{ "id": 9190833, "name": "IN THE MATTER OF: ALEXANDRIA IVEY, AMBER IVEY, JOSHUA IVEY", "name_abbreviation": "In re Ivey", "decision_date": "2003-03-04", "docket_number": "No. COA02-439", "first_page": "398", "last_page": "404", "citations": [ { "type": "official", "cite": "156 N.C. App. 398" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "344 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523646 ], "year": 1986, "pin_cites": [ { "page": "452-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0449-01" ] }, { "cite": "319 S.E.2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683884 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0586-01" ] }, { "cite": "303 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 76", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524021 ], "year": 1983, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0076-01" ] } ], "analysis": { "cardinality": 591, "char_count": 14227, "ocr_confidence": 0.755, "pagerank": { "raw": 7.072850811304029e-07, "percentile": 0.9664522912339677 }, "sha256": "4a66fa4b2929d14e78eb717ba01e17cb499895a44b75b40c2dc97bddbfbd1a9c", "simhash": "1:e6ed9227b35b9fd1", "word_count": 2316 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and LEVINSON concur." ], "parties": [ "IN THE MATTER OF: ALEXANDRIA IVEY, AMBER IVEY, JOSHUA IVEY" ], "opinions": [ { "text": "TYSON, Judge.\nLeah Wilkins (\u201crespondent-mother\u201d) and Jerry Wilkins (\u201crespondent-father\u201d) jointly appeal from a permanency planning review order. The trial court ordered that their three children, Alexandria, Amber, and Joshua, be placed in guardianship with relatives. The trial court relieved the Iredell County Department of Social Services (DSS) of further efforts toward reunification. The trial court also ordered DSS to assume non-secure custody of Joriah, the infant child residing with respondents, who was not a subject of the juvenile petition.\nI. Background\nLeah Wilkins is the mother of Alexandria, Amber, Joshua, and Joriah. Jerry Wilkins is the step-father of Alexandria and the father of Amber, Joshua, and Joriah. DSS became involved with the family in September of 1998 due to allegations of lack of care of the children and concerns that the home environment was injurious to the welfare of the children. There were claims of instability of housing, domestic and substance abuse. Since DSS became involved, both respondents have been in and out of jail, lived in multiple homes or have been homeless, and have been unemployed or engaged in short-term temporary work.\nOn 18 February 2000, DSS filed juvenile petitions to adjudicate Alexandria, Amber and Joshua as neglected. The hearing was held on 12 May 2000. On 9 June 2000, the trial court adjudicated the three children neglected. DSS assumed legal custody for the children while physical custody remained with respondents. On 3 August 2000, DSS received non-secure physical custody and the children were placed with the children\u2019s maternal uncle and aunt, Isaac and Candance Ivey. Amber and Joshua have remained in the Ivey\u2019s physical custody since that time. Alexandria was placed in foster care and ultimately in the physical custody of Larry and Rebecca Harrison, another maternal uncle and aunt, where she has remained.\nAfter DSS received non-secure physical custody of the children, it established a concurrent plan of reunification with the parents and placement with relatives. The trial court held review hearings and continued to allow DSS to retain physical custody of the three children. During this time, Joriah was born and remained in the custody of the respondents.\nIn July of 2001, respondent mother signed a voluntary support agreement with the IV-D agency. On 12 July 2001, a permanency planning review was held. DSS and the guardian ad litem submitted summaries and reports dated 7 June 2001. At the hearing, respondents stated that they were now employed and were in the process of buying a \u201cnice\u201d home \u201cin a nice neighborhood.\u201d The hearing was continued from July until 31 August 2001 \u201cso as to allow substantiation of the Respondent mother\u2019s statements and to allow the Respondent Parents to supplement said statements with appropriate financial affidavits.\u201d\nOn 29 August 2001 DSS filed a \u201cJuvenile Court Summary\u201d and the guardian ad litem filed a \u201cGuardian Ad Litem Court Report.\u201d The permanency planning hearing was held on 31 August 2001. Along with the testimony presented at the hearing, the trial court reviewed the DSS summary and guardian ad litem court report.\nThe trial court found:\nf. The Court, in reviewing the file and in hearing the testimony provided in court would find a protracted history of instability and chaos. The Respondent Parents have never admitted that they played any role in their children\u2019s placement in custody, nor due [sic] they take any responsibility for their actions presently which has seen them in a consistent cycle of incarceration, unemployment, and homelessness. The Court would further find that such an environment has been in place for too long for reunification to be a reasonable goal and that no child, including the infant who presently resides with the Mrs. Wilkins, should be forced to endure such circumstances.\nh. The Court would further find that non-secure custody should be taken of the infant presently living in the Wilkins home, to be followed as reasonably soon as possible with a Juvenile Petition.