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In re B.P.

Court of Appeals of North Carolina

January 16, 2018

IN THE MATTER OF: B.P.

          Heard in the Court of Appeals 21 December 2017.

         Appeal by Respondent from order entered 17 March 2017 by Judge Ty M. Hands in Mecklenburg County No. 16 JA 512 District Court.

          No brief filed for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.

          Mercedes O. Chut for respondent-appellant mother.

          William L. Gardo II for Guardian ad Litem-appellee.

          Robert N.HUNTER, JR., Judge.

         Respondent, the mother of the juvenile B.P. ("Beth")[1], appeals from an order adjudicating the juvenile neglected and dependent. After careful review, we vacate and remand.

         I. Factual and Procedural Background

         On 18 October 2016, the Mecklenburg County Department of Social Services, Youth and Family Services ("DSS"), filed a petition alleging Beth was a neglected and dependent juvenile. DSS stated it received a child protective services ("CPS") report on 24 July 2016 regarding Beth. DSS's investigation revealed police had responded to a domestic violence call where Respondent reported Beth's putative father ("Mr. P.") "had swung at her and then pushed the stroller over with the baby inside."[2] Mr. P. was arrested for communicating threats and assault on a female. Meanwhile, Respondent informed police she was homeless and had not been taking her medication, and police became concerned about her mental status. Respondent's case was transferred to Family Intervention Services to address concerns regarding domestic violence, mental health, and parenting issues. The next day, Respondent was arrested on charges of common law robbery and conspiracy. Respondent did not expect to be released prior to December 2016.

         DSS stated during the course of their investigation, Respondent was staying in a laundromat. The laundromat's owners tried to assist Respondent. The owners had friends ("Mr. and Mrs. M.") in Cabarrus County who were willing to take Beth. Respondent placed Beth with Mr. and Mrs. M., and Beth was still in their care when the petition was filed. DSS noted Respondent attempted to grant Mr. and Mrs. M. "guardianship" of Beth via a handwritten, notarized document.

         In addition to the events which led to the filing of the petition, DSS alleged Respondent had been diagnosed with bipolar disorder, depression, and anxiety, and had not been compliant with treatment. DSS also noted Respondent had her parental rights to two older children terminated. Among the issues which led to the termination of her parental rights to those children were: Respondent's criminal activity and resulting arrest and incarceration; leaving the juveniles with an inappropriate caretaker; yelling at one of the children while at a domestic violence shelter; and pulling a knife on a friend who was holding one of the juveniles. A third child of Respondent was placed in foster care after DSS received a report in 2013 Respondent was using crack cocaine, engaging in prostitution, and not meeting the child's needs. Additionally, Respondent had placed the child with someone who had an extensive CPS history. The child was ultimately placed in her father's custody, and Respondent was denied visitation. DSS obtained non-secure custody of Beth and continued her placement with Mr. and Mrs. M.

         On 10 January 2017, the date of the start of the adjudicatory hearing, DSS filed an amended petition. DSS amended the petition to add the allegation Mr. P. had "posted a large number of statements on Facebook that [Respondent had] engaged in prostitution and drug use since November 22, 2016." On 17 March 2017, the trial court entered an order adjudicating Beth a neglected and dependent juvenile. Respondent appeals.

         II. Standard of Review

          "The role of this Court in reviewing a trial court's adjudication of neglect [and dependency] 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). We review the trial court's conclusions of law de novo on appeal. In re D.M.M., 179 N.C.App. 383, 385, 633 S.E.2d 715, 716 (2006) (citation omitted).

         III. Analysis

         Respondent argues the trial court erred by adjudicating Beth a neglected and dependent juvenile. Here, the trial court found as fact:

a. On 24 July 2016, [DSS] received a [CPS] report regarding the child.
b. The Charlotte-Mecklenburg Police Department [responded] to a domestic violence call where the mother reported that the father had swung at her and then pushed the ...

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