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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA03-115

NORTH CAROLINA COURT OF APPEALS

Filed: 3 February 2004

IN THE MATTER OF
D.D.
                        Cumberland County    
                            No. 01 J 391

    Appeal by respondents from an order entered 22 February 2002 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 29 October 2003.

    David Kennedy for petitioner.

    Winifred H. Dillon for respondent-appellant mother.

    Michael J. Reece for respondent-appellant father.

    MARTIN, Judge.

    Respondent mother and respondent father appeal from an order adjudicating their minor child, D.D., born 5 August 1993, an abused and neglected juvenile.
    The evidence in the record discloses that on 24 October 2000, neglect was substantiated against respondent mother after a protective services referral was received by the Cumberland County Department of Social Services. Respondent mother signed a case plan and was assigned a case worker, Judy Ray (Ray), from the Cumberland County Department of Social Services in November 2000. Ray and Nancy Clifton, a social worker with the Work First Employment Services Program, worked with the mother addressingissues of housing, employment, day care and transportation.
    D.D.'s father was incarcerated when she was born so she did not meet him until she was about four years old. When D.D. was about two years old, and while her father was in prison, she contracted genital herpes from sexual abuse. D.D.'s father was released in 1997. He returned to prison in October 2000 after a conviction of robbery and was released again on 8 August 2001.
    On 29 November 2000, a neglect/sexual abuse referral was made by D.D.'s aunt, Tammy Howard (Ms. Howard), to the Cumberland County Department of Social Services alleging that the child's father had touched her inappropriately in her vaginal area and put his penis in her buttocks. The abuse allegedly occurred when D.D., her mother and her father were living on Hodge Street, from March through November 2000. Within a few days of the report, Ms. Howard expressed to social services her desire to take custody of D.D..
    Sometime during the first part of 2000, an application was made for D.D. to receive Social Security benefits. In June 2001, respondent mother received a lump sum Social Security payment in the amount of approximately $1100.00 for D.D. She gave the money to her sister to fix her vehicle and, in return, Ms. Howard promised to help out with transportation for respondent mother and D.D.
    After the report alleging abuse was filed, the Cumberland County Department of Social Services assigned Jeanne Dwyer, a child protective service investigator, to investigate the allegation. Dwyer spoke with D.D.'s mother, father, Ms. Howard, shelter staffand D.D.'s teachers. In investigating the prior history of the family she learned that a report of physical abuse of D.D., which had been unsubstantiated, had been filed in Harnett County.
    Dwyer referred D.D. to Dr. Sharon Cooper, a developmental and forensic pediatrician, for a medical evaluation on 5 February 2001. After a physical examination and conversations with D.D. and her mother, Dr. Cooper felt that D.D.'s medical evaluation was consistent with sexual abuse.
    At the time of trial, D.D. and her mother had not had permanent housing since November 2000. From November 2000 through May 2001, they lived in six different places, several of which were shelters. On 16 July 2001, D.D. was removed from her mother's custody and placed in foster care. Since that time, the mother has lived from hotel to hotel on a week to week basis.
    Respondent mother did not work until her husband was incarcerated. She obtained two jobs but worked only about two days at one and about two weeks at the other. Although she remains unemployed, her husband, now out of prison, works with Labor Ready.
    D.D.'s Guardian Ad Litem submitted a report to the court as part of the court record. She recommended that legal and physical custody of D.D. remain with the Cumberland County Department of Social Services for placement in foster care or with relatives. After reviewing the evidence, the record, testimony and arguments presented, the court found, upon clear and convincing evidence, that D.D. was abused and neglected pursuant to N.C. Gen. Stat. § 7B-101, and should remain in the custody of the Cumberland CountyDepartment of Social Services.

