{ "id": 8439114, "name": "IN THE MATTER OF: A.E., J.E., Minor Children", "name_abbreviation": "In re A.E.", "decision_date": "2005-07-19", "docket_number": "No. COA04-406", "first_page": "675", "last_page": "686", "citations": [ { "type": "official", "cite": "171 N.C. App. 675" } ], "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": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "583 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "694", "parenthetical": "finding that the argument concerning inadmissible hearsay was not included in an assignment of error and, therefore, was not properly preserved for review" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956566 ], "year": 2003, "pin_cites": [ { "page": "432", "parenthetical": "finding that the argument concerning inadmissible hearsay was not included in an assignment of error and, therefore, was not properly preserved for review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0429-01" ] }, { "cite": "122 S. Ct. 628", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "151 L. Ed. 2d 548", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9215521, 9215684, 9215772, 9215847, 9215659, 9215565, 9215710, 9215824, 9215635, 9215608, 9215738, 9215802, 9215550, 9215583 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/1046-01", "/us/534/1046-08", "/us/534/1046-11", "/us/534/1046-14", "/us/534/1046-07", "/us/534/1046-03", "/us/534/1046-09", "/us/534/1046-13", "/us/534/1046-06", "/us/534/1046-05", "/us/534/1046-10", "/us/534/1046-12", "/us/534/1046-02", "/us/534/1046-04" ] }, { "cite": "545 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "206-07" } ], "opinion_index": 0 }, { "cite": "353 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135771 ], "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0400-01" ] }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "577 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 644", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191956 ], "year": 2003, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0644-01" ] }, { "cite": "521 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241043 ], "year": 1999, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0387-01" ] }, { "cite": "344 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523646 ], "year": 1986, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0449-01" ] }, { "cite": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "550 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "354 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138519 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/354/0057-01" ] }, { "cite": "539 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "330", "parenthetical": "past misconduct which result in convictions and did not include threatened physical violence, illegal substances, or weapons did not overcome the constitutional presumption that the natural parent will act in the best interest of the child" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439516 ], "year": 2000, "pin_cites": [ { "page": "72", "parenthetical": "past misconduct which result in convictions and did not include threatened physical violence, illegal substances, or weapons did not overcome the constitutional presumption that the natural parent will act in the best interest of the child" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0064-01" ] }, { "cite": "530 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413198 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "68-69", "parenthetical": "\"[S]o long as a parent adequately cares for his or her children (i.e., is fit" }, { "page": "58", "parenthetical": "\"[S]o long as a parent adequately cares for his or her children (i.e., is fit" } ], "opinion_index": 1, "case_paths": [ "/us/530/0057-01" ] }, { "cite": "373 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "322" }, { "page": "318" }, { "page": "322" }, { "page": "322" } ], "opinion_index": 1 }, { "cite": "91 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526464 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "678" }, { "page": "678" } ], "opinion_index": 1, "case_paths": [ "/nc-app/91/0668-01" ] }, { "cite": "563 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "the father's parental rights were terminated because he was incarcerated and he failed to show filial affection for his child" } ], "opinion_index": 1 }, { "cite": "149 N.C. App. 951", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9133496 ], "year": 2002, "pin_cites": [ { "parenthetical": "the father's parental rights were terminated because he was incarcerated and he failed to show filial affection for his child" } ], "opinion_index": 1, "case_paths": [ "/nc-app/149/0951-01" ] }, { "cite": "587 