Opinion
No. 07-1253.
Filed April 15, 2008.
Craven County Nos. 06JA51, 06JA52, 06JA53.
Appeal by respondents from order entered 29 January 2007 by Judge Karen Alexander in Craven County District Court. Heard in the Court of Appeals 18 February 2008.
Bernard Bush for petitioner-appellee. Robert G. Raynor, Jr. for respondents-appellants. North Carolina Guardian ad Litem Program, by Pamela Newell Williams, for guardian ad litem-appellee.
Respondents mother and father appeal the order of the trial court adjudicating "Kelly" abused and neglected and "Lisa" and "Tracy" neglected. Because respondents have failed to present a persuasive basis for overturning the trial court's order, we affirm.
In order to protect the children's privacy and for ease of reading, we have adopted the guardian ad litem's pseudonyms for the children: "Kelly," "Lisa," and "Tracy."
We first note that respondents have failed to specifically assign error to any of the trial court's findings of fact in the initial adjudication order filed 29 January 2007. "To the extent . . . findings have not been assigned error they are deemed supported by sufficient evidence and are treated as conclusive on appeal." In re Clark, 159 N.C. App. 75, 83 n. 5, 582 S.E.2d 657, 662 n. 5 (2003). Thus, the trial court's findings of fact, in this case, are binding on appeal.
Trial Court's Order
As the trial court found, respondent mother is the biological mother of all three girls, while respondent father is the biological father of Lisa and Tracy. At the time of the hearing, Kelly was 17 years old, Lisa was 13 years old, and Tracy was 10 years old. Kelly was an honor roll student, who was also working until respondent father made her quit her job as punishment.
Approximately two years prior to the hearing, when the family was living in Virginia, respondent father, while sitting with Kelly in the family's den, took her hand and guided both his finger and her finger into her vagina. Subsequently, respondent father purchased a dildo for Kelly and asked if she wanted his assistance in using it. She refused both the dildo and the assistance. In addition, respondent father, on numerous occasions, offered Kelly $20.00 to share her sexual thoughts with him; Kelly always refused. Respondent father also asked Kelly if she had "flashes," referring to her feeling a need to have sex, and offered Kelly advice on masturbation to relieve those urges.
Respondent father denied sexually abusing Kelly and claimed to be raising the girls in accordance with the teachings in the Bible. He did, however, admit to offering to buy a sex toy for Kelly, but denied actually purchasing a dildo. The trial court nonetheless found that respondent father had abused Kelly as defined in N.C. Gen. Stat. § 7B-101(1)(d) (2007).
When respondent mother was asked about the incident in Virginia, she testified that she did not know whom to believe, but claimed that, if it did happen, Kelly would have told her because Kelly shares everything with her. The trial court, however, specifically found that Kelly does not share everything with her mother. When the social worker asked respondent mother if she knew respondent father was discussing masturbation and orgasms with Kelly, respondent mother responded that she was aware of that and thought he was just trying to be a good father.
Based on these findings of fact, the trial court concluded in its 29 January 2007 order that Kelly was an abused and neglected juvenile and that Lisa and Tracy were neglected juveniles. The court directed that the children remain placed with their maternal grandmother. Based upon the opinion of a therapist, the court allowed visitation between the parents and Lisa and Tracy with supervision by the grandmother. The court ordered, however, that respondent father have no contact with Kelly. The court further ordered that respondent father complete a sex offender evaluation and that respondent mother complete a psychological evaluation.
On 5 February 2007, respondents filed a motion for a new trial on the grounds that respondent father denied all the allegations; there was no evidence that respondent mother knew of any offensive touching; and "it is more probable" that Kelly had been untruthful. On 24 May 2007, the trial court denied the motion. Respondents timely appealed from both the 29 January 2007 and 24 May 2007 orders.
Discussion
Respondents first contend the trial court erred in admitting evidence, over their objection, that respondent father burned Kelly with a hot hair iron when the petition did not include any allegations regarding such an incident. N.C. Gen. Stat. § 7B-802 (2007) "limit[s] the matters to be considered, proved, and adjudicated to those conditions alleged in the juvenile petition." In re D.C., ___ N.C. App. ___, ___, 644 S.E.2d 640, 643 (2007) (vacating order when petition alleged dependency, but trial court found neglect).
We note that respondents have not assigned error to the trial court's finding of fact addressing the evidence of the hot iron. They only argue that the evidence was inadmissible. It is apparent from the order's findings of fact that the trial court considered that evidence in connection with the credibility of Kelly's explanation regarding why she had not reported the sexual assault earlier. The court made the following two findings of fact:
17. [Kelly] did not report the sexual assault earlier because she was afraid that if she had to return to the home of the Respondent/Parents, they would retaliate against her.
