An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 February 2006
IN THE MATTER OF:
E.T. Buncombe County
No. 97 J 265
Appeal by respondent father from order entered 9 December 2004
by Judge Shirley H. Brown in Buncombe County District Court. Heard
in the Court of Appeals 26 January 2006.
Lisa M. Morrison, for petitioner-appellee Buncombe County
Department of Social Services.
Michael N. Tousey, for petitioner-appellee Guardian ad Litem.
The Moore Law Firm, by George W. Moore, for respondent-
Mohamed Abdelsalam (respondent), father of E.T., appeals the
trial court's order denying his motion to re-establish visitation
with E.T. We affirm.
On 18 June 1997, the Buncombe County Department of Social
Services (DSS) filed a juvenile petition alleging E.T. was a
sexually abused and neglected child. On 20 March 1998 a
dispositional order and an adjudication judgment was entered
finding that E.T. had been sexually abused and neglected by
respondent father. The trial court made the following findings of
fact: 12. That as E.T. became increasingly verbal,
she began to make spontaneous comments to her
mother and grandparents such as daddy bad,
daddy yuck. In early June, 1997, E.T. told
her mother that daddy hurt me here and
pointed to her vaginal area, and indicated to
her mother that her father put his finger in
her vaginal area.
. . . .
14. That the minor child made the same
disclosures during the Child Medical
Examination (CME) and has made the same
disclosures to Debbie Sexton with whom she was
placed in therapy after the CME.
15. That there was no credible evidence
introduced to indicate that any of the minor
child's comments were coached or suggested by
any person to whom she disclosed.
The trial court concluded as a matter of law:
2. That the Court finds by clear, cogent and
convincing evidence that the minor child is a
sexually abused child pursuant to N.C. Gen.
Stat. § 7A-517(1) in that she was sexually
abused by her biological father, Mohamed
Abdelsalam; and, a neglected child pursuant to
N.C. Gen. Stat. § 7A-517(21) in that [s]he was
neglected by her father during overnight
visits in his home.
The court ordered, there shall be no contact between E.T. and
her father. The court also ordered, [t]hat if [respondent]
wishes to have visits with the child in the future he must
successfully complete sex offender specific treatment, acknowledge
the abuse of his daughter, and petition the court to hear the issue
of visitation. This Court affirmed the trial court's adjudication
of abuse and neglect on 6 April 1999. In re E.C.T., (No. COA98-
860) (unpublished). Respondent denies he abused E.T. Respondent filed a petition
on 14 May 2004 requesting that he be granted visitation privileges
with E.T. under the supervision of a psychiatrist. On 16 June
2004, respondent mother filed a motion requesting the petition be
dismissed, or in the alternative be transferred to juvenile court.
On 16 June 2004, the case was transferred to juvenile court.
On 2 August 2004, respondent, by and through his attorney,
filed a notice of hearing requesting visitation privileges with
E.T. The trial court denied the motion. Respondent appeals.
Respondent argues the trial court erred when it denied
respondent's petition to re-establish visitation privileges with
his minor daughter.
III. Petition to re-establish visitation
In the original adjudication and dispositional order, the
trial court ordered respondent to: (1) obtain a sex offender
specific evaluation certified and licensed by the State of North
Carolina to perform such an evaluation; (2) successfully complete
sex offender specific treatment; and (3) acknowledge the abuse of
his daughter if he wishes to have visits with E.T. in the future.
Respondent complied with the first requirement. Dr. Robert D.
McDonald (Dr. McDonald), a specialist in the evaluation and
treatment of sex offenders, performed the evaluation, and noted,
there is no information obtainable through psychological testing
or clinical interview that can determine that an individual has
sexually abused someone when he is denying that he has. Additionally, there is no cluster of psychological characteristics
that can differentiate individual sexual abusers from non-abusers.
During the evaluation, respondent failed to disclose to Dr.
McDonald that he was fired from his job for viewing internet
pornography, or that he had sexually abused his brother. Dr.
McDonald testified respondent's disclosure of this information
could have altered the outcome of his report. Based on the results
of the evaluation, Dr. McDonald did not recommend that respondent
participate in sex offender treatment.
At the visitation motion hearing, respondent presented
testimony from Dr. McDonald. Dr. McDonald concluded that
respondent was not in need of treatment for issues commonly thought
to be related to sexual offending. Dr. McDonald recommended that
efforts begin to reunite the minor child with [respondent] under
the supervision of a knowledgeable psychotherapist at a rate and in
a manner that creates no damaging impact on [the minor child].
