Opinion
NO. COA11-249
08-02-2011
IN THE MATTER OF: T.E. and T.E.
Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for Johnston County Department of Social Services, petitioner-appellee. Pamela Newell, for guardian ad litem. Joyce L. Terres, for respondent-father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Johnston County No. 10 JA 65-66
Appeal by Father from orders entered 18 November 2 010 by Judge Charles Bullock in Johnston County District Court. Heard in the Court of Appeals 5 July 2011.
Holland & O'Connor, P.L.L.C., by Jennifer S. O'Connor, for Johnston County Department of Social Services, petitioner-appellee.
Pamela Newell, for guardian ad litem.
Joyce L. Terres, for respondent-father.
STEELMAN, Judge.
The trial court's findings of fact regarding two incidents of alleged sexual abuse by Father resolved any conflicts in the evidence and were supported by the juvenile's testimony at the adjudication hearing. The findings of fact supported the trial court's conclusion of law that T.E. was an abused juvenile pursuant to N.C. Gen. Stat. § 7B-101(1)(d).
I. Factual and Procedural Background
J.E. (Mother) is the mother of two children: T.E., a sixteen-year-old boy, and T.E. (T.E.), a thirteen-year-old girl. The two children are half siblings who share a common mother, but have different fathers. A.W. (Father) is the father of T.E. The male child is not the subject of this appeal.
On 11 January 2010, the Johnston County Department of Social Services (DSS) received a report concerning alleged domestic violence and sexual abuse in the home shared by T.E., Mother, and Father. The next day, pursuant to a safety agreement, T.E. was placed in the home of her maternal grandparents pending investigation of the report. The maternal grandparents subsequently filed a complaint in Johnston County District Court seeking temporary custody of T.E. On 26 April 2010, the trial court entered an order placing T.E. in DSS's custody. That same day, DSS filed a juvenile petition alleging that T.E. was an abused, neglected, and dependent juvenile.
On 28 April 2010, a non-secure hearing was held and custody of T.E. was given to her paternal aunt and uncle. At the conclusion of the adjudication and disposition hearings on 2 June and 28 July 2010, the trial court adjudicated T.E. abused, neglected, and dependent, and she was to remain in the custody of her paternal aunt and uncle. The trial court filed written orders on 18 November 2010. Father appeals the adjudication of T.E. as an abused juvenile.
II. Standard of Review
"The allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence." N.C. Gen. Stat. § 7B-805 (2009). In reviewing an adjudication order, we determine (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 Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566, appeal dismissed and disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982, 155 L.E. 2d 673 (2003).
Conflicts in the evidence are to be resolved by the trial judge. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000) . The appellate court is bound by the trial judge's findings of fact "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984).
III. Adjudication of Abuse
In his only argument on appeal, Father contends that there was insufficient evidence to support the findings of fact, and that the findings of fact do not support the trial court's conclusion of law that T.E. was an abused juvenile. We disagree.
The trial court made the following findings of fact pertinent to the allegations of abuse:
5. The juvenile, [T.E.], has disclosed on two different occasions that her father touched her inappropriately. The Court finds from the juvenile's testimony as well as testimony of the mother that on one instance in 2009, the juvenile awoke from her sleep to find her father's finger inserted in her rectum. The juvenile came out of her room and woke up her mother to tell her what happened. The Court finds from the mother's own testimony her first reaction was to go and smell the father's fingers to determine whether or not penetration had occurred. The Court finds that the mother asked the juvenile, who was approximately twelve years old at that time what she wanted the mother to do and if she wanted to go to the hospital. Upon the juvenile saying no, the mother did not proceed any further with the action. The Court finds that until this day the mother still does not know what happened that night and who to believe. The Court further finds that the next day the mother went to the juvenile's school during the school session after the juvenile had taken her EOG's, questioned her further about the incident the night before. The Court finds from the mother's testimony that the juvenile is easily intimidated and wants to please everyone. The mother brought the
juvenile out of her classroom and sat with her in the hallway to discuss the matter further. The mother further informed the juvenile that the father was at home very upset and that the juvenile needed to call her father and apologize. The mother and juvenile thereafter went to the principle's [sic] office and the juvenile, at the mother's direction, called the father to apologize.
