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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
IN THE MATTER OF: Buncombe County
A.E., No. 97 J 271 (A-B)
Appeal by respondent from judgment and order entered 5
December 2003 by Judge Rebecca B. Knight in Buncombe County
District Court. Heard in the Court of Appeals 2 December 2004.
Renae S. Alt for petitioner-appellee.
Carol Ann Bauer for respondent-appellant.
Michael N. Tousey for appellee Guardian ad Litem.
Respondent father E.E. appeals an order of the trial court
adjudicating his children, A.E. and J.E., neglected. E.E. argues
in his appellate brief only that the trial court should not have
relied upon the testimony of Dr. Robert McDonald. Since E.E.
neither objected to that testimony at trial nor assigned error to
that testimony or the findings of fact related to that testimony,
E.E.'s arguments were not properly preserved for review by this
Court. We, therefore, affirm.
Timeliness of Appeal
As an initial matter, we must address the guardian ad litem's
motion to dismiss this appeal. The trial court's adjudication
judgment and dispositional order was entered on 5 December 2003. E.E. filed his notice of appeal on 18 December 2003. The guardian
ad litem contends that because the notice of appeal was filed more
than 10 days after entry of the order, the appeal was untimely.
Even assuming, without deciding, that respondent's notice of
appeal was not timely, respondent has established through
affidavits that his appeal was lost, if at all, through no fault of
his own since his counsel was not served with the order until after
the time for appeal had passed. Appellees have submitted no
contrary evidence. We, therefore, exercise our discretion under
Rule 21(a)(1) of the Rules of Appellate Procedure to treat the
father's appeal as a petition for writ of certiorari and we allow
Adjudication of Neglect
When a child is alleged to be neglected and taken into
temporary custody, DSS has the burden of proving neglect by clear,
cogent, and convincing evidence. In re Evans
, 81 N.C. App. 449,
452, 344 S.E.2d 325, 327 (1986). "Where the trial court sits
without a jury and hears the evidence in a neglect adjudication,
the facts found by the trial court are binding on an appellate
court if supported by clear and convincing competent evidence." In
, 135 N.C. App. 387, 394, 521 S.E.2d 121, 125 (1999).
Findings of fact that are not challenged on appeal "are deemed
supported by competent evidence" and are binding on this Court. In
, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
The respondent father has made only a single assignment of
error: "The court erred in finding that the minor children areneglected children by clear, cogent, and convincing evidence." It
is well-established that "[a] single assignment generally
challenging the sufficiency of the evidence to support numerous
findings of fact, as here, is broadside and ineffective." Wade v.
, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review
, 313 N.C. 612, 330 S.E.2d 616 (1985). Since respondent did
not specifically assign error to any of the trial court's findings
of fact supporting its order, those findings are deemed to be
supported by competent evidence and are conclusive on appeal.
Those findings establish the following facts.
A.E. and J.E. lived with their father.
In December 2002, the
Buncombe County Department of Social Services ("DSS") became
involved with the family as a result of reports regarding the
father's relationships with women. The father voluntarily placed
his children first with one neighbor, then removed them and, four
days later, placed them with a second neighbor.
In the course of its investigation, DSS learned that the
father had been convicted of taking indecent liberties with a 15-
year-old girl and was an untreated sexual offender. Although the
father insisted to DSS that he was not untreated, had been cleared
by the courts, and had received an assessment for his sex offender
status, DSS discovered from his probation officer that the father's
probation was revoked due to his failure to seek sexual offender
On 28 January 2003 and again on 7 February 2003, the father
claimed that he had attempted unsuccessfully to schedule a sexoffender specific assessment with Dr. Robert McDonald. Dr.
McDonald confirmed, however, that he had received no calls from the
father. On 13 February 2003, the father refused to sign the
"Family Services Case Plan" with DSS, claiming that he did not need
any services. On 3 March 2003, the father finally agreed to sign
the case plan and "go along" with the results of the sex offender
On 11 March 2003, DSS received the results of the assessment
from Dr. McDonald who found the father to be uncooperative and
"obviously unreliable" in his recitation of events and facts. Dr.
McDonald "recommended that he receive the previously ordered
treatment" and that "he not be allowed to be in the presence of
post-pubertal females unchaperoned. Failure to comply with
treatment is known to be a significant risk factor for repeating
On 18 March 2003, DSS learned that the father had taken the
children back into his home although he insisted that his fiancée
was always present. On 2 April 2003, a DSS social worker informed
the father that he would need to pursue sexual offender treatment.
