No. COA 05-1417 NINTH JUDICIAL DISTRICT

1

No. COA 05-1417 NINTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

IN THE MATTER OF:)

K. A. (D.O.B. 6/13/99))

) From Vance County

) 04 J 91

)

****************************************************

RESPONDENT-APPELLANT FATHER’S BRIEF

****************************************************

1

INDEX

TABLE OF AUTHORITIES ……………………………………… iii

QUESTIONS PRESENTED …………………………………………1

STATEMENT OF THE CASE ………………………………………3

STATEMENT OF GROUNDS FOR APPELLATE REVIEW ……...4

STATEMENT OF THE FACTS ……………………………………..5

ARGUMENT ……………………………………………………….17

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO STATE IN THE WRITTEN ADJUDICATION ORDER THE STANDARD OF PROOF USED IN MAKING ITS DETERMINATION OF ABUSE AND NEGLECT THAT THE ALLEGATIONS OF THE PETITION WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE IN VIOLATION OF THE STATUTORY MANDAGE OF N.C.G.S. §7B-807. ……………………………………17

II.THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING INADMISSIBLE HEARSAY OF THE 5 YEAR OLD MINOR CHILD'S OUT OF COURT STATEMENTS WHEN THE MINOR CHILD DID NOT TESTIFY, DEPRIVING RESPONDENT-APPELLANT THE OPPORTUNITY TO CROSS-EXAMINE THE MINOR CHILD IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, AND RELYING ON SUCH INADMISSIBLE HEARSAY TO ADJUDICATE THE MINOR CHILD AS AN ABUSED AND NEGLECTED JUVENILE WITHOUT SUFFICIENT CLEAR, COGENT, AND CONVINCING EVIDENCE. …………………………………………..19

1. THE TRIAL COURT ABUSES ITS DISCRETION WHEN IT ENTERED THE DISPOSITION ORDER AWARDING LEGAL AND PHYSICAL CUSTODY OF THE MINOR CHILD TO HER MATERNAL GRANDPARENTS, ORDERING THAT RESPONDENT-APPELLANT FATHER HAVE NO CONTACT WITH THE MINOR CHILD, AND ORDERING THAT VCDSS BE RELEASED FROM ITS OBLIGATION TO CONTINUE REUNIFICATION EFFORTS WITH RESPONDENT-APPELLANT FATHER WITHOUT COMPLYING WITH THE STATUTORY REQUIREMENTS OF N.C.G.S. §7B-906 and 7B-907TO CONDUCT REVIEW AND PERMANENCY PLANNING HEARINGS FOLLOWING ADJUDICATION AND DISPOSITION………………………………………..36

CONCLUSION ……………………………………………………………38

CERTIFICATE OF WORD COUNT ……………………………………..39

CERTIFICATE OF SERVICE …………………………………………….40

TABLE OF AUTHORITIES

CASES

Blankenship v. Town &Country Ford, Inc., 155 N.C. App. 161, 574 S.E.2d 132 (2002), disc. review denied, 357 N.C. 61, 579 S.E.2d 384 (2003) ………………37

Clark v. Clark, 301 N.C. 123, 129, 371 S.E.2d 58, 63 (1980))…………………37

Furtado v. Bishop, 604 F. 2d 80 (1st Circuit, 1979), cert. denied, 444 U.S. 1035 (1980)……………………………………………………………………………..34

