Opinion
COA23-1139
11-19-2024
RUBY CASHAWN BROOKS (now PRICE), Plaintiff, v. DAVID JEROME BROOKS, Defendant.
Wilson, Lackey & Rohr, P.C., by Timothy J. Rohr and Destin C. Hall, for plaintiff-appellee. Wesley Starnes, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 25 September 2024.
Appeal by defendant from order entered 17 November 2022 by Judge Clifton Smith in District Court, Caldwell County No. 15 CVD 430.
Wilson, Lackey & Rohr, P.C., by Timothy J. Rohr and Destin C. Hall, for plaintiff-appellee.
Wesley Starnes, for defendant-appellant.
ARROWOOD, JUDGE.
David Brooks ("defendant") appeals from the trial court's order granting Ruby Brooks ("plaintiff") full custody of plaintiff's and defendant's shared child and denying defendant visitation. For the following reasons, we affirm.
I. Background
Defendant and plaintiff were married 28 September 2013, and plaintiff gave birth to E.B., the couple's only child, on 12 March 2014. On 16 April 2015 the parties separated and later divorced. On 23 July 2015 the District Court entered a consent order granting joint custody, with plaintiff receiving primary placement and defendant receiving placement every other weekend, as well as Tuesday evenings and Wednesdays.
Initials are used throughout the opinion to protect the identity of the juvenile.
On 28 December 2018, plaintiff filed an ex parte motion seeking to modify the child custody order, alleging a substantial and material change in circumstances in that defendant had sexually abused E.B. and seeking sole custody of E.B. On 4 January 2019 the court granted a temporary modification of the custody order, requiring that visitation between E.B. and defendant be supervised by defendant's parents. In February 2020, following a DSS investigation, plaintiff was granted non-secure custody of E.B., after which point E.B. stayed only with plaintiff. On 17 November 2022 following 9 days of hearing the court entered an order granting sole legal and physical custody to plaintiff and denying defendant visitation rights. From this order, defendant appealed.
The evidence, both testimonial and documentary, offered at the hearings tended to show the following. E.B. had a seizure for the first time in August 2017 while in defendant's care. E.B. had other incidents resembling seizures between this time and September or October 2019, when the incidents stopped. During the hearing, Jean Ann Trull ("Trull"), a pediatric nurse practitioner at Atrium Health Wake Forest Baptist who treated E.B. for seizures from September 2017 to August 2020, testified there were six potential causes of seizures in children: brain lesion, hereditary, genetic anomaly, fever, head injury, and stress. On 15 January 2019, E.B. was diagnosed with non-lesional focal epilepsy, ruling out brain lesion as a cause. Trull noted that a discharge note from E.B.'s hospital visit in 2018 ruled out both fever and head injury as potential causes. Although E.B. did have a family history of seizures, a genetic test on 18 February 2019 ruled out genetics as a cause. Trull testified that having epilepsy, which E.B. had been diagnosed with, makes someone more prone to stress seizures, and further testified that sex abuse could cause the type of stress resulting in seizures.
Plaintiff testified that in May 2018, E.B. would refuse to take a bath or remove his clothes and would scream when around defendant. Then, in October 2018, when defendant arrived to pick E.B. for visitation, E.B. began screaming, more severely than in May, that he did not want to go with defendant. Following this incident, plaintiff contacted the police department, and E.B. went to Robin's Nest, a children's advocacy center, in November 2018, although he was unable to complete a forensic exam. In October 2018, E.B. also began therapy at a location called New Directions, where he saw therapist Amy Neal ("Neal"). In December 2018, plaintiff changed the therapist to Melissa Austin ("Austin") at The Hope Studio, because she did not think Neal was a good fit, nor did she work well with plaintiff's work schedule.
