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In re B.C.T.

Court of Appeals of North Carolina

May 7, 2019


          Heard in the Court of Appeals 27 February 2019.

          Appeal by respondent from orders entered 23 April 2018 by Judge William B. Sutton, Jr. and 27 June 2018 by Judge Carol A. Jones in District Court, Sampson County. Nos. 17 JA 120, 121

          Warrick, Bradshaw and Lockamy, P.A., by Frank L. Bradshaw, for petitioner-appellee Sampson County Department of Social Services.

          Forrest Firm, P.C., by Patrick S. Lineberry, for respondent-appellant mother.

          Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, for guardian ad litem.

          STROUD, JUDGE.

         Respondent-Mother appeals from disposition orders for her minor children, B.C.T. ("Benjamin") and J.B.B. ("Jeffrey")[1] and a related civil custody order for Jeffrey. Because there is no competent evidence to support many of the trial court's findings, and the conclusions of law are not supported by the findings, we reverse and remand.

         I. Background

         Sampson County Department of Social Services ("DSS") became involved with Mother in March of 2017 after receiving a report of physical injury and injurious environment in Mother's home.[2] DSS had received a report that Mother's boyfriend, Travis Matthis, who lived with Mother, had punched Benjamin, age seven in the stomach. Mother had previously allowed her other son, Jeffrey, age twelve, to live with a family friend, Kristen Mitchell, because Jeffrey did not like Mr. Matthis.[3]After the report to DSS regarding Benjamin, Mother voluntarily agreed to place Benjamin with Ms. Mitchell as well. After an assessment, DSS determined that Mother and Mr. Matthis needed to address emotional and mental health issues, family relationships, and parenting skills. In May 2017, DSS developed a home services agreement with Mother and in June 2017 did the same for Mr. Matthis. Neither agreement is in our record on appeal. According to the reports and testimony in the record, Mother's family services agreement required her to attend individual therapy, take all medications as prescribed, attend couple's counseling with Mr. Matthis and follow any recommendations, and participate in a parenting education curriculum. There is no indication in our record that DSS ever requested that Mr. Matthis move out of Mother's home. Throughout the investigation and until entry of the order on appeal, Mother had unsupervised and unlimited visitation with both children, but Mr. Matthis saw Benjamin only during therapy sessions.

         DSS filed a separate petition for each child on 6 November 2017 alleging that they were abused and neglected juveniles; the allegations of the two petitions are substantially identical. The petitions note they were filed only because Mr. Matthis had not completed his family services agreement, although Mother had. Several court dates were set for a pre-adjudication hearing but were continued for various reasons. On 20 February 2018, the trial court entered pre-adjudication orders for Jeffrey and Benjamin.

         On 15 March 2018, Mother entered into a "consent to findings of fact" related to an adjudication of neglect only. These stipulations were:

1. That on or about March 14, 2017, the Sampson County Department of Social Services received a report of Injurious Environment.
2. That the Juveniles resided in the home of his mother and his mother's boyfriend Travis Matthis.
3. That the Juvenile [Jeffrey] the older sibling made allegations of physical abuse against Mr. Matthis. Later, the Juvenile [Benjamin] made similar allegations.
4. That those allegations were denied by Respondent Mother and Mr. Matthis.
5. That neither Juvenile required medical treatment for any such physical abuse and that there were no marks on the juveniles to substantiate said claims.
6. That Respondent Mother voluntarily placed the Juvenile [Jeffrey] with a family friend Hope Mitchell as [Jeffrey] did not want to be in the home with Mr. Matthis.
7. That the Respondent Mother admitted to domestic violence in the home which included Mr. Matthis holding a gun to her head when she was previously pregnant.
8. That Mr. Matthis was previously diagnosed with bipolar disorder and admitted to not taking his medication.
9. That Respondent Mother admitted to leaving the child with Mr. Matthis even though she admitted she had concerns of her own personal safety with Mr. Matthis.
10. On April 19, 2017, DSS substantiated injurious environment.
11.On or about May 29, 2017, In Home Services were put into place for Respondent Mother to include individual therapy, medication compliance, couple's counseling with Mr. Matthis and parenting education.
12. On June 9, 2017 DSS developed In Home Services plan with Mr. Matthis was developed whereby Mr. Matthis agreed to complete a mental health evaluation and follow and [sic] recommendations as well as attend individual therapy to include domestic violence counseling.
13. That prior to the filing of the petition, Respondent Mother had completed most of Service Agreement but Mr. Matthis had not made substantial progress with his Service Agreement.

