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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 6 February 2007
IN RE: C.J., M.C., and A.C.,
Nos. 06 JA 43-45
Appeal by respondent father from judgments entered 13 June
2006 and 17 July 2006 by Judge William Kluttz in Rowan County
District Court. Heard in the Court of Appeals 17 January 2007.
Cynthia G. Barnhill, attorney for petitioner-appellee Rowan
County Department of Social Services.
Michael J. Reece, attorney for respondent-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Georgiana L.
Yonuschot, attorney for C.J., M.C. and A.C., Minor Children,
by and through their guardian ad litem.
MARTIN, Chief Judge.
On 22 June 2006, respondent father (respondent) filed a
notice of appeal with respect to the trial court's 13 June 2006
disposition order involving the minor children A.C., M.C. and C.J.
On 17 July 2006, respondent filed an amended notice of appeal with
respect to all orders entered by the Honorable William C. Kluttz
during May and June of 2006. On 27 November 2006, the Rowan
County Department of Social Services (DSS) filed a motion to
dismiss the appeal. On 12 December 2006, this Court denied the
motion to dismiss the appeal from the 13 June 2006 order, butallowed it as to any remaining orders encompassed by the amended
notice of appeal. Respondent father's petition for certiorari to
review the orders as to which his appeal has been dismissed has
also been denied. Consequently, the Court's review herein is
limited to the two assignments of error addressed in respondent's
brief that are specifically related to the 13 June 2006 disposition
order as well as the trial court's prior adjudication order entered
9 June 2006.
A.C. is the biological child of respondent father and Mary
Anne Campbell. M.C. is the biological child of Ms. Campbell and
Buddy Allen Bentley. At the time the juvenile petitions were filed
in this matter, Ms. Campbell was stationed in Korea with the U.S.
military. Beginning in December 2005, A.C. and M.C., ages one and
three years, respectively, were living with respondent,
respondent's girlfriend, Rachel Klie, and Ms. Klie's eleven-month-
old child, C.J. Though respondent was not the biological father of
M.C. and C.J., he provided them with regular supervision and care.
On 9 February 2006, DSS filed two juvenile petitions with
respect to A.C., M.C., and C.J. One petition alleged that C.J. had
suffered non-accidental injuries of a fractured skull, a fractured
femur and an abrasion of her chin while in the care of respondent
and Ms. Klie. The second petition relating to A.C. and M.C.
alleged that M.C. had sustained a cigarette burn to her left knee.
After hearings on 23 and 28 March, 24 April and 8 and 11 May 2006,
the trial court entered an order adjudicating A.C. and M.C.
neglected and adjudicating C.J. both neglected and abused. Withrespect to this order, the respondent raises two assignments of
In his first assignment of error, respondent challenges the
trial court's finding regarding the timing of C.J.'s skull
fracture. Respondent's challenge requires this Court to determine
whether there exists clear, cogent and convincing evidence to
support the findings. See N.C. Gen. Stat. §§ 7B-805, 807. If
there is competent evidence, the findings of the trial court are
binding on appeal. In re McCabe, 157 N.C. App. 673, 679, 580
S.E.2d 69, 73 (2003). Such findings are moreover conclusive on
appeal even though the evidence might support a finding to the
contrary. See id. The trial judge determines the weight to be
given the testimony and the reasonable inferences to be drawn
therefrom. If a different inference may be drawn from the
evidence, he alone determines which inferences to draw and which to
reject. Id. (quoting In re Hughes, 74 N.C. App. 751, 759, 330
S.E.2d 213, 218 (1985)).
With respect to the fracture to C.J.'s skull and the timing of
this injury, the trial court made the following findings:
9. When [respondent] kept [C.J.], he was
responsible for the health and welfare of all
three children in a residential setting and
was thus their caretaker at such times.
10. [C.J.] suffered a fractured femur,
fractured skull, and broken rib. These
injuries likely occurred concurrently, and
based upon her condition at the time of her
medical examinations, these injuries could
have been caused between January 20 and
January 25, 2006. In addition, previously,
she suffered a fracture of the other femur.
