In re L.M.

858 S.E.2d 628 (Table)

In the MATTER OF: L.M. & T.M.

No. COA20-516

Court of Appeals of North Carolina.

Filed June 15, 2021

Elizabeth Myrick Boone, for Petitioner-Appellee Gaston County Department of Health and Human Services.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Michael W. Mitchell and Edward F. Roche, for Guardian ad Litem.

J. Thomas Diepenbrock, for Respondent-Appellant Mother.

GORE, Judge.

¶ 1 On 20 September 2019, Gaston County Department of Health and Human Services ("DHHS") filed a juvenile petition alleging the minor children "Levon" and "Tisha" were neglected and dependent juveniles. ¹ Respondent-Mother Valencia McLean ("Ms. McLean") appeals from the trial court's juvenile adjudication order finding the minor children neglected. On appeal, Ms. McLean argues that the trial court erred when it adjudicated Tisha a neglected juvenile because its conclusion of law that she was neglected was not supported by adequate findings of fact. We affirm the trial court's order.

I. Factual Background

¶ 2 Ms. McLean is the natural mother of Tisha, born 25 January 2018, and Levon, born 19 June 2002. Willie Breeden ("Mr. Breeden") is the biological father of Tisha. Levon's biological father is not a party to this appeal. Over the course of a year, law enforcement officers responded to three incidents of suspected domestic violence between Mr. Breeden and Ms. McLean on 30 September 2018, 3 April 2019, and 2 September 2019.

A. 30 September 2018 kidnapping incident

¶ 3 On 30 September 2018, an altercation took place between Ms. McLean and Mr. Breeden while the juveniles were present in Ms. McLean's home. Detective David Whitlock ("Det. Whitlock") of the Gastonia City Police Department received a call that evening from his supervisor advising him that a kidnapping had occurred. When Det. Whitlock arrived at Ms. McLean's residence, only Levon was home. Det. Whitlock testified that Levon told him he was upstairs when he heard a commotion downstairs. Levon heard his mother yell for him to come get his younger sister. Levon retrieved Tisha from downstairs and returned to his bedroom. Soon after, Levon observed that Ms. McLean was "bleeding around the face" and she told him "that if she did not see them again that she loved them."

¶ 4 Det. Whitlock immediately placed an emergency ping on Ms. McLean's cell phone. After numerous phone calls, he was finally able to contact her 45 minutes to an hour later. Patrol officers stopped Ms. McLean and Mr. Breeden while they were traveling home in his vehicle. Det. Whitlock arrived shortly thereafter and was able to speak with them. Subsequently, a handgun was seized from Mr. Breeden's vehicle after the couple was pulled over, and Det. Whitlock testified that Ms. McLean "appeared visibly shaken," had "dry blood on her face," "did not appear ... [to have] been to any type of medical facility ... for treatment," and was crying.

¶ 5 Ms. McLean denied that there was any altercation between her and Mr. Breeden that day. Ms. McLean testified that she was downstairs in the kitchen at about 9:00 p.m. Mr. Breeden was in another room on that floor, and the children Levon and Tisha were upstairs. Ms. McLean claimed that she slipped and fell while in the kitchen, and she was bleeding because her nose collided with the corner of the table. When Mr. Breeden heard her fall, he rushed to help her and suggested going to the hospital when he saw the blood on her face. Ms. McLean did not recall seeing Levon come downstairs or seeing him crying upstairs in his bedroom. Further, Ms. McLean had no recollection of saying, "Tell your sister I love you," or of telling Levon to "look after his sister" if she does not return.

B. 3 April 2019 shooting incident

¶ 6 On 3 April 2019, Det. Whitlock, and Detective Cody Edge ("Det. Edge"), responded to a shooting call at Ms. McLean's home. The detectives initially responded to the hospital where they spoke with Ms. McLean and Mr. Breeden. Ms. McLean gave conflicting accounts as to what had occurred. First, she claimed that Mr. Breeden was cleaning an AR-15 rifle when it went off. Next, she said that Mr. Breeden was showing her how to cock the gun when a round accidently discharged and struck her in the foot.

¶ 7 After talking with Ms. McLean, Detectives spoke with Mr. Breeden in the waiting room. Mr. Breeden claimed that the morning of the shooting he was showing Ms. McLean the gun and trying to demonstrate a function where if the bolt were not all the way forward it would not fire. However, it accidently went off because of a hair trigger. Mr. Breeden said he could not believe the gun went off, so he immediately ran to the backyard and fired two more rounds into the air. He then ran inside and wrapped Ms. McLean's foot in a garbage bag because "he didn't want to get blood in his car" when he drove her to the hospital.

