An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-331


Filed: 16 August 2005

        R.J., and W.J.         Jones County
                            Nos. 02-J-5, 00-J-3, 03-J-1

    Appeal by respondents from an order dated 15 January 2004 by Judge Sarah C. Seaton in Jones County District Court. Heard in the Court of Appeals 23 September 2004.

    Ms. Sheri M. Davenport for Jones County Department of Social Services, petitioner-appellee.

    Mr. Duncan B. McCormick for respondent-appellant stepmother

    Ms. Rebekah W. Davis for respondent-appellant father.

    BRYANT, Judge.

    W.A.J.   (See footnote 1)  (father) and T.J. (stepmother), collectively respondents, appeal from an order dated 15 January 2004 adjudicating Anna to be abused and Beth and Wayne to be neglected.
    W.A.J. is the father of the three minor children: Beth (R.J., eldest daughter, born 1986), Anna (R.K.J., youngest daughter, born 1988) and Wayne (W.J., son, born 1990). In 1999, all threechildren were removed from the home when Beth made allegations of sexual abuse against their father. Anna and Wayne returned home in January 2000 and Jones County Department of Social Services (DSS) filed a petition in September 2000 alleging Beth had been abused. Beth was returned home in March 2002 at which time she recanted her allegations.
    At the 23-26 June 2003 hearing, the trial court adjudicated Anna to be abused. Beth and Wayne were adjudicated to be neglected. We uphold the trial court's adjudication of neglect as to Beth and Wayne. However, we note that the appeal as to Beth is now moot because she has reached the age of majority. See In re Beck, 109 N.C. App. 539, 542, 428 S.E.2d 232, 234 (1993). We also note for the record that on 14 September 2004, while this appeal was pending, respondent father filed with this Court notice of his Relinquishment of Minor for Adoption (dated 13 May 2004), with respect to Anna and pursuant to N.C. Gen. Stat. § 48-3-706 (2003). We acknowledge this notice; however, absent a motion to dismiss, we will hear respondent father's appeal.

    On appeal, respondents father and stepmother allege the trial court erred in: (I) findings of fact seven through twelve, seventeen through twenty-one, and thirty; (II) concluding the father abused Anna; (III) finding and concluding Beth and Waynewere neglected; (IV) concluding this case is consistent with sex abuse cases; and (V) finding respondent stepmother lied to protect their father.   (See footnote 2) 
    Respondents first argue the trial court erred in findings of fact seven through twelve, seventeen through twenty-one, and thirty, alleging they are not supported by clear and convincing evidence.
     The trial court's findings of fact must be proved by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2003); N.C. Gen. Stat. § 7B-807(a) (2003); In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69, 73 (2003). Findings supported by clear and convincing evidence “are conclusive on appeal even though the evidence might have supported a finding to the contrary.” Id. It is well settled that “where no exception is taken to a finding of fact [made] by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)(citation omitted).
    Respondents challenge the following findings of fact:
        7.    The juvenile [Anna] was taken hunting by her father when she was approximately 13 years old. While in the woods, the respondent father drew parts of sex organs on a log and talked with [Anna] about sex. He then put his hand down her pants and fondled her. On the way back . . . [Anna] fell in the water with her father's gun.

        8.    Thereafter, the respondent father began performing oral sex on [Anna] and having her perform oral sex on him. The respondent father also began having sexual intercourse with [Anna], using condoms on those occasions. On some Fridays, when the respondent father was not required to work, he allowed the juvenile [Anna] to skip school to have sexual relations with [him], [Anna] testified that her father had also put his penis in her butt on occasion.

        9.    [Anna] got cigarettes from her father to have sex with him; and if she was on restriction, she was allowed to be released from restriction upon having sexual relations with [her] father.

        10.    The respondent father had sexual intercourse with [Anna] approximately 15 to 20 times from the time she was 13 years old until her commitment to Samarkand Manor Youth Development Center on or about July 26, 2002.
        11.    The respondent father would tell the juvenile how much he loved her on the occasions he had sex with [Anna].
        12.    [Anna] told her stepmother about the incidents of sexual abuse by her father. [Anna] had also told her about having sex with her 30 year old cousin . . . and [Anna] later denied it. However, therespondent [step]mother took [Anna] to the doctor and she was placed on birth control . . . around January, 2002.

        . . .