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "86", "parenthetical": "it is beyond an imprisoned individual's control how many visitations with his child he is allowed" } ], "opinion_index": 1 }, { "cite": "160 N.C. App. 677", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958306 ], "year": 2003, "pin_cites": [ { "page": "682", "parenthetical": "it is beyond an imprisoned individual's control how many visitations with his child he is allowed" } ], "opinion_index": 1, "case_paths": [ "/nc-app/160/0677-01" ] }, { "cite": "570 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 1 }, { "cite": "356 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511238, 1511214, 1511129, 1511513, 1511197 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc/356/0302-02", "/nc/356/0302-05", "/nc/356/0302-03", "/nc/356/0302-01", "/nc/356/0302-04" ] }, { "cite": "565 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "termination of parental rights reversed where the father was incarcerated and evidence was insufficient to find that he was unable to care for his child" } ], "opinion_index": 1 }, { "cite": "151 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080092 ], "year": 2002, "pin_cites": [ { "parenthetical": "termination of parental rights reversed where the father was incarcerated and evidence was insufficient to find that he was unable to care for his child" } ], "opinion_index": 1, "case_paths": [ "/nc-app/151/0286-01" ] }, { "cite": "576 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "409", "parenthetical": "willfulness not shown under N.C. Gen. Stat. \u00a7 7B-1111(7) where the respondent was incarcerated but wrote letters and informed DSS that he did not want his parental rights terminated" } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190412 ], "year": 2003, "pin_cites": [ { "page": "290-91", "parenthetical": "willfulness not shown under N.C. Gen. Stat. \u00a7 7B-1111(7) where the respondent was incarcerated but wrote letters and informed DSS that he did not want his parental rights terminated" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0281-01" ] }, { "cite": "126 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "608", "parenthetical": "The fact that a parent commits a crime which might result in incarceration is insufficient, standing alone, to show a \"settled purpose to forego all parental duties.\"" } ], "opinion_index": 1 }, { "cite": "257 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568884 ], "year": 1962, "pin_cites": [ { "page": "501", "parenthetical": "The fact that a parent commits a crime which might result in incarceration is insufficient, standing alone, to show a \"settled purpose to forego all parental duties.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/257/0486-01" ] }, { "cite": "543 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "909" } ], "opinion_index": 1 }, { "cite": "142 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442570 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "610" } ], "opinion_index": 1, "case_paths": [ "/nc-app/142/0607-01" ] }, { "cite": "526 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "opinion_index": 1 }, { "cite": "349 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571601, 571650, 571561, 571549 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc/349/0530-01", "/nc/349/0530-02", "/nc/349/0530-03", "/nc/349/0530-04" ] }, { "cite": "502 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "402" } ], "opinion_index": 1 }, { "cite": "130 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465152 ], "year": 1998, "pin_cites": [ { "page": "43" } ], "opinion_index": 1, "case_paths": [ "/nc-app/130/0037-01" ] }, { "cite": "436 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "901-02", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 1 }, { "cite": "112 N.C. App. 747", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523795 ], "year": 1993, "pin_cites": [ { "page": "752", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/112/0747-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "357 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491522 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc/357/0568-01" ] }, { "cite": "296 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "813" } ], "opinion_index": 1 }, { "cite": "59 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526361 ], "year": 1982, "pin_cites": [ { "page": "324" } ], "opinion_index": 1, "case_paths": [ "/nc-app/59/0322-01" ] }, { "cite": "158 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186618 ], "weight": 2, "pin_cites": [ { "page": "204, 580" }, { "page": "204" } ], "opinion_index": 1, "case_paths": [ "/nc-app/158/0198-01" ] }, { "cite": "153 L. Ed. 2d 778", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 1 }, { "cite": "536 U.S. 923", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254464, 1255009, 1255074, 1254914, 1254468, 1254505, 1254570, 1255027, 1254965, 1255191, 1255224, 1254811, 1254943 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/us/536/0923-02", "/us/536/0923-10", "/us/536/0923-08", "/us/536/0923-09", "/us/536/0923-03", "/us/536/0923-05", "/us/536/0923-11", "/us/536/0923-01", "/us/536/0923-04", "/us/536/0923-07", "/us/536/0923-12", "/us/536/0923-13", "/us/536/0923-06" ] }, { "cite": "557 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "86" } ], "opinion_index": 1 }, { "cite": "354 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138368 ], "year": 2001, "pin_cites": [ { "page": "531" } ], "opinion_index": 1, "case_paths": [ "/nc/354/0525-01" ] }, { "cite": "582 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "258", "parenthetical": "an anonymous call reporting an unsupervised, naked, two-year-old in her driveway, standing alone, does not constitute neglect" }, { "page": "258" } ], "opinion_index": 1 }, { "cite": "357 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491833 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "283", "parenthetical": "an anonymous call reporting an unsupervised, naked, two-year-old in her driveway, standing alone, does not constitute neglect" }, { "page": "283" } ], "opinion_index": 1, "case_paths": [ "/nc/357/0279-01" ] } ], "analysis": { "cardinality": 1158, "char_count": 27227, "ocr_confidence": 0.738, "pagerank": { "raw": 6.646250469370797e-08, "percentile": 0.40526011362052383 }, "sha256": "da21dd5a7e45e58e5a010ff2c1a6ab0f97d743391beeed5b8df4de2efbdbd93f", "simhash": "1:cbe9d56c60a72d32", "word_count": 4498 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge TYSON concurs in part and dissents in part in separate opinion." ], "parties": [ "IN THE MATTER OF: A.E., J.E., Minor Children" ], "opinions": [ { "text": "GEER, Judge.\nRespondent father E.E. appeals an order of the trial court adjudicating his children, A.E. and J.E., neglected. E.E. argues in his appellate brief only that the trial court should not have relied upon the testimony of Dr. Robert McDonald. Since E.E. neither objected to that testimony at trial nor assigned error to that testimony or the findings of fact related to that testimony, E.E.\u2019s arguments were not properly preserved for review by this Court. We, therefore, affirm.\nTimeliness of Appeal\nAs an initial matter, we must address the guardian ad litem\u2019s motion to dismiss this appeal. The trial court\u2019s adjudication judgment and dispositional order was entered on 5 December 2003. E.E. filed his notice of appeal on 18 December 2003. The guardian ad litem contends that because the notice of appeal was filed more than 10 days after entry of the order, the appeal was untimely.\nEven assuming, without deciding, that respondent\u2019s notice of appeal was not timely, respondent has established through affidavits that his appeal was lost, if at all, through no fault of his own since his counsel was not served with the order until after the time for appeal had passed. Appellees have submitted no contrary evidence. We, therefore, exercise our discretion under Rule 21(a)(1) of the Rules of Appellate Procedure to treat the father\u2019s appeal as a petition for writ of certiorari and we allow that petition.\nAdjudication of Neglect\nWhen a child is alleged to be neglected and taken into temporary custody, DSS has the burden of proving neglect by clear, cogent, and convincing evidence. In re Evans, 81 N.C. App. 449, 452, 344 S.E.2d 325, 327 (1986). \u201cWhere the trial court sits without a jury and hears the evidence in a neglect adjudication, the facts found by the trial court are binding on an appellate court if supported by clear and convincing competent evidence.\u201d In re McLean, 135 N.C. App. 387, 394, 521 S.E.2d 121, 125 (1999). Findings of fact that are not challenged on appeal \u201care deemed supported by competent evidence\u201d and are binding on this Court. In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).\nThe respondent father has made only a single assignment of error: \u201cThe court erred in finding that the minor children are neglected children by clear, cogent, and convincing evidence.\u201d It is well-established that \u201c[a] single assignment generally challenging the sufficiency of the evidence to support numerous findings of fact, as here, is broadside and ineffective.\u201d Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Since respondent did not specifically assign error to any of the trial court\u2019s findings of fact supporting its order, those findings are deemed to be supported by competent evidence and are conclusive on appeal. Those findings establish the following facts.