{ "id": 11094321, "name": "IN THE MATTER OF: APRIL COGDILL, MARK COGDILL, minor children", "name_abbreviation": "In re Cogdill", "decision_date": "2000-04-18", "docket_number": "No. COA99-1051", "first_page": "504", "last_page": "511", "citations": [ { "type": "official", "cite": "137 N.C. App. 504" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "361 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "321 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566911 ], "year": 1987, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0102-01" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "year": 1997, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "347 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776226, 4773993, 4779341, 4777006, 4779249 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0703-04", "/nc/317/0703-01", "/nc/317/0703-05", "/nc/317/0703-02", "/nc/317/0703-03" ] }, { "cite": "339 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520193 ], "year": 1986, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0250-01" ] } ], "analysis": { "cardinality": 585, "char_count": 17453, "ocr_confidence": 0.756, "pagerank": { "raw": 1.4341037488291752e-07, "percentile": 0.6518758429545506 }, "sha256": "2bdfd45f5d407a79e35d9268bc973b56334b7ef366ca756ea90ebd0bbf3c259e", "simhash": "1:28fd424a77c48e76", "word_count": 2838 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EDMUNDS and SMITH concur." ], "parties": [ "IN THE MATTER OF: APRIL COGDILL, MARK COGDILL, minor children" ], "opinions": [ { "text": "GREENE, Judge.\nLinda Cogdill (Respondent) appeals an order filed 16 December 1998 adjudicating April Cogdill (April) an abused and neglected child, and adjudicating Mark Cogdill (Mark) a neglected child.\nThe evidence shows that on 23 February 1998, petitions were filed by Buncombe County Department of Social Services (DSS) alleging April, the twelve-year-old daughter of Respondent, was an abused and neglected juvenile, and Mark, the nine-year-old son of Respondent, was a neglected juvenile.\nAt a 31 July 1998 hearing on the petitions, Cynthia Brown, M.D. (Dr. Brown) testified she was employed as the medical director of the Child Advocacy Center (the Center), and in January of 1998 she saw April and Mark at the Center for the purpose of conducting child medical examinations on them. Dr. Brown testified a child medical examination includes an interview with the child and the family, and a complete examination of the child. She stated the examinations were initiated because \u201cApril had disclosed to [Kay McCauley (McCauley), a social worker with DSS] that her father had . . . asked her to touch his penis.\u201d During Dr. Brown\u2019s interview of April, April told Dr. Brown her father had \u201c \u2018said stuff to [her] and [her] cousin, .' . . [Ashley],\u2019 \u201d and Ashley had told April that April\u2019s father had asked Ashley \u201c \u2018to touch his privates\u2019 \u201d and she had told him \u201c \u2018 \u201cno.\u201d \u2019 \u201d April also told Dr. Brown that her father had \u201c \u2018asked [her] to look at a book\u2019 \u201d and the book was a \u201cdirty book.\u201d When asked by Dr. Brown whether she had ever been asked by her father to touch his \u201cprivate parts,\u201d April responded \u201c \u2018no.\u2019 \u201d Dr. Brown testified that her examination of April revealed \u201cno abnormal findings,\u201d and she stated that if a child is sexually abused by being fondled there is often no physical evidence of abuse.\nMcCauley testified that on 13 September 1997, DSS received a report regarding April and Mark. The report indicated the Asheville Police Department had been contacted and told there were some problems at the children\u2019s residence, and when an officer arrived at the residence he found April\u2019s father chasing April down the road. April told the officer she would not return home with her father. McCauley was then assigned to investigate the incident, and April told McCauley she refused to return home with her father because he \u201cwas asking her to look at and touch at his thing.\u201d April stated her father \u201cwould ask her to come into the basement to help him clean the basement, and then he would show her his thing and ask her to touch it.\u201d April told McCauley that her cousin, Ashley, was also in the basement when this incident occurred.\nMcCauley testified that as a result of her investigation, April was taken to Respondent\u2019s home, and Respondent told McCauley \u201cthat April had told her that her father would come in and put his hand under the blanket when she was asleep on the couch, and up under her crotch.\u201d When April told her father \u201c \u2018no,\u2019 \u201d he responded, \u201c \u2018You must be a lesbian.\u2019 \u201d McCauley testified regarding her conversations with Respondent that \u201c[Respondent] initially believed April and stated that April had told her things, and actually that April had told her more than she had told [DSS]. And she was initially very supportive of April and protecting her from her father.