{ "id": 8171780, "name": "IN THE MATTER OF: H.M., K.M., H.M., A.Y.", "name_abbreviation": "In re H.M.", "decision_date": "2007-03-20", "docket_number": "No. COA06-948", "first_page": "308", "last_page": "316", "citations": [ { "type": "official", "cite": "182 N.C. App. 308" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "495", "parenthetical": "citing N.C. Gen. Stat. \u00a7 7B-1109(e)" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "628 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635607 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "756" }, { "page": "756-57" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0753-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "548", "parenthetical": "citing N.C. Gen. Stat. \u00a7 7B-1109(e)" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "360 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796047 ], "year": 2006, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0449-01" ] } ], "analysis": { "cardinality": 550, "char_count": 18148, "ocr_confidence": 0.742, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2010916466558475 }, "sha256": "7303d8bd4d871ca288b025c2310d67dada1e70d94c0974b6695d57f2d9b15ae5", "simhash": "1:9febf1069b44bb77", "word_count": 2981 }, "last_updated": "2023-07-14T22:32:14.097428+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and GEER concur." ], "parties": [ "IN THE MATTER OF: H.M., K.M., H.M., A.Y." ], "opinions": [ { "text": "TYSON, Judge.\nAlexander County Department of Social Services (\u201cDSS\u201d) appeals from order entered dismissing its juvenile petitions for H.M., K.M., H.M., and A.Y. (\u201cthe minor children\u201d). We affirm.\nI.Background\nJ.M. (\u201cthe father\u201d) and M.Y. (\u201cthe mother\u201d) (collectively, \u201crespondent parents\u201d) are the parents of the four minor children, ages two through eight. On the evening of 18 May 2005, respondent parents argued in the presence of their four children at their home. The mother held the youngest of the four children in her arms during the argument.\nAfter the argument, the father\u2019s brother contacted the Alexander County Sheriffs Department. Officer Larry Ingle (\u201cOfficer Ingle\u201d) answered the call and drove to respondent parents\u2019 home. Officer Ingle testified that upon his arrival, the father had left the home and had taken the three older children with him. One of respondent parents\u2019 family members told Officer Ingle that the father also possessed a gun. Officer Ingle did not issue an Amber Alert because the father had not been violent or used the gun when he left with the children. Officer Ingle testified he did not see evidence of any physical assault on the mother.\nOfficer Ingle and the mother drove to the magistrate\u2019s office. The mother obtained warrants charging the father with assault by pointing a gun and communicating threats. Social Worker Melissa Hatten (\u201cHatten\u201d) spoke with the mother at the magistrate\u2019s office. Hatten testified that the mother told her that the father had hit her in the leg and taken the children at gunpoint. Hatten drove the mother back to her residence. The mother\u2019s sister drove her and the youngest child to Huntersville that evening.\nThe following day, the father arrived at the mother\u2019s sister\u2019s house in Huntersville with the three other children. On 20 May 2005, the mother and all the minor children went to a domestic violence shelter as requested by DSS. The mother objected going to the shelter as unnecessary. On 20 May 2005, the father was arrested at his relative\u2019s home in Catawba County. On 23 May 2005, the district attorney\u2019s office dismissed all charges against the father, due to the mother\u2019s refusal to testify. The mother also left the domestic violence shelter that day.\nOn 24 May 2005, DSS filed a juvenile petition alleging neglect and dependency for all four minor children. On 24 May 2005, the trial court filed a nonsecure custody order, and the juvenile children were placed in custody with DSS. On 2 February 2006, the trial court filed an adjudication order and concluded DSS \u201cfailed to prove by clear and convincing evidence that the minor children are neglected or dependent juveniles[.]\u201d The trial court dismissed DSS\u2019s juvenile petitions. DSS appeals.\nII. Issues\nDSS argues it supported its allegations in the juvenile petitions for the minor children by clear, cogent, and convincing evidence, and the trial court erred when it: (1) entered finding of fact numbered 26; (2) entered finding of fact numbered 28; (3) entered finding of fact numbered 29; (4) entered conclusion of law numbered 3; and (5) dismissed all the juvenile petitions at the close of all the evidence at trial.\nIII. Standard of Review\n\u201cIn North Carolina, juvenile abuse, neglect, and dependency actions are governed by Chapter 7B of the General Statutes, commonly known as the Juvenile Code.