In re J.C.

NO. COA14-79

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF:

J.C. Johnston County
J.C. Nos. 13 JA 101-02

Appeal by respondent mother from orders entered 15 and 22

October 2013 by Judge Resson Faircloth in Johnston County

District Court. Heard in the Court of Appeals 16 June 2014.

Holland & O’Connor, by Jennifer S. O’Connor, for
petitioner-appellee Johnston County Department of Social
Services.

Richard Croutharmel for respondent-appellant mother.

Marie H. Mobley for guardian ad litem.

ELMORE, Judge.

Respondent mother appeals from the trial court’s orders

adjudicating the juveniles neglected and dependent. Respondent

contends that the trial court made insufficient findings to

demonstrate it had obtained jurisdiction over the matter, made

insufficient findings to support its order adjudicating the

juveniles neglected and dependent, and improperly required

respondent to pay the costs of her visitation. We affirm the
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adjudication of neglect and the disposition order, but remand

for correction of a clerical error as to the adjudication of

dependency.

The juveniles were born in 2007. Kentucky authorities

became involved with the family in 2008 based on reports of

domestic violence between respondent and the juveniles’ father.

A Kentucky court granted the father custody of the juveniles.

The family moved to North Carolina in December of 2011, and

respondent and the father have been involved in domestic

violence and custody disputes in North Carolina since March of

2012.

On 31 May 2013, the Johnston County Department of Social

Services (“DSS”) substantiated a report of neglect due to an

injurious environment, based on the parents’ unresolved conflict

and its negative impact on the juveniles. That conflict

included concerns that the juveniles had made false accusations

of sexual abuse against their father at respondent’s behest. On

27 June 2013, DSS filed petitions alleging that the juveniles

were neglected and dependent, and it filed amended petitions on

11 July 2013.

The matter came on for an adjudication hearing on 29 August

2013. At the conclusion of the hearing, the trial court made an
 -3-
oral finding that the juveniles were neglected. The trial court

entered its initial adjudication order on 4 October 2013, and

entered an amended order on 22 October 2013. In the written

orders, the trial court adjudicated the juveniles neglected and

dependent. The disposition hearing took place on 12 September

2013. The trial court placed the juveniles in the custody of

their paternal grandmother and provided respondent with

supervised visitation to be held at a visitation center at her

expense. Respondent appeals.

In her first argument on appeal, respondent contends that

the trial court failed to make adequate findings to establish

its jurisdiction, in light of the prior case in Kentucky. We

disagree.

“This Court’s determination of whether a trial court has

subject matter jurisdiction is a question of law that is

reviewed on appeal de novo.” Powers v. Wagner, 213 N.C. App.

353, 357, 716 S.E.2d 354, 357 (2011) (citation and quotation

omitted). The district court has “exclusive, original

jurisdiction over any case involving a juvenile who is alleged

to be abused, neglected, or dependent.” N.C. Gen. Stat. § 7B-

200(a) (2013). The jurisdictional requirements of the Uniform

Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) must
 -4-
also be satisfied for a court to have authority to adjudicate

petitions filed pursuant to the Juvenile Code. In re Brode, 151

N.C. App. 690, 692-94, 566 S.E.2d 858, 860-61 (2002).

Under the UCCJEA, a North Carolina court has jurisdiction

to make an initial child-custody determination if North Carolina

“is the home state of the child on the date of the commencement

of the proceeding[.]” N.C. Gen. Stat. § 50A-201(a)(1) (2013).

A child’s “home state” is “the state in which a child lived with

a parent . . . for at least six consecutive months immediately

before the commencement of a child-custody proceeding.” N.C.

Gen. Stat. § 50A-102(7) (2013). Although this Court has

recognized that making specific findings of fact related to a

trial court’s jurisdiction under N.C. Gen. Stat. § 50A-201(a)(1)

“would be the better practice,” the statute “states only that

certain circumstances must exist, not that the court

specifically make findings to that effect.” In re T.J.D.W., 182

N.C. App. 394, 397, 642 S.E.2d 471, 473, aff’d per curiam, 362

N.C. 84, 653 S.E.2d 143 (2007). Therefore, so long as the trial

court asserts its jurisdiction and there is evidence to satisfy

the statutory requirements, the trial court has properly

exercised subject matter jurisdiction. Id. at 397, 642 S.E.2d

at 473-74.
 -5-
In this case, the trial court made a finding that it had

jurisdiction to enter an adjudication order, and the evidence

shows that the juveniles have continuously resided with a parent

in North Carolina since December of 2011. Although, as we have

previously held, it would be the better practice for the trial

court to make more specific findings of fact to support its

jurisdiction, the evidence was sufficient to support the trial

court’s assertion of jurisdiction pursuant to N.C. Gen. Stat. §

50A-201(a)(1). Accordingly, respondent’s first argument lacks

merit.

