IN THE MATTER OF: Cabarrus County
T.H and T.H. Nos. 02 J 217, 218
Kathleen Arundell Widelski for petitioner-appellee Cabarrus
County Department of Social Services; and Attorney Advocate
Victoria Bost for Guardian Ad Litem-appellee.
Janet K. Ledbetter for respondent-appellant.
THORNBURG, Judge.
C.K.H. (“respondent”) appeals the trial court order
adjudicating his twins, T.H. and T.H., as neglected and dependent
juveniles. For the reasons discussed herein, we affirm.
The twins were born on 7 June 2002. The twins were born
prematurely and had several medical problems, including respiratory
issues. When the twins were born, respondent and the children's
mother were unmarried, but were living together and blood tests
confirmed that respondent is the twins' father.
The Cabarrus County Department of Social Services (“DSS”)
first became involved with the twins at their birth. DSS was
concerned about the mother's ability to care for the children due
to her mental limitations and the fact that four children hadpreviously been removed from her custody. Respondent and the
mother were allowed to retain custody of the twins because
respondent agreed to be the primary caregiver to the twins and also
because respondent's parents agreed to be safety responses when
respondent was not able to watch the twins.
On or about 11 November 2002, DSS received another report
alleging that the twins were being neglected. The report alleged
that there was verbal fighting in front of the twins, that the home
was not clean, that respondent's father was selling OxyContin from
the home, that respondent's parents were seeking to kick the mother
out of the home and that there were concerns about the twins'
health. Before DSS could go to the home to investigate,
respondent's father arrived at the DSS office asking to speak with
a social worker.
Respondent's father spoke with a social worker, Toby Lester,
and asked that DSS intervene. Respondent's father told Lester that
respondent and the mother were arguing constantly. During the time
between the twins' birth and respondent's father's visit to DSS,
the police were called to the home eleven (11) times, usually to
deal with disturbances created either by respondent or the mother.
Respondent's father also complained that frequently either he or
his wife would have to get up in the middle of the night to care
for the twins because respondent and the mother refused to respond
to the twins' crying. Respondent's father informed Lester that he
planned to ask the mother to leave the home. Lester visited the home on or about 14 November 2002. He
attempted to speak to respondent about the neglect report and about
respondent's plans for caring for the twins if the mother left the
home, but respondent refused to speak with Lester.
The petition alleging neglect was filed on 27 November 2002.
DSS was awarded non-secure custody of the twins on the same date
and placed the twins with respondent's parents. The mother moved
out of the home sometime near Thanksgiving Day of 2002. After a
home study was conducted and discussions were held with the twins'
pediatrician, the twins were removed from respondent's parents'
home on 21 February 2003.
On 7 April 2003, the trial court issued an order adjudicating
the twins neglected and dependent. The trial court's dispositional
order, entered on 24 April 2003, concluded that reunification with
respondent was the permanent plan, but continued custody with DSS.
Respondent appeals from these orders.
Respondent argues: (1) that the trial court erred in
concluding that the twins were neglected as key findings of fact
were not supported by the evidence; (2) that the trial court erred
in concluding that the twins were neglected because the trial court
failed to make a finding regarding their physical, mental or
emotional impairment or risk of such impairment; and (3) that the
findings of fact do not support the conclusion that the twins were
neglected. We note that respondent does not contest the separate
and independent conclusion that the twins were dependent juveniles
within the meaning of N.C. Gen. Stat. § 7B-101(9). Allegations of neglect must be proven by clear and convincing
evidence. N.C. Gen. Stat. § 7B-805 (2003). “A proper review of a
trial court's finding of neglect entails a determination of (1)
whether the findings of fact are supported by 'clear and convincing
evidence,' and (2) whether the legal conclusions are supported by
the findings of fact.” In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365 (2000) (internal citation omitted). “In a non-jury
neglect adjudication, the trial court's findings of fact supported
by clear and convincing competent evidence are deemed conclusive,
even where some evidence supports contrary findings.” In re Helms,
127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). “Our review
of a trial court's conclusions of law is limited to whether they
are supported by the findings of fact.” Id.
The trial court made the following relevant findings of fact
in regard to the respondent:
5. [Respondent's father], without prompting
and prior to being informed about an
investigation by the Department of Social
Services into the care of the juveniles, went
to the Department of Social Services on his
own accord and reported that, among other
things:
. . . .
c. Both Respondent parents allowed
the juveniles to cry for extended
periods of time without responding
to the juveniles, requiring him to
get out of bed and put on his
prosthetic leg and go into the room
to get the attention of the
Respondent parents, and he waited
for extended times until one or the
other of the parents attended to the
child.
d. The Respondent parents failed to
properly feed the juvenile [T.H.] on
a regular basis, and from time to
time he himself had to feed the
child in order to see that she had
proper nutrition.
. . . .