\u201d In re A.K., 360 N.C. 449, 454, 628 S.E.2d 753, 756 (2006). \u201cSuch cases are typically initiated when the local department of social services (DSS) receives a report indicating a child may be in need of protective services.\u201d Id. \u201cDSS conducts an investigation, and if the allegations in the report are substantiated, it files a petition in district court alleging abuse, dependency, or neglect.\u201d Id. at 454, 628 S.E.2d at 756-57.\n\u201cThe first stage in such proceedings is the adjudicatory hearing.\u201d Id.; N.C. Gen. Stat. \u00a7 7B-807 (2005). \u201cIf DSS presents clear and convincing evidence of the allegations in the petition, the trial court will adjudicate the child as an abused, neglected, or dependent juvenile.\u201d Id. at 454-55, 628 S.E.2d at 756 (citing N.C. Gen. Stat. \u00a7 7B-807). \u201cIf the allegations in the petition are not proven, the trial court will dismiss the petition with prejudice and, if the juvenile is in DSS custody, returns the juvenile to the parents.\u201d Id.\n\u201cDuring the adjudicatory phase, the court takes evidence, makes findings of fact, and determines the existence or nonexistence of grounds for termination.\u201d In re R.T.W., 359 N.C. 539, 548, 614 S.E.2d 489, 495 (2005) (citing N.C. Gen. Stat. \u00a7 7B-1109(e)). \u201cThe burden of proof is on DSS in this phase, and the court\u2019s findings must be \u2018based on clear, cogent, and convincing evidence.\u2019 \u201d Id. (citing N.C. Gen. Stat. \u00a7 7B-1109(f)).\nIV. Finding of Fact Numbered 26\nDSS argues it supported its allegations by clear, cogent, and convincing evidence and the trial court erred when it entered finding of fact numbered 26. We disagree.\nAt the adjudicatory hearing, DSS offered into evidence the transcript of the 25 May 2005 non-secure hearing. Counsel for the father and the mother stated in court that the mother was not represented by an attorney at the non-secure hearing. The trial court stated she had:\ntrouble with the fact that the respondent mother wasn\u2019t represented by counsel and I have trouble as to \u2014 if she made statements that clearly wouldn\u2019t have been admissible and didn\u2019t have the benefit of counsel to object and to put her on the right track, I have 'great trouble with that. But even if we put them on the stand now, the transcript would be admissible for purposes of impeachment.\nThe trial court admitted the transcript into evidence as an admission of a party-opponent. N.C. Gen. Stat. \u00a7 8C-1, Rule 801(d) (2005).\nFinding of fact numbered 26 states:\n26. The Court received into evidence a transcript of the non-secure hearing of May 25, 2005, which included testimony from the Respondent father and Respondent mother. The court specifically notes that the Respondent mother was not represented by counsel at said hearing. The Respondent parents gave conflicting and confusing testimony throughout said hearing. This Court was not able to observe the demeanor, expressions, or actions of the Respondent throughout their testimony making it difficult for this Court to determine which portions of the testimony should be considered credible and what weight should be given to the evidence presented.\nFinding of fact numbered 26 is supported by competent evidence. The trial court received and reviewed the transcript from the 25 May 2005 non-secure custody hearing into evidence. The trial court noted the mother was unrepresented at that hearing. The transcript also showed conflicting testimony during the 25 May 2005 non-secure hearing. The trial court was unable to make credibility determinations from the transcript. DSS failed to carry its burden of proof with clear, cogent, and convincing evidence to substantiate the allegations in its petition. This assignment of error is overruled.\nV. Finding of Fact Numbered 28\nDSS argues it supported its allegations by clear, cogent, and convincing evidence and the trial court erred when it entered finding of fact numbered 28. We disagree.\nFinding of fact numbered 28 states:\n28. The Court is not convinced that the Respondent father pointed a gun at the mother on May 18, 2005. If the Respondent father pointed the gun at the Respondent mother on May 18, 2005, it was locked at the time.\nWe have reviewed the transcripts from both the non-secure custody hearing and the adjudicatory hearing and hold the trial court\u2019s finding was supported by competent evidence that DSS failed to prove its allegations, by clear, cogent, and convincing evidence. The trial court entered uncontested findings, of fact that: (1) the mother stated to Officer Ingle that the father had a gun in his possession but did not point it at her; (2) the district attorney\u2019s office voluntarily dismissed all charges against the father; (3) the district attorney\u2019s office could have proceeded without the mother\u2019s cooperation but chose not to do so; and (4) the father was not in possession of any firearm when he was arrested. Finding of fact numbered 28 is supported by uncontested evidence that DSS failed to prove its allegations by clear, cogent, and convincing evidence. This assignment of error is overruled.