\nA.E. and J.E. lived with their father. In December 2002, the Buncombe County Department of Social Services (\u201cDSS\u201d) became involved with the family as a result of reports regarding the father\u2019s relationships with women. The father voluntarily placed his children first with one neighbor, then removed them and, four days later, placed them with a second neighbor.\nIn the course of its investigation, DSS learned that the father had been convicted of taking indecent liberties with a 15-year-old girl and was an untreated sexual offender. Although the father insisted to DSS that he was not untreated, had been cleared by the courts, and had received an assessment for his sex offender status, DSS discovered from his probation officer that the father\u2019s probation was revoked due to his failure to seek sexual offender treatment.\nOn 28 January 2003 and again on 7 February 2003, the father claimed that he had attempted unsuccessfully to schedule a sex offender specific assessment with Dr. Robert McDonald. Dr. McDonald confirmed, however, that he had received no calls from the father. On 13 February 2003, the father refused to sign the \u201cFamily Services Case Plan\u201d with DSS, claiming that he did not need any services. On 3 March 2003, the father finally agreed to sign the case plan and \u201cgo along\u201d with the results of the sex offender specific assessment.\nOn 11 March 2003, DSS received the results of the assessment from Dr. McDonald who found the father to be uncooperative and \u201cobviously unreliable\u201d in his recitation of events and facts. Dr. McDonald \u201crecommended that he receive the previously ordered treatment\u201d and that \u201che not be allowed to be in the presence of post-pubertal females unchaperoned. Failure to comply with treatment is known to be a significant risk factor for repeating similar offenses.\u201d\nOn 18 March 2003, DSS learned that the father had taken the children back into his home although he insisted that his fianc\u00e9e was always present. On 2 April 2003, a DSS social worker informed the father that he would need to pursue sexual offender treatment. The father, however, refused to undergo treatment. As of 18 June 2003, the father had still not received sex offender specific treatment. On 19 June 2003, DSS filed petitions alleging that the children were neglected, but did not obtain non-secure custody orders.\nThe trial court conducted an adjudication and dispositional hearing on 27 October 2003. Following that hearing, the court filed an order on 5 December 2003, finding in pertinent part:\n21. That on or about May 28, 2003, [the father\u2019s] daughter [A.E.], (DOB 3-10-95, age 8), within a few years will be a \u201cpost pubertal female\u201d as designated by Dr. McDonald in the Assessment, and [the father] will have unrestricted access to [A.E.]. [The father\u2019s] refusal to seek sex offender treatment and his unrestricted access to [A.E.] creates a high risk for these children. The current risk assessment indicates high risk and [the father] is refusing to engage in treatment recommended by Dr. McDonald and the Department.\n23. That Dr. McDonald testified, and the Court will find as facts, that [the father] was referred for a [sex offender specific] evaluation. He met with him on 5 occasions and held two interviews and performed 3 tests, the MMPI, MPI and MSI. That he received pretty conflicting information from [the father] and found him not reliable. . . . [The father] has never been treated. This is a significant indicator of recidivism and a significant risk. The recommendations for [the father] were a polygraph test, PPE, treatment for 1-2 years, group therapy and individual therapy. [Dr.] McDonald stated that [the father] should not have unsupervised visits with the minor children and not be allowed to be in the company of post pubertal females. After further research and attending a continuing education seminar one week prior to the adjudication, Dr. McDonald recommended that [the father] have no contact with children at all, neither supervised nor unsupervised.\nThe court acknowledged that the father had been cooperative with DSS with the exception of the refusal to obtain sex offender treatment.\nThe court concluded \u201cby clear, cogent, and convincing evidence the minor children are neglected children pursuant to N.C.G.S. \u00a77B-101(15) in that the children live in an environment injurious to their welfare in that their father, [E.E.], is an untreated sex offender.