7. The Respondent father has been often
absent and unavailable for providing care for
the juveniles, and when he has been present he
has demonstrated an argumentative temperament
which prevents him from providing adequate
care for the juveniles.
8. The Respondent father has refused to
disclose his plan of action for care of the
juveniles on numerous occasions, preventing
appropriate evaluation of the adequacy of his
plan for the care of the juveniles.
9. Further, the Respondent father has
continually allowed the juveniles to be in
circumstances where the care provided to the
juveniles is inadequate and the housing is not
consistently clean and safe.
10. The Respondent father has demonstrated
repeated and consistent displays of temper and
incidents of rage, even on several occasions
in the presence of law enforcement officers.
11. Law enforcement officers are repeatedly
called to the residence of the Respondent
parents, as often as once or twice a month,
regarding noisy arguments and disputes
involving the Respondent parents.
12. Even in the presence of law enforcement
officers, on several different occasions the
Respondent father started toward the
Respondent mother in a threatening manner so
that he had to be restrained by the law
enforcement officers, although he was never
observed actually striking the Respondent
mother and never arrested for domestic
violence on these occasions.
13. One law enforcement officer identified
multiple occasions where he identified dog
feces inside the residence where the juvenilesresided with the Respondent parents, including
in the kitchen, and he could not determine the
length of time the feces had been there.
14. The residence where the Respondent
parents lived with the juveniles was a small
residence and bugs were identified crawling
around the stove and the juveniless' [sic]
bottles.
15. The juveniles are of tender age, under
the age of one and are thus unable to take any
steps to care for themselves or provide for
their own nutritious [sic], safety or health.
16. The juveniles were born prematurely and
have fragile health which requires that they
take medication on a regular and consistent
schedule.
17. The Respondent parents failed to properly
maintain the medication of the juveniles,
allowing the medication to become lost and
allowing the medication to expire without
replacement.
18. Even though the juveniles have problems
with breathing, the Respondent parents have
allowed smoking in the residence and heating
the home with kerosene heaters, putting the
health and safety of the juveniles at further
risk.
The court then concluded that the twins were neglected and
dependent as defined in N.C. Gen. Stat. § 7B-101.
Respondent specifically assigns error to findings of fact
numbers 5d, 8, 9, 10, 11, 14, 17 and 18. After a thorough review
of the record in this case, we find that clear and convincing
evidence was presented that supports these findings of fact. The
findings are supported primarily through the testimony of
respondent's father, the social workers involved in the case and an
officer of the Kannapolis Police Department, in addition to therecords maintained by DSS and the call log of the Kannapolis Police
Department. Respondent's assignment of error fails.
The respondent also argues that the conclusion of neglect was
improper because the trial court did not make findings that the
twins suffered or were at substantial risk to suffer a “physical,
mental or emotional impairment.” In re Safriet, 112 N.C. App. 747,
436 S.E.2d 898 (1993). In order to adjudicate a juvenile
neglected, our courts have additionally “required that there be
some physical, mental, or emotional impairment of the juvenile or
a substantial risk of such impairment as a consequence of the
failure to provide 'proper care, supervision, or discipline.'” Id.
at 752, 436 S.E.2d at 901-02; see also In re Stumbo, 357 N.C. 279,
283, 582 S.E.2d 255, 258 (2003). This requirement was met by
finding that the twins would be left crying for extended periods,
one of the twins was not fed properly, the twins had not properly
received their medication and they lived in unsanitary conditions,
all of which showed that the twins physical, mental or emotional
well-being was impaired or at substantial risk of being impaired as
a result of the improper care. Respondent's argument fails.
Respondent next argues that the trial court erred in
concluding that the twins were neglected. A neglected juvenile is
“[a] juvenile who does not receive proper care, supervision, or
discipline from the juvenile's parent, guardian, custodian, or
caretaker; or who has been abandoned; or who is not provided
necessary medical care; or who is not provided necessary remedial
care; or who lives in an environment injurious to the juvenile'swelfare; or who has been placed for care or adoption in violation
of law.” N.C. Gen. Stat. § 7B-101(15) (2003). Here the findings
established that respondent had a volatile temper that resulted in
repeated calls to the police, that respondent failed to care for
the twins' nutritional and medical needs and that respondent
allowed the twins to remain in a home that was unsanitary and
unsafe. These findings certainly support a conclusion that the
twins did not receive proper care, supervision or discipline, that
they were not provided necessary medical care and that they lived
in an environment injurious to their welfare. Respondent's
assignment of error fails.
Based on our conclusion that the trial court's findings of
fact were supported by clear and convincing evidence and that there
was evidence to support the twins' impairment or risk thereof, we
conclude that the trial court did not err in concluding that the
twins were neglected juveniles.
Respondent failed to set out his remaining assignments of
error in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of those assignments of
error, they are deemed abandoned. N.C. R. App. P. 28(b)(6).
Affirmed.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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