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In re C.C.

Court of Appeals of North Carolina

July 3, 2018


          Heard in the Court of 6 Appeals June 2018.

          Appeal by respondent from orders entered 21 September 2017 and 2 October 2017 by Judge Doretta L. Walker in Durham County No. 17 J 80-81 District Court.

          Senior Assistant County Attorney Bettyna B. Abney for petitioner-appellee Durham County Department of Social Services.

          Edward Eldred for respondent-appellant.

          Melanie Stewart Cranford for guardian ad litem.

          DAVIS, JUDGE.

         In this case, we revisit the issue of whether a child can properly be adjudicated as neglected where she has been in a stable voluntary placement outside of her parents' home for an extended period of time prior to the filing of a neglect petition. C.C. ("Respondent") appeals from the trial court's orders adjudicating his daughter, C.C. ("Clarissa"), [1] as a neglected juvenile. Because we conclude the trial court properly determined that Clarissa was a neglected juvenile, we affirm.

         Factual and Procedural Background

         A.S. ("Anna")[2] gave birth to Clarissa on 7 December 2014. Respondent is Clarissa's putative father. Respondent was incarcerated at the Wake County Correctional Center at all times relevant to this case. When Clarissa was approximately six months old, she began living with Anna's foster mother ("Ms. L."). Clarissa continued living with Ms. L. until December 2016.

         On 7 November 2016, Wake County Human Services ("WCHS") received a Child Protective Services report that Clarissa had been neglected while in Anna's care. The report included allegations of "substance abuse, mental health [issues], unstable housing, prostitution by the mother, . . . and inappropriate supervision, as [Clarissa] was left in a hotel (Days Inn) room by herself."

         Clarissa's half-sister, A.S. ("Alice"), [3] was born on 12 December 2016. Around this time, Anna decided that Clarissa would live with Respondent's mother ("Ms. C.").

         The case was transferred to the Durham County Department of Social Services ("DSS") on 30 January 2017 upon WCHS becoming aware that Anna and Alice had relocated to Durham. On 9 February 2017, Anna was accepted into the Cascade Treatment Program of Durham ("Cascade"), and she began living at Cascade along with Alice. During this time, Clarissa was living with Ms. C. and was allowed to visit Anna at Cascade on the weekends. During her stay at Cascade, Anna tested positive for illegal drugs on eleven out of thirteen drug tests.

         On 17 April 2017, Cascade informed DSS of an incident in which Anna had been permitted to leave the agency "on a pass with an expected return of 8:00 p.m." but had instead returned to the agency "around 1:45 a.m.[, ] . . . long after curfew, and appeared intoxicated when she returned." Anna was informed on 18 April 2017 that she would be discharged from Cascade "due to continuously testing positive for illegal substances."

         On 19 April 2017, a DSS employee informed Anna that due to her continued substance abuse it intended to file a petition seeking custody of her children and asked Anna who she would prefer to care for them. Anna requested that Clarissa and Alice be placed back with Ms. L. DSS subsequently approved a kinship assessment with Ms. L., and both children began living with her.

         On 21 April 2017, Anna was discharged from Cascade. DSS filed a juvenile petition on 25 April 2017 alleging that Clarissa and Alice were neglected juveniles.

         On 16 May 2017, Anna called Latisha Martin, a DSS social worker, and informed Martin that "she wanted to go to New Jersey, where she believed she could better access the services needed to sustain recovery." She asked Martin if the children could be placed with Alice's paternal grandmother ("Ms. B.") in New Jersey. Martin replied that Ms. B.'s status as a relative would have to be confirmed through paternity testing and that a request under the Interstate Compact on the Placement of Children would need to be sent to New Jersey before the children could be placed with Ms. B.

         On 17 May 2017, DSS sought an order for non-secure custody as to Clarissa and Alice and filed a supplemental petition for neglect, alleging that Anna was making arrangements to immediately remove the children from their placement with Ms. L. and take them to New Jersey. The supplemental petition stated that the children were "exposed to a substantial risk of serious physical injury or sexual abuse" because "the mother is threatening to remove the children [from Ms. L's care] immediately."

         An adjudication hearing on DSS's petition for neglect was held on 14 June 2017 before the Honorable Doretta L. Walker in Durham County District Court. Martin and Anna testified at the hearing. A dispositional hearing was held on 17 and 18 July 2017. On 21 September 2017, the trial court issued an order (the "Adjudication Order") finding Clarissa to be a neglected juvenile. On 2 October 2017, the court entered a second order (the "Disposition Order") determining that it was in Clarissa's best interests to remain in the care of Ms. L. and continuing legal custody of Clarissa with DSS. Respondent file a timely notice of appeal as to both the Adjudication Order and the Disposition Order.[4]


         On appeal, Respondent contends that the trial court erred by adjudicating Clarissa to be neglected based on his argument that the court made no finding in the Adjudication Order that Clarissa was at a substantial risk of impairment and that the evidence would not have supported such a finding. At the outset, we note that it is undisputed by the parties that Respondent is unable to care for Clarissa because of his incarceration. For this reason, the parties devote ...

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