Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 03 July 2007
IN THE MATTER OF:
M.B., Minor Child.
No. 05 J 487
Appeal by defendant from judgment entered 4 April 2006 by
Judge Marvin P. Pope, Jr., in Buncombe County District Court.
Heard in the Court of Appeals 12 April 2007.
Matthew Middleton for Buncombe County Department of Social
Michael N. Tousey for Guardian ad Litem, appellee.
Michael E. Casterline for respondent-appellant father.
When an expert doctor neither testifies that sexual abuse of
a child in fact occurred, nor impermissibly states that a child was
being truthful, but instead testifies that there is concern that a
child may have been abused, the testimony is properly admitted into
evidence. When the trial court's findings of fact are supported by
clear and convincing evidence, and the findings support the
conclusion that a child is abused, the order must be affirmed.
M.B. was born on 14 September 2001 to Tiffany B. (mother)
and Joshua B. (respondent) in Buncombe County. When mother was
three months pregnant with M.B., she overdosed on an antidepressant
medication, Zoloft. M.B. resided with mother and respondent from September 2001
until March 2002, when mother and M.B. began living with Bridgette
C., M.B.'s maternal grandmother (grandmother), and Ira C., M.B.'s
maternal step-grandfather (grandfather) (together,
grandparents). Respondent also moved in with grandparents, even
though mother and respondent were separated and living in different
parts of the home. During the period of time that mother and
respondent lived in grandparents' home, they smoked marijuana.
Within a few months, mother and respondent moved out of the home,
and M.B. remained with grandparents.
In November 2001, mother and respondent argued in front of
M.B. over respondent's excessive alcohol consumption. Respondent
threw a baby bathtub out of the window into the yard, smashing the
window to pieces[,] and tore a metal bar off a tile rack in the
bathroom and repeatedly struck [mother] with it causing her to
bleed[.] Grandfather heard the fight and found mother bleeding
and crying hysterically. On a different occasion, respondent
pushed a bathroom door open and threatened to kill mother, and
once, grandmother overheard a phone conversation between mother and
respondent during which respondent threatened to kill mother.
In January 2002, M.B. began staying with grandparents during
the day, and in March 2002, M.B. began to permanently reside with
In February 2005, respondent called grandmother and sounded
as though he had been drinking heavily. Respondent stated that
[M.B.] had seen his penis while he was urinating[,] . . . and hewas concerned that [M.B.] might say that he hit her in the head
with his penis. This concerned grandmother, and in March 2005,
grandmother took M.B. for a Child Medical Examination (CME) with
Dr. Cynthia Brown, the Medical Director of the Child Maltreatment
Evaluation Program at Mission Children's Clinic in Asheville, North
Carolina. At the CME, M.B. stated that 'Daddy shook his wee-
wee[,]' and M.B. stood up and began to shake her hips in a side-
to-side motion, with her hands down near her private area as though
she was holding a penis and shaking it. Dr. Brown recommended
psychological counseling. M.B. began to see Katherine Barnhill, a
Licensed Clinical Social Worker (LCSW). Barnhill had over a
dozen sessions with the minor child from April until May 17, 2005.
Grandmother, however, decided to discontinue therapy because she
believed the sessions were becoming too upsetting for [M.B.][.]
In December 2005, Buncombe County Department of Social
Services (DSS) received a report alleging that M.B. had been
molested by respondent. The report stated that M.B. talked about
seeing respondent's wee wee and that he used to put chicken
noodle soup on his penis and then eat it off. The report also
alleged that M.B. was observed playing with some puppies, and one
of the puppies was licking [M.B.] between her legs. Grandmother
told M.B. not to allow the puppy to lick her between the legs.
M.B. responded that it was alright, it didn't hurt, it was what
Joshua (her father) did to her.
On 10 January 2006, M.B. entered into therapy with LCSW
Melinda Kent (Ms. Kent) and met with Ms. Kent for seven sessions. During one therapy session, M.B. said that father put chicken
noodle soup on his 'wee wee' and that his 'wee wee' stood straight
On 4 April 2006, the trial court concluded that M.B. was an
abused child pursuant to N.C. Gen. Stat. . 7B-101(1) in that
[M.B.] has been the victim of a sexual offense, and that the minor
child's parent and caretaker ha[ve] created or allowed to be
created a substantial risk of serious physical injury to the minor
child by other than accidental means. The trial court also
concluded that M.B. was a neglected child pursuant to N.C. Gen.
Stat. . 7B-101(15), because M.B. does not receive proper care or
supervision from her parents, and that M.B. [l]ives in an
environment injurious to her welfare[.] The court further
concluded that it was in the best interest of M.B. that custody be
granted to DSS.
From this order, respondent appeals. Mother did not appeal.
