In re M.G.B.

IN THE MATTER OF: M.G.B., T.J.B., H.E.D.

No. COA22-389

Court of Appeals of North Carolina

February 21, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 30 January 2023.

Appeal by respondent-father from order entered 16 February 2022 by Judge Larry D. Brown, Jr., in Alamance County, Nos. 20 JA 46 20 JA 155-56 District Court.

Alamance County Department of Social Services, by Jamie L Hamlett, for petitioner-appellee Alamance County Department of Social Services.

Freedman Thompson Witt Ceberio &Byrd PLLC, by Christopher M. Watford, for respondent-father appellant.

North Carolina Administrative Office of the Courts, by Matthew D. Wunsche GAL Appellate Counsel, for Guardian ad Litem.

PER CURIAM.

Respondent-father ("respondent") appeals from an adjudication and disposition order adjudicating M.G.B. ("Mary") T.J.B. ("Travis"), and H.E.D. ("Holly")^[1] (collectively "the children"), to be neglected juveniles and Holly to be an abused juvenile and continuing custody of the children with the Alamance County Department of Social Services ("DSS"). For the following reasons, we affirm the trial court's order.

I. Background

Holly was born in September 2016 to Ms. C-D and respondent.^[2] Travis was born in December 2017 and Mary was born in July 2020 to Ms. E ("mother") and respondent.^[3] The children's family has significant history with DSS. In 2020, all three children were adjudicated neglected due to respondent's substance abuse issues and domestic violence between mother and respondent. That same year, the trial court granted the paternal grandmother ("grandmother") full legal and physical custody of Travis. In 2021, the trial court granted grandmother and respondent joint custody of Holly and Mary. Since then, the children have lived in grandmother's home with their paternal great uncle ("uncle"), who has a previous criminal charge for indecent exposure. At the time DSS became involved, respondent had been residing at grandmother's home for about a month.

Sometime in July 2021, Holly began complaining of discomfort and itching around her stomach, needing to urinate frequently, and vaginal discharge. On 21 July 2021, grandmother took Holly to the doctor where she tested negative for a yeast infection. Because Holly's symptoms persisted, grandmother took her to the doctor again on 4 August 2021, where Holly tested positive for the sexually transmitted infection gonorrhea.

Around 7 August 2021, DSS received the report that Holly had tested positive for gonorrhea. DSS gave grandmother the option for the children to stay in the family home or for respondent and the uncle to stay in the home. Grandmother decided she did not want respondent or uncle to be "without entertainment" and "without cable[,]" so it would be best to place the children with a family friend.

Grandmother and respondent were "adamant that the only people that were around the children were them[,]" and uncle, although he resided in the residence, was never alone with the children. Respondent and uncle underwent testing for sexually transmitted diseases. Respondent tested positive for gonorrhea and chlamydia, and uncle tested negative for any sexually transmitted diseases. Respondent provided several explanations to law enforcement for how Holly could have contracted gonorrhea, including that respondent's urine from inside the toilet could have splashed onto her, that she contracted gonorrhea by sitting on a toilet seat, or that respondent ejaculated into a towel and Holly used the towel to dry off after taking a bath. Despite his positive test for gonorrhea, grandmother "continued to deny there was a possibility of sexual abuse."

On 9 August 2021, grandmother picked the children up from the family friend and took them to UNC Hospital for medical testing without consulting DSS, despite knowing they had an open case and an investigation was imminent. Grandmother told medical staff she wanted the children tested for "venereal diseases" because she believed Holly's positive gonorrhea test was inaccurate and she wanted to clear the names of the men in the household.

At UNC Hospital, the children underwent sexual assault nurse examiner ("SANE") evaluations by nurse Tamara Matheson ("Nurse Matheson"). During the examination, Holly presented with "redness, swelling, and abnormal discharge" in the vaginal area. Mary also presented with abnormal discharge. Holly again tested positive for gonorrhea, but Travis and Mary tested negative for any sexually transmitted diseases. After the examinations of the children, DSS instructed UNC staff that the children were to be discharged to the family friend, and "not the grandmother," who had become uncooperative and was detained by UNC police, "cite[d] and release[d]."

