Opinion
No. COA10-1495
Filed 3 May 2011 This case not for publication
Appeal by Respondents from order entered 27 September 2010 by Judge Michael Duncan in Alleghany County District Court. Heard in the Court of Appeals 18 April 2011.
James N. Freeman, Jr., for Alleghany County Department of Social Services, Petitioner. Pamela Newell, GAL Appellate Counsel, North Carolina Administrative Office of the Courts, for Guardian ad Litem. Joyce L. Terres for Respondent-mother. Duncan B. McCormick for Respondent-father.
Alleghany County No. 09 JA 4-7.
Procedural History
Respondents are the parents of four girls, each born approximately two years apart between the years 2002 and 2008.
On 12 January 2009, the Alleghany County Department of Social Services ("DSS") filed juvenile petitions alleging that the girls were neglected. After a series of hearings between 17 November 2009 and 20 July 2010, the trial court entered a written order on 27 September 2010 adjudicating all of the children as neglected juveniles and additionally adjudicating S.G., the oldest, and H.G., the second youngest, as abused juveniles. The court placed the children in the legal and physical custody of DSS, ceased reunification efforts with Respondent-parents, and suspended all visitation between Respondent-parents and the children. Each Respondent filed a written notice of appeal from the joint order of adjudication and disposition.
Factual Background
The trial court made findings of fact showing the following: On 29 September 2008, DSS received a report alleging S.G. (hereinafter referred to by the stipulated pseudonym of "Susan") was neglected because of improper discipline manifested by bruises on her arms and legs. On 28 October 2008, DSS received a report alleging Susan had been sexually abused by Respondent-father. On 28 October 2008, social worker Christy Hawks (formerly Johnson) visited the Respondents' home and spoke with them and the three oldest girls. Respondent-father denied any wrongdoing, and Respondent-mother stated that Respondent-father had not been left alone with the children. H.G. (hereinafter referred to by the stipulated pseudonym of "Holly") told Hawks that Respondent-father had "hurt her" with rubber gloves. Respondent-mother advised the social worker that Holly usually told the truth. At Hawks' request, Respondent-father moved out of the home while the investigation was pending.
On 5 November 2008, Respondent-mother told Hawks and Detective Steve Carrier of the Alleghany County Sheriff's Department that Respondent-father had been left alone with the children for several days in 2008 while Ke. G. (hereinafter referred to by the stipulated pseudonym of "Kendra"), the youngest child, was in the hospital. Respondent-mother also stated that Holly had told her that Respondent-father touched her inappropriately while wearing gloves, saying, "Daddy played with me." Respondent-mother reported that she herself had been sexually abused by Respondent-father for the past three or four years, and that Susan and Ka. G. (hereinafter referred to by the stipulated pseudonym of "Karen") frequently walked around wearing no clothes and examining each other's genitalia. Social worker Penny Johnson-Brittain observed Susan and Karen stick their fingers into their vaginas and Karen place her head in Susan's genital area.
On 6 November 2008, Karen told Johnson-Brittain and a detective that she was afraid of Respondent-father because he whipped her with a belt and "hurt her with gloves on." Holly told them that Respondent-father frequently took her to the bathroom and touched her genitals.
On 30 November 2008, Dr. Beth Lyon-Smith conducted physical examinations of all four girls. Dr. Lyon-Smith noted that Susan had pain upon urination, redness around her anal area, and a urinary tract infection. Respondent-mother told Dr. Lyon-Smith that Susan had been touching her vaginal area more frequently and had been aggressive toward her sisters, including one incident in which Susan attempted to remove Karen's clothes and lie on top of her. Dr. Lyon-Smith found that Susan exhibited behaviors consistent with a child who had been sexually abused.
Respondent-mother also reported to Dr. Lyon-Smith that Holly had had a recent crying spell, clung excessively to Respondent-mother, had put her hand in her diaper, did not want to wear clothes, and had been focusing on her sister's vaginal area. Holly told Dr. Lyon-Smith that Respondent-father hurt her by touching her genital area while wearing a glove, which Holly demonstrated by inserting her finger into her fist. Dr. Lyon-Smith examined Holly and observed that her hymen was stretched more than would be expected for a child her age and that her hymen appeared to have been manipulated. Dr. Lyon-Smith observed further that Holly became upset when she put on rubber gloves.
Dr. Lyon-Smith also examined Karen, who would not separate her legs for the examination, and Kendra, who had a normal examination. Dr. Lyon-Smith noted it was unusual that Karen was so uncomfortable with the examination.
Dr. Sarah Sinal at Brenner's Children's Hospital in Winston-Salem also examined the girls. Although Dr. Sinal could not conclusively establish that the girls had been sexually abused, she stated that "it is certainly possible for a child to be sexually abused without positive physical findings."
