Respondent first argues that the trial court erred in allowing
M.E.P.V. to testify in chambers. “[T]he right to confront witnesses
in civil cases is subject to 'due limitations.'”
In re Barkley, 61
N.C. App. 267, 270, 300 S.E.2d 713, 715 (1983) (citation omitted).
This Court has recognized “the troubling aspects of children
testifying in court, particularly where a child is called upon to
testify against a parent or the perpetrator of sexual abuse.”
In
re Faircloth, 137 N.C. App. 311, 318, 527 S.E.2d 679, 683 (2000).
A court's decision that a child's best interests are served by
allowing the child to testify in closed chambers will be upheld
provided the decision is reasonable and each party's interests are
represented through the presence of counsel.
In re Williams, 149
N.C. App. 951, 960, 563 S.E.2d 202, 207 (2002). Further, a
“lawyers' presence in-chambers eliminates any prejudice to defendant
that might have occurred had defendant's attorneys not been present
in the trial judge's chambers.”
Cox v. Cox, 133 N.C. App. 221, 227,
515 S.E.2d 61, 66 (1999) (upholding closed chambers testimony with
all attorneys present despite defense counsel's objection).
M.E.P.V. testified in chambers at the request of her Guardian
ad Litem attorney advocate. Counsel for all parties were present
for the testimony and respondent's counsel was permitted to cross-examine her. The court's decision to allow M.E.P.V. to testify in
closed chambers was reasonable in that the child was called to
testify against both a stepparent and an alleged perpetrator of
sexual abuse.
Respondent also argues that prejudicial and reversible error
arose out of the failure to record M.E.P.V.'s closed chambers
testimony. All juvenile “adjudicatory and dispositional hearings
shall be recorded by stenographic notes or by electronic or
mechanical means.” N.C. Gen. Stat. § 7B-806 (2005). The
unavailability of a verbatim transcript does not automatically
constitute error.
In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d
657, 660 (2003). To prevail on such grounds, a party must
demonstrate that the missing recorded evidence resulted in
prejudice.
Id. General allegations of prejudice are insufficient
to show reversible error.
Id. As to unavailable verbatim
transcripts, a narration of the evidence may be compiled through a
reconstruction of the testimony given.
Id. (citing
Miller v.
Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988));
see also
N.C. R. App. P. 9(c)(1).
In the present case, a narration of M.E.P.V.'s testimony was
prepared by respondent's attorney in accordance with N.C. R. App.
P. 9(c)(1). Respondent does not allege that the narrative of
M.E.P.V.'s testimony failed to reflect the true sense of the
evidence received. Further, respondent does not argue any specific
prejudice resulting from the missing verbatim transcript that may
not have been cured by the preparation of the narrative. Ultimately, the record contains the evidence “necessary for an
understanding of all errors assigned.” N.C. R. App. P. 9(a)(1)(e).
Respondent argues that there was insufficient evidence during
the adjudication stage to support the trial court's findings of fact
and its conclusions of law that M.E.P.V. was abused and all the
juveniles were neglected. We disagree. A trial court must make
sufficient findings of fact to support its conclusions of law as to
whether a child is neglected or abused.
In re Ellis, 135 N.C. App.
338, 340, 520 S.E.2d 118, 120 (1999) (citation omitted).
Findings
of fact must be supported by clear and convincing evidence.
Id. at
340-41, 520 S.E.2d at 120. Findings supported by clear and
convincing evidence “are deemed conclusive, even where some evidence
supports contrary findings.”
In re Helms, 127 N.C. App. 505, 511,
491 S.E.2d 672, 676 (1997). Further, “it is the duty of the trial
judge to consider and weigh all of the competent evidence, and to
determine the credibility of the witnesses and the weight to be
given their testimony.”
In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365 (2000). Only those findings of fact specifically
assigned as error are subject to review.
In re P.M., 169 N.C. App.
423, 424, 610 S.E.2d 403, 404 (2005). All remaining findings are
presumed to be correct and supported by competent evidence.
In re
Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). “Our review
of a trial court's conclusions of law is limited to whether the
conclusions are supported by the findings of fact.”
In re M.J.G.,
168 N.C. App. 638, 643, 608 S.E.2d 813, 816 (2005). First, respondent challenges the trial court's conclusion that
M.E.P.V. was abused and certain related findings of fact. The
findings in dispute include the trial court's fifth finding of fact,
that respondent touched M.E.P.V.'s legs, asked questions related to
her development and asked her to have his child. In the sixth
finding of fact, the trial court found respondent to have raped
M.E.P.V. on 3 July 2005. The incident occurred in respondent's car
as he drove M.E.P.V. to her friend's home in Benson. Following the
incident, respondent threatened to hurt M.E.P.V. and her mother,
brothers and sisters if she revealed what had occurred. The seventh
finding of fact indicates that M.E.P.V. finally told her mother of
the rape on or about 31 August 2005.
The trial court's findings were based on the testimony of
M.E.P.V. In addition, M.E.P.V.'s testimony was corroborated through
the testimony of her social worker, Tina Williams. Respondent
contends that M.E.P.V.'s testimony was full of “suspicious aspects”
and not supported by an evaluation of the sexual abuse allegations.