\nThe trial court concluded:\n5. Reunification in the home would be contrary to the safety, health and welfare of the child and would be futile under the circumstances. Guardianship is in the best interest of the minor children.\nThe trial court ordered that permanent guardianship of Alexandria be placed with the Harrisons and guardianship of Amber and Joshua be placed with the Iveys. It further ordered \u201c[t]he Department of Social Services shall assume non-secure custody of the infant child presently residing with the Respondent Parents.\u201d Respondents appeal.\nII. Issues\nRespondents contend the trial court erred (1) in ordering DSS to assume nonsecure custody of the infant child; (2) in relying on a report from DSS and a report from the guardian ad litem in making its permanency planning determination; and (3) in admitting hearsay evidence.\nIII. Nonsecure custody of the infant child\nRespondents assert that the trial court erred in ordering DSS to assume nonsecure custody of an infant child where no petition had been filed and the trial court did not have jurisdiction over the child. We agree.\nN.C. Gen. Stat. \u00a7 7B-502 (2001) gives the district court authority to issue an order placing a child in nonsecure custody \u201c[i]n the case of any juvenile alleged to be within the jurisdiction of the court.\u201d N.C. Gen. Stat. \u00a7 7B-503(a) sets forth the criteria for nonsecure custody and states: \u201cAn order for nonsecure custody shall be made only when there is a reasonable factual basis to believe the matters alleged in the petition are true ....\u201d At the time of the hearing, DSS had not filed any petition alleging that Joriah was an abused or neglected child. Without such petition, the trial court did not have the jurisdiction to order DSS to assume nonsecure custody of him.\nDSS contends that it had authority to take the child into custody under N.C. Gen. Stat. \u00a7 7B-500 which states:\nTemporary custody means the taking of physical custody and providing personal care and supervision until a court order for nonsecure custody can be obtained. A juvenile may be taken into temporary custody without a court order by a law enforcement officer or a department of social services worker if there are reasonable grounds to believe that the juvenile is abused, neglected, or dependent and that the juvenile would be injured or could not be taken into custody if it were first necessary to obtain a court order.\nN.C. Gen. Stat. \u00a7 7B-500(a) (emphasis supplied). A juvenile may not be taken into custody without a valid court order just because the juvenile is \u201cbelieved\u201d to be abused, neglected, or dependent. There must also be \u201creasonable grounds to believe\u201d that \u201cthe juvenile would be injured or could not be taken into custody if it were first necessary to obtain a court order.\u201d N.C. Gen. Stat. \u00a7 7B-500(a). This statute is a narrow exception to the requirement that a petition must be filed prior to the issuance of a court order for non-secure custody. DSS presented no evidence and there are no findings of fact in the order that Joriah \u201cwould be injured or could not be taken into custody\u201d if DSS were required to first file a petition and obtain an order.\nWe hold that the trial court erred in ordering DSS to assume non-secure custody of Joriah and vacate that part of the order. Our vacating the order to assume nonsecure custody of the infant does not affect any petition, hearing, or order for nonsecure custody filed, heard or rendered subsequent to the order appealed.\nIV. Reports of DSS and Guardian Ad Litem\nRespondents contend that the trial court erred in basing its decision on facts in a DSS court summary and a guardian ad litem report which were not admitted into evidence during the planning review hearing. Respondents admit that N.C. Gen. Stat. \u00a7 7B-901 allows the trial court to consider written reports concerning the needs of the children. They contend that the trial court erred in considering the reports when they did not have the opportunity to cross-examine the reports because of lack of notice and lack of admission. We disagree.\nN.C. Gen. Stat. \u00a7 7B-907(b) states, \u201cAt any permanency planning review, the court shall consider information from the parent, the juvenile, the guardian, any foster parent, relative or preadoptive parent providing care for the child, the custodian or agency with custody, the guardian ad litem, and any other person or agency which will aid it in the court\u2019s review.\u201d N.C. Gen. Stat. \u00a7 7B-901 states, \u201cThe disposi-tional hearing may be informal and the court may consider written reports or other evidence concerning the needs of the juvenile.\u201d \u201cThe statutes lead to but one conclusion: In juvenile proceedings, trial courts may properly consider all written reports and materials submitted in connection with said proceedings.\u201d In re Shue, 63 N.C. App. 76, 79, 303 S.E.2d 636, 638 (1983), modified and aff\u2019d, 311 N.C. 586, 319 S.E.2d 567 (1984). Rule 20 of the Local Rules of Juvenile Court for Iredell County requires DSS and the guardian ad litem to submit reports to counsel for all parties \u201cat least 2 working days prior to each disposition and review hearing.\u201d Rule 20(b) and (c) of the Local Rules of Juvenile Court for Iredell County (1999).