was not required to employ reasonable reunification efforts with Respondent-Father. We affirm in part, reverse and remand in part, and vacate in part.

         I. Background

          DSS filed a petition on 11 September 2015, alleging that the son and the daughter were abused, neglected, and dependent children. At the time the petition was filed, the son was two months old and the daughter was nearly two years old. The petition alleged that the mother brought the son to a well-baby check-up on 8 September 2015, at which the examining health professional observed "marks" on the son's neck. The son was sent to UNC hospitals for further testing. The tests, including a "skeletal survey, " revealed healing fractures to his ribs, tibia, and fibula; ear and tongue bruising; subconjunctival hemorrhages; and excoriation under the chin. The examination also revealed that the son had a history of poor weight gain due to "not being fed on a regular schedule."

         The children's mother revealed to DSS that Respondent-Father had: (1) "flick[ed]" the son in the chin and had punched the son in the stomach; (2) excessively disciplined the daughter by, inter alia, hitting her with a back scratcher and hitting her in the mouth; (3) engaged in domestic violence with the mother in front of the children; and (4) smoked marijuana in the presence of the children. The petition further alleged that the mother and Respondent-Father each had mental health diagnoses and that the mother had borderline intellectual functioning. According to the petition, the children's maternal grandparents lived in New York but traveled to Durham on a regular basis to care for the children. DSS obtained nonsecure custody of the children on 11 September 2015, and the trial court sanctioned placement with the grandparents.

         A hearing was held on DSS's petition on 12 July 2016, during which the trial court heard testimony from: (1) a nurse practitioner, who treated the son and was an expert in pediatrics and child maltreatment; (2) the children's maternal grandmother ("the grandmother"); and (3) a social worker supervisor familiar with the family's case. Following the hearing, the trial court entered a combined adjudication, disposition, and permanency planning order on 21 November 2016.

         Relevant to the present appeal, the trial court found as fact that: (1) the mother had disclosed to the grandmother and medical professionals that Respondent-Father was too rough with the son; (2) the mother had witnessed Respondent-Father being abusive to the son; (3) the son's "skeletal surveys" showed healing fractures to his ribs, tibia, and fibula, bruising to his ear and tongue, subconjunctival hemorrhages, and excoriation under his chin; (4) there was no history of falls or accidents to explain the son's injuries, and the injuries were consistent with instances described by the children's mother; (5) the mother witnessed Respondent-Father inappropriately disciplining the daughter; and (6) the mother was not forthcoming during a prior child protective services investigation. The trial court also found that, pursuant to a safety plan, the grandmother agreed to reside in the home with the mother and Respondent-Father agreed to move out. However, the mother subsequently recanted her statements and moved out of the home.

         Based on these, and other, findings of fact, the trial court concluded the son was an abused juvenile and that the daughter was a "seriously neglected" juvenile. The trial court further concluded it was in the children's best interests to remain in DSS custody; that the permanent plan for the children should be guardianship, with an alternative plan of adoption; and that reasonable reunification efforts with the mother and Respondent-Father were no longer required. Respondent-Father appeals.[1]

         II. Analysis

         Respondent-Father argues the trial court erred by: (1) making several findings of fact that were not supported by competent evidence in the record or were improperly admitted hearsay statements; (2) concluding as a matter of law that the son was an abused juvenile; (3) concluding as a matter of law that the daughter was a "seriously neglected" juvenile; and (4) relieving DSS of its responsibility to make reunification efforts without following "any applicable statutory requirements."

         A. Challenged Findings of Fact

         Respondent-Father argues four of the trial court's findings of fact were improperly made because the evidence underlying those findings was inadmissible hearsay. In addition, Respondent-Father argues that four other findings of fact were unsupported by competent evidence in the record.

         1. Hearsay

         Respondent-Father argues findings of fact 12 and 19 are unsupported by competent evidence because the testimony underlying the findings was inadmissible hearsay. These findings state:

12. During the week prior to Labor Day, the mother contacted her mother, [the grandmother] in New York, several times a day by phone and text to attempt to tell her something. Finally, the mother called [the grandmother], informing her that [Respondent-Father] was treating the children too rough; it was serious; she didn't know how to handle it and he was abusing them.
. . . .
19. The children have been present during incidents of domestic violence between the parents. On one occasion, [mother] was holding [the son] in her arms and [Respondent-Father] hit her with a broom.

         As Respondent-Father argues in his brief, the only competent evidence presented at the hearing to support these findings of fact was the testimony of the grandmother. The grandmother testified that the mother called and texted on numerous instances about "what was going on, " and that whatever was going on was "serious." In one such conversation, which occurred in September 2015, the mother reported to the grandmother that she had been a victim of physical and sexual abuse at the hands of Respondent-Father, and that Respondent-Father "was hitting [the daughter] with a broomstick." The grandmother testified that the mother told her that both the son and the daughter were present during instances of domestic violence between Respondent-Father and the mother.

         Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801(c) (2015). Hearsay evidence is inadmissible unless an exception to the hearsay rule applies. N.C. G.S. § 8C-1, Rule 802. While we agree with Respondent-Father that this testimony, to which Respondent-Father properly objected, was hearsay, we find that the testimony was properly admitted under N.C. G.S. § 8C-1, Rule 801.

          N.C. G.S. § 8C-1, Rule 801 provides, in relevant part:

(d) Exception for Admissions by a Party-Opponent. - A statement is admissible as an exception to the hearsay rule if it is offered against a party and it is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject[.]

N.C. Gen. Stat. § 8C-1, Rule 801(d) (2015). Respondent-Father argues that the party opponent exception does not apply in this instance, because the statements in question were made by the mother, not by him. He also submits that the mother did not make them in a representative capacity, and that he did not authorize or adopt her statements.

         We are not persuaded by Respondent-Father's argument, as he appears to overlook the fact that the mother was also a party to the action, and her inaction was relevant to the issue of whether the children were abused or neglected. Our Supreme Court has stated that "[i]n determining whether a child is neglected, the determinative factors are the circumstances and conditions surrounding the child, not the fault or culpability of the parent." In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).

         This Court addressed a nearly identical issue in In re Hayden, 96 N.C.App. 77, 384 S.E.2d 558 (1989). In Hayden, the respondent-father objected to out-of-court statements made by the mother and, on appeal, he argued that the statements did not fit within the party-opponent exception to the hearsay rule. This Court rejected the respondent-father's argument in that case, and explained:

At the hearing, the social workers were permitted to testify, over [the] respondent's objections, as to his wife's out-of-court statements to them that respondent did not properly care for the children, excessively disciplined them, abused illegal drugs and alcohol in their presence, and was violent in his behavior. [The r]espondent argues that these statements should have been excluded under Rule 802 in that they are hearsay, not within any exception. We disagree. [The mother] was a party to this action which was brought to determine whether her child [ ] was abused and neglected. Her statements to the social workers about [respondent's] conduct can only be reasonably considered
as admissions by her that [the juvenile] was subjected to conduct in her presence which could be found to be abusive and neglectful. Within the context of this juvenile petition case, we hold that her statements were properly ...

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