in the Court of Appeals 27 February 2019.
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
Forrest Firm, P.C., by Patrick S. Lineberry, for
Battle, Winslow, Scott & Wiley, P.A., by M. Greg
Crumpler, for guardian ad litem.
appeals from disposition orders for her minor children,
B.C.T. ("Benjamin") and J.B.B.
("Jeffrey") 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
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. 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.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.
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.
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
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
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
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. 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.
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
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. DSS noted that Mr. Matthis'
attendance to couples therapy was inconsistent, but that he
"began cooperating once petitions were filed in 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.
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?
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.
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.
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
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 ...