An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-851

NORTH CAROLINA COURT OF APPEALS

Filed: 20 April 2004

IN THE MATTER OF:

R.L.C.H.                            Alamance County        
                                No. 02 J 167

    Appeal by respondent from order filed 7 April 2003   (See footnote 1)  by Judge J. Kent Washburn in Alamance County District Court. Heard in the Court of Appeals 3 March 2004.

    Jamie L. Hamlett for petitioner-appellee Alamance County Department of Social Services.

    Rebekah W. Davis for respondent-appellant.

    BRYANT, Judge.

    D.H. (respondent), appeals a juvenile order filed 7 April 2003 adjudicating his son R.L.C.H. (R.H.) dependent and ordering custody to remain in the Alamance County Department of Social Services (DSS).
    On 16 September 2002, R.H. was discharged from the UNC Adolescent Unit after being involuntarily committed and treated for aggressive behaviors and suicidal thoughts. DSS received a letter from UNC Hospitals recommending R.H. be placed in a Level III group home. Thereafter, DSS attempted to contact respondent, respondent's girlfriend, who was acting as R.H.'s caretaker, andrespondent's mother (R.H.'s grandmother) in order to have someone authorize R.H.'s transfer to a Level III group home.
    During this time, respondent was under arrest for alleged sexual abuse of R.H.'s sister, and was being housed at Dorothea Dix Hospital for evaluation. Due to his detention, respondent made arrangements for his girlfriend to act as R.H.'s guardian with the authority to make decisions for R.H.
    DSS arranged for the girlfriend to meet with Children and Youth Services to apply for group home services, but she did not arrive for the appointment. After several unsuccessful attempts to contact either respondent, the girlfriend, or the grandmother (the last person with whom R.H. lived), DSS filed a petition on 13 September 2002 seeking custody of R.H. to authorize his transfer. This petition was granted by order signed on 13 September 2002 and filed on 21 March 2003. R.H. was thereafter transferred to the Phoenix Bridge group home on 16 September 2002.
    On that same date, DSS filed a petition alleging R.H. was a neglected and dependent juvenile. This petition came for hearing at the 12 and 13 March 2003 juvenile sessions of Alamance County District Court before the Honorable J. Kent Washburn. By decision announced in open court and in a subsequent order filed 7 April 2003, R.H. was adjudicated dependent, and continuing custody was vested with DSS. Respondent filed notice of appeal on 18 March 2003.

_________________________

    The issues are whether: (I) finding of fact #5 is a properfinding fact and is supported by competent evidence; (II) the findings of fact support the conclusion that R.H. is a dependent juvenile; (III) the trial court's finding regarding the best interest of R.H. is supported by competent evidence; and (IV) the trial court's conclusion regarding the best interest of R.H. is supported by the findings of fact.
I

    First, respondent argues that finding of fact #5 is not a proper finding of fact and is not supported by competent evidence.
    Allegations contained in a neglect or dependency petition must be proved by clear, cogent, and convincing evidence. N.C.G.S. § 7B-805 (2003). On appeal, this Court must determine whether the trial court's findings are in fact supported by clear, cogent, and convincing evidence, and whether the findings support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). If the trial court's findings of fact are supported by clear, cogent, and convincing evidence, they are deemed conclusive, even if there is some evidence to support contrary findings. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
    Finding of fact #5 states:
            5.    That the matters alleged in the Juvenile Petition, or any amended form thereof, are found to be true as follows:

                a.    On September 4, 2002, the Alamance County Department of Social Services received a report of dependency on [R.H.] from family members stating that they were not able to carefor him.

                b.    [R.H.] assaulted his caretaker and paternal grandmother and was verbally abusive to other family members.

                c.    [R.H.] is in the legal custody of his father, who is currently incarcerated due to sexual abuse allegations.

                d.    [R.H.]'s father is currently admitted at Dorothea Dix Hospital for mental health evaluation.

                e.    [R.H.] was involuntarily committed to UNC Adolescent Unit for aggressive behaviors and suicidal ideation. He has been diagnosed with the following diagnoses: Adjustment Disorder with mixed emotions and conduct, Mood Disorder and co-morbid Conduct Disorder. He is being discharged on Monday, September 16, 2002.

                f.    The biological mother resides in Ohio and there is a CPS history in Ohio of abuse and neglect involving this child and a sibling.

                g.    Neglect was substantiated on September 16, 2002 due to injurious environment as a result of domestic violence in the home between the father and [A.H], stepmother, as well [as] sexual abuse of a sibling by the father.

