IN THE MATTER OF:
M.C. and C.H.
Cabarrus County
No. 01 J 198
01 J 199
Haakon Thorsen for respondent-appellant.
Kathleen Arundell Widelski, for petitioner-appellee Cabarrus
County Department of Social Services.
STEELMAN, Judge.
On 29 August 2001 the Cabarrus County Department of Social
Services (Social Services) took non-secure custody of M.C. and C.H.
(the children, collectively) based on a petition alleging abuse and
neglect of M.C. and neglect of C.H. On 14 March 2002 M.C. was
adjudicated abused and neglected and C.H. was adjudicated
neglected. At the disposition hearing Judge Johnson ordered that
the permanent plan for the children be adoption based on her
finding that attempting reunification with respondent within a
reasonable time would be futile. A motion to terminate
respondent's parental rights was filed 3 July 2002, and on 11 July
2003 Judge Johnson's orders terminating respondent's parental
rights as to M.C. and C.H. were filed. In Judge Johnson's orders,she found the following relevant facts: 1) In July of 1999
respondent took C.H. to the hospital for a fever, that she became
upset with hospital personnel and left with C.H. against doctor's
recommendation, the sheriff's department was called and C.H. was
returned to the hospital where he remained for three days; 2)
there were incidents of domestic violence in the home between
respondent and her husband (C.H.'s biological father(Joseph)); 3)
M.C. indicated she was afraid of Joseph due to the violence, and
respondent signed a family services protection plan provided by
Social Services pledging to refrain from acts of domestic violence
in front of the children; 4) respondent's pastor, Reverend Fisher,
was called to respondent's house on one occasion where he witnessed
several pieces of furniture damaged or destroyed by respondent.
Because M.C. was very upset, Reverend Fisher kept her with his
family for a few days; 5) on another occasion, M.C. was sent to
stay with the Fishers overnight, and arrived with no undergarments
even though the stay had been arranged in advance; 6) in March of
2001 M.C. told respondent that Joseph had tried to kiss her, that
“it did not feel right” and that she did not like it. Respondent
did not inquire of M.C. where Joseph attempted to kiss her, and
only told M.C. that she should not let anyone kiss her if she did
not like it. Respondent told M.C. that she would keep an eye on
Joseph, and she tried not to leave M.C. alone with Joseph “for
long.” Respondent did not confront Joseph about the abuse; 7) in
late summer of 2001, M.C. told respondent that Joseph had again
come into her room while she slept, and that he had kissed her,touched her body, and attempted to hug her while she was trying to
sleep. Respondent testified that she decided not to leave M.C.
alone with Joseph because “she did not know what he was going to do
. . . .” Respondent again failed to confront Joseph, but told M.C.
that they would move away from Joseph. Respondent told M.C. not to
tell anyone about the abuse; 8) respondent claimed that she
attempted to take her children away from Joseph, but she could not
find a ride; 9) in August of 2001, respondent began shouting
obscenities in church and accusing Joseph of molesting M.C. She
was escorted out of the church. In response to this outburst,
Reverend Fisher visited respondent's home later that same day.
Respondent refused to speak with him about the allegations, and he
informed them he was contacting Social Services; 10) respondent
again told her children she would take them away, but said “she
could not get money together.” She also reiterated her request to
M.C. that she not tell anyone about the abuse, or M.C. would be
taken away from her; 11) following Reverend Fisher's visit, Joseph
again molested M.C. He confessed to respondent that he had touched
M.C. and tried to kiss her. M.C. also told respondent of the
abuse, and informed her that she was afraid Joseph might beat her
(“break her back”) if she told anyone. Respondent again promised
to take M.C. away, but made no plans to do so. On that same day,
Social Services interviewed M.C. and respondent and the children
were taken to a friends house to stay; 12) respondent left the
children at the friends house, and returned to stay with Joseph
because she was concerned about him and could not get by withouthim; 13) respondent was with Joseph when she was asked to go to
the police station for an interview, following which she was
charged with three counts of felony child abuse for failing to
protect M.C. from Joseph's sexual abuse (she subsequently pled
guilty to three counts of committing an act where a juvenile could
be abused (N.C. Gen. Stat. § 14-316.1) on 11 June 2002).
