Matter of Barkley

300 S.E.2d 713 (1983)

In the Matter of Dariyan BARKLEY, Latera Barkley and Johnny Barkley.

No. 8212DC265.

Court of Appeals of North Carolina.

March 15, 1983.

Jennie Dorsett, Fayetteville, for petitioner-appellee.

Asst. Public Defender, Staples Hughes, Fayetteville, for respondent-appellant.

EAGLES, Judge.

Respondent initially argues that the court erred when it denied respondent's motion to strike the testimony of Dariyan and Ms. Roach as to statements Lester Whittington made to Dariyan concerning the noise in the hallway and Dariyan's punishment for failing to stop it. We reject respondent's contention that Dariyan's and Ms. Roach's testimony as to the statements was hearsay and excludable, since the testimony was not admitted to prove the truth of the matter contained in the statements but rather to show that the statements were made and Dariyan's resulting state of mind. Wilson v. Indemnity Co., 272 N.C. 183, 158 S.E.2d 1 (1967); Brandis, 1 Brandis On North Carolina Evidence § 141 (2d rev. ed. 1982).

Respondent next assigns as error the court's granting petitioner's motion to exclude her from the courtroom while Dariyan, her eleven-year-old son, testified. We reject respondent's argument that her right to confront the witnesses against her was denied when she was excluded from the courtroom. Although G.S. 7A-631 guarantees respondent the right to confront and cross examine the witnesses, the right to confront witnesses in civil cases is subject to "due limitations." See Davis v. Wyche, 224 N.C. 746, 32 S.E.2d 358 (1945). Where, as here, the excluded party's presence during testimony might intimidate the witness and influence his answers, due to that party's position of authority over the testifying witness, any right under Ch. 7A, Art. 51 to confront the witnesses is properly limited. The present case is easily distinguishable from Cook v. Cook, 5 N.C.App. 652, 169 S.E.2d 29 (1969), where it was held that the trial court had erred when it ordered that the child's testimony would be taken in chambers with only counsel for both parties being present. Unlike Cook where the judge did all the questioning in chambers, the trial court here preserved the adversarial nature of the process and protected defendant's right to confront the witnesses by allowing each party's counsel to question Dariyan themselves, in the courtroom, with the questions and answers being recorded. We find that respondent suffered no prejudice as a result of her exclusion from the courtroom during her son's testimony, since the trial court preserved respondent's opportunity to cross examine through her court-appointed counsel.

Respondent next asserts as error the court's decision to allow testimony as to respondent's lack of contact with her children after they had been removed from her home pending the hearing to determine parental rights. Respondent also objected to the admission of testimony that respondent had been receiving $600.00 monthly in Social Security payments, but had failed to spend the money for the benefit of her children during that same period. G.S. 7A-640 permits the use of unadjudicated acts as evidence to be considered for disposition. See In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979). While G.S. 7A-639 provides that "[n]o predisposition report shall be submitted to or considered by the judge prior to the completion of the adjudicatory hearing," there is no evidence in the record indicating that the trial court considered the above testimony for any purpose other than for determining an appropriate disposition. We therefore reject these two assignments of error.

Finally, respondent challenges the court's finding that her children were inadequately clothed. Ms. Roach testified that the respondent could not find any socks or underwear for Dariyan and had to give her money to purchase some for him. Another social worker, Mr. Locklear, said that on all four occasions that he was in respondent's home he observed the children in "raggedy" clothes. He also testified that the five-year-old child was wearing his eleven-year-old brother's pants and had to hold them up with his hand as they were too large and he had no belt. Since our appellate court is bound by the findings of fact made by a trial court where there is some evidence to support those findings, we find no merit in this assignment of error. 1 North Carolina Index 3d, Appeal and Error § 57.2.

For the above reasons, in the hearing to terminate parental rights, we find

No error.

HEDRICK and JOHNSON, JJ., concur.