\nVI. Finding of Fact Numbered 29\nDSS argues it supported its allegations by clear, cogent, and convincing evidence and the trial court erred when it entered finding of fact numbered 29. We disagree.\nFinding of fact numbered 29 states:\n29. There is ample evidence that the children left voluntarily with the Respondent father, that they were not coerced or taken by force on May 18, 2005. The Respondent parents did engage in an argument, but there is no clear evidence of domestic violence or that the children were put in danger.\n(Emphasis supplied).\nAt the non-secure hearing, the father testified as follows:\nI got up and I said, \u201cA, let\u2019s go.\u201d And then A came running and then the other daughter got up trying to follow me too, so I picked up her and H came running, put on her shoes, and we all just went to my car and I took off.\nThe trial court entered an uncontested finding of fact that the mother told Officer Ingle that the father \u201cleft the residence with the parties\u2019 three older children.\u201d Upon review of the record, DSS presented no evidence tending to show the children did not leave voluntarily with the father. The record and transcripts from the non-secure and adjudicatory hearing support the trial court\u2019s finding that respondent parents engaged in an argument. No evidence of domestic violence or that the children were put in danger was presented. The trial court\u2019s finding of fact numbered 29 that DSS failed to prove its allegations by clear, cogent, and convincing evidence is supported by competent evidence. This assignment of error is overruled.\nVII. Conclusion of Law Numbered 3\nDSS argues the trial court erred when it entered conclusion of law numbered 3 because it was not supported by clear, cogent, and convincing evidence. We disagree.\nConclusion of law numbered 3 states:\n3. Although the behavior of the respondent father on May 18, 2005 was inappropriate, the petitioner has failed to prove by clear and convincing evidence that the minor children are neglected or dependent juveniles, and therefore the petitions should be dismissed.\n(Emphasis supplied).\nUnder N.C. Gen. Stat. \u00a7 7B-101(15) (2005), a neglected juvenile is defined as:\nA juvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile\u2019s welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.\nUnder N.C. Gen. Stat. \u00a77B-101(9) (2005), a dependant juvenile is defined as:\nA juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile\u2019s care or supervision or whose parent, guardian, or custodian is unable to provide for the care or supervision and lacks an appropriate alternative child care arrangement.\nAs stated above, \u201cthe court takes evidence, makes findings of fact, and determines the existence or nonexistence of grounds for termination.\u201d In re R.T.W., 359 N.C. at 548, 614 S.E.2d at 495. \u201cThe burden of proof is on DSS in this phase, and the court\u2019s findings must be \u2018based on clear, cogent, and convincing evidence.\u2019 \u201d Id. '\nThe trial court entered uncontested findings of fact that: (1) the father possessed a gun, but did not point it at the mother or the children; (2) respondent parents\u2019 three oldest children left the residence with the father, but no kidnapping was reported, and an Amber Alert was not issued; (3) the district attorney\u2019s office dismissed charges against the father for communicating threats to and assault by pointing a gun at the mother; and, (4) respondent was not in possession of a firearm when he was arrested. DSS failed to prove the minor children were either neglected or dependent. The trial court properly found DSS failed to prove its allegations by clear, cogent, and convincing evidence and the minor children were neither neglected nor dependent. DSS\u2019 assignment of error is overruled.\nVIII Dismissal of Juvenile Petitions\nDSS argues the trial court erred when it dismissed all the Juvenile Petitions at the close of all the evidence at trial. We disagree.\nN.C. Gen. Stat. \u00a7 7B-807(a) states, \u201cIf the court finds that the allegations have not been proven, the court shall dismiss the petition with prejudice . . . .\u201d (Emphasis supplied). The trial court entered the following order: \u201c1. That the petitions in these matters alleging neglect and dependency are dismissed.\u201d After the trial court found DSS had failed to prove its allegations, the court was required by statute to dismiss the petitions. N.C. Gen. Stat. \u00a7 7B-807(a). This assignment of error is overruled.