However, it is for the trial court, not this Court, to assess the
credibility of the witnesses and the weight to be given their
testimony.
In re Gleisner,
supra. The trial court's findings were
supported by clear and convincing competent evidence and are,
therefore, binding on appeal.
Turning to the trial court's conclusion, an abused juvenile is
defined as one whose caretaker “[c]commits, permits, or encourages
the commission of a violation of the following laws by, with, or
upon the juvenile” including both “first-degree rape” and “takingindecent liberties with the juvenile.” N.C. Gen. Stat. 7B-101(1)(d)
(2005). The trial court's conclusion that M.E.P.V. was an abused
child was supported by the findings of fact.
Respondent next challenges the trial court's conclusion that
the juveniles were neglected and certain related findings of fact.
Respondent assigned error to the fourth finding of fact, that
respondent struck J.D.G.P. with a rope, struck V.G.P. with a belt
and slapped M.E.P.V. while she worked on her homework. The court
also found that respondent was physically aggressive toward the
children's mother in the presence of the children. In the eighth
finding of fact, the trial court found that on one occasion, the
children accompanied the respondent as he purchased “a bag
containing a white powder like substance.” Respondent challenges
the thirteenth and fourteenth findings of fact, that he has not
cooperated with DSS, refusing to complete a sex offender evaluation
or attend parenting classes. In addition, the court found
respondent to have violated DSS safety assessments by having
“unsupervised contact with his children.”
M.E.P.V. testified as to respondent's physical abuse of certain
children as well as a physical altercation between respondent and
her mother in the presence of the children. M.E.P.V. also indicated
that when she was roughly fourteen, she was with respondent when “a
man gave [respondent] some money and he gave the man a package with
white powder.” The findings related to respondent's actions
following DSS involvement are supported through the testimony of
Tina Williams. In her testimony, Ms. Williams indicated thatrespondent “had not been meeting with [her] at all for an extended
period of time, more than six weeks” and “had done nothing to
address and identify risk issues.” She testified that respondent
has not completed any of the activities outlined for him by DSS.
The findings of fact related to neglect were supported by clear and
convincing competent evidence and are also binding on appeal.
A neglected juvenile is defined as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2005). The trial court must also
consider whether the juvenile “lives in a home where another
juvenile has been subjected to abuse or neglect by an adult who
regularly lives in the home.”
Id. In the present case, the trial
court concluded that each child was neglected for failure to
“receive proper care and supervision,” for “residing in an
environment injurious to their health and welfare,” and for “living
in a home in which the juvenile [M.E.P.V.] was sexually abused.”
The findings of fact provide ample support for the trial
court's challenged conclusion of law. The court made specific
findings of physical abuse within the home demonstrating a lack of
proper care and an environment injurious to the children's welfare.
Clear and convincing evidence existed that M.E.P.V. was abused while
residing with the remaining children. Further, the “probability ofa repetition of neglect” was evidenced by the respondent's lack of
effort to cooperate with the DSS case plan.
In re Ballard, 311 N.C.
708, 714, 319 S.E.2d 227, 232 (1984).
Respondent next argues that the trial court erred in its
determination to suspend reunification efforts and future visitation
with A.V.V. and S.V.P.
A trial court's dispositional order must
be based on the best interests of the child.
See In re Pittman, 149
N.C. App. 756, 766, 561 S.E.2d 560, 567 (2002). Any dispositional
alternatives are within the discretion of the trial court and are
reviewed under an abuse of discretion standard.
See N.C. Gen. Stat.
§ 7B-903 (2005). A court may order the cessation of reunification
efforts where the court makes written findings of fact that “such
efforts clearly would be futile or would be inconsistent with the
juvenile's health, safety, and need for a safe, permanent home
within a reasonable period of time[.]”
In re Everett, 161 N.C. App.
475, 479, 588 S.E.2d 579, 582 (2003) (quoting N.C. Gen. Stat. § 7B-
507(b)(1)).
During the dispositional stage, the trial court made findings
of fact that respondent remained unwilling to develop an In Home
Service plan with DSS. Further, respondent “has chosen not to
attend a sex offender evaluation, parenting classes or attend HALT
to address domestic violence issues which would eliminate the risk
issues in the home and assist with possible reunification efforts
with his children.” The trial court found it contrary to the best
interest of respondent's children, A.V.V. and S.V.P., to be placed
in respondent's custody. Continuing reunification efforts werefound “futile and inconsistent with the juvenile's need for a safe
home within a reasonable period of time[.]” The trial court's
findings of fact support its order to cease reunification efforts
and visitation.
Respondent argues that his refusal to cooperate with the DSS
was due to the advice of his attorney in a related criminal
proceeding. In support of this contention, respondent cites
In re
T.C.B., 166 N.C. App. 482, 487, 602 S.E.2d 17, 20 (2004), in which
an adjudicatory conclusion of willful or intentional abandonment was
reversed in part due to an attorney's orders to avoid contact with
the minor child.
Id. Here, we review a dispositional order in
which the trial court is principally concerned with finding the
course of action necessary to promote the children's best interest.
N.C. Gen. Stat. § 7B-903(a) (2005). We hold that the court did not
abuse its discretion in finding it to be in the best interests of
the children to cease reunification efforts and visitation.
Affirmed.
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***