In the Matters of A.H., No. COA08-18 (N.C. App. 5/6/2008), COA08-18

CitationNo. COA08-18
Case DateMay 06, 2008
CourtCourt of Appeal of North Carolina (US)

Page 1

Unpublished Opinion

In the Matters of: A.H., L.L. and B.L.
No. COA08-18
Court of Appeals of North Carolina.
Filed May 6, 2008
This case not for publication

Transylvania County No. 01 JA 46; 47, 07 JA 44.

Appeal by respondents from order entered 7 November 2007 by Judge David K. Fox in District Court, Transylvania County. Heard in the Court of Appeals 14 April 2008.

Janna D. Allison, for respondent-appellant mother.

Carol Ann Bauer, for respondent-appellant father.

Sarah B. Kemble, for guardian ad litem.

WYNN, Judge.

If a trial court's findings of fact are supported by competent evidence, the findings are binding on appeal.1 Here, Respondent-father and Respondent-mother contend that the trial court erred by making various findings of fact in its adjudication and disposition order. Because the findings of fact are supported by competent evidence and the findings of fact support the trial court's conclusion that the minor children were neglected, we affirm.

According to the record, the Transylvania County Department of Social Services (DSS) has been involved with this family since 2001because of incidents of domestic violence between Respondent-mother and Respondent-father. DSS first filed a juvenile petition alleging neglect of A.H. and L.L. on 23 July 2001,2 but DSS voluntarily dismissed the petition on 29 April 2002. DSS filed another juvenile petition on 25 February 2003, alleging neglect and dependency as to A.H. and L.L., due to an incident in which the parents were involved in a fight and Respondent-father took the children in his car and led the police on a high-speed car chase. Both parents were arrested, and the trial court issued an order granting DSS non-secure custody of the children. The two children were adjudicated neglected, and on 17 August 2004, the trial court entered an order ceasing reunification efforts by DSS and allowing DSS to move forward with termination of parental rights as to both Respondents. The father appealed to this Court.

After this Court reversed the trial court's order and remanded for further findings of fact, In re A.L. a/k/a A.H. & L.L. a/k/a L.H., 174 N.C. App. 625, 621 S.E.2d 343 (2005), the trial court determined that it was in the best interests of the children to be returned to their mother and the father should have visitation. Physical custody was granted to Respondent-father in May 2007, after an incident in which Respondent-mother was arrested for hitting Respondent-father while she was holding B.L.

On 27 June 2007, two police officers responded to a call at Respondent-father's residence regarding gunshots fired. The minor children were living with Respondent-father at that time. The officers observed the youngest child, B.L., sucking on the barrel of a loaded pistol. DSS was granted non-secure custody of all three children on that day and filed a juvenile petition on 28 June 2007 alleging neglect and dependency. DSS alleged that the children were living in an environment injurious to their welfare, and that no parent, guardian, or custodian was responsible for the children's care or supervision. The children were placed first in foster care, then briefly with their maternal grandparents, and then were returned to foster care.

The adjudication and disposition hearing was held on 15 October 2007. The following evidence was presented at the adjudication phase regarding the 27 June 2007 incident. Shannon Stamey, a deputy with the Transylvania County Sheriff's department, testified that on 27 June 2007, he responded to a 911 call from Respondent-father reporting that Respondent-mother had driven by and fired shots toward his residence. Deputy Stamey and another officer, Lieutenant Kevin Holden, stopped Respondent-mother's car within a few minutes of the call, but a search yielded no firearms. Deputy Stamey testified that he and Lieutenant Holden returned to the Sheriff's office, where the magistrate informed them that Respondent-mother had a Chapter 50B restraining order against Respondent-father; thus, Respondent-father was not allowed to have any firearms in his possession. Because a police officer who had responded to the 911 call had seen Respondent-father with a 12-gauge shotgun, the officers returned to Respondent-father's residence to question him about whether he was in possession of any firearms.

As Deputy Stamey and Lieutenant Holden questioned Respondent-father outside of his residence, Deputy Stamey noticed a young child walk by the front door holding a gun with his finger on the trigger and the barrel in his mouth. Deputy Stamey thought the gun was a toy even though it looked real. Deputy Stamey then saw Respondent-father's wife, Tina L., take the gun from the child and place it on a table near the front door. A moment later, the officers saw the child holding the gun again with the barrel in his mouth. Lieutenant Holden immediately asked if it was a real gun, at which point Respondent-father turned around and said, "Oh, s—, yeah it's real," went into the house, grabbed the gun from the child, ran into the kitchen with it and was about to put it on top of the refrigerator. The officers followed Respondent-father into the house and took the gun from him. The weapon was a loaded .25-caliber gun. Respondent-father revealed that he also had a shotgun in the house as well as shotgun shells. Respondent-father was arrested for violating the 50B restraining order, and was later charged with misdemeanor child abuse along with his wife Tina L. Respondent-father testified that on 27 June 2007, he heard what he thought were gunshots outside his residence, saw Respondent-mother in a vehicle with two males, and he heard her yell out the window. Respondent-father called 911 and waited for the authorities for approximately twenty to thirty minutes before deciding to call Jesse Eubanks, a friend who was holding his gunson his behalf due to the 50B restrictions on firearm possession. Mr. Eubanks's testimony was consistent with Respondent-father's; they both stated that Mr. Eubanks arrived within a few minutes of being called and brought Respondent-father his shotgun and a pistol. Respondent-father testified that he already had ammunition, and he loaded the pistol and put it on top of the refrigerator inside the house. The shotgun was left unloaded and put in the cab of Respondent-father's truck. Deputy Stamey and Lieutenant Holden arrived approximately fifteen to twenty minutes after Respondent-father received the guns from Mr. Eubanks, who left after dropping the weapons off.

Respondent-father testified that the weapons could not be reached by the children, that B.L. only played with toy guns, and that he had been playing with a toy gun on the day in question. He stated that when the officers came to talk to him, they asked him if he had any weapons at the house. He told them he did, and stepped inside to ask Tina L. to retrieve the pistol, which she got from the top of the refrigerator. Respondent-father stated that he handed the pistol to Lieutenant Holden, and that's when he was arrested for violating the 50B order. Respondent-father denied that one of the officers asked if the child was holding a real gun, or that he replied, "Oh, s—, yes it is." He stated he did not run into the house to get the gun from the child, and that he never saw the child with a real gun, only with a toy gun.

Regarding the relationship between Respondents, Respondent-father testified that Respondent-mother had threatened to kill bothhim and his wife Tina L., and that she continued to threaten him, including in the courthouse on the day of the adjudication hearing. He stated Respondent-mother had taken out thirty four warrants against him and that he had to go to jail each time she took out a warrant against him. At the end of the adjudication phase, the trial court agreed to take judicial notice of the underlying domestic violence files.

Respondent-father's wife, Tina L., also testified regarding the events of 27 June 2007. She stated she and her husband heard what sounded like gunshots outside their house, saw Respondent-mother drive by with two males in the car, and heard her yelling curses out the window. Tina L. stated that she was aware of a shotgun under a mattress and a pistol on top of the refrigerator, but never saw B.L. with a weapon, as the only things he had access to were "toy guns, squirt guns, and . . . cyber shooters" which were on the floor in the house. She testified she did not recall removing anything from B.L.'s hand, and that B.L. would not have been able to reach the gun that was on top of the refrigerator. She also stated...

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