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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1035


Filed: 5 June 2007


Ja.G.,                    Forsyth County
    Jo.G., and                Nos. 05 J 131
    Je.G.,                        05 J 132
                                05 J 133

    Appeal by Respondent-Father from order entered 3 February 2006 by Judge William Graham in Forsyth County District Court. Heard in the Court of Appeals 27 March 2007.

    Leslie C. Rawls for Respondent-Appellant Father.

    Theresa A. Boucher, Assistant County Attorney, for Petitioner- Appellee Forsyth County Department of Social Services.

    Womble Carlyle Sandridge & Rice, PLLC, by Theresa M. Sprain, for Guardian ad Litem-Appellee.

    STEPHENS, Judge.

    Respondents are the parents of three children, Ja.G., Jo.G., and Je.G. On 21 August 2000, Respondent-Mother took Ja.G. to the Wake Forest Baptist University Hospital after Ja.G. reported that she was being sexually abused by Respondent-Father . Ja.G. informed the medical staff that Respondent-Father had been repeatedly abusing her, including multiple instances of digital and penile penetration of her anus and vagina . Respondent-Mother told the staff that Ja.G. had first reported the abuse when Ja.G. was five years old, two years prior to the hospital visit . During the course of the resulting investigation by Petitioner Forsyth CountyDepartment of Social Services (“DSS”), Respondents separated and lived apart . On 18 December 2000, DSS substantiated the allegations of sexual abuse . Respondent-Father was criminally prosecuted on charges stemming from the allegations, but he was acquitted of all charges in July 2002. Shortly thereafter, Respondents again lived together with all three children .
    On 7 April 2005, Ja.G. reported to her school counselor that her father was again sexually abusing her. Ja.G. told the counselor that she had told Respondent-Mother about the abuse and that Respondent-Mother had taken steps to ensure that Ja.G. was not left alone with Respondent-Father, but that the abuse continued. DSS was again notified, whereupon Ja.G. told the DSS investigator that Respondent-Father “had been touching her in her private places with his penis.” Respondent-Mother acknowledged that Ja.G. had previously told her about the abuse and that she believed Ja.G.'s allegations. Later that day, DSS obtained nonsecure custody of Ja.G., Jo.G., and Je.G., and all three children were removed from the home .
    Nonsecure custody hearings were held 8 April, 25 April, 27 April, 18 May, and 19 September 2005 . After each hearing, the trial court entered orders continuing custody of all three children with DSS. An adjudicatory hearing was held on four days between 31 October and 7 November 2005 . By order entered 3 February 2006, the trial court adjudicated Ja.G. abused, neglected, and dependent, and adjudicated Jo.G. and Je.G. neglected and dependent. While no appeal was taken from this order by Respondent-Mother, Respondent-Father timely filed his notice of appeal on 8 February 2006 . We affirm.
    Although Respondent-Father presented four assignments of error in the record on appeal, in his brief he specifically abandons, and therefore we need not address, his fourth assignment of error. N.C. R. App. P. 28(b)(6). By his first assignment of error, Respondent-Father argues that the trial court erred in applying Rule 412 to determine the admissibility of Ja.G.'s testimony.
    “It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had [s]he been permitted to testify.” In re M.G.T.-B., __ N.C. App. __, __, 629 S.E.2d 916, 919 (2006) (internal quotations and citation omitted). “[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.” Id.
    The first of the two trial court rulings to which Respondent- Father excepts was made while Respondent-Father's attorney was attempting to elicit testimony from Ja.G. regarding a note found in one of her school notebooks:
        [Lorraine Mortis, Attorney for Respondent- Father:] Can you read that loud? I'm so sorry. Can you read that note?
        [Ja.G.]: Today I met a boy who was (inaudible) he came to my house and me and him (inaudible).

        [Theresa Boucher, Attorney for DSS]: Your Honor, I'm going to object to this whole line, rape shield.

        Ms. Mortis: Your Honor, we're trying to establish whether there was some other person that may be responsible for the condition that [Ja.G.]'s body is in. There has been -- and this is part of the proof for my case, Your Honor, especially for an 11 year old, I don't think the rape shield is applicable here, and I think it's relevant that this evidence be allowed. And it also goes to her credibility here.

        . . . .

        The Court: There are two exceptions to the rape shield, aren't there?