________________________________________
Appeal of Respondent Mother
    I.
    Respondent mother claims there was insufficient evidence to support the trial court's findings of fact that there was a history of the child not being picked up from daycare in a timely manner nor was there sufficient evidence to support the trial court's finding that “[t]he Mental Health treatment of the child was not followed up on appropriately.” “Allegations of abuse and neglect must be proven by clear and convincing evidence.” In re Pittman, 149 N.C. App. 756, 763, 561 S.E.2d 560, 566, disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002); see N.C. Gen. Stat. § 7B-805 (2003). Thus, our review is limited to a determination of whether the findings of fact are supported by clear and convincing evidence and whether the conclusions of law are supported by the findings of fact. Id. If the trial court's findings of fact are supported by clear and convincing evidence, they are considered conclusive, even if there is some evidence to support findings to the contrary. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
    The trial court found that “[t]here was history of the child not being picked up from day care timely.” However, the only evidence in the record to support this finding of fact was testimony from Judy Ray, a social worker from the Cumberland County Department of Social Services, in which she stated that respondent mother “was not able to receive her on a number of occasions ontime from day care.” There was no reference to the frequency of her tardiness to establish a consistency of being late to collect her daughter from day care. Since this was the only reference in the entire record of the mother's tardiness in retrieving her child from day care, we cannot say that there is clear and convincing evidence to support a finding of a “history” of tardiness. However, even without this finding, there is sufficient evidence to support the trial court's conclusion of neglect.
    The trial court also found “[t]he Mental Health treatment for the child was not followed up on appropriately.” Nancy Clifton, a social worker for the Work First Employment Services Program, offered testimony that although she and D.D.'s mother established a goal of obtaining counseling for D.D. and her mother, the mother failed to obtain consistent counseling for either of them. We find the testimony from Ms. Clifton to be clear and convincing evidence to support the finding of fact that D.D. was not provided appropriate mental health treatment, and the conclusion of neglect.
II.
    Next, respondent mother claims the trial court's conclusion that the minor child was abused because “respondent mother creates or allows to be created serious physical damage to the juvenile was not supported by the findings of fact or by the evidence. An abused juvenile is, inter alia, a child “less than 18 years of age whose parent, guardian, custodian or caretaker creates or allows to be created a substantial risk of serious physical injury to thejuvenile by other than accidental means.” N.C. Gen. Stat. § 7B- 101(1)(b) (2003). Since the determination of “[w]hether a child is neglected or abused is a conclusion of law,” In re Ellis, 135 N.C. App. 338, 340, 520 S.E.2d 118, 120 (1999), upon review, the trial court's findings of fact must support this conclusion. Id.
    In the present case, the trial court made the following findings of fact:
    5. In 1998, ... the minor received a broken leg due to non-accidental physical acts of [the father].

    6. That [sic] approximately the age of 2 years old the minor obtained genital herpes while in the care of [the mother].

    . . .

    13. While living at the Hodge Street address the minor was inappropriately touched in her genital area by her father with his hand.

