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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
IN THE MATTER OF:
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.
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
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
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
[Theresa Boucher, Attorney for DSS]: Your
Honor, I'm going to object to this whole line,
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
. . . .
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
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
[Ja.G.]: (Inaudible) -- fifth grade
[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?
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
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
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).
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
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
26. Since the filing of the Juvenile
petitions, the children were moved to the home
of their maternal grandparents on April 28,
. . . .
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
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
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-
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
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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