Next, respondent contends that the trial court erred by

adjudicating the juveniles neglected and dependent. We first

address respondent’s argument that the trial court erred by

adjudicating the juveniles neglected. Respondent disputes the

trial court’s conclusion that the effect of the parents’

domestic violence and discord on the juveniles was sufficient to

support an adjudication of neglect. Respondent also disputes

the trial court’s finding that respondent failed to submit to

DSS’s in-home services. We do not agree with respondent’s

contentions.

“The allegations in a petition alleging abuse, neglect, or

dependent shall be proved by clear and convincing evidence.”
 -6-
N.C. Gen. Stat. § 7B-805 (2013). In reviewing an adjudication

order, this Court must 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.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362,

365 (2000) (citations omitted). “In a non-jury neglect

adjudication, the trial court’s findings of fact supported by

clear and convincing competent evidence are deemed conclusive,

even where some evidence supports contrary findings.” In re

Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).

N.C. Gen. Stat. § 7B-101, in part, defines a neglected

juvenile as “[a] juvenile who does not receive proper care,

supervision, or discipline from the juvenile’s parent” or “who

lives in an environment injurious to the juvenile’s welfare[.]”

N.C. Gen. Stat. § 7B-101(15) (2013). A parent’s refusal to

cooperate with DSS’s attempts to offer services and a “long

standing” and “enduring” history of domestic violence between

the parents are factors that support an adjudication of neglect.

In re B.M., 183 N.C. App. 84, 89, 643 S.E.2d 644, 647 (2007).

Here, the trial court’s findings of fact support its

conclusion that the juveniles were neglected. The trial court

found that the parents’ history of domestic violence dated back
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to the initial investigation in Kentucky, that the juveniles

were aware of the violence and domestic discord, and that a

Child and Family Evaluation indicated that the parents were not

able to parent the juveniles due to “their continued conflicts

with each other and the impact the conflicts have on the

children.” Specifically, the trial court found:

16. [T]he children were negatively impacted
by witnessing the parents’ domestic discord
and that it caused the children emotional
stress. The Court further finds that the
children were put in the middle of the
parents’ dispute, which also caused stress
upon the children. The Court is further
concerned about the children being coached
to make allegations in an effort to
circumvent the domestic action.

In addition, the trial court found that respondent refused to

develop an in-home services agreement with DSS to address the

identified issues.

Contrary to respondent’s contentions, these findings are

supported by the evidence introduced at the adjudication

hearing, specifically the testimony of a social worker, and in

turn support the trial court’s conclusion that the juveniles

were neglected. Respondent points to her own testimony that she

only “hesitated” in response to DSS’s efforts to implement in-

home services, but the trial court was free to weigh that

testimony against the social worker’s contradictory testimony
 -8-
and make a finding adopting one point of view. Accordingly, we

hold that the evidence and the trial court’s findings of fact

support the adjudication of neglect.

Next, as respondent correctly points out, at the hearing

the trial court orally concluded that the juveniles were

neglected, but both the original and amended adjudication orders

contain conclusions, made by checking boxes on each of the pre-

printed portions of the orders, that the juveniles were

neglected and dependent. We believe that the trial court’s

checking of the box for dependency represents a clerical error.

“A clerical error is an error resulting from a minor

mistake or inadvertence, especially in writing or copying

something on the record, and not from judicial reasoning or

determination.” State v. Jones, ___ N.C. App. ___, ___, 736

S.E.2d 634, 637 (2013) (citations and quotations omitted).

“When, on appeal, a clerical error is discovered in the trial

court’s judgment or order, it is appropriate to remand the case

to the trial court for correction because of the importance that

the record ‘speak the truth.’” State v. Smith, 188 N.C. App.

842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted).