        Ms. Boucher: Judge, I have it in _-

        Ms. Mortis: If we're trying to establish causation for the condition of this girl's body we need to explore all of the possibilities for the condition of her body and not rule out any evidence that points to alternative, alternatives for how her body got into the condition that it is, especially since she's a child, Your Honor.

        The Court: Well, even so if we were going to admit it, you haven't done what you're supposed to do under Rule 412 according to all of this stuff that's in 412. I will sustain the objection.

Immediately thereafter, Ms. Mortis began a new line of questioning.
    The second ruling was made while Ms. Mortis was attempting to elicit testimony from Ja.G. concerning boyfriends:
        [Ms. Mortis]: How long did you have [a boyfriend]?

        [Ja.G.]: (Inaudible) -- fifth grade (inaudible).
        [Ms. Mortis]: What was his name?

        Ms. Boucher: Objection.

        The Court: Sustained.

        [Ja.G.]: [Name of boyfriend].

        Ms. Boucher: Move to strike. Don't answer the question, darling.    

        [Ms. Mortis]: So from last year?

        [Ja.G.]: Uh-huh.

        Ms. Boucher: Objection.

        The Court: Overruled.

        [Ms. Mortis]: Did he ever call you?

        [Ja.G.]: (Shakes head.)

        Ms. Boucher: Objection.

        The Court: Sustained.

        Ms. Boucher: Don't answer the question. When I say objection you just freeze for a minute until the Judge tells you, okay.

        Ms. Mortis: Grounds for asking --

        Ms. Boucher: Rape shield.

        The Court: Sustained.

        Ms. Mortis: Calling is sexual behavior, I think --

        The Court: I don't think the judge has to answer why -- I can ask you, but I don't think you get to ask me. But, let's focus, let's focus on why we're here. Rape shield covers a lot of this, I've let you ask her about the boyfriends and the letters --

        Ms. Mortis: I'm not trying to be, whatever the word is, like --

        The Court: (Inaudible).
        Ms. Mortis: Thank you, Your Honor.

        The Court: You're very welcome, Ms. Mortis.    
After this exchange, Ms. Mortis began a new line of questioning.
    Respondent-Father acknowledges in his brief that, at trial, he “did not make offers of proof” regarding the excluded testimony . Furthermore, the significance of the evidence is not obvious from the record. Respondent-Father's argument is without merit and is overruled.
    By his second and third assignments of error, Respondent- Father argues that the trial court erred in adjudicating Ja.G. abused, and in adjudicating all three children neglected and dependent because Petitioner failed to prove its case by clear, cogent, and convincing evidence.
    In an abuse, neglect, or dependency action, “this Court must determine whether the trial court's findings of fact are supported by clear and convincing evidence and whether these findings of fact support the trial court's conclusions of law.” In re C.P., __ N.C. App. __, __, 641 S.E.2d 13, 17 (2007) (citing In re Gleisner, 141 N.C. App. 475, 539 S.E.2d 362 (2000)); see also N.C. Gen. Stat. § 7B-805 (2005) (requiring allegations of abuse, neglect, or dependency to be proven by clear and convincing evidence). “'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.'” In re L.A.B., __ N.C. App. __, __, 631 S.E.2d61, 64 (2006) (quoting ' v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)) .
    Respondent-Father did not assign error to any of the trial court's findings of fact. Thus, the trial court's findings are presumed supported by competent evidence and are binding on appeal. Our determination, then, is limited to whether the trial court's findings of fact support its conclusions of law.
    Before turning to this determination, however, we briefly address Respondent-Father's contention that the court's order, as it pertains to Ja.G., must be reversed because he was denied due process of law in violation of N.C. Gen. Stat. § 7B-802 (2005) (“[T]he court shall protect the rights of . . . the juvenile's parent to assure due process of law.”). Respondent-Father argues that the trial court's “evidentiary errors[,]” discussed above, deprived him of the right to present evidence, “undermine the [f]indings of [f]act[,]” and that, therefore, the court's conclusions of law are the result of an “improper procedure.” Respondent-Father, however, has failed to properly present this claim for our review. Based on our reading of the transcript, we note that Respondent-Father made no such due process argument to the trial court. See N.C. R. App. P. 10(b)(1) (“In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make . . . .”). Additionally, Respondent-Father did not present this argument in his assignments of error. See N.C. R.App. P. 10(a) (“[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .”). Thus, we need not address Respondent-Father's due process argument.
    The trial court made the following findings of fact:
        6. On or about August 21, 2000, Ja.G., then age 7, reported to her mother that [Respondent-Father] had been having inappropriate sexual contact with her since she was four years old. [Respondent-Mother] took [Ja.G.] to North Carolina Baptist Medical Center and [DSS] was contacted.

