An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1388


Filed: 7 December 2004

IN THE MATTER OF:                 Cabarrus County
T.H and T.H.                    Nos. 02 J 217, 218


    Appeal by respondent from orders entered 7 April 2003 and 24 April 2003 by Judge William G. Hamby, Jr., in Cabarrus County District Court. Heard in the Court of Appeals 25 August 2004.

    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).
    Judges GEER and LEVINSON concur.
    Report per Rule 30(e).

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