Appeal by respondent-father from an order entered 24 April
2007 by Judge Mitchell L. McLean in Wilkes County District Court.
Heard in the Court of Appeals on 26 November 2007.
Paul W. Freeman, Jr., for Wilkes County Department of Social
David A. Perez for respondent-father appellant.
Tracie M. Jordan for Guardian ad Litem appellee.
Respondent-father appeals from an order declaring his son,
I.D.S., born 8 September 1992, neglected and granting to the Wilkes
County Department of Social Services (DSS) legal and physical
custody of the child. For the following reasons, we affirm.
Respondent-father and I.D.S.'s biological mother, Ms. B,
separated in 2000, after which point I.D.S. lived with his father.
DSS has been intermittently involved with this family since 2003,
when it found that respondent-father had been physically and
verbally abusive to I.D.S. and removed I.D.S. from respondent-
father's home. On 15 January 2004, Judge Gregory declared I.D.S. a
neglected juvenile, concluded that it was not in the child's best
interest to be returned to the home of either parent, and grantedphysical and legal custody of I.D.S. to DSS. Legal and physical
custody of I.D.S. was subsequently awarded to Ms. B in November of
2004; however, in December of 2005, she was convicted of Driving
While Impaired and was sentenced to 30 days in prison. At that
point, the trial court awarded full custody of I.D.S. to
On 17 November 2006, DSS filed its most recent petition
alleging that I.D.S. is a neglected juvenile. Hearings were held on
20 February 2007 and 19 March 2007. The evidence at the hearing
tended to show that on 18 October 2006, an incident arose at
I.D.S.'s school, during which I.D.S. and another student were
roughhousing and jumped on the back of the physical education
teacher. After the teacher directed I.D.S. to fill out a
Disciplinary Referral Form, I.D.S. became visibly shaken and told
the teacher that his father would beat [him] to death if he
received a disciplinary report. The teacher referred I.D.S. to the
school counselor, Donna Rollings.
Donna Rollings testified that during her conversation with
I.D.S., I.D.S. stated, I can't go home, my dad will hurt me. Did
you know he's hurt me before? I'm not going home, I'll run if I
have to. I.D.S. told Ms. Rollings that his father had previously
pushed him in the chest, causing him to fall backwards over a plow
or a tiller.
Social worker, Linda Brooks, subsequently met with I.D.S, and
I.D.S. told her that respondent-father sometimes became angry
without much reason and, in August, had punched I.D.S. in thestomach. Ms. Brooks began an investigation, and I.D.S. went to stay
with his mother. DSS was unable to find any physical evidence to
support I.D.S.'s October allegation and, on 9 November 2007, DSS
closed the case.
Nonetheless, I.D.S. refused to return to respondent-father's
home and threatened to run away. Assistant Principal Ramona Hemric
spoke to respondent-father several times over the phone to discuss
the situation. Ms. Hemric testified that when she spoke to
respondent-father, he was agitated, used profanity, and on at least
one occasion, hung up on her.
Eventually, respondent-father came to the school and met with
Ms. Hemric, Ms. B., and Ms. Brooks. When I.D.S. was brought into
the conference room where the meeting was taking place, I.D.S kept
his head down and would not make eye contact with his father.
Although respondent-father had not seen I.D.S. for three weeks,
respondent-father immediately reprimanded his son for having
written in marker on his hand another student's phone number and
for having an earring in his ear. Ms. Hemric described respondent-
father's behavior toward his son as being aggressive and
At the hearing, Ms. Hemric, Ms. Rollings, and Ms. Brooks
testified that they believed the child's fear of his father was
genuine. Ms. Brooks also testified that she believed respondent-
father had abused I.D.S. The trial court entered an adjudication and disposition order
on 24 April 2007. The trial court made the following pertinent
findings of fact:
7. On or about November 9, 2006, the
Department of Social Services received another
report that the child's father had come to the
school where the child was a student, had
become very belligerent and abusive, had been
threatening to school personnel, and that the
child was in fear for his safety. The child
expressed his feeling that his father would
beat him if he went home. The child
threatened to run away if he was made to
return to the father's home. On this occasion,
the father was verbally abusive to the child,
as well as school personnel.
8. It is apparent that the child is
genuinely afraid of his father.
9. Mr. S. was particularly abusive to
Donna Rollins [sic], the School Counselor, on
this occasion. During the October, 2006
incident, [I.D.S.] told Ms. Rollins, [sic] and
the Court so finds, that his father would kill
him by beating him to death; and that his
father had hurt him before.
Based on these findings, among others, the trial court
concluded that I.D.S. has been the subject of inappropriate
discipline by his father, has lived in an environment that is
injurious to his welfare, and is a neglected juvenile, as that term
is defined by N.C. Gen. Stat. § 7B-101 (2005). The trial court
ordered that legal and physical custody be placed with DSS, with
conditional placement of the child with his mother.
On appeal, respondent-father contends that: (1) aspects of
findings of fact numbers 7-11 are not supported by competent
evidence of record; and (2) the trial court erred in concludingthat I.D.S. is a neglected juvenile, as defined by N.C. Gen. Stat.
§ 7B-101(15). Respondent-father challenges findings of fact
numbers 10 and 11 on the basis that they are supported by
inadmissible hearsay statements; however, because respondent-father
failed to specifically object to these statements when they were
made, he waived his right to raise these issues on appeal, and we
need not address them. See N.C. R. App. P. 10(b)(1).
