Opinion
No. COA02-1689
Filed 1 July 2003 This case not for publication
Appeal by respondent Roy Bartley Smith from order entered 23 September 2002 by Judge Wendy Enochs in Guilford County District Court. Heard in the Court of Appeals 30 June 2003.
Guilford County Attorney's Office, by Deputy County Attorney Michael K. Newby, for petitioner-appellee Guilford County Department of Social Services, and Joyce Terres, Attorney Advocate for Guardian ad Litem. Peter Wood for respondent-appellant Roy Bartley Smith.
Guilford County Nos. 01J321, 322.
Petitioner Guilford County Department of Social Services ("DSS") initiated this action by filing a petition (and amended petition) to terminate respondent Roy Smith's ("respondent") parental rights as to the minor children Amanda Magan Smith, born 8 December 1996, and Morgon Brandy Smith, born 6 June 1998.
I. Background
Respondent is the father of both minor children. He is not and has never been married to the children's mother. The parental rights of the children's mother, Owana Checiana Moore Mullins (Mullins), were terminated on or about 22 July 2002.
The minor children were placed into foster care pursuant to a nonsecure custody order on or about 17 April 2001 after their six year old half sister, Kayla, was severely beaten by respondent. Kayla was Mullins' child by a previous relationship, and was not the child of respondent. In addition, Kayla had been previously sexually abused and tended to act out sexually, but neither Mullins nor respondent sought therapy for the minor child. A DSS investigation showed that on 16 April 2001, when respondent observed Kayla masturbating, he reacted by hitting Kayla with a book and his hands. Respondent also threw the minor child around the room. As a result, Kayla had two black eyes, light to heavy bruising over virtually every part of her body, and a fractured left arm. The minor child's injuries were left untreated until the next day.
Respondent was subsequently arrested and taken into custody by officers of the High Point Police Department, and on 17 November 2001, he was convicted of felony child abuse inflicting serious injury. Respondent has been incarcerated in the county jail or prison since 17 April 2001. Respondent's visitation rights as to his two minor children were suspended, and he has not had any contact with the minor children since being taken into custody — with the exception of three letters that he sent to the children after his incarceration on 17 April 2001. While respondent did send two plastic necklaces and a card, items made by other inmates, to the minor children, DSS prohibited those items being given to the children. Respondent did not attempt to contact DSS, nor seek reunification with the minor children prior to the filing of the petition and amended petition to terminate his parental rights. Prior to the filing of those petitions, respondent's primary concern was that the minor children not be returned to their mother's custody. Consequently, DSS did not develop a reunification case plan for respondent. At the request of respondent, the minor children were placed in the home of respondent's uncle, where they have resided since September 2001. After hearing the evidence and arguments of counsel, the district court found and concluded that it was in the best interests of the minor children that respondent's parental rights be terminated. Respondent appeals.
II. Issues
Respondent argues (1) that the trial court committed reversible error in admitting, over his objections, certain hearsay testimony of DSS caseworker, Angela Roberson, and (2) that the trial court committed prejudicial error in finding that grounds existed to terminate his parental rights.
III. Hearsay
Respondent concedes that the evidence may have been admissible under the business records exception to the hearsay rule. He contends that DSS failed to lay proper foundation for the admission thereunder. We disagree.
Rule 803(6) of the North Carolina Rules of Evidence allows certain records to be admitted into evidence if: "(1) it is a record of acts, events, or conditions, (2) it is made at or near the time [of the act, event, condition], (3) it is made by a person with knowledge, (4) it is kept in the regular course of business, (5) it is the regular practice of that business to make such a record, and (6) such is shown by the testimony of the custodian or other qualified witness." CIT Grp./Commercial Sers., Inc. v. Vitale, 148 N.C. App. 707, 708, 559 S.E.2d 275, 276 (2002) (citing N.C.R. Evid. 803(6)). In CIT Group, the Court stated, "The authenticity of [business] records may be established by circumstantial evidence and there is no requirement that the records be authenticated by the person who made them." Id. at 709, 559 S.E.2d at 276. "If the records themselves show that they were made at or near the time of the transaction in question, the authenticating witness need not testify from personal knowledge that they were made at that time." State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985).
Here, caseworker Angela Roberson was allowed, over the objection of respondent, to testify in regards to and read into evidence a copy of a May 2001 court summary prepared by a previous caseworker. The following exchange occurred:
Q. Ms. Roberson, ah, do you maintain a file on this case?
A. I do.
Q. Okay. And in that file do you keep a, the court summaries that are submitted or prepared for court and submitted to the court?
A. I do.
. . . .
Q. Although you were not [the] social worker in May of 2001, do you have the report from that social worker in your file?
A. Yes.
Q. And is that file ah, one that you are required to maintain in the course of your business and your responsibilities for the Department of Social Services?
A. Yes.
Q. And are all social workers required to maintain their files?
A. Yes.
Q. Um, can you, do you have with you a copy of the May 17th, 2001 court summary?
. . . .
