In re B.W.

852 S.E.2d 428

In the MATTER OF: B.W., T.W., L.W.

No. COA19-1000

Court of Appeals of North Carolina.

Filed: November 17, 2020

Richard Penley, for petitioner-appellee Onslow County Department of Social Services.

David A. Perez, Thomasville, for respondent-appellant mother.

Guardian Ad Litem Division, N.C. Administrative Office of the Courts, by Michelle FormyDuval Lynch, for guardian ad litem.

TYSON, Judge.

Respondent-mother appeals an order adjudicating her children, "Brian," and "Lydia," as abused and neglected juveniles and her child, "Timothy," as a neglected juvenile. The parties have stipulated to pseudonyms for the minor children pursuant to N.C.R. App. P. 42(b). We vacate in part, reverse in part, and remand.

I. Background

The Onslow County Department of Social Services ("DSS") received a report on 30 April 2018 that Respondent-mother and her family were living in a shed with multiple cats, with cat feces and roaches present inside the shed. Respondent-mother agreed to a safety plan and to clean her home.

DSS received a report of sexual abuse of Brian on 25 May 2018. During the course of the investigation, Brian told social workers his mother's friend, Justin, had inappropriately touched his groin area, had anally raped him, and engaged in fellatio with him. Brian used the term "crotch" to describe his penis and bottom to describe his "anus." Brian told social workers he had informed his mother of the actions and stated she did not believe him.

Social workers interviewed Respondent-mother regarding Brian's allegations. Respondent-mother indicated Brian had accessed pornography on his electronic devices, and the details he described could be based upon materials he had observed on his phone. Respondent-mother acknowledged Justin had stayed over nights in the shed with the family and that on occasion he spent the night in the bed with the boys and herself. She denied Brian had ever told her of Justin's actions.

Timothy and Lydia were also interviewed by social workers. Both reported the poor sanitation of the shed and acknowledged Justin spent time in the home and occasionally spent the night in the shed with the family.

Clinical social worker, Sara Ellis, interviewed both Brian and Lydia on 30 May 2018 at the Children's Advocacy Center ("CAC") in Jacksonville. At the time of the interview, Brian was eleven and a half years old and Lydia was seven and a half years old. Ellis videotaped the interview while other social workers watched and listened via live stream in another room. Brian repeated that Justin had raped him and sexually assaulted him and used the same terminology during his 25 May 2018 interview with DSS. Lydia asserted Justin had inappropriately touched her on two occasions, one of which occurred while they were sleeping on the bed with Respondent-mother.

DSS filed its petition alleging Brian was abused and that all three children were neglected on 31 May 2018. The children were removed from Respondent-mother's care on that same date. Petitions were served on the putative fathers of the children. The putative fathers did not participate in the adjudication and disposition hearing. Their cases are not before us.

Orders were entered continuing the juveniles in nonsecure custody with DSS for approximately five months. During this time, Respondent-mother entered into a case plan with DSS. Respondent-mother made progress and completed parenting classes, a psychological evaluation and began outpatient therapy. Respondent-mother and the children engaged in bi-weekly appropriate visitation. Respondent-mother obtained a suitable and clean three-bedroom home with the assistance of her parents.

Following removal from their home, the children were placed into foster care. Brian was placed in a therapeutic foster home and Timothy and Lydia were placed together in a foster home. All three children received mental health services from a licensed professional counselor, Elbert Owens.

DSS filed a "Notification and Motion to Introduce Hearsay" on 7 September 2018. DSS sought to introduce hearsay statements of Brian and Lydia at the adjudication hearing pursuant to N.C. Gen. Stat. § 8C-1, Rules 803(24) and 804(b)(5). Copies of the DVDs and statements produced from the children's interviews at the CAC had been provided to Respondent-mother's counsel on 14 June 2018 and 27 July 2018.

DSS’ motion was heard at a pre-adjudication trial hearing, combined with the hearing on the need for continued nonsecure custody. The trial court orally ruled the children would be unavailable to testify at the adjudication hearing, but failed to reduce the order to writing.

On 12 December 2018, Respondent-mother's counsel subpoenaed the children to testify at adjudication. The trial court orally granted DSS’ and the guardian ad litem's ("GAL") motion to quash these subpoenas prior to the adjudication hearing.