        7. On October 6, 2000, [Ja.G.] was examined by Dr. Shelly Kreiter. Dr. Kreiter was received by the Court as an Expert in the area of the Diagnosis and Treatment of Child Sexual Abuse. Dr. Kreiter determined [Ja.G.] to have an “abnormal exam” which showed “findings that are very suspicious of sexual abuse[.]” [Ja.G.] gave a “detailed history that her father had digital, oral and genital contact with her.” Dr. Kreiter concluded that “there is a high probability that Ja.G. has been sexually abused.” Dr. Kreiter's report of [Ja.G.]'s examination was received by the Court as petitioner's Exhibit #1.

        8. During the course of the investigation in 2000, [Ja.G.] was interviewed on October 6, 2000 by Cynthia Stewart, clinical social worker who took medical history from [Respondent-Mother] and [Ja.G.] to assist Dr. Kreiter in her examination of [Ja.G.] Ms. Stewart was received by the Court as an Expert in the field of Child Sexual Abuse.

        9. [Respondent-Mother] reported to Ms. Stewart that [Ja.G.] first reported to her that [Respondent-Father] was touching her when she was 5 years old. [Respondent-Mother] reported that she did not know what to believe regarding [Ja.G.]'s report of sexual abuse by her father. [Respondent-Mother] also reported physical and emotion[al] symptoms of [Ja.G.] which were consistent with child sexual abuse.
        10. Ja.G. reported to Ms. Stewart being made to put her mouth on her father's “tail thing”, [sic] her father licking her butt, and her father putting his “tail thing” inside her anus and vagina.

        11. Ms. Stewart believed that Ja.G. was sexually abused by [Respondent-Father].

        12. During the course of the 2000 DSS investigation, [Respondents] separated . . . . [Respondent-Mother] was ambivalent as to whether [Ja.G.] had been sexually abused by [Respondent-Father]; however, she continued to protect [Ja.G.] by keeping the children away from [Respondent-Father] and taking [Ja.G.] to counseling.

        . . . .

        18. On or about April 7, 2005, Ja.G. reported to her school resource officer and Guidance counselor that her father was again sexually abusing her. [Ja.G.] reported that she had previously told her mother and her grandmother about the abuse. [DSS] was contacted to begin an investigation.

        19. On April 7, 2005, [Ja.G.] was interviewed by Tiffany Duke, Child Protective Services investigator with [DSS]. [Ja.G.] reported that [Respondent-Father] had been touching her in her private places with his penis. [Ja.G.] told Ms. Duke that she had told her mother about the inappropriate touching and [Respondent-Mother] attempted to implement methods whereby [Ja.G.] was not left alone with her father[.]

        20. . . . [Jo.G.] denied that he had received any inappropriate touches [from Respondent- Father] however he did report seeing [Respondent-Father] go into [Ja.G.]'s room with her and close the door. [Jo.G.] also reported that his father sometimes hits him with a belt as a form of discipline. [Jo.G.] reported that he receives bruises when hit with the belt and the bruises stay around for a few days.

        21. [Je.G.] . . . reported that his father hits him on the butt with a belt when he getsin trouble. He denied having received bruises from these incidents[.]

        . . . .

        23. [Respondent-Mother] was also interviewed on April 7, 2005 and admitted that [Ja.G.] had told her previously about [Respondent-Father] touching her inappropriately again. [Respondent-Mother] indicated that she believed [Ja.G.]'s statements.

        . . . .

        25. On April 7, 2005, [DSS] filed Juvenile petitions alleging Ja.G. to be an abused, neglected and dependent juvenile and Jo.G. and Je.G. to be neglected and dependent juveniles. All three juveniles were placed in the non- secure custody of [DSS] and placed in foster care.

        26. Since the filing of the Juvenile petitions, the children were moved to the home of their maternal grandparents on April 28, 2005[.]

        . . . .

        32. Ja.G testified that [Respondent-Father] sexually abused her. [Respondent-Father] has performed vaginal intercourse on her more than 10 times. He has performed anal intercourse on her more than 5 times. He has had [Ja.G.] perform oral sex on him more than 5 times. . . . [Ja.G.] testified that these incidents happened in the family home . . . and that specifically the incidents happened in her room, her parents room, her brothers room, the bathroom, the basement and the living room. Additionally, [Ja.G.] reported that inappropriate touching has occurred in her father's automobile.