At the time of trial, Austin held a Master's in counseling and was licensed by both North Carolina and a national governing body; she was also a certified trauma professional and certified brain spotting specialist. Austin testified at trial, stating that when treating children such as E.B., she relies on a "reality therapy approach," which works with what child patients know to be to real and true. According to Austin, during E.B.'s first visit he "destroyed" the office - broke flowers, threw books and other objects on the floor, took off his shirt, urinated on the sectional, and rubbed his genitals on the drapes. He would also continually repeat the phrase "no go daddy." Austin concluded that E.B. was engaged in sexually reactive behaviors during this therapy session. Austin had another session with E.B. two days later, on 14 December, where he behaved "much better" but repeated "no go daddy." After this meeting, Austin diagnosed E.B. with post-traumatic stress disorder ("PTSD"). E.B.'s final meeting with Austin was on 14 February 2019, where Austin maintained the diagnosis of PTSD.
After seeing Austin, E.B. saw Jennifer Gold ("Gold"), director of the Burke County Advocacy Center and a clinical mental health counselor, from February 2019 until February 2021. Gold testified that her intention for E.B.'s first meeting was to conduct a comprehensive clinical assessment, but that he became "dysregulated," engaging in chaotic behavior and preventing the assessment. Later that month, Gold completed a young child PTSD checklist with E.B., who scored a 70, with a probable PTSD diagnosis being a 26. This was the highest score Gold had ever seen. Gold made several treatment recommendations, including trauma specific therapy and no contact with E.B.'s father.
Over the next two months, E.B.'s behavior improved, albeit inconsistently. On 15 May 2019, when asked by Gold to share one sentence about his trauma, E.B. said, "My daddy touching it," while pointing towards his genitals, which was the first time he mentioned to Gold that his father was touching him there. At this time, Gold was engaged in "gradual exposure" therapy with E.B., which "is the process of gradually exposing the child to reminders of the traumatic thing they've experienced as a way of helping them to increase their ability to tolerate the distress around remembering that event." Gold clarified that this therapy did not involve suggesting to E.B. that he had been sexually abused.
Gold met frequently with E.B. over the ensuing months, who continued to disclose defendant's abusive behavior. On 2 September 2019, E.B. told Gold that defendant had been touching his stomach, bottom, legs, and genitals, and that defendant whipped E.B. with his belt and "dick." After this meeting, Gold made a report to Child Protective Services. Gold's final meeting with E.B. was on 17 February 2021, when she completed a discharge summary in which she noted that E.B.'s symptoms had decreased significantly, and that the decrease was "positively correlated to no contact" with defendant.
In 2019, at the same time he was seeing Gold, E.B. received treatment at Mountain Area Health Education Center, seeing Dr. Abraham Bombeck ("Dr. Bombeck"), a psychiatric resident in training. Dr. Bombeck saw E.B. for an appointment for the first time on 14 August 2019, at the conclusion of which Dr. Bombeck diagnosed E.B. with PTSD. However, in May 2021, Dr. Bombeck noted that E.B. was "happy . . . not exhibiting any signs of hypervigilance, mood dysregulation . . . . It would not have occurred to me that he was a person who was struggling in any way with PTSD symptoms." Dr. Bombeck further testified that E.B.'s hypervigilance began to improve once visits with defendant were stopped.
On 4 June 2019, Dr. Gordon Cappelletty ("Dr. Cappelletty"), a psychologist and, at the time of trial, a professor of psychology at Lenoir-Rhyne University, began a series of five interviews with E.B. Dr. Cappelletty testified that E.B. would not separate from plaintiff, and that it was impossible to do the interview with him alone. One of Dr. Cappelletty's tests showed E.B. to have at least average intellectual ability, and that as a result his difficulties were more likely due to emotional or behavioral factors. Dr. Cappelletty testified that he found "absolutely no evidence of [PTSD] . . . [,]" but he did testify that E.B.'s PTSD symptoms could have subsided as a result of Gold's treatment.
In its order the trial court made the following relevant findings of fact in support of its modification of the custody order:
10. On April 10, 2018, after being under his father's care, the minor child was coming home from T-Ball game with father. While driving home, [E.B.] became unresponsive and started foaming at the mouth. Defendant Father immediately altered his course and
drove [E.B.] to Davis Hospital. He was transferred to Wake Forest Baptist Medical Center. He was proscribed (sic) Keppra after treatment.
