In re O.O. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-106
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF: Gaston County
No. 13 JA 90
O.O.
_________________________
IN THE MATTER OF: Mecklenburg County
No. 13 JA 123
O.O.
On writ of certiorari to review adjudication order entered
5 August 2013 by Judge James A. Jackson in Gaston County
District Court and disposition order entered 23 December 2013 by
Judge Rickye McKoy-Mitchell in Mecklenburg County District
Court. Heard in the Court of Appeals 30 June 2014.
Twyla Hollingsworth-Richardson, for petitioner-appellee
Mecklenburg County Department of Social Services.
Richard Croutharmel, for respondent-appellant father.
Tawanda Foster, for Guardian ad Litem.
MARTIN, Chief Judge.
Respondent-father appeals by writ of certiorari from an
order adjudicating O.O. a neglected juvenile and a disposition
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order based on that adjudication. After careful review, we
affirm.
O.O. is the oldest of father’s seven children. On 17
October 2011, a judgment was entered granting legal and primary
physical custody of all seven children to their mother. The
trial court found that the greater weight of the evidence
supported allegations of domestic violence by father against the
children and their mother and therefore determined that it was
in the best interests of the children to grant legal and primary
physical custody of the children to their mother. Nevertheless,
the trial court found that father was “also a fit and proper
person to have the care, custody[,] and control” of the children
and granted him secondary physical custody. The trial court
further found that O.O., twelve years old at the time, was
placed in New Hope of the Carolinas Treatment Center in June
2010 after the Mecklenburg County Department of Social Services
(“DSS”) found that she sexually abused some of her siblings.
O.O. was a patient of the inpatient treatment facility until
April 2011.
In October 2012, a physical altercation occurred between
O.O. and her mother. As a result, mother would not allow O.O.
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to reside in her home. O.O. resided with father until 27
February 2013.
On 1 March 2013, DSS filed a petition alleging that O.O.
was a neglected and dependent juvenile. DSS alleged that a
physical altercation arose on 27 February 2013 between O.O. and
father “because [O.O.] used an expletive.” DSS claimed that
O.O. sustained marks on her neck, wrist, and underarm area as a
result of the altercation. DSS further claimed that O.O. was
afraid to return to father’s home and could not return to her
mother’s home. Noting its long history of involvement with the
family, DSS also indicated that O.O. had been “sexually
inappropriate with some of her siblings in the past” and that it
would be “counterproductive” for O.O. to return to her mother’s
home where her siblings resided. No other placements were
available for O.O. DSS obtained nonsecure custody of O.O. by
order entered on 1 March 2013.
On 6 May 2013, an order was entered transferring venue from
Mecklenburg County to Gaston County. On 5 August 2013, O.O. was
adjudicated a neglected juvenile. On 16 August 2013, venue was
transferred back to Mecklenburg County. On 23 December 2013,
the trial court entered a disposition order in which it ordered
that O.O. remain in the custody of DSS.
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Father filed pro se written notice of appeal from the trial
court’s orders twice, first on 4 December 2013, and then again
on 21 January 2014. Father’s notices of appeal fail to fully
comply with the requirements of Rule 3.1 of the North Carolina
Rules of Appellate Procedure because they lack signature by
father’s trial counsel. Father’s appeal is therefore subject to
dismissal. McQuillin v. Perez, 189 N.C. App. 394, 397,
657 S.E.2d 924, 927 (2008) (“Our Appellate Rules are mandatory,
and failure to comply with them subjects an appeal to
dismissal.”). Cognizant of the deficiency in his notice of
appeal, father seeks review by petition for writ of certiorari.
In our discretion, we allow the petition. See N.C.R. App. P.
21(a)(1).
_________________________
Father first argues the trial court abused its discretion
in violation of Rule 607 of the North Carolina Rules of Evidence
when it denied him the opportunity to attack O.O.’s credibility
by playing a video recording of a prior incident during the
adjudication hearing. Father sought to introduce a video
recording of a prior incident involving O.O. to refute her
testimony that she had only previously struck father in self-
defense. Father alleges this evidence would have shown that
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O.O.’s testimony was inconsistent with her prior conduct. We
are not persuaded.
We review a trial court’s ruling pursuant to Rule 607 for
an abuse of discretion. State v. Banks, 210 N.C. App. 30, 38,
706 S.E.2d 807, 814 (2011). Rule 607 provides that “[t]he
credibility of a witness may be attacked by any party.” N.C.
