In re A.H.
| Docket Number | COA22-683 |
| Decision Date | 05 July 2023 |
| Parties | IN RE: A.H. |
| Court | North Carolina Court of Appeals |
Heard in the Court of Appeals 23 May 2023.
Appeal by Respondent-Father from orders entered 20 and 24 May 2022 by Judge Thomas B. Langan in Stokes County District Court No 21JA66.
Leslie Rawls for Petitioner-Appellee Stokes County Department of Social Services.
Mercedes O. Chut for Respondent-Appellant Father.
James N. Freeman, Jr., for Appellee Guardian ad Litem.
Respondent-Appellant Father M.H. appeals from adjudication and disposition orders placing his daughter, A.H. ("Aerin"),[1] in the custody of the Stokes County Department of Social Services ("DSS") on the bases of neglect and dependency. He contends, in part, that the trial court's findings are inadequate to support those adjudications because the findings concern a single incident that is insufficient to establish neglect or dependency under our child protection statutes and caselaw.
After careful review, we agree with Father and reverse both the adjudication and disposition orders on these bases without reaching any remaining arguments.
On the afternoon of 4 October 2021, Father picked up nine-year-old Aerin and her two stepsiblings from a bus stop after elementary school in King, North Carolina. Father, who was previously separated from Aerin due to incarceration, had only recently been granted temporary legal and physical custody of Aerin on 27 May 2021 through a case with Aerin's biological mother. Following the filing of the petition in this matter, Aerin's biological mother relinquished all parental rights on 15 December 2021.
Aerin and Father began arguing on their drive from the bus stop, eventually leading Aerin to leave Father's truck before they reached their destination for fear of potential corporal punishment. After Aerin exited the vehicle, Father attempted to follow Aerin in his truck but was unable to do so due to difficulty maneuvering the vehicle and its attached trailer around the area's numerous cul-de-sacs. To keep up with his daughter, Father exited his truck and pursued her on foot down Sheraton Road; Aerin saw her father following and took off towards Newsome Road, which runs near Sheraton Road. Father aborted the chase before Aerin reached Newsome Road because he had been forced to leave the other two children in the vehicle, with no adult present with them.
Bystander Jimmy Shearin was also driving home on 4 October 2021 after picking up his grandson from elementary school. Mr. Shearin was driving a van behind a dump truck down Newsome Road when he saw Father chasing after Aerin on foot down Sheraton Road. He watched Aerin run across Newsome Road and into the path of the oncoming dump truck; he also observed that Father did not follow Aerin across the road, as he had turned away and started walking back up the side street just as she started crossing the road and before she ran in front of the truck.
Mr. Shearin slowed his vehicle and began to watch Aerin to make sure she was safe, following her as she walked towards a nearby business. He then pulled into the business's parking lot and asked Aerin if she was okay. Aerin was crying and screaming and thus too upset to respond immediately. Mr. Shearin eventually calmed Aerin down and coaxed her into his vehicle, telling her that he had his grandson with him, that she would be safe in his car, and that nobody would see her due to the vehicle's tinted windows. Aerin explained to Mr. Shearin that she was fleeing from her father and was afraid that he would come get her. Mr. Shearin called law enforcement after listening to Aerin and turned her over to them once they arrived on the scene.
DSS immediately received a child protective services report in connection with the incident, and social worker Valerie Neal responded within an hour. Ms. Neal interviewed Aerin, who reported that she ran from her father after being scolded for sharing the family's personal housing information with her teacher and being threatened with a "whoop[ing]." Ms. Neal also spoke with Aerin's stepmother, who met Ms. Neal at the parking lot. The stepmother misrepresented her husband's involvement in the day's events, telling Ms. Neal that her brother had been the man who picked up Aerin and subsequently chased her down Sheraton Road. Ms. Neal conducted a home inspection a short time later and, after an investigation totaling roughly two hours, executed a verified petition alleging abuse and neglect. DSS filed the petition the following day. Father did not contact DSS during the two-hour window between the start of the investigation and the execution of the petition, nor did he contact DSS the following morning before the petition was filed.
The trial court held an adjudication hearing on 23 February 2022. Mr. Shearin testified first, consistent with the above recitation of the facts. Ms. Neal testified next, but the trial court limited her recounting of Aerin's interview to corroborative purposes only.
Father also testified, explaining that at the time of the incident he was on parole and had a pending absconsion violation; that violation was later dismissed and he completed his parole with zero violations. He explained that he was unable to reach Aerin on foot during the chase because he was not physically fit enough, and that he had to abandon pursuit because he had two young children back in his truck. He was unequivocal in testifying that he never saw a dump truck on Newsome Road. He further testified that he eventually caught up to Aerin in his truck, stating that a crowd had gathered and that Aerin was in the custody of a woman who was hurling racial epithets and threats at him while refusing to turn over the child. He denied seeing or encountering Mr. Shearin. He also told the trial court that he had been on the phone with his wife the entire time, and elected to leave Aerin with the woman because he did not want to get into a physical altercation, he had to meet his pregnant wife at a nearby gas station to direct her to the scene, and he believed that Aerin was at least safe with the woman and crowd for the time being. Father testified that he did not meet up with his wife in the confusion, who instead headed directly to the scene and met with Ms. Neal. Father then testified that he dropped off the two children in his truck with their aunt; within an hour, he was able to make contact with his wife who informed him Aerin was in DSS custody. Per that same testimony, Father arrived at his home in Greensboro later that evening.
Aerin's stepmother testified after her husband. She confirmed that she was not honest in her statements to Ms. Neal regarding Father's involvement in the incident and admitted to being uncooperative because she did not trust Ms. Neal. Aerin also took the stand, with her testimony mirroring the description of events testified to by Mr. Shearin.
The trial court ultimately adjudicated Aerin neglected and dependent, and adjudication and disposition orders were entered placing Aerin in DSS custody. Father timely appeals.
Father presents several principal arguments on appeal, including that the findings of fact are unsupported by the evidence and/or insufficient to support the adjudications of both neglect and dependency. We agree with Father that several of the trial court's findings are unsupported or otherwise improper, and that the remaining findings do not establish neglect or dependency. We therefore reverse the trial court's adjudication order and its subsequent disposition order.
A trial court's adjudication order is reviewed "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) (citation and quotation marks omitted). "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." Id.
Father challenges several findings as unsupported by the evidence or inadequate to support a determination of neglect. First, he contends that the findings fail to show that he knew Aerin was in danger when she ran across Newsome Road. Next, he asserts the findings that Father and his wife failed to look after Aerin after she fled from her father are likewise unsupported. He further challenges several findings concerning Father's treatment of Aerin and his post-release supervisory status. Finally, he contends that even if all findings are supported by the evidence, they fail to establish neglect or dependence. We address each contention in turn.
Father properly identifies Findings of Fact 33, 39 through 42, 44 and 45 as unsupported by the evidence. Finding of Fact 33 states, in relevant part, that "[Aerin] stated, Daddy thought I'd gotten run over, so he just walked back to his truck." Aerin's conjecture as to her father's state of mind is insufficient to support a proper finding of fact, and we strike this portion of Finding of Fact 33. See In re K.L.T., 374 N.C. 826, 843, 845 S.E.2d 28, 41 (2020) (). Findings of Fact 39 through 42, which merely restate Ms. Neal's testimony without any apparent evaluation of its credibility, are likewise improper. See In re A.E., J.V., E.V., A.V., 379 N.C. 177, 185, 864 S.E.2d 487, 495 (2021) (...
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