\u201d Later, however, Respondent told McCauley that April told her she had been lying regarding her father\u2019s conduct. Additionally, Mark told McCauley he had seen his father \u201cplay with himself.\u201d\nRespondent testified April had never told her April\u2019s father had abused her, and April told the social worker her father had abused her because she was afraid of the social worker. Additionally, April testified her father did not abuse her; however, she stated her father had shown her a picture of a woman who was wearing a \u201cwhite, see-through dress,\u201d and the picture showed a woman\u2019s \u201cbutt.\u201d\nSubsequent to the 31 July 1998 hearing, the trial court held another hearing, and Ashley was subpoenaed to testify at the hearing. Although Ashley was unable to verbally communicate the events which took place in the basement with April\u2019s father, she did, at the trial court\u2019s request, draw a picture of what happened in the basement with April\u2019s father. The picture depicted a man exposing his penis.\nOn 16 December 1998, the trial court entered an order containing findings of fact consistent with the above stated facts, including the following findings of fact:\n4. . . . April . . . told the social worker that her father . . . asked her to touch his penis, and . . . April also told Dr. Cynthia Brown . . . that April\u2019s father asked April to look at magazines with him that had pictures of naked people in them.... April was called as a witness and testified that she was shown a picture of a girl in a white see-through dress by her father.\n6. ... [Respondent] stated... [to a social worker at DSS] that April had told her that [April\u2019s father] would put his hand under the child\u2019s bed blankets and then place his hand on her crotch and when she would tell him to stop, he called [her] a lesbian. April\u2019s sibling, Mark, stated his father would play with himself.\n7. ... April stated her father approached April and her cousin Ashley in the basement of the home where he lived . . . and that he asked April to look at \u201chis thing\u201d, [sic] but that she never touched it.\n8. . . . Ashley . . . was present in court on August 25, 1998 and although she was found competent to be a witness, she had difficulty making a verbal testimony. Ashley made a drawing of [April\u2019s father] showing his penis exposed and said that this happened in the basement.\n9. . . . [Respondent] denied under oath making any statement to [DSS] concerning the sexual abuse of April. . . .\n13. ... [Respondent] has failed to provide safe, stable housing for herself and [April and Mark] .... [April and Mark] have been unable to maintain attendance in the same school and their academic performance now suffers for it. . . . [DSS] has assisted the family in registering for housing and . . . they have been approved for Section 8 housing, but the family has not been able to locate a house.\n14. . . . [Respondent] has failed to maintain stable employment.\nThe trial court then concluded as a matter of law that April was an abused and neglected child pursuant to N.C. Gen. Stat. \u00a7 7A-517(1), (21), and Mark was a neglected child pursuant to N.C. Gen. Stat. \u00a7 7A-517(21). The trial court ordered Respondent, as part of its dis-positional order, to \u201cobtain a psychological evaluation and . . . follow all recommendations of the assessment\u201d; \u201csecure and maintain safe, stable housing and employment\u201d; and \u201ccontact the Child Support Enforcement Department and . . . file the necessary paperwork to begin paying child support for the benefit of [April and Mark].\u201d The order stated that, as a prerequisite to reunification, Respondent was required to comply with the order.\nThe issues are whether: (I) the trial court had the authority, in its dispositional order, to order Respondent to \u201csecure and maintain safe, stable housing and employment\u201d; (II) the trial court\u2019s findings of fact support its conclusion of law Respondent should undergo a psychological evaluation; and (III) the trial court\u2019s findings of fact regarding whether April was abused are supported by clear and convincing evidence, and whether those findings of fact support a conclusion of law that April was an abused juvenile.\nI\nRespondent argues the trial court did not have authority, pursuant to N.C. Gen. Stat. \u00a7 7A-650, to order Respondent to \u201csecure and maintain safe, stable housing and employment.\u201d We agree.\nSection 7A-650 provides authority for the trial court to order the parent of a juvenile who has been adjudicated, in pertinent part, as abused or neglected to \u201cundergo psychiatric, psychological, or other treatment or counseling.