In re Alexander, 158 N.C.App. 522, 581 S.E.2d 466 (2003) …………………….18

In re Anderson, 151 NC App. 94, 564 S.E.2d 599 (2002) ……………………….18

In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000) ………………………18

In re Eades, 143 N.C. App. 712, 547 S.E. 2d 146, (2001) ………………………18

In re Everette, 133 N.C. App. 84, 514 S.E.2d 523 (1999) ……………………….27

In re Lambert-Stowers, 146 N.C. App. 438, 552 S.E.2d 278 (2001) …………….18

In re J.A.G. ____ N.C.App. _____ , 617 S.E.2d. 324 (2005)…………………….18

In re J.B. ___ N.C.App. ____, 616 S.E.2d 264 (N.C. App. 2005) ……………….37

In re Pittman, 149 N.C. App. 756, 561 S.E.2d 560 (2002) ………………………17

In re Smith, 146 N.C. App. 302, 552 S.E.2d 184 (2001) …………………………17

In re Weiler, 158 N.C. App. 473, 581 S. E. 2d 134 (2003) ………………………37

State v. Aguallo, 322 N.C. 818, 370 S.E.2d 676 (1988) ………………………….26

State v. Agubata, 92 N.C. App. 651, 375 S.E.2d 702, 705 (1989) …………...32, 33

State v. Bush, 164 N.C. App. 254, 595 S.E.2d 715 (2004) ……………………….27

State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998)..……………………………..20

State v. Couser, 163 N.C. App. 727, 594 S.E.2d 420 (2004) ……………28, 29, 30

State v. Dick, 126 N.C. App. 312, 485S.E.2d 88, disc. review denied, 346 N.C. 551, 488 S.E.2d 813 (1997)

State v. Dixon, 150 N.C. App. 46, 563 S.E.2d 594 (2002) ………………………25

State v. Ewell, 168 N.C.App 98, 606 S.E.2d 914 (2005)………………………….24

State v. Fearing, 315 N.C. 167, 337 S.E.2d 551 (1985)…………………………..33

State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179, per curiam aff'd, 356 N.C. 428, 571 S.E.2d 584 (2002) ……………………………………………………..26

State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985)…………………………….36

State v. Heath, 316 N.C. 337, 341 S.E.2d 565 (1986) ……………………………25

State v. Hinnant, 351 N.C. 277, 523 S.E.2d 663 (2000) ……………………22, 23

State v. Gainey, 355 N.C. 73, 558 S.E.2d 463, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002)…………………………………………………………………20

State v. Sims, 161 N.C. App. 183, 588 S.E.2d 55 (2003) ………………………...36

State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985)…………………32, 33, 34, 35

State v. Stancil,355 N.C. 266, 559 S.E.2d 788 (2002) …………………………..25

State v. Trent, 320 N.C. 610, 359 S.E.2d 463 (1987) …………………………….26

State v. Triplett, 316 N.C. 1, 340 S.E. 2d 736 (1986) …………………………….31

State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388, (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001) ……………………………………19

Strickland v. Doe, 156 NC App. 292, 577 S.E. 2d 124, review denied, 357 N.C 169 (2003) …………………………………………………………………………….31

STATUTES

N.C.G.S. § 1A-1, Rule 56(e) ……………………………………………………..32

N.C.G. S. § 7B-807 (2003) ……………………………………………………….18

N.C.G.S. § 8C-1, Rule 702(a) (2003) …………………………………………….25

N.C.G.S. § 8C-1, Rule 801(c) (2003) …………………………………………….20

N.C.G.S. § 8C-1, Rule 802 (2003) ……………………………………………….20

N.C.G.S. § 8C-1, Rule 803(4) …………………………………………..22, 24, 34

N.C.G.S. § 8C-1, Rule 803(24) ………………………………………22, 24, 32. 33

N.C.G.S. § 8C-1, Rule 804(b)(5………………………………………….31, 32. 33

N.C.G.S. § 8C-1, Rule 1101(a) …………………………………………………...21

N.C.G.S. § 8C-1, Rule 1101(b) ………………………………………………...21

N.C.G.S. N.C.G. S § 7A-517(21) ………………………………………………...19

N.C.G. S. § 7B-101 (9) …………………………………………………………...25

N.C.G. S. § 7B-101 (15) ……………………………………………………...18, 19

N.C.G. S § 7B-302 ……………………………………………………………….18

N.C.G.S. 7B-805 .………………………………………………………………...17

N.C.G.S. § 7B=1003 ……………………………………………………….…….27

1

Questions Presented

1. DID THE TRIAL COURT COMMITT REVERSIBLE ERROR BY FAILING TO STATE IN THE WRITTEN ADJUDICATION ORDER THE STANDARD OF PROOF USED IN MAKING ITS DETERMINATION OF ABUSE AND NEGLECT THAT THE ALLEGATIONS OF THE PETITION WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE IN VIOLATION OF THE STATUTORY MANDATE OF N.C.G.S. §7B-807?