\nIX. Conclusion\nDSS did not satisfy their burden of proving the allegations in the petitions by clear, cogent, and convincing evidence. The trial court did not err when it entered findings of fact numbered 26, 28, and 29. The trial court did not err when it entered conclusion of law numbered 3. DSS failed to prove its allegations by clear and convincing evidence. The trial court properly dismissed DSS\u2019 juvenile petitions. The trial court\u2019s order is affirmed.\nAffirm.\nJudges ELMORE and GEER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Thomas R. Young, for petitioner-appellant Alexander County Department of Social Services.", "Katharine Chester, for respondent mother-appellee.", "Janet K. Ledbetter, for respondent father-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: H.M., K.M., H.M., A.Y.\nNo. COA06-948\n(Filed 20 March 2007)\n1. Child Abuse and Neglect\u2014 neglect and dependency \u2014 findings of fact \u2014 unable to make credibility determinations\u2014 clear, cogent, and convincing evidence required\nThe trial court did not err in a juvenile neglect and dependency case by entering finding of fact- number 26 showing DSS failed to prove its allegations by clear, cogent, and convincing evidence, because: (1) the trial court received and reviewed the transcript from the 25 May 2005 nonsecure custody hearing into evidence; (2) the trial court noted the mother was unrepresented at that hearing and observed that the transcript showed conflicting testimony during the 25 May 2005 nonsecure hearing; and (3) the trial court was unable to make credibility determinations from the transcript.\n2. Child Abuse and Neglect\u2014 neglect and dependency \u2014 findings of fact \u2014 father pointed gun at mother \u2014 clear, cogent, and convincing evidence required\nThe trial court did not err in a juvenile neglect and dependency case by entering finding of fact number 28 showing DSS failed to prove its allegations by clear, cogent, and convincing evidence based on the fact that the court was not convinced respondent father pointed a gun at the mother on 18 May 2005, and the gun was locked even if respondent had pointed the gun, because the trial court entered uncontested findings of fact that: (1) the mother stated to the officer that the father had a gun in his possession but did not point it at her; (2) the DA\u2019s office voluntarily dismissed all charges against the father; (3) the DA\u2019s office could have proceeded without the mother\u2019s cooperation but chose not to do so; and (4) the father was not in possession of any firearm when he was arrested.\n3. Child Abuse and Neglect\u2014 neglect and dependency \u2014 findings of fact \u2014 children left voluntarily with father \u2014 no evidence of domestic violence or children put in danger\u2014 clear, cogent, and convincing evidence required\nThe trial court did not err in a juvenile neglect and dependency case by entering finding of fact number 29 showing DSS failed to prove its allegations by clear, cogent, and convincing evidence, because: (1) DSS presented no evidence tending to show the children did not leave voluntarily with the father; (2) the record and transcripts from the nonsecure and adjudicatory hearing support the trial court\u2019s finding that respondent parents engaged in an argument; and (3) no evidence of domestic violence or that the children were put in danger was presented.\n4. Child Abuse and Neglect\u2014 neglect and dependency \u2014 conclusions of law \u2014 failure to prove minor children neglected or dependent \u2014 clear, cogent, and convincing evidence required\nThe trial court did not err in a juvenile neglect and dependency case by entering conclusion of law number 3 that DSS failed to prove by clear, cogent, and convincing evidence that the minor children were neglected or dependent juveniles, because the trial court entered uncontested findings of fact that: (1) the father possessed a gun, but did not point it at the mother or the children; (2) respondent parents\u2019 three oldest children left the residence with the father, but no kidnapping was reported and an Amber Alert was not issued; (3) the DA\u2019s office dismissed charges against the father for communicating threats to and assault by pointing a gun at the mother; and (4) respondent was not in possession of a firearm when he was arrested.\n5. Child Abuse and Neglect\u2014 neglect and dependency \u2014 dismissal of all juvenile petitions\nThe trial court did not err by dismissing all the juvenile neglect and dependency petitions at the close of all the evidence at trial, because after the trial court found DSS had failed to prove its allegations, the court was required by N.C.G.S. \u00a7 7B-807(a) to dismiss the petitions.\nAppeal by petitioner from order entered 2 February 2006 by Judge April Wood in Alexander County District Court. Heard in the Court of Appeals 21 February 2007.\nThomas R. Young, for petitioner-appellant Alexander County Department of Social Services.\nKatharine Chester, for respondent mother-appellee.\nJanet K. Ledbetter, for respondent father-appellee." }, "file_name": "0308-01", "first_page_order": 340, "last_page_order": 348 }