\u201d N.C.G.S. \u00a7 7A-650(b2) (repealed 1999). Section 7A-650 is the trial court\u2019s only source of authority over the parent of a juvenile adjudicated abused or neglected, and the trial court may not order a parent to undergo any course of conduct not provided for in the statute. See In re Badzinski, 79 N.C. App. 250, 256, 339 S.E.2d 80, 83, disc. review denied, 317 N.C. 703, 347 S.E.2d 35 (1986).\nIn this case, the trial court ordered Respondent, in its disposi-tional order, to \u201csecure and maintain safe, stable housing and employment.\u201d Because section 7A-650 does not provide the trial court with authority to order a parent to obtain housing or employment, we modify the trial court\u2019s order to exclude this portion of the order.\nII\nRespondent argues the trial court\u2019s findings of fact do not support the conclusion of law that Respondent should undergo a psychological evaluation because the order was not \u201cdirected toward remediating or remedying behaviors or conditions\u201d which led to the trial court\u2019s adjudications. We disagree.\nNorth Carolina General Statute \u00a7 7A-650(b2) provides a trial court may order a parent \u201cto undergo psychiatric, psychological, or other treatment or counseling directed toward remediating or remedying behaviors or conditions\u201d that led to the trial court\u2019s adjudication of the juvenile as neglected or abused. N.C.G.S. \u00a7 7A-650(b2).\nIn this case, McCauley testified Respondent had admitted to her that April had told Respondent April\u2019s father was abusing her, and Respondent was \u201cinitially very supportive of April and protecting her from her father.\u201d Respondent, however, testified that she never told McCauley that April had discussed her father\u2019s abuse with Respondent. The trial court found McCauley\u2019s testimony more credible, and found as fact Respondent had told McCauley that April had discussed her father\u2019s abuse with Respondent. This finding of fact shows Respondent was aware April was being abused and Respondent did not tell the truth in court about the abuse. Respondent\u2019s knowledge of the abuse raises concerns regarding her reasons for denying the abuse. Moreover, because it was the father\u2019s abuse of April which led to the trial court\u2019s adjudications, the trial court\u2019s order that Respondent undergo a psychological evaluation and possible treatment was \u201cdirected toward remediating or remedying behaviors or conditions\u201d which led to the trial court\u2019s adjudications. The trial court, therefore, properly ordered Respondent to undergo a psychological evaluation and possible treatment.\nIII\nRespondent contends the trial court\u2019s findings of fact regarding April\u2019s status as an abused juvenile are not supported by the evidence, and these findings of fact do not support the trial court\u2019s conclusion of law that April is an abused juvenile. We disagree.\nThe allegations in a petition alleging abuse must be proved by clear and convincing evidence, N.C.G.S. \u00a7 7A-635 (repealed 1999), and the trial court\u2019s findings of fact, if supported by clear and convincing evidence, are conclusive on appeal \u201ceven where some evidence supports contrary findings,\u201d In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).\nIn this case, the trial court found as fact April told McCauley her father had \u201casked her to touch his penis,\u201d April told Dr. Brown her father had asked her to look at magazines containing pictures of naked people, and April testified her father had shown her a picture of a woman wearing a see-through dress. These findings of fact are supported by the testimony of McCauley, Dr. Brown, and April. The trial court also found as fact Respondent told DSS that April \u201chad told [Respondent] that [April\u2019s father] would put his hand under [April\u2019s] bed blankets and then place his hand on her crotch and when she would tell him to stop, he called [her] a lesbian.\u201d Although Respondent testified she did not make these statements to DSS, this finding of fact is supported by McCauley\u2019s testimony that these statements were made. The trial court\u2019s finding of fact that Mark told McCauley his father \u201cplay[ed] with himself\u2019 is also supported by McCauley\u2019s testimony. Additionally, the trial court found as fact \u201cApril stated her father approached April and . . . Ashley in the basement of the home where he lived . . . and that he asked April to look at \u2018his thing.\u2019 \u201d This finding of fact is supported by McCauley\u2019s testimony that April made this statement to her. This finding is also supported by Ashley\u2019s drawing, made at the trial court\u2019s request, of what Ashley saw when she was in the basement with April\u2019s father. The drawing depicted a man exposing his penis. Finally, the trial court\u2019s finding of fact that Respondent \u201cdenied under oath making any statement to [DSS] concerning the sexual abuse of April\u201d is supported by Respondent\u2019s testimony. The trial court\u2019s findings of fact regarding April\u2019s status as an abused juvenile are therefore supported by clear and convincing evidence.