The father, however, refused to undergo treatment. As of 18 June
2003, the father had still not received sex offender specific
treatment. On 19 June 2003, DSS filed petitions alleging that the
children were neglected, but did not obtain non-secure custody
orders. The trial court conducted an adjudication and dispositional
hearing on 27 October 2003. Following that hearing, the court
filed an order on 5 December 2003, finding in pertinent part:
21. That on or about May 28, 2003, [the
father's] daughter [A.E.], (DOB 3-10-95, age
8), within a few years will be a "post
pubertal female" as designated by Dr. McDonald
in the Assessment, and [the father] will have
unrestricted access to [A.E.]. [The father's]
refusal to seek sex offender treatment and his
unrestricted access to [A.E.] creates a high
risk for these children. The current risk
assessment indicates high risk and [the
father] is refusing to engage in treatment
recommended by Dr. McDonald and the
. . . .
23. That Dr. McDonald testified, and the
Court will find as facts, that [the father]
was referred for a [sex offender specific]
evaluation. He met with him on 5 occasions
and held two interviews and performed 3 tests,
the MMPI, MPI and MSI. That he received
pretty conflicting information from [the
father] and found him not reliable. . . . [The
father] has never been treated. This is a
significant indicator of recidivism and a
significant risk. The recommendations for
[the father] were a polygraph test, PPE,
treatment for 1-2 years, group therapy and
individual therapy. [Dr.] McDonald stated
that [the father] should not have unsupervised
visits with the minor children and not be
allowed to be in the company of post pubertal
females. After further research and attending
a continuing education seminar one week prior
to the adjudication, Dr. McDonald recommended
that [the father] have no contact with
children at all, neither supervised nor
The court acknowledged that the father had been cooperative with
DSS with the exception of the refusal to obtain sex offender
treatment. The court concluded "by clear, cogent, and convincing evidence
the minor children are neglected children pursuant to N.C.G.S. §7B-
101(15) in that the children live in an environment injurious to
their welfare in that their father, [E.E.], is an untreated sex
offender." In its dispositional order, the court found that it was
not in the best interests of the minor children to be in the
custody of their father and granted custody to DSS. The court
allowed for supervised visitation, but directed that the father
complete sex offender specific treatment as a prerequisite to
unsupervised visitation. The court also found that "the best plan
to achieve a safe, permanent home for the minor children in a
reasonable period of time is reunification."
While in his single assignment of error, the father challenged
generally the trial court's finding of neglect, the father in his
brief argues only that the opinion of Dr. McDonald is not competent
evidence to support the trial court's decision. Specifically, the
father objects because Dr. McDonald changed his ultimate conclusion
between his written report and trial testimony and because the
information he used to formulate his trial testimony was not shown
to be reliable.
We hold that the arguments regarding changes to and the
reliability of Dr. McDonald's opinion are not properly before us
because the father (1) failed to object to Dr. McDonald's testimony
during the hearing and (2) failed to specifically assign error to
that testimony or the trial court's reliance on that testimony.
Rule 10(b)(1) of the Rules of Appellate Procedure provides: "Inorder to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make . . . ." N.C.R. App. P. 10(b)(1). If an
issue has been properly preserved under Rule 10(b), the appellant
must then comply with Rule 10(c)(1)'s requirements for assignments
A listing of assignments of error upon which
an appeal is predicated shall be stated at the
conclusion of the record on appeal, in short
form without argument, and shall be separately
numbered. Each assignment of error shall, so
far as practicable, be confined to a single
issue of law; and shall state plainly,
concisely and without argumentation the legal
basis upon which error is assigned. An
assignment of error is sufficient if it
directs the attention of the appellate court
to the particular error about which the
question is made, with clear and specific
record or transcript references. Questions
made as to several issues or findings relating
to one ground of recovery or defense may be
combined in one assignment of error, if
separate record or transcript references are
N.C.R. App. P. 10(c)(1) (emphasis added).
