In re F.S., ___ N.C. App. ___ (Oct. 15, 2019) (originally unpublished, now published)

Held: 
Reversed
  • 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 Respondent mother appealed, and in 2018 the court of appeals unanimously reversed the adjudication (unpublished opinion) because the facts did not establish harm or risk of harm to the juvenile.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.
  • Dependency requires that the court makes findings of both the parent (1) is unable to provide for the child’s care or supervision and (2) lacks and an appropriate alternative child care arrangement. Mother challenges the first prong. Although chronic alcoholism may impair a parent’s ability to parent, the order did not include findings of mother’s present inability to supervise her child. The evidence shows mother had been in treatment since the petition was filed and her previous relapses were prior to the filing of the petition. The evidence of mother’s present compliance with her treatment “tends to show an ability or capability of Respondent-mother to parent” her child. Sl.Op at 19.
Category:
Abuse, Neglect, Dependency
Stage:
Adjudication
Topic:
Dependency
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