I: Expert Testimony
In his first argument, respondent contends that the trial
court erred by allowing Dr. Cynthia Brown to testify about her
concern of sexual abuse, when there was no physical evidence that
M.B. was sexually abused. We disagree.
N.C. Gen. Stat. . 8C-1, Rule 702(a) (2005) provides that if
scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the formof an opinion. Id. The rules of evidence apply to proceedings in
which a juvenile is alleged to be abused, neglected or dependent.
N.C. Gen. Stat. . 7B-804.
With respect to expert testimony in child sexual abuse
prosecutions, our Supreme Court has approved the admission of
expert testimony if based upon a proper foundation. See State v.
Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002). The foundation may
be the testifying physician's medical examination and review of the
victim's medical history. See State v. Shepherd, 156 N.C. App. 69,
73, 575 S.E.2d 776, 779 (2003) (citations omitted).
The trial court must not admit expert opinion that sexual
abuse has in fact occurred . . . absent physical evidence
supporting a diagnosis of sexual abuse[.] However, an expert
witness may testify, as to the profiles of sexually abused
children and whether a particular complainant has symptoms or
characteristics consistent therewith. Stancil at 267, 559 S.E.2d
In the instant case, respondent argues that the trial court
erred in admitting the following testimony of Dr. Brown, because
there was no physical evidence of sexual abuse:
DSS Attorney: Is that behavior consistent with
a child that's seen inappropriate sexual
Dr. Brown: Object. Based on that, there's not
enough for her to make that leap yet, Your
The court: Rephrase your question. Sustained.
DSS Attorney: What was the conclusion of your
Dr. Brown: I was concerned that this was a
child who had been sexual abused. . . .
Dr. Brown: [M.B.'s caretakers] described
statements and behavior in [M.B.] that raised
concern for sexual abuse. . . .
DSS Attorney: Were you concerned that she had
been sexually abused?
Dr Brown: I was concerned that it was possible
that she had been sexually abused, yes.
We find it pertinent that Dr. Brown did not testify that sexual
abuse had in fact occurred. Rather, Dr. Brown testified that she
had concern that the child may have been sexually abused. Dr.
Brown's testimony is also consistent with her assessment of M.B.
after performing a CME, which stated:
Possible sexual abuse. This is based on the
statements M. has made to her family. The
interview today was limited by her age,
developmental level and attention span. A
normal anogenital examination does not
preclude the possibility of sexual abuse.
There also have been some behaviors noted that
raise concern for possible sexual abuse.
Based on Dr. Brown's testimony and the CME assessment, the
trial court made the following finding of fact:
Dr. Brown expressed concern that the minor
child may have been sexually abused and she
recommended psychological counseling. Dr.
Brown found no physical evidence of sexual
abuse, but the minor child would not have had
physical evidence with this type of abuse.
We find the cases of In re Mashburn, 162 N.C. App. 386, 591 S.E.2d
584 (2004), and In re Morales, 159 N.C. App. 429, 583 S.E.2d 692
(2003), instructive. In Mashburn, this court held that the trial
court's admission of testimony of a qualified expert in pediatricmedicine was permissible when the expert testified that '[i]t's my
opinion that she [the female child] is highly likely to have been
a victim of child sexual abuse.' Id. at 397, 591 S.E.2d at 592
(emphasis added). The doctor neither testified that sexual abuse
in fact occurred, nor impermissibly stated that the female child
was being truthful. Moreover, in Morales, this Court reasoned that
[i]n a jury trial, the distinction between an expert witness'
testifying (a) that sexual abuse in fact occurred or (b) that a
victim has symptoms consistent with sexual abuse is critical. Id.
at 433, 583 S.E.2d at 695. This is because a jury could well be
improperly swayed by the expert's endorsement of the victim's
credibility. Id. However, in a bench trial, this Court can
presume, unless an appellant shows otherwise, that the trial court
understood the distinction and did not improperly rely upon an
expert witness' testimony. Id. at 433-34, 583 S.E.2d at 695.
Based on Mashburn and Morales, we conclude that Dr. Brown's
statements regarding her concern that M.B. had been sexually
abused were not impermissibly admitted. This assignment of error
II: Findings of Fact
In his second argument, respondent contends that a portion of
finding of fact number twenty-eight is not supported by clear and
convincing evidence. We hold that there were plenary findings of
fact supported by clear and convincing evidence of record, which
were sufficient to support the trial court's conclusion of abuse,regardless of whether we consider the challenged portion of this
finding of fact. We therefore do not reach this argument.
In his final argument, respondent contends that the trial
court erred in concluding that M.B. was the victim of a sexual
offense in that the conclusion was not supported by the findings of
fact and evidence presented at the hearing. We disagree.
When reviewing an adjudication of abuse and neglect, our
review is limited to whether the trial court's findings of fact are
supported by clear and convincing evidence and whether the trial
court's conclusions of law are supported by those findings of fact.
In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000).
