Court: Court of Appeals of North Carolina; July 19, 2005; North Carolina; State Appellate Court
The trial court granted custody of minor children K.C.G. and J.G. to their father, while also issuing an ex parte order for the respondent to stop interfering with a juvenile investigation. The appellate court affirmed part of the trial court's decision but reversed and remanded other aspects.
Background details include that following the respondent's separation from their father, she retained physical custody of K.C.G. and J.G. Allegations of neglect regarding K.C.G. prompted an investigation by the Rockingham County Department of Social Services (DSS) on October 16, 2003. Concerns included the respondent's attempts to obtain Valium for K.C.G. against medical advice, her self-diagnosis of K.C.G.’s conditions, and the child's truancy from school.
DSS Investigator Beretta Clayton discovered further issues through interviews and medical records, including claims from confidential sources suggesting the possibility of Munchausen's Syndrome by Proxy, where a caretaker fabricates or exaggerates medical issues for the child. The respondent had sought extensive medical treatment for K.C.G., including visits to various doctors and a psychologist, Dr. Julia Brannon, who ultimately diagnosed K.C.G. with a 'parent-child relational problem' and suggested further evaluation to determine the presence of Munchausen's Syndrome by Proxy.
The respondent's actions included withdrawing K.C.G. from public school and seeking to homeschool her, limiting the investigation's scope by requesting all interviews to occur at home. J.G. declined to speak with the investigator at school, indicating she was prohibited from doing so. Ms. Clayton recommended a Child Medical Evaluation for K.C.G. to assess her physical and mental health.
The father consented to examinations for K.C.G. and arranged for her first appointment on February 12, 2004, but the respondent repeatedly obstructed these examinations, including canceling the appointment. On February 13, 2004, the Department of Social Services (DSS) filed a petition alleging interference with a juvenile investigation and obtained an ex parte order to cease such obstruction. On February 25, 2004, the court upheld the order, mandating that neither parent obstruct DSS's investigation and that K.C.G. be prepared for her father to transport her to the examination. A temporary custody order was issued on February 26, 2004, granting the father temporary sole custody of K.C.G. and J.G. due to safety concerns, and this order was filed on March 19, 2004. The respondent sought a hearing on the ex parte order and had a motion denied to seal the results of the examination. The issues raised on appeal include the jurisdiction of the trial court to grant temporary custody without proper notice or a juvenile abuse/neglect petition, whether the court improperly qualified Dr. Brannon as an expert, and whether the court erred in concluding that reports to DSS constituted neglect due to insufficient evidence. The jurisdictional aspect focused on whether the trial court was authorized to issue the cease interference order, based on N.C. Gen. Stat. 7B-200(a), which provides exclusive jurisdiction over juvenile abuse, neglect, and dependency cases, as well as those involving obstruction of investigations. The statutes detail the responsibilities of DSS in investigating reports of abuse and the definitions of obstruction.
N.C. Gen. Stat. 7B-303(d) mandates that if a juvenile director suspects a juvenile needs immediate protection, the director must allege this in a petition and may request an ex parte order from the court. If the court finds probable cause that the juvenile is at risk and the respondent is obstructing the investigation, it may issue an order to cease such interference, limited to what is necessary for the director's investigation. In this case, the Department of Social Services (DSS) received a neglect report about K.C.G., leading to an investigation and a petition on February 13, 2004, under N.C. Gen. Stat. 7B-303(d) for an ex parte order against the respondent. The trial court concluded that the respondent obstructed the investigation by refusing to allow K.C.G. to be examined and interfering with social worker interviews. The court, having exclusive jurisdiction as per N.C. Gen. Stat. 7B-200(a)(6), was authorized to issue the ex parte order, which was upheld.
Regarding custody, N.C. Gen. Stat. 7B-500(a) allows for a juvenile to be taken into temporary custody without a court order if there are reasonable grounds to believe the juvenile is abused, neglected, or dependent, and could be in danger if a court order were first required. This provision is an exception to the usual requirement for a petition before issuing a custody order. Nonsecure custody can be ordered based on criteria in G.S. 7B-503 if necessary. N.C. Gen. Stat. 7B-502 specifies that a nonsecure custody order should only be issued if there is reasonable factual basis for the allegations in the petition and if no other reasonable means exist to protect the juvenile. The referenced case, In re Ivey, involved DSS filing for custody of children deemed neglected, with the court adjudicating the children as neglected and granting DSS nonsecure custody.
At the permanency planning hearing, the court determined that the infant residing with the respondent mother should not remain in the current circumstances and decided to take non-secure custody of the infant, pending a Juvenile Petition. However, it was concluded that the trial court lacked jurisdiction to grant the Department of Social Services (DSS) non-secure custody because DSS had not filed a petition alleging the infant was abused or neglected at that time. According to N.C. Gen. Stat. 7B-503(a), non-secure custody can only be ordered if there is a reasonable factual basis supporting the allegations in a filed petition.
The statute also permits a narrow exception for temporary custody without a court order, but in this case, the trial judge had granted sole temporary custody of the children to their father, which was deemed improper. The court noted that no request for non-secure custody was made nor was a petition for neglect filed, leading to the conclusion that the trial court was without jurisdiction to grant custody to the father. The trial court's order granting sole custody of the children to their father was reversed, while its authority to issue a separate order to cease interference with DSS's investigation was affirmed. The court refrained from addressing whether the trial court abused its discretion regarding the expertise of a witness and the legal conclusions about neglect, since these matters were contingent on the jurisdictional issues. The decision affirmed in part, reversed in part, and remanded. Judges WYNN and ELMORE concurred.
