In re A.H., 289 N.C. App. 501 (2023), aff'd in part, rev'd in part, remanded, ___ N.C. ___ (March 22, 2024) (per curiam)
Held:
Reversed
There is a dissent
by Flood, J.
- REVERSED AND REMANDED, ___ N.C. ___ (March 22, 2024) (per curiam).
- Facts: A 9-year-old child was adjudicated neglected and dependent based on an incident occurring after being picked up by her Father from the bus stop after school. Upon engaging in a disagreement with her Father, where father said she was going to get a whooping, the child exited the truck before reaching their destination. The Father followed the child in his truck, but because of the neighborhood and hauling a trailer, could not keep up. Father pursued the child on foot until she reached a cross road and he turned back to return to the two other minor step-siblings remaining in the truck. Another driver saw the child run across a road, nearly being struck by a large truck, while also observing Father turning back and walking away. The driver followed the child who was visibly upset and claimed to be afraid of her Father and called the police. Following a DSS investigation spanning a couple of hours that same afternoon, DSS filed a petition alleging neglect and dependency. Father did not contact DSS between the time of the investigation and before the filing of the petition, though Father testified he later saw the child who he determined was safe upon observing her with a crowd. Within an hour of dropping the other two minors off with a relative, father contacted his wife who informed him that the child was in DSS custody. Father appeals the adjudication and subsequent disposition order placing the child with DSS, contending that the findings are unsupported by the evidence and/or inadequate to support the adjudication.
- “An 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.’ ” Sl. Op. at 6. (citation omitted)
- Several findings determined to be unsupported by the evidence or improper are stricken. The child’s statement that her Father thought she’d gotten run over and just walked back to his truck is conjecture and insufficient to support a proper finding of fact regarding Father’s knowledge of the child being in danger. Findings restating the social worker’s testimony without any evaluation of credibility are improper.
- The remaining findings are insufficient to support a legal conclusion of neglect. The child’s actions of darting into the road, standing alone, do not constitute neglect, as the findings only show Father turned his back before the child crossed the road, not whether Father perceived a dangerous situation and was neglectful in failing to attend to it. Additionally, without the court making further findings supported by evidence introduced by DSS, Father’s failure to return to the scene or contact DSS within the 24 hour period between the events and the filing of the petition, while also tending to the other two minors in his care, do not amount to neglect. “The absence of evidence is not evidence.” Sl. Op. at 13 (citation omitted).
- Dissent: “Based on the totality of the evidence and the findings of fact… the trial court did not err by concluding [the child] was neglected when Respondent-Father left her in an ‘environment injurious to her welfare’ and that she was ‘at risk of physical, mental, and emotional impairment.’ “ Dissent at 21 (citation omitted). Findings of Father walking away as the child entered the roadway, leaving her with strangers, and not inquiring as to her well-being was “treatment that fell ‘below the normative standards imposed upon parents by our society.’ ” Id. (citation omitted).
Category:
Abuse, Neglect, DependencyStage:
AdjudicationTopic:
Neglect