IN THE MATTER OF: Alamance County
A.J.M. No. 99 JA 89
A Minor Child.
Jamie L. Hamlett, for Alamance County Department of Social
Services petitioner appellee.
Mercedes O. Chut for respondent-father appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Alison R. Bost, for guardian ad litem appellee.
Wallace Lee Hightower, Jr. (respondent) appeals an order terminating his parental rights as the father of A.J.M. In March 2005, the Alamance County Department of Social Services (DSS) filed a juvenile petition alleging that A.J.M. was a neglected and abused child and obtained custody by non-secure custody order on 7 March 2005. DSS subsequently filed an amended petition realleging that juvenile was abused and neglected in that respondent has committed, permitted, or encouraged the commission of a sex or pornography offense with or upon the juvenile in violation of the criminal law and further that A.J.M. lives in an environment injurious to [her] welfare.
On 4, 5 and 12 May 2005, hearings were held on the petitions to terminate respondent's parental rights. On 9 June 2005, the trial court entered an order terminating respondent's parental rights. Respondent appeals.
Respondent contends on appeal that the district court erred in making certain findings of fact where there was insufficient evidence to support those findings. We disagree.
This Court reviews an order terminating parental rights for whether the findings of fact are supported by clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental rights should be terminated for one of the grounds set forth in N.C. Gen. Stat. § 7B-1111(a) (2005). In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397-98 (1996). Factual findings that are supported by the evidence are binding on appeal, even though there may be evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).
The gravamen of respondent's argument on appeal is that the district court erred in finding the testimony of the juvenile, A.J.M., to be credible and sufficient to warrant findings of fact indicating sexual abuse by respondent.
A.J.M. testified that respondent would enter her room at night, pull down her pants and slightly penetrate her vagina with his penis. A.J.M. further testified that he would enter her room when he believed that she was asleep and then leave when she turned over. A.J.M. testified that respondent had been putting his peein her pee since she was five years old. It was further adduced at the hearing that A.J.M. had accused respondent of sexually molesting her before, but recanted. A.J.M. testified that she recanted her story that time because respondent started to cry, and therefore she forgave him. A.J.M.'s testimony at trial was consistent with all previous accounts made by her to her mother, doctors and police officers regarding sexual molestation by respondent.
It is the trial 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). If different inferences may be drawn from the evidence, the trial judge must determine which inferences shall be drawn and which shall be rejected. In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365-66 (2000).
A review of the record reveals that the trial judge determined, after inquiry with A.J.M., that she was competent to testify and that she understood that she was required to tell the truth. Moreover, he weighed the credibility of the witnesses and determined what inferences should be drawn from the testimony.
In addition, Dr. Emily Storch, an expert in the field of child psychology and forensic examiner in the field of child sexual abuse, testified that A.J.M. exhibited characteristics consistent with victims of child sexual abuse. As there was sufficientevidence to support the findings of fact that respondent sexually abused A.J.M., this assignment of error is overruled.
Respondent further contends that the court erred in concluding that A.J.M. was neglected and abused. We disagree.
The court adjudicated A.J.M. abused and neglected. N.C. Gen. Stat. § 7B-101 defines an abused juvenile as [a]ny juvenile less than 18 years of age whose parent, guardian, custodian, or caretaker: (d) Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: . . . sexual act by a custodian, as provided in G.S. 14-27.7[.] N.C. Gen. Stat. § 7B-101(1)(d) (2005). N.C. Gen. Stat. § 14-27.7 sets forth as a crime vaginal intercourse or sexual act with a minor by a person in the minor's home who has assumed the parental position of the minor. N.C. Gen. Stat. § 14-27.7(a) (2005). As stated supra, the court's conclusion that A.J.M. was abused will be upheld where the findings of fact support such a conclusion. Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398.
Where this Court has determined, and a review of the record reveals, that there was sufficient evidence to support the findings of fact that respondent sexually abused A.J.M. by placing his penis inside her vagina on multiple occasions while A.J.M. was living under the care of respondent, it therefore follows that the findings of fact support the trial court's conclusion that A.J.M. was an abused juvenile under the terms of N.C. Gen. Stat. § 7B- 101(1)(d). Further, where a trial court concludes that parental rights should be terminated pursuant to several of the statutory grounds, the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact. In re Swisher, 74 N.C. App. 239, 240-41, 328 S.E.2d 33, 34-35 (1985).
Therefore, this assignment of error is overruled.
Finally, respondent contends that the district court erred in concluding that termination of his parental rights was in the best interest of A.J.M. We disagree.
We first note that respondent cites no authority for his argument on appeal, and therefore the error is deemed waived. See N.C. R. App. P. 28(b)(6) (2005). However, even if respondent had properly preserved this argument for appeal by complying with the Rules of Appellate Procedure, there is no error.
Once the trial court concludes that one or more grounds for termination exists, it must proceed to the dispositional stage where the best interests of the child are considered. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). There, the court shall determine whether terminating the parent's rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B- 1110(a) (2005). This Court reviews the trial court's decision whether to terminate parental rights for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
Here, the trial court concluded in its discretion that it was in the best interest of the child that respondent's parental rightsbe terminated. The court based its conclusion on the findings that A.J.M. is in need of more adequate care and supervision, that she is doing fairly well in her foster home, and that she did not want to return to respondent's home. We hold that based on these findings, the trial court could reasonably conclude that termination of respondent's parental rights was in the best interest of the child.
Therefore, this assignment of error is overruled.
Accordingly, the order terminating respondent's parental rights is affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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