IN RE:
Rutherford County
J.R.A., No. 01 J 43
A Minor Child
Hamrick, Bowen, Mebane, Greenway & Lloyd, L.L.P., by Bradley
K. Greenway, for petitioner-appellee Rutherford County
Department of Social Services.
Lee Taylor for Guardian ad Litem.
David Childers for respondent-appellant Johnny Dean Allen, Jr.
HUNTER, Judge.
This appeal is from a judgment terminating the parental rights
of respondent, the father of J.R.A., the minor child, born 9 July
2000. For the reasons stated herein, we affirm.
The Rutherford County Department of Social Services
(“petitioner”) filed a juvenile petition on 13 March 2001 alleging
that the child is an abused juvenile in that (1) his parent
inflicted or allowed to be inflicted on him a serious physical
injury by other than accidental means, or (2) his parent created or
allowed to be created a substantial risk of serious physical injury
to the child by other than accidental means. Following a hearing
on 23 April 2001, at which respondent and the child's mother werepresent and represented by counsel, the court adjudicated the child
as abused and neglected. The court found that the child had
multiple bone fractures, inflicted over a period of time, which had
been caused by non-accidental means. The court found that the
injuries had been inflicted by one parent or the other or both. On
9 July 2002 petitioner filed a petition to terminate the parental
rights of both parents. Following a hearing on 24 September 2002,
at which neither parent was present, the court entered the subject
order terminating the parental rights of both parents. Only
respondent has appealed.
Respondent contends that the court erred by admitting, over
his objections, evidence of domestic violence between respondent
and the mother of the child. Specifically, the court permitted a
social worker employed by petitioner to testify, over objection by
respondent's counsel, that respondent had assaulted the child's
mother within the six months preceding the parental rights
termination hearing. Petitioner then, without objection by
respondent, showed the witness a photograph taken in the courthouse
on 23 July 2002 depicting the mother with a black eye. Over
respondent's objection, the court permitted the social worker to
testify that the mother told her respondent had beaten her and
inflicted the black eye. Respondent argues that a proper
foundation was not laid for admission of the evidence and that the
relevance of the evidence was outweighed by the danger of unfair
prejudice. In a bench trial it is presumed that the court disregarded
incompetent evidence. In re McMillon, 143 N.C. App. 402, 411, 546
S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341
(2001). Accordingly, the erroneous admission of incompetent
evidence over objection in a bench trial is not reversible error
unless it is shown that the trial court relied upon the incompetent
evidence in making its findings. In re Huff, 140 N.C. App. 288,
301, 536 S.E.2d 838, 846 (2000), disc. review denied, 353 N.C. 374,
547 S.E.2d 9 (2001). Nothing in the present record shows that the
court based any of its findings of fact on the allegedly
incompetent evidence. The court did not make any finding that
respondent assaulted the child's mother. The court expressly
refused to find that one parent or the other inflicted the injuries
to the child. The court found that regardless of which parent
inflicted them, the child's injuries occurred while in the care of
the parents, and neither parent took steps to protect the child
from further injury. This contention is therefore overruled.
By not bringing them forward in his brief, respondent has
abandoned his remaining assignments of error. N.C.R. App. P.
28(b)(6).
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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