\u201d In its dispositional order, the court found that it was not in the best interests of the minor children to be in the custody of their father and granted custody to DSS. The court allowed for supervised visitation, but directed that the father complete sex offender specific treatment as a prerequisite to unsupervised visitation. The court also found that \u201cthe best plan to achieve a safe, permanent home for the minor children in a reasonable period of time is reunification.\u201d\nWhile in his single assignment of error, the father challenged generally the trial court\u2019s finding of neglect, the father in his brief argues only that the opinion of Dr. McDonald is not competent evidence to support the trial court\u2019s decision. Specifically, the father objects because Dr. McDonald changed his ultimate conclusion between his written report and trial testimony and because the information he used to formulate his trial testimony was not shown to be reliable.\nWe hold that the arguments regarding changes to and the reliability of Dr. McDonald\u2019s opinion are not properly before us because the father (1) failed to object to Dr. McDonald\u2019s testimony during the hearing and (2) failed to specifically assign error to that testimony or the trial court\u2019s reliance on that testimony. Rule 10(b)(1) of the Rules of Appellate Procedure provides: \u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make . . . .\u201d N.C.R. App. P. 10(b)(1). If an issue has been properly preserved under Rule 10(b), the appellant must then comply with Rule 10(c)(l)\u2019s requirements for assignments of error:\nA listing of assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.\nN.C.R. App. P. 10(c)(1) (emphasis added).\nOur review of the transcript in this case reveals that the father failed to object at the hearing to Dr. McDonald\u2019s testimony and failed to argue to the trial court that the testimony was incompetent. See State v. Call, 353 N.C. 400, 426, 545 S.E.2d 190, 206-07 (holding that an argument that expert\u2019s- testimony was unreliable was not properly preserved for appellate review when the defendant failed to object at trial), cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548, 122 S. Ct. 628 (2001). Further, since the father\u2019s assignment of error does not reference Dr. McDonald\u2019s testimony or the findings of fact relating to that testimony, it has not directed the attention of this Court to the error argued in the father\u2019s brief, as required by Rule 10(c)(1). See In re Morales, 159 N.C. App. 429, 432, 583 S.E.2d 692, 694 (2003) (finding that the argument concerning inadmissible hearsay was not included in an assignment of error and, therefore, was not properly preserved for review). Accordingly, the father\u2019s arguments regarding Dr. McDonald\u2019s testimony are not properly before this Court.\nOur Supreme Court has recently emphasized that once this Court determines that an appeal is flawed for failure to comply with Rule 10(c)(1), this Court is not free to address an issue not raised or argued by the appellant: \u201cIt is not the role of the appellate courts, however, to create an appeal for an appellant. As this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\u201d Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam). The dissenting opinion in this case, however, seeks to do precisely what the Supreme Court has forbidden. It creates an appeal for the appellant by \u201caddress[ing an] issue, not raised or argued by [appellant].\u201d Id. None of the cases cited by the dissent and, with the exception of the challenge to Dr. McDonald\u2019s testimony, none of the arguments made by the dissent appear in appellant\u2019s brief. Just as \u201cthe Rules of Appellate Procedure must be consistently applied,\u201d id., so too the principles in Viar must be consistently applied. Since the sole issue argued by the father is not properly before this Court, w\u00e9 affirm the trial court\u2019s decision.\nAffirmed.\nJudge TIMMONS-GOODSON concurs.\nJudge TYSON concurs in part and dissents in part in separate opinion.", "type": "majority", "author": "GEER, Judge." }, { "text": "Tyson, Judge\nconcurring in part, dissenting in part.\nI concur with the majority\u2019s opinion to reach the merits of respondent\u2019s appeal. Respondent\u2019s right of appeal was lost through late delivery of the order appealed from to his counsel and through no fault of his own.\nThe majority\u2019s opinion affirms the trial court\u2019s adjudication that A.E. and J.E. are neglected. No clear, cogent, and convincing evidence in the record supports the trial court\u2019s findings of fact, leaving its conclusions of law unsupported. I respectfully dissent.\nI. Timeliness of Anneal\nI concur with the majority\u2019s decision to reach the merits of this appeal.