Appeal by respondent from adjudication and disposition orders
filed 12 July 2002 by Judge Robert M. Brady in Caldwell County
District Court. Heard in the Court of Appeals 15 October 2003.
Lauren Vaughan for petitioner-appellee Caldwell County
Department of Social Services.
Janet K. Ledbetter for respondent-appellant.
BRYANT, Judge.
Mark Morgan (respondent) appeals adjudication and disposition
orders filed 12 July 2002 finding his stepdaughter C.H. to be an
abused juvenile and his daughter K.M. to be neglected.
The Caldwell County Department of Social Services (DSS) filed
petitions dated 25 January 2002 alleging C.H. to be an abused,
neglected, and dependent juvenile and K.M. to be a neglected and
dependent juvenile. At the hearing before the trial court, C.H.,
who was ten years old at the time, testified that her stepfather,
respondent, had lived with her and her mother since C.H. was
twenty-two months old. Between fourth and fifth grade, respondent
began touching C.H. in inappropriate places “[m]aybe twice a
month.” C.H. stated respondent “would touch [her] butt[,] he wouldtouch [her] cooter[
(See footnote 1)
] and sometimes put his finger in [her]
cooter[,] touch [her] breasts and lick . . . [her] neck and suck on
it.” She further added that respondent had previously tried to put
his tongue in her mouth, shown her his penis, and tried to get her
to touch him “on the outside of his clothes between his legs.”
During the touching, respondent would ask C.H. “if it felt good,”
and when she replied that it did not, he would try to correct her.
According to C.H., respondent initiated the touching by
starting to tickle and playfully wrestle with her. While she was
fully clothed, respondent would touch her between her legs on the
outside of her clothes. Sometimes, however, respondent also
reached between her legs by “put[ting] his hands down [her] pants.”
At times C.H.'s seven-year-old sister K.M. was in the room when the
touching took place. When asked if her mother had ever seen
respondent touch her, C.H. responded: “I don't know. She looked,
but I don't [sic] guess she thought anything was going on with that
either.” C.H. remembered one occasion in the living room during
which respondent had just “touched [her] on [her] cooter . . . when
[her] mama came [and] he stopped.” C.H. told a friend and a cousin
about the touching. The cousin subsequently told C.H.'s mother,
but, as C.H. testified, her mother never asked her about this.
Laura Dunlap, the DSS child protective services investigator
who investigated the allegations in this case, testified that upon
speaking with C.H., C.H. told her that respondent “touches [her] in[her] private spots” and “pointed to her breasts, her vaginal area,
and her bottom.” C.H. also revealed that respondent “licks her on
the neck” and “kisses her on the mouth,” sometimes trying “to put
his tongue in her mouth.” Respondent objected to Dunlap's
testimony about C.H.'s statements unless it was being offered for
corroborative purposes and also stated that the testimony should be
excluded under North Carolina Rule of Evidence 403. The trial
court overruled the objection.
Dr. Jill Marie DeVries testified as an expert in pediatrics in
the area of medical evaluation and diagnosis of child sexual abuse.
DeVries had examined C.H. on 5 February 2002. Prior to the
examination, DeVries had conducted a short interview during which
C.H. told her respondent had licked her neck, touched her breasts,
squeezed her butt, and put his fingers in her vagina. Defendant
objected to this testimony on the ground that the interview was not
part of the medical exam. The trial court overruled the objection.
Thereafter, DeVries testified that the physical examination yielded
some findings that were consistent with C.H.'s description of
“[f]ondling” but could also have been caused by something other
than abuse. DeVries concluded that “[f]ondling rarely leaves any
physical evidence.”
In its 12 July 2002 adjudication order, the trial court, “by
clear, cogent and convincing evidence,” made the following
findings:
The minor child, [C.H.], was competent to
testify. [C.H.] was a credible witness.
[C.H.] had no credible motive to fabricate thealleged actions of her stepfather as set forth
in the petition. Throughout the course of the
proceedings, [C.H.] was consistent in her
testimony and in her relation to what had
occurred. While [C.H.] could not accurately
recall the specific dates or times of day that
her stepfather touched her in inappropriate
ways, she was consistent in her relation of
the nature and manner of the offensive
touching, i.e., touching her breasts and her
private parts which she referred to as her
cooter and her bottom. The [trial] [c]ourt
finds the testimony of Ms. Dunlap . . .