Our review of the transcript in this case reveals that the
father failed to object at the hearing to Dr. McDonald's testimony
and failed to argue to the trial court that the testimony was
incompetent. See State v. Call, 353 N.C. 400, 426, 545 S.E.2d 190,
206-07 (holding that an argument that expert's testimony was
unreliable was not properly preserved for appellate review when the
defendant failed to object at trial), cert. denied, 534 U.S. 1046,
151 L. Ed. 2d 548, 122 S. Ct. 628 (2001). Further, since thefather's assignment of error does not reference Dr. McDonald's
testimony or the findings of fact relating to that testimony, it
has not directed the attention of this Court to the error argued in
the father's brief, as required by Rule 10(c)(1). See In re
Morales, 159 N.C. App. 429, 432, 583 S.E.2d 692, 694 (2003)
(finding that the argument concerning inadmissible hearsay was not
included in an assignment of error and, therefore, was not properly
preserved for review). Accordingly, the father's arguments
regarding Dr. McDonald's testimony are not properly before this
Our Supreme Court has recently emphasized that once this Court
determines that an appeal is flawed for failure to comply with Rule
10(c)(1), this Court is not free to address an issue not raised or
argued by the appellant: "It is not the role of the appellate
courts, however, to create an appeal for an appellant. As this
case illustrates, the Rules of Appellate Procedure must be
consistently applied; otherwise, the Rules become meaningless, and
an appellee is left without notice of the basis upon which an
appellate court might rule." Viar v. N.C. Dep't of Transp., 359
N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam). The
dissenting opinion in this case, however, seeks to do precisely
what the Supreme Court has forbidden. It creates an appeal for the
appellant by "address[ing an] issue, not raised or argued by
[appellant]." Id. None of the cases cited by the dissent and,
with the exception of the challenge to Dr. McDonald's testimony,
none of the arguments made by the dissent appear in appellant'sbrief. Just as "the Rules of Appellate Procedure must be
consistently applied," id., so too the principles in Viar must be
consistently applied. Since the sole issue argued by the father is
not properly before this Court, we affirm the trial court's
Judge TIMMONS-GOODSON concurs.
Judge TYSON concurs in part and dissents in part in separate
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
IN THE MATTER OF:
A.E. Buncombe County
J.E. No. 97 J 271
Tyson, Judge concurring in part, dissenting in part.
I concur with the majority's opinion to reach the merits of
respondent's appeal. Respondent's right of appeal was lost through
late delivery of the order appealed from to his counsel and through
no fault of his own.
The majority's opinion affirms the trial court's adjudication
that A.E. and J.E. are neglected. No clear, cogent, and convincing
evidence in the record supports the trial court's findings of fact,
leaving its conclusions of law unsupported. I respectfully
I. Timeliness of Appeal
I concur with the majority's decision to reach the merits of
The trial court's adjudication judgment and dispositional
order was entered on 5 December 2003, but not delivered to
respondent's counsel until 16 December 2003. E.E. filed his notice
of appeal on 18 December 2003. The guardian ad litem's motion to
dismiss respondent's appeal as untimely asserts the notice of
appeal was filed more than ten days after entry of the order.
However, E.E.'s counsel did not receive the order until after thetime for filing a notice of appeal had passed. Upon receiving the
order on 16 December 2003, an acceptance of service was signed by
counsel for both parties. E.E. promptly filed his notice of appeal
two days later on 18 December 2003. Petitioner had the
responsibility to file and timely serve the order on respondent.
Petitioner's failure to serve an order on respondent until after
time for filing a notice of appeal had elapsed cannot be a basis to
grant a motion to dismiss respondent's appeal. E.E. should not
lose his right to appeal based on petitioner's failure to timely
serve the order.
II. Adjudication of Neglect
Respondent assigns as error the trial court's finding that
A.E. and J.E. are neglected children by clear, cogent, and
convincing evidence. He cites to the trial court's findings of
fact on page forty-five and forty-six, and the conclusions of law
and decretal on page forty-eight of the record. He argues his
conviction of indecent liberties with an unrelated third party
minor and subsequent probation violation of that offense are
insufficient to adjudicate his minor children neglected.
Evidence in the record shows E.E. is a single father who has
cared for and supported his children for the past seven years.
E.E. has a stable job and a stable home. DSS stated in their
dispositional report to the court that E.E. seems to love his
children and takes very good care of them. E.E. has provided DSS
access to his children and to his home. A.E. and J.E. do not show
any signs of neglect. For a determination of neglect, a court must apply principles
pursuant to N.C. Gen. Stat. § 7B-101(15). According to the
statute, a neglected juvenile is defined in part as:
[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; 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; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2003).
While the determination of neglect is a fact specific inquiry,
not every act of negligence or commission of a crime by a parent
constitutes neglect under the law and results in a neglected
juvenile. In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258
(2003) (an anonymous call reporting an unsupervised, naked, two-
year-old in her driveway, standing alone, does not constitute
neglect). A parent's conduct must be viewed on a case-by-case
basis on the totality of the evidence. Speagle v. Seitz, 354 N.C.
