Smith Ex Rel. Smith v. Smith
145 N.C. App. 434, 549 S.E.2d 912, 2001 N.C. App. LEXIS 666 (2001)
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Rule of Law:
To obtain a domestic violence protective order under N.C.G.S. § 50B-1(a)(2), the aggrieved party must prove they had an actual, subjective fear of imminent serious bodily injury. A feeling of being 'uncomfortable' or 'creepy,' without a corresponding fear of bodily harm, is insufficient to meet this statutory requirement.
Facts:
- George Smith (Defendant) was the primary caregiver for his twelve-year-old daughter, Cassandra Smith (Plaintiff), while recovering from a manic episode.
- On approximately 30 occasions, Defendant touched Plaintiff on her buttocks or chest over her clothes.
- Plaintiff testified that Defendant's touching made her feel 'very uncomfortable' and 'creepy,' and that he would not stop until she pulled away and left the room.
- Plaintiff also testified that Defendant had never physically hurt her and she was not afraid that he would physically hurt her.
- On the evening of February 9, 2000, Plaintiff telephoned her grandmother to report that Defendant had touched her in an inappropriate manner that day.
- Following Plaintiff's report, a complaint was filed with the Department of Human Services (DHS).
- On February 14, 2000, Defendant voluntarily entered a child protection plan with DHS, agreeing not to be alone with Plaintiff.
Procedural Posture:
- Based on Plaintiff's allegations, an ex parte domestic violence protective order was issued on February 14, 2000, in the trial court.
- Following a hearing, the trial court entered a domestic violence protective order on February 25, 2000, which was effective for six months.
- The trial court found that Defendant's actions placed Plaintiff in 'actual fear of imminent serious bodily injury, in the form of an emotional injury.'
- George Smith (Defendant-Appellant) appealed the entry of the protective order to the intermediate appellate court.
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Issue:
Does a defendant's conduct that causes a minor child to feel 'uncomfortable' and 'creepy,' but not afraid of physical harm, constitute 'placing the aggrieved party in fear of imminent serious bodily injury' as required to issue a domestic violence protective order under N.C.G.S. § 50B-1(a)(2)?
Opinions:
Majority - Greene, J.
No. A defendant's conduct that causes a child to feel uncomfortable but not afraid of physical harm does not meet the statutory requirement of placing them 'in fear of imminent serious bodily injury.' The statute requires a subjective finding that the aggrieved party actually feared such injury. In this case, the trial court's own findings of fact state that the Plaintiff testified she was not afraid Defendant would physically hurt her. Feelings of being uncomfortable or 'creepy' do not equate to the fear of serious bodily injury required by N.C.G.S. § 50B-1(a)(2). Therefore, the evidence does not support the legal conclusion necessary to issue a domestic violence protective order.
Dissenting - McGee, J.
Yes. A defendant's conduct can place a child in fear of imminent serious bodily injury, even if the child only testifies to a fear of emotional injury and not physical harm. The trial court found as a fact that the Defendant's behavior placed the Plaintiff in 'actual fear of imminent serious bodily injury, in the form of an emotional injury,' and this finding was not challenged on appeal. The majority improperly substitutes its judgment for the trial court's by discounting this finding based on the child's testimony that she did not fear physical harm; a person can fear serious emotional injury without fearing physical injury. The trial judge, having observed the witness's demeanor, was in the best position to assess her credibility and determine her true state of fear.
Analysis:
This decision narrowly interprets the phrase 'in fear of imminent serious bodily injury' within North Carolina's domestic violence statute, requiring a specific, subjective fear of physical harm. It clarifies that general discomfort, emotional distress, or 'creepy' behavior, while inappropriate, may not satisfy the statute's requirements for a protective order without evidence of actual fear of bodily injury. This ruling emphasizes the distinction between conduct that is criminal or socially unacceptable and conduct that meets the specific legal definition of 'domestic violence' for civil protective orders. It potentially makes it more difficult for victims of psychological or emotional abuse to obtain a protective order unless they can articulate a specific fear of physical harm.