Gen. Stat. § 8C-1, Rule 607 (2013). Specific instances of the
conduct of a witness, for the purpose of attacking the witness’s
credibility may, in the discretion of the trial court, be
inquired into on cross-examination of the witness if they are
probative of the witness’s character for truthfulness or
untruthfulness. N.C. Gen. Stat. § 8C-1, Rule 608(b) (2013).
However, “[e]ven if the trial judge allows the inquiry on cross-
examination, extrinsic evidence of the conduct is not
admissible.” State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84,
90 (1986).
Although the trial court allowed father to cross-examine
O.O. regarding the prior incident, the video depicting O.O.’s
conduct during the prior incident was not admissible to attack
O.O.’s credibility because it was extrinsic evidence. See id.We therefore conclude that the trial court did not err in
excluding the video.
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Father next argues the trial court erred when it
adjudicated O.O. a neglected juvenile. We disagree.
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).
A “neglected juvenile” is defined in part as “[a] juvenile
who does not receive proper care, supervision, or discipline
from the juvenile’s parent . . . or who lives in an environment
injurious to the juvenile’s welfare.” N.C. Gen. Stat.
§ 7B-101(15) (2013). An adjudication of neglect requires “there
be some physical, mental, or emotional impairment of the
juvenile or a substantial risk of such impairment as a
consequence of the failure to provide proper care, supervision,
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or discipline.” In re Safriet, 112 N.C. App. 747, 752,
436 S.E.2d 898, 901–02 (1993) (internal quotation marks
omitted). “Section 7B-101(15) affords the trial court some
discretion in determining whether children are at risk for a
particular kind of harm given their age and the environment in
which they reside.” In re C.M., 183 N.C. App. 207, 210,
644 S.E.2d 588, 592 (2007) (internal quotation marks omitted).
In the case sub judice, the trial court heard testimony
from both O.O. and father regarding the events occurring on 27
February 2013. Based on the evidence, the court found as
follows:
The Respondent/father awoke in the morning
as he usually does. He allowed the juvenile
to practice driving and was waiting in the
car when the juvenile left the house. There
was ice/frost on the windshield of the car.
The Respondent/father allowed the juvenile
to start the car. The juvenile began to
back up the car. The Respondent/father felt
that the juvenile was going to strike a
telephone pole and needed to scrape the
ice/frost off the windshield. The
Respondent/father provided the juvenile with
a scraper. The juvenile scraped the
windshield but not enough to where the
Respondent/father felt it was safe enough
for her to drive. There was an argument
wherein the juvenile got out of the motor
vehicle. The Respondent/father attempted to
forcefully place the juvenile back into the
vehicle. The juvenile did strike the
Respondent/father and fought the
Respondent/father. The juvenile ran to the
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front door to get away from the
confrontation with the Respondent/father.
Once inside the home the confrontation began
to escalate. Respondent/father grabbed the
juvenile forcefully, placed her on the couch
and told her she was going to listen to him.
The juvenile attempted to remove herself
from the couch and at each attempt the
Respondent/father forcefully kept the
juvenile from leaving the couch. Both
Respondent/father and the juvenile continued
to escalate the confrontation. Both the
Respondent/father and the juvenile were
physically assaulting the other. Both the
Respondent/father and the juvenile were
yelling and screaming at each other.
Eventually this led to another room of the
home at which time the Respondent/father
attempted to restrain the juvenile by
bending her hand backwards and at one point
when Respondent/father was trying to
restrain the juvenile he put his hands on
her neck area for a couple of seconds. The
Respondent/father indicated that the
juvenile was being disrespectful and told
the juvenile that she was not going to
school that day but was going to stay home
and think about what she had done. The
confrontation ended when the
Respondent/father left the home to move the
car. The juvenile ran outside and called
her mother on her cell phone. The
Respondent/father chased her, tackled her
and took her phone. The Respondent/father
finally took the juvenile to her school in
Charlotte, North Carolina. The school
officials noticed the juvenile was crying
and had minor scratches on her shoulder, a
swollen right hand, and bruising. The
school officials inquired as to what
happened and the juvenile told them the
injuries were caused by the
Respondent/father.
