In re A.E.

• Decision Date: 19 July 2005
• Docket Number: No. COA04-406.,COA04-406.
• Citation: 615 S.E.2d 53
• Court: North Carolina Supreme Court
• Parties: In the Matter of A.E., J.E., Minor Children.

615 S.E.2d 53

In the Matter of A.E., J.E., Minor Children.

No. COA04-406.

Court of Appeals of North Carolina.

July 19, 2005.

Appeal by respondent from judgment and order entered 5 December 2003 by Judge Rebecca B. Knight in Buncombe County District Court. Heard in the Court of Appeals 2 December 2004.

Renae S. Alt, Asheville, for petitioner-appellee.

Carol Ann Bauer, Morganton, for respondent-appellant.

Michael N. Tousey, Asheville, for appellee Guardian ad Litem.

GEER, Judge.

Respondent father E.E. appeals an order of the trial court adjudicating his children, A.E. and J.E., neglected. E.E. argues in his appellate brief only that the trial court should not have relied upon the testimony of Dr. Robert McDonald. Since E.E. neither objected to that testimony at trial nor assigned error to that testimony or the findings of fact related to that testimony, E.E.'s arguments were not properly preserved for review by this Court. We, therefore, affirm.

Timeliness of Appeal

As an initial matter, we must address the guardian ad litem's motion to dismiss this appeal. The trial court's adjudication judgment and dispositional order was entered on 5 December 2003. E.E. filed his notice of appeal on 18 December 2003. The guardian ad litem contends that because the notice of appeal was filed more than 10 days after entry of the order, the appeal was untimely.

Even assuming, without deciding, that respondent's notice of appeal was not timely, respondent has established through affidavits that his appeal was lost, if at all, through no fault of his own since his counsel was not served with the order until after the time for appeal had passed. Appellees have submitted no contrary evidence. We, therefore, exercise our discretion under Rule 21(a)(1) of the Rules of Appellate Procedure to treat the father's appeal as a petition for writ of certiorari and we allow that petition.

Adjudication of Neglect

When a child is alleged to be neglected and taken into temporary custody, DSS has the burden of proving neglect by clear, cogent, and convincing evidence. In re Evans, 81 N.C.App. 449, 452, 344 S.E.2d 325, 327 (1986). "Where the trial court sits without a jury and hears the evidence in a neglect adjudication, the facts found by the trial court are binding on an appellate court if supported by clear and convincing competent evidence." In re McLean, 135 N.C.App. 387, 394, 521 S.E.2d 121, 125 (1999). Findings of fact that are not challenged on appeal "are deemed supported by competent evidence" and are binding on this Court. In re Padgett, 156 N.C.App. 644, 648, 577 S.E.2d 337, 340 (2003).

The respondent father has made only a single assignment of error: "The court erred in finding that the minor children are neglected children by clear, cogent, and convincing evidence." It is well-established that "[a] single assignment generally challenging the sufficiency of the evidence to support numerous findings of fact, as here, is broadside and ineffective." Wade v. Wade, 72 N.C.App. 372, 375-76, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Since respondent did not specifically assign error to any of the trial court's findings of fact supporting its order, those findings are deemed to be supported by competent evidence and are conclusive on appeal. Those findings establish the following facts.

A.E. and J.E. lived with their father. In December 2002, the Buncombe County Department of Social Services ("DSS") became involved with the family as a result of reports regarding the father's relationships with women. The father voluntarily placed his children first with one neighbor, then removed them and, four days later, placed them with a second neighbor.

In the course of its investigation, DSS learned that the father had been convicted of taking indecent liberties with a 15-year-old girl and was an untreated sexual offender. Although the father insisted to DSS that he was not untreated, had been cleared by the courts, and had received an assessment for his sex offender status, DSS discovered from his probation officer that the father's probation was revoked due to his failure to seek sexual offender treatment.