corroborates [C.H.'s] testimony, specifically
as it relates to the incident in the living
room when . . . respondent stepfather touched
[C.H.'s] breast and also put his hand in her
pants and touched her vaginal area. There was
a great deal of colloquy back and forth
between the parties regarding corroborating
evidence and hearsay evidence, etc., and the
[trial] [c]ourt wants to make sure it is clear
that the [c]ourt is specifically finding that
the corroboration of [C.H.'s] testimony
relates to that specific incident[,] but it is
not saying it does not as to any other
particular incident. That does not mean that
the [trial] [c]ourt does not believe and does
not find that the other incidents did occur as
testified to by [C.H.,] but as far as
corroboration that is the incident it is
talking about. The [trial] [c]ourt finds the
specific incident was not mere wrestling or
playing or tickling with [C.H.] but
constituted indecent liberties by [respondent]
with [C.H.] The [trial] [c]ourt finds the
testimony of the examining pediatrician
inconclusive regarding any physical evidence
of sexual abuse[,] and the [c]ourt has not
based its decision in this matter on said
testimony. The [trial] [c]ourt does find,
however, that the doctor's testimony
corroborates the child's testimony of
inappropriate touching of the vaginal area by
her stepfather. The [trial] [c]ourt also
finds that instances of inappropriate touching
occurred for at least over a period of twelve
(12) months preceding the filing of the
petition as testified to by [C.H.] The
[trial] [c]ourt, however, cannot find by
clear, cogent and convincing evidence that themother knew of this inappropriate touching
. . . and therefore . . . cannot find . . .
that she failed to protect the child or
children.
Based on these findings, the trial court concluded that C.H.
was an abused juvenile. The trial court also concluded that C.H.'s
half sister, K.M., was a neglected juvenile because she “live[d] in
a home where another juvenile ha[d] been subjected to abuse by an
adult who regularly lives in the home and that juvenile ha[d] been
adjudicated to have been abused.”
In its subsequent disposition order, the trial court found it
to be in the best interests of the children for custody to remain
with DSS until the mother took such steps as “necessary to put
herself in a position to properly parent the children and to keep
them safe.” The trial court then ordered that reasonable efforts
be made to reunite the family and approved a visitation plan. The
trial court further ordered respondent to complete SAIS, a sexual
abuse specific evaluation, and to follow all recommendations. In
addition, the mother, who was a homemaker, was to “obtain her own
residence away from [respondent] and obtain full[-]time
employment.”
_________________________
The issues are whether: (I) the trial court abused its
discretion in admitting the testimony of Dunlap and DeVries over
respondent's objection; (II) there was sufficient evidence to
support the trial court's findings leading to its determination of
abuse; (III) the trial court erred in adjudicating K.M. neglectedbased solely on its adjudication of C.H. as an abused juvenile;
(IV) the trial court had authority to order the mother to obtain
full-time employment and her own residence away from respondent;
and (V) the trial court erred in ordering reasonable efforts toward
reunification when the order did not include visitation and
reunification for respondent and his daughter K.M.
I
Respondent argues the trial court abused its discretion in
admitting the testimony of Dunlap and DeVries regarding C.H.'s
statements to them. Specifically, respondent contends that the
prejudicial aspect of this evidence far outweighed its probative
value.
We first note that the adjudication order explicitly states
the trial court did not consider this testimony as substantive
evidence but merely as corroboration of C.H.'s testimony.
See
State v. Gilbert, 96 N.C. App. 363, 365, 385 S.E.2d 815, 816 (1989)
(“out-of-court statements offered to corroborate prior testimony
are not hearsay”). Thus, these statements were properly admitted,
unless, as respondent asserts, their probative value was
substantially outweighed by the danger of unfair prejudice.
See
N.C.G.S. § 8C-1, Rule 403 (2001). In this case, however, there was
no such danger as the hearing was held before a judge and not a
jury.
See In re Paul, 84 N.C. App. 491, 497, 353 S.E.2d 254, 258
(1987) (“[i]n a trial before a judge without a jury, it is presumed
that the judge disregarded any incompetent evidence and did not
draw inferences from testimony otherwise competent which wouldrender such testimony incompetent”). The trial court's
adjudication order clearly shows that the trial court was aware of
the limited role to be given Dunlap's and DeVries' testimony so as
to avoid both hearsay problems and any prejudicial impact on
respondent. Accordingly, there was no abuse of discretion in
considering the evidence to the extent as was done by the trial
court.
(See footnote 2)
II
Respondent further contends there was insufficient evidence to
support the trial court's findings leading to its determination of
abuse based on indecent liberties. According to respondent, there
was no evidence from which to conclude that the touching which
occurred during playful wrestling between respondent and C.H. was
not accidental but for the purpose of arousing or gratifying sexual
desire.
On appeal, the standard of review is whether the trial court's
findings are supported by clear, cogent, and convincing evidence
and whether the findings support the conclusions of law.
