In re M.K. (I)

• Decision Date: 16 June 2015
• Docket Number: No. COA14–1153.,COA14–1153.
• Citation: 241 N.C.App. 467,773 S.E.2d 535
• Court: North Carolina Court of Appeals
• Parties: In the Matter of M.K. (I), M.K. (II), M.K. (III), and M.K. (IV).

241 N.C.App. 467

773 S.E.2d 535

In the Matter of M.K. (I), M.K. (II), M.K. (III), and M.K. (IV).

No. COA14–1153.

Court of Appeals of North Carolina.

June 16, 2015.

Kathleen M. Arundell for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.

Edward Eldred, for respondent-appellant father.

Battle, Winslow, Scott & Wiley, P.A., by M. Greg Crumpler, Rocky Mount, for guardian ad litem.

TYSON, Judge.

Michael Kemp, Sr., ("Respondent-father") appeals from an order concluding that his four children, M.K. (I), M.K. (II), M.K. (III) and M.K. (IV) were neglected and the juveniles' best interests were to remain in the custody of the Mecklenburg County Department of Social Services, Youth and Family Services ("YFS"). At the time of the adjudication, the children were 17, 12, 8 and 7, respectively. We affirm.

I. Background

YFS became involved with the Kemp family after receiving a Child Protective Services ("CPS") referral on 10 August 2012, which alleged domestic violence by Respondent-father. The investigation revealed Respondent-father and the mother had a twenty-year history of domestic violence, the mother feared Respondent-father, and she never contacted law enforcement. Respondent-father admitted he had engaged in physical altercations with the mother. Some of the children had witnessed the domestic violence. M.K. (I), the oldest child, routinely intervened in the altercations. YFS recommended services, including domestic violence counseling, but the parents failed to schedule appointments.

YFS conducted an investigation into a second CPS referral regarding a domestic violence incident, which occurred on 29 September 2013. This incident led to the filing of a juvenile petition on 8 October 2013.

The petition alleged Respondent-father had slapped the mother in the face, pushed the mother, which caused her to fall onto a glass table, bruising both her arms. One of the children witnessed this incident. Law enforcement responded to the home. Respondent-father was arrested for assault on a female.

The mother secured a domestic violence protective order against Respondent-father, but it was dismissed after she failed to appear. The mother relied on Respondent-father for financial support, shelter, and transportation. According to the petition, the children believed Respondent-father might kill their mother one day. The mother reported that Respondent-father had threatened to kill her. On 8 October 2013, YFS also obtained nonsecure custody of the juveniles.

Prior to the filing of the petition, the mother was cooperative with YFS. However, Respondent-father, the mother, and the children disappeared after the petition was filed, and the nonsecure custody order was entered. Respondent-father was eventually served with a summons on 20 November 2013. The mother was served by publication.

Following a hearing, the trial court adjudicated the children neglected. As of the date of the hearing, YFS was still unable to locate the mother and all four children. At disposition, the trial court kept the children in the legal custody of YFS and ordered it to continue attempts to locate the children. The trial court entered a corresponding order on 10 July 2014. Respondent-father appeals.

II. Standard of Review

"Allegations of neglect must be proven by clear and convincing evidence. 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). If competent evidence supports the findings, they are "binding on appeal." In re McCabe, 157 N.C.App. 673, 679, 580 S.E.2d 69, 73 (2003) (citations omitted). "The trial court's conclusions of law are reviewable de novo on appeal." In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006) (citations and internal quotation marks omitted).

III. Analysis

A. Verbatim Recitation of DSS Petition

Respondent-father challenges the trial court's adjudication of neglect. He argues twelve of the trial court's findings of fact are improper and cannot support the trial court's adjudication of neglect. He asserts the "findings" are verbatim recitations of YFS's allegations in the petition and not findings of fact. We have held that "[w]hen a trial court is required to make findings of fact, it must find the facts specially." In re Harton, 156 N.C.App. 655, 660, 577 S.E.2d 334, 337 (2003) (internal citations and quotations omitted).

