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In re M.K. (I)

Court of Appeals of North Carolina

June 16, 2015

IN THE MATTER OF: M.K. (I), M.K. (II), M.K. (III), and M.K. (IV)

Heard in the Court of Appeals May 18, 2015

Page 536

AFFIRMED.

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, for guardian ad litem.

TYSON, Judge. Judges ELMORE and INMAN concur. Judge INMAN concurs in a separate opinion.

OPINION

Page 537

Appeal by respondent-father from order entered 10 July 2014 by Judge Louis A. Trosch in Mecklenburg County District Court, Mecklenburg County, Nos. 13 JA 592-595.

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

Page 538

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 ...


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