11. These injuries occurred by other than
accidental means, and [C.J.] was diagnosed as
suffering from Battered Child Syndrome based
on these injuries.
13. A fracture of the skull would require a
concentrated blow to the head equivalent to a
five foot fall onto the head. Respondent
Rachel Klie first observed a knot on [C.J.]'s
head on the night of January 22, 2006. This
knot was on the left side toward the rear of
her skull. This is the same location of the
fracture observed by the treating physicians
on January 24, 2006.
14. On January 24, 2006, the head was
15. It would take a couple of days for
fluid to seep out, manifesting itself in a
more visible swelling.
16. On January 23, 2006 respondents Rachel
Klie and [respondent] took [C.J.] to stay with
Rachel Klie's mother and stepfather. At that
time the juvenile [C.J.] was fussy. During
that day she slept a lot, cried and did not
sleep well, and at 6:30 p.m., when Ms. Klie's
mother returned from work, she found [C.J.] to
be grouchy and real warm, but assumed these
symptoms were the result of teething.
17. Injuries to the skull and left femur are
not consistent with explanations offered by
[respondent and Rachel Klie], i.e., that he
fell over on [C.J.] while teaching her to walk
or that the juvenile [C.J.] bumped her head
while taking a bath.
19. On January 22, 2006 respondent . . . was
the primary care giver of the three juveniles
while respondent Klie was at work from 7:30 am
until 2:30 pm.
Respondent contends that the trial court's finding that the
skull fracture occurred before C.J.'s evening bath on 22 January2006 while in the care of respondent and Ms. Klie is not supported
by clear cogent and convincing evidence. We disagree.
At the hearing, DSS offered the testimony of Dr. Craig Barnes,
a pediatric radiologist at Brenner's Children Hospital, part of
Wake Forest University Medical Center. Dr. Barnes testified that
radiology images of C.J. revealed several fractures, including a
recent skull fracture. In offering his opinion regarding the age
of each of the fractures, Dr. Barnes opined that the skull fracture
occurred sometime between the 20th and 23rd of January based on the
appearance of soft tissue swelling in the image which was taken on
the 24th of January.
Respondent asserts that this expert's testimony provides
greater support for the occurrence of the injury on the 23rd when
C.J. was in the care of Ms. Klie's mother and stepfather, Carolyn
and Charlie Stepp, rather than on the 22nd when C.J. was in the care
of respondent and Ms. Klie. While Dr. Barnes did testify that
dates more remote from the 24th were increasingly less likely to be
the date of injury, he was referring specifically to the more
remote dates of the 18th and 19th. He also testified that the injury
would have occurred within one to two days of the x-ray and that he
would not be surprised to learn that the injury shown on the x-ray
had occurred on the 22nd. This expert testimony provides clear
support for the trial court's determination that the injury
occurred on the 22nd.
Nevertheless, the trial court did not rely solely upon the
expert's testimony in determining that the fracture occurred on the22nd. Also significant was Ms. Klie's testimony that she noticed
a knot on C.J.'s head in the exact location of the skull fracture
on the 22nd following C.J.'s bath. This swelling is consistent with
the expert's testimony that swelling occurs initially with the
injury usually within hours and then certainly by the end of the
The trial court also considered evidence that C.J. had
suffered other unexplained fractures. Dr. Barnes testified that,
in addition to the skull fracture, C.J. had a fractured right femur
and a fractured rib that appeared to have occurred in the same time
frame as the skull fracture. Dr. Barnes also testified that C.J.
had a fracture of the left femur that had occurred approximately
three to four weeks earlier than the right femur fracture.