"Thus, the trial court must, through ‘processes of logical reasoning,’ based on the evidentiary facts before it, ‘find the ultimate facts essential to support the conclusions of law.’ " In re O.W., 164 N.C.App. 699, 702, 596 S.E.2d 851, 853 (2004) (quoting Harton, 156 N.C.App. at 660, 577 S.E.2d at 337 ). The findings "must be the ‘specific ultimate facts ... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.’ " In re Anderson, 151 N.C.App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted). As a result of the foregoing principles, this Court has repeatedly stated that "the trial court's findings must consist of more than a recitation of the allegations" contained in the juvenile petition. O.W., 164 N.C.App. at 702, 596 S.E.2d at 853.

Many of the trial court's findings are verbatim recitations of YFS's allegations in the petition. "[I]t is not the role of the trial court as fact finder to simply restate the testimony given." Id. at 703, 596 S.E.2d at 854. Regurgitated allegations do not reflect a reconciliation and adjudication of all the evidence by the trial court to allow this Court to determine whether sufficient findings of fact are supported by clear, cogent and convincing evidence. Without adjudicated findings of fact this Court cannot conduct a meaningful review of the conclusions of law and "test the correctness of [the trial court's] judgment." Appalachian Poster Adver. Co. v. Harrington, 89 N.C.App. 476, 480, 366 S.E.2d 705, 707 (1988).

Our Supreme Court has also long required a trial court's findings to reflect a true reconciliation and adjudication of all facts in evidence to enable the appellate courts to review the trial court's conclusions. Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982).

As stated by this Court, per Justice Exum, in Coble v. Coble, 300 N.C. 708, 712, 268 S.E.2d 185, 189 (1980).

The purpose of the requirement that the court make findings of those specific facts which support its ultimate disposition of the case is to allow a reviewing court to determine from the record whether the judgment—and the legal conclusions which underlie it—represent a correct application of the law. The requirement for appropriately detailed findings is thus not a mere formality or a rule of empty ritual; it is designed instead "to dispose of the issues raised by the pleadings and to allow the appellate courts to perform their proper function in the judicial system." Montgomery v. Montgomery, 32 N.C.App. 154, 158, 231 S.E.2d 26, 29 (1977) ; see, e.g., Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967).

Id. at 452, 290 S.E.2d at 658.

We again caution the trial court that its order, upon which the trial judge's signature appears and which we review, must reflect an adjudication, not mere one-sided recitations of allegations presented at the hearing. In re J.W., ––– N.C.App. ––––, ––––, 772 S.E.2d 249, 251 (2015) ("[W]e will examine whether the record of the proceedings demonstrates that the trial court, through the processes of legal reasoning, based on the evidentiary facts before it, found the ultimate facts necessary to dispose of the case.").

Here, the order contains fifteen additional findings of fact which are not verbatim allegations and are properly considered. Of those fifteen, six are substantive findings of fact, which form the basis for the trial court's adjudication of neglect. The trial court did recite verbatim some of the allegations from the petition, which this Court has strongly discouraged. See O.W., 164 N.C.App. at 702, 596 S.E.2d at 853. Disregarding the verbatim allegations, the trial court found the ultimate facts to support its conclusions of law. The trial court heard evidence and made these findings of fact, through a process of logical reasoning, based on the evidentiary facts before it. See id.

The following substantive facts remain for this Court's consideration.

12. The altercation of September 29, 2013 was severe enough that the mother was injured with documented severe bruising to her forearm resulting from her being pushed onto a table. Following the altercation, the parties continued to argue loudly. [M.K. (I) ] came into the room, got between the parents and convinced them to stop.

13. [M.K. (II) ] was present during the altercation. He woke up, saw the mother being pushed and watched her fall onto the table. [M.K.(II) ] was emotionally upset.

....

17. The domestic violence between the parents has occurred in front of the children for a long time. All parties agree the parents argue and typically stop when [M.K. (I) ] asks them to do so. [M.K. (I) ] typically breaks up the argument.

....

19. Once the petition and non-secure were entered, the parents were not located and the children disappeared.

....

24. The law is clear, if domestic violence is going on in a home, it impacts the children. It is neglect. The children were present during the last incident and [M.K. (I) ] broke up the argument. There is evidence that domestic violence has been going on for a long time and the children know about it. This was clear from [M.K. (II)'s] statements and demeanor. [M.K. (I) ] broke up the altercation and stated she was afraid the father might kill her mother.

25. A [seven or eight] year old need not be in the middle of a fight to be impacted by an injurious environment.

It is fortunate the children didn't get into the middle of the

...