An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA13-1385
                          NORTH CAROLINA COURT OF APPEALS

                                   Filed: 20 May 2014


IN THE MATTER OF:

K.K., K.K.                                    Swain County
                                              Nos. 12 JA 22-23




      Appeal by respondent-father from order entered 16 October

2012 by Judge Roy Wijewickrama and order entered 7 August 2013

by Judge Kristina Earwood in Swain County District Court.                     Heard

in the Court of Appeals 5 May 2014.


      Justin B. Greene, for Swain County Department of Social
      Services, petitioner-appellee.

      Alston    &    Bird,    LLP,    by   Heather    Adams,   for   guardian     ad
      litem.

      Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson,
      for father, respondent-appellant.


      Dillon, Judge.


      Respondent-father        appeals      from     the   trial   court’s    order

adjudicating        the    minor     children,     K.K.    (“Kevin”)    and    K.K.
                                             -2-
(“Kimberly”)1        neglected      and    from    the    subsequent      dispositional

order.      We affirm the trial court’s orders.

       On     29    March    2012,    Swain        County   Department       of   Social

Services      (“DSS”)       filed   juvenile       petitions      alleging   Kevin     and

Kimberly were abused and neglected.                      The matter came on for an

adjudicatory hearing on 24 September 2012, after which the trial

court adjudicated the children neglected, but found DSS failed

to prove the children were abused.                       The dispositional hearing

was    held    on    7    August    2013    and    the    trial   court    entered     the

dispositional order on that same date.                    Respondent appeals.

       Respondent-father            argues        the    trial     court     erred     in

adjudicating the children neglected based on a single incident

where there is no evidence the children were harmed or in actual

immediate danger of being harmed.                  We disagree.

       “The allegations in a petition alleging that a juvenile is

abused, neglected, or dependent shall be proved by clear and

convincing evidence.”               N.C. Gen. Stat. § 7B-805 (2013).                    “A

proper review of a trial court’s finding of neglect entails a

determination of (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



1
    Pseudonyms are used to protect the identity of the juveniles.
                                         -3-
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)

(citations omitted).           “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).

Our   juvenile     code    defines       a   “neglected        juvenile”     as   “[a]

juvenile    who   does    not    receive       proper    care,     supervision,     or

discipline from the juvenile’s parent, guardian, custodian, or

caretaker; . . . or who lives in an environment injurious to the

juvenile’s    welfare[.]”        N.C.    Gen.    Stat.     §    7B-101(15)    (2013).

“[T]he     determinative         factors       are   the        circumstances      and

conditions surrounding the child, not the fault or culpability

of the parent.”      In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d

246, 252 (1984).

      In the case sub judice, the trial court made the following

relevant findings of fact:

            4. That in the latter portion of February
            and March of 2012, for approximately one
            month, Ms. C[] M[] was residing in a room
            next to [Respondent-father] in a converted
            motel property occupied by [Respondent-
            father] and the juveniles.

                   . . . .

            6.    That    on   many     occasions    the       respondent
                    -4-
father would chain lock the door leading out
of the minor children’s bedroom. He would do
this overnight to prevent the minor children
from leaving the room.

7. That on or about March 4, 2012 the
respondent father left the residence during
the evening hours of that date, and left Ms.
M[] to babysit the juveniles.

8. That the respondent father did not return
until sometime after midnight.

9. That the respondent father had locked the
juveniles in their room, and left Ms. M[] in
the living room to watch over the juveniles.

10. That at some point during that evening
while the respondent father was away from
the home and the juveniles were in their
room, a plug from a heater in the room began
smoking.

11. That as the smoke was emanating from the
heater and the plug the juvenile [Kevin]
managed to exit the bedroom through a window
that led outside to gain entrance through
the front door by signaling to Ms. M[].

12. That Ms. M[] was able to get into the
room and unplug said heater.

13. That as a result of this particular
incident, the juveniles were placed at risk
of serious bodily injury or death.

14. That the respondent father contends that
the bedroom door was locked in such a manner
as a result of [Kevin] running outside in
the cold weather, and as a result of
[Kimberly] getting into a cabinet in the
kitchen and attempting to drink rubbing
alcohol.
                                 -5-
          15. That the respondent father, based off
          his own admission, does not know how to
          properly store such substances and does not
          know of mechanisms which exist in the
          marketplace   to   prevent   children  from
          accessing such items.

          16. That locking the juveniles in their
          bedroom is not a reasonable manner to
          prevent them from engaging in such actions.

          17. That locking the juveniles in their room
          poses a danger to the juveniles, as shown by
          the events of March 4, 2012.

Respondent-father contends findings of fact 13, 15, 16, and 17

are not supported by the evidence.      Respondent-father has not

challenged the remaining findings and they are deemed supported

by competent evidence.    Koufman v. Koufman, 330 N.C. 93, 97, 408

S.E.2d 729, 731 (1991).

    Our review of the record shows that the challenged findings

of fact are supported by the evidence.     The evidence tended to

show that Respondent-father used a chain lock on the outside of

the children’s door.     Once the chain was in place, the children

could only exit the room by calling out to Respondent-father or

by going out of the room’s window.      However, Respondent-father

testified that he had shown only Kevin how to get out of the

window.   Respondent-father testified that he began using the

chain lock because Kevin got out of the room and was out in the

snow around 2:30-3:00 a.m. and Kimberly got out of the room and
                                        -6-
into the kitchen area and attempted to drink rubbing alcohol.

Respondent-father testified that he did not hear the children on

these occasions.          On 4 March 2012, Respondent-father locked the

children in the bedroom and left for the evening, leaving a

babysitter to watch the children; sometime during the night a

freestanding heater, located only two inches from Kevin’s head,

in    the    children’s     bedroom    began   to   smoke;   Kevin      exited   the

bedroom by climbing out the window, knocked on the outside door,

and   informed      the    babysitter   about    the   smoke;     the   babysitter

unlatched the chain on the children’s bedroom door and unplugged

the smoking heater; and the babysitter did not smell the smoke

or    hear    the   children    in    their    bedroom.      Respondent-father

further indicated that he was not aware of other mechanisms to

address the issue of the children getting out of the room.

       We are not persuaded by Respondent-father’s contention that

the    children     were    adjudicated       neglected   based    on    a   single

incident.       Our courts have found neglect “where [there is] a

pattern of conduct either causing injury or potentially causing

injury to the juvenile.”             In re Stumbo, 357 N.C. 279, 283, 582

S.E.2d 255, 258 (2003).               Here, the evidence clearly shows a

pattern of conduct where Respondent-father regularly used the

chain lock on the children’s door leaving them with limited
                                   -7-
options for escaping the room in the event of an incident like

the one with the heater.         Moreover, “[i]t is well-established

that the trial court need not wait for actual harm to occur to

the child if there is a substantial risk of harm to the child in

the home.”     In re T.S., 178 N.C. App. 110, 113, 631 S.E.2d 19,

22   (2006),   aff’d   per   curiam,   361   N.C.   231,   641   S.E.2d   302

(2007).    Accordingly, we hold the trial court did not err in

adjudicating the children neglected.           The orders of the trial

court are affirmed.

      AFFIRMED.

      Judge BRYANT and Judge STEPHENS concur.

      Report per Rule 30(e).
