In re: A.H. & C.H.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-581
Filed: 6 December 2016
Durham County, No. 13 JT 78, 13 JT 79
IN THE MATTER OF A.H., C.H.
Appeal by Respondent from orders entered 8 June 2015, 19 October 2015, and
19 January 2016 by Judge William A. Marsh, III in Durham County District Court.
Heard in the Court of Appeals 19 October 2016.
Senior Assistant County Attorney Bettyna Belly Abney, for petitioner-appellee
Durham County Department of Social Services.
Mobley Law Offices PA, by Marie H. Mobley, for guardian ad litem.
Peter Wood for respondent-appellant mother.
INMAN, Judge.
Respondent-mother (“Mother”) appeals from an order terminating her parental
rights as to her minor children C.H. (“Clark”)1 and A.H. (“Andrew”). On appeal,
Mother contends that the trial court abused its discretion by restricting her right to
present evidence at the termination hearing and by determining that termination of
her parental rights was in the best interests of Clark and Andrew. After careful
review, we hold that the trial court did not abuse its discretion.
Factual and Procedural History
1 We use the pseudonyms adopted by the parties to protect the juveniles’ identities.
IN THE MATTER OF A.H., C.H.
Opinion of the Court
On 5 June 2002, Mother gave birth to Andrew. On 5 November 2006, Mother
gave birth to Clark. The children’s biological father passed away on 2 October 2010.
On 20 April 2013, Mother, Andrew, and Clark were at a Food Lion in Durham,
North Carolina. Andrew attempted to steal candy from the store, but was caught.
Upon hearing of Andrew’s attempted theft, Mother hit Andrew in the face, grabbed
him around the neck in a choke hold position, and caused Andrew’s head to hit a
bank card swipe machine. Food Lion security personnel and other bystanders
immediately intervened and stepped in between Mother and Andrew. Mother then
exited the store with Clark, leaving Andrew behind. Mother did not leave any contact
information. As Mother left, her car’s license plate number was noted.
The Durham County Police Department was notified and located Mother
shortly after her exit. Mother claimed she left the Food Lion to go to the police
department. Mother was charged with misdemeanor child abuse, misdemeanor
assault on a child under twelve, and misdemeanor assault on a handicapped person.
At the Durham Police Station, Mother told a social worker that she wanted
Andrew and Clark to be placed in foster care, because she did not think her family
members in Durham were good placements for the children. Andrew and Clark were
immediately placed in a rapid response therapeutic home.
The Durham County Department of Social Services (“DSS”) filed petitions
alleging that both Andrew and Clark were neglected. At the adjudication hearing on
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Opinion of the Court
6 June 2013, Mother stipulated to all of the court’s findings of fact and the
adjudication that both juveniles were neglected. At the conclusion of the disposition
hearing on 2 July 2013, the trial court placed the children in the legal custody of DSS,
allowed Mother supervised visitation, and ordered Mother to follow all
recommendations resulting from a psychological evaluation, including anger
management.
At the time of the grocery store incident and initial placement, Andrew was
ten years old and Clark was six years old. Both children suffered from behavioral
and developmental disorders. Andrew had been diagnosed with Attention Deficit
Hyperactivity Disorder, developmental delay, and Major Depressive Disorder, and
was receiving services for autism, behavioral issues, and anxiety. Additionally,
Andrew received occupational therapy. Clark had been diagnosed with
developmental delay, speech impairment, and epilepsy, and suffered from seizures.
Like his brother, Clark also received occupational therapy. Although it was unknown
if a formal diagnosis had been made, Clark demonstrated symptoms of autism and
Attention Deficit Hyperactivity Disorder.
On 15 July 2013, Andrew was hospitalized after running away from his foster
home and expressing suicidal tendencies. Andrew was admitted to the Duke Medical
Center Emergency Department, where he expressed that he was upset he did not get
to speak with Mother and stated he wanted to live with her and his brother. Mother
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Opinion of the Court
attempted to visit Andrew while he was in the emergency department, but hospital
policies did not allow visitation. Andrew’s mental health medical team recommended
he be placed in a therapeutic foster home that could provide Intensive Alternative
Family Therapy. The team also recommended that Andrew be placed in a home
where he would be the only child and that the foster parent(s) have prior experience
or special training with parenting autistic children.
On 5 September 2013, after conducting a hearing to review the custody and
placement of Andrew and Clark, the trial court entered a Review Order. The court
found that Clark had remained in the same foster care placement since 4 June 2013
and that Mother had participated in autism support groups, reviewed the children’s
care with social workers, and attended medical appointments for the children. The
court concluded that it was in the best interest of the children to remain in the legal
custody of DSS, with DSS having placement authority. The court ordered Mother to
continue in individual therapy for anger management and parenting skills, maintain
visitation with the children, and participate in other services or therapy as
recommended.
On 5 October 2013, Andrew was re-hospitalized after running away again from
his foster home. While at the hospital, Andrew expressed, again, that he wanted to
live with his mother. Andrew continued to express suicidal thoughts. Clark had been
moved from his previous foster home, and was placed in a new foster home.