¶ 8 Shortly thereafter, the detectives drove to Ms. McLean's home where the shooting occurred. They observed an AR-15 rifle with a large amount of blood on the living room floor, and a few shell casings on the back porch. At the time Mr. Breeden shot Ms. McLean in the foot, Tisha was in the same room. Ms. McLean could not remember who was holding the AR-15 rifle. However, for the purposes of impeachment, Det. Edge testified that Ms. McLean spoke with her father and told him that "Mr. Breeden shot her in the foot because she disrespected him." Further, Det. Edge testified that, based on his observations, "there was no emotion on [Mr. Breeden] when he told him that [Ms. McLean] may lose her foot." Mr. Breeden was charged with a felony for his involvement in the shooting.

¶ 9 While speaking with Ms. McLean in the hospital, Det. Edge learned that the couple was having difficulties in their relationship and had argued over finances the night before the shooting. Det. Whitlock testified that based on his 22 years of experience, he believed that both the kidnapping and shooting involved acts of domestic violence.

¶ 10 DHHS took 12-hour custody of the juveniles Levon and Tisha after the shooting. DHHS released them back into Ms. McLean's custody after she received medical treatment and signed a Safety Plan. Pursuant to the terms of the Safety plan, Ms. McLean agreed that: 1) the juveniles would have no contact with Mr. Breeden; 2) she and the juveniles would reside with a family friend; and 3) she would cooperate with DHHS throughout their investigation. Later, Ms. McLean was unwilling to sign portions of an updated safety assessment, specifically refusing to uphold the no contact provision with Mr. Breeden. Shortly thereafter, Ms. McLean sent a text message to Social Worker Jennifer Hollmer ("Ms. Hollmer") stating that she would no longer cooperate with DHHS.

C. 2 September 2019 incident

¶ 11 On 2 September 2019, Ms. McLean instructed Levon to call 911. Ms. McLean later testified that she "needed [the police] to come out and mediate" because of an argument with Mr. Breeden. However, she expressed regret that the call was made because "[Mr. Breeden] was actually packing his stuff to leave." In lieu of Levon's testimony, and by stipulation of the parties, a recording of his 2 September 2019 call to 911 was played in court.

¶ 12 A portion of that recording is as follows:

[LEVON]: I have an emergency. My stepdad is trying to beat up my mom.

[OPERATOR]: You need an ambulance for your mom?

[LEVON]: I need like assistance for my mom.

...

[OPERATOR]: Okay. All right. Do you need an ambulance or police or—

[LEVON]: Police.

[OPERATOR]: Okay. All right. What's going on there?

[LEVON]: [inaudible] arguing.

As a result of the 911 call, police officers arrived at Ms. McLean's residence and observed Mr. Breeden packing and getting ready to leave. The police remained in the home until Mr. Breeden left.

¶ 13 Later that day, Ms. McLean made another 911 call because Mr. Breeden made two verbal threats to "whoop [her] ass," and to "burn down the house." Ms. McLean later testified that she lied to the 911 operator, that Mr. Breeden had not made those threats, and that she called 911 because she "didn't want him to come back and get the rest of his stuff, and I didn't want the relationship to end."

¶ 14 DHHS did not find out about the 911 calls made on 2 September 2019 until 19 September 2019. Neither Ms. McLean nor Mr. Breeden disclosed those calls to DHHS, and Mr. Breeden was unresponsive to Ms. Hollmer's repeated attempts to contact him. Ms. Hollmer testified that based on her training and experience, she believed there was domestic violence between Ms. McLean and Mr. Breeden. Ms. Hollmer also stated her belief that this domestic violence posed a risk to the juveniles Tisha and Levon.

II. Procedural Background

¶ 15 On 20 September 2019, DHHS filed a juvenile petition alleging Levon and Tisha were neglected and dependent. The petition asserted that "[Ms. McLean] and [Mr. Breeden] have a history of domestic violence with the juveniles being present." Ms. McLean and Mr. Breeden were both served at Ms. McLean's home on 24 September 2019. Non-secure custody orders were entered on 20 September 2019, 1 October 2019, 5 November 2019, and 10 December 2019. As a result, the juveniles were placed in foster care. On 13 December 2019, an order of paternity was entered finding Mr. Breeden to be Tisha's biological father.

¶ 16 The adjudication hearing was held on 7-8 January 2020 before the Honorable Pennie M. Thrower. The court entered a Juvenile Adjudication Order on 13 February 2020 finding both Tisha and Levon to be neglected but not dependent. After a disposition hearing on 18 February 2020, the court entered a Juvenile Disposition Order filed 30 March 2020 granting legal and physical custody to DHHS and ordering Ms. McLean and Mr. Breeden to comply with the recommended case plan. Ms. McLean filed an untimely Notice of Appeal on 12 May 2020, made allowable per the Chief Justice's extension directive issued 30 May 2020.

III. Discussion

¶ 17 On appeal, Ms....