Appeal by respondent from order entered 11 June 2007 by Judge
Albert A. Corbett, Jr., in Harnett County District Court. Heard in
the Court of Appeals 26 November 2007.
E. Marshall Woodall and Duncan B. McCormick, for petitioner-
Pamela Newell Williams for Guardian ad Litem.
Betsy J. Wolfenden, for respondent-appellant.
Respondent-father D.B., Sr.,
(See footnote 1)
appeals from an order
adjudicating his eight-year-old son, D.B., Jr., a neglected
juvenile and placing the child in the legal custody of the Harnett
County Department of Social Services (DSS). For the reasons
stated we affirm.
On 16 March 2007, DSS filed a petition asserting that D.B.,
Jr., was a neglected juvenile within the meaning of N.C. Gen. Stat.
§ 7B-101(15) (2005). The petition stated that respondent-mother
had been convicted of violating the state's compulsory schoolattendance law in June 2006, after failing to send the minor child
to school regularly during the 2005-06 school year. N.C. Gen.
Stat. § 115C-380 (2005). DSS further alleged that respondent-
mother was incarcerated on 16 March 2007 for violating her
probation, based upon the minor child's numerous unexcused absences
and tardies during the 2006-07 school year. The petition listed
respondent-mother's address in Spring Lake, North Carolina, and
respondent-father's address in Charlotte, North Carolina. The
district court granted DSS nonsecure custody of the child and
authorized a placement in respondent-father's home. DSS placed the
child with his father and requested a home study by the Mecklenburg
County Department of Social Services (MCDSS). Respondent-father
enrolled the child in fourth grade at Lebanon Road Elementary
School in Charlotte.
After a hearing held 27 April 2007, the district court
adjudicated D.B., Jr., a neglected juvenile, finding that he had
lived in an environment injurious to his welfare and had been
denied proper care and supervision by his parents. N.C. Gen. Stat.
§ 7B-101(15) (2005). The court found that DSS had notified
respondent-father of both respondent-mother's failure to school the
minor child and reports of domestic violence, substance abuse, and
inappropriate discipline of the juvenile in respondent-mother's
home, which dated as far back as July 29, 2004[.] Although
respondent-father had enrolled the child in the Mecklenburg County
School System during the summer of 2006, respondent-mother refused
or failed to return the child to his father after an August 2006visitation. The court further found that respondent-father was
aware of the environment in which the juvenile was living while in
the care of the mother . . . [and] of the mother's failure to send
the juvenile to school during the school years of 2005-2006 and
2006-2007. The court concluded that the child was neglected due
to (1) his exposure to an environment injurious to his welfare
while in the care of his mother as a result of issues of domestic
violence with her boyfriend[,] and (2) the denial of proper care
and supervision by his parents when he was allowed to be absen[t]
from school . . . during the past two years and when he was allowed
to live in the home of the mother[.]
At disposition, the court found that respondent-father was
employed and shared an apartment with his girlfriend, who was also
employed and expecting their child. The court noted MCDSS' prior
approval of respondent-father as a temporary placement for the
child based on a kinship assessment, but found that the child's
best interest would be served by remaining in DSS custody pending
the completion of a full home study. The court awarded DSS legal
custody of the child, authorized his continued placement with
respondent-father, and ordered respondent-father to enter into a
Family Services Case Plan with DSS, to include counseling for the
On appeal, respondent-father challenges the court's finding
and conclusion that he neglected the minor child. He notes that
the petition filed by DSS raised only allegations regarding
respondent-mother's actions, and that he was sending the child toschool at the time of the adjudication hearing. While conceding
his awareness of respondent-mother's exposure of the child to an
injurious home environment and her failure to send the child
regularly to school during the 2005-06 and 2006-07 school years,
respondent-father argues that such 'awareness', without anything
more, is insufficient to support the trial court's conclusion that
[he] neglected [the child]. Respondent-father also takes
exception to the court's finding that he allowed the child to be
absent from school and to live with respondent-mother. Given the
mother's refusal to return the child to him in August of 2006, as
well as the concern he expressed to DSS and the school regarding
his son's circumstances, respondent-father insists he did not
engage in malfeasance or nonfeasance toward the child amounting
We review an adjudication of neglect under N.C. Gen. Stat. §
7B-807 (2005) to determine whether the district court's findings of
fact are supported by clear and convincing evidence, and whether
the court's findings of fact support its conclusions of law. In re
, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566 (2002)
(citing In re Gleisner
, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365
Findings of fact which are not challenged by a properly
briefed assignment of error are deemed to be supported by competent
evidence and are binding on appeal. Koufman v. Koufman
, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). The determination that a child
is neglected based upon a given set of facts is a conclusion of law
subject to de novo
review. In re J.S.L.