The adjudication hearing was held on 14 and 15 January 2019. Sara Ellis, who had interviewed Brian and Lydia, testified regarding the protocols used to conduct interviews at the CAC, as well as her training. Respondent-mother objected on hearsay grounds to Ellis’ hearsay testimony and the admission of the video of Brian's statement. After voir dire by counsel as well as questions from the bench, the trial court allowed the CAC video interview of Brian to be admitted into evidence. After similar objections and voir dire of Ellis, the CAC video interview of Lydia was also admitted into evidence.

The almost two-and-a-half-hour video of Brian's CAC interview was played for the courtroom. Brian described the rapes as occurring on the bed in the shed and on a bunkbed in a travel trailer near the shed where the family accesses running water. Brian gave details of being forced onto his chest, being tied up and Justin putting his "crotch" in Brian's "bottom" and it "really hurt."

Brian described Justin putting his mouth on his "crotch." Brian defined "crotch" as where he urinated. Brian provided details of what he was wearing, of what he saw, felt, and tasted. Brian stutters and when he described Justin's attacks his stuttering increased. The video interview of Lydia was also played in the courtroom. Lydia told Ellis that Justin had touched her private area on several occasions.

DSS called Justin, the alleged perpetrator of the sexual abuse of Brian and Lydia, as a witness. Justin denied molesting or sexually assaulting any of Respondent-mother's children. Justin acknowledged occasionally staying overnight in Respondent-mother's shed and spending time with her children. He admitted sleeping in a bed with Respondent-mother and one of the children. He indicated Respondent-mother would sleep in between himself and the child. Justin was interviewed by DSS and an Onslow County sheriff's detective. No criminal indictments were issued against him for any of the allegations.

DSS called Respondent-mother as a witness. She denied that Brian had told her about being sexually assaulted by Justin. She hesitated on whether she believed Brian's and Lydia's allegations. Respondent-mother testified that her brain condition impacts her memory. The children's former social worker, Noemi Rivera, testified to the conditions of the shed and Brian's reaction when she was at his home. Over Respondent-mother's hearsay objection, the trial court allowed Rivera to testify to statements Brian made in front of her on 25 May 2018 about Justin as an excited utterance.

The children's grandmother, Respondent-mother's mother, testified on her daughter's behalf. She showed photographs of Respondent-mother's new home and its clean condition. She testified she had never observed any inappropriate contact between Justin and her grandchildren. She stated there was a "strong possibility" that Brian could have been assaulted. She also testified Lydia swam in her swimming pool with Justin in 2016.

The court adjudicated Brian and Lydia as abused and all three children to be neglected juveniles and continued the case for a hearing on disposition. The disposition hearing was held 12 February 2019. The court ordered placement authority to remain with DSS and that the children could be placed with their great-aunt in Texas. The court's written order was filed 13 June 2019 and Respondent-mother timely appealed.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(5) (2019).

III. Issues

Respondent-mother argues the trial court erroneously adjudicated Lydia to be an abused juvenile. She also asserts the trial court erred in admitting hearsay statements of Brian and Lydia.

IV. No Allegation of Abuse

DSS failed to allege any factual allegations of abuse regarding Lydia. Notwithstanding the lack of allegations, the trial court found Lydia to be an abused juvenile. "A trial court's subject matter jurisdiction over all stages of a juvenile case is established when the action is initiated with the filing of a properly verified petition." In re T.R.P. , 360 N.C. 588, 593, 636 S.E.2d 787, 792 (2006). A respondent must be put on notice as to the allegations against her. In re Hardesty , 150 N.C. App. 380, 384, 563 S.E.2d 79, 82 (2002).

The petition here only put Respondent-mother on notice as to allegations of neglect regarding Lydia. DSS and the GAL concede that the trial court erred by concluding Lydia was an abused juvenile. The portion of the trial court's order finding Lydia is an abused juvenile is vacated.

V. Residual Hearsay Exceptions

Respondent-mother asserts the trial court's finding the children were unavailable to appear and testify under Rule 804(b)(5) incorporates purported findings of fact from an unwritten determination from the 8 November 2018 hearing. Respondent-mother further contends no competent record evidence supports the necessity to admit the juveniles’ hearsay statements under Rule 803(24). She argues competent evidence does not exist to support the trial court's adjudication of her children as neglected or abused. DSS filed a motion to supplement the...