18. The Respondent/Father treated [Kelly] worse than he did his biological children, [Tracy] and [Lisa], he yelled at her and belittled her on a regular and on-going basis; on one occasion, the Respondent/Father made [Kelly] straighten his hair with a hot iron, [Kelly] accidentally touched his ear with the hot iron, he warned her that if she did it again, he would burn her, she accidentially [sic] touched his ear with the hot iron a second time, and the Respondent/Father took the hot iron, and burned the minor child's arm, twice; the Respondent/Mother was present when this incident occurred, but did nothing.
The juxtaposition of these two findings demonstrates that the evidence of the hot iron, including respondent mother's failure to take any action, was considered in connection with assessing the credibility of Kelly's claim that she was afraid that if she reported the sexual assault, her parents would retaliate against her. We hold that the evidence was relevant for that purpose. See N.C.R. Evid. 401 ("`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").
Significantly, the trial court did not find that respondent father had physically abused Kelly, but rather limited the abuse finding to N.C. Gen. Stat. § 7B-101(1)(d) (2007) (providing that a child is an abused juvenile when a parent commits, permits, or encourages the commission of various sexual offenses with or upon the juvenile).
There is no requirement that a petitioner identify in the petition every piece of evidence upon which it intends to rely. N.C. Gen. Stat. § 7B-402(a) (2007) requires that the petition contain "allegations of facts sufficient to invoke jurisdiction over the juvenile." The allegations need not "be exhaustive or extensive," but simply "must put a party on notice as to what acts, omissions or conditions are at issue." In re Hardesty, 150 N.C.App. 380, 384, 563 S.E.2d 79, 82 (2002). The adjudicatory hearing in turn is "designed to adjudicate the existence or nonexistence of any of the conditions alleged in a petition." N.C. Gen. Stat. § 7B-802. Here, the petition contained sufficient allegations to place respondents on notice that the hearing would address issues regarding sexual misconduct by respondent father as to Kelly and respondent mother's failure to protect Kelly. Those issues were in fact the basis for the trial court's adjudication order. Petitioner was not required to allege evidence that would be offered to corroborate Kelly's testimony and beliefs. We, therefore, overrule this assignment of error.
Respondents next argue that the trial court's findings are not supported by sufficient evidence, and their motion for a new trial should have been granted. Since respondents did not, however, specifically assign error to any of the findings of fact, they are binding and our review is "limited to determining whether the trial court's findings of fact support its conclusions of law. . . ." In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 405 (2005).
In any event, respondents have based their sufficiency of the evidence argument solely on their contention that Kelly is not a credible witness. They argue: "No child in the State of North Carolina should be able to make successfully abuse and neglect allegations against their parents for the sake of having his or her own way in the household. To allow this conduct is to subject every parent to the whim and will of their children." Respondents have disregarded the fact that the trial court believed Kelly, and it is the trial 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 there from." In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984).
Respondents appear to argue alternatively that the order must be reversed as to respondent mother because of the lack of any evidence that she knew about the abuse. As this Court recently held, the trial court in an initial adjudication hearing — in contrast to a termination of parental rights proceeding — is not required to determine the culpability of each parent as to each child. In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007). The Court explained:
The purpose of abuse, neglect and dependency proceedings is for the court to determine whether the juvenile should be adjudicated as having the status of abused, neglected or dependent. . . . The purpose of the adjudication and disposition proceedings should not be morphed on appeal into a question of culpability regarding the conduct of an individual parent.
Id. As a result, respondent mother's lack of knowledge of any abuse does not preclude a determination that the children were abused or neglected.
Respondents make no other arguments regarding the adjudication as to Kelly. With respect to Tracy and Lisa, however, respondents contend that their adjudication as neglected cannot stand since neither was individually subjected to abuse or neglect.
A neglected juvenile is defined as one: who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (emphasis added). Thus, the fact, as found by the trial court, that Kelly was abused and neglected supports the determination that Lisa and Tracy, who were living in the same house as Kelly, were neglected.
In addition to Kelly's abuse, while she was living with Lisa and Tracy, the trial court also found that respondent father admitted offering to buy a sex toy for Kelly, respondent mother admitted the father discussed masturbation and orgasms with Kelly, and respondent mother "thought he was just trying to be a good father." The court also noted respondent mother took no steps to protect Kelly and did not know whether to believe her. Since these findings suggest a lack of awareness of the inappropriateness of the conduct, the findings, in conjunction with the ultimate finding of Kelly's abuse, are sufficient to support a determination that Lisa, at age 13, and Tracy, at age 10, were at risk of being treated similarly to Kelly and thus lived in an environment injurious to their welfare. Significantly, respondents cite no authority and make no specific argument apart from their conclusory assertion of a lack of evidence that "the two other minors in the home were subjected to any abuse or were neglected either at the time of the alleged act against [Kelly] or thereafter." Respondents have, therefore, presented no basis for reversing the court's adjudication of Lisa and Tracy as neglected.
Respondents make no further arguments regarding the adjudication and make no argument at all regarding the court's disposition. We, therefore, affirm the decision below.
Affirmed.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).