1. DID THE TRIAL COURT COMMITT REVERSIBLE ERROR BY ALLOWING INADMISSIBLE HEARSAY OF THE 5 YEAR OLD MINOR CHILD'S OUT OF COURT STATEMENTS WHEN THE MINOR CHILD DID NOT TESTIFY, DEPRIVING RESPONDENT-APPELLANT THE OPPORTUNITY TO CROSS-EXAMINE THE MINOR CHILD IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, AND RELYING ON SUCH INADMISSIBLE HEARSAY TO ADJUDICATE THE MINOR CHILD AS AN ABUSED AND NEGLECTED JUVENILE WITHOUT SUFFICIENT CLEAR, COGENT, AND CONVINCING EVIDENCE?

1. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT ENTERED THE DISPOSITION ORDER AWARDING LEGAL AND PHYSICAL CUSTODY OF THE MINOR CHILD TO HER MATERNAL GRANDPARENTS, ORDERING THAT RESPONDENT-APPELLANT FATHER HAVE NO CONTACT WITH THE MINOR CHILD, AND ORDERING THAT VCDSS BE RELEASED FROM ITS OBLIGATION TO CONTINUE REUNIFICATION EFFORTS WITH RESPONDENT-APPELLANT FATHER WITHOUT COMPLYING WITH THE STATUTORY REQUIREMENTS OF N.C.G.S. §7B-906 AND 7B-907 TO CONDUCT REVIEW AND PERMANENCY PLANNING HEARINGS FOLLOWING ADJUDICATION AND DISPOSITION?

STATEMENT OF THE CASE

On 1 September 2004, Vance County Department of Social Services ("VCDSS") filed a Juvenile Petition alleging that K. A. was an abused and neglected juvenile. Specifically, the Petition alleged that K. A.'s, father, Dennis A., had sexually abused his daughter, (R. pp. 2-5) The Court entered an Order for Non-secure Custody on 31 August 2004, giving VCDSS custody of K. A. (R. p. 8) Dennis A. was served on 4 September 2004.

A series of Non-Secure Custody hearings were held on 8 September 2004 (R. pp. 10-11), 22 September 2004 (R. pp. 12-13), 6 October 2004 (R. pp. 14-15), 20 October 2004 (R. pp. 16-17), 3 November 2004 (R. pp. 18-20), and 8 December 2004 (R. p. 24)

The Adjudication Hearing started on 5 January 2005 (R. pp. 25-26, T. pp. 4-152), and was continued to 19 January 2005 (R. pp. 27-28, T. pp 153-158), and again to 18 February 2005. (R. pp. T. pp. 159-243) On 18 February 2005, K. A. was adjudicated an abused and neglected juvenile. (T. pp. 235-236 The Adjudication Order was signed on 14 April 2005, and filed on 18 April 2005 (R. pp. 57-59) The Disposition Order was signed, and filed on 27 April 2005. (R. pp. 65-68) Respondent-Appellant Father filed written Notice of Appeal on 10 May 2005. (R. pp. 70-71)

The Appellate Entries were signed on 18 April 2005. (R p. 62) The transcript was ordered on 9 May 2005. (R. p. 37) Janet K. Ledbetter was appointed Appellate Counsel for Respondent-Appellant Father on 19 May 2005.

The transcript was delivered on 9 August 2005. The Record of Appeal was filed with the Court of Appeals on 28 October 2005, docketed on 10 November 2005, and the Printed Record on Appeal was mailed on 15 November 2005.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This Court has jurisdiction pursuant to N.C.G.S. §7B-1113 and 1001(3) as grounds for appellate review.

