In re C.L.D. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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).
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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
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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.
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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
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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
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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).