Q. At the top of this page, I'll call your attention to that first paragraph. Can you read that first paragraph to the Court?
A. Date of last contact or attempts to contact, face-to-face contact with Roy Smith at Guilford County Jail, High Point on May, ah, 5-14-01. Mr. Smith stated to worker, "Why is everyone making such a big deal about this? They act like I'm Charles Manson or something." He also said, "It only happened one time, what's the big deal? I snapped." Worker also noted that Ms. Owana Mullins was on the visitation list to see Mr. Smith and that she had visited him four times.
Q. Okay.
MR. HAYWORTH: Your Honor, I renew my objection should this witness has no personal knowledge about these facts [sic].
THE COURT: Okay. Objection will be noted and over ruled [sic].
We conclude that DSS did lay proper foundation to read into evidence portions of a previous caseworker's May 2001 case summary. The case summary meets all of the requirements to be admitted into evidence under the business records exception to the hearsay rule. We further conclude that the trial court did not err in allowing the subject testimony into evidence.
IV. Sufficiency of Evidence
Respondent argues that insufficient evidence supports findings of fact. We note at the outset that although respondent argues generally that there was insufficient evidence to support the trial court's findings of fact, he has failed to assign error to any specific finding. The trial court's findings are binding on this Court. See Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) ("Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding.") We review whether the court's findings are sufficient to support the conclusions of law and order terminating respondent's parental rights.
The trial court determined that DSS had established several grounds under G.S. § 7B-1111(a) for termination of respondent's parental rights: (1) neglect under subsection (1); (2) abandonment under subsection (7); (3) failure to pay child support under subsection (3); (4) willfully leaving the child in foster care under subsection (2); (5) failure to legitimize a child under subsection (5); and (6) commission of a felony assault upon a child under subsection (8). Establishment of any one of those grounds is sufficient to support termination of respondent's parental rights. See In re Shermer, ___ N.C. App. ___, ___, 576 S.E.2d 403, 407(2003) ("a court need only determine that one statutory ground exists in order to move to the dispositional stage").
G.S. § 7B-1111(a)(8) provides that a parent's rights may be terminated if that parent has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home. N.C. Gen. Stat. § 7B-1111(a)(8). Respondent was convicted of felony child abuse inflicting serious injury on his live-in girlfriend's six-year-old daughter. The offense of felony child abuse inflicting serious injury is defined thusly:
(a) A parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts any serious injury upon or to the child or who intentionally commits an assault upon the child which results in any serious physical injury to the child is guilty of a Class E felony.
N.C. Gen. Stat. § 14-318.4 (2001).
The trial court made the following pertinent finding:
1. [O]n April 17, 2001 Guilford County CPS received a report alleging that the mother's oldest child, Kayla Moore, date of birth is June 23, 1994, was beaten by the mother's boyfriend, Roy Smith, resulting in two black eyes, bruising of her cheek bones, left jaw bone, solid bruising on her buttocks and inner right thigh, lighter bruising on her inner left thigh, heavy bruising on her pubic area, linear bruises on both arms with the left arm fractured, bruises at her neck, upper back and left shoulder. The beating occurred due to Smith observing the child masturbating. The two younger children, Amanda Smith and Morgon Smith, were present for the incident and stated later that their daddy beat their sister. Information from other family members indicated that Smith has a problem with domestic violence and has beaten the minor child, Kayla, and her mother in the past and that the mother is afraid of Smith. The mother also reported that the minor child, Kayla, had been sexually molested while living out of the home with relatives in West Virginia and Smith had not allowed the mother to get counseling for the minor child, Kayla. The mother also admitted lying to Randolph County DSS to protect Smith during a previous investigation of allegations that he had hit Kayla in the face with a paddle. The mother stated that this abuse has been on-going since Kayla came to live with them again in 1998. . . . Smith was convicted of felony child abuse in November, 2001 and was sentenced to 23-27 months imprisonment. . . .
The court also made an additional mixed finding of fact and conclusion of law, which was denominated a mere "finding" in the court's order:
6. The Court finds pursuant to G.S. § 7B-111[1](a)(8), Smith committed a felony assault that resulted in serious bodily injury to another child who resided in the family home and has been convicted of that offense and is currently serving a sentence in prison because of that crime.
We conclude that the court's finding of fact and that factual portion of the mixed finding and conclusion, which are presumed to be correct, fully support the Court's conclusion that respondent committed a felony within the meaning of G.S. § 7B-1111(a)(8) and that it was in the best interest of the minor children that his parental rights be terminated. We do not inquire further into the remaining grounds upon which the trial court relied upon in terminating respondent's parental rights as to the two minor children. See Shermer, ___ N.C. App. at ___, 576 S.E.2d at 408.
V. Conclusion
We affirm the order of the trial court terminating respondent's parental rights.
Affirmed.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).