In re
Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). An
abused juvenile is defined, in pertinent part, as a juvenile whose
parent “[c]ommits, permits, or encourages the commission of a
violation of the following laws by, with, or upon the juvenile: . . . taking indecent liberties with the juvenile, as provided in
G.S. 14-202.1, regardless of the age of the parties.” N.C.G.S. §
7B-101(1)d. (2001). N.C. Gen. Stat. § 14-202.1 in turn provides:
(a) A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he . . . :
(1) Willfully takes or attempts to take
any immoral, improper, or indecent
liberties with any child of either
sex under the age of 16 years for
the purpose of arousing or
gratifying sexual desire[.]
N.C.G.S. § 14-202.1(a)(1) (2001). “Whether a person acts 'for the
purpose of arousing or gratifying sexual desire[] may be inferred
from the evidence of [his] actions.'”
In re Cogdill, 137 N.C. App.
504, 511, 528 S.E.2d 600, 604 (2000) (quoting
State v. Rhodes, 321
N.C. 102, 105, 361 S.E.2d 578, 580 (1987)).
In this case, the trial court determined, and we agree, that
C.H.'s testimony was sufficient to establish the touching occurred
for the purpose of arousing or gratifying sexual desire. While the
touching would begin by respondent tickling and playing with C.H.,
C.H. stated that it progressed from respondent placing his hand on
her vaginal area on the outside of her clothes to him inserting his
fingers into her vagina beneath her clothing. Respondent would
also kiss C.H. and try to put his tongue in her mouth. Finally,
respondent would ask C.H. if the touching felt good. As these acts
go far beyond accidental touching that could occur during rough
play and instead indicate a “purpose of arousing or gratifying
sexual desire,” there was no error. N.C.G.S. § 14-202.1(a)(1);
seeState v. Quarg, 334 N.C. 92, 100, 431 S.E.2d 1, 5 (1993) (“[t]he
uncorroborated testimony of the victim is sufficient to convict
under N.C.G.S. 14-202.1 if the testimony establishes all of the
elements of the offense”).
(See footnote 3)
III
Respondent also assigns error to the trial court's
adjudication of K.M. as a neglected juvenile based solely on the
adjudication of abuse with respect to C.H.
A neglected juvenile is defined in part as “[a] juvenile who
does not receive proper care, supervision, or discipline from the
juvenile's parent . . . or who lives in an environment injurious to
the juvenile's welfare.” N.C.G.S. § 7B-101(15) (2001). “In
determining whether a juvenile is a neglected juvenile, it is
relevant whether that juvenile . . . lives in a home where another
juvenile has been subjected to abuse or neglect by an adult who
regularly lives in the home.”
Id. Moreover, “'there [must] be
some physical, mental, or emotional impairment of a juvenile or a
substantial risk of such impairment as a consequence of the failure
to provide “proper care, supervision, or discipline”'” in order to
support a neglect adjudication.
In re Helms, 127 N.C. App. 505,
511, 491 S.E.2d 672, 676 (1997) (quoting
In re Safriet, 112 N.C.App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
In this case, the evidence established that K.M. was living in
the same household in which C.H. was being abused, N.C.G.S. § 7B-
101(15), and was further present in the same room and therefore
exposed to the acts testified to by C.H. This is sufficient
evidence from which to conclude that K.M. was not only presently at
substantial risk of mental or emotional impairment but was also at
physical risk of being a potential subject of the same abuse.
See
Helms, 127 N.C. App. at 511, 491 S.E.2d at 676. Because K.M. was
living “in an environment injurious to [her] welfare,” N.C.G.S. §
7B-101(15), the trial court did not err in concluding that she was
neglected within the meaning of the statute.
IV
We now turn to respondent's contention that the trial court
lacked the statutory authority to order the mother to obtain full-
time employment and her own residence away from respondent before
custody would be reinstated to her. Respondent lacks standing to
raise this issue.
See Culton v. Culton, 327 N.C. 624, 625, 398
S.E.2d 323, 324 (1990) (only an aggrieved party has standing to
appeal from an order or judgment of the trial division). Since the
disputed portion of the order was not directed at respondent and he
is only indirectly affected by it, respondent does not qualify as
an aggrieved party for purposes of standing.
See id. (“[a]n
aggrieved party is one whose rights have been directly and
injuriously affected by the action of the court”);
Insurance Co. v.
Ingram, Comr. of Ins., 288 N.C. 381, 385, 218 S.E.2d 364, 368(1975) (where “the aggrieved real party in interest is content, an
appealing party has at most only an incidental interest in the
subject matter of the litigation and will be affected only
indirectly by the judgment complained of”). Accordingly, we do not
address this issue.
V
With respect to respondent's remaining assignments of error
discussed in his brief to this Court, we note that respondent has
failed to present any reason as to why, in light of the
adjudication of abuse and the adjudication of neglect based on the
abuse, remand to the trial court for the development of a “workable
Family Services Case Plan” should be granted. Thus, we do not
address this argument.
See N.C.R. App. P. 28(b)(6).
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
Footnote: 1