IN THE MATTER OF:
Cabarrus County
T.P. No. 01 J 15
2
Kathleen Arundell Widelski for petitioner-appellee Cabarrus
County Department of Social Services; Victoria Bost for
Guardian ad Litem.
John Nance for respondent-appellee mother.
Franklin R. Plummer for respondent-appellee caretakers.
Jason Price for respondent-appellee natural father.
Rebekah W. Davis for respondent-appellant father.
HUNTER, Judge.
Respondent-father appeals from orders of the trial court
adjudicating his minor child, T.P., abused and neglected, and
concluding that visitation between T.P. and respondent would not be
in the best interests of the child. Respondent argues that several
of the trial court's findings in its adjudication order are not
supported by clear, cogent, and convincing evidence. In addition,respondent contends the trial court's conclusions that T.P. was
abused and neglected, and that visitation between respondent and
T.P. was not in the best interests of the child, are unsupported by
sufficient findings or evidence. For the reasons set forth herein,
we affirm the orders of adjudication and disposition.
The pertinent procedural and factual history of the instant
appeal is as follows: On 13 July 2001, the Cabarrus County
Department of Social Services (“DSS”) filed a juvenile petition
alleging T.P. to be an abused and neglected child as defined by
section 7B-101 of the North Carolina General Statutes in that “her
father, [respondent], has committed first degree statutory sexual
offense and/or first degree statutory rape against the child and
indecent liberties with the child[.]” T.P. and her younger sister,
C.P., were placed in the legal custody of DSS pursuant to a non-
secure custody order. Maternal relatives assumed physical custody
of the children. On 14 August 2002, respondent-mother entered into
a consent order. In the consent order, respondent-mother agreed
that T.P. and C.P. were abused and neglected, and she stipulated
that it was in the children's best interests to be placed
permanently with her relatives. The consent order noted that
respondent-mother had not abused T.P., and it also allowed for
monthly supervised visitation between respondent-mother and the
children. The adjudication hearing as to respondent came before the
trial court on 14 and 15 August 2002, and continued to be heard on
12 September 2002, and 10, 14, and 25 October 2002. DSS presented
evidence tending to show that respondent is the legal, although not
the biological, father of T.P., who was born 17 October 1997.
Respondent and respondent-mother married in October of 1997 and
separated in September of 2000. T.P. resided with her mother, but
spent weekends with respondent. Respondent took care of T.P. the
weekend of 17-19 November 2000. On 24 November 2000, pediatrician
Dr. Laura Mock examined three-year-old T.P. for suspected sexual
abuse. Dr. Mock testified that the child's “opening into the
vaginal vault appeared larger than . . . normal . . . and she also
appeared to have an abnormal hymenal edge. There appeared to be a
notching in the hymen, which . . . we typically do not see in
children of this age.” Dr. Mock was able to observe the
abnormalities without the benefit of a colposcope. She explained
that “to be able to see something without magnification is
significant. It usually requires that we have the benefit of the
magnifying lens to be able to really get a clear picture of the
hymenal edge, but in this case it was clear to see.” The injuries
were several weeks to months old. Further examination with a
colposcope corroborated the findings of potential sexual abuse.
When Dr. Mock spoke with respondent about her findings, he told herthat T.P.'s injuries were “possibly due to the fact that she had a
toy hobby horse that she . . . liked to jump up and down on a
lot[.]” During direct examination at the hearing, Dr. Mock agreed
that it was unlikely that a child would continue to hurt herself
vaginally while playing on a toy.
On 30 April 2001, Dr. Mock again examined T.P. and observed a
rash in the genital area and discharge in the vaginal area. During
a third evaluation on 11 July 2001, T.P. had
increased erythema, or redness, of the
perihymenal and periurethral tissues. She
appeared to have more overexposure into the
vaginal vault than she had at the prior exam.
There was some scarring noted in an area
called the posterior fourchet, and then she
also had erythema and some fissuring on her
rectal exam.
Based on her examinations, Dr. Mock determined that T.P. had
definitely been sexually abused.
Although the Cabarrus County Sheriff's Department conducted a
criminal investigation, the perpetrator of the sexual abuse was
never identified for purposes of a criminal prosecution. DSS,
however, substantiated sexual abuse against respondent based on the
physical evidence and statements made by T.P. T.P. told several
family members that respondent “'hurt[] [her] monkey,'” which was
the child's term for her vagina. T.P. indicated that respondent
put petroleum jelly in her vagina whenever he “'hurt[] [her]monkey.'” T.P. also informed one caregiver that respondent “stuck
. . . a big purple pen in me and it had a hole in the end of it.”
After divulging this information, T.P. told the caregiver
repeatedly to close the window coverings of her home because
“'there are monsters, and [respondent's] going to send them after
me because you know the secret.'” T.P. told her therapist that
“'[respondent] touched me'” and pointed to her private parts. She
drew a picture of “four sad faces with tears rolling down to
indicate the number of times [respondent] had touched her.”
DSS also introduced evidence of a 9 May 2001 civil custody
hearing between respondent and respondent-mother. During that
hearing, several witnesses testified regarding respondent's temper
and his inappropriate behavior with T.P. and her sister. The
witnesses told of respondent often yelling and cursing at the
children in their faces. When he cursed at the children,
respondent routinely used words such as “mother-f___er,” “g__damn”
and “f___.” One witness described an incident in which respondent
disciplined T.P.'s sister, who was two years old at the time, by
cursing at her and picking her up “under her right armpit . . .
[and] slapp[ing] her on the hind end. She twisted sideways. He
slapped her again on the leg.” Respondent then “slammed” the child
down into a chair. T.P. was present at the time. At the
conclusion of the 9 May 2001 civil hearing, the trial court foundthat neither respondent nor respondent-mother were fit and proper
persons to have custody of T.P. and her sister, and placed
temporary custody of the children with maternal relatives. In its
14 June 2001 civil custody order, the trial court specifically
found that respondent was unfit in that:
a. He has occasional fits of temper and
profanity which prevent him from providing
suitable care and discipline for the minor
children . . . .
. . .
c. While in the care of [respondent]
for visitation, the minor children have
suffered repeated unexplained injuries and
patterns of bruises, and even a limp on one
occasion, which appear to be more significant
and more frequent than the ordinary playtime
injuries expected among children of their
ages.
d. [Respondent] has been classified as
Behaviorally Handicapped since high school,
and receives monthly payments for this
disability in the amount of $530.00 per month.
Though this disability does not prevent him
from doing many things, it interferes
significantly with his judgment and his
ability to act as a full-time parent without
assistance.
Respondent did not appeal from the 14 June 2001 civil custody
order. DSS introduced a copy of the trial court's civil custody
order into evidence at the adjudication hearing. Notably, the
trial judge for the civil custody action was the same judge who
presided over the adjudication hearing. At the conclusion of the adjudication hearing, the trial court
found that T.P. had been sexually abused, and that circumstantial
evidence suggested that respondent was the perpetrator. However,
the trial court declined to find that respondent had sexually
abused T.P. Nevertheless, the trial court found that respondent
emotionally abused T.P., and that respondent's failure to protect
T.P. from the sexual abuse she suffered constituted abuse and
neglect in itself. Based on these and other findings of fact, the
trial court concluded that T.P. was an abused and neglected child.
A disposition hearing was held 14 May 2004. Following the
hearing, the trial court found, inter alia, that:
8. [T.P.] appears to have significant fear
of her legal father, [respondent], which
has been repeatedly expressed for the
better part of two years.
9. [T.P.] has been found to be sexually
abused while in the care of [respondent-
father and respondent-mother], although
the court has not found that [respondent-
father] committed acts of sexual abuse.
. . .
17. [T.P.] has received therapy since 2001.
She is currently a happy well-adjusted
little girl. [T.P.] still names her
father as the perpetrator of abuse. Her
therapist . . . recommended no visitation
between the child and the father based on
numerous personal contacts with the minor
child.
18. [Respondent-father] pled guilty to felony
intimidating a witness e.g. [one of the
maternal relatives with whom T.P. was
placed], a party to this action. The
acts of intimidation occurred while
[C.P.], [T.P.'s] younger sibling was
[present]. [Respondent-father] has also
been convicted of two counts of
communicating threats while this action
was pending.
. . .