14. [E.B.] was having epileptic discharges from right side of his brain known also as focal Epilepsy. His type of Epilepsy means that he is more likely and prone to have seizures caused by stress. A medical test was done and determined that there was not a genetic or hereditary explanation for seizure. The Abnormal Brain test indicated [E.B.] could have stress-induced seizures. Stress is the most likely cause of [E.B.]'s seizures. Sexual abuse of a child is stress that is sufficient to induce seizures.
17.[E.B.]'s behavior began to change around May 2018 and leading up to October 23, 2018. [E.B.] began to not want to take a bath, tighten up his clothing, and scream when around Defendant Father. This is due to the sexual abuse he was receiving from his father that he would tell about later.
18. In October 2018, [E.B.] suffered two seizures within four days. The only credible evidence is that these were stress induced seizures. The only credible evidence of [E.B.]'s stress source is that stress caused by sexual abuse on [E.B.] by Defendant Father.
20. October 23, 2018, was the first time father's visitation was ever denied to the father for any reason other than a minor scheduling disagreement.
27. Beginning October 23, 2018 and through November 29, 2019, [E.B.] told his mother and sisters of sexual abuse by his father upon himself.
35. Also during the first visit, [E.B.] pulled back behind his mother upon entering the first appointment and was reluctant to speak. He went to the bathroom and then came out and threw a lamp, pinguin (sic), and cushions onto the floor. [E.B.] went to the bathroom again and after her came out urinated on the floor, took all his clothes off, turned the door know and checked the door lock, and rubbed his penis on the curtain. While caressing genitals naked, counselor stated, "We don't do things like that here," [E.B.] responded, "daddy does." [E.B.] then stuck his middle finger into his rectum. Counselor asked, "Where did you see this?" [E.B.] responded, "DADDY." (sic) [E.B.] was acting out sexually due to the inappropriate sexual conduct he witnessed from Defendant Father and sexual abuse by Defendant Father.
80. On June 18, 2019, [E.B.] told Jennifer Gold that he felt scared when his father touched his "private part." [E.B.] was telling about an actual event of wrongful touching by his father.
100. On December 3, 2019, Jennifer Gold asked [E.B.] to draw how you feel. [E.B.] stated, "Me dad is mean, me dad get red. Me mom say bad words, me not say them. My paw good. Him not go to jail." [E.B.] did not want his father to go to jail and felt pressured to protect his father in what he said. [E.B.] was still being ordered to have visitation with his father.
112. In February 2020, DSS got an order to stop visitation and Defendant Father has not been around [E.B.] since that date. Since February 2020, [E.B.] has flourished in his behaviors and scholastic performance based upon his abilities.
118. Younger children, at time of abuse disclosure, are far less likely to fabricate an abuse statement. At many counseling session with Jennifer Gold, [E.B.] carried a teddy bear and wore a vest he had received from BACA.
119. Although they occurred prior to entry of the last order, the court finds the following:
In 1993, Defendant Father was convicted of assaulting a child under 12 by inappropriately touching and rubbing a seven-year-old girl. The victim was [A.C.], she was Michele Greene Brooks' cousin. Michelle Brooks was Defendant Father's first wife. Defendant Father was not truthful in his summary of this event to Plaintiff Mother prior to July 23, 2015. Defendant Father never told Plaintiff Mother that he inappropriately touched a seven-year-old girl. These facts were previously undisclosed to the court in this case and relevant to the welfare of the child . . . .