        17.    [Anna] has had sexual relations with [several cousins, a neighbor] and [her paternal grandfather]. The respondents believe [Anna] had inappropriate sexual relations with all these people, except for the respondent father. The grandfather had appeared previously to be a stable figure who took her for her counseling sessions and was allowed supervised visitation with her until early June 2003.

                18.    The juvenile [Anna] had a child mental health evaluation by [Ms. Stone, a psychiatric nurse specialist] in December 2002 and January 2003. Having been accepted as an expert in child health, [Stone] testified in her opinion [Anna had] been sexually abused. Three professionals who testified . . . indicated [Anna's] disclosures were consistent and credible.

                19.    The juveniles have been exposed to pornography in their home.          

        20.    [Anna's sixteen-year-old cousin] testified that [the respondent father] has spied on her and [Anna] in the bathtub and took pictures of them naked. On one occasion, [the cousin] allowed [the respondent] to perform oral sex on her while [Anna] was present in the room . . .[and respondent] “fingered” [Anna .]
                21. [Anna] indicates her 12 year old brother [Wayne] was present on one occasion when her father was having sex with [Anna] on the living room couch. [Wayne] denieswitnessing that event, but testified that he saw [his adult cousin] slurping jell-o off [Anna's] top.        
        . . . 

                30.    [Beth] told her [stepmother] she had had 18 different sexual partners, at 15 years old, yet [Beth] was permitted to stop her counseling and no help was sought for [Beth], except to place her on and continue her on birth control shots. [Beth] promised to talk with her stepmother before she decided to have sex again.

    “[T]he trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom.” In re McCabe at 679, 580 S.E.2d at 73. “If a different inference may be drawn from the evidence, [the judge] alone determines which inferences to draw and which to reject.” Id.
    In findings of fact seven through twelve respondents take issue with the trial court's assessment of the testimony of Anna, and of other witnesses with regard to Anna. One staff member who had worked with Anna at Samarkand testified, in her opinion, Anna was truthful in alleging she had been sexually abused by her father. Further, records for both Neuse Mental Health and Cherry Hospital were admitted into evidence and tended to support Anna's allegations of sexual abuse. However, respondents did not challenge the trial court's findings surrounding Anna's treatment and care:        13.    While at Samarkand, [Anna] punched staples in her arm and pulled her hair out in clumps. In or around October, 2003, after gaining rapport with staff and her therapist, [Anna] eventually told staff members and her therapist at Samarkand about the sexual abuse by her father. [Anna] had been aggressive and violent prior to her commitment to Samarkand. She had three juvenile delinquency adjudications for assaults against family members.
        . . .            

        32.    When she thought she was going home, [Anna] did write one letter to her [stepmother] and one to DSS saying she was lying. [Anna] indicated in her letter to her stepmom, she had lied because she was hurt that the respondents had been giving their attention to the grandchild[.] Other than those letters, [Anna] has maintained the truthfulness of her allegations, and according to [the staff psychologist at Samarkand], [Anna]'s recounting of the events is vivid and consistent.

The trial court then concluded “[t]he evidence establishes clearly and convincingly that [Anna] has been sexually abused by the respondent father” and adjudicated Anna to be abused. Clear and convincing evidence supports findings of fact seven through twelve which in turn support the trial court's conclusion that Anna was sexually abused by respondent.
    Finding of fact seventeen is challenged as not based on sufficient evidence. However, the transcript reveals thatrespondent stepmother admitted she believed Anna was truthful about sexual incidents with family members, except respondent father. Respondent stepmother also admitted she suspected Anna's grandfather had abused Anna and tried to stop it. This evidence is sufficient to support the trial court's finding.
    Respondent stepmother cites State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002) in support of her argument that the trial court erred in finding of fact eighteen by relying on opinion testimony in finding that Anna had been abused. In Dixon, a criminal case, this Court stated, “in the absence of physical evidence to support a diagnosis of sexual abuse, expert testimony that sexual abuse has in fact occurred is not admissible because it is an impermissible opinion regarding the victim's credibility.” Id. at 53, 563 S.E.2d at 598 (emphasis added).
    Here the child mental health expert actually testified Anna's symptoms were consistent with allegations of sexual abuse and that the “information in [the] evaluation and the history supported allegations of sexual abuse.” Moreover, the trial court made findings regarding Anna's promiscuity and her aggressiveness and assaultive behavior, as well as her depression which led to a suicide attempt. These are symptoms characteristic of sexually abused children. See State v. Stancil, 146 N.C. App. 234, 552S.E.2d 212 (2001) (finding witness testimony as to general behavioral and psychological characteristics of sexually abused children to be proper opinion testimony). We find the trial court's reliance on this testimony to be proper while noting again the significant evidence presented to support a finding of sexual abuse.
    As to finding of fact nineteen, respondent stepmother argues DSS did not present clear and convincing evidence the juveniles had been exposed to pornography. In re Morales, 159 N.C. App. 429, 434, 583 S.E.2d 692, 694 (2003) (neglect adjudication affirmed where parent exposed juvenile to pornographic materials). The trial court's finding of fact was based on evidence presented, not only by Anna, but also by her stepmother, who testified that on a few occasions, the father typed addresses to pornography internet sites supplied by Anna and then looked at them with her. Respondent stepmother initially testified to the kind of internet sites and said Anna thought it was funny, but later, respondent stepmother said Anna had not viewed the sites and was only told about them. Moreover, respondent stepmother recalled the pornography allegations in the 1999 abuse petition concerning the older daughter Beth and said the pornographic material was mostly contained in email. Competent evidence supports the trial court's findings that the children were being exposed to pornographicmaterial. See id.
    Respondents argue finding of fact twenty was not a proper finding. While the first sentence of the trial court's finding might be considered a “recitation of testimony” the remainder of finding twenty was proper and supported by clear and convincing evidence. There, the trial court found the testimony of Anna's sixteen-year-old cousin corroborated Anna's testimony of sexual abuse by respondent. The record contains clear and convincing evidence of numerous instances where the cousin observed respondent father engaging in sexual conduct with Anna at various times and locations. Further, the cousin testified respondent father had engaged in sexual conduct with her on several occasions as well. These findings are supported by competent evidence.
    Respondent stepmother argues that in finding of fact twenty- one, the trial court relied upon contradictory testimony by Anna and Wayne to support a finding that Wayne was present on one occasion when Anna's father was having sex with her on the living room couch. We note that in this finding the court again appears to merely recite testimony. Despite this, the record contains other findings of fact based on clear and convincing evidence which support the trial court's conclusion Wayne was exposed to sexual activity while living in respondents' home.    Respondents challenge finding of fact thirty where the trial court found Beth, at age 15, had told her stepmother she had “18 different sexual partners . . . yet [she was] permitted to stop her counseling and no help was sought for [her], except to place her on birth control shots. She promised to talk with her stepmother before she decided to have sex again.” During the hearing, respondent stepmother stated she put Beth on birth control when Beth told her about how many sexual partners she had. Also, respondent stepmother admitted Beth was allowed to make her own decisions about matters that should be decided by the parent. Respondent stepmother admitted Beth took herself off medication prescribed for her mental health a few weeks after her admission in April 2002 to Cherry Hospital following a suicide attempt. This is sufficient evidence to support finding of fact thirty.
    In sum, after careful review of the record, we conclude that there was clear and convincing evidence to support the trial court's findings of fact seven through twelve, seventeen through twenty and thirty. These assignments of error are overruled.

    Next, respondent stepmother argues the trial court erred in concluding the father abused Anna.
    N.C. Gen. Stat. . 7B-101(1)(d) defines an abused juvenile inpertinent part as:
        Any juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker [c]ommits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: first- degree rape . . .; second degree rape . . .; first-degree sexual offense . . .; second degree sexual offense . . .; crime against nature . . .; incest . . . ; and taking indecent liberties with the juvenile . . . , regardless of the age of the parties[.]