These findings are binding on appeal if they are supported by clear and convincing evidence. Helms, 127 N.C. App. at 511, 491 S.E.2d at 676.
    The evidence presented at trial was sufficient to show that in 1998, while her mother was at home, D.D. suffered a broken leg due to non-accidental physical acts of her father. D.D. testified, “My dad hold my mouth so tight and he throwed me against the wall and broke my leg bone.” In addition, Mary Sear, a child and family therapist at Cumberland County Mental Health, testified that D.D. had “informed me that . . . her father had grabbed her, pushed her, and she had broken her leg as a result.” Although allegations and an investigation of abuse were brought against her father, they were not substantiated. Nevertheless, the mother testified thatD.D. broke her leg when she ran to the bathroom, after playing on the bed with her father, and hit her leg on the bathtub.
    When there is conflicting evidence on an issue, the trial court must make its own determination as to what facts are established by the evidence. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000). Even though conflicting evidence was presented, there was sufficient evidence to support a finding of fact that the child's broken leg was caused by the non- accidental acts of her father.
    Dr. Sharon Cooper, a developmental and forensic pediatrician, testified that in obtaining a medical history of D.D. from her mother, she told her that D.D. contracted genital herpes from sexual abuse. Respondent mother confirmed this information through her own testimony. The finding of fact that D.D. contracted genital herpes while in the care of her mother was thus supported by the evidence.
    Even though there was conflicting evidence as to the inappropriate touching by her father, the evidence presented at trial was sufficient for the court to make a finding that D.D. was inappropriately touched in her genital area by her father with his hand. D.D. testified that her father “took his private and put it in mine,” and that no one had told her to make this up. However, she also testified that she never told Ms. Howard about her father touching her, but that Ms. Howard told her to say “certain things.” D.D. also testified that she was first touched inappropriately by her father while she was living with her mother.    Dr. Cooper testified that D.D. told her that more than once her father “put his hand in my private parts, and this was when we were in the house behind the church.” D.D.'s inability to understand verbal directions often caused her to respond, “I don't know.” However, since Dr. Cooper opined that D.D. had a disability which affected her auditory processing she encouraged her to use stuffed animals to demonstrate what happened. In this manner, D.D. was able to express what she wanted to say. Through the use of the stuffed animals, she showed Dr. Cooper that her father had touched her in her crotch area, her buttocks and that there was genital to buttock contact. Dr. Cooper concluded that D.D.'s history, her behavior and the physical examination were consistent with the diagnosis of sexual abuse and that D.D. gave a consistent history of abuse by one person, her father.
    Mary Sear testified that D.D. told her that her father had placed his hand and/or private parts in her bottom. In addition, Jeanne Dwyer testified that D.D. also had disclosed to her that her father had touched her inappropriately. Initially, Ms. Dwyer felt that D.D.'s disclosure may have been rehearsed; however, after speaking with Dr. Cooper, obtaining D.D.'s school records and talking with D.D. again, she substantiated sexual abuse.
    Although respondent mother testified the child told her the allegations about her father's abuse were a lie, the mother told Judy Ray that she believed her husband was sexually abusing D.D.. However, she testified she never believed he abused D.D. and only signed the case plan because she was forced by the Department ofSocial Services to do so.
    Though conflicting, the evidence presented was sufficient to find that D.D. was inappropriately touched by her father during the time she lived with her mother. The mother refused to believe her husband sexually abused D.D. and continued to put her at risk of physical harm when she left her with her father. The findings of fact regarding abuse of the child are conclusive since, in each instance, they were supported by clear and convincing evidence. The findings that D.D. received a broken leg due to non-accidental physical acts of her father while her mother was at home, contracted genital herpes while under her mother's care, and was sexually abused by her father more than once during the time she lived with both parents, support the trial court's conclusion that “[r]espondent mother creates or allows to be created serious physical damage to the juvenile.”
III.
    Next, respondent mother argues that the trial court's conclusion that the juvenile was neglected because respondent mother did not provide necessary medical/therapeutic care is not supported by the court's findings of fact or by the evidence. Appellant mother argues the trial court's finding regarding her failure to follow up on D.D.'s mental health treatment does not support the conclusion that she does not provide necessary medical/therapeutic care for her daughter because her failure to get D.D. to her appointments was because of circumstances beyond her control, namely lack of income to pay for transportation. However, Judy Ray's testimony indicated that even though social services had arranged transportation, respondent mother and D.D. continued to miss appointments. The conclusion that D.D. was neglected because her mother did not provide appropriate medical/therapeutic care is supported by the findings of fact.
IV.
    Finally, respondent mother contends the trial court's conclusion that the juvenile was neglected because her mother did not provide proper care, supervision, or discipline is not supported by the court's findings of fact or by the evidence. A neglected juvenile is defined as “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or . . . who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare . . ..” N.C. Gen. Stat. § 7B-101.
    We have previously determined the trial court's conclusion that respondent mother did not provide necessary medical/therapeutic care was supported by the findings of fact and the evidence. In addition, there was evidence that respondent mother had not provided a stable environment for herself and the juvenile, living in six different places, including shelter, during the six month period preceding the child's placement in foster care. We hold the evidence to be clear and convincing to support the trial court's findings and conclusion that the juvenile was neglected.
        Appeal of Respondent Father
I.
    Respondent father first argues that the trial court erred in allowing an expert witness to testify as to her “diagnostic conclusion” of sexual abuse when there was insufficient evidence to support the conclusion. He also contends that the trial court erred in allowing the expert witness to testify that a physical examination of the child was “consistent with” sexual abuse when no physical findings supported the conclusion. Absent physical evidence that supports sexual abuse, the trial court should not admit expert opinion that sexual abuse has in fact occurred. State v. Stancil, 355 N.C. 266, 266-267, 559 S.E.2d 788, 789 (2002) . “However, an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.” Id. at 267, 559 S.E.2d at 789.
    Dr. Cooper testified that D.D.'s physical examination was normal, as is often the case in child sexual abuse cases. After reviewing evidence from D.D.'s physical examination and conversations with D.D. and her mother, Dr. Cooper concluded that D.D.'s history, her behavior and her physical examination were “consistent with child sexual abuse.”
    “[T]he distinction between an expert witness' testifying (a) that sexual abuse in fact occurred or (b) that a victim has symptoms consistent with sexual abuse is critical.” In re Morales, 159 N.C. App. 429, 583 S.E.2d 692, 695 (2003). Although a jurycould possibly be swayed by an “expert's endorsement of the victim's credibility,” in a bench trial “we can presume, unless an appellant shows otherwise, that the trial court understood the distinction and did not improperly rely upon an expert witness' assessment of credibility.” Id. Dr. Cooper did not state that sexual abuse had, in fact, occurred, but only testified that D.D.'s examination and behavior were consistent with sexual abuse; this assignment of error is overruled.
II.
    Respondent father next argues the trial court erred in finding that the child received a broken leg due to his non-accidental physical acts and in finding that she was inappropriately touched in the genital area by her father. In addressing respondent mother's assignments of error, we have addressed these issues. For the above stated reasons, we overrule these assignments of error.
III.