\nThe trial court\u2019s adjudication judgment and dispositional order was entered on 5 December 2003, but not delivered to respondent\u2019s counsel until 16 December 2003. E.E. filed his notice of appeal on 18 December 2003. The guardian ad litem\u2019s motion to dismiss respondent\u2019s appeal as untimely asserts the notice of appeal was filed more than ten days after entry of the order. However, E.E.\u2019s counsel did not receive the order until after the time for filing a notice of appeal had passed. Upon receiving the order on 16 December 2003, an acceptance of service was signed by counsel for both parties. E.E. promptly filed his notice of appeal two days lat,er on 18 December 2003. Petitioner had the responsibility to file and timely serve the order on respondent. Petitioner\u2019s failure to serve an order on respondent until after time for filing a notice of appeal had elapsed cannot be a basis to grant a motion to dismiss respondent\u2019s appeal. E.E. should not lose his right to appeal based on petitioner\u2019s failure to timely serve the order.\nII. Adjudication of Neglect\nRespondent assigns as error the trial court\u2019s finding that A.E. and J.E. are neglected children by clear, cogent, and convincing evidence. He cites to the trial court\u2019s findings of fact on page forty-five and forty-six, and the conclusions of law and decretal on page forty-eight of the record. He argues his conviction of indecent liberties with an unrelated third party minor and subsequent probation violation of that offense are insufficient to adjudicate his minor children neglected.\nEvidence in the record shows E.E. is a single father who has cared for and supported his children for the past seven years. E.E. has a stable job and a stable home. DSS stated in their dispositional report to the court that E.E. \u201cseems to love his children and takes very good care of them.\u201d E.E. has provided DSS access to his children and to his home. A.E. and J.E. do not show any signs of neglect.\nFor a determination of neglect, a court must apply principles pursuant to N.C. Gen. Stat. \u00a7 7B-101(15). According to the statute, a \u2022neglected juvenile is defined in part as:\n[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile\u2019s welfare; or who has been placed for care or adoption in violation of law.\nN.C. Gen. Stat. \u00a7 7B-101(15) (2003).\nWhile the determination of neglect is a fact specific inquiry, \u201cnot every act of negligence\u201d or commission of a crime by a parent constitutes \u201cneglect\u201d under the law and results in a \u201cneglected juvenile.\u201d In re Stumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003) (an anonymous call reporting an unsupervised, naked, two-year-old in her driveway, standing alone, does not constitute neglect). A parent\u2019s conduct must be viewed on a case-by-case basis on the totality of the evidence. Speagle v. Seitz, 354 N.C. 525, 531, 557 S.E.2d 83, 86 (2001), cert. denied, 536 U.S. 923, 153 L. Ed. 2d 778 (2002).\nIn determining whether neglect has occurred, \u201cthe trial judge may consider a parent\u2019s complete failure to provide the personal contact, love, and affection that [exists] in the parental relationship.\u201d In re Yocum, 158 N.C. App. 198, 204, 580. S.E.2d 399, 403 (quoting In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982)), aff\u2019d, 357 N.C. 568, 597 S.E.2d 674 (2003). In addition, this Court requires \u201cthere 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, or discipline\u201d in order to adjudicate a juvenile neglected. In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (internal quotations and citations omitted).\nOur Supreme Court\u2019s review of the numerous cases where a finding of \u201cneglect\u201d or a \u201cneglected juvenile\u201d was substantiated shows that the alleged neglect constituted either severe or dangerous conduct or a pattern of conduct either causing injury or potential injury to the juvenile. In re Stumbo, 357 N.C. at 283, 582 S.E.2d at 258.\nIn Powers v. Powers, the evidence showed the mother had a severe alcohol problem. 130 N.C. App. 37, 43, 502 S.E.2d 398, 402, disc. rev. denied, 349 N.C. 530, 526 S.E.2d 180 (1998). She drove an automobile in which her minor children were passengers while impaired due to alcohol. Id. She became intoxicated at home to the point of literally falling down and becoming unable to care for her younger children. Id. Her drinking also contributed to emotional problems by her older children. Id.\nA conviction based on acts committed in the home can be sufficient to support a finding of neglect. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001). In In re Blackburn, the evidence showed: (1) domestic violence between the respondent and her live-in boyfriend; (2) the respondent inappropriately leaving the child in the care of others; (3) the respondent\u2019s illegal drug use and distribution of drugs in the presence of the child; (4) an overall history of lawlessness; and (5) the respondent\u2019s repeated incarcerations were considered sufficient evidence of neglect. 