On 10 August 2021, DSS filed petitions alleging the children were neglected juveniles and Holly was an abused juvenile and obtained nonsecure custody of the children. The petitions alleged grandmother was "persistent that nobody hurt the children and was in denial regarding [Holly] having [g]onorrhea." The petitions detailed DSS' concerns that grandmother was "not placing the physical or emotional well-being of the juveniles first." Furthermore, the petitions stated the children were "at risk of significant emotional and/or physical harm if they were returned to" grandmother's or respondent's care.

During forensic interviews in August 2021, Holly disclosed that respondent touched her with his "ding ding[,]" and identified a "ding ding" as a penis on a diagram. Holly also stated respondent hit her, and when asked where respondent hit Holly, she pointed to her vaginal area. Holly stated this "happened more than once and [respondent] said" not to tell anyone. On 14 September 2021, at the request of DSS, Dr. Andrea Theodore ("Dr. Theodore") conducted a Child Medical Evaluation ("CME") of Holly and Travis.^[4] During her CME, Holly reported that respondent had touched her genital area with his hand more than once.

The matters came on for adjudication and disposition hearings in the Alamance County District Court on 17 November 2021, 18 November 2021, and 19 January 2022, Judge Brown presiding. DSS presented three witnesses at the adjudication hearing: Nurse Matheson, Dr. Theodore, and Social Worker Latisha Logan ("Ms. Logan"). Grandmother also testified on her own behalf.

During the adjudication, Nurse Matheson described the special steps taken when conducting a sexual assault examination on a child, "so that it's not traumatizing for them." Nurse Matheson also spoke about how a SANE examination can be invasive, and how, although the exam itself might not be traumatizing, nurses "have to be careful not to re-traumatize patients." Dr. Theodore, tendered as an expert in pediatrics, also testified about her examinations of the children.

Dr. Theodore testified that despite grandmother and respondent's explanations for how Holly contracted gonorrhea, from a toilet seat or a towel, those explanations were unlikely. Rather, Dr. Theodore explained the most likely cause of transmission was sexual abuse, and based on her examination and Holly's medical history, she provided a medical diagnosis of "sexual abuse by [respondent][.]" At the close of DSS' evidence, respondent's attorney made a motion to dismiss the neglect petitions as to Travis and Mary. Respondent's motion was denied.

During the adjudication, grandmother also spoke. Grandmother testified that when she took the children to the doctors on 9 August, she requested they be checked for "venereal disease[s][,]" and she did not specifically request a SANE examination or even know what SANE stood for at the time. Grandmother stated she expected the doctors "to look at [the children][,]" to "check their urine and blood" and "check to see [if any of the children were] torn anywhere, bruised, scratched, or any of that stuff." Grandmother further stated she "wanted" a physical examination done on the children, not only to clear respondent's name, but also because of "rumors" going around. Grandmother, when asked in court whether she thought it was possible respondent abused Holly, stated, "[i]f you want to know the truth, . . . no, I don't." Lastly, grandmother confirmed she took the children to UNC despite knowing that DSS was going to begin their investigation "[b]ecause of the rumors[.]"

Following the hearings, the trial court adjudicated all three children neglected and Holly abused, in open court on 19 January 2022 and in a Juvenile Adjudication and Disposition Order filed 16 February 2022. Custody of the children was vested with DSS. Respondent filed notice of appeal on 22 February 2022.

II. Discussion

On appeal, respondent argues the trial court erred in adjudicating Travis and Mary as neglected juveniles because the adjudications were based solely on Holly's abuse^[5], without individualized findings that Mary and Travis suffered harm or a substantial risk of impairment, and therefore the trial court's disposition as to Mary and Travis should be vacated. We disagree.

"The allegations in a petition alleging that a juvenile is abused neglected, or dependent shall be proved by clear and convincing evidence." N.C. Gen. Stat. § 7B-805 (2022). This Court reviews an adjudication order "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) (citation omitted). The trial court's conclusions of law are...