In re F.S., 268 N.C. App. 34 (2019) (originally unpublished subsequently published)

  • Facts and Procedural History: DSS filed its first petition alleging neglect and dependency in 2016. In 2017, the child was adjudicated neglected and dependent based mother’s on substance use. Respondent mother appealed, and in 2018 the court of appeals unanimously reversed the adjudication (unpublished opinion) because the facts did not establish harm or risk of harm to the juvenile. During the pendency of the appeal, mother entered into a case plan with DSS. During that period, mother was hospitalized at least 8 times for alcohol addiction and symptoms of withdrawal. On the date of the COA mandate, DSS filed a second petition alleging (1) neglect based on a lack of proper care, supervision, and discipline by a parent and living in an injurious environment and (2) dependency. At hearing, residual hearsay involving the child’s statements about mother’s drinking was admitted over objection. The DSS social worker (who was the second social worker assigned to the case) testified to statements the child purportedly made to other individuals (including the prior DSS social worker and child’s therapist). There was also testimony from the DSS supervisor about mother’s need for hospitalizations prior to the filing of the second petition due to mother’s use of impairing substances and her current participation in and compliance with the case plan. Respondent mother offered no evidence at the hearing. The child was adjudicated neglected and dependent and placed in DSS custody. Respondent mother appealed.
  • Neglect requires that there be some physical, mental, or emotional harm or substantial risk of such harm as a result of the failure to provide proper care, supervision, or discipline. At the time of the second adjudication, the juvenile was not in mother’s care such that the court must assess whether there is a likelihood of future neglect. The court considers “the risk for a particular kind of harm given [the juvenile’s] age and the environment in which they reside.” Sl.Op. at 14 (citation omitted). The appellate court looks to the totality of the evidence to determine whether the findings support the conclusion of neglect. Although mother had 8 hospitalizations between the first and second adjudication, “the trial court must consider ‘the conditions as they exist at the time of the adjudication as well as the risk of harm to the child from return to the parent.’ “ Sl. Op. at 16 (citing In re B.P., 809 S.E.2d 914, 920 (2018)). A parent’s substance abuse in and of itself is not clear and convincing evidence of a substantial risk of harm to the child. The child was not in mother’s care during the period of her hospitalizations and DSS supervisor testimony showed that since the petition was filed, mother was meeting with DSS regularly, participating in and compliant with her treatment services (including therapy, NA, and AA), and had several negative drug screens. There is no evidence that current circumstances or a likelihood of neglect exists.
Abuse, Neglect, Dependency
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