142 N.C. App. at 610, 543 S.E.2d at 909. None of these factors are shown here.\nWhen confronting the situation where a respondent has been convicted of a crime and continues to be incarcerated, our courts have prohibited termination of parental rights solely on those factors. Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962) (The fact that a parent commits a crime which might result in incarceration is insufficient, standing alone, to show a \u201csettled purpose to forego all parental duties.\u201d); In re Yocum, 158 N.C. App. at 204, 580 S.E.2d at 403 (the respondent was incarcerated but also did nothing to emotionally or financially support and benefit his children); In re Shermer, 156 N.C. App. 281, 290-91, 576 S.E.2d 403, 409 (2003) (willfulness not shown under N.C. Gen. Stat. \u00a7 7B-1111(7) where the respondent was incarcerated but wrote letters and informed DSS that he did not want his parental rights terminated); In re Clark, 151 N.C. App. 286, 565 S.E.2d 245 (2002) (termination of parental rights reversed where the father was incarcerated and evidence was insufficient to find that he was unable to care for his child), disc. rev. denied, 356 N.C. 302, 570 S.E.2d 501 (2002); In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d 83, 86 (2003) (it is beyond an imprisoned individual\u2019s control how many visitations with his child he is allowed); In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002) (the father\u2019s parental rights were terminated because he was incarcerated and he failed to show filial affection for his child).\nA court cannot rely \u201csolely\u201d on the commission of a crime and subsequent incarceration in making its determination of neglect. In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322 (1988). In In re Williamson, the father was convicted of and subsequently incarcerated for the murder of his child\u2019s mother. Id. at 671, 373 S.E.2d at 318. Although this Court considered the father\u2019s murder conviction and subsequent incarceration, we also considered the father\u2019s \u201cactions and circumstances since the murder in drawing the conclusion that respondent neglected and abandoned his child.\u201d Id. at 678, 373 S.E.2d at 322.\nHere, E.E.\u2019s conviction and probation violation does not rise to the level of harm to his children that was shown in the cases cited above. No evidence was presented that E.E. committed any criminal acts in the home or while his children were present. E.E.\u2019s conviction did not result from any criminal or other inappropriate behavior against his own children. No evidence shows respondent ever abused or neglected his children. No evidence was presented that E.E.\u2019s criminal behavior took place in the company of either A.E. or J.E. or that the children were placed in danger during the commission of his crime.\nE.E.\u2019s crime arose out of indecent liberties with a fifteen-year-old minor, who was not shown to be a blood or other type of relative. Although indecent liberties is a strict liability offense and respondent\u2019s criminal conduct cannot be condoned, none of respondent\u2019s actions involved his children. E.E.\u2019s submission to and completion of the sexual offender evaluation satisfied the condition of his probation.\nIII. Dr. Robert D. McDonald. Ph.D.\nE.E. underwent a thorough and comprehensive evaluation administered by a psychologist, Dr. Robert D. McDonald (\u201cDr. McDonald\u201d), who was trained in sex offender treatment. After E.E.\u2019s evaluation, Dr. McDonald stated in his report and assessment that the children were not in danger from E.E. Dr. McDonald opined, \u201cthere is not reason to conclude that he is at significant risk to sexually offend his children.\u201d Dr. McDonald testified that at age forty-seven, E.E. had reached an age where the chance of re-offending \u201cha[d] gone down.\u201d\nA DSS social worker confirmed that DSS was \u201cnot able to take from Dr. McDonald\u2019s evaluation that A.E. and J.E. were in danger at this point.\u201d The children always appeared clean, well kept, healthy, and their hair was usually done very well when DSS visited the home. Multiple home visits by DSS never disclosed any neglect of the children. See Troxel v. Granville, 530 U.S. 57, 68-69, 147 L. Ed. 2d 49, 58 (2000) (\u201c[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent\u2019s children.\u201d).