6. The Court finds that on the second occasion in the summer of 2009, the juvenile was trying on her bathing suit in preparation for a trip to the beach. The juvenile's father came into the room that the juvenile was trying on the bathing suit and placed his hand on her vaginal area over her clothing. The Court finds that the father provided the explanation to the JCDSS as well as the mother that he was trying to see if the bathing suit still fit the juvenile as it was a year old. The mother was not immediately advised of this occurrence; however, when advised she informed the father that was her job and he should not do that.
7. The Court finds that the mother advised [T.E.'s half-brother] not to leave the juvenile, [T.E.] alone at any time with the father. The Court finds that the testimony with regards to these allegations by the juveniles were creditable [sic], the Court does not find the mother's testimony or explanation with regards to these allegations as creditable [sic]. The Court finds that after the mother was advised of the allegations against her husband she did not take any steps to protect the minor child or remove the minor child from the father's home. The Court finds that a copy of a court order dated April 24, 2010, signed by Jimmy L. Love, Jr. during the
domestic court action[] found that the juvenile was sexually abused.
. . . .
10. The Court finds by clear, cogent and convincing evidence that the juvenile, [T.E.], is an abused juvenile, pursuant to NCGS 7B-101(d). The Court finds that both juveniles are neglected pursuant to the provisions to NCGS 7B101(15) in that they lived in an environment injurious to their health and welfare and did not receive proper care and supervision. The Court further finds by clear, cogent and convincing evidence that the juveniles are dependent pursuant to NCGS 7B-101(9) in that they did not have a parent who was willing and able to provide proper care and supervision and lacked an appropriate alternative care arrangement.
A. Challenged Findings of Fact
Father first challenges findings of fact 5 and 6, and argues that these findings (1) do not resolve conflicts in the evidence and (2) are not supported by the evidence.
As to finding of fact 5, Father contends that T.E.'s testimony regarding the first alleged sexual assault was contradictory to evidence presented from her mother who stated that T.E. might have been dreaming and wanted to go back to bed. Father argues that because there was conflicting evidence, the trial court was required to make a determination about what, if anything, occurred. However, an examination of the trial court's findings of fact establish that the trial court did make such a determination.
In finding of fact 5, the trial court explicitly found the following: "on one instance in 2 009, the juvenile awoke from her sleep to find her father's finger inserted in her rectum. The juvenile came out of her room and woke up her mother to tell her what happened." The evidence presented at the adjudication hearing supports this finding.
At the hearing, T.E. testified that Father inappropriately touched her on two occasions. As to the first incident, she stated that she "was asleep and [Father] was touching [her] on [her] butt." T.E. testified that she was lying in bed when she felt "[Father's] finger inside of [her] butt." T.E. opened her eyes and saw Father walk out of her bedroom. T.E. got out of bed and told Mother what had happened.
As to Mother's testimony at the hearing that T.E. was simply "dreaming," the trial court did "not find the mother's testimony or explanation with regards to these allegations as [credible]." The trial court's finding of fact 5 resolved any conflict in the evidence presented at the hearing and is supported by competent evidence.
As to finding of fact 6, Father argues that the trial court failed to resolve conflicting evidence regarding the second alleged incident of abuse as to whether he placed his hand over T.E.'s vaginal area and rubbed the area, or only pulled on the bathing suit she had tried on in preparation of a trip to the beach. T.E. testified to the former while Mother testified to the latter. The trial court resolved any conflict by finding Father placed his hand over T.E.'s vaginal area and that "the testimony with regards to these allegations by the juveniles were [credible.]" The trial court's finding of fact 6 resolved any conflict in the evidence presented at the hearing and is supported by competent evidence.
Father next challenges the portion of finding of fact 7 in which the trial court found that another district court judge in a domestic action found that T.E. had been sexually abused. Father argues that the trial court should not have made the finding because the other action involved a lesser standard of proof than clear and convincing evidence.
We find nothing to indicate that the trial court used the finding in the domestic action as the basis for its adjudication in the instant case. Rather, the trial court heard evidence from T.E. as to two alleged incidents of sexual abuse from
Father and found her testimony to be credible. The trial court then made specific findings of fact to resolve these issues. Findings of fact 5, 6, and the unchallenged portion of 7 support the trial court's ultimate adjudication. Thus, the inclusion of the portion of finding of fact 7 regarding the district court's order does not constitute reversible error. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) (holding that where other findings of fact support an adjudication, erroneous findings unnecessary to the determination do not constitute reversible error).