STATEMENT OF THE FACTS

K. A., age 5 1/2, is the biological daughter of Respondent Mother Kim N. and Respondent-Appellant Father Dennis A., (R. p. 5) On 30 August 2005, Angela N., Respondent Mother's sister, filed a report with Officer K. M. Reddick of the Henderson, NC Police Department alleging that Noah S., her son, age 3, and K. A., her niece, told her that they had been sexually abused by the Respondent-Appellant Father. Angela N.'s son. Noah S. and K.A. allegedly told her that Respondent-Appellant Father Dennis A. "made them put their mouth on his penis, … but no physical sexual activity actually took place." (R. pp. 30-32, T. pp. 32-33) When the Henderson Police Department interviewed Respondent Mother Kim N. on 8 September 2005, she said that the allegations were not true because nothing had happened. The Henderson Police Department also interviewed Respondent-Appellant Father on 8 September 2005, and he stated that he "had no idea why the kids would say this…" He denied ever touching the two children. The Mother and Respondent-Appellant Father both think that the children made this up. (R. p. 33, 54, T. pp. 34-35, 39)

Detective Raymond Stancil of the Henderson Police Department obtained an arrest warrant for Respondent-Appellant Father on 28 September 2004, after receiving his criminal history from Florida. On 18 October 1999, Respondent-Appellant Father pled guilty to charges of lewd lascivious behavior, false imprisonment on child, sex offense against child fondling, and battery. (R. pp. 34-36, T. pp. 46-49) Respondent-Appellant Father was arrested for one count Failure to Register as Sex Offender and two counts Indecent Liberties with Child.(R. pp. 37-38)

Angela N.'s written statement dated 2 September 2004 reads:

"On August 30, 2004, her son Noah S, told her that Dennis A. (my sister's boyfriend) made him eat his "doo doo" (penis)… and started touching his privates. Angela N. took Noah S. over to Ramona N, her other sister's house, so Noah S. could tell Ramona what Dennis A. had done to him. When Angela N. arrived at Ramona's house, Ramona told Angela N. that K. A. had told her teenage cousins that Dennis A. had been molesting her. Angela N. and Ramona N. got two dolls, one female and one male, and took each child in a room separately so they could demonstrate what Dennis A. did to them. K. A. was told that the female doll was her, and the male doll was her father. In response to the question, "What did your daddy do?" K. A. allegedly stated "Yes" when Angela N. put the face of the female doll down to the genitals area of the male doll. Then K. A. placed one doll on the bed at a time face to face.K. A. also allegedly said that her father takes his pee pee out and places it on her. (R. p. 42)

At the Adjudication Hearing held on 5 January 2005, Detective Raymond Stancil of the Henderson Police Department testified that he never interviewed or talked with K. A. (T. p. 29) He relied on an Incident Report filed by Angela N. reported to Officer K. M. Riddick, a patrol officer with the Henderson Police Department on 30 August 2004 and Angela N.'s written statement. (T. p. 31, 42) Respondent-Appellant's attorney made continuing objections to any statements made by K.A. reported by Angela N in the Incident Report and her written statement on the grounds of inadmissible hearsay. (T. pp. 31, 32, 34, 37)

Detective Raymond Stancil's testimony covered his interview with Angela N. , interviews with Respondent-Appellant Dennis A. and Respondent Kim N. and Respondent-Appellant Dennis A.'s criminal record and the circumstances of Respondent-Appellant Dennis A.'s arrest. (T. pp. 28-89) During his testimony Detective Stancil confused the names while reading from Angela N.'s written statement, stating that K.A. said that "Dennis made me eat his do-do," when those statements were actually made by Noah S., Angela N.'s son. (T. p. 67) Detective Stancil testified that he contacted Rhonda Hopkins after he got the initial report and asked her to interview K. A. and Noah S. because he didn't feel capable or professional enough with a three-year-old and a five-year-old. Rhonda Hopkins report supported Detective Stancil's decision to obtain an arrest warrant for Respondent-Appellant Dennis A. (T. pp. 63-64)