, 177 N.C. App. 151, 154,628 S.E.2d 387, 389 (2006); In re Helms
, 127 N.C. App. 505, 510,
491 S.E.2d 672, 675 (1997).
The Juvenile Code defines a neglected juvenile, in part, as
one 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) (2005). In assessing a
child's status as neglected, the determinative factors are the
circumstances and conditions surrounding the child, not the fault
or culpability of the parent. In re Montgomery
, 311 N.C. 101,
109, 316 S.E.2d 246, 252 (1984). Moreover, the district court must
determine whether the child was neglected at the time the juvenile
petition was filed, rather than at the time of the hearing. In re
, 179 N.C. App. 605, 609, 635 S.E.2d 11, 15 (2006)
question this Court must look at on review is whether the court
made the proper determination in making findings and conclusions as
to the status of the juvenile. In re B.M.
, __ N.C. App. __, __,
643 S.E.2d 644, 647 (2007).
We hold that the uncontested findings support the district
court's conclusion that D.B., Jr., was neglected within the meaning
of N.C. Gen. Stat. § 7B-101(15), in that he was not receiving
proper care and supervision from his parents and lived in an
environment injurious to his welfare. During the period relevant
to the adjudication, the minor child was denied regular schooling
for two consecutive school years and exposed to violence in the
home as a result of the custody arrangement between his parents.
Moreover, respondent-father concedes he was aware of theseconditions. This Court has held that a child who receives proper
care and supervision in modern times is provided a basic
education[,] and that a child who is denied schooling is neglected
within the meaning of the Juvenile Code. In re McMillan
, 30 N.C.
App. 235, 238, 226 S.E.2d 693, 695 (1976) (construing former N.C.
Gen. Stat. § 7A-278(4))
. Whatever distinction respondent-father
would draw between his awareness of the child's circumstances and
the finding that he allowed the circumstances to exist, we
believe that such awareness, over a period of years, was sufficient
to support the conclusion that both parents neglected the child.
Compare In re A.S.
, __ N.C. App. __, __, 640 S.E.2d 817, 819
(affirming the conclusion that the father had neglected his
children, where he was aware of the mother's violent, erratic
behaviors in the home, and had previously called law enforcement
to address her behavior), appeal dismissed
, 361 N.C. 427, 648
S.E.2d 203 (2007) with In re J.A.G.
, 172 N.C. App. 708, 715-16, 617
S.E.2d 325, 329 (2005) (reversing the conclusion that the mother
had neglected her child, where the underlying adjudication of
neglect arose from a single abusive act by the father outside the
mother's presence and there was no evidence presented indicating
respondent knew or reasonably should have known the father would
harm [the child]).
Respondent-father notes that the allegations in the petition
filed by DSS concerned only the acts of respondent-mother. As
discussed above, however, the focus of a juvenile neglect
proceeding is the child's status, not the respective culpability of
each named respondent. In re B.M.
, __ N.C. App. at __, 643 S.E.2dat 647. A juvenile petition need only allege the facts which
invoke jurisdiction over the juvenile. N.C. Gen. Stat. § 7B-402
(2005). Inasmuch as D.B., Jr., was living with respondent-mother
during the period at issue, his neglected status was properly
established by reference to the actions of his caretaker. To the
extent respondent-father assigns error to the Guardian ad Litem's
argument that he failed to initiate custody proceedings against
respondent-mother, we find nothing in the order to suggest that the
court based its adjudication on this argument. Accordingly, we
overrule this assignment of error.
The record on appeal includes additional assignments of error
which are not addressed by respondent-father in his brief to this
Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).