On 28 January 2003 and again on 7 February 2003, the father claimed that he had attempted unsuccessfully to schedule a sex offender specific assessment with Dr. Robert McDonald. Dr. McDonald confirmed, however, that he had received no calls from the father. On 13 February 2003, the father refused to sign the "Family Services Case Plan" with DSS, claiming that he did not need any services. On 3 March 2003, the father finally agreed to sign the case plan and "go along" with the results of the sex offender specific assessment.

On 11 March 2003, DSS received the results of the assessment from Dr. McDonald who found the father to be uncooperative and "obviously unreliable" in his recitation of events and facts. Dr. McDonald "recommended that he receive the previously ordered treatment" and that "he not be allowed to be in the presence of post-pubertal females unchaperoned. Failure to comply with treatment is known to be a significant risk factor for repeating similar offenses."

On 18 March 2003, DSS learned that the father had taken the children back into his home although he insisted that his fiancée was always present. On 2 April 2003, a DSS social worker informed the father that he would need to pursue sexual offender treatment. The father, however, refused to undergo treatment. As of 18 June 2003, the father had still not received sex offender specific treatment. On 19 June 2003, DSS filed petitions alleging that the children were neglected, but did not obtain non-secure custody orders.

The trial court conducted an adjudication and dispositional hearing on 27 October 2003. Following that hearing, the court filed an order on 5 December 2003, finding in pertinent part:

21. That on or about May 28, 2003, [the father's] daughter [A.E.], (DOB 3-10-95, age 8), within a few years will be a "post pubertal female" as designated by Dr. McDonald in the Assessment, and [the father] will have unrestricted access to [A.E.]. [The father's] refusal to seek sex offender treatment and his unrestricted access to [A.E.] creates a high risk for these children. The current risk assessment indicates high risk and [the father] is refusing to engage in treatment recommended by Dr. McDonald and the Department.

....

23. That Dr. McDonald testified, and the Court will find as facts, that [the father] was referred for a [sex offender specific] evaluation. He met with him on 5 occasions and held two interviews and performed 3 tests, the MMPI, MPI and MSI. That he received pretty conflicting information from [the father] and found him not reliable.... [The father] has never been treated. This is a significant indicator of recidivism and a significant risk. The recommendations for [the father] were a polygraph test, PPE, treatment for 1-2 years, group therapy and individual therapy. [Dr.] McDonald stated that [the father] should not have unsupervised visits with the minor children and not be allowed to be in the company of post pubertal females. After further research and attending a continuing education seminar one week prior to the adjudication, Dr. McDonald recommended that [the father] have no contact with children at all, neither supervised nor unsupervised.

The court acknowledged that the father had been cooperative with DSS with the exception of the refusal to obtain sex offender treatment.

The court concluded "by clear, cogent, and convincing evidence the minor children are neglected children pursuant to N.C.G.S. § 7B-101(15) in that the children live in an environment injurious to their welfare in that their father, [E.E.], is an untreated sex offender." In its dispositional order, the court found that it was not in the best interests of the minor children to be in the custody of their father and granted custody to DSS. The court allowed for supervised visitation, but directed that the father complete sex offender specific treatment as a prerequisite to unsupervised visitation. The court also found that "the best plan to achieve a safe, permanent home for the minor children in a reasonable period of time is reunification."

While in his single assignment of error, the father challenged generally the trial court's finding of neglect, the father in his brief argues only that the opinion of Dr. McDonald is not competent evidence to support the trial court's decision. Specifically, the father objects because Dr. McDonald changed his ultimate conclusion between his written report and trial testimony and because the information he used to formulate his trial testimony was not shown to be reliable.

We hold that the arguments regarding changes to and the reliability of Dr. McDonald's opinion are not properly before us because the father (1) failed to object to Dr. McDonald's testimony during the hearing and (2) failed to specifically assign error to that testimony or the trial court's reliance on that testimony. Rule 10(b)(1) of the Rules of Appellate Procedure provides: "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...." N.C.R.App. P. 10(b)(1). If an issue has been properly preserved under Rule 10(b), the appellant must then comply with Rule 10(c)(1)'s requirements for assignments of error:

A listing of assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention...