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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA07-119


Filed: 5 June 2007

IN THE MATTER OF:                    Buncombe County
C.Q.                                No. 05 J 488

    Appeal by respondent mother from order entered 16 October 2006 by Judge Gary S. Cash in Buncombe County District Court. Heard in the Court of Appeals 14 May 2007.

    Matthew J. Middleton for petitioner-appellee Buncombe County Department of Social Services.

    Michael E. Casterline for respondent-appellant mother.

    Michael N. Tousey for Guardian ad Litem-appellee.

    No brief for respondent-appellee father.

    Stroud, Judge.

    Erin Q. (respondent) appeals from an order adjudicating her minor child, C.Q., to be a neglected child. For the reasons stated below, we reverse.
    On 15 November 2005, Buncombe County Department of Social Services (DSS) received a request for an assist regarding the child. The assist requested that DSS interview respondent and respondent's mother (Charlayne) regarding an incident in which the child received a black eye while in Charlayne's care. Upon receiving the request for an assist, DSS took emergency custody of respondent's younger sister on 16 November 2005 because ofunresolved risk issues that DSS had with Charlayne dating back to a 2002 incident between Charlayne and respondent.
    DSS allowed respondent to attend a staffing regarding its taking of emergency custody of her younger sister. When asked where her child was, respondent indicated at first that she was with a friend. Eventually respondent admitted her child was with Charlayne. According to a social worker, Erin Renee Hall, respondent acknowledged during the meeting with them that Charlayne had held a gun to her head during the 2002 incident. Respondent related that Charlayne had apologized and that she had forgiven her mother. After Ms. Hall discussed with respondent that DSS would have to place her child in a kinship placement, respondent refused to produce her child. DSS located the child on 10 December 2005 and took her into emergency custody. On 12 December 2005, DSS filed a juvenile petition which alleged that C.Q. was neglected. Pursuant to a non-secure custody order entered 10 January 2006, DSS put the child in a kinship placement.
    At the adjudication and dispositional hearing conducted on the 24th and 25th of August 2006, John Martin Moss, a social worker and DSS case manager, testified that DSS had investigated Charlayne in 2002 and had substantiated physical abuse and neglect involving respondent. Mr. Moss testified that he received the case involving Charlayne on 8 October 2002 after it was substantiated for physical abuse and neglect. Respondent disclosed to him that Charlayne had held a gun to her head and threatened her when she was seventeen years old. Charlayne was subsequently convicted in district courtof assault by pointing a gun, and the district court's order stated that Charlayne could have only supervised contact with minors. Respondent and her younger brother and sister were put in separate kinship placements afterwards. Charlayne gave notice of appeal to superior court, then she took her two youngest children from the kinship placements and left the jurisdiction without the consent of DSS. Mr. Moss attempted to locate them for several months, but he closed out the case when respondent became eighteen years of age on 23 January 2003.
    Respondent's brother testified about the 2002 incident between respondent and his mother Charlayne. He and a friend had gone into his room, closed the door and listened to music. While he could hear the argument, he did not see his mother threaten respondent or hold a gun on her. Although he gave a written statement at the time in which he claimed to have seen his mother hold a gun to respondent's head, he explained that he did so because he wanted to live with his father and because respondent did not want to remain in the house. His friend gave a written statement at the time and also testified at the adjudication and dispositional hearing about what he had seen about five or six years earlier. He was in respondent's bedroom on the date in question with respondent, her brother and her sister. He testified that Charlayne entered the bedroom, pointed a gun at respondent, and threatened to kill her. He left the bedroom within a minute with respondent's brother and sister, but spent the remainder of the night in the home. The friend also related that respondent and her brother had visited himabout six months prior to the adjudication and dispositional hearing and that respondent told him that she had retracted her statement and suggested that he do the same.
    Charlayne during her testimony admitted yelling at respondent that evening, but she denied pointing a gun at respondent or threatening her life. She testified that while her son's friend was present in her home that evening, both he and her son were in a bedroom on the other side of the house “blaring their music” during the incident with respondent. Charlayne stated that respondent's younger sister was present in the bedroom during the incident, but was in bed at the time.
    Charlayne stated that although she left the area following her conviction in district court, she returned to court for three consecutive weeks for her assault case to be heard in superior court. After respondent gave birth, Charlayne did provide childcare. Charlayne moved back to Buncombe County in November of 2005, but her case had not been called in superior court as of the date of respondent's hearing. While Charlayne admitted owning two guns in 2002, she testified that she could no longer own guns.
    Respondent's husband (the child's father) testified that he, respondent and the child lived with Charlayne for a time in South Carolina, and Charlayne assisted them with the child. He never saw Charlayne do anything inappropriate with the child and never had any concerns about the child's safety when she was with Charlayne. He never saw Charlayne act violently toward anyone.    Respondent testified about the 2002 incident. After getting off work early one evening in September of 2002, respondent spent the evening with friends at their house. She fell asleep while there and did not awaken until 1:00 p.m. the next day. Respondent eventually returned home. Her brother and his friend ran to her brother's bedroom when Charlayne came home. Respondent testified that Charlayne was ranting and raving about filing a missing person report and a stolen car report. Charlayne said she was going to take away respondent's car, driver's license, cell phone, pager and CDs.
    Respondent called DSS the next day and told them that Charlayne had pulled a gun on her and threatened to kill her. She later testified in district court that Charlayne had pointed a gun at her. After the birth of her child, respondent moved in with Charlayne and allowed Charlayne to take care of her child. Respondent testified that she had not ever seen Charlayne do anything inappropriate or violent with her child, and she indicated that she did not believe that Charlayne constituted a risk to her child.
    After finding that the friend's testimony about the 2002 incident was “the least biased and very credible[,]” the trial court made the following findings:
        19. [T]hat approximately four years ago Charlayne [] did point a gun at [respondent], the mother of the minor child, while in a rage and threatened to end her (the respondent mother['s]) life. The respondent mother, on several occasions prior to the filing of this juvenile petition, admitted that this act did occur. However, she has subsequently denied,and continues to deny, that Charlayne [] threatened her life with a gun. The respondent mother has attempted to get an eyewitness [her brother's friend] to change his story and to deny that the assault occurred. The minor child has been in the care and control of Charlayne [], and at times, Charlayne [] has provided sole care for the minor child. At this time, the respondent mother has denied that the assault occurred, and continues to deny that Charlayne [] threatened her life with a gun. The respondent mother's denial, in combination with the assault constitutes an environment injurious to the minor child.

