An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. 
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(“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.
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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 [Respondentfather] and the juveniles.

. . . .

6. That on many occasions the respondent 
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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.
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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 
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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 
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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).