    Respondent's first argument, that subsections a. and g. of finding of fact #5 are mere recitations of allegations and therefore are not proper findings of fact, is without merit. Respondent is correct that a district court “may not simply 'reciteallegations,' but must . . . find the ultimate facts essential to support the conclusions of law.” In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citation omitted). However, the district court introduced finding of fact #5 with the statement: “the matters alleged in the Juvenile Petition, or any amended form thereof, are found to be true.” The district court therefore specifically found the allegations to be true.
    Regarding whether competent evidence exists in support of the finding, as it relates to subsection a., the evidence shows (by testimony of DSS child protective services investigator Laquicha Minor) both the girlfriend and the grandmother contacted DSS on at least two occasions to report that they were unable to control R.H. and needed assistance. On 4 September 2002, both the girlfriend and the grandmother reported to DSS that R.H. had assaulted them and was so out of control that police were dispatched for assistance.
    As relates to subsection b., the grandmother testified that on one occasion, R.H. physically assaulted respondent's girlfriend, causing her lip to bleed. During the assault, R.H. also hit the grandmother. The girlfriend informed DSS that R.H. cursed at her and others during this time.
    As relates to subsections c. and d., social worker Minor testified that respondent had legal and physical custody of R.H., and, at the time, respondent was being held at Dorothea Dix Hospital for evaluation during the pendency of his own sexual abuse case.    As relates to subsection e., R.H.'s case manager Tina Lesso testified R.H. was hospitalized at UNC from 4-16 September 2002, and was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, and a mood disorder not otherwise specified. She further testified that R.H.'s involuntary commitment evaluation noted he was displaying aggressive behaviors and suicidal thoughts. In addition, DSS foster care supervisor Valerie Enoch testified that R.H. was discharged on 16 September 2002.
    As relates to subsection f., social worker Minor testified that R.H.'s mother lived in Ohio. Records from the Child Protective Services of the Department of Social Service for Licking County, Ohio, were admitted into evidence, and these records referenced prior allegations of sexual abuse of R.H.'s sister and neglect of both R.H. and his sister.
    As relates to subsection g., however, the record does not contain any evidence to support the finding of domestic violence between respondent and his wife. There is, however, competent evidence to support the finding of sexual abuse of a sibling by the father. Respondent was arrested for sexual abuse of R.H.'s sister, who lived with R.H. and respondent, however, the record does not indicate the court's disposition of the case.
    Therefore, with the exception of a portion of subsection g., finding of fact #5 is supported by competent evidence in the record.
II
    Respondent next argues the trial court's conclusion of law that R.H. is a dependent juvenile is not supported by the findings of fact. We disagree.
    N.C. Gen. Stat. § 7B-101(9) defines a dependent juvenile as “[a] juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.” N.C.G.S. § 7B-101(9) (2003).
    The record reveals respondent was under arrest for possible sexual abuse of R.H.'s sister and was currently being housed at Dorothea Dix Hospital. Respondent gave authority to the girlfriend to care for R.H., but the girlfriend did not assume responsibility in that she failed to meet with Children and Youth Services to authorize R.H.'s acceptance into a group home for treatment. Moreover, when both the girlfriend and the grandmother had attempted to care for R.H., he was physically violent and used profane language toward them, such that both expressed a concern that they could not control R.H.'s outbursts.
    Lee Worthington of Children and Youth Services, testified that she recommended keeping R.H. in a Level III group home because he continued to be impulsive, explosive, and exhibited erratic behaviors. She also testified that R.H.'s outbursts often seemed to correlate with his contacts with respondent. Also, Guardian ad Litem Robert Jennings reported his certainty that the positivechanges in R.H.'s behavior were related to R.H.'s classroom environment at the group home as well as counseling and medication.
    The record is replete with evidence that respondent was unable to care for R.H., and that both respondent's girlfriend and R.H.'s grandmother were unable to control R.H. such that he had no appropriate alternative care. These findings support the conclusion that R.H. is a dependent juvenile. Therefore, this assignment of error is overruled.
III & IV

    Respondent finally argues the district court's finding that removal of the juvenile from the parent's custody is in the juvenile's best interests, is not supported by competent evidence. Respondent also argues that the district court's conclusion is not supported by the findings of facts.
    N.C. Gen. Stat. § 7B-903 provides that the district court may combine any dispositional alternatives “when the court finds the disposition to be in the best interests of the juvenile.” N.C.G.S. § 7B-903(a) (2003) (emphasis added). N.C. Gen. Stat. § 7B-507 provides that “[a]n order . . . continuing the placement of a juvenile in the custody or placement responsibility of a county department of social services, . . . a dispositional order . . . [s]hall contain a finding that the juvenile's continuation in or return to the juvenile's own home would be contrary to the juvenile's best interest.” N.C.G.S. § 7B-507(a)(1) (2003).
    The findings indicate that R.H. exhibited aggressive behaviors and suicidal thoughts. The girlfriend and the grandmother eitherdid not have or chose not to exercise authority in helping R.H. receive group home treatment. Moreover, neither the girlfriend nor the grandmother could control R.H. when he became violent. Based on the above stated evidence and findings, these assignments of error are overruled.
    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
    The caption has been altered to show only the juvenile's initials. Respondent's name has also been reduced to initials to protect the juvenile's identity.

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