IN RE: B.W. (2021)

¶ 1 Respondent appeals from the trial court's order adjudicating her son, B.W., to be a neglected and dependent juvenile as is defined by N.C. Gen. Stat. § 7B-101(9), (15) (2019). See N.C. R. App. P 42(b) (initials used to protect the identity of children). We affirm the trial court's order.

I. Background

¶ 2 The Buncombe County Department of Health and Human Services (“DHHS”) obtained nonsecure custody of a one-day-old male infant, B.W., on 11 December 2018, and filed a juvenile petition alleging dependency and neglect. The petition alleged inter alia,: (1) Respondent had served 9 years in prison in New York for killing her first child; (2) Respondent resides with her mother, whose parental rights to Respondent were terminated; (3) Respondent gave birth to another child while incarcerated and had relinquished her parental rights to that child; and, (4) Respondent was diagnosed with post-traumatic stress disorder, bi-polar disorder, and major depression and is receiving counseling and treatment with NC Brookhaven Behavior Health.

¶ 3 The trial court adjudicated B.W. as a neglected and dependent juvenile on 2 August 2019. After a hearing on 21 August 2019, the trial court entered its disposition order on 24 September 2019. The trial court ordered continued physical custody of B.W. with DHHS; allowed Respondent continued supervised visitation; and, directed Respondent to complete a comprehensive clinical assessment, comply with recommendations of mental health providers, allow releases of information from her providers to DHHS so they can monitor her treatment and probation, and provide the name and contact information for the putative biological father of the minor child. Respondent filed notice of appeal on 19 October 2019.

II. Jurisdiction

¶ 4 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(3) (2019).

III. Issues

¶ 5 Respondent argues the trial court erred by adjudicating B.W. as a neglected and dependent juvenile.

IV. Standard of Review

¶ 6 “The role of this Court in reviewing a trial court's adjudication of neglect and abuse is to determine (1) whether the findings of fact are supported by clear and convincing evidence, and (2) whether the legal conclusions are supported by the findings of fact[.] If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary.” In re T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) (alteration in original) (internal citations and quotation marks omitted). “The trial court's conclusions of law are reviewable de novo on appeal.” In re K.J.D., 203 N.C. App. 653, 657, 692 S.E.2d 437, 441 (2010) (citation and quotation marks omitted).

V. Neglect

¶ 7 DHHS alleged B.W. was a neglected juvenile as defined in N.C. Gen. Stat. § 7B-101(15) in that he did not receive “proper care, supervision, or discipline” from Respondent and that he “lives in an environment injurious to [his] welfare.” Respondent argues the trial court erred by adjudicating B.W. neglected because no clear and convincing evidence supports the findings of fact, which fail to support that conclusion of law.

¶ 8 Our Court has held “there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of impairment as a consequence of the failure to provide proper care, supervision, or discipline in order to adjudicate a juvenile neglected.” In re J.R., 243 N.C. App. 309, 313, 778 S.E.2d 441, 444 (2015) (citations and internal quotation marks omitted).

¶ 9 “[P]arental behavior constituting ‘neglect’ [is] ‘either severe or dangerous conduct or a pattern of conduct either causing injury or potentially causing injury to the juvenile.’ ” Id. at 315, 778 S.E.2d at 445 (citations omitted). As B.W. was taken from Respondent-mother's care, custody, and control the day after his birth, no past or present neglect of B.W. can be shown. DHHS carries the additional burden to show the probability of future neglect. See In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999) (“In cases of this sort, the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case.”).

¶ 10 The trial court found, inter alia:

27. The respondent mother reports currently being diagnosed with PTSD, Bi-Polar Disorder, and Major Depression. As of the date of this hearing, she receives ACT Team services and is involved with NC Brookhaven Behavioral Health (Brookhaven). The respondent mother's most recent psychological assessment, conducted by Brookhaven on or about September 20, 2018 confirmed that the respondent mother suffers from diagnoses of Bipolar II disorder, PTSD, and rule out Borderline Personality Disorder. Brookhaven's clinician opined that the respondent mother continues to exhibit symptoms of PTSD, including but not limited to flashbacks, nightmares, and hypervigilance. The respondent mother is described by Brookhaven as being a mild to moderate risk of suicide, and has a pattern of behaviors including impulsiveness, mood regulations issues and problems with anger. During her assessment, the respondent mother reported that her suicide attempts (10, the last being in July of 2017) have been “very impulsive”; that she doesn't slowly get but gets extremely worse “all of the sudden” and can/will suddenly attempt suicide; that if something happens to the minor child, she would likely kill herself. The Brookhaven clinician opined that this was not an idle threat.

28. The respondent mother has been involved with Brookhaven since September of 2018. She is complaint with their services, is medication compliant with them and is involved with an ACT team. The respondent mother was getting services at home, including counseling, support, housing potential, and vocational work, intending that the minor child was coming home. Transportation was provided, and the respondent mother was seen 2-3 time (sic) per week by the ACT team. The respondent mother is categorized as being a Level 4 need for services, based upon a “need scale” of 1-5. Brookhaven director David Young testified at this hearing that the respondent mother's level of need is actually a “3”, but that Brookhaven recommended level “4” because they wanted to be certain that no harm would come to the respondent mother, or to the minor child. However, he was unaware of the respondent mother's suicide attempt in July of 2017, and acknowledge (sic) that any history of prior mental health issues/treatment was by the respondent mother's self-report.

