In Re As

640 S.E.2d 817
CourtCourt of Appeals of North Carolina
DecidedFebruary 20, 2007
DocketCOA06-1028
StatusPublished

This text of 640 S.E.2d 817 (In Re As) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re As, 640 S.E.2d 817 (N.C. Ct. App. 2007).

Opinion

640 S.E.2d 817 (2007)

In the Matter of A.S. and M.J.W., Minor Children.

No. COA06-1028.

Court of Appeals of North Carolina.

February 20, 2007.

Michael E. Casterline, Asheville, for respondent-father appellant.

Michael N. Tousey, Asheville, for Guardian ad Litem appellee.

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

McCULLOUGH, Judge.

Respondent-father appeals from two district court adjudication judgments and dispositional orders that he abused and neglected M.W. and neglected A.S. We affirm in part and remand in part.

FACTS

Respondent-father ("respondent") is the biological father of A.S. and M.W.K.M. is the mother of A.S. and C.W. is the mother of M.W. Respondent and K.M. lived together with their child A.S. Pursuant to an agreement reached in September 2005 between respondent and C.W., M.W. stayed in the home of respondent and K.M. for a week at a time and then would live with C.W. for a week at a time.

On 7 February 2006, K.M. was at home with A.S. and M.W. She had given M.W. a bath and the child was fussy. K.M. became frustrated and pushed M.W. to the ground. The back of her head hit the floor and she became unresponsive. An ambulance was called and M.W. was transported to the emergency room for treatment of her head injuries. Detective Rickman of the Buncombe County Sheriff's Department interviewed K.M., and based on her admissions he placed her under arrest.

K.M. admitted to Social Worker Jo Ann Amato and Detective Rickman that on five previous occasions she had hurt M.W. by placing her down forcefully in her crib. She stated she knew she had hurt M.W. because the child winced and began to cry.

During the investigation, respondent admitted that K.M. had thrown objects such as *819 a remote control and an alarm clock at him during the last several months in their home. On one occasion, respondent called law enforcement to their home because he felt that K.M. posed a danger to herself and to others. Law enforcement recommended that he go to the magistrate and have her involuntarily committed. He was unsuccessful. On another occasion, respondent admitted that he had to restrain K.M. after she became extremely agitated. Respondent was aware that K.M. was prescribed antidepressant medication for depression and knew that she had not been taking the medication consistently as prescribed.

On 24 February 2006, the Buncombe County Department of Social Services ("DSS") filed two verified juvenile petitions alleging that A.S. was a neglected child and that M.W. was an abused and neglected child. The matter was heard on 26 April 2006 and 28 April 2006. The trial court found that A.S. was a neglected child pursuant to N.C. Gen.Stat. § 7B-101(15) (2005) and that M.W. was an abused and neglected child pursuant to N.C. Gen.Stat. § 7B-101(1), (15).

Respondent appeals.

I.

Respondent contends the trial court erred in concluding that A.S. was neglected and that M.W. was abused and neglected. We agree in part and disagree in part.

Respondent did not assign error to any findings of fact by the trial court, so the findings are presumed 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 trial court's `conclusions of law are reviewable de novo on appeal.'" In re J.S.L., ___ N.C.App. ___, ___, 628 S.E.2d 387, 389 (2006) (citation omitted). We must determine whether the conclusions of law are supported by the findings of fact. In re J.G.B., ___ N.C.App. ___, ___, 628 S.E.2d 450, 454 (2006).

We will first discuss the issue of whether the trial court correctly concluded that respondent neglected both A.S. and M.W. Then, we will discuss whether the trial court correctly concluded that respondent abused M.W.

A. Neglect

The North Carolina General Statutes define 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 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's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen.Stat. § 7B-101(15).

The trial court concluded that respondent neglected both M.W. and A.S. because the minor children did not receive proper care or supervision and they lived in an environment injurious to their welfare. We believe the findings of fact support the trial court's conclusion. With regard to both M.W. and A.S., the trial court found that respondent felt that K.M.'s behavior had made her a danger to herself and to others. Respondent admitted that K.M. had thrown household objects at him. Respondent even called law enforcement because of K.M.'s violent, erratic behaviors. Therefore, M.W. and A.S. were living in an environment injurious to their welfare. Accordingly, we disagree with respondent's contention regarding neglect.

B. Abuse

The North Carolina General Statutes define an abused juvenile as:

[a]ny juvenile less than 18 years of age whose parent . . . or caretaker:
a. inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means; [or]
b. creates or allows to be created a substantial risk of serious physical injury *820 to the juvenile by other than accidental means[.]

N.C. Gen.Stat. § 7B-101(1)(a), (b).

In the written adjudication order, the trial court included language that could be interpreted that respondent abused M.W. However, after reviewing the trial court's transcript, it appears that the language was mistakenly included in the written adjudication order. In addition, DSS stated in its brief that the "trial court did not find that the respondent . . . abused M.W. and such a finding of abuse was mistakenly included by the Department's attorney in the draft judgment." We agree and therefore remand this case to the trial court to amend the order.

II.

Respondent next contends that the trial court erred in removing custody of A.S. from respondent and in denying unsupervised visits with M.W. on the basis that there was no evidence of neglect or abuse by respondent. We disagree.

After the incident on 7 February 2006, both of respondent's children were placed out of his home. A.S. was placed in a kinship placement with respondent's family. Respondent's visitation with A.S. was not limited. M.W. was placed with her mother, C.W., and respondent's visitation with M.W. was limited to two supervised visits per week.

The North Carolina General Statutes state:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Cogdill
528 S.E.2d 600 (Court of Appeals of North Carolina, 2000)
Koufman v. Koufman
408 S.E.2d 729 (Supreme Court of North Carolina, 1991)
Matter of Montgomery
316 S.E.2d 246 (Supreme Court of North Carolina, 1984)
In re J.A.G.
617 S.E.2d 325 (Court of Appeals of North Carolina, 2005)
In re J.S.L.
628 S.E.2d 387 (Court of Appeals of North Carolina, 2006)
In re J.G.B.
628 S.E.2d 450 (Court of Appeals of North Carolina, 2006)
In re A.S.
640 S.E.2d 817 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
640 S.E.2d 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-as-ncctapp-2007.