131. [E.B.]'s explanation of sexual contact by Defendant Father was never flippant or fanciful. Every disclosure by [E.B.] of sexual contact by his father was made without wavering or use of make-believe words or circumstances. These statements were not verbose or extremely detailed, but were as descriptive as possible based upon his age at the time of the abuse. [E.B.] never recanted his statements of sexual contact or altered the perpetrator of his sexualized behaviors, comments, and experiences by his father. There is no credible evidence of the child acting out sexually or
speaking of sexual contact from anyone or in any setting, except those referring to Defendant Father. These statements were spread over at least 20 months and made to at least three different professionals and additional lay persons. When [E.B.] spoke of time with Defendant Father, he faithfully told of sexual abuse and those statements were often in the most unsuggestive settings possible for revealing the truth of his concerns about his father.
II. Discussion
Defendant contends that the trial court erred in five ways: one, by admitting hearsay testimony of the minor child concerning the alleged sexual abuse; two, by admitting into evidence and considering defendant's conviction of assaulting a child under the age of 12; three, by considering improper evidence of alleged sexual abuse; four, by making 30 findings of fact not supported by competent evidence; and five, by failing to resolve by a finding of fact issues raised by the evidence. We address each argument in turn.
A. Admission of Hearsay
"A trial court's determination that an out-of-court statement is inadmissible under Rule 803(4) is reviewed de novo." State v. Corbett, 376 N.C. 799, 811 (2021) (citations omitted).
Under the North Carolina Rules of Evidence, hearsay, an out of court statement made for the truth of the matter asserted, is generally inadmissible. N.C. G.S. § 8C-1, Rule 801, 802. However, a variety of exceptions apply to this general rule, including the medical diagnosis exception, which applies whether or not the declarant is available to testify. Id., Rule 803(4). The hearsay rule will not apply to "statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Id.
Both plaintiff and defendant cite State v. Hinnant, 351 N.C. 277 (2000), on the issue of the minor child's hearsay. In Hinnant, our Supreme Court stated, "Rule 803(4) requires a two-part inquiry: (1) whether the declarant's statements were made for purposes of medical diagnosis or treatment; and (2) whether the declarant's statements were reasonably pertinent to diagnosis or treatment." Id. at 284 (citations omitted). The underlying rationale of the exception is that statements made with the purpose of medical diagnosis are inherently reliable, given that the declarant's health or life may be at stake. Id. at 284-85. Thus, statements that are made "solely for the purpose of trial preparation" may be inadmissible, but those "motivated by the express purpose of receiving medical treatment" will almost certainly be admissible. Id. This motivation is critical, and "the proponent of Rule 803(4) testimony must affirmatively establish that the declarant had the requisite intent by demonstrating that the declarant made the statements understanding that they would lead to medical diagnosis or treatment." Id. at 287.
The determination of whether the declarant understood the purpose of their statements becomes more complicated when the declarant is a child, and the "trial court should consider all objective circumstances of record" surrounding the statements in making this determination. Id. at 287-88. In Hinnant, the Court found that the minor's statements did not have a treatment motive for several reasons. Id. at 289. No one explained the medical purpose of the interview to the child, and the interview was held in a "child-friendly" room rather than a medical environment. Id. at 289-90. Further, the interview was conducted using leading questions while pointing at a doll, running the risk of planting ideas in the child's mind. Id. at 290 (citations omitted).
The second determination the trial court must make is whether the statements were pertinent to a medical diagnosis. Id. at 289. The Court said in Hinnant that minor's statements were not pertinent, given that they were made two weeks after the initial medical exam, which had revealed no signs of trauma. Id. at 290-91.
Our Supreme Court expanded upon the first prong of Hinnant in Corbett. There, two children were interviewed to determine if they had experienced abuse and to potentially diagnose them as victims of child abuse, a diagnosis they both eventually received. Corbett, 376 N.C. at 806-807. The trial court ruled these statements as inadmissible hearsay, but our Supreme Court overturned this ruling on appeal. Id. at 808, 832-33.
The Corbett Court determined that three factors from Hinnant were the most probative when examining the first prong as it related to the children: "(1) whether 'some adult explained to the child the need for treatment and the importance of truthfulness'; (2) 'with whom, and under what circumstances, the declarant was speaking'; and (3) 'the surrounding circumstances, including the setting of the interview and the nature of the questioning.'" Id. at 812-13 (quoting Hinnant, 351 N.C. at 287-88).