According to the Case Summary dated 1 September 2004, by Rhonda Hopkins, RN PFNE, K. A. has no ongoing or chronic health problems. Although she has expressed a fear and has nightmares of a monster getting her, she had not been withdrawn, sad, or depressed. She has not been exhibiting such things as bedwetting, playing with or rubbing her genitalia, or sexualized behavior, such as touching other children or adults. K. A. lives at home with her mother, Kim N. and her father, Dennis A., who are both deaf and communicate with K. A. by sign language. K. A. is in Kindergarten, and has been doing very well in school. The school has not raised any concerns about her behavior or academic progress. K. A. is in the care of one of her maternal aunts, Ramona N. or Angela N. when her parents are away from home. (R. p. 44)

K. A.'s genital exam conducted by Rhonda Hopkins revealed no TEARS (Tears, Ecchymosis, Abrasions, Redness, Swelling). Her vaginal area displayed normal variances. Rhonda Hopkins indicated that "An absence of physical findings does not rule out the possibility of sexual abuse." (R. p. 45) During the Adjudication Hearing, Rhonda Hopkins testified that she used a colposcope, a camera that has different magnifications on it, used in every sexual abuse case in the physical examination, and it is used to look at the genital area. She found nothing wrong with K. A.'s hymen. (T.p. 129)

During her interview with Rhonda Hopkins, K. A. allegedly said that her father, Dennis A. "Put that on this." (Pointed to the male's penis and the female's vagina) K. A. saw her father touch Noah on the buttocks with his arm one time. She said that her father touched her "on her wee wee with his wee wee" one time. (R. p. 46) Rhonda Hopkins' testimony was that K. A. said the incident only occurred one time, and K. A. never said when it happened. (T. 129, 143)

Rhonda Hopkins testified that she is a forensic nurse examiner with an associate degree in cursing. She has a certification in adult and adolescent forensic nursing, and a certification in pediatric forensic nursing. She was the primary interviewer at Maria Parham Hospital for children involving sexual abuse allegations. (T. 91) She testified that:

"The interviews usually consist of an introduction of who I am, and then we talk about different rules of the interview, such as telling the truth and it's okay to say that they don't know the answer. Things like that. And then it's basically just a conversation with the4 child about their home, school, and about their body parts and labeling their body parts and just talking with the child." (T. p. 91)

Rhonda Hopkins interviewed K. A. on 1 September 2004 due to allegations of sexual abuse by her biological father based on a referral made by Tamika Tripel with Child Protective Service in VCDSS. (T. p. 92) The interview with K. A. lasted approximately 36 minutes and no one else wass present during the interview. Rhonda Hopkins' conclusions are based on the interview information, including the disclosures or non-disclosures made by the child, as well as a medical examination. (T. p. 93) The first topic discussed with K. A. during the interview was the rules for being there, which included telling the truth. The interview consists of a general conversation to see if the child will tell me on their own.

Respondent-Appellant's attorney objected to Rhonda Hopkins testifying as to what K. A. said, and the trial judge overruled the objection saying "…I suggest, to read the latest cases over the last three or four year. That will tell you fairly clearly that under these circumstances, the admissibility of these type statements. (T. p. 97)

Rhonda Hopkins disclosed during her testimony that she had obtained some information through a caregiver questionnaire from Ramona N., the maternal aunt, when K. A. came into the office. Ramona N. provided information that K. A. had expressed a feat of "a monster is after her." K. A. had been having nightmares over the last two years about a monster getting her. She throws temper tantrums when the mother and aunt leave her a home when they go somewhere. K. A. has not been withdrawn, sad or depressed. She has not been exhibiting such things as bed wetting, playing with or rubbing her genitalia, or sexualized behavior such as touching other children or adults. (R. pp. 44-47, T. p. 97)