B. Conclusions of Law
Father also argues that the trial court's findings of fact are insufficient to support a conclusion of law that T.E. was an abused juvenile. More specifically, Father contends that the trial court's conclusion that T.E. was an abused juvenile was erroneous because the order "did not specify any criminal statute applicable to this case. The court should have made specific findings and conclusions regarding the elements of any of the applicable statutes." We disagree.
At the outset, we note that in finding of fact 10, the trial court made the determination that T.E. was an abused juvenile. See In re Ellis, 135 N.C. App. 338, 340, 520 S.E.2d 118, 120 (1999) ("Whether a child is neglected or abused is a conclusion of law." (citation omitted)). Where a finding of fact which is more properly characterized as a conclusion of law, it will be treated as such on appeal. In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404, 409 (2007).
The trial court concluded that "[ T.E.] is an abused juvenile, pursuant to NCGS 7B-101(d)." We note that the trial court made a clerical error when citing the statute for an abused juvenile as it should have cited N.C. Gen. Stat. § 7B-101(1)(d). However, because the trial court clearly and specifically set forth the subsection under which it found T.E. to be abused, subsection (d) sexual abuse, we need not remand this case to the trial court for further clarification. Contra
In re T.M.M., 167 N.C. App. 801, 803-04, 606 S.E.2d 416, 417-18 (2005).
N.C. Gen. Stat. § 7B-101(1)(d) defines an abused juvenile as one whose parent:
d. Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: first-degree rape, as provided in G.S. 14-27.2; rape of a child by an adult offender, as provided in G.S. 14-27.2A; second degree rape as provided in G.S. 14-27.3; first-degree sexual offense, as provided in G.S. 14-27.4; sexual offense with a child by an adult offender, as provided in G.S. 14-N.C. Gen. Stat. § 7B-101(1)(d) (2009).
27.4A; second degree sexual offense, as provided in G.S. 14-27.5; sexual act by a custodian, as provided in G.S. 14-27.7; crime against nature, as provided in G.S. 14-177; incest, as provided in G.S. 14-178; preparation of obscene photographs, slides, or motion pictures of the juvenile, as provided in G.S. 14-190.5; employing or permitting the juvenile to assist in a violation of the obscenity laws as provided in G.S. 14-190.6; dissemination of obscene material to the juvenile as provided in G.S. 14-190.7 and G.S. 14-190.8; displaying or disseminating material harmful to the juvenile as provided in G.S. 14-190.14 and G.S. 14-190.15; first and second degree sexual exploitation of the juvenile as provided in G.S. 14-190.16 and G.S. 14190.17; promoting the prostitution of the juvenile as provided in G.S. 14-190.18; and taking indecent liberties with the juvenile, as provided in G.S. 14-202.1[.]
As stated above, the trial court found by clear and convincing evidence that: (1) in 2009, T.E. awoke from her sleep to find Father's finger inserted in her rectum; and (2) in the summer of 2009, T.E. was trying on her bathing suit in preparation for a trip to the beach, and Father came into the room and placed his hand on her vaginal area over her clothing.
Father's inappropriate touching of T.E.'s vaginal area is sufficient to establish that he took indecent liberties with his daughter pursuant to N.C. Gen. Stat. § 14-202.1. See In re Duffy, 162 N.C. App. 547, 591 S.E.2d 598 (2004) (unpublished); see also State v. Slone, 76 N.C. App. 628, 631, 334 S.E.2d 78, 80 (1985) . Further, Father's insertion of his finger into T.E.'s rectum would constitute first-degree sexual offense pursuant to N.C. Gen. Stat. 14-27.4. See State v. Santiago, 148 N.C. App. 62, 69, 557 S.E.2d 601, 606 (2001), disc, review denied, 355 N.C. 291; 561 S.E.2d 499 (2002). We note that the statute does not require that the parent be convicted of the criminal offenses for the child to be adjudicated as abused pursuant to N.C. Gen. Stat. § 7B-101(1)(d). We hold that the trial court's findings of fact support the conclusion of law that T.E. was an abused juvenile pursuant to N.C. Gen. Stat. § 7B-101(1)(d).
The trial court's adjudication order is affirmed.
AFFIRMED.
Judges HUNTER, Robert C. and McCULLOUGH concur.
Report per Rule 30(e).