First, the children were properly informed of the process of the interview and the need to tell the truth. Corbett, 376 N.C. at 813. Second, "the children were interviewed by a trained professional specifically employed to elicit truthful information from children suspected to have recently experienced child abuse." Id. at 814. The Court noted that the person receiving the statements need not be a doctor, and focused rather on indicia of reliability, including frequent references to physicians. Id. Finally, the setting of the interviews and type of questioning support reliability. Id. at 815. The interview took place close to where the children were physically examined, and "[t]he physical examination immediately followed the forensic interview," making it clear to the children that everything was part of one integrated process. Id. at 815-16.
The parties, in their briefs, focus on the first Hinnant prong, the intent of the declarant in making the statements at issue, and disagree as to the weight we should assign to Corbett. Plaintiff is correct in that Hinnant insists that all objective circumstances must be considered, and there are circumstances present in the case sub judice that were not present in the factual scenario of Corbett, such as the use of a drug like Keppra. We address the Corbett factors first.
The first factor, whether or not the child was informed of the need to tell the truth, weighs in favor of plaintiff. Austin testified that E.B. knew the difference between a truth and lie, and that they talked about this difference. Gold had multiple conversations with E.B. about the importance of telling the truth. Beth Dagenhart, who performed a forensic interview of E.B. in February 2020 where E.B. stated that defendant put his "dick" in E.B.'s "butt," asked E.B. to tell her the truth, who said that he would. This is in contrast to Hinnant, where the need to tell the truth was not explained. Hinnant, 351 N.C. at 289-90.
The second factor, the person receiving the statements and the conditions under which they were received, weigh in favor of plaintiff. E.B. made the statements in question to trained experts. Although none of them were doctors, Corbett does not make this a requirement. Corbett, 376 N.C. at 814. Defendant notes that Gold's office was designed to be child-friendly, a quality the Hinnant court took issue with. While this is true, there is a 21-year gap between Hinnant and Corbett. The Corbett court noted that the children's interviewers "utilize this method of evaluating children to increase the likelihood that the information the physician receives will be reliable. Based on existing best practices developed by medical professionals treating child abuse victims, their approach supports, rather than detracts from, the reliability of Jack's and Sarah's statements." Corbett, 376 N.C. at 815. We likewise find that the child friendly nature of Gold's office supports the reliability of E.B.'s statements.
Finally, the third factor lends itself in plaintiff's favor. E.B.'s forensic interview was at South Mountain Children's Advocacy Center, where they have a medical room and perform medical examinations. E.B.'s medical examination occurred before his forensic interview. Corbett noted that the children's forensic interview "took place 'one room down and across the hall' from the room where the children were physically examined by the treating physician." Id. at 815. In Corbett, the physical examination occurred immediately after the forensic interview; the Supreme Court noted this spatial and temporal proximity was "a strong objective indicator that the children understood the forensic interview and the physical examination as two aspects of a single, integrated process[.]" Id. at 815-16. Similarly here, the medical evaluation process took place in close spatial and temporal proximity.
Defendant lists a significant amount of evidence he contends militates against a finding of reliability. This includes the fact that E.B. was taking Keppra, which Dr. Bombeck testified can cause hallucinations and fantasizing; rectal insertion of the medication Diazepam; Gold's process of "dream rehearsal" and her interpretation of non-verbal communication; E.B.'s interactions with Bikers Against Child Abuse; and the bias found in custody cases where one parent has great influence over the child. Although defendant marshals a list of considerable length, he ultimately trades in speculation, which fails to surmount the wealth of evidence favoring reliability seen above.
In addition, where defendant does not engage in pure speculation, his evidence against reliability consists of isolated incidents. We address two contentions by way of illustration. It is true that Keppra can cause fantasizing, yet the only evidence of fantasizing defendant cites is E.B.'s ambiguous claims about throwing rocks. Defendant asserts that a parent's influence can introduce bias into the proceedings but does not support his contention in any way. Thus, we find the trial court did not err in the admission of this testimony.