Rhonda Hopkins assessed if K. A. knew her positions, like the meaning of above, behind, and under. K. A. labeled the body parts and what each did on the anatomical female drawing. (T. p. 98) Prior to Rhonda Hopkins testifying about what K. A. said, Respondent-Appellant's attorney objected and conducted a voir dire of Rhonda Hopkins to establish a record about the purpose of the interview and medical examination. (T. p. 99) Rhonda Hopkins testified that the purpose of the interview with K. A. was because of the allegations, and there was no medical exam or diagnosis being made from K. A.'s statements (T. p. 100) The purpose of the interview was not made for a medical diagnosis and Rhonda Hopkins did not provide a medical diagnosis. (T. p. 102) After the voir dire, Respondent-Appellant's attorney made a Motion to Suppress any statements made by K. A., and renewed his objections on the basis of inadmissible hearsay because the interview was not for the purpose of medical diagnosis. (T. p. 103, 104) The trial court denied Respondent-Appellant's attorney's Motion to Suppress K. A.'s statements made to Rhonda Hopkins. The Respondent-Appellant's attorney made an ongoing continuing objection to any statement by the child. (T. p. 105)

Rhonda Hopkins testified that the first anatomical drawing K.A. went over was the female child drawing, and then upon K. A. 's request "I want to do a boy," they did a male drawing. Rhonda Hopkins did the labeling and K. A. did the markings on one anatomical drawing of a boy as shown on Petitioner's Exhibit No. 7. (R. p. 43, T. p. 106-107) The frontal male anatomical drawing has an X marked over the male private parts, and the words "wee-wee, nasty" and "touched her wee-wee with his arm." The posterior male anatomical drawing has an X marked over the buttocks with the marked out words "where her father touch Noah," "She saw him," and the word "arm" with a line. (R. p. 43) Rhonda Hopkins testified that after they labeled all the private parts, she asked

K. A. "who taught her about her private parts." And she said, 'My father does. Give me the boy paper." And that's when she took the boy paper that she had already labeled, and she said "That's the father and that's me." And she said "he put that on this." And she pointed to his penis and her vagina by using the photographs.

Petitioner moved to enter Rhonda Hopkins' Case Summary, Exhibit 8 into evidence, Respondent-Appellant's attorney objected because the hearsay statements contained in a report would be admissible. (R. pp. 44-47, T. p. 114) The trial court overruled his objection and admitted Rhonda Hopkins' Case Summary into evidence. (T. p. 115) When Petitioner asked Rhonda Hopkins to make a conclusion regarding abuse based on the interview and the physical examination, Respondent-Appellant's attorney objected that she could not give her opinion with regards to sexual allegations. (T. p. 115-118)

Rhonda Hopkins further testified that when there is no physical evidence her conclusions are based solely and strictly on the disclosure of the child. (T. pp. 122, 123) She stated that she didn't "make a conclusion that sexual abuse has occurred. I say that it is unknown but suspicious based on her disclosure." (T. p. 124) Rhonda Hopkins acknowledged that it's typical for a five-year-old to be inconsistent, and that during the interview, K. A. did not mention anything about her father placing his penis in her mouth. (T. p. 126)

At the Adjudication Hearing held on 18 February 2005, Angela N., K.A.'s aunt testified at the Adjudication Hearing that she went over to her sister, Ramona N.'s house, Ramona N. told her that K.A. had been touched by her father. The two aunts took K. A. into a room with two dolls. She told K. A. that the male doll represented her father and the female doll was her. Angela N. did certain gestures with the dolls. She put the dolls face to face and K. A. stated no. She put one in front of the other and K. A. stated no. When she put the female doll's head to the genitals of the male doll K. A. said yes. Respondent-Appellant's attorney objected the statements made by K. A. (T. pp. 167-168) After the demonstration, Angela N. went to the police and talked to an officer and Detective Stancil. (T. p. 169-170) Angela N. testified that she gave the typewritten statement dated 2 September 2004 to Detective Stancil. (T. p. 171, Petitioner's Exhibit No 6, R. p. 42) Respondent-Appellant's attorney objected to the hearsay statements made by K. A. in Angela N.'s written statement. (T. p. 171)