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