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In his challenge to the trial court’s adjudication of
neglect, father does not argue the court’s findings of fact are
lacking evidentiary support. Rather than contest the
evidentiary basis of the trial court’s findings of fact, father
“denies the finding that he physically assaulted [O.O.]” and
“denies choking or intentionally hurting his daughter.” He
argues “[t]he evidence showed that [father] attempted to
restrain his daughter to get her unruly behavior under control.
If [O.O.] got hurt in the process, it was due to her own
misconduct, and not any intentional or inappropriate action on
[father’s] part.” Father essentially claims the trial court
erred by finding O.O.’s testimony to be credible and by failing
to resolve evidentiary inconsistencies in his favor. The trial
court, however, was free to reject father’s testimony and give
credence to O.O.’s testimony, and we decline father’s invitation
to reweigh the evidence and substitute our judgment for that of
the trial court. See In re Whisnant, 71 N.C. App. 439, 441,
322 S.E.2d 434, 435 (1984) (stating that it is the trial court’s
“duty to weigh and consider all competent evidence, and pass
upon the credibility of the witnesses, the weight to be given
their testimony and the reasonable inferences to be drawn
therefrom”). Therefore, the trial court’s findings of fact
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based on O.O.’s testimony are binding on appeal. See In re
T.H.T., 185 N.C. App. at 343, 648 S.E.2d at 523.
In addition to the trial court’s findings of fact regarding
the altercation between O.O. and father on 27 February 2013, the
trial court found that O.O. has “anger issues,” has been
“combatant” with both father and her mother, and has been
involved in numerous altercations with family members. The
trial court further found as fact that:
[t]he animosity that has built up in the
juvenile towards the Respondent/father and
the Respondent/mother has caused these angry
outbursts from the juvenile. Based on prior
outbursts between the juvenile, the
Respondent/parents, and the siblings; [sic]
to return the juvenile to either parent
would lead to substantial risk of aggressive
behavior between the parties, create an
injurious environment, and place all parties
at risk of bodily harm.
The court finally found that father was “not capable of getting
the juvenile the help she needs.” Father does not challenge
these findings of fact, and they are thus binding on appeal.
See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991) (“Where no exception is taken to a finding of fact by the
trial court, the finding is presumed to be supported by
competent evidence and is binding on appeal.”). Based on the
foregoing, we conclude that the trial court’s findings of fact
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are sufficient to support its conclusion that O.O. is a
neglected juvenile. Accordingly, we affirm the trial court’s
order adjudicating O.O. a neglected juvenile.
Father next argues the trial court’s disposition order
erroneously modified the adjudication order by ordering that
O.O. was adjudicated both neglected and dependent when the
juvenile had only been adjudicated neglected.
There are “two phases in juvenile hearings——adjudication
and disposition.” In re Eades, 143 N.C. App. 712, 713,
547 S.E.2d 146, 147 (2001). An adjudication hearing in a
juvenile action is “a judicial process designed to adjudicate
the existence or nonexistence of any of the conditions alleged
in a petition.” N.C. Gen. Stat. § 7B-802 (2013). Whereas, the
purpose of a disposition hearing is to design an appropriate
plan to meet the juvenile’s needs and protect and promote public
safety. N.C. Gen. Stat. § 7B-2500 (2013).
Here, O.O. was adjudicated neglected during the
adjudication phase. It is therefore clear that the trial court
erred by ordering that O.O. was also adjudicated a dependent
juvenile during the disposition phase. It does appear, however,
that this was a mere clerical error. Accordingly, we remand the
disposition order for correction of this clerical error. See
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State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696
(2008) (“When, on appeal, a clerical error is discovered in the
trial court’s judgment or order, it is appropriate to remand the
case to the trial court for correction because of the importance
that the record speak the truth.” (internal quotation marks
omitted)).
Father further argues the trial court erred at disposition
by finding that “inappropriate discipline” was one of the
“problems” that led to the adjudication of neglect. We
disagree.
The trial court found as fact at adjudication that “neither
the Respondent/father nor the juvenile handled the situation
[which led to the adjudication of neglect] in an appropriate
manner.” We conclude that the trial court could thus properly
determine at disposition that “inappropriate discipline” was a
“problem” that led to the adjudication of neglect. Even
assuming arguendo that this finding was erroneous, it is
harmless error given that it appears to have had no impact on
the dispositional plan for father.
Affirmed; remanded for correction of a clerical error.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).