20. While [respondent] indicated he has been
involved in anger management, he still
maintains he has never had an anger
management problem. He has been treated
by his doctor for depression and anxiety
and his doctor has indicated he has shown
improvement.
Among its conclusions of law, the trial court stated that:
4. [Respondent] has shown very limited
insight into his own problems. His
patterns of behavior are chronic and
pervasive and his behavior is still
significantly unstable such that he
cannot provide a consistently safe and
healthy environment for this child[].
5. While it is clear that [respondent] loves
his children, and may not have had any
genuine realization of what he was doing
when he committed acts of physical and
emotional abuse, his actions created
emotional trauma in [T.P.] that he has
never recognized or understood.
[6.] [T.P.] is stable in her placement and is
in desperate need of permanence.
[7.] The return of [T.P.] to the care of
[respondent] would be inconsistent with
the child's health, safety, welfare andneed for a safe permanent home within a
reasonable period of time in that it does
not appear that this situation will
change in the near future to allow the
child to be returned to the care of
[respondent].
[8.] The Guardian ad litem program, the
child's therapist and the most recent
evaluation of [respondent] all support
the recommendation that reunification
between the child and her father is not
in the child's best interest.
The trial court then concluded that placement, visitation, and
reunification between respondent and T.P. would not be in the
child's best interests, and placed T.P. in the legal guardianship
of her maternal grandmother. Respondent appeals from the orders of
adjudication and disposition. Respondent-mother does not appeal.
Further facts are set out in the opinion as necessary.
Although respondent originally presented five assignments of
error in the record on appeal, his brief contains arguments
centering on only three assignments of error. The remaining two
assignments of error are therefore waived. See N.C.R. App. P.
28(a). We address the arguments preserved by respondent.
By his first assignment of error, respondent argues that
Findings of Fact Nos. 10, 12, 13, and 14 in the order of
adjudication are unsupported by clear, cogent, and convincing
evidence. “Allegations of abuse and neglect must be proven by
clear and convincing evidence.” In re M.J.G., 168 N.C. App. 638,643, 608 S.E.2d 813, 816 (2005). Where the trial court's findings
of fact in an abuse and neglect adjudication are supported by clear
and convincing competent evidence, such findings are deemed
conclusive, even where some evidence supports contrary findings.
Id. This Court's review of a trial court's conclusions of law is
limited to determining whether the conclusions are supported by the
findings of fact. Id. “If the trial court's conclusions of law
are supported by findings of fact based on clear, cogent and
convincing evidence, and the conclusions of law support the order
or judgment of the trial court, then the decision from which appeal
was taken should be affirmed.” In re Everette, 133 N.C. App. 84,
85, 514 S.E.2d 523, 525 (1999).
Finding of Fact No. 10 of the adjudication order states as
follows:
There is circumstantial evidence to suggest
that the Respondent father . . . may have been
the perpetrator of the sexual abuse committed
upon the juvenile [T.P.] or that the sexual
abuse may have occurred during the time when
he was responsible for the care of the
juvenile, including:
A. The discovery of the physical
indications of abuse are consistent with times
that the juvenile [T.P.] was in the care of
the Respondent father . . . .
B. The statements of the Respondent
father . . . and his family regarding the
causes and possible timing of such incidentsof abuse of the juvenile [T.P.] are
inconsistent and not plausible.
Respondent contends this finding is “speculative” and “only
supported by circumstantial evidence, as opposed to clear and
convincing evidence.” As such, respondent argues that the finding
is improper and must be reversed. We do not agree.
As petitioner correctly notes, respondent confuses the type of
evidence (circumstantial) with the burden of proof (clear and
convincing). The “clear and convincing” burden of proof describes
an evidentiary standard stricter than the “preponderance of the
evidence” burden of a civil trial, but less stringent than the
“proof beyond a reasonable doubt” utilized in criminal trials. In
re V.L.B., 168 N.C. App. 679, 683, 608 S.E.2d 787, 790, disc.
review denied, 359 N.C. 633, 614 S.E.2d 924 (2005). In order to
meet this burden of proof, the petitioner in an adjudication
hearing may present either direct or circumstantial evidence. See
State v. Berry, 356 N.C. 490, 500, 573 S.E.2d 132, 140 (2002)
(stating that “there is no distinction between the weight to be
given to direct and circumstantial evidence”).