\nRespondent also contends these findings of fact do not support the trial court\u2019s conclusion of law that April is an abused juvenile.\nAn abused juvenile is defined, in pertinent part, as a juvenile whose parent \u201c[c]ommits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile:... taking indecent liberties with the juvenile, as provided in G.S. 14-202.1, regardless of the age of the parties.\u201d N.C.G.S. \u00a7 7A-517(1)(c). North Carolina General Statute \u00a7 14-202.1 provides:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he ... :\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]\nN.C.G.S. \u00a7 14-202.1 (1999). Whether a person acts \u201cfor the purpose of arousing or gratifying sexual desire [] may be inferred from the evidence of [his] actions.\u201d State v. Rhodes, 321 N.C. 102, 105, 361 S.E.2d 578, 580 (1987).\nIn this case, the findings of fact, as stated above, support a conclusion April\u2019s father took and attempted to take indecent liberties with April when he exposed his penis to April and when he asked April to touch his penis while they were in the basement, when he \u201cplace[d] his hand on [April\u2019s] crotch,\u201d and when he showed April a picture of a woman wearing a see-through dress. Moreover, that April\u2019s father acted \u201cfor the purpose of arousing or gratifying sexual desire\u201d can be inferred from these findings. The trial court\u2019s findings of fact, therefore, support its conclusion of law that April is an abused juvenile.\nAffirmed as modified.\nJudges EDMUNDS and SMITH concur.\n. Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999. See now \u00a7 7B-101 (1999).\n. Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999. See now \u00a7 7B-904 (1999).\n. Tile trial court also ordered Respondent to \u201ccontact the Child Support Enforcement Department and . . . file the necessary paperwork to begin paying child support.\u201d Although section 7A-650 provides that a trial court may order a parent to \u201cpay a reasonable sum that will cover in whole or in part the support of the juvenile,\u201d the statute does not provide the trial court with authority to order a parent to contact a child support enforcement department. N.C.G.S. \u00a7 7A-650(c). Accordingly, we modify the trial court\u2019s order to exclude this portion of the order.\n. Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999. See now \u00a7 7B-805 (1999).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "John C. Adams for petitioner-appellee Buncombe County Department of Social Services.", "Hunton & Williams, by Jason S. Thomas, Guardian Ad Litem.", "Michael E. Casterline for respondent mother-appellant.", "Joel Trilling for respondent father-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: APRIL COGDILL, MARK COGDILL, minor children\nNo. COA99-1051\n(Filed 18 April 2000)\n1. Child Abuse and Neglect\u2014 adjudication order \u2014 authority over parent\nThe trial court in a juvenile neglect proceeding did not have the authority to order respondent to \u201csecure and maintain safe, stable housing and employment\u201d or to contact the Child Support Enforcement Department. N.C.G.S. \u00a7 7A-650 is the trial court\u2019s only source of authority over the parent of a juvenile adjudicated abused or neglected and the trial court may not order a parent to undergo any course of conduct not provided for in the statute.\n2. Child Abuse and Neglect\u2014 dispositional order \u2014 parent to undergo psychological testing\nThe trial court properly ordered respondent-mother to undergo psychological evaluation and possible treatment in a child abuse and neglect dispositional order where the father\u2019s abuse led to the adjudications, the court found that respondent was aware of the abuse and did not tell the truth in court, and the evaluation and possible treatment were directed toward remediating or remedying behaviors or conditions which led to the adjudications.\n3. Child Abuse and Neglect\u2014 sufficiency of evidence \u2014 sufficiency of findings\nThe trial court\u2019s findings of fact in a juvenile abuse adjudication were supported by clear and convincing evidence and the findings supported the conclusion that she was abused in that her father took and attempted to take indecent liberties with her and acted for the purpose of arousing or gratifying sexual desire.\nAppeal by respondent mother from adjudication and disposi-tional order filed 16 December 1998 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 4 April 2000.\nJohn C. Adams for petitioner-appellee Buncombe County Department of Social Services.\nHunton & Williams, by Jason S. Thomas, Guardian Ad Litem.\nMichael E. Casterline for respondent mother-appellant.\nJoel Trilling for respondent father-appellee." }, "file_name": "0504-01", "first_page_order": 536, "last_page_order": 543 }