On 8 December 2008, Susan reported that she had seen Respondent-father even though Respondent-mother had promised to keep him away from the girls. On 9 January 2009, DSS made a home visit to investigate reports that the children were walking unsupervised in the road at night, and that Respondent-father was in the home at Christmas and residing in the house again. Respondent-mother acknowledged that the girls had been allowed to walk in the dark to her mother's home about a half-mile away.
The children were removed from the home for their safety.
On 6 February 2009, social workers Hawks and Johnson-Brittain interviewed Susan at the foster home where she was staying. When asked to talk about what had happened in her home before she was removed, Susan responded that Karen "touched her `privates' and puts her lips on her `privates.'" Susan related that Respondent-father threatened to give her a "whooping" if she told. Susan described a "whooping" as lying on her stomach and spreading her legs while Respondent-father got on top of her. Using a doll, Susan demonstrated how Respondent-father laid on top of her while both were naked and "bounced up and down." She said she could feel something hard between her legs which she said "feels wet, sticky and smells the way it does when I put my hand in my pants." She stated that Respondent-father "left sticky stuff on her bottom and it looked like `white glue.'" Afterward, her "bottom bleeds and gets blisters" and she would call Respondent-mother to clean her and put medicine on her. When asked where the "hard thing" was located, Susan pointed to the groin area of the doll. She also related that Respondent-father "made her put the hard thing in her mouth."
Heather Cain, a licensed counselor specializing in diagnosis and treatment of abuse and neglect, interviewed the girls on multiple occasions between 9 April 2009 and 29 December 2009. Susan told Cain that Respondent-father touched her "on the inside of my bottom" while wearing rubber gloves. Susan also stated that Respondent-mother heard her crying and knew about what Respondent-father did. Karen acted out sexually in Cain's office by using the bathroom without closing the door, masturbating, and "humping the furniture." Holly told Cain that "scary monsters come out at night and put things in people's butts[,]" and that she wanted to tell Respondent-father "not to put things in her butt." All of the children "displayed worrisome behaviors such as failure to recognize personal boundaries, kicking, hitting, pulling hair, displaying anger, screaming, bed wetting, and masturbation." Cain characterized these behaviors as "outside the normal realm of natural curiosity about their bodies."
Sherry Reeves, a social worker at Ebenezer's Children's Home, where Holly lives, testified that Holly told her that Respondent-father "hurt her pee pee" and kissed her private parts, and that it also happened to Karen and Susan. Ms. Reeves also testified that, on 29 November 2009, Holly stuck her fingers in her vagina and said, "it feels good, it feels good" and, on 2 December 2009, Holly attempted to insert a toy into her vagina while bathing.
Cheryl Harris, the foster mother of Karen and Kendra and temporarily of Holly, testified that Karen frequently masturbated. Karen also told her that Respondent-father would put her on a sleeping bag and "play with her, and as a result the sleeping bag had to be washed a lot." Harris further testified that Karen had numerous health issues which were apparently not being addressed prior to her coming into foster care, including issues with her sinuses, adenoids, tonsils, and teeth. Karen also had a severe dental problem which required a complete reconstruction and left her with only four bottom teeth.
In conclusion, the trial court found that Respondent-father sexually abused Susan by touching her vaginal area while wearing rubber gloves on two or more occasions. Holly was also sexually abused while in the custody of Respondent-parents. The children were "exposed to sexual content" while in Respondent-parents' custody, resulting in sexual acting-out behavior by the three older girls. Respondent-mother was aware that Respondent-father inappropriately touched Susan, and Respondent-mother has cleaned
Susan after one incident of sexual abuse. Respondent-mother failed to protect, provide safety for, or attempt to remove the children from the sexual abuse, and allowed the children to walk on a public road at night without supervision.
The trial court concluded that Susan and Holly were abused juveniles and that all four girls were neglected juveniles. The trial court further concluded that contact between the girls and Respondent-parents would not be in the children's best interest, and consequently, "it is reasonable to suspend all visitation between the children and parents." The court also concluded that further efforts at reunification would be futile and therefore relieved DSS of making further reunification efforts.
Discussion
Respondent-mother and Respondent-father each contend that the trial court erred in: (I) adjudicating Susan and Holly as abused juveniles when the petitions only alleged that they were neglected juveniles; (II) making findings of fact not based upon competent evidence; and (III) concluding that Susan and Holly are abused juveniles and that all four children are neglected juveniles. Respondent-mother presents two additional issues: whether the trial court erred by (IV) failing to state in open court the precise terms of the disposition and whether the allegations of the petition had been proven by clear, cogent and convincing evidence; and (V) accepting and permitting dispositional evidence prior to entering its adjudication. As discussed below, we affirm.
I.