Here, there is no dispute that T.P. was sexually abused.
There was also circumstantial evidence suggesting that respondent
may have been the perpetrator of the abuse. Respondent had access
to T.P. during the time periods leading up to the three medicalevaluations in which Dr. Mock found physical evidence of sexual
abuse. Dr. Mock agreed that respondent's explanation of T.P.'s
injuries, namely that she had injured herself riding a toy hobby
horse, was highly improbable. T.P. made several statements to
family members and her therapist identifying respondent as the
perpetrator. We conclude there is clear and convincing evidence to
support the trial court's Finding of Fact No. 10 of the
adjudication order.
Respondent objects to Findings of Fact Nos. 12-14 on the
grounds that they lack adequate specificity and are unsupported by
the evidence. Although Rule 52(a) of the North Carolina Rules of
Civil Procedure
“does not require a recitation of the
evidentiary and subsidiary facts required to
prove the ultimate facts, it does require
specific findings of the ultimate facts
established by the evidence, admissions and
stipulations which are determinative of the
questions involved in the action and essential
to support the conclusions of law reached.”
In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002)
(quoting Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658
(1982)). “'Ultimate facts are the final resulting effect reached
by processes of logical reasoning from the evidentiary facts.'”
Id. (quoting Appalachian Poster Advertising Co. v. Harrington, 89N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988)). The findings at
issue here provide as follows:
12. Nevertheless, the Court finds that
the juvenile [T.P.] is an abused juvenile,
based on the evidence presented above, in
addition to the several statements of the
juvenile and other witnesses which have been
deemed to be admissible by this Court, and
which contain significant and numerous
allegations of improper conduct by the
Respondent father . . . with the juvenile
[T.P.], including allegations of improper
touching of the juvenile, and displays of a
volatile temper and striking and threatening
the juvenile. The Court does find:
A. that the Respondent father . . .
committed acts of physical, although not
necessarily sexual, abuse against the minor
child [T.P.] and
B. that the Respondent father . . . ,
in displaying a volatile temper and striking
and threatening the juvenile, has further
committed acts of emotional abuse creating
serious emotional distress to the juvenile, as
evidenced by the juvenile's severe anxiety
expressed to those around her at various times
during the years previous to the hearing in
this matter[].
13. The Respondent father . . . clearly
has a volatile temper, as determined from the
testimony of the witnesses and from the
conduct of the Respondent father during
portions of the hearings in this matter.
14. Although the Court cannot find by
clear, cogent and convincing evidence the
specific identity of the perpetrator or
perpetrators of the sexual abuse against the
juvenile [T.P.], the Court does find that
incidents of sexual abuse of the juvenileoccurred during times that the Respondent
[father] and the Respondent [mother] each
individually had the responsibility for the
care [of] the juvenile, and that the negligent
failure of the Respondents to provide
protection to the juvenile also constitutes
abuse and neglect of the juvenile [T.P.]
Although we acknowledge that parts of the trial court's
findings are not a model of specificity, we do not agree that the
findings are so general as to constitute an abdication of the trial
court's duty to make ultimate findings in the case. The trial
court specifically found that respondent displayed a volatile
temper around the children, and that his displays of temper
contributed to emotional abuse of T.P. These findings are
supported by clear and convincing evidence showing that respondent
often yelled and cursed at T.P. and her sister, and had struck
T.P.'s sister in T.P.'s presence. Moreover, the civil custody
order, from which respondent did not appeal, found that the
children suffered repeated unexplained injuries and bruises while
in the care of respondent. The trial court found that these
displays of temper had caused T.P. serious emotional distress. The
trial court further found that T.P. was sexually abused while
respondent was responsible for her care, and that respondent's
negligent failure to protect her from such abuse was, in itself,
abuse and neglect of the child. We conclude these ultimate
findings of fact were adequately specific as to provide support forthe trial court's conclusions of law that T.P. was abused and
neglected, and were not mere recitations of the allegations against
respondent.
We agree with respondent, however, that the trial court's
findings concerning respondent's “striking and threatening the
juvenile” are unsupported by clear and convincing evidence. DSS
presented no evidence of respondent striking or threatening T.P.
