An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-182


Filed: 3 January 2006

                                        Cabarrus County
T.P.                                        No. 01 J 15 2

    Appeal by respondent from orders entered 20 November 2003 and 1 September 2004 by Judge William G. Hamby, Jr. in Cabarrus County District Court. Heard in the Court of Appeals 21 September 2005.

    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.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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