    Lastly, respondent father contends the trial court erred in concluding that D.D. was abused because he inflicted a serious physical injury upon her by other than accidental means and because he committed a sex offense upon her as enumerated in N.C. Gen. Stat. § 7B-101(1)(d). We have previously determined that the finding of fact that D.D. received a broken leg due to the non- accidental physical acts of her father was supported by clear and convincing evidence. We have also determined that abuse is found when a “ parent . . . [c]reates . . . a substantial risk of serious physical injury to the juvenile by other than accidental means. N.C. Gen. Stat. § 7B-101(1)(b). Respondent father “created a substantial risk of serious injury” to D.D. “by other than accidental means,” N.C. Gen. Stat. § 7B-101(1)(b), when he injured her leg, supporting the trial court's conclusion of abuse.
    In addition, we have previously determined the trial court's finding that respondent father inappropriately touched the juvenile in the genital area with his hand was supported by the evidence. This evidence must support the court's conclusion of law that “[r]espondent father committed a violation of one or more of the criminal sex offense statutes as enumerated in G.S. § 7B-101(d) [sic].” N.C. Gen. Stat. § 7B-101(1)(d) (2003) defines an abused juvenile as one whose parent, inter alia, takes indecent liberties with the juvenile pursuant to N.C. Gen. Stat. § 14-202.1 (2003). The statute 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 either:
        (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; or
        (2)    Willfully commits or attempts to commit any lewd or lascivious act of either sex under the age of 16 years.

“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) (citation omitted).
    In this case, respondent father' inappropriate touching of the juvenile's genital area with his hand is sufficient to establishthat he took indecent liberties with his daughter. See State v. Jones, 89 N.C. App. 584, 598, 367 S.E.2d 139, 147 (1988) (taking indecent liberties found where defendant pulled child's underwear down and rubbed her vagina with his finger); State v. Slone, 76 N.C. App. 628, 631, 334 S.E.2d 78, 80 (1985) (indecent liberties found where defendant led his victim into a dark dog shed and put his arm around the victim, placed his hand between her legs and rubbed her vagina with his finger). Therefore, we find that the trial court's conclusion that respondent father committed a criminal sex offense as enumerated in G.S. § 7B-101(d) is supported by the finding of fact and thus supports the court's conclusion that D.D. is an abused juvenile.
    The order from which respondents appeal is affirmed.
    Affirmed.
    Judges STEELMAN and LEVINSON concur.
    Report per Rule 30(e).

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