An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-578


Filed: 18 May 2004

IN THE MATTER OF                Buncombe County
D.R., A.R. and S.H.                No. 02 J 222
    Minor Children.

    Appeal by respondent from order entered 23 December 2002 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 15 March 2004.

    Renae S. Alt for petitioner-appellee Buncombe County Department of Social Services.

    M. Victoria Jayne for respondent-appellant David Rosario.

    Judy N. Rudolph for petitioner-appellee Guardian ad Litem for D.R. and A.R.

    LEVINSON, Judge.

    Respondent (David Rosario) appeals from orders adjudicating his sons (hereinafter A.R. and D.R.) neglected and dependent, and from dispositional orders continuing custody of A.R. and D.R. with the Buncombe County Department of Social Services (DSS). We reverse in part and affirm in part.
    The record tends to establish the following: A.R. and D.R. are the twin sons of respondent and Elizabeth Hamilton. Although respondent and Hamilton never married, they lived together until December 1999. At the time of the twins' birth in July 1994, respondent and Hamilton were living in West Palm Beach, Florida with A.R., D.R., and Hamilton's son from a previous relationship,S.H. In 1996, the family moved to Buncombe County, North Carolina. When the couple separated in December 1999, respondent moved out of the house, but remained in Buncombe County. Respondent testified that even after he stopped living with Hamilton, he saw A.R. and D.R. frequently, paid child support, and was involved with their education and physical care.
    Respondent also had a daughter from a previous relationship, C.R. In 1998 or 1999, when C.R. was 11 or 12 years old, she stayed with respondent and Hamilton in Buncombe County for several months before returning to Puerto Rico to live with her grandmother. In 2001 it was reported to DSS that when C.R. stayed with Hamilton and respondent three years before, she had touched A.R. in an inappropriate or sexual manner. C.R. had long since returned to Puerto Rico, and DSS did not interview her. However, DSS investigated A.R. and D.R.'s home situation with Hamilton, and substantiated the report in that they determined that A.R. and C.R. lived in an environment injurious to their welfare, due to Hamilton's verbal abuse and a lack of proper supervision by either parent. Thereafter, respondent agreed to a DSS protection plan requiring that his visits with A.R. and D.R. be supervised by Hamilton or some other third party.
    Respondent returned to Florida in October 2001. Neither A.R. nor D.R. moved with him, and respondent's contact with the boys after he moved to Florida consisted of intermittent phone calls. Hamilton, with whom the boys lived, suffered from Chron's disease and morbid obesity. When Hamilton needed surgery in June 2002, sheentered into a voluntary placement agreement with DSS and therefore allowed them to assume custody of her sons while she was in the hospital. Medical complications led to Hamilton's death on 22 June 2002. Hamilton did not provide DSS with respondent's address or phone number, and when she died DSS did not know how to reach respondent.
    On 19 June 2002, the Buncombe County DSS filed petitions alleging that A.R. and D.R. were neglected and dependent. The allegation of neglect was based on factual assertions pertaining to the investigation into inappropriate touching by C.R. in 1998 or 1999. The allegation of dependency was based on factual allegations that Hamilton was terminally ill; that respondent had a substantiated case of neglect related to environment injurious and lack of supervision; and that respondent's present address was unknown. In July 2002 respondent learned of Hamilton's death and contacted Buncombe County DSS seeking custody of his sons. However, as the result of a nonsecure custody order issued in June 2002, custody remained with DSS pending adjudication of the allegations in the petition.
    On 16 October 2002 a hearing was conducted on the petition's allegations of dependency and neglect. The petitioner presented testimony from two DSS employees assigned to the case. Respondent testified at the hearing, as did his daughter, C.R., and his mother. Respondent testified that he had a “loving relationship” with his sons, and played a significant part in their lives when he lived in Asheville. However, after he moved to Florida, Hamiltonchanged her phone number and concealed the new number from him. As a result, he had to mail his own phone number to A.R. and D.R. inside a greeting card, so they could call him and let him know their phone number. After that he called frequently, but had trouble getting past Hamilton's answering machine. He last spoke with his sons in March, 2002, about three months before Hamilton's death. Respondent also testified that he was very eager for his sons to live with him in Florida, where he had a three bedroom home on a four-acre property. C.R. testified that she was now married and lived in Florida with her husband; that she had stayed with respondent and Hamilton for several months in 1998 and 1999; that she had never touched either boy in a sexual manner; and that she had not even known of this accusation until the week of the hearing.
    On 23 December 2002 the trial court issued an order adjudicating A.R. and D.R. neglected and dependent. The court's dispositional order stated that reunification with respondent was the permanent plan, but continued custody with DSS. From these orders, respondent appeals.