        20. The court finds by clear, cogent, and convincing evidence the minor child is a neglected child pursuant to N.C.G.S. § 7B- 101(15) in that the juvenile did not receive proper care or supervision from the respondent mother and lived in an environment injurious to her welfare due to the respondent mother leaving the minor child in the care of the maternal grandmother, after the maternal grandmother pointed a gun at the respondent mother and threatened to end her life, due to the respondent mother's denial that said act occurred, and due to the respondent mother not cooperating with the Department, as specified above.

    After concluding that it was in the child's best interest that her custody remain with DSS and “[t]hat the best plan to achieve a safe permanent home for the minor child within a reasonable period of time is reunification[,]” the trial court ordered that the child's custody would remain with DSS with placement in the discretion of DSS. From the trial court's adjudication and dispositional order, respondent appeals.
    Respondent contends the trial court's findings of fact do not support its conclusion that the child was neglected. She argues that the bases for the trial court's conclusion - the 2002 assaultby Charlayne upon respondent, respondent's current denial that the 2002 incident occurred, respondent's having left the child in Charlayne's care, and respondent's failure to cooperate with DSS - are insufficient to support a conclusion that the child is neglected. We agree.
    A “neglected juvenile” is “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent . . . or who lives in an environment injurious to the juvenile's welfare . . . .” N.C. Gen. Stat. § 7B-101(15) (2005). N.C. Gen. Stat. § 7B-101(15) is
        silent on whether the juvenile, to be neglected, must sustain some injury as a consequence of the failure to provide 'proper care, supervision, or discipline[,]' [but] this Court has consistently 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.'

In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993); see also In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003).
    The trial court here made no finding that the child sustained injury or impairment as a consequence of the failure to provide proper care, supervision, or discipline. The trial court's findings as to the 2002 assault, respondent's lack of veracity, her lack of cooperation with DSS, and her leaving the child in Charlayne's care do not rise to the level of a substantial risk of physical, mental, or emotional impairment. The trial court made no findings to suggest that Charlayne had provided inappropriate carewhen the child was left in her care. While Charlayne's assault four years earlier upon the then seventeen-year-old respondent demonstrated appallingly poor judgment and lack of self-control, it appears from the lack of findings or testimony of other inappropriate conduct either prior to or after the 2002 assault that the incident was an aberration rather than the norm. After reviewing the record, we conclude the trial court's findings of fact do not support its conclusion of law that respondent was neglected. The trial court's adjudication judgment and dispositional order is therefore reversed and remanded.
    Reversed and remanded.
    Judges JACKSON and STEPHENS concur.
    Report per Rule 30(e).

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