Appeal by respondents from an order filed 21 February 2005 by
Judge Bradley R. Allen, Sr. in Alamance County District Court.
Heard in the Court of Appeals 7 June 2006.
Jamie L. Hamlett petitioner-appellee for Alamance County
Department of Social Services.
Alexandra S. Gruber for the North Carolina Guardian ad Litem
Program.
Richard E. Jester for respondent-appellant-mother.
Peter Wood for respondent-appellant-father.
BRYANT, Judge.
Respondent mother (T.C.
(See footnote 1)
) and respondent father (R.C.) appeal
from a 21 February 2005 disposition order adjudicating H.P. (age
15) to be abused, dependent and neglected, and adjudicating C.C.
(age 7) to be dependent and neglected. T.C. is the mother of both
children. R.C. is the father of C.C. and the stepfather of H.P.
In the respondents' home, H.P. and C.C. were exposed to verbal
altercations and incidents of domestic violence. On one occasion,
T.C. threw a knife at R.C. in the presence of the children. Onanother occasion, R.C. hit H.P. and poured beer in her eyes while
in the presence of T.C.
On the evening of 10 July 2004, H.P. reported to the Alamance
County Sheriff's Department that her stepfather, R.C., had sexually
abused her. R.C. was subsequently arrested and charged with
first-degree rape. At the time H.P. reported her stepfather's
abuse, C.C., age seven, was also living in the home with
respondents.
A social worker visited respondents' home to review the
allegations of sexual abuse and to have respondents sign a safety
response plan ensuring R.C. would not be left alone with a child
while the investigation was pending. Respondents refused to sign
a safety plan. The Alamance County Department of Social Services
(DSS) removed H.P. and C.C. from respondents' custody because they
were exposed to a “substantial risk of sexual abuse.”
In January 2005, a four-day hearing was conducted before the
Honorable Bradley R. Allen, Sr. to review the DSS petitions
regarding the children. H.P. testified her stepfather had been
sexually abusing her since she was ten or eleven years old. H.P.
testified her stepfather molested her often by touching her “[o]n
my butt or on my boobs.” H.P. told the trial court her stepfather
pulled her shorts down, pushed her down on the couch, and put his
finger in her vagina. H.P. also alleged that in “[l]ate December
or early January of 2003 or 2004” her stepfather raped her after
she had consumed four alcoholic beverages that he provided. H.P.
was lying down in the truck, listening to the radio, when R.C. cameto the truck and told her to sit up, and pulled her pants down.
H.P. tried to “kick him off me,” but he pulled her pants down
further. R.C. then penetrated her while she was lying on her
stomach and, after five or ten minutes of intercourse, told her if
she ever told anybody, he would kill her. H.P. testified she was
“scared to tell anybody” about her stepfather's actions. She
further testified she did not tell her mother about the abuse
because she was scared her mother would not believe her. When
respondent mother learned of the abuse, she called H.P. a “rude and
lying bitch.” H.P. was found to be abused, neglected and dependent
and C.C. was found to be neglected and dependent. Respondents
appeal.
________________________________
Respondent mother raises whether the trial court erred in:
(I) excluding her from the courtroom during H.P.'s sexual abuse
testimony and (II) in finding and concluding C.C. was neglected and
dependent. Both respondents raise on appeal whether the trial
court erred in: (III) finding and concluding H.P. was abused,
neglected and dependent. Respondent stepfather raises on appeal
whether the trial court erred in (IV) making findings of fact
sixty, seventy and ninety. Lastly, respondents appeal whether the
trial court erred in (V) showing a bias toward H.P. during the
hearing.
I
Respondent mother argues the trial court erred in excluding
her from the courtroom during H.P.'s sexual abuse testimony. We
disagree.
The nature of process due in parental rights
termination proceedings turns on a balancing
of the 'three distinct factors' specified in
Mathews v. Eldridge, 424 U.S. 319, 335, 47 L.
Ed. 2d 18, 96 S. Ct. 893 (1976): the private
interests affected by the proceeding; the risk
of error created by the State's chosen
procedure; and the countervailing governmental
interest supporting use of the challenged
procedure.
In re Murphy, 105 N.C. App. 651, 653, 414 S.E.2d 396, 397-98,
aff'd, 332 N.C. 663, 422 S.E.2d 577 (1992) (citation omitted)
(
Eldridge factors). A parent's right to confront witnesses in an
abuse and neglect hearing is protected where the mother is removed
from the courtroom during the child's testimony but her counsel
remains.