B. Admissibility of Defendant's Conviction
"The standard of review for admission of evidence over objection is whether it was admissible as a matter of law, and if so, whether the trial court abused its discretion in admitting the evidence." State v. Bodden, 190 N.C.App. 505, 512 (2008) (citation omitted). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Elliott, 360 N.C. 400, 419, (2006) (citation and quotations omitted). "But, even if the admission of evidence was error, in order to reverse the trial court, the appellant must establish the error was prejudicial. If the other evidence presented was sufficient to convict the defendant, then no prejudicial error occurred." State v. James, 224 N.C.App. 164, 166 (2012) (cleaned up).
Under the North Carolina Rules of Evidence, if it is for "the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination or thereafter." N.C. G.S. § 8C-1, Rule 609(a) (emphasis added). However, this rule is time bound. Convictions more than 10 years old are not admissible, unless the court determines, supported by specific facts and circumstances, that the probative value of the conviction outweighs its prejudicial effect. Id., Rule 609(b). If a conviction this old is to be used, the proponent must give the opposing party advanced written notice and the opportunity to contest the evidence. Id.
The trial court, relying upon the Rules of Evidence, ruled that the admission of defendant's 1996 conviction for assault on a child "would be more prejudicial than it would be the probative value of it (sic) as it relates to the credibility of a witness." Even though this was the trial court's finding, the conviction was still admitted. However, this admission was proper, as it was relevant to the change of E.B.'s circumstances.
Relevant evidence is anything tending to make a material fact more or less probable. N.C. G.S. § 8C-1, Rule 401. Relevant evidence is generally admissible, but it may be excluded on the grounds that its prejudicial effect substantially outweighs the probative value. Id., Rule 402, 403. Relevant evidence in the context of a child support order modification would include evidence relating to change of circumstances. "A trial court may order the modification of an existing child custody order if the court determines that there has been a substantial change of circumstances affecting the child's welfare and that modification is in the child's best interests." Spoon v. Spoon, 233 N.C.App. 38, 41 (2014) (citation omitted). Courts are permitted to consider only those" 'events which occurred after the entry of the previous order' when deciding whether a substantial change in circumstances occurred, and information previously disclosed to the court prior to the hearing on the motion to modify custody is res judicata with regard to a substantial change in circumstances determination." Peeler v. Joseph, 263 N.C.App. 198, 201 (2018) (quoting Woodring v. Woodring, 227 N.C.App. 638, 646 (2013)). However, if those events were not previously disclosed, then they are not barred, and the court may consider them. Peeler, 263 N.C.App. at 201.
In the case sub judice¸ the trial court, in Finding of Fact 119, determined that "Defendant Father was not truthful in his summary of [the assault] prior to July 23, 2015," and "never told Plaintiff Mother that he inappropriately touched a seven-year-old girl." Because this information about the conviction was not revealed before the initial custody order, the court was not barred from considering it in determining whether or not there was a change in circumstances. The court properly admitted defendant's criminal conviction, as it was relevant to the issue of the change in circumstance of E.B. Therefore, we find no abuse of discretion.
C. Admission of Evidence of Minor's PTSD
Defendant contends, relying on State v. Hall¸ 330 N.C. 808 (1992), that the trial court erroneously admitted evidence of E.B.'s PTSD and sexually reactive behavior. We disagree.
While defendant contends that the trial court erred by introducing evidence of a sexually reactive behavior, the body of his argument only addresses the introduction of E.B.'s PTSD; our analysis in turn concerns the evidence of PTSD.