525, 531, 557 S.E.2d 83, 86 (2001), cert. denied, 536 U.S. 923, 153
L. Ed. 2d 778 (2002).
In determining whether neglect has occurred, the trial judge
may consider a parent's complete failure to provide the personal
contact, love, and affection that [exists] in the parental
relationship. In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d
399, 403 (quoting In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811,
813 (1982)), aff'd, 357 N.C. 568, 597 S.E.2d 674 (2003). In
addition, this Court requires there be some physical, mental, oremotional impairment of the juvenile or a substantial risk of such
impairment as a consequence of the failure to provide proper care,
supervision, or discipline in order to adjudicate a juvenile
neglected. In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898,
901-02 (1993) (internal quotations and citations omitted).
Our Supreme Court's review of the numerous cases where a
finding of neglect or a neglected juvenile was substantiated
shows that the alleged neglect constituted either severe or
dangerous conduct or a pattern of conduct either causing injury or
potential injury to the juvenile. In re Stumbo, 357 N.C. at 283,
582 S.E.2d at 258.
In Powers v. Powers, the evidence showed the mother had a
severe alcohol problem. 130 N.C. App. 37, 43, 502 S.E.2d 398, 402,
disc. rev. denied, 349 N.C. 530, 526 S.E.2d 180 (1998). She drove
an automobile in which her minor children were passengers while
impaired due to alcohol. Id. She became intoxicated at home to
the point of literally falling down and becoming unable to care for
her younger children. Id. Her drinking also contributed to
emotional problems by her older children. Id.
A conviction based on acts committed in the home can be
sufficient to support a finding of neglect. In re Blackburn, 142
N.C. App. 607, 543 S.E.2d 906 (2001). In In re Blackburn, the
evidence showed: (1) domestic violence between the respondent and
her live-in boyfriend; (2) the respondent inappropriately leaving
the child in the care of others; (3) the respondent's illegal drug
use and distribution of drugs in the presence of the child; (4) anoverall history of lawlessness; and (5) the respondent's repeated
incarcerations were considered sufficient evidence of neglect. 142
N.C. App. at 610, 543 S.E.2d at 909. None of these factors are
When confronting the situation where a respondent has been
convicted of a crime and continues to be incarcerated, our courts
have prohibited termination of parental rights solely on those
factors. Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608
(1962) (The fact that a parent commits a crime which might result
in incarceration is insufficient, standing alone, to show a
settled purpose to forego all parental duties.); In re Yocum, 158
N.C. App. at 204, 580 S.E.2d at 403 (the respondent was
incarcerated but also did nothing to emotionally or financially
support and benefit his children); In re Shermer, 156 N.C. App.
281, 290-91, 576 S.E.2d 403, 409 (2003) (willfulness not shown
under N.C. Gen. Stat. § 7B-1111(7) where the respondent was
incarcerated but wrote letters and informed DSS that he did not
want his parental rights terminated); In re Clark, 151 N.C. App.
286, 565 S.E.2d 245 (2002) (termination of parental rights reversed
where the father was incarcerated and evidence was insufficient to
find that he was unable to care for his child), disc. rev. denied,
356 N.C. 302, 570 S.E.2d 501 (2002); In re Bradshaw, 160 N.C. App.
677, 682, 587 S.E.2d 83, 86 (2003) (it is beyond an imprisoned
individual's control how many visitations with his child he is
allowed); In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002)(the father's parental rights were terminated because he was
incarcerated and he failed to show filial affection for his child).
A court cannot rely solely on the commission of a crime and
subsequent incarceration in making its determination of neglect.
In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322
(1988). In In re Williamson, the father was convicted of and
subsequently incarcerated for the murder of his child's mother.
Id. at 671, 373 S.E.2d at 318. Although this Court considered the
father's murder conviction and subsequent incarceration, we also
considered the father's actions and circumstances since the murder
in drawing the conclusion that respondent neglected and abandoned
his child. Id. at 678, 373 S.E.2d at 322.
Here, E.E.'s conviction and probation violation does not rise
to the level of harm to his children that was shown in the cases
cited above. No evidence was presented that E.E. committed any
criminal acts in the home or while his children were present.