\nPrior cases show that convictions and incarceration of a parent for more serious crimes are not, standing alone, sufficient to support a finding and conclusion the child is abused or neglected. In re Williamson, 91 N.C. App. at 678, 373 S.E.2d at 322.\nWithout finding that a parent is \u201cunfit\u201d or has engaged in \u201cconduct inconsistent\u201d with the presumption that he will act in the best interest of the child his parental rights must be respected. Adams v. Tessener, 141 N.C. App. 64, 72, 539 S.E.2d 324, 330 (2000) (past misconduct which result in convictions and did not include threatened physical violence, illegal substances, or weapons did not overcome the constitutional presumption that the natural parent will act in the best interest of the child) overruled on other grounds, 354 N.C. 57, 550 S.E.2d 449 (2001); see also In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005).\nAlthough respondent failed to object to or assign error to Dr. McDonald\u2019s contradictory testimony, no evidence, findings, or conclusions support the conclusion that respondent has neglected his children. Clear, cogent, and convincing evidence shows otherwise. The sole basis to support the trial court\u2019s order is Dr. McDonald\u2019s revised opinion at the hearing, two weeks after he submitted his comprehensive written report, that respondent may pose a risk to his children in the future. Not only does his changed testimony directly contradict his earlier opinions and, despite the fact that respondent sought and completed assessments and treatment, Dr. McDonald suggests that the mere possibility or propensity by respondent of another incident in the future supports a past or present finding of neglect of respondent\u2019s own children. While the trial court is free to consider and weigh Dr. McDonald\u2019s revised ad hoc opinion, his contradictory statements about possible future conduct is not clear, cogent, and convincing evidence to support its conclusion of neglect.\nIV. Conclusion\nReview of respondent\u2019s appeal is properly before us. E.E.\u2019s conviction did not stem from any activity within the minor children\u2019s home, while they were present, nor was taken against his children. Respondent did not place his children in any form of danger. A.E. and J.E. do not show any signs of neglect or abuse. Respondent gave DSS access to his children and their home. He consented to the children being placed with relatives, and attended and completed Dr. McDonald\u2019s specific evaluation over a number of visits.\nThe trial court\u2019s findings of fact that E.E.\u2019s prior conviction of taking indecent liberties and his subsequent failure to schedule sex offender specific evaluation is not clear, cogent, and convincing evidence to support a finding of fact or conclusion of law that his minor children, A.E. and J.E., are neglected. By the time of the hearing, E.E. had submitted to and completed the sex offender specific evaluation. Contradictory evidence of a mere possibility of future conduct from a changed opinion at hearing is insufficient to support a finding of neglect. I respectfully dissent from that portion of the majority\u2019s opinion to affirm the trial court\u2019s conclusions that respondent neglected A.E. and J.E.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Tyson, Judge" } ], "attorneys": [ "Renae S. Alt for\u2018petitioner-appellee.", "Carol Ann Bauer for respondent-appellant.", "\u25a0Michael N. Tousey for appellee Guardian ad Litem." ], "corrections": "", "head_matter": "IN THE MATTER OF: A.E., J.E., Minor Children\nNo. COA04-406\n(Filed 19 July 2005)\n1. Child Abuse and Neglect\u2014 neglect \u2014 time for appeal \u2014 order served after time expired\nA father lost his right to appeal from a child neglect adjudication through no fault of his own where his counsel was not served with the order until after the time for appeal had passed. The Court of Appeals exercised its discretion to treat the matter as a petition for certiorari.\n2. Appeal and Error\u2014 preservation of issues \u2014 objection at trial \u2014 assignments of error\nArguments regarding changes to and the reliability of testimony in a child neglect adjudication were not properly before the Court of Appeals because the father did not object to the testimony during the hearing and failed to specifically assign error to the testimony or the trial court\u2019s reliance on the testimony.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by respondent from judgment and order entered 5 December 2003 by Judge Rebecca B. Knight in Buncombe County District Court. Heard in the Court of Appeals 2 December 2004.\nRenae S. Alt for\u2018petitioner-appellee.\nCarol Ann Bauer for respondent-appellant.\n\u25a0Michael N. Tousey for appellee Guardian ad Litem." }, "file_name": "0675-01", "first_page_order": 705, "last_page_order": 716 }