    Respondent argues that the trial court erred by adjudicating A.R. and D.R. neglected, in that the trial court's conclusion that the children were neglected was unsupported by the evidence or by the court's findings of fact.
    “When an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines theevidence to determine whether there exists clear, cogent and convincing evidence to support the findings. . . . If there is competent evidence, the findings of the trial court are binding on appeal . . . even though the evidence might support a finding to the contrary.” In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003) (citations omitted). Moreover, “this Court's review is limited to those findings of fact and conclusions of law properly assigned as error. Thus, 'findings of fact to which [appellant] has not assigned error and argued in his brief are conclusively established on appeal.'” In re Estate of Lunsford, 160 N.C. App. 125, 129, 585 S.E.2d 245, 250 (2003) (quoting Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002)).
    In the present case, respondent has not assigned error to any of the trial court's findings of fact, and makes only a generalized assertion that the court's findings were “inconsistent with the evidence.” “Therefore, since respondent only brought forth a broadside exception in the record, our review is limited to whether the facts support the court's judgment.” In re Dhermy, __ N.C. App. ___, ___, 588 S.E.2d 555, 559 (2003). In this regard:
        We stress the narrowness of our review. While [respondent] refers to evidence supporting [his] position, the trial court chose not to make findings in accordance with that evidence. . . . It is not the role of this Court to consider what the trial court could have found or to make our own findings based on our review of the record. Instead, our review is limited to determining whether the court's actual findings of fact support the conclusion that it reached.
Lunsford, 160 N.C. App. at 132, 585 S.E.2d at 250.
    N.C.G.S. § 7B-101(15) (2003) states in pertinent part that a neglected child is one who “does not receive proper care, supervision, or discipline . . . or who has been abandoned; . . . or who lives in an environment injurious to the juvenile's welfare[.]” In the instant case, the following findings of fact are relevant to the court's adjudication of neglect:
    8.    That David Rosario and Elizabeth Hamilton lived together with the minor children until late 1999, when [David] Rosario moved out[.]

    9.    That David Rosario moved out of the home in 1999 but continued to live in Buncombe County, North Carolina.

    10.    That Elizabeth Hamilton had a serious chronic illness, Crohn's disease.

    . . . .

    12.    That Elizabeth Hamilton verbally abused the minor children on a regular basis.

    13.    That David Rosario was aware of and participated in a protection plan with the Buncombe County DSS in February 2001, due to allegations of sexual abuse of the minor children.

    14.    That David Rosario moved back to Florida.

    . . . .

    19.    That the minor children have been abandoned by David Rosario.

On the basis of its findings of fact, the trial court concluded that “the minor children are neglected . . . [in the meaning of] N.C.G.S. § 7B-101(15)(9) in that the children were abandoned by their father and lived in an environment injurious to their welfare due to verbal abuse[.]”     We first consider the court's conclusion that the children “lived in an environment injurious to their welfare due to verbal abuse[.]” The record includes only one finding of fact pertaining to “verbal abuse”: that Hamilton, now deceased, had “verbally abused the minor children on a regular basis.” However, the findings of fact do not indicate the nature or severity of the “verbal abuse,” its effect on the children, or other facts from which one could conclude that this unspecified “verbal abuse” was sufficiently serious to create an environment injurious to the welfare of A.R. and D.R. See In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003) (“[R]eview of the numerous cases where 'neglect' . . . has been found shows that the conduct at issue constituted either severe or dangerous conduct . . . causing injury or potentially causing injury to the juvenile[.]”). We conclude that the trial court's conclusion that the minor children were neglected in that they “lived in an environment injurious to their welfare due to verbal abuse” was not supported by its findings of fact.
    The other basis for the trial court's conclusion that the children were neglected was that “they were abandoned by their father.” Preliminarily, we note that the court's “finding of fact” Number 19 - that respondent abandoned the children - is more properly termed a conclusion of law, and will be treated as such by this Court. See In re Young, 346 N.C. 244, 250, 485 S.E.2d 612, 616 (1997) (respondent challenges “court's conclusion of law that she abandoned her child”); In re McLemore, 139 N.C. App. 426, 428,533 S.E.2d 508, 509 (2000) (“court's findings support the court's conclusion that respondent willfully abandoned his child”); and see generally In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (“determination requiring the exercise of judgment . . . or the application of legal principles . . . [is] a conclusion of law”).
    “'Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child.'” Young, 346 N.C. at 251, 485 S.E.2d at 617 (quoting In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986)). See, e.g., Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962) (“Abandonment has also been defined as wilful [sic] neglect and refusal to perform the natural and legal obligations of parental care and support[.]”); In re Humphrey, 156 N.C. App. 533, 541, 577 S.E.2d 421, 427 (2003) (“[R]espondent abandoned the child over a six-year period and has done nothing to fulfill her obligations as a parent[.]”).
    We conclude that the trial court's findings of fact fail to support the conclusion that respondent abandoned his children, or evinced “a wilful intent to escape parental responsibility and conduct in effectuation of such intent.” Pratt, 257 N.C. at 502, 126 S.E.2d at 608 (citations omitted). The court's findings tend to show that respondent and Hamilton lived together until 1999; that after respondent stopped living with Hamilton, he remained in Buncombe County for almost two years; and that respondentcooperated with a DSS protection plan. The trial court also noted respondent's uncontradicted testimony that he remained involved with the children during this period. The court's lone finding that respondent had “moved back to Florida” approximately eight months before Hamilton's death is insufficient, without more, to support a conclusion that he had the “willful determination to forego all parental duties and relinquish all parental claims to the child.” See Young, 346 N.C. at 251, 485 S.E.2d at 617.
    We conclude that the trial court's adjudication of neglect must be reversed. We have considered respondent's other arguments and find them to be without merit. The court's adjudication of dependency and its dispositional order are affirmed.
    Reversed in part and affirmed in part.
    Judges TIMMONS-GOODSON and THORNBURG concur.
    Report per Rule 30(e).

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