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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-218


Filed: 3 July 2007


    J.L.D., Jr. and                 Caldwell County
    J.N.D.,                        Nos. 06 J 1-2

    Minor Children.                

    Appeal by respondent father from disposition order entered 20 November 2006 by Judge L. Suzanne Owsley in Caldwell County District Court. Heard in the Court of Appeals 4 June 2007.

    Lauren Vaughan for Chatham County Department of Social Services petitioner-appellee.

    Winifred H. Dillon for respondent-appellant father.

    Womble Carlyle Sandridge & Rice, PLLC, by Meredith J. McKee, for Guardian ad Litem.

    BRYANT, Judge.

    Respondent father (father) appeals the disposition order with respect to his minor children, J.L.D., Jr. and J.N.D.   (See footnote 1)  On 5 January 2006, the Caldwell County Department of Social Services (DSS) filed juvenile petitions alleging that the minor children of father and respondent mother were neglected and dependent due to several incidents of domestic violence committed between the parents in the presence of the children and due to the parents' drug use. Based on these petitions, the trial court granted DSSnon-secure custody of the children.
    On 30 June 2006, the trial court conducted an adjudication hearing at which respondent mother was called as a witness by DSS. Mother testified as to four specific incidents of domestic violence in the past year occurring on 15 and 19 July and 27 December 2005 and on 3 January 2006. Mother also testified that there had been other incidents throughout her relationship with father, some of which had occurred in front of the children. Mother's testimony was consistent with the testimony of a DSS social worker who observed the mother's physical injuries shortly after the 3 January 2006 incident. Mother's testimony was also consistent with her prior sworn statement in her complaint and motion for domestic violence protective order filed 6 January 2006. Mother further testified that father not only used illegal drugs but provided them for her use.
    In his testimony, father denied ever striking or otherwise inflicting injury upon mother. He further denied ever using illegal drugs himself or providing them to mother. In addition to witness testimony, the trial court received into evidence the complete case files associated with the domestic violence protective orders that had been entered as to each of the respondent parents in January 2006.
    In its 31 July 2006 written adjudication order, the trial court made detailed findings of fact as to the use of illegal drugs by the respondent parents as well as several specific incidents of domestic violence between them, including at least two incidentsthat resulted in injuries to the parties. From these findings, the trial court concluded that the minor children were neglected “based upon the history of domestic violence in the home and the history of alcohol/illegal substance abuse” and that they were dependent “as a result of the respondent parents' history reflecting their inability to properly provide for the children's care or supervision.”
    On 6 September 2006, the trial court conducted the first of two disposition hearings. On 5 October 2006, respondent mother signed an affidavit in which she recanted her earlier testimony at the adjudication hearing as well as her sworn statement in the domestic violence action. Specifically, she stated that father had “never physically harmed [her]”, that he had never used drugs or provided her with drugs, and that her prior statements to the contrary were due to her being angry with him. On the day that respondent mother signed this affidavit, the charges against her for assaulting respondent father were dismissed.
    On 17 October 2006, father filed a motion to reopen the evidence, motion to include newly acquired evidence and motion for appropriate relief seeking to have respondent mother's affidavit considered by the trial court. Specifically, father requested that the trial court set aside the adjudication order and reopen the evidence to consider the affidavit or, in the alternative, that the trial court consider the affidavit for the purposes of the disposition hearing.
    At the second disposition hearing on 1 November 2006, thetrial court heard father's motion to reopen. The trial court denied the motion to set aside the adjudication order, but admitted and considered the affidavit as to the disposition proceeding. On 20 November 2006, the trial court entered its written disposition order continuing the custody of the children with DSS and ceasing reunification efforts with father. With respect to mother's affidavit, the trial court made the following findings:
        3. During the approximately eleven months during which the Court has heard testimony and received evidence in this matter, the Court has observed the parties and the witnesses presented by each of the parties hereto. The findings of the Court in the Adjudication Order were based on the totality of the evidence received, including the sworn testimony of each of the respondent parents, including [mother]. [Mother] testified at length and was subject to extensive cross- examination by all parties. The Court also received substantial documentary evidence which was also incorporated into the Adjudication Order of the Court.

        4. The adjudication hearing concluded on June 30, 2006. The Adjudication Order was signed and filed July 31, 2006. The affidavit executed by [mother] which purports to recant all of her prior testimony of the last eleven months was signed October 5, 2006, approximately four months after the conclusion as aforesaid.

        5. Since the entry of the Adjudication Order, the Court has heard extensive testimony and received substantial evidence in the dispositional phase of this matter[. Mother] has failed to appear for any of the hearings which have been held since June 30, 2006 until November 1, 2006.

        6. Approximately eleven months have passed since this matter was first filed and the minor children came into custody of the Department and approximately four months have passed since the adjudication of this matterduring which time the Court has been conducting hearings for dispositional purposes. The assertions of the affidavit of [mother] are not persuasive to this Court. This is based upon the Court's knowledge of [mother]'s history of substance abuse and her relationship with [father]. The contents of the affidavit are highly suspect to the Court and are not significant [with respect to] the Findings of Fact of the Adjudication Order.

        7. The Findings of Fact as set forth in the Adjudication Order entered June 30, 2006 were not made solely on the testimony of [mother] but were based on the totality of the evidence received by the Court.

    Father's sole argument on appeal is that the trial court erred in denying his motion to reopen the evidence on adjudication. Father contends that the affidavit and mother's testimony at the 1 November 2006 hearing repudiating her prior testimony left no evidence to support the trial court's adjudication order. We disagree.
    Father's motion to reopen evidence following entry of the adjudication order is, in essence, a motion for relief from judgment or order under Rule 60(b) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 60(b) (2005). Our standard of review of a trial court's denial of such a motion is abuse of discretion. See Broadbent v. Allison, 176 N.C. App. 359, 364, 626 S.E.2d 758, 763 (2006). Accordingly, we reiterate, the trial court made the following finding of fact in its disposition order that classify the affidavit as not credible:
        6. . . . The assertions of the affidavit of [mother] are not persuasive to the Court. This is based upon the Court's knowledge of [mother's] history of substance abuse and her relationship with [father]. The contents ofthe affidavit are highly suspect to the Court and are not significant as [with respect to] the Findings of Fact of the Adjudication Order.

Such a credibility determination is exclusively in the province of the trial court as the finder of fact and will not be disturbed on appeal. See Powers v. Fales, 61 N.C. App. 516, 521, 301 S.E.2d 123, 126 (1983) (holding that determination of the credibility of witnesses is the responsibility of the trier of fact). Consequently, we hold that the trial court did not abuse its discretion in denying father's motion on the basis of evidence that the trial court has found to be untrustworthy. Accordingly, father's assignment of error is overruled.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

Footnote: 1
    Initials are used throughout the opinion to protect the identity of the juveniles.

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