\nThe original permanency planning hearing took place on 12 July 2001. Prior to that hearing, both DSS and the guardian ad litem submitted written reports which respondents admittedly received. Respondents presented information regarding their employment and housing to rebut the allegation of instability and homelessness. The trial court continued the hearing until 31 August 2001. On 29 August 2001, two days prior to the scheduled hearing, both DSS and the Guardian ad Litem submitted another set of reports to the trial court. Respondents do not contend that DSS or the guardian ad litem failed to follow the Local Rules of Juvenile Court or failed to provide the documents to their counsel at this time.\nShauna Heavner, a Foster Care Worker with DSS who submitted the report for DSS, testified at trial without questioning by counsel for either respondent. Only respondent-mother elected to present evidence at the hearing although both respondents were given the opportunity. Neither respondent requested a continuance due to lack of notice regarding the documents.\nWe hold the trial court did not err in considering the DSS and guardian ad litem reports which complied with the local rules for submitting reports. Respondents were given prior notice of the reports and the opportunity to present evidence against them. This assignment of error is overruled.\nV. Hearsay Evidence\nRespondents contend the trial court erred in admitting the hearsay testimony of Ms. Heavner regarding respondents\u2019 living situation, characterization of the home they were considering purchasing, credit worthiness of respondents, respondent-mother\u2019s employment information and respondent-father\u2019s criminal record. At the hearing, the only hearsay objection came to Ms. Heavner\u2019s statement \u201cFrom what we gathered from Mallard Creek, Mr. and Mrs. Wilkins were able to go to Mallard Creek to pick up possessions and would unlock windows.\u201d Respondents did not object to any other testimony nor did they place a continuing objection in the record regarding hearsay answers. Further questions were asked regarding the living conditions at Mallard Creek to which respondents did not object. By failing to object to further questions, respondents have waived their right to assign and appeal error as to those questions. N.C. R. App. P. 10(b)(1) (2002).\nVI. Conclusion\nWhile the trial court made references to respondents\u2019 intermittent homelessness and joblessness, neither homelessness nor joblessness will per se support a finding of abuse or neglect. In re Evans, 81 N.C. App. 449, 452-53, 344 S.E.2d 327-28 (1986). We hold that the trial court erred in ordering DSS to assume nonsecure custody of the infant child and vacate that portion of the order. We also hold that there was no error in admitting the reports from DSS and the guardian ad litem and the testimony of Ms. Heavner.\nAffirmed in part, vacated in part.\nJudges TIMMONS-GOODSON and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Thomas R. Young, for the Petitioner-Appellee, Iredell County Department of Social Services.", "Womble Carlyle Sandridge & Rice, PLLC, by Garth A. Gersten, for Appellee Guardian Ad Litem.", "Robert W. Ewing, for Respondent-Appellant father.", "David Childers, for Respondent-Appellant mother." ], "corrections": "", "head_matter": "IN THE MATTER OF: ALEXANDRIA IVEY, AMBER IVEY, JOSHUA IVEY\nNo. COA02-439\n(Filed 4 March 2003)\n1. Child Abuse and Neglect\u2014 nonsecure custody \u2014 no petition alleging neglect or abuse\nThe trial court erred by ordering DSS to assume nonsecure custody of an infant where three older siblings were being placed in a guardianship but DSS had not filed a petition alleging that the infant was an abused or neglected child. The narrow exception of N.C.G.S. \u00a7 7B-500(a) did not apply because there was no evidence or findings that the child would be injured or could not be taken into custody if DSS were required to first file a petition and obtain an order.\n2. Child Abuse and Neglect\u2014 DSS and guardian ad litem reports \u2014 not admitted during hearing \u2014 considered by court\nThe trial court did not err when making a permanency planning determination by considering DSS and guardian ad litem reports which complied with local rules for submitting reports even though those reports were not admitted into evidence during the hearing. Respondents were given prior notice of the reports and the opportunity to present evidence against them.\n3. Appeal and Error\u2014 hearsay \u2014 no objection \u2014 appellate review waived\nRespondents waived their right to assign error to the admission of hearsay at a permanency placement hearing by failing to object either to the initial question or to further questions.\n4. Child Abuse and Neglect\u2014 homelessness and joblessness\u2014 not abuse or neglect per se\nNeither homelessness nor joblessness will per se support a finding of child abuse or neglect.\nAppeal by respondents from an order filed 13 September 2001 by Judge Julia Gullett in Iredell County District Court. Heard in the Court of Appeals 22 January 2003.\nThomas R. Young, for the Petitioner-Appellee, Iredell County Department of Social Services.\nWomble Carlyle Sandridge & Rice, PLLC, by Garth A. Gersten, for Appellee Guardian Ad Litem.\nRobert W. Ewing, for Respondent-Appellant father.\nDavid Childers, for Respondent-Appellant mother." }, "file_name": "0398-01", "first_page_order": 428, "last_page_order": 434 }