In Re Wv

693 S.E.2d 383, 204 N.C. App. 290, 2010 N.C. App. LEXIS 949
CourtCourt of Appeals of North Carolina
DecidedJune 1, 2010
DocketCOA09-1568
StatusPublished
Cited by21 cases

This text of 693 S.E.2d 383 (In Re Wv) 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 Wv, 693 S.E.2d 383, 204 N.C. App. 290, 2010 N.C. App. LEXIS 949 (N.C. Ct. App. 2010).

Opinion

693 S.E.2d 383 (2010)

In the Matter of W.V.

No. COA09-1568.

Court of Appeals of North Carolina.

June 1, 2010.

*385 J. Suzanne Smith, Asheville, for petitioner-appellee.

M. Carridy Bender, Asheville, for guardian ad litem.

Robert W. Ewing, Clemmons, for respondent-appellant.

BRYANT, Judge.

Petitioner Buncombe County Department of Social Services filed a juvenile petition on 6 April 2009 alleging that W.V.[1] (hereinafter referred to as "child") is neglected in that he does not receive proper care, supervision, or discipline from his parents and lives in an environment injurious to his welfare. The child's mother stipulated to the petition's allegations and to adjudication of the child as neglected. Respondent refused to stipulate to the allegations and requested a trial. By order filed 15 September 2009, the Buncombe County Superior Court adjudicated the child neglected and placed him in the home of his mother. Respondent appeals. As discussed below, we affirm in part, vacate in part, and remand.

Facts

Respondent has not contested the court's findings of fact which are therefore deemed binding. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These findings show the following: The child's mother and respondent are not married. On 12 September 2008, petitioner received a report that the Buncombe County Sheriff's Department found a marijuana plant and drug paraphernalia in the residence shared by respondent, the child, and the child's mother. In response to the report, a social worker visited the family at home. Respondent reported that he smokes marijuana regularly but outside of the house. He also acknowledged that he has a marijuana plant growing in the living room window but felt it was safe from the child's access because it was protected by a baby gate. The social worker noted that respondent did most of the talking and prevented the mother from responding to questions. When the social worker asked to speak to the mother alone, the maternal great-grandmother positioned herself out of respondent's line of sight and made a choking gesture. The social worker waited for respondent to return to work and spoke privately with the mother, who told her that she did not agree with having the marijuana plant in the home. The social worker also subsequently spoke to respondent's ex-wife, who reported a long history of domestic violence with respondent and that she had ended the marriage because of it.

On 13 October 2008, the mother reported to the social worker that approximately two weeks earlier she told respondent that she wanted to end their relationship and respondent ripped off her clothes and ripped the telephone off the wall. The mother also related that respondent had used the child as a shield as he pushed her repeatedly. She described another incident in which respondent choked her to unconsciousness while she was pregnant with the child. After meeting with the social worker, the mother obtained a domestic violence protective order and moved with the child to a new residence separate from respondent.

On 16 December 2008, a program manager for petitioner spoke to respondent by telephone. During this conversation respondent became verbally abusive, calling the program manager a "bitch," and telling the program manager that she and all of the women at the department were stupid. On 29 December 2008, a social worker spoke to respondent after a supervised visit with the child about completing a case plan and attending domestic violence classes. Respondent refused to sign a case plan or attend any classes and accused DSS of being full of man-haters biased against him because of the prior domestic abuse involving his ex-wife.

Based upon these findings, the court adjudicated the child neglected and directed the child be placed with his mother. The court also ordered respondent to obtain stable employment, to complete a domestic violence education program, to complete a substance abuse assessment and follow all recommendations, to keep two appointments per month with the social worker, to have supervised visitation with the child, to submit to DNA *386 testing to verify paternity of the child, to attend all child and family team meetings, and to pay child support to the mother in the amount of $100 per month.

Respondent makes six arguments on appeal: (I) the findings of fact did not support the conclusion that the child was neglected under N.C. Gen.Stat. § 7B-101(15); (II) the findings were insufficient to support the visitation order; (III) the visitation order violates the requirements of N.C. Gen.Stat. § 7B-905(c); (IV) the trial court lacked subject matter jurisdiction to order respondent to pay child support; (V) the findings of fact were insufficient to support the conclusion that respondent pay child support; and (VI) the trial court lacked statutory authority to order respondent to obtain and maintain stable employment. As discussed herein, we affirm in part, vacate in part, and remand.

Standard of Review

When this Court reviews an order in a juvenile abuse, neglect or dependency proceeding, we determine whether the trial court made proper findings of fact and conclusions of law in its adjudication and disposition orders. In re J.S., 182 N.C.App. 79, 86, 641 S.E.2d 395, 399 (2007). In so doing, we consider whether clear and convincing evidence in the record supports the findings and whether the findings support the trial court's conclusions. In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted). If there is evidence to support the trial court's findings of fact, they are deemed conclusive even though there may be evidence to support contrary findings. In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). We consider matters of statutory interpretation de novo. Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001), cert. denied, 535 U.S. 971, 122 S.Ct. 1438, 152 L.Ed.2d 381 (2002).

I

Respondent first argues the trial court's findings of fact do not support its conclusion of law that the child was neglected. We disagree.

By statutory definition, a neglected juvenile is one "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.G.S. § 7B-101(15) (2009). "[T]his 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). "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 per curiam on other grounds, 361 N.C.

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Bluebook (online)
693 S.E.2d 383, 204 N.C. App. 290, 2010 N.C. App. LEXIS 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wv-ncctapp-2010.