         On 23 April 2018, the trial court entered an order apparently based entirely upon the stipulated facts adjudicating Benjamin and Jeffrey as neglected within the meaning of N.C. Gen. Stat. § 7B-101(15); there was no adjudication of abuse or dependency.[4] Neither the trial court's order nor Mother's stipulations addressed the fitness of Ms. Mitchell as a caregiver or the appropriateness of placement in her home.

         Mother complied with all of the requirements of the family services agreement, and DSS noted that "[t]hroughout the CPS Investigation and In-Home Services cases, Respondent Mother has exceeded the department's recommendations and has been cooperative."

         Mr. Matthis also agreed to a family services agreement which included completing a mental health evaluation and following any recommendations. The mental health evaluation recommended that Mr. Matthis attend outpatient therapy and complete a psychological evaluation. Mr. Matthis completed the psychological evaluation, but that evaluation recommended no further treatment or therapy.[5] DSS noted that Mr. Matthis' attendance to couples therapy was inconsistent, but that he "began cooperating once petitions were filed in the case."

         The disposition hearings for each child were held simultaneously on 10 May 2018. DSS's report recommended that Benjamin-the child Mr. Matthis had allegedly punched-be returned to Mother, but that legal and physical custody of Jeffrey be granted to Ms. Mitchell. At the disposition hearing, a social worker testified that Mother had complied with her family services agreement and she was satisfied with Mother's efforts, but that she remained in a relationship with Mr. Matthis. She recommended that custody of Benjamin be granted to Mother and that DSS be released from his case. She recommended that custody of Jeffrey be granted to Ms. Mitchell due to the length of time he had already been with her and his stated desire to stay with her, and that DSS be released from his case and a Chapter 50 custody order be entered. Although Mother had previously had unlimited visitation, DSS recommended unsupervised visitation of at least one hour every other week.

         The only other witness who testified was a therapist who had provided individual therapy to the children and family counseling to Mother and Mr. Matthis. One issue raised at the hearing was whether Mother or Ms. Mitchell had been coaching the children; the therapist testified that the children had reported that Ms. Mitchell said things such as, "Travis [Matthis] is never going to change, he's never going to be nice to you." The only evidence in the record regarding Ms. Mitchell's home was from the DSS court report that her home was in the same school district as Mother's home and all of Benjamin's needs were met. The only testimony regarding Ms. Mitchell's home at the disposition hearing was:

Q. Now, the home that [Jeffrey's] staying in, you've had an opportunity to see that home. Is that correct?
A. Yes ma'am.
Q. And, the home he has there, I believe he has a four wheeler or an ATV, is that correct?
A. Correct.
Q. He has video games. Is that right?
A. As far as I know. I've been told of that.
Q So, he has pretty much whatever a child desires as it relates to toys and those kind of things. Is that right?
A. Yes ma'am.

         On 27 June 2018, the trial court entered a disposition order for each child. As to Benjamin, age seven, the trial court did not adopt DSS's recommendation that he be returned to Mother's custody since Mr. Matthis was still in the home, and entered a disposition order providing that: (1) legal custody remain with DSS and that he continue placement with Ms. Mitchell; (2) the permanent plan shall be reunification with Mother and a concurrent secondary plan of custody to a "relative or other suitable person"; (3) DSS make reasonable effort to "effectuate the current plan" for Benjamin; (4) Benjamin have no contact with Mr. Matthis; and (5) Mother have supervised visitation of at least one hour every other week.

         The trial court followed DSS's recommendations as to Jeffrey, and the disposition order for Jeffrey included findings of fact regarding Mother's compliance with the family services agreement and the following:

14. That the Juvenile has been adamant that he does not desire to be returned to his mother's home and expressly desires to remain in his current placement.
15. That it is not likely that the Juvenile will be returned home within the next six (6) months and placement with a parent is not in the Juvenile's best interests.
16. That the Respondent Mother is not making adequate progress within a reasonable period of time under the current permanent plan.
17. That the Respondent Mother is not actively participating in or cooperating with the plan, the Department of Social Services, and the Guardian ad Litem for the Juvenile.
. . . .
19. That the Respondent Mother is not acting in a manner consistent with the health or ...

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