There was evidence presented at the civil custody hearing of
respondent striking T.P.'s sister in the presence of T.P. Because
there was no clear and convincing evidence that respondent struck
or threatened T.P., the trial court erred in finding such. The
trial court's error in this regard, however, does not require
reversal of the adjudication order. Even without the findings
regarding respondent striking or threatening T.P., there were
sufficient findings to support the trial court's conclusion that
T.P. was abused and neglected. We overrule this assignment of
error.
By further assignment of error, respondent contends the trial
court's conclusion that T.P. was abused and neglected is not
supported by clear and convincing evidence or adequate findings of
fact. We do not agree.
Under our General Statutes, an abused juvenile includes one
“whose parent, guardian, custodian, or caretaker . . . [c]reates orallows to be created a substantial risk of serious physical injury
to the juvenile by other than accidental means” or who “[c]reates
or allows to be created serious emotional damage to the
juvenile[.]” N.C. Gen. Stat. § 7B-101(1)(b), (e) (2003). A
neglected juvenile is one “who does not receive proper care,
supervision, or discipline from the juvenile's parent, guardian,
custodian, or caretaker[.]” N.C. Gen. Stat. § 7B-101(15). Here,
DSS presented clear and convincing evidence that T.P. had been
sexually abused. The trial court found that the abuse occurred
while respondent was responsible for her care, and that his failure
to protect her from such abuse was negligent and constituted abuse
and neglect in itself. DSS also presented clear and convincing
evidence that respondent had a volatile temper and problems
managing his anger, and often yelled and cursed at the children.
The trial court found that respondent's behavior had caused severe
emotional distress to his child. In the civil custody proceeding,
the trial court found that T.P. and her sister “suffered repeated
unexplained injuries and patterns of bruises, and even a limp on
one occasion, which appear to be more significant and more frequent
than the ordinary playtime injuries expected among children of
their ages” while in the care of respondent. We conclude that the
trial court did not err in adjudicating T.P. abused and neglected. Finally, respondent argues the trial court abused its
discretion in its order of disposition by concluding that contact
between respondent and T.P. was not in the best interests of the
child. Respondent contends that respondent-mother was equally
responsible for the failure to protect T.P., yet still enjoys
supervised visitation with the child. Respondent argues this
“uneven standard” by the trial court demonstrates abuse of
discretion. We do not agree.
In an abuse and neglect proceeding, “the court's primary
concern must be the child's best interest.” In re Pittman, 149
N.C. App. 756, 760-61, 561 S.E.2d 560, 564, disc. review denied,
356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, 538 U.S. 982,
155 L. Ed. 2d 673 (2003). In determining a child's best interests,
any evidence which is competent and relevant
to a showing of the best interest of that
child must be heard and considered by the
trial court, subject to the discretionary
powers of the trial court to exclude
cumulative testimony. Without hearing and
considering such evidence, the trial court
cannot make an informed and intelligent
decision concerning the best interest of the
child.
In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).
In the present case, evidence was presented and the trial
court found that respondent had emotionally abused T.P. Further,
T.P. exhibits “significant fear” of respondent and continues toidentify him as the perpetrator of the sexual abuse. T.P.'s
therapist and the guardian ad litem recommended that the child have
no contact with respondent. The trial court found that respondent
had problems managing his anger, and that he had intimidated one of
T.P.'s maternal relatives in the presence of T.P.'s younger sister,
an offense to which he pled guilty. Respondent was also convicted
of two counts of communicating threats. The trial court found that
respondent had never fully understood the effects of his actions
upon his child. Although we agree that respondent-mother was also
responsible for the events necessitating DSS's involvement with
T.P., the trial court found that respondent-mother, unlike
respondent, did not abuse T.P. In light of the evidence and the
trial court's findings, we find no abuse of discretion by the trial
court in concluding that contact between respondent and T.P. would
not be in the child's best interests. We overrule respondent's
final assignment of error.
DSS argues the trial court erred in failing to find that
respondent sexually abused T.P. In light of our decision, we need
not address this argument. The orders of adjudication and
disposition by the trial court are affirmed.
Affirmed.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***