Matter of Carr , 116 N.C. App. 403 ( 1994 )

448 S.E.2d 299 (1994) 116 N.C. App. 403

In the Matter of Dyron CARR.

No. 9314DC914.

Court of Appeals of North Carolina.

September 20, 1994.

Jane Elizabeth Volland, Durham, for appellant Guardian Ad Litem.

Durham County Attorney's Office by Asst. County Atty. Wendy Sotolongo, for appellant Durham County Dept. of Social Services. (No brief was filed on behalf of Durham County Dept. of Social Services.)

Eagen, Eagen & Ellinger by Jeffrey R. Ellinger, Durham, for appellee Tammy Yarborough.

EAGLES, Judge.

Appellant Guardian Ad Litem (appellant) brings forth several assignments of error. After careful review, we reverse and remand.

I.

Appellant first argues that the trial court erred by not properly following the two-stage process set out in G.S. 7A-289.30 and 7A-289.31 for terminating parental rights. G.S. 7A-289.30 provides that in the adjudicatory stage, the petitioner must prove by clear and convincing evidence that one or more of the statutory grounds for terminating parental rights exists. Matter of Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). Once the petitioner meets this burden, G.S. 7A-289.31 provides that the trial court moves to the dispositional stage where the court has the discretion to terminate parental rights. Montgomery, 311 N.C. at 110, 316 S.E.2d at 252. Because the decision is discretionary, the trial court can refuse to terminate parental rights even when the petitioner has proven its case by clear and convincing evidence. Although there are two separate stages involved in a termination of parental rights proceeding, the court does not have to conduct two separate hearings. Matter of White, 81 N.C.App. 82, 344 S.E.2d 36, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).

Appellant contends that the trial court erred in this case because the trial court did not fulfill its duties in the adjudicatory stage before proceeding to the dispositional stage. Appellant asserts that the trial court used its own discretion in the adjudicatory stage, thus improperly combining the two stages into one. Appellant points to the court's language to support its assertion that the trial court improperly combined the two stages:

[T]he Court, at this time, is not willing to conclude or find that there is clear, cogent and convincing evidence that the mother's parental rights should be terminated, but that the matter should be continued with a new plan of visitation with the mother and child after she becomes married to Mr. Weatherspoon.

We agree with appellant that this language shows that the trial court improperly combined the two stages of the termination hearing. By stating that it was "not willing to conclude" that there was clear and convincing evidence, the trial court showed that it was improperly exercising its discretion in the adjudicatory stage. G.S. 7A-289.30 and 7A-289.31 provide that the court exercises its discretion in the dispositional stage only after the court has found that there is clear and convincing evidence of one of the statutory grounds for terminating parental rights during the adjudicatory stage. Accordingly, we reverse the trial court's decision and remand for a rehearing on the termination of parental rights petition.

II.

Appellant also argues that the trial court erred by not terminating the parental rights of appellee because it was in the best interest of Dyron for the court to terminate appellee's rights. Here, we do not address appellant's assignment of error because we have already determined that the trial court improperly omitted making an adjudication during the first stage of the termination proceeding.

III.

Finally, appellant contends that the trial court erred by not allowing appellant's expert witness Susan Sweeney to testify regarding appellee's mental health and appellee's capacity to parent her minor child, Dyron. G.S. 8C-702 provides that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." North Carolina courts "construe this rule to admit expert testimony when it will assist the [factfinder] ``in drawing certain inferences from the facts, and the expert is better qualified than the [factfinder] to draw such inferences.' " North Carolina v. Parks, 96 N.C.App. 589, 591, 386 S.E.2d 748, 750 (1989) (citing State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988), cert. denied, 488 U.S. 975, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988)). The trial court has wide discretion in applying this rule and will only be reversed for an abuse of discretion. Id.

Here, the trial court said that Ms. Sweeney qualified as an expert witness in clinical social work, specifically dealing with adolescents. However, the court would not allow her to testify concerning her opinion of appellee's mental status and how appellee would be prepared to take care of Dyron if the court returned him to her care. Our Supreme Court has stated that in determining the best interest of the child, the trial court should hear and consider any evidence which is competent, relevant, and is not cumulative. Matter of Shue, 311 N.C. 586, 598, 319 S.E.2d 567, 574 (1984). Appellant asserts that Ms. Sweeney's testimony regarding the mental status of the appellee would have assisted the trial court in making an informed decision and that, in light of Shue, the trial court erred in excluding her testimony on this subject. While Ms. Sweeney's testimony may have been enlightening, Ms. Sweeney was only qualified as an expert in clinical social work. There is no evidence here that she was an expert in mental health issues. Therefore, the trial court did not err in excluding her testimony concerning appellee's mental status.

Reversed and remanded for rehearing on the termination of parental rights hearing.

COZORT and LEWIS, JJ., concur.