Respondent further challenges the trial court's dating of the
injury by asserting that the knot noted by Ms. Klie after C.J.'s
bath on the 22nd was a separate injury and that respondent, Ms. Klie
and a friend visiting on the 23rd testified that C.J. was active and
playful on the evening of the 22nd and prior to going to the Stepps'
on the 23rd. Despite respondent's contention, the trial court was
free to determine the weight to be given to this testimony. In
fact, the trial court made the following specific finding with
respect to respondent's own credibility:
18. [Respondent's] credibility is impaired by
numerous inconsistencies and contradictions in
his statements, untruths, and previous
convictions within ten years, including
assault on a female and assault on a
handicapped person, his brother, who has spina
In sum, the time frame of the injury provided by the expert
witness combined with the timing of the swelling on C.J.'s head
constitutes clear, cogent and convincing evidence that the injury
occurred on the 22nd while C.J. was in the care of respondent and
Ms. Klie. Accordingly, this assignment of error is overruled.
In his second assignment of error, respondent asserts that the
trial court erroneously adjudicated A.C. and M.C. as neglected
juveniles. The trial court made the following findings in support
of this adjudication:
23. On or about January 22, 2006, respondent
. . . burned juvenile [M.C.] with a cigarette.
This caused a 1/4 inch circular deep burn
with a collar. It is unlikely that this was
caused by the child's brushing up against the
24. Respondent . . . changed his story in
reference to [M.C.]'s cigarette burn, first
stating that the burn was caused by her
touching a heater. He later stated it was
caused when she brushed up against his
cigarette. At trial he testified it was
caused when the cherry or hot tip stuck to
her shin while they were pillow fighting.
25. The home with respondent . . .constitutes
a dangerous environment.
26. [Respondent] is either a parent or
caretaker of [M.C.].
27. The juvenile [A.C.] has also lived in the
home with juveniles [M.C.] and [C.J.].
28. Rachel Klie, as parent, or [respondent],
as caretaker, have inflicted or allowed to be
inflicted upon [C.J.] a serious injury by
other than accidental means OR has [sic]
created or allowed to be created a substantial
risk of serious physical injury to [C.J.] by
other than accidental means.
30. [M.C.] is a juvenile who does not receive
proper care, supervision, or discipline from
her parent or caretaker OR who lives in an
environment injurious to her welfare. In
reaching this conclusion, the Court considered
the fact that she lives in a home where
another juvenile ([C.J.]) has been subjected
to abuse or neglect by an adult who regularly
lives in the home.
31. [A.C.] lives in an environment injurious
to her welfare. In reaching this conclusion,
the Court considered the fact that she lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
It is clear from these findings that the adjudication of
neglect for A.C. and M.C. was based on the trial court's finding
that they lived in a home with C.J. who had suffered serious injury
intentionally inflicted upon her by an adult living in the home.
The statute defining neglect plainly permits a trial court to
consider 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) (2006);
see In re A.B.
, __ N.C. App. __, __, 635 S.E.2d 11, 15 (2006)
(holding that purpose of the inclusion of this factor in the
statutory definition of neglect was to permit 'the trial court
to consider the substantial risk of impairment to the remaining
children when one child in a home has been subjected to abuse or
neglect,' (quoting In re McLean
, 135 N.C. App. 387, 394, 521
S.E.2d 121, 126 (1999)).
Respondent's challenge to the adjudication of M.C. and A.C. as
neglected juveniles relies upon his contention that there was noevidence to support the trial court's finding as to the abuse of
C.J. As we have overruled respondent's assignment of error on that
finding, his argument necessarily must fail. We further conclude
that the trial court's finding that respondent burned M.C. with a
cigarette provides additional support for the adjudication. Though
respondent argues that the trial court's finding as to the
cigarette burn is unsupported by the evidence, we disagree. The
trial court was free to reject respondent's varying explanations
for the burn as lacking credibility. Furthermore, child abuse
expert Dr. Sara Sinal testified that the depth of the burn and the
collar around the burn suggested a forced burn that was caused by
a cigarette being pressed into the child's skin. We conclude
that this testimony constituted clear cogent and convincing
evidence to support the trial court's finding that respondent
intentionally burned M.C. Accordingly, respondent's second
assignment of error is overruled.
Judges WYNN and McGEE concur.
Report per Rule 30(e)
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