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