        33. [Ja.G.] recounted [] several incidents in which [Respondent-Father] sexually abused her. [Ja.G.] testified that “usually maybe it's true” in response to whether her differing accounts of her father's alleged sexual abuse against her are true or not. Her specific detailed disclosures were credible and believed by the Court.
        34. [Ja.G.] reported that she had told her mother that [Respondent-Father] was sexually abusing her in October 2004 and her mother believed her and said she would “see what she could do[.]”


    Section 7B-101(1) of our General Statutes defines an abused juvenile, in part, as:
        Any 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: . . . second degree rape as provided in G.S. 14-27.3; first-degree sexual offense, as provided in G.S. 14-27.4; second degree sexual offense, as provided in G.S. 14-27.5; sexual act by a custodian, as provided in G.S. 14-27.7; crime against nature, as provided in G.S. 14-177; incest, as provided in G.S. 14-178; . . . and taking indecent liberties with the juvenile, as provided in G.S. 14- 202.1[.]

N.C. Gen. Stat. § 7B-101(1) (2005).
    The court's findings support its conclusion that Ja.G. was abused within the meaning of the statutory definition. Among others, findings of fact thirty-two and thirty-three specifically support the court's conclusion. Respondent-Father's argument to the contrary is without merit. This assignment of error is overruled.
    Section 7B-101(15) defines a neglected juvenile, in part, as:
        A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; orwho 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 . . . . In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where . . . another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen. Stat. § 7B-101(15) (2005). Additionally, “this Court has consistently required that there be some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the failure to provide proper care, supervision, or discipline.” In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (quotations and citations omitted). “Where there is no finding that the juvenile has been impaired or is at substantial risk of impairment, there is no error if all the evidence supports such a finding.” In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003) (citation omitted).
    The trial court's findings of fact support its conclusion that Ja.G. was neglected in that Ja.G. suffered physical, mental, and emotional impairment as a consequence of Respondent-Father's failure to provide “proper care, supervision, or discipline[,]” and in that Ja.G. “lives in an environment injurious to [her] welfare.”
    The trial court's findings also support its conclusion that Jo.G. and Je.G. were neglected. Respondent-Father argues that only findings of fact twenty and twenty-one directly relate to this issue, and that these findings do not support the trial court's conclusion that Jo.G. and Je.G. were neglected. However, because “it is relevant whether a juvenile lives in a home where . . .another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home[,]” N.C. Gen. Stat. § 7B-101(15), and because all of the evidence supports a finding that Jo.G. and Je.G. are at a substantial risk of impairment, Respondent-Father's argument is without merit. The evidence tends to show that Respondent-Father repeatedly abused Jo.G.'s and Je.G.'s sister over a course of at least six years. The evidence also tends to show that multiple incidents of abuse occurred in the family home, in close proximity to Jo.G. and Je.G. We reject Respondent-Father's argument on this issue. His assignments of error to the trial court's neglect adjudication are overruled.
    Section 7B-101(9) defines a dependent juvenile as:
        A juvenile in need of assistance or placement because the juvenile has no parent, guardian, or custodian responsible for the juvenile's care or supervision or whose 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). “Under this definition, the trial court must address both (1) the parent's ability to provide care or supervision, and (2) the availability to the parent of alternative child care arrangements.” In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406 (2005).
    Respondent-Father argues that the children “have been living with their [maternal] grandparents since April 28, 2005[;]” thus, “an appropriate alternative child care placement exists and is in use[;]” and, therefore, the trial court erred in adjudicating thechildren dependent . We are not convinced. The findings set forth above establish that Respondent-Father was “unable to provide for the care or supervision” of his children. As to the availability to Respondent-Father of alternative child care arrangements, in finding of fact number twenty-five the trial court found that “[a]ll three juveniles were placed in the non-secure custody of [DSS] and placed in foster care.” In finding number twenty-six, the trial court found that the children “were moved to the home of their maternal grandparents[.]” These findings establish without contradiction that DSS, not Respondent-Father, made available alternative child care arrangements. The court made no findings, and the evidence in the record does not show, that Respondent- Father ever proposed, much less arranged, an appropriate alternative child care arrangement. The court's findings support its conclusions that all three children were dependent. Respondent-Father's argument on this point is overruled.
    The order of the trial court is affirmed.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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