Opinion
No. COA02-1238
Filed 2 September 2003 This case not for publication
Appeal by respondents from judgment entered 20 February 2002 by Judge Gary S. Cash in Buncombe County District Court. Heard in the Court of Appeals 23 April 2003.
Buncombe County Department of Social Services, by John C. Adams, for petitioner-appellee. Hall Hall, P.C., by Douglas L. Hall for respondent-appellant mother. Brynne VanHettinga, for respondent-appellant father. Judy N. Rudolph, for Guardian ad Litem.
Buncombe County No. 00 J 354.
Respondents Daniel Derreberry and Billie Derreberry appeal an Adjudication Judgment and Dispositional Order finding their adopted son Brandon Derreberry to be an abused and neglected child. Respondents argue on appeal (1) that evidence of Brandon's out-of-court statements constituted inadmissible hearsay; (2) that the trial court erroneously admitted unreliable expert opinion testimony; (3) that the court's order violated their constitutional right not to incriminate themselves; and (4) that certain findings of fact are not supported by the evidence. After a careful review of the record, we find no error in the admission of the challenged evidence, that the court's order was consistent with respondents' constitutional rights, and that the trial court's decision is fully supported by the evidence. We, therefore, affirm.
On 8 November 2000, petitioner, the Buncombe County Department of Social Services ("DSS"), filed a juvenile petition and summons alleging that Brandon Derreberry, who was then five years old, was abused and neglected. This petition arose out of reports that Mr. Derreberry was transporting Brandon to kindergarten in a motorized wheelchair on a public highway in the dark, early morning. DSS obtained a non-secure custody order, which was struck on 20 November 2000 after Mr. Derreberry entered into a protection plan with DSS. That plan provided that Mr. Derreberry would not remove Brandon from the jurisdiction of the court and would not transport the child on highways in his wheelchair.
Following an adjudication and dispositional hearing on 19 February 2001, the court entered an order on 20 March 2001 concluding that Brandon was a neglected child and granting custody of Brandon to DSS. Although the court directed that DSS had discretion to decide the proper placement for Brandon, the court "sanctioned" continued placement with Mr. and Mrs. Derreberry. In addition, after finding that Mr. and Mrs. Derreberry had removed Brandon from school, the court ordered that he be immediately enrolled in school.
On 22 March 2001, DSS filed a motion and order to show cause alleging that respondents had failed to enroll Brandon in school as required by the 20 March 2001 order. DSS removed Brandon from respondents' home on 4 April 2001 and placed him in foster care.
On 30 April 2001, the court held a hearing on petitioner's 22 March 2001 motion and on petitioner's subsequent motion for review. The court found that Mr. and Mrs. Derreberry had failed to comply with the court's prior dispositional orders in numerous respects, but that they were not in willful contempt of the order. The court concluded that it was in Brandon's best interests that he remain in DSS custody and that the orders from the prior dispositional hearing should remain in effect.
On 29 May 2001, DSS received a report that Brandon, who was then six years old, had been talking about a game he played with Mr. and Mrs. Derreberry suggesting sexual abuse. As a result of this report, DSS filed a motion to cease visitation on 30 May 2001. DSS received a second similar report on 6 June 2001. DSS social worker Naomi Kent interviewed Brandon after each report. After the 29 May 2001 report, Ms. Kent referred Brandon for a child medical evaluation ("CME") at Graham Children's Health Center. During Ms. Kent's 6 June 2001 interview with Brandon, he asked her a sexually-oriented question, then jumped up, pulled his pants down, and exposed himself to her.
At a hearing on petitioner's motion to cease visitation held on 15 June 2001, the parents objected to the introduction of the CME based on authenticity. The court therefore continued the hearing until the author of the report, Dr. Cyndi Brown, could appear. In addition, the court temporarily denied visitation. On 19 June 2001, DSS filed a new petition alleging that Brandon was abused in that his parents had "committed, permitted, or encouraged the commission of a sex or pornography offense with or upon the juvenile" and that he was neglected in that he lived "in an environment injurious to the juvenile's welfare." On 17 July 2001, the court issued a visitation order concluding that it was in the best interest of the child that visits between the child and respondents be temporarily suspended pending an investigation of the sex abuse allegations.
