In re K.K.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1385
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
K.K., K.K. Swain County
Nos. 12 JA 22-23
Appeal by respondent-father from order entered 16 October
2012 by Judge Roy Wijewickrama and order entered 7 August 2013
by Judge Kristina Earwood in Swain County District Court. Heard
in the Court of Appeals 5 May 2014.
Justin B. Greene, for Swain County Department of Social
Services, petitioner-appellee.
Alston & Bird, LLP, by Heather Adams, for guardian ad
litem.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson,
for father, respondent-appellant.
Dillon, Judge.
Respondent-father appeals from the trial court’s order
adjudicating the minor children, K.K. (“Kevin”) and K.K.
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(“Kimberly”)1 neglected and from the subsequent dispositional
order. We affirm the trial court’s orders.
On 29 March 2012, Swain County Department of Social
Services (“DSS”) filed juvenile petitions alleging Kevin and
Kimberly were abused and neglected. The matter came on for an
adjudicatory hearing on 24 September 2012, after which the trial
court adjudicated the children neglected, but found DSS failed
to prove the children were abused. The dispositional hearing
was held on 7 August 2013 and the trial court entered the
dispositional order on that same date. Respondent appeals.
Respondent-father argues the trial court erred in
adjudicating the children neglected based on a single incident
where there is no evidence the children were harmed or in actual
immediate danger of being harmed. We disagree.
“The allegations in a petition alleging that a juvenile is
abused, neglected, or dependent shall be proved by clear and
convincing evidence.” N.C. Gen. Stat. § 7B-805 (2013). “A
proper review of a trial court’s finding of neglect entails a
determination of (1) whether the findings of fact are supported
by ‘clear and convincing evidence,’ and (2) whether the legal
conclusions are supported by the findings of fact.” In re
1
Pseudonyms are used to protect the identity of the juveniles.
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Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
(citations omitted). “In a non-jury neglect adjudication, the
trial court’s findings of fact supported by clear and convincing
competent evidence are deemed conclusive, even where some
evidence supports contrary findings.” In re Helms, 127 N.C.
App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations omitted).
Our juvenile code defines 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 lives in an environment injurious to the
juvenile’s welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2013).
“[T]he determinative factors are the circumstances and
conditions surrounding the child, not the fault or culpability
of the parent.” In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d
246, 252 (1984).
In the case sub judice, the trial court made the following
relevant findings of fact:
4. That in the latter portion of February
and March of 2012, for approximately one
month, Ms. C[] M[] was residing in a room
next to [Respondent-father] in a converted
motel property occupied by [Respondent-
father] and the juveniles.
. . . .
6. That on many occasions the respondent
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father would chain lock the door leading out
of the minor children’s bedroom. He would do
this overnight to prevent the minor children
from leaving the room.
7. That on or about March 4, 2012 the
respondent father left the residence during
the evening hours of that date, and left Ms.
M[] to babysit the juveniles.
8. That the respondent father did not return
until sometime after midnight.
9. That the respondent father had locked the
juveniles in their room, and left Ms. M[] in
the living room to watch over the juveniles.
10. That at some point during that evening
while the respondent father was away from
the home and the juveniles were in their
room, a plug from a heater in the room began
smoking.
11. That as the smoke was emanating from the
heater and the plug the juvenile [Kevin]
managed to exit the bedroom through a window
that led outside to gain entrance through
the front door by signaling to Ms. M[].
12. That Ms. M[] was able to get into the
room and unplug said heater.
13. That as a result of this particular
incident, the juveniles were placed at risk
of serious bodily injury or death.
14. That the respondent father contends that
the bedroom door was locked in such a manner
as a result of [Kevin] running outside in
the cold weather, and as a result of
[Kimberly] getting into a cabinet in the
kitchen and attempting to drink rubbing
alcohol.
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15. That the respondent father, based off
his own admission, does not know how to
properly store such substances and does not
know of mechanisms which exist in the
marketplace to prevent children from
accessing such items.
16. That locking the juveniles in their
bedroom is not a reasonable manner to
prevent them from engaging in such actions.
17. That locking the juveniles in their room
poses a danger to the juveniles, as shown by
the events of March 4, 2012.
Respondent-father contends findings of fact 13, 15, 16, and 17
are not supported by the evidence. Respondent-father has not
challenged the remaining findings and they are deemed supported
by competent evidence. Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991).
Our review of the record shows that the challenged findings
of fact are supported by the evidence. The evidence tended to
show that Respondent-father used a chain lock on the outside of
the children’s door. Once the chain was in place, the children
could only exit the room by calling out to Respondent-father or
by going out of the room’s window. However, Respondent-father
testified that he had shown only Kevin how to get out of the
window. Respondent-father testified that he began using the
chain lock because Kevin got out of the room and was out in the
snow around 2:30-3:00 a.m. and Kimberly got out of the room and
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into the kitchen area and attempted to drink rubbing alcohol.
Respondent-father testified that he did not hear the children on
these occasions. On 4 March 2012, Respondent-father locked the
children in the bedroom and left for the evening, leaving a
babysitter to watch the children; sometime during the night a
freestanding heater, located only two inches from Kevin’s head,
in the children’s bedroom began to smoke; Kevin exited the
bedroom by climbing out the window, knocked on the outside door,
and informed the babysitter about the smoke; the babysitter
unlatched the chain on the children’s bedroom door and unplugged
the smoking heater; and the babysitter did not smell the smoke
or hear the children in their bedroom. Respondent-father
further indicated that he was not aware of other mechanisms to
address the issue of the children getting out of the room.
We are not persuaded by Respondent-father’s contention that
the children were adjudicated neglected based on a single
incident. Our courts have found neglect “where [there is] a
pattern of conduct either causing injury or potentially causing
injury to the juvenile.” In re Stumbo, 357 N.C. 279, 283, 582
S.E.2d 255, 258 (2003). Here, the evidence clearly shows a
pattern of conduct where Respondent-father regularly used the
chain lock on the children’s door leaving them with limited
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options for escaping the room in the event of an incident like
the one with the heater. Moreover, “[i]t 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., 178 N.C. App. 110, 113, 631 S.E.2d 19,
22 (2006), aff’d per curiam, 361 N.C. 231, 641 S.E.2d 302(2007). Accordingly, we hold the trial court did not err in
adjudicating the children neglected. The orders of the trial
court are affirmed.
AFFIRMED.
Judge BRYANT and Judge STEPHENS concur.
Report per Rule 30(e).