Even if there is some evidence to support contrary findings, the
trial court's findings of fact are considered conclusive if they
are supported by clear and convincing evidence. In re Helms, 127
N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
An abused juvenile is defined by N.C. Gen. Stat. . 7B-
Any juvenile less than 18 years of age whose
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 sexual offense, as provided in
G.S. 14-27.4 . . . and taking indecent
liberties with the juvenile, as provided in
N.C. Gen. Stat. § 14-27.4 provides that [a] person is guilty
of a sexual offense in the first degree if the person engages in a
sexual act . . . [w]ith a victim who is a child under the age of 13years and the defendant is at least 12 years old and is at least
four years older than the victim[.] Id. A sexual act is defined
as cunnilingus, fellatio, analingus, or anal intercourse, but does
not include vaginal intercourse. N.C. Gen. Stat. . 14-27.1(4).
N.C. Gen. Stat. . 14-202.1 provides:
A person is guilty of taking indecent
liberties with children if, being 16 years of
age or more and at least five years older than
the child in question, he either . . . (1)
Willfully takes or attempts to take any
immoral, improper, or indecent liberties with
any child of either sex under the age of 16
years for the purpose of arousing or
gratifying sexual desire; or (2) Willfully
commits or attempts to commit any lewd or
lascivious act upon or with the body or any
part or member of the body of any child of
either sex under the age of 16 years.
Respondent specifically argues that since findings of fact
numbers eight, twenty, twenty-six, and twenty-eight are not
supported by clear and convincing evidence, the findings cannot
support the trial court's conclusion that M.B. was an abused
8. The Buncombe County Department of Social
Services received a report in December 2005
alleging that the minor child had been
molested by the respondent father. The report
alleged that the minor child had seen the
ocean on a television commercial and became
nervous and frightened because the respondent
father had molested her in a bathroom while
the minor child was on a trip to Charleston.
The report alleged that the minor child talked
about seeing the respondent father's wee wee
and that he used to put chicken noodle soup on
his penis and then eat it off. The report
also alleged that recently the minor child was
playing with puppies and they began to lick
her between her legs. The maternal
grandmother observed this incident and told
the minor child that this was inappropriatebehavior. The minor child responded that it
was okay because it tickles just like when the
respondent father did that to her. Based on
the allegations contained in the report the
Department opened an investigation.
20. The maternal grandmother took the minor
child for a CME the first week of March 2005.
. . . When the minor child was explaining
what the respondent father had done to her,
she stated that Daddy shook his wee-wee, and
she stood up and began to shake her hips in a
side-to-side motion, with her hands down near
her private area as though she was holding a
penis and shaking it. . . .
26. In December 2005 the minor child was
observed playing with some puppies, and one of
the puppies was licking the minor child
between her legs. The maternal grandmother
saw this and told the minor child not to allow
the puppy to lick her between the legs. The
minor child told the maternal grandmother that
it was alright, it didn't hurt, it was what
Joshua (her father) did to her. This
statement is consistent with the earlier
statements the child made to the medical
Based upon our holding in the previous section, we do not discuss
that portion of finding of fact number twenty eight.
We note that respondent abandoned his argument as to several
findings of fact, see N.C. R. App. P. 28(b)(6), including the
remaining portion of finding of fact number twenty eight, which
states that [M.B.] disclosed that [father] put chicken noodle soup
on his 'wee wee' and that his 'wee wee' stood straight up. This
portion of finding of fact number twenty-eight, and the following
findings of fact, are binding on appeal:
19. The minor child began to make statements
to the maternal grandmother in November 2004
about possible inappropriate conduct by the
respondent father. The maternal grandmother
felt that the statements were concerning butshe didn't initially act as she didn't
understand exactly what the minor child was
trying to tell her, and she couldn't believe
the respondent father would abuse the minor
child. The respondent father visited with the
minor child at the maternal grandmother's
home, and the maternal grandmother would leave
the minor child with the respondent father and
run errands for three to four hours at a time
while the respondent father kept the minor
child. Toward the end of February 2005 the
respondent father called the maternal
grandmother and sounded as though he had been
drinking heavily. The respondent father
stated that the minor child had seen his penis
while he was urinating. He expressed that he
wanted to disclose this to the maternal
grandmother because he was concerned that the
minor child might say that he hit her in the
head with his penis. This caused great alarm
to the maternal grandmother and she called her
pediatrician[.] . . .
27. The maternal grandmother observed
significant domestic violence by the
respondent father towards the respondent
mother when the respondent parents were living
in the home of the maternal grandparents.
These findings are deemed conclusive on appeal, see N.C. R. App. P.
28(b)(6), and support the trial court's conclusion that M.B. was an
A: Challenged Findings of Fact
With regard to finding of fact numbers eight and twenty-six,
respondent specifically argues that the findings refer to
statements made by a very young child, subject to varying
interpretations and not consistently repeated by the child[,] and
therefore, the statements were not supported by clear and
convincing evidence. We disagree.
The evidence shows the contrary, that M.B.'s statements to
grandmother, Dr. Brown, Ms. Kent and Ms. Barnhill were consistent,and that respondent's exposures of his penis to M.B. were repeated.
Grandmother stated that M.B. began making [concerning] statements
when she was . . . two and a half or three years old[.]
Grandmother's testimony reveals that M.B. referred to respondent's
penis as a hairy monster; that M.B. observed respondent peeing
on the walls; that when she told M.B. that it was okay to see her
younger brother's wee-wee in the bath, but she should not see
big people's wee-wee[,] M.B. said, I can daddy's. Grandmother
[Father] called me one day and he said, I just
wanted to let _ I could tell he was drinking,
and he said, I just wanted to let you know
that [M.B.] seen my weenie last night when I
was giving her a bath. And I said, Why?
He said, She peeked around the curtain when I
was peeing. I said, Well, I got two
bathrooms, and I just left it at that. And
he said, I didn't want her to go to the
doctor and say daddy slapped me up side the
face with his weenie.
With regard to the puppy incident, grandmother stated:
My husband came in and said . . . [M.B.]'s
sitting in the driveway and the puppies were
licking her between the legs. So I went out
there and I said, [M.B.], you can't let the
puppies lick you between the legs, it's not
nice. And she said, Nana, it don't hurt, it
tickles like [father] did.
M.B. disclosed to Dr. Brown that her daddy shook his wee-wee
all over[,] . . . physically demonstrat[ing] by standing and moving
her body backwards or side to side.
M.B. also disclosed to Ms. Barnhill that [w]ith his wee-wee
[father] got chicken soup in my face. M.B. described the incident
in greater detail, stating that respondent put chicken soup on hiswee-wee and flung it around the room[,] [a]nd that when he had put
the chicken soup on his wee-wee it stood straight up. Ms.
Barnhill further testified:
While painting, she was talking about her
father. And she mentioned her hoochie-tu and
her father's wee-wee, and she asked me does
your daddy bite your hoochie-tu? And I said,
No, he hasn't done that. I asked her in
response, using her words, Did your daddy
bite your hoochie-tu, and she said yes. Then
she continued painting.
Ms. Kent testified that she would have some concerns [as to
M.B.'s visitation with respondent] because . . .[M.B.] stated that
when they were up at the old trailer and she was with her father,
that he had put chicken soup on his wee-wee and flung it around the
room. M.B. said, when he had put the chicken soup on his wee-wee
it stood straight up. This statement from M.B. arose in response
to a question in [a therapeutic] game[,] [a]nd the question was
what is something you don't like about someone you love. In
response to the question, M.B. stated that she didn't like it when
Joshua's wee-wee flung chicken noodle soup all around.
M.B.'s disclosures to the foregoing people were not
inconsistent. In fact, M.B. repeated essentially the same
incidents to her grandmother, Dr. Brown, Ms. Kent and Ms. Barnhill.
M.B.'s disclosure regarding her father licking or biting her
private area was repeated to her grandmother and to Ms. Barnhill.
M.B.'s disclosure regarding her father shaking or flinging his
penis was repeated to Ms. Barnhill, Ms. Kent and Dr. Brown. The
reference to chicken noodle soup was made to both Ms. Barnhill and
Ms. Kent. After thorough review of the record, we find clear andconvincing evidence to support the trial court's findings of fact
numbers eight and twenty six.
With regard to finding of fact number twenty, respondent
repeats his argument that the evidence of Dr. Brown's concern of
sexual abuse was not properly admitted, and therefore the finding
is not supported by clear and convincing evidence. We concluded in
a previous section that Dr. Brown's statements regarding her
concern that M.B. had been sexually abused were properly
admitted. Therefore, evidence of record supports finding of fact
B: Conclusion of Law
Respondent next argues that the findings of fact do not
support the trial court's conclusion that M.B. was an abused
juvenile. We disagree.
The evidence tends to show, and the findings of fact reflect,
that respondent's actions constituted taking indecent liberties
with a minor in violation of N.C. Gen. Stat. . 14-202.1, which is
one requisite for abuse pursuant to N.C. Gen. Stat. . 7B-101(1)(d).
See, e.g., State v. Strickland
, 77 N.C. App. 454, 335 S.E.2d 74
(1985) (holding that evidence was sufficient to warrant a
conviction of taking indecent liberties with a minor when defendant
masturbated in front of two seven year old boys and invited the
boys to join). The findings are more then sufficient to support
the trial court's conclusion that M.B. was abused. This assignment
of error is overruled.
Respondent failed to argue the remaining assignments of error
in his brief, and they are deemed abandoned. N.C. R. App. P.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***