On 13 August 2001, the court conducted a permanency planning and review hearing and entered an order, based on that hearing, on 14 September 2001. In relevant part, the court ordered that custody of Brandon remain with DSS, that reunification continue as the permanent plan, that Brandon remain in therapy, and that visits between respondents and Brandon continue to be suspended.
The court held adjudication and dispositional hearings with respect to the June 2001 petition in September 2001 and November 2001. Following those hearings, the court entered an order filed on 20 February 2002, in which the court concluded as a matter of law that:
the minor child is a neglected and abused child pursuant to N.C.G.S. § 7B-101(1) and (15) in that he has lived in an environment with his parents that has been injurious to his health and has not received proper care and supervision from them and that his parents have created or allowed to be created serious emotional damage to Brandon as is evidenced by his aggressive behavior, and sexualized behavior towards others.
In the dispositional order, the court noted that after meeting with respondents on 1 August 2001, DSS had changed its plan from reunification to termination of parental rights and adoption. The court, however, declined to release DSS from reunification efforts, although the court did continue to suspend visits between Brandon and respondents. The court further ordered that custody remain with DSS "with placement in the discretion of the Department and a concurrent plan to explore placement of the minor child with a relative or court appointed care giver and adoption or reunification." Respondents have appealed from this order.
Standard of Review
In a non-jury adjudication of abuse or neglect, "the trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings." In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Any findings of fact not challenged on appeal "are deemed supported by competent evidence" and are binding on this Court. In re Padgett, ___ N.C. App. ___, ___, 577 S.E.2d 337, 340 (2003). This Court reviews the trial court's conclusions of law to determine whether they are supported by the findings of fact. Helms, 127 N.C. App. at 511, 491 S.E.2d at 676.
Once the trial court adjudicates a child as abused or neglected, the court moves to the dispositional stage at which it considers solely the best interests of the child. In re Pittman, 149 N.C. App. 756, 766, 561 S.E.2d 560, 567, disc. review denied, 356 N.C. 163, 568 S.E.2d 608 (2002), cert. denied, ___ U.S. ___, 155L. Ed.2d 673 (2003). We review that determination for abuse of discretion. Id.
Hearsay
Respondents contend that the trial court erred in admitting evidence of Brandon's statements to social workers, the guardian ad litem, and a nurse practitioner, arguing that this testimony constituted inadmissible hearsay. Both respondents argue further that the admission of this evidence violated their constitutional rights to confrontation under the Sixth Amendment to the United States Constitution and under Article 1, § 23 of the North Carolina Constitution. We disagree.
Respondents' assertion that the evidence of Brandon's out-of-court statements constituted hearsay is incorrect. Under Rule 801(c), hearsay "is a statement . . . offered in evidence to prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1, Rule 801 (2001). When offered for a purpose other than "to prove the truth of the matter asserted," the statement is not hearsay. State v. Grier, 51 N.C. App. 209, 214, 275 S.E.2d 560, 563 (1981) ("Notable examples of admissible non-hearsay include statements which are offered to prove only that the statement was actually made . . . .")
Here, Brandon's statements were admissible to show that he had sexual knowledge inappropriate for a six-year-old child. See, e.g., Kandler v. Dep't of Correction, 80 N.C. App. 444, 451, 342 S.E.2d 910, 914 (1986) (statement not hearsay when offered to show knowledge of plaintiff regarding policies); State v. Keys, 34 N.C. App. 739, 741, 239 S.E.2d 606, 607 (1977) (statement not hearsay when offered to show that defendant did not know endorsement was forged). While the statements would be hearsay although not necessarily inadmissible if offered to prove that sexual abuse in fact occurred, the statements do not constitute hearsay if admitted as evidence of Brandon's inappropriate sexual comments and conduct.