Respondent denied she had done anything wrong. Respondent
requested to be taken home so she could comfort Joseph, even though
her children were staying with a friend and the social worker told
her she should be comforting them; 14) after removing the children
from respondent's care on 29 August 2001, respondent was observed
walking hand in hand with Joseph; 15) Joseph confessed to taking
indecent liberties with M.C. on 30 August 2001; 16) on 11 April
2002 Judge William G. Hamby, Jr. signed an order concluding
respondent neglected both M.C. and C.H., and abused M.C. Judge
Hamby further concluded that it was in the best interests of the
children that they remain in the custody of Social Services, and
that respondent submit to a mental health evaluation; 17) on 4 and
20 May 2002 respondent was evaluated by Laura Skinner, a licensed
clinical psychologist, who found: a) Respondent's psychiatric
problems began when she started hearing voices at age eleven, and
she was diagnosed with schizophrenia. Respondent's mood appeared
“unstable and her affect variable. During both sessions, her
behaviors and speech shifted from animated and engaged, to
depressed and tearful, to angry and paranoid . . . . As she
becomes increasingly emotional, so does her thinking appear tobecome more distorted . . . . Her capacity for judgment and
insight appear to be poor;” b) Skinner's evaluation reveals “an
immature, impulsive and irresponsible woman who does not appear to
have the psychological or physical resources to adequately care for
herself or her children;” c) Skinner's prognosis was bleak,
finding that due to respondent's “chronic history of instability,
lack of independence, and poor judgment, prognosis is extremely
guarded;” 18) outside of her plea to the criminal charges,
respondent has refused to accept any responsibility for allowing
the abuse to occur and continue; 19) respondent has lived with
Joseph from the day he was released from prison, and was still
residing with him on the date of the termination hearing; 20)
respondent continued to hear voices, which she maintains are either
from God or the Devil, and she has offered no proof that she has
obtained any mental health treatment since 1992. Judge Johnson
made further findings of fact in support of her conclusion that
termination was in the best interest of the children showing they
were adjusting well with their foster family, and that the family
wished to adopt them both. From Judge Johnson's order terminating
her parental rights, respondent appeals.
In the only assignment of error brought forward in her brief
respondent argues the trial court's findings of fact were not
supported by sufficient competent evidence. We disagree.
In the record on appeal, respondent asserted two assignments
of error, quoted in full as follows:
1) The trial court's findings of fact were not
supported by sufficient competent evidence.
2) The trial court's conclusions of law were
not supported by the facts.
Respondent only argues the first assignment in her brief. It has
long been held under the Rules of Appellate Procedure of this state
and our case law that assignments of error such as those proffered
by respondent above constitute a “broadside exception and [present]
nothing for our consideration but the question whether the facts
found support the judgment.” Hicks v. Russell, 256 N.C. 34, 39, 123
S.E.2d 214, 218 (1961)(citing Putnam v. Triangle Publications, 245
N.C. 432, 96 S.E.2d 445 (1957); Kovacs v. Brewer, 245 N.C. 630, 97
S.E.2d 96 (1957); Merrell v. Jenkins, 242 N.C. 636, 89 S.E.2d 242
(1955)); see also In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d
643, 647 (2001). Under our Rules of Appellate Procedure, it is not
enough merely to except to a judge's findings of fact, it is
necessary to state why each disputed finding is claimed to be in
error. Rule 10(c), N.C. Rules of Appellate Procedure; Alexvale
Furniture, Inc. v. Alexander & Alexander, 93 N.C. App. 478, 482,
378 S.E.2d 436, 438 (1989). ”When no assignment of error is made
to particular findings, they are 'presumed to be supported by
competent evidence and are binding on appeal.'” First Union Nat'l
Bank v. Bob Dunn Ford, Inc., 118 N.C. App. 444, 446, 455 S.E.2d
453, 454 (1995)(citing Anderson Chevrolet/Olds, Inc. v. Higgins, 57
N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)); see also In re
Beasley, 147 N.C. App. 399, 555 S.E.2d 643 (2001).
In the instant case, respondent did not indicate in the record
upon what bases she objected to specific findings of fact. Her
assignment of error in the record thus constitutes a broadsideexception, is not sufficient to preserve any issue concerning the
findings of fact, and thus the findings of fact are binding on
appeal. The only issue preserved by respondent on appeal is the
question of whether the findings of fact support the judgment. We
hold that they do.
(a) The court may terminate the parental
rights upon a finding of one or more of the
following:
(1) The parent has abused or
neglected the juvenile. The juvenile
shall be deemed to be abused or
neglected if the court finds the
juvenile to be an abused juvenile
within the meaning of G.S. 7B-101 or
a neglected juvenile within the
meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111(a)(1)(2003). N.C. Gen. Stat. § 7B-101
(2003) defines abused and neglected juveniles:
(1) Abused juveniles. -- Any juvenile less
than 18 years of age whose parent, guardian,
custodian, or caretaker:
d. Commits, 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[.]
(15) Neglected juvenile. -- A juvenile who
does not receive proper care, supervision, or
discipline from the juvenile's parent, . . .
or who is not provided necessary medical care;
. . . or who lives in an environment injurious
to the juvenile's welfare . . . . 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.
Judge Johnson's findings of fact in the instant case, which
are binding on this Court, clearly establish that M.C. and C.H.
were neglected by respondent, and that M.C. was an abused juvenile.
It is clear that respondent suffers from serious mental illness,
that she is dependant on Joseph to such an extent that she places
her relationship with him above her relationship with her children,
that she knew of the sexual abuse M.C. suffered at the hands of
Joseph, had the ability to prevent it, and did very little to
protect her daughter. This abuse of M.C. was ongoing while C.H.
was in the residence. Further, respondent had endangered C.H.'s
life by taking him away from the hospital against a doctor's
recommendation. Respondent does not accept responsibility for her
neglect. The psychological evaluation ordered by the court
expresses grave doubt as to respondent's ability to take
responsibility and adequately protect her children in the future.
Respondent continued to live with Joseph after her children were
taken away from her, and was still living with him at the time of
the termination hearing. The findings of fact in the instant case
support Judge Johnson's conclusions of law and judgment. This
assignment of error is without merit.
AFFIRMED.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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