In re E.P.-L.M., 272 N.C. App. 588 (2020)

Affirmed in Part; Vacated in Part; and Remanded
  • Facts: Prior to DSS involvement, there was a Chapter 50 civil custody order that awarded joint physical custody to both parents, with the juvenile primarily living with mother as father had moved to Georgia. Mother and juvenile resided with maternal grandmother. DSS became involved when mother and grandmother made multiple reports of sexual abuse of the juvenile by the father. After multiple medical assessments and DSS and law enforcement investigations, none of the reports of sexual abuse were substantiated. During in-home services with DSS, mother refused to agree to a placement of the juvenile with paternal relatives. DSS filed a petition alleging abuse, neglect, and dependency based on mother’s substance abuse, housing, and repeated unsubstantiated reports of sexual abuse by the father. At hearing, DSS, the GAL, and father provided stipulations to the court; mother did not stipulate resulting in a hearing where the stipulations were admitted as well as testimony from the social worker, mother, and mother’s substance abuse counselor. The child was adjudicated all three alleged conditions. The court entered a dispositional order that awarded custody to father and supervised visitation both electronically and in person for mother through a modification of the Chapter 50 custody order based on a substantial change in circumstances and terminated its jurisdiction in the juvenile action through G.S. 7B-911. Mother appeals, challenging the adjudications based on stipulations, the 7B-911 order, and the visitation order.
  • Dependency under G.S. 7B-101(9) requires findings for both prongs of the definition: that the parent (1) is unable to provide care and supervision and (2) lacks an appropriate alternative child care arrangement. Dependency does not exist when one parent is capable of providing care and supervision. Mother erroneously argues father was available to provide care and supervision to the juvenile at the time of the adjudicatory hearing.
    • Post-petition evidence: G.S. 7B-802 states “the adjudicatory hearing shall be a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in the petition.” Sl.Op. at 19 (emphasis in opinion). “Absent exceptional circumstances, the trial court may only look to the circumstances before the court at the time the petition was filed when considering whether a juvenile is dependent at the adjudication stage.” Sl.Op. at 19. Exceptions include evidence discovered after the petition is filed that reflects “a ‘fixed and ongoing circumstance’ rather than a ‘discreet event or one-time occurrence’ ” (e.g. paternity). Sl.Op at 19. Distinguishing this case from In re F.S., 835 S.E.2d 465 (N.C. Ct. App., 2019), which reversed a dependency adjudication because of a lack of evidence about mother’s ability to care for the juvenile at the time of the adjudication hearing, the juvenile in this case was in mother’s care (vs. the parent and child having a long period of separation prior to the petition being filed as was the case in F.S.) up until and including the time DSS filed its petition.
    • When the petition was filed, neither parent was available to provide care and supervision to the child – mother because of her emotional abuse and father because of the allegations of sexual abuse by him, rending father unavailable.
Abuse, Neglect, Dependency
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