The role of this Court in reviewing an adjudication of neglect
and abuse is to determine (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)
I. Findings of Fact
Allegations of neglect must be proved by clear and convincing
evidence. N.C. Gen. Stat. § 7B-805 (2005). Clear and convincing
evidence 'is greater than the preponderance of the evidence
standard required in most civil cases.' It is defined as 'evidence
which should fully convince.' In re Smith
, 146 N.C. App. 302,
304, 552 S.E.2d 184, 186 (2001) (citations omitted). 'In a ...
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
, 177 N.C. App. 745, 748, 630 S.E.2d 33, 35 (2006) (citation
omitted). Respondent-father first asserts that the last line of finding
of fact number 7, that respondent-father was verbally abusive to
I.D.S. and school personnel, is not based on clear and convincing
evidence. We disagree.
Ms. Hemric, the assistant principal, testified that
respondent-father was very agitated during their phone
conversation, that he used profanity, and that he hung up on her.
Further, Ms. Hemric testified that during his exchange with I.D.S.
at the meeting, respondent-father's behavior--leaning on the table
and standing up at various points--was very aggressive. There is
evidence in the record that despite not seeing I.D.S. in three
weeks, respondent-father immediately scolded the child for
temporary markings of a phone number on the child's arm and that
throughout the meeting I.D.S. submissively kept his head down and
avoided eye contact with respondent-father. Finally, the evidence
shows that when respondent-father accidently bumped his own head
into the side of a door on the way out of the meeting, respondent-
father immediately turned back into the room and blamed I.D.S. for
his injury. We conclude that clear and convincing evidence
supports the trial court's finding that respondent-father was
verbally abusive to I.D.S. and school personnel.
Respondent-father next asserts that finding of fact number 8,
that I.D.S. is genuinely afraid of his father, is not supported by
competent evidence because I.D.S. did not testify at the hearing
and the trial court had no opportunity to assess I.D.S.'s
credibility. We disagree. Here, the trial court heard testimony from the assistant
principal, the school counselor, and the DSS social worker. The
assistant principal and DSS social worker observed respondent-
father and I.D.S. at the meeting. The school counselor and DSS
social worker spoke with I.D.S. All three opined that I.D.S. had
a genuine fear of respondent-father. Further, the social worker
opined that respondent had abused I.D.S.
We conclude that clear
and convincing evidence supports the trial court's finding that
I.D.S was genuinely afraid of his father.
Respondent-father next asserts that portions of finding of
fact number 9, specifically (1) that on 9 November 2006,
respondent-father was abusive to the school counselor, Donna
Rollings; and (2) that I.D.S. told Donna Rollings that respondent-
father would beat him to death, are not supported by competent
evidence. We agree.
First, Ms. Rollings testified at the hearing that she had no
conversation with respondent-father after October of 2006, and
there is no other evidence in the record that shows respondent-
father was abusive toward her in November of 2006. Next, although
Donna Rollings testified that I.D.S. told her that respondent-
father had hurt him before, the evidence in the record reveals that
I.D.S. told his teacher--not Donna Rollings--that respondent-father
would beat him to death. Thus, finding of fact number 9 is not
supported by competent evidence. However, given the sufficiency of
the other findings made by the court, as discussed below, weconclude that these misstatements by the trial court constitute
II. Legal Conclusions
Lastly, respondent-father contends that the trial court's
findings of fact do not support its conclusion that I.D.S. is a
neglected juvenile. Respondent-father argues that past findings of
abuse do not support its conclusion that I.D.S. is currently a
neglected juvenile. However, a prior adjudication of neglect may
be admitted and considered by the trial court in ruling upon a
later petition to terminate parental rights on the ground of
neglect. In re Ballard
, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231
(1984)(reasoning that evidence of changed circumstances must be
considered in light of any history of neglect by the party and the
probability of repetition of past behavior by the parents). After
reviewing the trial court's findings of facts,
(See footnote 1)
we cannot agree
N.C. Gen. Stat. § 7B-101 defines a neglected juvenile as
[a] juvenile who does not receive proper care, supervision, or
discipline from the juvenile's parent, guardian, custodian, or
caretaker; . . . or who lives in an environment injurious to the
juvenile's welfare[.] N.C. Gen. Stat. § 7B-101(15). This Court
has further required that in order to adjudicate a juvenile
neglected, there be some physical, mental, or emotional impairmentof 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) (citation omitted). It is well-established that
the trial court need not wait for actual harm to occur to the child
if there is a substantial risk of harm to the child in the home.
In re T.S., III, & S.M.
, 178 N.C. App. 110, 113, 631 S.E.2d 19, 22,
disc. review denied
, 360 N.C. 647, 637 S.E.2d 218 (2006), aff'd
361 N.C. 231, 641 S.E.2d 302 (2007).
Here, the trial court has found: (1) that respondent-father
has anger management and alcohol problems, as well as a history of
violence toward I.D.S., which includes a 2001 conviction of
misdemeanor child abuse; (2) that in November of 2006, respondent-
father was verbally abusive to school personnel and I.D.S.; (3)
that respondent-father has pushed [I.D.S.] in the chest and
knocked him over various things; and (4) I.D.S. is genuinely
afraid of his father and has threatened to run away if he is made
to return to his father's home. The trial court's findings as to
respondent-father's history of abusive behavior toward and recent
pushing of I.D.S. combined with respondent-father's aggressive
behavior during the meeting with school personnel sufficiently
support the trial court's conclusion that I.D.S. is a neglected
juvenile, as defined by N.C. Gen. Stat. § 7B-101. Accordingly, this
assignment of error is overruled.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).