In re Barkley, 61 N.C. App. 267, 300 S.E.2d 713 (1983).
The first
Eldridge factor stated above (the private interests
affected by the proceeding) weighs in favor of the private
interests of the respondent mother being in the courtroom for
H.P.'s testimony. However, factors two and three outweigh
respondent mother's private interests. The trial court found:
14. That prior to the testimony in this case
beginning, a motion was made to allow the
Respondent Mother to stay in the
courtroom during [H.P.'s] testimony. That
a prior hearing was held in this matter
and it was determined that remote
testimony equipment would be brought in
for the testimony of [H.P.] so that
[H.P.] would not have to testify in the
presence of either [respondent].
15. That the equipment has been tested prior
to [H.P.] being called to the witnessstand and the equipment is working
properly.
16. The equipment has been shown and
explained to [respondents].
17. The equipment allows [respondents] to sit
in the Judge's Chambers (which is five
feet from the courtroom) and watch
[H.P.'s] testimony on a television.
[H.P.'s] testimony can be heard.
18. At any time [respondents] can signal or
talk with their attorneys by hitting a
button, which will cause a red light to
flash on [respondents'] attorneys' table.
The attorneys will tell the court they
need to step out and be allowed to do so.
There will be no testimony taken while
the attorneys step out to talk with
clients.
These findings clearly demonstrate a fair process which allowed
H.P. to give her testimony outside the presence of respondent
mother, while enabling the mother to communicate with her counsel
at all times. In addition, the countervailing judicial interests
were also met by the trial court providing the least threatening
environment in which to receive H.P.'s testimony.
Respondent mother argues the trial court failed to make
specific findings as to the harm that would result to H.P. if she
testified in the presence of her mother. The trial court clearly
found H.P. had no desire to return home and that she had been
mentally and physically abused in respondents' home. The trial
court also found respondent mother bruised H.P.'s left eye by
hitting her and that H.P. delayed disclosing her stepfather's
conduct because she was fearful her mother would not believe her
disclosure of sexual abuse. Respondent concedes, and the trialcourt found, the mother did not believe H.P.'s allegations.
See
In re J.B., 172 N.C. App. 1, 616 S.E.2d 264 (2005) (exclusion of
the mother from the courtroom upheld while her son testified where
the mother was charged with kidnapping and a therapist testified
the mother's presence disturbed the child);
see also In re
Stradford, 119 N.C. App. 654, 460 S.E.2d 173,
disc. review denied,
341 N.C. 650, 462 S.E.2d 525 (1995) (where the children's testimony
in the presence of the accused would have been harmful, child
testimony by closed circuit television was held sufficient to
protect accused's confrontation rights). The trial court found
sufficient reasons for H.P. to fear testifying in the presence of
her mother. Therefore the trial court did not err in excluding
respondent mother from the courtroom during H.P.'s testimony while
respondents' counsel remained in the courtroom for the testimony
and in constant communication with respondent mother. This
assignment of error is overruled.
II & III
Only respondent mother argues the trial court erred in finding
and concluding C.C. was neglected and dependent. However, both
respondent mother and stepfather argue the trial court erred in
finding and concluding H.P. was abused, neglected and dependent.
Respondents contend collectively there was insufficient evidence
upon which to base the determination of abuse, neglect and
dependency. We disagree.
In juvenile adjudication proceedings “the trial judge acts as
both judge and jury, thus resolving any conflicts in the evidence.”
In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397
(1996). “It is that judge's duty to weigh and consider all
competent evidence, and pass upon the credibility of the witnesses,
the weight to be given their testimony and the reasonable
inferences to be drawn therefrom.”
In re Whisnant, 71 N.C. App.
439, 441, 322 S.E.2d 434, 435 (1984) (citation omitted).
North Carolina General Statutes, Section 7B-101(1)(d) provides
that a juvenile is “abused” if, among other things, that child's
“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, as provided in
G.S. 14-27.2.”
(See footnote 2)
N.C. Gen. Stat. § 7B-101(1)(d) (2005). North
Carolina General Statutes, Section 7B-101(15) provides that a
juvenile is a “neglected child where she or he: [D]oes not receive
proper care, supervision, or discipline from the juvenile's parent,
guardian, custodian, or caretaker . . .; or who lives in an
environment injurious to the juvenile's welfare . . . .” N.C. Gen.
Stat. § 7B-101(15) (2005). In determining whether a juvenile is a
neglected juvenile, “it is relevant whether that juvenile lives ina home where another juvenile . . . has been subjected to abuse or
neglect by an adult who regularly lives in the home.”
