State Court upholds DSS decision

Published 2:45 pm Tuesday, December 15, 2009

RALEIGH – A two-year legal battle over custody of two minor children is apparently over.

Luther Culpepper, a Woodland-based attorney who serves the Northampton County Department of Social Services, recently received official notice that a unanimous panel of the North Carolina Court of Appeals has affirmed the Northampton DSS placement of minor children with a guardian. The placement was originally upheld during a legal case earlier this year in Northampton County District Court. A parent of the children had appealed the original decision entered by District 6B Judge W. Rob Lewis II.

That appeal was heard by the State Court of Appeals in October. In a Nov. 3 opinion written by Judge Ervin, the Court of Appeals found no error in the placement of the children. Judges Wynn and Steelman concurred with Judge Ervin, which made the decision unanimous.

Culpepper welcomed the decision of the Appeals Court.

“(Northampton DSS) had determined that guardianship was the best plan for these children and all three Court of Appeals Judges who considered the case agreed,” Culpepper said.

Culpepper thanked Dr. Al Wentzy, the Director of the Northampton County Department of Social Services, Alice Brunson, Supervisor for Northampton DSS Child and Family Services, and M. Braxton Gillam III of Windsor who prepared the appellate brief.

“Braxton’s argument combined with the conclusive reports and excellent case work by Mrs. Brunson and her staff obviously impressed the Court of Appeals,” Culpepper said.

The trial counsel for the parent was M. Marion Watts of Windsor. The appellate counsel was Mary M. Reece.

The father of the two minor children based the appeal from the permanency planning orders by Northampton DSS which awarded guardianship to another couple.

In order to protect the privacy of those involved in this case, including the children, no names are being used from this point of the story forward.

The case stems from an April 14, 2007 incident where the father was operating a motor vehicle with his two daughters as passengers, one of which was not secured in a car seat. The father was involved in a vehicle accident and was arrested for driving while impaired.

The children were taken to a hospital for examination. When the mother arrived at the hospital in an intoxicated condition, the staff would not release the children into her care and contacted Northampton County DSS.

With the consent of the father and mother, the children were placed in the care of a couple who were friends of the family.

On Jan. 11, 2008, Northampton DSS filed juvenile petitions alleging that the two minor children were neglected and dependent juveniles. In these petitions, DSS noted that the couple who had provided care for the children since April 14, 2007 were continuing to provide that care.

According to the allegations set out in the petitions, the father and mother of the minor children were unable to provide proper care, supervision, stable housing and other necessities for the children as a result of their substance abuse and other problems.

In addition, Northampton DSS alleged that the father was incarcerated at that time in the Hertford County Jail; that the father had been previously incarcerated for larceny, breaking and entering and injury to real property; and that the mother had moved at least seven times since April 2007.

The petition further alleged that the mother voluntarily placed the children with the couple and that the father had consented to this placement.

At an adjudication hearing held on April 22, 2008, the trial court supported the findings of the juvenile petitions. The trial court also found that DSS had referred the parents for mental health and substance abuse counseling; however the father had been arrested in September 2007 and the mother had failed to follow through with treatment.

In its disposition orders, the trial court found that a home study of the couple’s home where the two children were being care for had produced positive results. It found the residence was an appropriate placement for the children. As a result, the trial court ordered continued placement of the children with the couple. Furthermore, the trial court ordered both parents to find and maintain housing, to obtain mental health and substance abuse assessments and comply with any treatment recommendations and to submit to drug screens.

In a second review hearing held on Oct. 28, 2008, the trial court found that the father was living in his father’s home and was on electronic house arrest; lacked adequate housing for his children; had been convicted and incarcerated for driving while impaired as a result of the April 2007 wreck; was involved in parenting skills classes, but had not completed them; had failed to follow discharge recommendations from the DART program following his release from incarceration, including participation in Narcotics Anonymous/Alcoholics Anonymous; lacked employment; was providing child support for the children; and had participated in five successful supervised visits with the children.

On March 24, 2009, the trial court conducted a permanency planning hearing where the father did not present any evidence. Less than a month later (April 22) the trial court entered separate permanency planning orders pertaining to each child. The court adopted guardianship with the couple as a permanent plan for both children.

The court did allow supervised visitation between the father and both children. However, the trial court did not authorize visitation between the mother and the children because she had tested positive for cocaine.

The father’s appeal contended the trial court erred by concluding that guardianship should be the permanent plan for his two daughters. He also contended that the findings of facts against him were not supported by sufficient records.

“After carefully reviewing the record, we conclude that each of the challenged findings of fact had adequate evidentiary support,” wrote Judge Ervin in his Nov. 3 opinion.

Although the evidence received at the permanency planning hearing clearly indicated that the father had made commendable progress since being released from the custody of the Department of Correction, the record also indicated that he had been unable to find a job, was dependent on his own father for housing and he was not in a position to provide for the children using his own resources.

“After carefully reviewing the trial court’s findings of fact, we conclude that they are sufficient to support the trial court’s conclusion and that the trial court did not abuse its discretion by concluding that the best interests of the children would be served by adopting guardianship with the [couple] as the permanent plan,” Judge Ervin wrote. “One of the stated purposes of the Juvenile Code is to ‘provide standards . . . for ensuring that the best interests of the juvenile are of paramount consideration by the court and that when it is not in the juvenile’s best interest to be returned home, the juvenile will be placed in a safe, permanent home within a reasonable amount of time’.”

While the Court of Appeals believes the father has made progress during the pendency of this case toward his substance abuse treatment and several of his addictive behaviors, the children have bonded in their current placement and appear to be well-cared for and happy. The physical and emotional needs of the children are being met within their current placement.

The Court of Appeals further ruled that it is unlikely the minor children could be returned home to either the mother or father in the next six months due to the mother’s instability and drug use and the father’s inability to provide a safe, permanent home for the children.

“It is in the best interests of the minor children that [the couple] be appointed their guardians,” wrote Judge Ervin.

Additionally, the court was of the opinion that termination of parental rights should not be considered at this time; that the parents shall continue to pay child support for the minor children; and that appropriate visitation with the father is in the best interest of the minor children and consistent with their welfare and safety. Visitation with the father will be at least each Sunday from 10 a.m. until 6 p.m. with supervision by [the couple], or either of them.