In re A.L.T.

• Decision Date: 16 June 2015
• Docket Number: No. COA14–1121.,COA14–1121.
• Citation: 241 N.C.App. 443,774 S.E.2d 316
• Court: North Carolina Court of Appeals
• Parties: In the matter of A.L.T. and C.T.

241 N.C.App. 443

774 S.E.2d 316

In the matter of A.L.T. and C.T.

No. COA14–1121.

Court of Appeals of North Carolina.

June 16, 2015.

Lauren Vaughn, for petitioner-appellee Caldwell County Department of Social Services.

Leslie Rawls, Charlotte, for respondent-appellant father.

J. Thomas Diepenbrock, Asheville, for respondent-appellant mother.

Poyner Spruill LLP, Raleigh, by Daniel G. Cahill, for guardian ad litem.

ELMORE, Judge.

Respondent-father ("Father") and respondent-mother ("Mother") appeal from an adjudication order which adjudicated their children C.T. ("Clara")¹ and A.L.T. ("Anna") neglected juveniles, and a disposition order which continued custody of the children with the Caldwell County Department of Social Services ("CCDSS").

Father and Mother (collectively "parents") are the parents of Clara, born in June 2009, and Anna, born in April 2012. On 9 October 2013, CCDSS filed juvenile petitions alleging Clara was an abused and neglected juvenile and Anna was a neglected juvenile. CCDSS alleged that Clara disclosed to her paternal great aunt E.D. ("Aunt D") and CCDSS social worker Aimee Fairchild ("Fairchild") that she was being sexually abused by Father; that Clara disclosed to Fairchild that she had been "punched" by Father; that Father admitted backhanding Clara; and that Mother disclosed to relatives that domestic violence occurred between her and Father. The petitions further alleged that CCDSS records revealed that Father was a victim of sexual abuse by his own admission; that Father was substantiated as a perpetrator of sexual abuse upon his female cousin in 2003, when she was between 9 to 12 years of age and Father was between 12 and 15 years of age; and that there was no record that Father complied with CCDSS's recommendation that he participate in a sexual abuse intervention service ("SAIS") assessment. CCDSS took non-secure custody of the children.

Prior to the hearing on the petitions, the District Court ("the court" or "the trial court") allowed CCDSS's motion that Clara be allowed to testify by remote video equipment. CCDSS also filed a notice of intent to use hearsay statements Clara made to Aunt D and Fairchild. The court denied the motion, finding that the "best evidence is the juvenile's live testimony[.]"

The adjudication hearing was held on 26 February 2014, 26 March 2014, and 22 April 2014. Clara testified that her father hit her in the mouth, but denied that he touched her inappropriately. Over the parents' objections, Aunt D and Fairchild testified about statements Clara made to them regarding inappropriate touching by Father. The court also allowed, over the parents' objections, Father's cousin to testify about her sexual encounter with Father when they were children and former CCDSS investigator Shelley Triplett to testify about the 2003 investigation of events involving the Father's illicit sexual acts. At the end of the adjudication hearing, the parents renewed their objections to certain testimony and moved to dismiss the petitions. The court dismissed the abuse allegation.

By order filed 21 May 2014, the court adjudicated Clara and Anna neglected juveniles. In a separate disposition order, the court determined it was in the best interest of Clara and Anna to remain in CCDSS custody. The court ordered Father to comply with his case plan, which included completing a SAIS assessment, and denied visitation. The court ordered Mother to comply with her case plan and permitted visitation every other week. Parents appeal separately.

Both parents contend: (1) the trial court erred in allowing hearsay statements into evidence; (2) the trial court erred in allowing irrelevant testimony into evidence; (3) certain findings of fact are not supported by clear, cogent, and convincing evidence; and (4) the trial court failed to make sufficient findings of fact to support its determination that the children were neglected.

I. Standard of Review

When reviewing an adjudication of neglect, we must determine whether the trial court's findings of fact are supported by clear and convincing evidence, and whether those findings of fact support the trial court's conclusions of law. In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000). If the trial court's findings of fact are supported by competent evidence, they are binding on appeal, even if there may be evidence to support contrary findings. In re T.H.T., 185 N.C.App. 337, 343, 648 S.E.2d 519, 523 (2007), aff'd as modified, 362 N.C. 446, 665 S.E.2d 54 (2008). We review the trial court's conclusions of law de novo. In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006).

