In re K.W.

871 S.E.2d 146

In the MATTER OF: K.W. & M.W.

No. COA21-289

Court of Appeals of North Carolina.

Filed March 15, 2022

Leslie Rawls, Charlotte, for appellant respondent-father.

Richard Penley, for appellee Onslow County Department of Social Services.

Daniel Heyman for Guardian ad Litem.

GORE, Judge.

¶ 1 Respondent-father appeals from an Order on Adjudication and Disposition adjudicating his children Kenneth and Malcolm¹ neglected and dependent and placing the juveniles in the custody of the Onslow County Department of Social Services ("DSS"). On appeal, respondent-father argues the trial court erred in adjudicating Kenneth and Malcolm neglected and dependent. After careful review, we vacate the order of the trial court and remand for entry of a new order.

I. Background

¶ 2 On or about 15 May 2020, DSS initiated an assessment of the family. The family consists of respondent-father, the juveniles’ mother, Zeke,² Kenneth, and Malcolm. At the time of the initial assessment, DSS's concerns included mental health, improper care and supervision, injurious environment, parenting skills, and housing instability.

¶ 3 At the time DSS initiated their assessment, the family had been evicted from their apartment and was living with another family. On 27 May 2020, the family was asked to leave the home where they were residing with friends. The family began residing in hotels at that time. Over the course of DSS's involvement, the family lived in three different hotels. On the morning of 4 June 2020, the family had insufficient funds to pay for the hotel. On 4 June 2020, Kajsa Williams (a social worker who worked with the family) went to talk to the hotel clerk with the hopes of getting an extension on the family's check-out. By the time Ms. Williams returned, the mother had received her monthly Supplemental Security Income ("SSI") check as well as child support from Zeke's father. The family was able to pay the hotel fee on 4 June 2020 and at no point had to move out of the hotel.

¶ 4 The juvenile's mother is unemployed. She also admitted to Ms. Williams that in 2019 she was diagnosed with bipolar disorder and schizophrenia. During DSS's involvement with the family the mother was not in treatment for her mental health disorders nor was she taking any medication. Additionally, the mother occasionally used cocaine. However, the mother claimed she had a community support person to help with her anxiety and getting the mother back in school, and to assist the mother in becoming more independent with housing. The mother also saw a counselor regarding her use of illegal drugs.

¶ 5 On at least two occasions the mother kicked Zeke out of their home. Zeke is autistic and at times would become physical with his mother. At these times the mother was unable to calm Zeke down and would become overwhelmed and tell Zeke he could leave if he wanted to.

¶ 6 Respondent-father suffered from post-traumatic stress disorder. However, respondent-father maintained full-time employment and was the primary caregiver for the juveniles. Respondent-father occasionally uses marijuana, but never in front of the juveniles. Ms. Williams primarily observed respondent-father supervising the juveniles and reported his parenting was always appropriate.

¶ 7 On a few occasions respondent-father and mother engaged in verbal altercations with raised voices. Several of these altercations occurred in front of the juveniles. On at least one occasion the social workers had to separate respondent-father and the mother. Additionally, law enforcement had been called due to the parents’ verbal altercations in the past.

¶ 8 DSS filed a Juvenile Petition on 5 June 2020, alleging the juveniles neglected and dependent. An adjudication hearing was held on 18 and 20 November 2020. At the adjudication hearing Ms. Williams, Zeke's community services worker Kim McKay, and the mother testified. The trial court held a disposition hearing immediately following the adjudication hearing. At the disposition hearing, the trial court received testimony from Kiasia Anderson (another social worker who worked on the case) and Dichelot Pierre (a DSS supervisor). On 15 February 2021, the trial court entered an Order on Adjudication and Disposition adjudicating the juveniles neglected and dependent and placing Kenneth and Malcolm in DSS custody. On 5 March 2021, respondent-father entered a written Notice of Appeal to the Supreme Court of North Carolina. Respondent-father amended his Notice of Appeal on 9 March 2021 to give notice of appeal to this Court.

II. Analysis

¶ 9 On appeal, respondent-father argues that certain findings of fact made by the trial court are not supported by competent evidence and that the findings of fact do not support the conclusion of law that Kenneth and Malcolm were neglected and dependent.

