In re C.L.D.

• Court: Court of Appeals of North Carolina
• Decided: February 4, 2014
• Docket: 13-941
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-941 NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

IN THE MATTER OF:

C.L.D., C.M.D. New Hanover County Nos. 13 JA 48-49

Appeal by respondent-mother from order entered 31 May 2013

by Judge Melinda H. Crouch in New Hanover County District Court.

Heard in the Court of Appeals 7 January 2014.

Regina Floyd-Davis, for New Hanover County Department of Social Services, petitioner-appellee.

Parker, Poe, Adams & Bernstein, L.L.P., by Matthew P. Weiner, for guardian ad litem.

Rebekah W. Davis for respondent-appellant.

McCULLOUGH, Judge.

Respondent-mother appeals from an order adjudicating her

two sons, Clay and Casey,1 as neglected juveniles.

On 1 March 2013, the New Hanover County Department of

Social Services (“DSS”) filed a petition alleging that Clay,

then eight months old, and Casey, then six years old, were

1 Stipulated pseudonyms to protect the children’s identities and promote ease of reading. -2- neglected juveniles. Two months later the court conducted a

hearing upon the petition and filed an order on 31 May 2013

adjudicating them as neglected.

A juvenile is neglected if he is not receiving proper care,

supervision, or discipline from a parent or guardian; is not

being provided necessary medical or remedial care; or is

residing in an environment injurious to the juvenile’s welfare.

N.C. Gen. Stat. § 7B-101(15) (2011). In reviewing an order

adjudicating a child as neglected, this Court determines (1)

whether the findings of fact are supported by clear and

convincing evidence, and (2) whether the conclusions of law are

supported by the findings of fact. In re Gleisner, 141 N.C.

App. 475, 480, 539 S.E.2d 362, 365 (2000). The determination of

whether a child is neglected requires the application of legal

principles to a set of facts and is therefore a conclusion of

law. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-

76 (1997). Our review of a conclusion of law is de novo. In re

D.H., 177 N.C. App. 700, 703, 629 S.E.2d 920, 922 (2006). Under

a de novo standard of review, we can consider a conclusion of

law anew and freely substitute our judgment for that of the

trial court. In re A.K.D., ___ N.C. App. ___, ___, 745 S.E.2d

7, 8 (2013). -3- Respondent-mother contends the evidence and findings of

fact do not support the court’s conclusion of law that the

children are neglected juveniles. She cites evidence and

findings to support her assertion that the children are

receiving proper care, supervision and discipline, obtaining

proper medical or remedial care, and residing in a safe

environment at the time of the filing of the petition. She

argues that the children had suffered no harm and that the

parents had learned how to settle their disagreements without

resorting to domestic violence.

Findings of fact are binding “where there is some evidence

to support those findings, even though the evidence might

sustain findings to the contrary.” In re Montgomery, 311 N.C.

101, 110-11, 316 S.E.2d 246, 252-53 (1984). Unchallenged

findings of fact are also binding on appeal. Koufman v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

The court’s findings of fact show that the boys’ parents

have “an extensive history of unaddressed domestic violence

issues” dating back to 2007 while Casey was an infant. Over the

course of several years, DSS received at least six Child

Protective Services reports concerning verbal and physical

altercations between respondent-mother and the boys’ father. In -4- 2009, Casey was placed in the custody of his paternal

grandfather due to the domestic violence between his parents.

On 7 April 2010, respondent-mother reported to the police that

the children’s father had attempted to strangle her while he was

intoxicated. The father subsequently pled guilty to assault on

a female.

DSS provided referrals to alcohol abuse treatment services

and domestic violence offender/empowerment services.

Respondent-mother completed “Open Gate” an individual counseling

and both parents participated in couples counseling in 2010.

The counseling proved ineffective, as on 18 January 2011 DSS

received a report alleging continuation of domestic violence in

the household. On 24 January 2011, law enforcement officers

responded to a 911 call from the parents’ household related to

domestic violence. On 19 July 2012, law enforcement officers

responded to another dispatch to the residence of respondent-

mother. Upon arriving, the law enforcement officers heard

yelling and screaming. The officers entered and found the

residence in disarray. They observed a table was flipped over

and shattered glass was on the floor. The children’s father had

cuts and scratches about his face and arms. -5- Despite all of these reports and calls to law enforcement

officers, the parents continued to deny the existence of a

domestic violence problem. The children’s father has never

enrolled in the Domestic Violence Offender’s Program. He has

continued to abuse alcohol, prompting respondent-mother to

contact DSS on 9 January 2013 regarding her concerns about his

drinking and to seek substance abuse treatment for him.

Respondent-mother does not dispute that the incidents of

domestic violence occurred but she argues that her testimony

shows one or more of the incidents described as happening in

2010 actually happened in 2009 while Casey was in the kinship

placement. She also testified that the charge of assault on a

female to which the father pled guilty arose out of an incident

in 2009, not the attempted strangulation incident which occurred

in April of 2010 and resulted in no criminal charge against the

father. She also submits that although law enforcement was

called to the residence, there were no physical altercations,

only verbal arguments, after 2010.

Other evidence, however, contradicts respondent-mother’s

minimizing of the domestic discord and supports the court’s

findings. Social Worker Murray, who worked on the case from 18

January 2011 until 9 March 2011, testified that she explained to -6- the father that verbal arguments constitute domestic violence,

and that exposure to verbal arguments is threatening and

frightful to a child regardless of whether the parents resort to

physical violence. Regardless, the evidence shows the parents

did engage in physical violence. The parents do not dispute

that when the police came to the residence in July 2012,

respondent-mother had turned over a table on the father. Social

Worker Best, who took over the case in August 2012 shortly after

that episode, testified that on more than one occasion, the

father had been charged with assault on a female for assaulting

respondent-mother. Social Worker Best also testified that the

parents refused to acknowledge the existence of a domestic

violence problem and to seek help for it and that the father

refused to enroll in a substance abuse treatment program. The

father did not enroll in any kind of substance abuse treatment

program until after this petition was filed. Whether a certain

incident happened in 2009 instead of 2010 is insignificant as

the key fact is that the incident of domestic violence happened.

We conclude the evidence supports the court’s ultimate

finding of fact that respondents are unable to provide the

children with a safe environment, and that these findings of -7- fact support the court’s conclusion of law that the juveniles

are neglected. We affirm the order.

Affirmed.

Judges MCGEE and DILLON concur.

Report per Rule 30(e).