An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA03-521


Filed: 4 May 2004

                                    Rutherford County
J.R.A.,                                No. 01 J 43
    A Minor Child

    Appeal by respondent from judgment entered 11 October 2002 by Judge Robert S. Cilley in Rutherford County District Court. Heard in the Court of Appeals 19 April 2004.

    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).
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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