An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                NO. COA14-106
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     15 July 2014


IN THE MATTER OF:                              Gaston County
                                               No. 13 JA 90
     O.O.
                           _________________________


IN THE MATTER OF:                              Mecklenburg County
                                               No. 13 JA 123
     O.O.


      On writ of certiorari to review adjudication order entered

5   August    2013    by   Judge   James      A.   Jackson    in   Gaston    County

District Court and disposition order entered 23 December 2013 by

Judge    Rickye      McKoy-Mitchell      in    Mecklenburg      County    District

Court.    Heard in the Court of Appeals 30 June 2014.


      Twyla   Hollingsworth-Richardson,  for   petitioner-appellee
      Mecklenburg County Department of Social Services.

      Richard Croutharmel, for respondent-appellant father.

      Tawanda Foster, for Guardian ad Litem.


      MARTIN, Chief Judge.


      Respondent-father       appeals     by   writ   of     certiorari     from   an

order adjudicating O.O. a neglected juvenile and a disposition
                                          -2-
order based on that adjudication.                    After careful review, we

affirm.

    O.O.    is    the     oldest    of    father’s    seven    children.       On    17

October 2011, a judgment was entered granting legal and primary

physical custody of all seven children to their mother.                             The

trial   court     found    that     the   greater     weight    of    the    evidence

supported allegations of domestic violence by father against the

children and their mother and therefore determined that it was

in the best interests of the children to grant legal and primary

physical custody of the children to their mother.                     Nevertheless,

the trial court found that father was “also a fit and proper

person to have the care, custody[,] and control” of the children

and granted him secondary physical custody.                         The trial court

further   found    that     O.O.,    twelve     years   old    at    the    time,   was

placed in New Hope of the Carolinas Treatment Center in June

2010 after the Mecklenburg County Department of Social Services

(“DSS”) found that she sexually abused some of her siblings.

O.O. was a patient of the inpatient treatment facility until

April 2011.

    In October 2012, a physical altercation occurred between

O.O. and her mother.          As a result, mother would not allow O.O.
                                       -3-
to   reside    in   her    home.    O.O.     resided    with    father   until   27

February 2013.

       On 1 March 2013, DSS filed a petition alleging that O.O.

was a neglected and dependent juvenile.                   DSS alleged that a

physical altercation arose on 27 February 2013 between O.O. and

father “because [O.O.] used an expletive.”                      DSS claimed that

O.O. sustained marks on her neck, wrist, and underarm area as a

result of the altercation.             DSS further claimed that O.O. was

afraid to return to father’s home and could not return to her

mother’s home.         Noting its long history of involvement with the

family,    DSS      also   indicated    that     O.O.     had    been    “sexually

inappropriate with some of her siblings in the past” and that it

would be “counterproductive” for O.O. to return to her mother’s

home   where     her   siblings    resided.      No     other    placements   were

available for O.O.          DSS obtained nonsecure custody of O.O. by

order entered on 1 March 2013.

       On 6 May 2013, an order was entered transferring venue from

Mecklenburg County to Gaston County.             On 5 August 2013, O.O. was

adjudicated a neglected juvenile.              On 16 August 2013, venue was

transferred back to Mecklenburg County.                  On 23 December 2013,

the trial court entered a disposition order in which it ordered

that O.O. remain in the custody of DSS.
                                        -4-
      Father filed pro se written notice of appeal from the trial

court’s orders twice, first on 4 December 2013, and then again

on 21 January 2014.             Father’s notices of appeal fail to fully

comply with the requirements of Rule 3.1 of the North Carolina

Rules    of   Appellate    Procedure       because     they   lack   signature     by

father’s trial counsel.           Father’s appeal is therefore subject to

dismissal.         McQuillin      v.   Perez,      189 N.C.     App.     394,     397,

657 S.E.2d 924, 927 (2008) (“Our Appellate Rules are mandatory,

and     failure    to    comply     with    them     subjects       an   appeal    to

dismissal.”).          Cognizant of the        deficiency in his notice of

appeal, father seeks review by petition for writ of certiorari.

In our discretion, we allow the petition.                     See N.C.R. App. P.

21(a)(1).

                          _________________________

      Father first argues the trial court abused its discretion

in violation of Rule 607 of the North Carolina Rules of Evidence

when it denied him the opportunity to attack O.O.’s credibility

by playing a video recording of a prior incident during the

adjudication       hearing.        Father     sought    to    introduce    a    video

recording     of   a    prior    incident   involving        O.O.   to   refute    her

testimony that she had only previously struck father in self-

defense.      Father alleges this evidence would have shown that
                                           -5-
O.O.’s testimony was inconsistent with her prior conduct.                                  We

are not persuaded.

      We review a trial court’s ruling pursuant to Rule 607 for

an abuse of discretion.               State v. Banks, 210 N.C. App. 30, 38,

706 S.E.2d    807,      814     (2011).      Rule    607       provides      that    “[t]he

credibility of a witness may be attacked by any party.”                                  N.C.