Id. A child
is “dependent” where the juvenile's “parent, guardian, or custodian
is unable to provide for the care or supervision and lacks an
appropriate alternative child care arrangement.” N.C. Gen. Stat.
§ 7B-101(9) (2005).
The trial court made extensive, detailed findings of fact
regarding sexual abuse of H.P. by her stepfather. Among these, the
trial court found R.C. put his finger in H.P.'s vagina when she was
ten or eleven years old; R.C. molested H.P. several times in that
he touched her “boobs,” butt or vagina and that such molestation
was ongoing for several years; and R.C. put his penis in H.P.'s
vagina. The trial court made additional findings with respect to
corroborative medical evidence presented by Dr. Joseph Pringle that
the examination of H.P. showed her vagina area had been “penetrated
and there was a V-shaped notching in a cleft in the sidewall at the
12 o'clock position of the vagina which indicates slight tearing of
the vagina area and a nodule of scar tissue at the 9 o'clock
position . . . .” These findings,
inter alia, constitute clear and
convincing evidence to support a determination that H.P. was an
abused child pursuant to N.C.G.S. § 7B-101(1).
Respondent stepfather argues that the trial court erred in
determining he was guilty of a criminal offense; specifically,
those acts contained in the definition of an “abused juvenile”
under N.C.G.S. § 7B-101(1). The juvenile statute, while citing the
criminal code, does not require a juvenile court to make findingsthat such a crime was committed by a criminal standard, but rather,
by clear and convincing evidence.
See, e.g., In re Cogdill, 137
N.C. App. 504, 528 S.E.2d 600 (2000) (conclusion of abused juvenile
supported where father perpetrated indecent liberties with a minor
when he exposed his genitals to the juvenile supported an inference
that he did so “for the purpose of arousing or gratifying sexual
desire”). In this case, the trial court made findings of fact
which show R.C.'s act of raping his daughter satisfied the elements
of first-degree rape under N.C.G.S. § 14-27.2, such that the
statutory requirements of N.C.G.S. § 7B-101(1) were met based upon
clear and convincing evidence.
Because the trial court found H.P. was an abused child, such
a finding supports the trial court's determination that C.C. was a
neglected child, since the children lived in the same home.
See
N.C.G.S. § 7B-101(15);
see also In re Nicholson, 114 N.C. App. 91,
94, 440 S.E.2d 852, 854 (1994) (holding that “evidence of abuse of
another child in the home is relevant in determining whether a
child is a neglected juvenile” noting the statute “affords the
trial judge some discretion in determining the weight to be given
such evidence”). With respect to both children, the trial court
specifically found that, “the home environment was not safe [];
that [respondents] argued quite often and that [respondents have
assaulted each other].” The trial court found H.P. was allowed to
drink alcoholic beverages in the presence of her mother and
respondent has hit and choked her children. C.C. lived in a home
where her stepsister was being sexually abused by R.C. and wheredomestic violence and juvenile alcohol consumption occurred with
respondents' knowledge. These findings constitute clear and
convincing evidence to support the trial court's determination that
C.C. and H.P. were “neglected” that they did not receive “proper
care, supervision, or discipline” from their parents, and that the
children lived “in an environment injurious to the [their]
welfare.” N.C.G.S. § 7B-101(15) (2005).
In this case, the trial court also adjudicated both juveniles
to be dependent, pursuant to N.C.G.S. § 7B-101(9). As discussed
above, the trial court determined that neither respondent was able
to provide a safe environment for the children at the time of the
adjudication in this case. The trial court found that T.C.
originally assured DSS that she would not leave C.C. alone with
R.C., only to leave C.C. alone with him. Because T.C. refused to
believe H.P.'s disclosure of sexual abuse and refused to protect
C.C. from R.C., this led to DSS's removal of the children from
respondents' home. Accordingly, these findings of fact and
conclusions of law that the children were dependent are supported
by clear and convincing evidence.
Finally, respondents argue the trial court improperly
delegated its fact finding duty to DSS and the Guardian ad Litem by
“adopting their court reports as dispositional finding of fact
#23.” We disagree. The trial court made ninety-five findings of
fact which detailed the court's credibility determinations of
witness testimony, in addition to incorporating the information and
recommendations contained in the DSS and GAL reports. The GAL andDSS reports supplement the trial court's extensive and independent
findings of fact. This assignment of error is overruled.
IV
Respondent stepfather argues the trial court erred in making
findings of fact sixty, seventy and ninety:
60. The statements during this testimony were
that [H.P.] has been molested for 2½
years and raped in January of 2004 by her
stepfather, [R.C.].