In this case, although DSS filed petitions alleging that

the juveniles were both neglected and dependent, it only argued
 -9-
that they were neglected at the adjudication hearing. The trial

court orally concluded that the juveniles were neglected and

made findings of fact supporting that conclusion, but made none

to support a conclusion that they were dependent. Accordingly,

it appears that the “dependent” box on the adjudication form was

inadvertently checked, and the matter should be remanded for

entry of a new adjudication order that reflects the trial

court’s conclusion that the juveniles were neglected, but not

dependent.

Finally, respondent contends that the trial court erred by

ordering her to pay the costs of her supervised visitation. We

disagree.

In 2013, the General Assembly enacted N.C. Gen. Stat. § 7B-

905.1 (2013), which sets out the requirements for findings

regarding visitation in abuse, neglect, and dependency cases.1

Under the new statute, a disposition order that removes a

juvenile from a parent’s custody “shall provide for appropriate

visitation as may be in the best interests of the juvenile

1
Formerly, visitation was addressed in the disposition statute,
N.C. Gen. Stat. § 7B-905(c) (2011). Section 7B-905.1 was
effective 1 October 2013, and applies to actions “filed or
pending on or after that date.” 2013 N.C. ALS 129. The
disposition order in this matter was entered 15 October 2013.
Therefore, the matter was pending as of the effective date of
the new statute, and we must review the disposition order under
the terms of the new statute.
 -10-
consistent with the juvenile’s health and safety.” N.C. Gen.

Stat. § 7B-905.1(a) (2013). The new statute describes the

findings the trial court must make defining the conditions of

visitation when a child is placed with a relative, as is the

case here:

(c) If the juvenile is placed or continued
in the custody or guardianship of a relative
or other suitable person, any order
providing for visitation shall specify the
minimum frequency and length of the visits
and whether the visits shall be supervised.
The court may authorize additional
visitation as agreed upon by the respondent
and custodian or guardian.

N.C. Gen. Stat. § 7B-905.1(c) (2013). The terms of the statute

are consistent with our case law interpreting the visitation

findings required by N.C. Gen. Stat. § 7B-905(c), the prior

statute. See In re J.P., ___ N.C. App. ___, ___, 750 S.E.2d

543, 547 (2013) (holding that a disposition order must, at a

minimum, set out the time, place, and conditions of visitation).

In this case, the trial court made a finding that squarely

addresses all three requirements of N.C. Gen. Stat. § 7B-

905.1(c): “[Respondent] is to have a supervised visit every

other week for one hour via a supervised visitation center, at

her expense.” Respondent does not challenge the sufficiency of

this finding as to the statutory requirements and concedes that
 -11-
the trial court made findings that support its decision that

supervised visitation was in the juveniles’ best interests under

the circumstances.

Instead of challenging the need for supervised visitation

or the trial court’s findings, respondent first contends that

the Juvenile Code does not permit the trial court to order her

to pay the cost of supervised visitation. When an argument

presents an issue of statutory interpretation, full review is

appropriate, and the trial court’s conclusions of law are

reviewed de novo. Romulus v. Romulus, 216 N.C. App. 28, 32, 715

S.E.2d 889, 892 (2011) (citations omitted). “‘If the language

of the statute is clear, this Court must implement the statute

according to the plain meaning of its terms.’” Whitman v.

Kiger, 139 N.C. App. 44, 46, 533 S.E.2d 807, 808 (2000), aff’d

per curiam, 353 N.C. 360, 543 S.E.2d 476 (2001) (citation

omitted).

Here, respondent’s argument is contradicted by the plain

language of the statute, which provides: “The court may specify

in the order conditions under which visitation may be

suspended.” N.C. Gen. Stat. § 7B-905.1(a). Thus, in the best

interests of the juvenile, the trial court has the authority to

set conditions for visitation, as the trial court did in this
 -12-
case by requiring respondent to pay the costs of visitation. We

also note that other sections of the Juvenile Code, including

N.C. Gen. Stat. § 7B-903 and -904, permit the trial court to

impose costs on the parents of a juvenile adjudicated abused,

neglected, or dependent. Accordingly, we disagree with

respondent’s contention that the Juvenile Code does not

authorize the trial court to order her to pay the costs of

supervised visitation.