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32. The respondent mother has no insight to the risk that [her mother] presents both the respondent mother's mental health and to the physical well-being of the minor child. The respondent mother suffered significant physical and sexual abuse at the hands of [her mother]. Said abuse by [her mother] has been one of the triggers for the respondent mother's suicidal ideation and mental health hospitalizations. ․ The respondent mother admits that her plan was to return with the minor child to her mother's ․ home, if released from the hospital with the minor child. The respondent mother perceived no risks in exposing herself and the minor child to the environment of [her] home.

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34. As of September 2018, the respondent mother has just begun with consistent mental health treatment for her suicidal ideation and mental health diagnoses of major depression, Bipolar II disorder, PTSD, and rule our borderline personality disorder. As recently as March of 2018, the respondent mother was identified as a medium risk of harm to self and/or others by Mohawk [Valley Psychiatric Center]. Brookhaven assessed the respondent mother to be a mild to moderate risk of suicide in September of 2018, and expressly recommended a Level 4 treatment protocol because they wanted to ensure that no harm would come to the respondent mother or the minor child. The respondent mother indicated to her Brookhaven clinician that she would kill herself if the minor child was removed from her care. The respondent mother admitted her suicide attempts had been impulsive and would happen “all of a sudden”. That level of treatment remains in effect as of the date of this hearing. Brookhaven has indicated that they cannot provide 24/7 supervision of the respondent mother with the minor child, should the minor child be returned to the care of the respondent mother.

¶ 11 The appealed order focuses upon Respondent's ongoing mental health conditions. The trial court's findings show a nexus of harm and the probability of a substantial risk of harm to B.W. Since B.W. had not been since birth and was not in Respondent's custody at the time of the adjudication hearing, the trial court was required to assess and find the probability of a substantial risk of future neglect. In accessing this risk of future neglect, the trial court must consider the “risk for a particular kind of harm given [B.W.’s] age and the environment in which they reside.” In re McLean, 135 N.C. App. at 395, 521 S.E.2d at 126.

¶ 12 This Court is required to determine whether clear and convincing evidence supports the trial court's findings, which in turn supports its ultimate conclusion that B.W. is a neglected juvenile. See In re J.R., 243 N.C. App. at 315, 778 S.E.2d at 445. In assessing whether a child is neglected, this Court has held 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 a parent.” In re B.P., 257 N.C. App. 424, 434, 809 S.E.2d 914, 920 (2018) (emphasis supplied).

¶ 13 Respondent killed her first child, had completed a sentence for manslaughter, relinquished another child at birth, and continues to have ongoing serious mental health issues that pose a continuing danger to herself and to B.W. This and the above findings of fact support the trial court's conclusion of a probability that B.W. “is at substantial risk of physical, mental, or emotional impairment if returned to her custody.”

¶ 14 Clear and convincing evidence exists of the future probability of risks to B.W. to support the conclusion that B.W.’s immediate return to Respondent would place him “in an environment injurious to the juvenile's welfare.” See N.C. Gen. Stat. § 7B-101(15). The trial court's conclusion that B.W. is a neglected juvenile is affirmed.

VI. Dependency

¶ 15 A juvenile may be adjudicated to be a dependent when “the juvenile's parent, guardian, or custodian is unable to provide for the juvenile's care or supervision and lacks an appropriate alternative childcare arrangement.” N.C. Gen. Stat. § 7B-101(9). The trial court's findings must address both prongs of the statutory definition. In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).

¶ 16 It is uncontested the record contains no information on B.W.’s father or paternal relatives. Respondent does not challenge the trial court's finding there was no creditable information on B.W.’s father or paternal relatives or the conclusion she lacks an appropriate childcare arrangement. She argues DHHS made no showing she was wholly incapable of taking care of B.W. Respondent cites In re H.L., 256 N.C. App. 450, 458, 807 S.E.2d 685, 690 (2017), wherein this Court reversed the trial court's conclusion, in part, because the findings concerning the parent's drug addiction did not render them wholly incapable of care of the minor child.

¶ 17 The above-cited facts include findings reflecting Respondent's present inability to care for herself and to supervise B.W. Respondent testified she is still undergoing treatment; she has no safe place to raise the infant child that does not include the potential of harm from Respondent's mother; she has patterns of behaviors including impulsiveness, mood regulation issues, and problems with anger. She also testified she very quickly gets her ideations.

¶ 18 At the time of the adjudication, significant risks to B.W. being returned to Respondent's care were admitted due to her ongoing mental health issues, which ultimately led to the death of her first child. This evidence supports a finding that Respondent was unable to provide care for a newborn infant and lacked alternative childcare arrangements. The trial court found a risk of harm due to Respondent's ongoing mental illness and Respondent's behavior can get worse “all of a sudden.”

¶ 19 Clear and convincing evidence supports the trial court's finding of B.W.’s dependency because Respondent was incapable of providing appropriate care and supervision for him and “lacks an appropriate alternative childcare arrangement.” N.C. Gen. Stat. § 7B-101(9).

VII. Conclusion

¶ 20 The trial court's unchallenged findings of fact are supported by clear and convincing evidence and those findings support the trial court's conclusions that grounds exists to adjudicate B.W. as neglected and dependent. The trial court did not abuse its discretion when it determined that it was in B.W.’s best interest to adjudicate him neglected and dependent. The trial court's order adjudicating B.W. neglected and dependent is affirmed. It is so ordered.

AFFIRMED.

Report per Rule 30(e).

TYSON, Judge.

Judge HAMPSON concurs. Judge MURPHY concurs in result only.