We also note that the trial court properly admitted social worker Naomi Kent's testimony regarding reports that she received in order to explain why DSS sought a cessation of visitation and filed a new petition. See, e.g., State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990) (mother could testify as to her daughter'sstatements in order to explain why the mother called the police).
Respondents contend that the trial court improperly relied upon the statements to establish that the events recited by Brandon actually occurred. In a bench trial, however, "the court is presumed to disregard incompetent evidence. Where there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial." In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175 (citations omitted), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). Under this principle, respondents bear the burden of showing that the trial court relied upon the out-of-court statements for "the truth of the matter asserted." See In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000) (in a bench trial, appellant must show that trial court relied on incompetent evidence in making its findings), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). Respondents have not met their burden. The trial court demonstrated its proper limited reliance when it found "[t]hat the statements and behaviors of Brandon indicate a sexual knowledge beyond his developmental age."
While respondents have pointed to the court's additional finding that in fact certain "things occurred," the court limited that finding to Brandon's "sleeping with his father while his mother slept elsewhere" and Brandon's playing inappropriate games with his parents. This finding is supported by the trial court's summary of Brandon's unrecorded testimony taken in chambers that appears in finding of fact 15, a finding to which respondents have not assigned error. Supportive evidence also appears in the CME. Respondents have, therefore, failed to demonstrate that the trial court relied upon Brandon's out-of-court statements as evidence of the "truth of the matter asserted."
In a separate argument, Mr. Derreberry contends that the CME amounted to inadmissible hearsay, although he acknowledges that he failed to object to the CME at trial. Our Rules of Appellate Procedure limit the issues that may be raised on appeal to those previously raised at trial and addressed by the trial tribunal. N.C.R. App. P. 10(b)(1). Mr. Derreberry urges, however, that this Court should review the CME's admissibility under the doctrine of "plain error." "Plain error" is a doctrine under which the appellate courts will, in criminal cases only, review certain types of trial errors notwithstanding violation of Rule 10(b)(1). See N.C.R. App. P. 10(c)(4). It is well-established that "plain error" does not apply in civil appeals. Raynor v. Odom, 124 N.C. App. 724, 732, 478 S.E.2d 655, 660 (1996) (not applicable in appeal of child custody case). Abuse, neglect, and dependency proceedings are civil proceedings. Pittman, 149 N.C. App. at 760, 561 S.E.2d at 564. In addition, N.C. Gen. Stat. § 7B-804 (2001) expressly provides that in such proceedings, "the rules of evidence in civil cases shall apply." The "plain error" doctrine is, therefore, inapplicable and since respondents did not object to the admission of the CME at trial, they may not challenge its admission for the first time on appeal.
Because we find that the statements relied upon by the trial court were not inadmissible hearsay, we need not address respondent's confrontation clause argument.
Expert Opinion
Respondent-father contends that the trial court erred by admitting unreliable expert opinion evidence. We disagree.
The expert evidence admitted at trial that Brandon was abused included the CME, the testimony of Dr. Cyndi Brown explaining the CME, and the testimony of Janice Costos, Brandon's therapist. Mr. Derreberry acknowledges that the trial court barred Beth Osbar, the nurse practitioner who performed the CME, from expressing an opinion during her testimony regarding whether Brandon was sexually abused.
Respondents did not object either to the admission of the CME or to Dr. Brown's testimony and they therefore have waived any challenge to this evidence. With respect to Ms. Costos, respondents objected at trial solely on the grounds of her qualifications. The record reveals that Ms. Costos has a master's degree in social work, is licensed as a clinical social worker, and has taken almost 70 hours of additional training related to child sex abuse and trauma and loss. The trial court acted within its discretion in determining that Ms. Costos was qualified to render her expert opinion. See In re Faircloth, 137 N.C. App. 311, 315, 527 S.E.2d 679, 682 (2000) (a trial court's decision that a witness is qualified to testify as an expert will not be overturned absent an abuse of discretion). In addition, Ms. Costos' opinion merely corroborated the evidence of Dr. Brown to which respondents did not object. State v. Hyman, 153 N.C. App. 396, 401, 570 S.E.2d 745, 748 (2002) (an objection to the admission of evidence is waived when the same or similar evidence is admitted without objection), cert. denied, 357 N.C. 253, ___ S.E.2d ___, (2003).