Next, respondent contends the trial court erred by ordering

her to pay the costs of supervised visitation without making any

findings that she was able to do so. Respondent cites no

authority to support her assertion that such findings are

required pursuant to N.C. Gen. Stat. § 7B-905.1, or its

predecessor, N.C. Gen. Stat. § 7B-905(c). Instead, respondent

relies on case law interpreting other statutes, including N.C.

Gen. Stat. § 7B-904 and N.C. Gen. Stat. § 50-13.4, to support

her argument. See, e.g., In re W.V., 204 N.C. App. 290, 296-97,

693 S.E.2d 383, 388 (2010) (holding that the trial court must

make findings that a parent is able to pay a reasonable portion

of the cost of foster care before ordering her to do so).

We find respondent’s argument on this point to be

unpersuasive. The section of the Juvenile Code cited in In re
 -13-
W.V. specifically instructs courts to consider the parents’

ability to pay. See N.C. Gen. Stat. § 7B-904(d) (providing that

the trial court may order a parent to pay support “if the court

finds that the parent is able to do so”). This specific

directive is significant in interpreting the intent of the

legislature in enacting the statute, and there is no such

statutory instruction as to the costs of supervised visitation

in the recently enacted N.C. Gen. Stat. § 7B-905.1(c). Further,

the terms of the disposition order in this case account for a

90-day review hearing, and N.C. Gen. Stat. § 7B-905.1(d) (2013)

specifically authorizes all parties to “file a motion for review

of any visitation plan entered pursuant to this section.” N.C.

Gen. Stat. § 7B-905.1(d).

Thus, respondent has ample opportunity to present evidence of

her inability to pay the cost of supervised visitation and have

the visitation plan modified, should the need arise.

Accordingly, we affirm the visitation portion of the disposition

order.

In sum, we affirm the trial court’s adjudication of neglect

and the disposition order, but remand the matter for correction

of clerical error in the adjudication order.

Affirmed, in part; remanded, in part.
 -14-
Chief Judge MARTIN concurs.

Judge HUNTER, Robert N., concurs in part and dissents in

part by separate opinion.
 NO. COA14-79

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF:

J.C. Johnston County
J.C. Nos. 13 JA 101–02

HUNTER, JR., Robert N., Judge, concurring in part and
dissenting in part.

Though I agree with the majority’s decision to affirm the

trial court’s adjudication of neglect and to remand for

correction of a clerical error as to the adjudication of

dependency, I cannot agree with the majority’s decision to

affirm the visitation portion of the disposition order.

Pursuant to N.C. Gen. Stat. § 7B-905.1(a) (2013), the trial

court should consider a parent’s ability to pay before requiring

the parent to pay supervised visitation costs. Accordingly,

because the court below ordered respondent to pay the costs of

supervised visitation without making any findings that she was

able to do so, I respectfully dissent from the majority on this

issue.

The potential consequences of failing to pay the costs of

supervised visitation includes having visitation suspended, a

condition which, if uncured, could ultimately lead to the
 -2-
termination of parental rights. This Court has consistently

held that a parent’s poverty, alone, should not be grounds for

termination of parental rights. See In re T.D.P., 164 N.C. App.

287, 290–91, 595 S.E.2d 735, 738 (2004), aff’d per curiam, 359

N.C. 405, 610 S.E.2d 199 (2005). Denying visitation to a poor

parent who was required, but unable, to pay the costs of

visitation conditions an important constitutional right on

wealth. As judges, we have a duty to construe statutes so that

their application would not violate either the Constitution of

North Carolina or the United States Constitution. See, e.g.,

Appeal of Arcadia Dairy Farms, Inc., 289 N.C. 456, 465, 223

S.E.2d 323, 328 (1976) (“If a statute is reasonably susceptible

of two constructions, one of which will raise a serious question

as to its constitutionality and the other will avoid such

question, it is well settled that the courts should construe the

statute so as to avoid the constitutional question.”).

Requiring the trial court to make findings of fact addressing a

parent’s ability to pay before ordering the parent to pay the

costs of supervised visitation would obviate any

unconstitutional result.

Accordingly, because N.C. Gen. Stat. § 7B-905.1(a) is

silent as to whether the trial court must make the findings at
 -3-
issue, and because the majority’s holding could lead to

undesirable outcomes for poverty-stricken parents, I

respectfully dissent. I would remand the disposition order for

further findings of fact addressing respondent’s ability to pay

the costs of supervised visitation before entering such an

order.