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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 February 2004
IN THE MATTER OF
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.
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
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
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.
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
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
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.
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.
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
Appeal of Respondent Father
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.
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)
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.
reviewing evidence from D.D.'s physical examination and
conversations with D.D. and her mother, Dr. Cooper
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.
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.
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
We have also determined that abuse is found
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)
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
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.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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