II. Challenges to Testimony

The parents argue that the trial court erred in allowing into evidence hearsay statements made by Clara to social worker Fairchild and to Aunt D. Before the hearing, the trial court denied CCDSS's motion to use Clara's hearsay statements regarding Father's inappropriate touching of Clara. At the hearing, Clara denied any such conduct and, over the parents' objections, the court allowed Aunt D and Fairchild to testify about Clara's statements about the alleged conduct.

"Where the juvenile is alleged to be abused, neglected, or dependent, the rules of evidence in civil cases shall apply" to the adjudication hearing. N.C. Gen.Stat. § 7B–804 (2013). Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C. Gen.Stat. § 8C–1, Rule 801(c) (2013). This Court has acknowledged the " well-established supposition that the trial court in a bench trial is presumed to have disregarded any incompetent evidence." In re J.B., 172 N.C.App. 1, 16, 616 S.E.2d 264, 273 (2005) (quotation and citation marks omitted). After the trial court determines a juvenile is neglected, it "may consider any evidence, including hearsay evidence ... that the court finds to be relevant, reliable, and necessary to determine the needs of the juvenile and the most appropriate disposition." N.C. Gen.Stat. § 7B–901 (2013).

Here, the court can be presumed to have disregarded the incompetent evidence because the court made no findings pertaining to the hearsay evidence in support of its adjudication of neglect and dismissed the sexual abuse allegation. The parents argue the trial court's reliance on the hearsay evidence is shown by the court's establishing a disposition that orders Father to obtain an SAIS and denies him visitation. However, the trial court was authorized to consider the hearsay evidence in its dispositional order. Id. Accordingly, this argument is without merit.

Parents also argue testimony from Father's first cousin and from a former CCDSS social worker regarding Father's prior sexual conduct should have been excluded as irrelevant.

We have stated the following regarding the relevancy of evidence:

Pursuant to the North Carolina Rules of Evidence, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. While a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard, such rulings are given great deference on appeal.

In re E.P., 183 N.C.App. 301, 303–04, 645 S.E.2d 772, 773–74, aff'd per curiam, 362 N.C. 82, 653 S.E.2d 143 (2007) (citation and quotation marks omitted).

Parents contend the trial court erred in admitting evidence of prior sexual activity between Father and his cousin because the sole purpose was to show propensity. However, parents only link the alleged incompetent evidence to the trial court's findings of fact in its disposition order. As noted above, the trial court "may consider any evidence ... necessary to determine the needs of [Clara and Anna] and the most appropriate disposition." See N.C. Gen.Stat. § 7B–901. Because the trial court was authorized to consider such evidence for purposes of disposition, this argument is without merit.

III. Adjudication of Neglect

A. Challenges to Findings of Fact

Parents contend that certain findings of fact made by the trial court are not supported by competent evidence. We disagree.

The trial court made the following pertinent findings of fact² to support its conclusion that the children were neglected:

26. Respondent father has engaged in at least one act of domestic violence toward the juvenile, [Clara]. The juvenile, [Clara], has been physically struck by Respondent father on at least one occasion wherein Respondent father popped [Clara] in the mouth leaving a mark on the juvenile's mouth which included a swollen and busted lip.

27. Respondent father has engaged in at least one act of domestic violence toward the juvenile, [Anna]. The juvenile, [Anna], has been physically struck by Respondent father on at least one occasion. The juvenile, [Clara], witnessed Respondent father strike [Anna].

28. The juvenile, [Clara], is fearful or scared that she will receive a whipping or spanking from Respondent father if she states anything that has happened while she resided with Respondent mother and Respondent father.

....

30. Respondent father has engaged in aggressive and violent behaviors in the home where the juveniles resided with him and Respondent mother. Respondent father engages in activities such as punching holes in walls and doors of his home, and throwing and breaking more than one cellular telephone when he is angry. On one occasion, Respondent father broke his hand from punching a wall in the family home. Respondent father has stated that when he gets angry or mad, he just has to hit something. These activities have occurred in the home where Respondent father resides with Respondent mother and the juveniles prior to the juveniles being removed from the family home on October 8, 2013.

As an initial matter, we note that the parents challenge many of the trial court's other...