Evidentiary rulings are reviewed for abuse of discretion. See supra Section II.B. In Hall, the Court held that admission of evidence of conversion reaction and post-traumatic stress disorder "constitutes error where offered for the substantive purpose of proving that the rape did in fact occur." Hall, 330 N.C. at 811. However, the Court further held that they would "not exclude such evidence for all purposes and hold that it may be admitted for certain corroborative purposes." Id. at 821. "Although we find that evidence of post-traumatic stress syndrome does not alone prove that sexual abuse has in fact occurred, we believe that this should not preclude its admission at trial where the relevance to certain disputed issues has been shown by the prosecution." Id.
In Finding of Fact 14, the trial court found that "[s]tress is the most likely cause of minor child's seizures. Sexual abuse of a child is stress that is sufficient to induce seizures." However, the court explicitly noted during the trial that it would not consider E.B.'s PTSD as substantive evidence of sexual abuse, but rather as corroborating evidence:
THE COURT: As it relates to sexual abuse, I will find that it is, if at all, that PTSD will only be admitted for corroborative purposes as it relates to the sexual abuse. It may be received for other purposes as well. As it relates to proving or disproving sexual abuse, it would only be
received for corroborative purposes of that fact.
Therefore, we find the Court did not err in the admission of this evidence for the limited purposes stated.
D. Trial Court's Finding of Facts
"When reviewing a judgment from a bench trial, our standard of review is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." Southern Seeding Serv., Inc. v. W.C. English, Inc., 217 N.C.App. 300, 303 (2011) (cleaned up).
Defendant contests the following findings of fact in his brief and reply brief: 14, 17, 18, 27, 35, 46, 47, 48, 49, 50, 70, 80, 84, 87, 91, 93, 94, 98, 99, 100, 101, 102, 103, 106, 107, 108, 109, 115, 119, 130, 131, 133, and 136. Defendant's sole contention is that theses findings of fact rely upon inadmissible hearsay from the child's therapists. However, in Section II we determined that this testimony fell under the medical diagnosis exception and was thereby admissible. Therefore, these findings of fact are supported by competent evidence.
E. Trial Court's Failure to Resolve Issues Raised by Evidence
"In a child custody case, the trial court's findings of fact are conclusive on appeal if supported by substantial evidence, even if there is sufficient evidence to support contrary findings." Peters v. Pennington, 210 N.C.App. 1, 12-13 (2011). "The trial court's conclusions of law must be supported by adequate findings of fact," and "[w]hether a district court has utilized the proper custody modification standard is a question of law we review de novo." Id. at 13 (citations omitted).
We have held previously that a custody order should not include findings "as to each piece of evidence presented at trial"; however, the order "must resolve the material, disputed issues raised by the evidence." Carpenter v. Carpenter¸ 225 N.C.App. 269, 273 (2013). "[A] custody order is fatally defective where it fails to make detailed findings of fact from which an appellate court can determine that the order is in the best interest of the child . . . ." Dixon v. Dixon, 67 N.C.App. 73, 76-77 (1984) (citations omitted). In the case sub judice, the trial court made 136 findings of fact; many of these findings of fact stated that E.B. was sexually abused by his father, which provides more than enough grounds for us to determine, as Dixon requires, that the order is in the best interest of the child.
Defendant, in his brief, raises several evidentiary issues he contends the trial court erroneously neglected to address in its order. These include E.B.'s use of Keppra (a drug Dr. Bombeck testified could cause hallucinations and fantasies), the fact that E.B. was encouraged to speak with another minor about his experiences, a statement E.B. made about defendant throwing rocks and stealing cars that defendant alleges are "fantastical," and finally, Gold's destruction of a narrative she created with E.B. after the issuance of a subpoena.
These evidentiary issues do not meet the materiality standard required by Carpenter, given the immense weight of the evidence in favor of modification. Concerning the use of Keppra, which may be the most serious of the issues defendant raises, we note that the trial court took it under consideration during the hearing, ruling, "It'll go to a (sic) weight, not admissibility." Thus, we find no error in the trial court's lack of findings as alleged by defendant.
III. Conclusion
For the foregoing reasons, we affirm the trial court's Order.
AFFIRMED.
Judges CARPENTER and STADING concur.
Report per Rule 30(e).