The trial court found and concluded respondent failed to
acknowledge he sexually abused E.T. On direct examination, when
asked about the final requirement of the trial court's order,
respondent testified, [w]ith all due respect to the court, I
cannot acknowledge something I did not do.
The trial court made the following findings of fact:
6. At the close of the evidence, [DSS] and
the Guardian ad Litem recommended that it is
not in the best interest of the minor child to
have visitation with her father.
7. The Guardian ad Litem reported that E.T.
has undergone considerable therapy and
counseling over the last seven years, both forthe sexual abuse and for her autism. E.T. has
not seen her father since she was four years
old. She has asked the Guardian ad Litem to
relay to the judge that she does not want
[respondent] in her life. E.T. has a safe,
supportive home with her mother and extended
family on her mother's side. [Respondent] has
not acknowledged that he sexually abused or
neglected the minor child. It is particularly
disturbing to the Guardian ad Litem that
[respondent] states that the issue is that
E.T. carries a notion around in her head
about the abuse, as though he doesn't think
the abuse or neglect ever happened.
8. The Court further ordered in 1998 that if
[respondent] wishes to have visits with the
minor child in the future he must acknowledge
the abuse of his daughter. [Respondent] has
not made such an acknowledgment and continues
to deny that he perpetrated sexual abuse upon
his daughter, both to Dr. McDonald and before
this Court in his sworn testimony today.
Based on these findings the Court denies the
motion of [respondent].
The trial court concluded, [t]hat the motion filed by
[respondent] to re-establish visitation with the minor child, is
denied based on the findings of fact as specified above.
Respondent argues [t]here was no evidence to support the
court's determination. Respondent cites Moore v. Moore and argues
a parent should not be denied the right of visitation in the
absence of extreme circumstances. 160 N.C. App. 569, 572, 587
S.E.2d 74, 76 (2003). In that case, plaintiff and defendant were
divorced. Id. at 570, 587 S.E.2d at 75. Defendant was awarded
custody of the minor child. Id. After the minor child informed
defendant that plaintiff had sexually abused her, defendant filed
a motion to suspend plaintiff's visitation rights pending a sexual
abuse investigation. Id. Plaintiff's visitation rights weresuspended, and a protective order was entered pending further
investigation. Id. Four months later, plaintiff filed a motion to
reinstate visitation. Id. The trial court denied plaintiff's
motion. Id. at 571, 587 S.E.2d at 75.
This Court reversed the trial court and stated [t]he trial
court merely recited the testimony of witnesses and failed to make
the required findings of fact resolving the critical factual
disputes. Id. at 574, 587 S.E.2d at 77. In all actions tried
upon the facts without a jury, the trial court must find the
facts specially and state separately its conclusions of law. N.C.
Gen. Stat. § 1A-1, Rule 52(a) (1) (2003). Where there is directly
conflicting evidence on key issues, it is especially crucial that
the trial court make its own determination as to what pertinent
facts are actually established by the evidence, rather than merely
reciting what the evidence may tend to show. Moore, 160 N.C. App.
at 572, 587 S.E.2d at 75 (citation omitted).
N.C. Gen. Stat. § 7B-905 provides that when a juvenile is
removed from the custody of a parent, the dispositional order must
provide for appropriate visitation as may be in the best interests
of the juvenile. N.C. Gen. Stat. § 7B-905(c) (2003). The
original dispositional order and adjudication judgment required
respondent to satisfy three requirements before it would reconsider
the issue of visitation.
If a party moves the court to review the custody order, the
court must conduct a review hearing. N.C. Gen. Stat. § 7B-906(c)
(2003). The trial judge, prior to denying a parent the right ofreasonable visitation, shall make a written finding of fact that
the parent being denied visitation rights is an unfit person to
visit the child or that such visitation rights are not in the best
interest of the child. Moore, 160 N.C. App. at 572, 587 S.E.2d at
76 (citation omitted).
Here, respondent moved the court to reinstate his visitation
rights. The court found that respondent had not completed the
requirements of the original dispositional order. The court also
found E.T.'s best interests would be served by denying respondent
the reinstatement of his visitation rights. The trial court made
appropriate findings of fact to support its conclusion of law that
respondent's motion be denied.
The trial court did not err by denying respondent's motion to
re-establish visitation privileges with E.T. The trial court's
findings of facts supported its conclusion of law. We affirm the
trial court's order denying respondent visitation privileges with
Judges HUDSON and GEER concur.
Report per Rule 30(e).
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