An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1320

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2003

IN THE MATTER OF                            Randolph County
JONATHAN HINSHAW                            No. 90 J 127

                            

    Appeal by respondent Jan Gray Hinshaw, Jr., from order entered 15 April 2002 by Judge Michael A. Sabiston in Randolph County District Court. Heard in the Court of Appeals 20 August 2003.

    Mark A. Key and Penny K. Bell for respondent appellant.

    Randolph County Department of Social Services, by Brenda B. White, for petitioner appellee.

    McCULLOUGH, Judge.

    Jonathan Dow Hinshaw (Jonathan) was a minor child who lived with his father, Jan Gray Hinshaw, Jr. (Hinshaw), and another adult, Robert Lawson (Lawson). Jonathan testified that he was hunting and returned home around six o'clock on 17 November 2001. Hinshaw and Lawson got into an argument because Lawson brought his dog into the home against Hinshaw's wishes. Lawson took the dog into his bedroom anyway. Hinshaw beat on the door and told Lawson to come out into the hallway. The argument turned into a physical altercation, and Lawson pushed Hinshaw up against the wall and began to choke him. When the fight moved into the living room, Jonathan got between the two men in an attempt to stop the fight. Hinshaw then shot Lawson. Other evidence in the hearing revealed that the two men had fought before.     On 15 April 2002, the trial court made the following pertinent findings of fact:
            3.    The Court specifically finds that on or about the 17th day of November 2001, the Juvenile was present in the residence of Respondent-Father, Jan Gray Hinshaw Jr., with whom the Juvenile resided. An argument ensued between Respondent-Father and a second male adult, Robert Lee Lawson, Jr., who also resided in the home with the juvenile and Respondent-Father. The argument escalated into a physical altercation. The Juvenile placed himself between the two adults in an attempt to break up the fight.

            4.    Respondent-Father fired a pistol very near the     Juvenile. The shot struck and killed Mr. Lawson.

            5.    The Court finds the Juvenile to be an abused juvenile in that the Respondent-Father allowed the Juvenile to live in an environment wherein a substantial risk of serious physical injury to the Juvenile by other than accidental means was likely.

            6.    The Court further finds the Juvenile to be a neglected Juvenile in that he lives in an environment injurious to the Juvenile's own welfare as a result of the Respondent-Father discharging a handgun in the near vicinity of the Juvenile, which resulted in the death of an adult resident of the Juvenile's home.

            7.    The Court further finds that both adults appeared to have been consuming alcohol on the evening that these events transpired.

    Based on its Findings of Fact, the trial court entered the following pertinent conclusions of law:
            2.     Jonathan Dow Hinshaw is an abused Juvenile within the meaning of N.C.G.S. 7B-101(1) as a result of the circumstances set forth in the above findings of fact.

            3.    Jonathan Dow Hinshaw is a neglected Juvenile within the meaning of N.C.G.S. 7B-101(15) as a result of the circumstances set forth in the above findings of fact.
    Respondent appeals claiming: (1) there was insufficient evidence to find that Jan Hinshaw abused his son, Jonathan Hinshaw; and (2) the trial court erred in concluding that Jan Hinshaw neglected his son. We disagree.

        I. Abuse
    Under N.C. Gen. Stat. § 7B-101(1)(b)(2001), an abused juvenile is “[a]ny juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker . . . [c]reates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means[.]” Additionally, the allegations of abuse, neglect, or dependency must be proved by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2001). “Whether a child is neglected or abused is a conclusion of law.” In re Ellis, 135 N.C. App. 338, 340, 520 S.E.2d 118, 120 (1999). The trial court must “make sufficient findings of fact to support its conclusions.” Id.
    In this case, the evidence is sufficient to support the conclusion that Jonathan Hinshaw was an abused juvenile within the meaning of N.C. Gen. Stat. § 7B-101(1)(b). Hinshaw fought with Lawson in the presence of his son. When the altercation became violent, Jonathan stood between the two men in an effort to stop the fight. However, Hinshaw escalated the situation by shooting Lawson. A father's discharging a gun and killing an adult roommate in close proximity to his child does create or allow to be created a substantial risk of serious physical injury to the child by other than accidental means.     Respondent argues that he did not abuse his son because the altercation was caused by Lawson. In support of this contention, Respondent defines “creates” as “[t]o bring into being; to cause to exist; to produce[.]” Black's Law Dictionary 366 (6th ed. 1990). This argument is unpersuasive because the standard for abuse is “[c]reates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means.” N.C. Gen. Stat. § 7B-101(1)(b) (emphasis added). We find that Hinshaw's behavior did meet the standard for abuse.
    II. Neglect
     The North Carolina General Statutes define a neglected juvenile, in part, as a juvenile “who lives in an environment injurious to the juvenile's welfare[.]” N.C. Gen. Stat. § 7B- 101(15) (2001). “Whether a child is neglected or abused is a conclusion of law.” Ellis, 135 N.C. App. at 340, 520 S.E.2d at 120. The trial court must “make sufficient findings of fact to support its conclusions.” Id. Furthermore, “[w]here the trial court sits without a jury and hears the evidence in a neglect adjudication, the facts found by the trial court are binding on an appellate court if supported by clear and convincing competent evidence.” In re McLean, 135 N.C. App. 387, 394, 521 S.E.2d 121, 125 (1999).
    The trial court's findings of fact which determined that Jonathan Hinshaw was a neglected juvenile were adequately supported by clear and convincing evidence. The combined history of altercations, firearms, disregard for the juvenile's safety, andalcohol use were illustrative conditions in the home. Moreover, a father's discharging a gun and killing an adult roommate in close proximity to his child reveals an environment injurious to the juvenile's welfare. Therefore, the trial court was correct in concluding that Jan Hinshaw neglected his son, Jonathan Hinshaw.
    We have considered respondent's other arguments and find them to be without merit. Thus, the trial court's order finding Jonathan Hinshaw to be abused and neglected is affirmed.
    Affirmed.
    Judges MARTIN and LEVINSON concur.
    Report per Rule 30(e).

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