Macon County Department of Social Services v. Rholetter

592 S.E.2d 237, 162 N.C. App. 653, 2004 N.C. App. LEXIS 251
CourtCourt of Appeals of North Carolina
DecidedFebruary 17, 2004
DocketNo. COA02-1753
StatusPublished
Cited by26 cases

This text of 592 S.E.2d 237 (Macon County Department of Social Services v. Rholetter) 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
Macon County Department of Social Services v. Rholetter, 592 S.E.2d 237, 162 N.C. App. 653, 2004 N.C. App. LEXIS 251 (N.C. Ct. App. 2004).

Opinion

TIMMONS-GOODSON, Judge.

Respondent Bobby Rholetter (“respondent”) appeals the disposi-tional orders of the trial court awarding custody of two minor children to their biological mother, Sherry L. Heaton (“Heaton”). For the reasons stated herein, we affirm the orders of the trial court.

[656]*656The pertinent factual and procedural history of the instant appeal is as follows: On 16 May 2001, the Macon County Department of Social Services (“DSS”) filed a petition alleging that Elizabeth Rholetter (“Elizabeth”) and Gloria Rholetter (“Gloria”) (collectively as “the juveniles”) were abused and neglected by respondent and Shirley M. Rholetter (“Shirley”), respondent’s wife. An adjudication hearing was held wherein the trial court made the following pertinent findings of fact:

7. That on April 30, 2001, [Elizabeth] and [Shirley] did argue and fuss and [Elizabeth] was sent to her room. Thereafter, [Shirley] did go to [Elizabeth’s] room and a fight broke out between [Elizabeth] and [Shirley]. [Elizabeth] did not start the fight. In the course of the fight, [Shirley] did hit [Elizabeth] with her open hand and her fist. She hit [Elizabeth] in [the] stomach and arm. She also pulled out a “hunk” of [Elizabeth’s] hair.
8. That on this same occasion, [Gloria] did assist in trying to break up the fight, as aforesaid. She advised the Court that [Shirley] did have a hold of [Elizabeth’s] hair and did have her legs around the neck of [Elizabeth], choking [her], [Gloria] called law enforcement about the incident. [Gloria] saw [Shirley] swing at her and [Shirley] did hit [Gloria] in the side of the head and shoulder with a cookie jar, causing the cookie jar to break.
10. That after this April 30, 2001, incident as aforesaid, [DSS] attempted, without success, to work with [respondent] to address the situation and he met its representatives at the end of the Rholetter driveway and was very belligerent and hostile. [DSS] attempted to work with him on three occasions after the April 3, 2001, incident above-referenced before filing a Petition herein and securing a nonsecure custody order. On one occasion, [respondent] did not even answer the door or otherwise acknowledge [DSS] despite being present at his home when [DSS] attempted to discuss the matter with him. At no time prior to the filing of the Petition was [respondent] cooperative with [DSS] in its efforts to address the April 30, 2001, incident above-referenced.
12. That shortly after Christmas, 2000, [Shirley] did have another physical confrontation with [Elizabeth] in which [Shirley] did [657]*657choke [Elizabeth] and hit her above her eye leaving a bruised eye. Additionally, she kicked [Elizabeth] in the back. [Elizabeth] did tell [respondent] of the same the next day after it occurred in an effort to get the same stopped. [DSS] did investigate this incident and [respondent] delayed and obstructed [DSS’s] investigation of the same.
14. That [Shirley] hits [Elizabeth] or [Gloria] sometimes daily and sometimes only two times per week.
19. [Shirley] was arrested on or about April 30, 2001, for two counts of misdemeanor child abuse and two counts of simple assault as a result of the April 30, 2001, incident above referenced, and went to jail.
20. That when [Shirley] was arrested as aforesaid, she was intoxicated and very belligerent.
22. That [respondent], the biological father of [the juveniles] did not respond to the charges against his wife arising out of the April 30, 2001, incident above-referenced.
23. That [respondent] knew or should have known all the physical violence that was going on between [the juveniles] and [Shirley] and should have taken appropriate steps to stop the same. However, [respondent] has failed to take appropriate steps to prevent or eliminate the same and as a result, the physical violence toward [the juveniles] has continued, culminating in the April 30, 2001, incident above-referenced.
28. That [Shirley] has smoked crack cocaine in the presence of [the juveniles]. She has advised [the juveniles] that it was crack cocaine.
29. That on [Gloria’s] birthday, [Shirley] did take the $400.00 which was to be used for [Gloria’s] birthday and she did buy crack cocaine with the same, causing [Gloria] to cry.
[658]*65833. That [respondent] knew or should have known of the serious drug and/or alcohol abuse problems of [Shirley], but took no steps or took insufficient steps to deal with the same and continued to allow [Shirley] to serve as the caretaker for [the juveniles] while he knew or should have known that she was abusing alcohol and/drugs [sic] while caring for [the juveniles] and while he was at work.

Based on the trial court’s findings of fact, the court concluded that respondent neglected the juveniles and that Shirley neglected and abused the juveniles. The trial court entered an order awarding DSS the legal and physical care, custody and control of the juveniles. The court further ordered that the juveniles’ placement was within DSS’s discretion pending a dispositional hearing. Respondent did not appeal this order.

On 19 November 2001, a dispositional hearing was held in which the trial court made the following findings of fact, to which respondent assigns error and argues on appeal.

26. The construction of the house of [Heaton] has been completed and that there will be a bedroom for [the juveniles].
27. That the concern raised by the second home study of contact with Mr. David McAlister is not a sufficient concern to rebut the constitutional presumption that [Heaton] is a fit and proper person to exercise custody of her minor children pursuant to Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) and those decisions of the Courts of the State of North Carolina applying Petersen.
29. On August 23, 2001, [DSS] had a conversation with [Shirley], the step-mother and caretaker for [the juveniles]. She advised [DSS] that she is very much in the picture. She informed [DSS] that she was going to “take care of business here” (i.e. her time sentenced to jail) and then come back to Franklin, N.C. She informed [DSS] that this was the best thing that ever happened to [respondent] and those girls, because he never spent time with them and at least now he was having to. She went on to inform [DSS] that since the girls have lived with someone else other people will see how the girls really are.
[659]*65937. That the biological mother of [the juveniles] is willing and able to provide proper care and supervision for [the juveniles] and that the residence of the biological mother is a safe home to [the juveniles].

Based on these findings and others not reproduced above, the trial court concluded as a matter of law the following to which respondent assigns error:

2. That pursuant to the provisions of N.C. Gen. Stat.

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Bluebook (online)
592 S.E.2d 237, 162 N.C. App. 653, 2004 N.C. App. LEXIS 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macon-county-department-of-social-services-v-rholetter-ncctapp-2004.