. . .
70. The Respondent Mother also denied that
[R.C.] broke her arm during an argument;
that [H.P.] testified that her mother has
related in her presence that [R.C.] broke
her arm.
. . .
90. From the evidence, the [c]ourt finds that
[R.C.] has committed first[-]degree rape,
first[-]degree sexual offense and
indecent liberties.
“Where no exception is taken to a finding of fact 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, 781 (1991) (citation omitted). Respondent
stepfather's brief assigns error to only findings of fact numbers
sixty, seventy and ninety. The numerous unchallenged findings of
fact are binding on appeal.
See In re Moore, 306 N.C. 394, 404, 293
S.E.2d 127, 133 (1982). In the present case, H.P. testified in
detail about the sexual abuse and neglectful environment she lived
in with her mother and stepfather. Respondents challenge the trial
court's findings of fact based on its belief in H.P.'s testimony.
Determining the credibility of witnesses, the weight to be giventheir testimony and the reasonable inference to be drawn therefrom
is the responsibility of the trial court.
Knutton v. Cofield, 273
N.C. 355, 160 S.E.2d 29 (1968);
Whisnant, 71 N.C. App. 439, 322
S.E.2d 434. As the trier of fact, the trial court may believe or
disbelieve the testimony of any witness.
In re Whichard, 8 N.C.
App. 154, 160, 174 S.E.2d 281, 285 (1970). In addition to H.P.'s
testimony, H.P. told consistent accounts of being sexually abused
to friends, law enforcement, medical professionals, and the trial
court. As testified by the forensic interviewer, H.P.'s
“disclosure of sexual abuse by her stepfather includes
idiosyncratic detail, contextual embedding, distressed emotional
tone related to the reactions of others and she presented with
affect consistent with having experienced a negative or traumatic
event as described.” H.P.'s child medical evaluation revealed she
had been penetrated and the physical evidence was consistent with
and corroborated the history disclosed to her doctor. Respondent
stepfather's brief assigns error to these findings because he
contends they are “sloppy and legally inadequate. They simply
restate what witnesses said at trial.” This medical evaluation
testimony supports the trial court's numerous detailed findings of
fact supporting H.P.'s disclosure of sexual abuse, which were not
assigned as error by respondent stepfather. Finding of fact ninety
is equally supported by the trial court's extensive findings, see
discussion in
Issues II & III, supra. This assignment of error is
overruled.
V
Respondents argue the trial court erred in showing a bias
toward H.P. during the hearing. Respondents allege the trial court
had “made up his mind” prior to the conclusion of the hearing that
H.P. “was telling the truth.” Further they allege the trial court
was not an “impartial finder of the facts” and that the trial court
“left the bounds of judicial conduct and took sides,” yet
respondents fail to support such allegations with evidence as to
the alleged judicial bias.
This Court has previously held that the burden
is upon the party moving for disqualification
to demonstrate objectively that grounds for
disqualification actually exist. Such a
showing must consist of substantial evidence
that there exists such a personal bias,
prejudice or interest on the part of the judge
that he would be unable to rule impartially.
State v. Scott, 343 N.C. 313, 325, 471 S.E.2d
605, 612 (1996) (quoting
State v. Fie, 320
N.C. 626, 627, 359 S.E.2d 774, 775 (1987)).
Thus, the standard is whether grounds for
disqualification actually exist.
Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003)
(internal quotation marks omitted). The party moving for recusal
must objectively demonstrate grounds for disqualification actually
exist.
County of Johnston v. City of Wilson, 136 N.C. App. 775,
778, 525 S.E.2d 826, 828 (2000). “The moving party, supported by
affidavits, may meet his burden by presenting 'substantial evidence
that there exists such a personal bias, prejudice or interest on
the part of the judge that he would be unable to rule
impartially.'”
Id. (citations omitted).
In this case, respondents argue the trial court failed to
conduct witness examinations in a manner deemed fair and thatrespondents' parental rights were not protected. However,
respondents have not met their burden of proof. Respondents have
not produced affidavits to show that grounds for disqualification
of the trial court actually exist. Consequently, there is a lack
of objective and substantial evidence the trial court displayed
personal bias, prejudice or interest such that judicial recusal was
warranted.
See Lange at 649, 588 S.E.2d at 880 (holding it was
error for a trial court judge to determine that recusal was
appropriate based on “inferred perception and not the facts as they
were found to exist”). This assignment of error is overruled.
Affirmed.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1