Gen. Stat. § 8C-1, Rule 607 (2013).                  Specific instances of the

conduct of a witness, for the purpose of attacking the witness’s

credibility      may,     in    the    discretion        of    the    trial     court,     be

inquired into on cross-examination of the witness if they are

probative     of    the        witness’s    character          for     truthfulness       or

untruthfulness.         N.C. Gen. Stat. § 8C-1, Rule 608(b) (2013).

However, “[e]ven if the trial judge allows the inquiry on cross-

examination,       extrinsic          evidence      of        the     conduct       is    not

admissible.”       State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84,

90 (1986).

      Although the trial court allowed father to cross-examine

O.O. regarding the prior incident, the video depicting O.O.’s

conduct during the prior incident was not admissible to attack

O.O.’s credibility because it was extrinsic evidence.                               See id.

We   therefore     conclude       that     the   trial        court    did    not   err    in

excluding the video.
                                             -6-
     Father        next      argues     the       trial      court     erred          when       it

adjudicated O.O. a neglected juvenile.                      We disagree.

     When     reviewing        an     adjudication           of     neglect,          we     must

determine     whether        the    trial        court’s     findings       of    fact          are

supported by clear and convincing evidence, and whether those

findings of fact support the trial court’s conclusions of law.

In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365

(2000).     If the trial court’s findings of fact are supported by

competent evidence, they are binding on appeal, even if there

may be evidence to support contrary findings.                            In re T.H.T.,

185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007), aff’d as

modified, 362 N.C. 446, 665 S.E.2d 54 (2008).                            We review the

trial   court’s        conclusions      of       law   de    novo.      In       re    J.S.L.,

177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).

     A “neglected juvenile” is defined in part as “[a] juvenile

who does not receive proper care, supervision, or discipline

from the juvenile’s parent . . . or who lives in an environment

injurious     to       the    juvenile’s         welfare.”           N.C.    Gen.           Stat.

§ 7B-101(15) (2013).           An adjudication of neglect requires “there

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,
                                        -7-
or   discipline.”      In     re   Safriet,      112 N.C.    App.     747,    752,

436 S.E.2d     898,   901–02       (1993)     (internal      quotation       marks

omitted).      “Section   7B-101(15)        affords   the   trial   court    some

discretion in determining whether children are at risk for a

particular kind of harm given their age and the environment in

which   they   reside.”       In   re    C.M.,   183 N.C.    App.     207,    210,

644 S.E.2d 588, 592 (2007) (internal quotation marks omitted).

     In the case sub judice, the trial court heard testimony

from both O.O. and father regarding the events occurring on 27

February    2013.     Based   on   the    evidence,    the    court    found    as

follows:

             The Respondent/father awoke in the morning
             as he usually does. He allowed the juvenile
             to practice driving and was waiting in the
             car when the juvenile left the house. There
             was ice/frost on the windshield of the car.
             The Respondent/father allowed the juvenile
             to start the car.      The juvenile began to
             back up the car. The Respondent/father felt
             that the juvenile was going to strike a
             telephone pole and needed to scrape the
             ice/frost   off    the   windshield.     The
             Respondent/father provided the juvenile with
             a scraper.      The juvenile scraped the
             windshield but not enough to where the
             Respondent/father felt it was safe enough
             for her to drive.      There was an argument
             wherein the juvenile got out of the motor
             vehicle. The Respondent/father attempted to
             forcefully place the juvenile back into the
             vehicle.     The juvenile did strike the
             Respondent/father      and     fought    the
             Respondent/father.   The juvenile ran to the
                        -8-
front    door     to    get     away     from    the
confrontation with the Respondent/father.
Once inside the home the confrontation began
to escalate.     Respondent/father grabbed the
juvenile forcefully, placed her on the couch
and told her she was going to listen to him.
The juvenile attempted to remove herself
from the couch and at each attempt the
Respondent/father       forcefully       kept    the
juvenile from leaving the couch.                Both
Respondent/father and the juvenile continued
to escalate the confrontation.             Both the
Respondent/father and the juvenile were
physically assaulting the other.           Both the
Respondent/father and the juvenile were
yelling    and   screaming      at    each    other.
Eventually this led to another room of the
home at which time the Respondent/father
attempted    to    restrain    the    juvenile    by
bending her hand backwards and at one point
when    Respondent/father       was     trying    to
restrain the juvenile he put his hands on
her neck area for a couple of seconds. The
Respondent/father       indicated       that     the
juvenile was being disrespectful and told
the juvenile that she was not going to
school that day but was going to stay home
and think about what she had done.               The
confrontation          ended         when        the
Respondent/father left the home to move the
car.    The juvenile ran outside and called
her   mother    on    her   cell    phone.       The
Respondent/father chased her, tackled her
and took her phone.        The Respondent/father
finally took the juvenile to her school in
Charlotte, North Carolina.              The school
officials noticed the juvenile was crying
and had minor scratches on her shoulder, a
swollen right hand, and bruising.                The
school    officials     inquired     as    to   what
happened and the juvenile told them the
injuries       were       caused         by      the
Respondent/father.
                                             -9-
      In   his   challenge        to    the     trial     court’s     adjudication        of

neglect, father does not argue the court’s findings of fact are

lacking     evidentiary       support.              Rather      than        contest       the

evidentiary basis of the trial court’s findings of fact, father

“denies the finding that he physically assaulted [O.O.]” and

“denies    choking    or    intentionally          hurting     his    daughter.”           He

argues     “[t]he    evidence          showed      that    [father]      attempted        to

restrain his daughter to get her unruly behavior under control.

