NO. COA02-1689
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.
TYSON, Judge.
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 anonsecure 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 thepetition 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 personwith 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 minorchild, 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 terminatingrespondent's parental rights.
Affirmed.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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