Both Respondents argue that the trial court erred by adjudicating Susan and Holly as abused juveniles when the petitions only alleged that they were neglected juveniles. Specifically, Respondent-mother argues the petitions did not provide adequate notice that the children could be adjudicated as abused juveniles. She also argues that by adjudicating Susan and Holly as abused juveniles, the trial court impermissibly amended the petitions. Respondent-father argues the allegations of the petition are insufficient to allege that he committed a sex offense. We reject each of Respondents' arguments.
An adjudication must be based upon the ground or grounds alleged in the petition, which may not be amended if the amendment would change the "nature of the conditions upon which the petition is based." In re D.C., 183 N.C. App. 344, 348, 644 S.E.2d 640, 642 (2007) (quoting N.C. Gen. Stat. § 7B-800). However, "if the specific factual allegations of the petition are sufficient to put the respondent on notice as to each alleged ground for adjudication, the petition will be adequate" even though the box which corresponds to the ground is not checked in the petition. Id. at 350, 644 S.E.2d at 643.
Here, the record shows that a standardized form, with boxes to check and blank lines to be filled in, was used as the petition in each case. On each petition, the box alleging the particular child was neglected was checked and beneath the box, the form directed the reader to an attachment, which was identical in each petition. The attachment stated, inter alia, that, on 28 October 2008, DSS received a report, alleging that Respondent-father sexually abused the four girls and that Respondent-mother knew about the sexual abuse but did nothing to protect the children. The attachment also declared that, on 30 October 2008, DSS received an additional report alleging Respondent-father's sexual abuse of Susan, and that, on 29 December 2008, DSS made the decision to substantiate the report for sexual abuse. However, the box on the standardized form to allege that the juvenile was abused was not checked. We conclude that, under these circumstances, DSS' failure to check the box for abuse did not prevent DSS from showing, and the trial court from finding and concluding, that two of the girls had been sexually abused. Because the attachment to each petition provided specific factual allegations sufficient to put both Respondents on notice that sexual abuse was being alleged, the petitions were adequate to support the trial court's adjudication of Susan and Holly as abused juveniles. Thus, the trial did not and had no need to amend the petitions. Further, the petition contained sufficient allegations that Respondent-father committed a sex offense against the children. We overrule Respondents' arguments.
II.
Respondents also argue that several of the trial court's findings of fact are not based upon competent evidence. Specifically, they challenge findings of fact 17, 18, 33-37, 53, 69, and 71-74 as being based on hearsay statements that failed to qualify for admission under the exception for statements made for the purpose of medical diagnosis or treatment or under any other exception. We disagree.
In a juvenile proceeding, the trial judge acts as both judge and juror, and "it is that judge's duty to weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). It is presumed that a trial judge, sitting without a jury, disregards any incompetent evidence. In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000), disc. review denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). In such cases, reversible error will not be found if the erroneous findings are unnecessary to the court's ultimate adjudication. In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006). Thus, even when the trial court errs by admitting hearsay evidence, an appellant must show that the error was prejudicial to prevail on appeal. In re M.G.T.-B., 177 N.C. App. 771, 775, 629 S.E.2d 916, 919 (2006).
Findings of fact which are not challenged on appeal are binding and conclusive. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Here, the unchallenged findings of fact show that Respondent-mother (1) told Detective Carrier and social workers Hawks and Johnson-Brittain that Holly had told her Respondent-father had touched her inappropriately while wearing gloves, saying, "Daddy played with me[;]" (2) reported that Susan and Kendra acted out sexually, often going without clothes and examining each other's genitalia; and (3) confessed that Respondent-father had been sexually abusive to her. The unchallenged findings also show that social worker Johnson-
Brittain personally observed Susan and Kendra acting out sexually by wearing no clothes and sticking their fingers in their vaginas, and saw Kendra place her head in Susan's genital area. Cain, the counselor, testified that Susan told her, "I am sad because Dad touched my privates." Cain reported that Susan said her father wore gloves and that her mother heard her crying and knew about Respondent-father's abuse of Susan. Kendra's foster mother observed that Kendra frequently masturbated. Holly was also observed masturbating, inserting her fingers or objects into her vagina, and engaging in inappropriate touching while residing in her foster home.
These unchallenged findings establish the gist of those challenged by Respondents and fully support the trial court's conclusions and ultimate adjudication. Because the challenged findings were unnecessary to the trial court's ultimate adjudication, we conclude that error, if any, in the challenged findings is harmless. This argument is overruled.
III.
Respondents next argue that the trial court erred by concluding that Susan and Holly are abused juveniles and all four children are neglected juveniles. We disagree.
The allegations in a petition alleging abuse, neglect, or dependency must be proved by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2009). Accordingly, appellate review of the trial court's order "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 Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations omitted).
