Volume 109 — North Carolina Court of Appeals Reports

Parent and Child 1.5 (NCI3d) — termination of parental rights — petitions not verified — no jurisdiction over subject matter Petitions to terminate respondent's parental rights were defective on their face and should have been dismissed because they failed to comply with N.C.G.S. 7A-289.25 in that they were not verified, and the trial court therefore had no jurisdiction over the subject matter of this case. Am Jur 2d, Parent and Child 7; Pleading 340.

1. Searches and Seizures 32 (NCI3d) — termination of parental rights — videotapes and other sexually explicit materials — criminal charges dismissed — disposition of materials Videotapes and other sexually explicit materials were admissible in a termination of parental rights hearing where deputies went to respondents' house to measure the temperature of the water heater; they seized approximately 1,100 videotapes and other sexually explicit materials dealing with female bondage; respondents were arrested and charged with sexual exploitation of a minor and taking indecent liberties with a minor; DSS petitioned to terminate respondent's parental rights; the criminal charges were dismissed; and the Sheriff's Department transferred the seized materials to DSS. Although respondents argue that the North Carolina Constitution prohibits the State from depriving a person of property, that DSS is not a law enforcement agency, that the transfer of goods was not permitted under N.C.G.S. <cross_reference>15A-258</cross_reference>, and that the materials were<page_number>Page 540</page_number> inadmissible in the termination of parental rights hearing because they were illegally held and transferred, there is nothing to indicate that respondents ever requested that the materials be returned and, even if they had been returned, DSS could have obtained them by subpoena. 2. Evidence and Witnesses 1732 (NCI4th) — termination of parental rights — 1,100 sexual videotapes — all placed in courtroom — no error There was no error in a termination of parental rights proceeding where DSS brought 1,100 alleged sexual videotapes into the courtroom. Although respondents argued that not all of the tapes had been viewed by a DSS caseworker, that some of the tapes did not involve sexual subject matter, that some of the tapes were mislabeled, and that permitting all of the tapes to be placed in the courtroom overwhelmed the trial court, it is presumed that the judge disregarded any incompetent evidence. The trial court's finding of fact focuses on the labeling of the videotapes rather than the actual content and was not dependent upon the number of videotapes actually viewed by the DSS caseworker. 3. Evidence and Witnesses 1732 (NCI4th) — termination of parental rights — sexual videotapes — relevant Videotapes and other sexual materials were relevant and admissible in a termination of parental rights proceeding where the materials were found in respondents' bedroom or underneath their bed and not in the children's bedroom. A psychologist testified that the seven-year old child told her that she had seen two videotapes involving sexually explicit material, including female bondage, in the presence of her parents and that she could be heard asking in a videotape made by her father, "What are those girls doing in those pictures? I want to be in those pictures." Respondent answered "I'll put you in those pictures later." The materials were relevant to show the home environment of the children and to show the nature of respondents' supervision of the children. 4. Parent and Child 1.6 (NCI3d) — termination of parental rights — prior order — evidence sufficient There was no error in a termination of parental rights proceeding based on neglect in the denial of respondents' motion to dismiss where the court correctly admitted a prior order<page_number>Page 541</page_number> adjudicating the child to be an abused juvenile, considered evidence of the circumstances before and after the prior adjudication of abuse, evidence was presented that respondents had refused to submit to psychological evaluation and treatment and there was no improvement in respondents' living and employment conditions from August 1990 to March 1991. Am Jur 2d, Parent and Child 34. <block_quote> Physical abuse of child as ground for termination of parent's right to child. 53 ALR3d 605.</block_quote> 5. Parent and Child 1.6 (NCI3d) — termination of parental rights — findings — supported by evidence The trial court did not err in a termination of parental rights proceeding by finding that the child had observed sexually explicit photographs being videotaped by her father or by correlating respondents' interest in sexual bondage and torture and respondents' treatment of their children. Erroneous findings that respondents had taught the child to use the term "lolly pop" when referring to a penis and that she had seen a sexually explicit movie on television at her parents' house were not prejudicial. Am Jur 2d, Parent and Child 34. <block_quote> Sexual abuse of child by parent as ground for termination of parent's right to child. 58 ALR3d 1074.</block_quote>

1. Embezzlement 6 (NCI4th) — refundable reservation deposit for condominium — use of funds for start-up costs — deposits not returned — sufficient evidence of embezzlement The evidence of a fiduciary relationship and fraudulent intent was sufficient to support defendant's conviction of embezzlement where it tended to show that defendant was an officer in corporations developing, marketing and managing condominium retirement communities; potential purchasers of a planned condominium project in Greensboro reserved a unit by paying five percent of the purchase price as a deposit; this deposit was fully refundable within 30 days upon written notice by the purchaser; the purchaser was required to pay another five percent when the contract of sale was signed, and the contract provided that the initial reservation deposit was to be held in a savings account until a construction loan commitment was obtained<page_number>Page 602</page_number> for the project, at which time the deposit would be returned to the purchaser; defendant controlled the deposit of reservation funds and used these funds to pay various start-up expenses for the project; defendant intended to replace this money through the sale of limited partnership interests in the project; however, the partnerships were not in fact secured, the money was not replaced, and several persons who had reserved units did not receive a refund of their deposits. It is not necessary to show that defendant converted the property to his own use provided the State shows that defendant fraudulently or knowingly and willfully misapplied the property for purposes other than those for which he received it as agent or fiduciary, and an intent to restore or repay the property is not a defense to prosecution. Am Jur 2d, Embezzlement 1 et seq. <block_quote> Embezzlement by independent collector or collection agency working on commission or percentage. 56 ALR2 1165.</block_quote> 2. Evidence and Witnesses 967 (NCI4th) — receipts and copies of checks — business records exception — authentication Reservation deposit receipts, photographic copies of reservation deposit checks, and receipts for public offering statements seized by an officer from the model showroom office of a condominium project were admissible pursuant to the business records exception to the hearsay rule, and the officer was properly permitted to testify as to the names, dates and dollar amounts shown on each document, where the authenticity of the records was established by a condominium salesman's testimony that his own signature appeared on six of the reservation deposit receipts; he had received the deposit checks; all of the documents represented those kept by the condominium sales office in the course of a regularly conducted sale of a condominium unit and were created at the time of a sales transaction; and the office records were kept in the file compartment in the showroom. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 803(6). Am Jur 2d, Evidence 914 et seq. <block_quote> Admissibility in state court proceedings of police reports as business records. 77 ALR3d 115.</block_quote><page_number>Page 603</page_number> 3. Evidence and Witnesses 299 (NCI4th) — exclusion of evidence — probative value outweighed by danger of misleading jury The trial court in an embezzlement prosecution did not abuse its discretion by refusing to permit an officer to testify that the failure to put condominium deposits in escrow in violation of N.C.G.S. <cross_reference>47C-4-110</cross_reference> is not subject to criminal sanctions on the ground that, even if such testimony was relevant, its probative value was outweighed by the danger that it would mislead the jury. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 403. Am Jur 2d, Evidence 260. 4. Housing 79 (NCI4th) — condominiums — refundable reservation deposit — 30-day wait — penalty — escrow requirement Where potential purchasers of condominium units were entitled to a full refund of their reservation deposits within thirty days of the seller's receipt of written notice of cancellation, the thirty-day wait period acts as a penalty because the potential purchasers lose interest on their money during that time. Therefore, the reservation deposits are not exempted from the public offering requirement of N.C.G.S. <cross_reference>47C-4-101</cross_reference>(b)(6) and are required by N.C.G.S. <cross_reference>47C-4-110</cross_reference>(a) to be placed in an escrow account.