If   [O.O.]   got    hurt    in    the       process,     it   was    due    to    her    own

misconduct, and not any intentional or inappropriate action on

[father’s] part.”           Father essentially claims the trial court

erred by finding O.O.’s testimony to be credible and by failing

to resolve evidentiary inconsistencies in his favor.                              The trial

court, however, was free to reject father’s testimony and give

credence to O.O.’s testimony, and we decline father’s invitation

to reweigh the evidence and substitute our judgment for that of

the trial court.           See In re Whisnant, 71 N.C. App. 439, 441,

322 S.E.2d 434, 435 (1984) (stating that it is the trial court’s

“duty to weigh and consider all competent evidence, and pass

upon the credibility of the witnesses, the weight to be given

their    testimony    and     the       reasonable        inferences        to    be    drawn

therefrom”).        Therefore,         the    trial     court’s      findings      of    fact
                                      -10-
based on O.O.’s testimony are binding on appeal.                         See In re

T.H.T., 185 N.C. App. at 343, 648 S.E.2d at 523.

    In addition to the trial court’s findings of fact regarding

the altercation between O.O. and father on 27 February 2013, the

trial   court    found    that    O.O.    has    “anger      issues,”    has    been

“combatant”     with    both    father    and   her    mother,     and    has   been

involved   in    numerous      altercations     with   family      members.      The

trial court further found as fact that:

           [t]he animosity that has built up in the
           juvenile towards the Respondent/father and
           the Respondent/mother has caused these angry
           outbursts from the juvenile. Based on prior
           outbursts   between    the   juvenile,   the
           Respondent/parents, and the siblings; [sic]
           to return the juvenile to either parent
           would lead to substantial risk of aggressive
           behavior between the parties, create an
           injurious environment, and place all parties
           at risk of bodily harm.

The court finally found that father was “not capable of getting

the juvenile the help she needs.”                Father does not challenge

these findings of fact, and they are thus binding on appeal.

See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731

(1991) (“Where no exception is taken to a finding of fact by the

trial   court,    the    finding     is   presumed      to    be    supported     by

competent evidence and is binding on appeal.”).                     Based on the

foregoing, we conclude that the trial court’s findings of fact
                                           -11-
are    sufficient       to    support      its    conclusion     that    O.O.     is     a

neglected juvenile.            Accordingly, we affirm the trial court’s

order adjudicating O.O. a neglected juvenile.

       Father    next    argues      the   trial    court’s      disposition      order

erroneously     modified       the    adjudication      order    by   ordering     that

O.O.   was     adjudicated         both   neglected    and   dependent      when       the

juvenile had only been adjudicated neglected.

       There are “two phases in juvenile hearings——adjudication

and    disposition.”           In    re    Eades,     143 N.C.    App.     712,    713,

547 S.E.2d      146,    147    (2001).       An     adjudication      hearing     in    a

juvenile action is “a judicial process designed to adjudicate

the existence or nonexistence of any of the conditions alleged

in a petition.”         N.C. Gen. Stat. § 7B-802 (2013).                 Whereas, the

purpose of a disposition hearing is to design an appropriate

plan to meet the juvenile’s needs and protect and promote public

safety.      N.C. Gen. Stat. § 7B-2500 (2013).

       Here,     O.O.        was     adjudicated       neglected         during        the

adjudication phase.           It is therefore clear that the trial court

erred by ordering that O.O. was also adjudicated a dependent

juvenile during the disposition phase.                 It does appear, however,

that this was a mere clerical error.                  Accordingly, we remand the

disposition order for correction of this clerical error.                               See
                                             -12-
State v. Smith,          188 N.C. App. 842, 845, 656 S.E.2d 695, 696

(2008) (“When, on appeal, a clerical error is discovered in the

trial court’s judgment or order, it is appropriate to remand the

case to the trial court for correction because of the importance

that    the   record     speak       the    truth.”    (internal        quotation         marks

omitted)).

       Father further argues the trial court erred at disposition

by    finding    that    “inappropriate             discipline”        was    one    of    the

“problems”       that    led     to    the       adjudication      of    neglect.            We

disagree.

       The trial court found as fact at adjudication that “neither

the    Respondent/father         nor       the   juvenile   handled          the    situation

[which led to the adjudication of neglect] in an appropriate

manner.”      We conclude that the trial court could thus properly

determine at disposition that “inappropriate discipline” was a

“problem”       that    led    to     the    adjudication         of    neglect.           Even

assuming      arguendo        that    this       finding    was    erroneous,         it    is

harmless error given that it appears to have had no impact on

the dispositional plan for father.

       Affirmed; remanded for correction of a clerical error.

       Judges ELMORE and HUNTER, JR. concur.

       Report per Rule 30(e).