An abused juvenile is defined, inter alia, as one whose parent "[c]ommits, permits, or encourages the commission of a" sexually-related offense "by, with, or upon the juvenile[.]" N.C. Gen. Stat. § 7B-101(1)(d) (2009). A neglected juvenile is defined as one "who does not receive proper care, supervision, or discipline from the juvenile's parent, . . . or who lives in an environment injurious to the juvenile's welfare. . . ." N.C. Gen. Stat. § 7B-101(15).
The trial court's findings establish that Respondent-father sexually abused the children while they were residing in the family home and that Respondent-mother was aware of the sexual abuse and permitted it to occur. In addition, the findings show that the children were left unsupervised and were not given proper dental or medical care. These findings support the trial court's conclusions of law that Susan and Holly were abused and all four of the children were neglected. This argument is overruled.
IV.
Respondent-mother also argues that the trial court erred by failing to state in open court the precise terms of the disposition and whether the allegations of the petition had been proven by clear, cogent and convincing evidence. We disagree.
Respondent-mother first contends that N.C. Gen. Stat. § 7B-807(a) requires a statement in open court that allegations of a juvenile petition have been proven by clear and convincing evidence. This statute provides that in making its
adjudication, "[i]f the court finds that the allegations in the petition have been proven by clear and convincing evidence, the court shall so state." N.C. Gen. Stat. § 7B-807(a) (2009). "However, there is no requirement as to where or how such a recital of the standard should be included." In re O.W., 164 N.C. App. 699, 702, 596 S.E.2d 851, 853 (2004). A clear statement of the proper evidentiary standard in the trial court's written order is sufficient to meet the requirement of N.C. Gen. Stat. § 7B-807(a). Id.
Here, the trial court's written order states that its findings are based upon clear, cogent and convincing evidence. Thus, the trial court complied with section 7B-807(a), and we overrule this argument.
Respondent-mother also contends the trial court was required to orally state the terms of the disposition following the adjudication hearing. In support of this argument, she relies upon the language of N.C. Gen. Stat. § 7B-905(a): "The court shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition. . . ." N.C. Gen. Stat. § 7B-905(a) (2009). Here, the trial court did not reach a disposition in open court at the conclusion of the adjudication hearing, did not convene another hearing, and thus never orally stated its disposition in strict compliance with the statutory directive. However, a trial court's failure to comply with a procedural dictate in the Juvenile Code is not reversible error unless the appellant can show prejudice. See In re T.H.T., 185 N.C. App. 337, 350-51, 648 S.E.2d 519, 528 (2007), affirmed in part, modified in part, 362 N.C. 446, 665 S.E.2d 54 (2008) (holding that the respondent was not prejudiced by the court's failure to hold hearing when a dispositional order was not entered within 30 days as required by N.C. Gen. Stat. § 7B-807(b)); In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003) (holding that no prejudice resulted from incomplete compliance with the requirement of N.C. Gen. Stat. § 7B-806 that all adjudicatory and dispositional hearings be electronically or mechanically recorded); In re Joseph Children, 122 N.C. App. 468, 471-72, 470 S.E.2d 539, 541 (1996) (holding that the respondent was not prejudiced by the petitioner's failure to comply with statute governing notice and service by publication). Respondent-mother asserts that the trial court's failure to orally announce its disposition prejudiced her by denying her a full opportunity to present dispositional evidence and respond adequately to the dispositional evidence presented. However, Respondent-mother does not explain what dispositional evidence she would have presented or how she was prevented from responding to the evidence that was admitted. Accordingly, we conclude that she has failed to show prejudice and overrule this argument.
V.
Respondent-mother also argues that the trial court erred by accepting and permitting dispositional evidence prior to entering its adjudication. We disagree.
In the adjudicatory phase of a hearing to determine whether a child is abused or neglected, the trial court is required to determine whether allegations of abuse or neglect are proven by clear and convincing evidence, whereas in the dispositional stage, the trial court is required to decide what disposition is in the best interest of the child. In re O.W., 164 N.C. App. at 701, 596 S.E.2d at 853. The adjudication and dispositional phases may be combined in a single hearing so long as the trial court applies the correct evidentiary standard at each stage, and ensures its order reflects application of the appropriate standard of proof for each stage. In re R.B.B., 187 N.C. App. 639, 643-44, 654 S.E.2d 514, 518 (2007), disc. review denied, 362 N.C. 235, 659 S.E.2d 738 (2008). Here, the trial court made separate adjudicatory and dispositional findings. It prefaced its adjudicatory findings with the statement that they were made "by clear, cogent and convincing evidence." Likewise, the order reflects that the trial court considered the best interest of the children in reaching its disposition. We overrule this argument. The consolidated order of adjudication and disposition is
AFFIRMED.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).