N.C.G.S. . 7B-101(1)(d) (2003).
    A trial court's conclusions of law involve legal questions that may be reviewed de novo by the appellate court. Mann Contrs., Inc. v. Flair with Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 775, 522 S.E.2d 118, 121 (1999). The conclusions of law must be supported by findings of fact. In re Montgomery, 311 N.C. 101, 11, 316 S.E.2d 246, 253 (1984); In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560, 566 (2002).             
    Respondent stepmother argues the trial court erroneously concluded Anna was abused by her father because Anna had received mental health treatments and had recanted her allegations. We disagree. The trial court weighed the evidence as presented and found, inter alia, respondent father: fondled Anna; performed oral sex on Anna; allowed Anna to perform oral sex on him; and had sexual intercourse with Anna. As we determined in Issue I supra,the trial court's conclusion Anna was sexually abused was supported by proper findings of fact which were based on clear and convincing evidence. This assignment of error is overruled.
    Respondents next contend the trial court's neglect adjudications as to Beth and Wayne were not supported by competent findings of fact or by clear and convincing evidence. We disagree.
    A neglected juvenile is a “juvenile who does not receive proper care, supervision or discipline from the juvenile's parent or caretaker . . . or who lives in an environment injurious to the juvenile's welfare, [including living at] home where another juvenile has been subjected to abuse by an adult who regularly lives in the home.” N.C. Gen. Stat. § 7B-101(15) (2003).
     As stated supra, there was competent and convincing evidence to support the trial court's conclusion that Anna was sexually abused by her father while living in the home with her siblings. The record shows competent evidence that while Beth and Wayne were living with respondents, Beth attempted suicide and was admitted to Cherry Hospital. Thereafter, in April 2002, respondents permitted Beth to terminate her own counseling sessions. Beth was beaten with a belt that left marks and bruises on her body. Respondent stepmother suffered a broken finger, a black eye, loss of visionand damaged teeth as a result of violent conduct. Wayne was exposed to all these incidents. These and other incidents of violence caused Jones County deputies to respond to calls from the home on numerous occasions. Further there was testimony regarding pornography in the home and Beth admitted to having viewed the pornographic materials. In addition, respondent father was unwilling to allow Anna to have a mental health evaluation which caused DSS to file an Interference with the Investigation Petition. These findings of the trial court are supported by clear and convincing evidence and are therefore sufficient to support an adjudication of neglect as to Beth and Wayne. See In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (adjudication of neglect affirmed where clear and convincing evidence supported the trial court's findings of fact that the respondent exposed the juvenile to extensive physical and sexual abuse). This assignment of error is overruled.
    Respondent stepmother further argues the trial court's conclusion of law that “testimony in this case is consistent with sex abuse cases” is not supported by the findings of fact. We disagree.
    The allegations in a petition alleging abuse must be proved byclear and convincing evidence and the trial court's findings of fact, if supported by clear and convincing evidence, are conclusive on appeal “even where some evidence supports contrary findings.” Id.
    In concluding that this case is “consistent with sex abuse cases”, the trial court made findings of fact as to the sexual promiscuity of both Anna and Beth. Additionally, findings were made regarding the aggressive and assaultive nature of both girls and depression leading to suicide attempts by both girls. The trial court found Anna acted out sexually by touching the breasts of her stepmother and her sister, as well as pulling down her stepmother's pants. Moreover, both girls had received psychological counseling and exhibited significant behavioral problems which led to their hospitalizations. Both girls had been adjudicated juvenile delinquents in the juvenile court system because of their sexual conduct and violent, assaultive behaviors. Clearly, the trial court's conclusion that the testimony in this case is consistent with sex abuse cases is supported by the findings of fact. This assignment of error is overruled.
    Respondent stepmother argues the trial court erred in finding she lied to protect the children's father. We disagree. The trialcourt's findings that respondent stepmother lied are supported by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2003); In re McCabe at 679, 580 S.E.2d at 73; In re Hughes at 759, 330 S.E.2d at 218.
    Beth testified she had been beaten by her father with a belt on or around 29 April 2002, leaving marks and bruises on her, which occurred in front of her 12 year old brother, Wayne. When asked about the DSS investigation of the incident involving Beth, respondent stepmother testified “Daddy didn't hit her. She ran into the car and bruised herself. There was a whole lot of us out there at the time. And she did come to Social Services and claim that daddy hit her with a belt.” The trial court found respondent stepmother failed to testify credibly on this issue.
    With respect to the allegations of respondent father's sexual abuse, respondent stepmother claimed Anna read Beth's sexual abuse petition in an effort to justify why the girls had similar allegations of molestation surrounding hunting trips with their father. However, the court took judicial notice that Beth's juvenile petition was not filed until 8 September 2000, and therefore not in existence in January 2000 at the time respondent stepmother claimed Anna read the petition. The trial court found respondent stepmother failed to testify credibly on this issue aswell. The trial judge is the trier of fact and determines the credibility of witnesses. See Leak v. Leak, 129 N.C. App. 142, 150, 497 S.E.2d 702, 706 (1998) (holding the trial court determines credibility of witness testimony). This assignment of error is overruled.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
    Initials and pseudonyms are used throughout to protect the identity of the individuals.
Footnote: 2
    Respondents father and stepmother filed separate briefs on appeal. However, because respondents argue related issues, we address them collectively.

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