Respondents did not contend at trial that any of the testimony constituted an impermissible expert endorsement of Brandon's credibility as discussed in State v. Stancil, 355 N.C. 266, 559 S.E.2d 788 (2002). We do not, therefore, address that question.
Self-Incrimination
Mr. Derreberry next argues that the trial court's order impermissibly compelled respondents to incriminate themselves in violation of the Fifth Amendment of the United States Constitution and Article I, § 23 of the North Carolina Constitution. We disagree.
In support of this argument, Mr. Derreberry first points to the testimony of Marsha Ring, a forensic psychologist, regarding the need for "acceptance of responsibility." When Ms. Ring testified during the dispositional hearing, the DSS attorney asked Ms. Ring about a hypothetical situation involving an abused child and whether it would be appropriate for that child to have visitation with his parents under the circumstances. Neither respondent objected to this question. Ms. Ring responded that one of the issues she would have to address in determining the propriety of visitation would be: "Is there an acknowledgment of responsibility on the part of the parents[?]" This testimony does not implicate the Fifth Amendment because the witness has not compelled Mr. and Mrs. Derreberry to do anything.
In the dispositional order, however, the trial court found that "[t]he Court has no acknowledgment from either Respondent regarding their responsibility for Brandon's behavior found by the Court that support [sic] the adjudication order already entered in this matter." We do not believe, in the context of a dispositional hearing following an adjudication of abuse and neglect, that this finding amounts to a requirement of self-incrimination.
The trial court's duty at the dispositional phase was to design a plan to meet Brandon's needs in accordance with Brandon's best interests. N.C. Gen. Stat. §§ 7B-900, 901 (2001). The trial court first rejected DSS' and the guardian ad litem's recommendation that the trial court sanction a plan of termination of parental rights and adoption. Instead, the court found that the "best plan" was a "concurrent plan of placement with a relative or court approved caretaker, adoption, or reunification." (Emphasis added) In its next finding of fact, the court concluded "[t]hat it does not appear possible for the minor child to be returned home immediately or within the next six months due to his behaviors." The court noted respondents' lack of acknowledgment of responsibility solely to support this finding. The court then expressly provided that DSS "is not released from reunification efforts and that visits between the minor child and the parents shall be suspended at this time."
The Fifth Amendment states: "No person . . . shall be compelled in any criminal case to be a witness against himself." While a court could not, in a criminal case, base its decision on the criminal defendant's silence, this case is not a criminal case. This Court has previously held that a person's Fifth Amendment right to remain silent is inapplicable in a civil abuse and neglect proceeding. Pittman, 149 N.C. App. at 760, 561 S.E.2d at 564. The trial court's reliance upon Mr. and Mrs. Derreberry's failure to acknowledge responsibility did not, therefore, violate their Fifth Amendment right to remain silent.
Mr. Derreberry argues, however, that the trial court has effectively conditioned visitation on acknowledgment of responsibility and undergoing therapy. He has not articulated in what manner a requirement of therapy violates the Fifth Amendment. In orally urging Mr. and Mrs. Derreberry to undergo therapy, the court did not compel them to make any "testimonial communication." Baltimore City Dep't of Social Servs. v. Bouknight, 493 U.S. 549, 554, 107 L.Ed.2d 992, 999 (1990) ( Fifth Amendment's protection applies only when accused is compelled to make an incriminating testimonial communication). Although the court's ultimate order does not include a requirement of therapy, the court could properly have mandated therapy under N.C. Gen. Stat. § 7B-904 (2001) and such a provision would not have violated the Fifth Amendment. As the United States Supreme Court has ruled, "the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws." Bouknight, 493 U.S. at 556, 107 L. Ed.2d at 1000. State abuse and neglect regulations fall within such a "regulatory regime." Id. at 559, 107 L. Ed.2d at 1002-03.
