In re G.W., 286 N.C. App. 587 (2022)

  • Facts: DSS filed an abuse and neglect petition regarding the two older siblings involving improper care. During that case, G.W. was born. At the time of G.W.’s birth, mother tested positive for substances. Based on parents’ behaviors at the hospital, the hospital refused to allow G.W. to be discharged. DSS filed a neglect petition based on an injurious environment. The neglect petition alleged parents’ inappropriate behaviors in the hospital, substance use, and noncompliance with their case plan for the older siblings to receive mental health services, complete parenting classes, and repair holes in the floors of the home. The two older siblings were adjudicated neglected by consent. An adjudicatory and dispositional hearing was held regarding G.W., who the court concluded was a neglected juvenile based on an injurious environment due to the conditions of the home and parents’ failure to address the conditions that caused the two older siblings to be removed. Mother appeals the adjudication.
  • Neglect requires a showing that the injurious environment has resulted in harm or a substantial risk of harm to the juvenile. A newborn who is in the hospital is properly determined to live in the home of their parents when determining whether there is a substantial risk of harm. Cases involving newborns requires the trial court to assess whether there is a substantial risk of future abuse or neglect based on the historical facts of the case and is predictive in nature.
  • G.S. 7B-802 requires the court at adjudication to determine the existence or nonexistence of any of the allegations in the petition. Post-petition evidence is considered at disposition when the court addresses the best interests of the juvenile. However, there are exceptions when the evidence pertains to a “fixed and ongoing circumstance[s]”, like paternity or mental illness and is not a  “discrete event or one-time occurrence.”  286 N.C. App. at 594.
    • Mother’s challenged findings of fact are supported by clear and convincing evidence. The parents’ completion of parenting classes occurred after the petition was filed and is post-petition evidence of a discrete event or one-time occurrence and is not considered at adjudication. Post-petition drug screens are a discrete one-time occurrence and is not admissible at adjudication. Other findings related to post-petition evidence were appropriately considered at adjudication as they relate to “ongoing circumstances” that are relevant to the existence or nonexistence of the allegations in the petition. Parents’ behavior during visitation related to the allegation about parent’s inability to care for G.W. Testimony of recent observations of holes in the floors, which existed prior to G.W.’s birth, related to an ongoing circumstance of home safety. The failure to receive mental health services as required by the case plan for the 2 older siblings is relevant to the ongoing circumstance of the parents’ mental illness and is relevant to the existence or nonexistence of the allegations in the petition.
  • A substantial risk of harm is an ultimate finding of fact as it determines a mixed question of law or fact. The findings of fact based on clear and convincing evidence and unchallenged findings of fact support the ultimate finding that G.W. was at substantial risk of future harm.
  • Author’s Note: This opinion does not address the NC Supreme Court opinion stating post-petition evidence is inadmissible and relies on court of appeals precedent that carves out the exception of post-petition evidence of a fixed and ongoing circumstances. That exception was not addressed by the Supreme Court in In re L.N.H., 382 N.C. 536 (2022).
Abuse, Neglect, Dependency
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