A. Standard of Review

¶ 10 "The role of this Court in reviewing a trial court's adjudication of neglect and abuse is to determine (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 T.H.T. , 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007), aff'd in part modified in part , 362 N.C. 446, 665 S.E.2d 54 (2008) (cleaned up). "The clear and convincing standard is greater than the preponderance of the evidence standard required in most civil cases." In re K.L. , 272 N.C. App. 30, 36, 845 S.E.2d 182, 188-89 (2020). "If such evidence exists, the findings of the trial court are binding on appeal, even if the evidence would support a finding to the contrary." In re T.H.T. , 185 N.C. App. at 343, 648 S.E.2d at 523. "Unchallenged findings of fact are deemed supported by the evidence and are binding on appeal." In re K.H. , ––– N.C. App. ––––, 2022-NCCOA-3, ¶ 13, 867 S.E.2d 757.

¶ 11 Whether a child is neglected or dependent is a conclusion of law and we review a trial court's conclusions of law de novo. In re Ellis , 135 N.C. App. 338, 340, 520 S.E.2d 118, 120 (1999) ; In re J.S.L. , 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006). Under a de novo review, this Court "considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." In re A.K.D. , 227 N.C. App. 58, 60, 745 S.E.2d 7, 8 (2013) (citation omitted).

B. Findings of Fact

¶ 12 Respondent-father argues that the trial court erred in adjudicating Kenneth and Malcolm neglected and dependent because several of the trial court's findings of fact are not supported by clear and convincing evidence. Respondent-father challenges findings of fact 28, 30, and 38.

¶ 13 These challenged findings (or pertinent portions thereof) state:

28. ... The respondent mother received her SSI payment two days later and by June 4, 2020 had no more money to pay for a hotel for the family.

...

30. ... That the respondent mother's admitted drug habit and mental health issues adversely impacted all three juveniles, creating an environment injurious to their welfare. That the respondent mother improperly supervised the juveniles. That this improper supervision and injurious environment has been shown by the juvenile [Zeke] being kicked out of the family's residence.

...

38. That at the time of the removal of the juveniles, the respondents were unable to provide for the juveniles’ care and supervision and lacked an appropriate alternative childcare arrangement.

¶ 14 As to finding of fact 28, respondent-father argues that the evidence shows they were able to pay for the hotel room on 4 June 2020 and remained living in the hotel for the rest of June, even after the children were removed. A review of the testimony of Ms. Williams shows that on 4 June 2020 the family suggested they did not have funds to stay in the hotel, Ms. Williams went to ask the hotel clerk to extend the family's check-out and when she returned respondent-mother had received that month's SSI payment which was used to pay for the hotel. Ms. Williams also testified that the respondent-parents remained in the hotel for at least another 30 days beyond 5 June 2020. There was no testimony or evidence offered that showed the respondent-parents ever missed a payment for the hotel or moved out of the hotel. Accordingly, we hold that this finding of fact is not supported by clear and convincing evidence insomuch as the family ran out of money to pay for hotels on 4 June 2020, and we are not bound by that portion of the finding.

¶ 15 Respondent-father next challenges finding of fact 30 by arguing the evidence shows Kenneth and Malcolm were well-cared for and safe while living with their family. At adjudication, Ms. McKay testified that she did not have concerns for either parent's mental health. In contrast, Ms. Williams testified that she had concerns for the parent's mental health and that the mother told Ms. Williams that she had previously been diagnosed with bipolar disorder and schizophrenia. Ms. Williams further testified that respondent-father told her that the mother uses cocaine from "time to time," but never in front of the children. Ms. Williams also testified that, prior to the petition being filed, DSS did not ask either parent to submit to a drug screen. The mother testified that she was diagnosed with bipolar disorder and schizophrenia and was not in treatment when her children were in her care, but that she had a community support person to help with her issues. The mother initially invoked her Fifth Amendment rights when asked about her drug use, then she testified that she was seeing a counselor for her drug "issues" and that the counselor "was more focused on [her] drug habit than the mental stage ...." There was no testimony or evidence as to the frequency of the mother's drug use, aside from her use of the words "issues" and "habit."

¶ 16 While the evidence presents concerns for the mother's mental health, the trial court's findings of fact did not address any impact her mental health diagnoses or drug use had on the juveniles Malcolm and Kenneth. Although there...