With respect to visitation, the record contains ample evidence that the trial court's decision to bar visitation was not an abuse of discretion. While in some abuse or neglect proceedings, the facts may be sufficient to support criminal proceedings, a trial court considering custody and visitation is not required to disregard a parent's refusal to acknowledge the conditions that led to the finding of abuse or neglect. As this Court stated in Pittman, "the child's interest in being protected from abuse and neglect is paramount." 149 N.C. App. at 761, 561 S.E.2d at 564.
A parent's protected interest in the companionship, custody, care, and control of his or her child "is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child." Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). The trial court, in deciding whether to allow the parent custody or visitation, should not be precluded from inquiring into the willingness of the parent to act in the best interest of the child, which includes consideration whether the parent recognizes that a problem existed previously that resulted in abuse or neglect. To the extent that such an inquiry results in incriminating statements, the compelled nature of those statements may preclude their use in any criminal proceedings. Bouknight, 493 U.S. at 561-62, 107 L.Ed.2d at 1004 (the inability to resist a state's testimonial requirement in connection with civil proceedings as to the custody of a child "may give rise to corresponding limitations upon the direct and indirect use of that testimony" in subsequent criminal proceedings); Pittman, 149 N.C. App. at 761, 561 S.E.2d at 564 (although mother was barred from moving to suppress her statement under the Fifth Amendment in an abuse and neglect proceeding, she may move to suppress it in any subsequent criminal proceeding).
Because we find that the trial court did not violate respondents' right to be free from self-incrimination, this assignment of error is overruled.
Sufficiency of the Evidence
Finally, respondents both argue that the evidence does not support the trial court's findings of fact. We disagree.
Respondents first argue that there is no evidence to support the court's finding that DSS "has a significant history with this family dating back to 1974." The psychological assessments of both Mr. and Mrs. Derreberry contain admissions by Mrs. Derreberry consistent with this finding. We further find that even if this finding had not been supported, its inclusion was not material to the trial court's ultimate decision.
Respondents also argue that there is no evidence to support finding of fact 11 regarding Brandon's inappropriate behavior at school. While the finding of fact identifies the wrong DSS social worker as the source of the information, any error is harmless. The specific information contained in finding of fact 11 is amply supported by extensive documentation in the record. The precise identity of the source of the information was not material under the circumstances of this case.
Respondents contend that finding of fact 19 should be stricken since there is no evidence that Brandon made "consistent" statements about sleeping with his father and playing inappropriate games with his parents. After reviewing the record, we find competent evidence to support this finding. In addition, respondents have not assigned error to finding of fact 15, which states:
That Brandon testified in chambers and doesn't remember what the butt naked game is. He says that he played doctor with his dad and that mom was present. Brandon stated he likes to play the weenie game with mom and dad, and he knows "weenie" is a private part. That the questions make him feel uncomfortable, that it is not hard to talk about the games, but that he doesn't want to talk about it right then.
Although Brandon's testimony was not recorded, the attorneys for all parties were present during the in-chambers interview. Since the parties did not object to this finding, this finding is conclusive on appeal. Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002) ("[F]indings of fact to which plaintiff has not assigned error and argued in his brief are conclusively established on appeal."). This finding in turn supports finding of fact 19.
Finally, respondents challenge the trial court's conclusion that respondents have "created or allowed to be created serious emotional damage to Brandon as is evidenced by his aggressive behavior, and sexualized behavior towards others." The record contains substantial evidence of Brandon's aggressive behavior and sexualized behavior towards others. With respect to respondents' responsibility for the emotional damage that has led to that behavior, the record contains evidence that this behavior began and was continuing while Brandon was living with respondents. In addition, Brandon, during his testimony reported in finding of fact 15, connected respondents with the behavior that led to the emotional damage. We thus find the trial court's decision to be fully supported by competent evidence.
Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).