E.E.'s conviction did not result from any criminal or other
inappropriate behavior against his own children. No evidence shows
respondent ever abused or neglected his children. No evidence was
presented that E.E.'s criminal behavior took place in the company
of either A.E. or J.E. or that the children were placed in danger
during the commission of his crime.
E.E.'s crime arose out of indecent liberties with a fifteen-
year-old minor, who was not shown to be a blood or other type of
relative. Although indecent liberties is a strict liability
offense and respondent's criminal conduct cannot be condoned, noneof respondent's actions involved his children. E.E.'s submission
to and completion of the sexual offender evaluation satisfied the
condition of his probation.
III. Dr. Robert D. McDonald, Ph.D.
E.E. underwent a thorough and comprehensive evaluation
administered by a psychologist, Dr. Robert D. McDonald (Dr.
McDonald), who was trained in sex offender treatment. After
E.E.'s evaluation, Dr. McDonald stated in his report and assessment
that the children were not in danger from E.E. Dr. McDonald
opined, there is not reason to conclude that he is at significant
risk to sexually offend his children. Dr. McDonald testified that
at age forty-seven, E.E. had reached an age where the chance of re-
offending ha[d] gone down.
A DSS social worker confirmed that DSS was not able to take
from Dr. McDonald's evaluation that A.E. and J.E. were in danger at
this point. The children always appeared clean, well kept,
healthy, and their hair was usually done very well when DSS visited
the home. Multiple home visits by DSS never disclosed any neglect
of the children. See Troxel v. Granville, 530 U.S. 57, 68-69, 147
L. Ed. 2d 49, 58 (2000) ([S]o long as a parent adequately cares
for his or her children (i.e., is fit), there will normally be no
reason for the State to inject itself into the private realm of the
family to further question the ability of that parent to make the
best decisions concerning the rearing of that parent's children.).
Prior cases show that convictions and incarceration of a
parent for more serious crimes are not, standing alone, sufficientto support a finding and conclusion the child is abused or
neglected. In re Williamson, 91 N.C. App. at 678, 373 S.E.2d at
Without finding that a parent is unfit or has engaged in
conduct inconsistent with the presumption that he will act in the
best interest of the child his parental rights must be respected.
Adams v. Tessener, 141 N.C. App. 64, 72, 539 S.E.2d 324, 330 (2000)
(past misconduct which result in convictions and did not include
threatened physical violence, illegal substances, or weapons did
not overcome the constitutional presumption that the natural parent
will act in the best interest of the child) overruled on other
grounds, 354 N.C. 57, 550 S.E.2d 449 (2001); see also In re R.T.W.,
___ N.C. ___, ___ S.E.2d ___ (July 1, 2005) (No. 417PA04).
Although respondent failed to object to or assign error to
Dr. McDonald's contradictory testimony, no evidence, findings, or
conclusions support the conclusion that respondent has neglected
his children. Clear, cogent, and convincing evidence shows
otherwise. The sole basis to support the trial court's order is
Dr. McDonald's revised opinion at the hearing, two weeks after he
submitted his comprehensive written report, that respondent may
pose a risk to his children in the future. Not only does his
changed testimony directly contradict his earlier opinions and,
despite the fact that respondent sought and completed assessments
and treatment, Dr. McDonald suggests that the mere possibility or
propensity by respondent of another incident in the future supports
a past or present finding of neglect of respondent's own children. While the trial court is free to consider and weigh Dr. McDonald's
revised ad hoc opinion, his contradictory statements about possible
future conduct is not clear, cogent, and convincing evidence to
support its conclusion of neglect.
Review of respondent's appeal is properly before us. E.E.'s
conviction did not stem from any activity within the minor
children's home, while they were present, nor was taken against his
children. Respondent did not place his children in any form of
danger. A.E. and J.E. do not show any signs of neglect or abuse.
Respondent gave DSS access to his children and their home. He
consented to the children being placed with relatives, and attended
and completed Dr. McDonald's specific evaluation over a number of
The trial court's findings of fact that E.E.'s prior
conviction of taking indecent liberties and his subsequent failure
to schedule sex offender specific evaluation is not clear, cogent,
and convincing evidence to support a finding of fact or conclusion
of law that his minor children, A.E. and J.E., are neglected. By
the time of the hearing, E.E. had submitted to and completed the
sex offender specific evaluation. Contradictory evidence of a mere
possibility of future conduct from a changed opinion at hearing is
insufficient to support a finding of neglect. I respectfully
dissent from that portion of the majority's opinion to affirm the
trial court's conclusions that respondent neglected A.E. and J.E.
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