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
On 4 and 6 December 2013, the trial court held an initial permanency planning
hearing. On 6 January 2014, the trial court entered a Permanency Planning Order
concluding that “it is in the best interest[s] of the children that the permanent plan
of care be reunification with the mother[.]” The court’s findings of fact noted Andrew’s
second hospitalization, his move to a new foster care home, and his ongoing condition.
The court also found that Mother had attended supervised visits, medical
appointments, treatment team meetings, Child and Family Team meetings, and
individual weekly therapy sessions. The court ordered Mother to continue with the
same services and to participate in and complete a forensic parental evaluation.
Two months later, on 10 March 2014, Andrew ran away from school and, when
found, expressed to officers that that he wanted to be run over by a car. Andrew’s
medical team recommended a stay at Spring Brook Behavioral Healthcare (“Spring
Brook”), and Andrew was placed at Spring Brook on 27 March 2014. Mother
participated in family therapy at Spring Brook. During a family therapy session,
Mother expressed to Andrew her hatred towards Brianna Dearing (“Dearing”), a
social worker. Mother stated she wanted to beat Dearing “bad.” When Andrew
explained Dearing was trying to help them, Mother said, “no[,] she is not helping us,”
and spoke for about three minutes about how she could beat Dearing to death. Due
to Mother’s statements regarding Dearing, the therapist redirected Mother out of the
room.
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
On 3 June 2014, after conducting a permanency planning review hearing on 2
May 2014, the trial court entered a Permanency Planning Review Order. The trial
court found that as of the 2 May 2014 hearing, Mother had completed all services
with the Autism Society of North Carolina and had begun a parenting program. The
court further found that while the children could not return home immediately,
reunification was possible within the following six months.
On 25 September 2014, the court held another permanency planning review
hearing. In an order entered in open court that same day, the court found that
Andrew had shown improvement while at Spring Brook and had stopped inflicting
and threatening self-harm. Andrew’s therapist reported that Andrew recounted
spankings by his older brother and an incident where Mother duct-taped Andrew’s
feet together. The therapist indicated that Andrew expressed a desire for revenge
and anger towards his family. Mother had visited Andrew at Spring Brook, until her
visitation was suspended because of her disruptive behavior during two visits. Once
she was allowed to resume supervised visitation, Mother was unable to do so due to
a staff shortage. Clark was doing well with his foster family and in school. Mother
was attending parenting classes and visitations but had “not consistently
demonstrated positive parenting skills during visitation[s].” The court changed the
permanent plan of care, adding guardianship by a court-approved caretaker as an
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alternative to reunification with Mother. The court directed Mother to continue
participating in individual therapy.
On or about 4 November 2014, DSS filed a motion to modify visitation. The
motion alleged that on 23 October 2014, Clark attended supervised visitation with
Mother in her home. During this visit, Clark had a “melt down” and Mother dragged
Clark to a time out. The supervisor found it “difficult” to redirect Mother during
visits, as Mother had refused to change her behavior. DSS requested that all
visitation be supervised and located at DSS.
On 8 June 2015, more than two years after Andrew and Clark were removed
from Mother’s custody and initially adjudicated neglected, the trial court entered a
Permanency Planning Review Order changing the permanent plan of care to
adoption, with an alternate plan of guardianship by a court-approved caretaker. The
court’s findings noted, inter alia, a report by Andrew’s therapist that Mother
“consistently minimizes [Andrew]’s feelings about past incidents and that she often
becomes angry” during the phone conversations and a report by Clark’s social worker
that his “most disruptive days continue to be the days when he has visits with his
mother.”
The court found that Mother had not completed all recommended services, had
refused to participate in family therapy for Andrew, and had not changed her
parenting behavior. The court found that “[Mother] continues to have unrealistic
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expectations for [Andrew’s and Clark’s] behaviors and is unwilling to work on
managing their mental health issues. She continues to insist their behaviors arise
solely from residing in foster care and not due to her own parenting approach.” The
court found that the permanent plan of reunification could not be implemented at
that time because Mother “ha[d] not completed all of the recommended services, nor
ha[d] she consistently demonstrated positive parenting skills during visitation.” The
court concluded that reunification efforts with Mother would be either futile or
inconsistent with the children’s health, safety, and need for a safe permanent home
within a reasonable period of time.
On or about 1 June 2015, DSS filed a Motion/Petition for Termination of
Parental Rights. DSS alleged Mother’s parental rights were subject to termination
pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) (neglect), (2) (failure to make reasonable
progress), (3) (failure to pay a reasonable portion of the cost of the children’s care),
and (6) (dependency).
On 5 August 2015, Mother subpoenaed Andrew to appear and testify at
Mother’s termination of parental rights hearing.
On 11 August 2015, Mother personally filed with the trial court a ten-page
report entitled “Respondent Parent’s Court Summary” (“the Parent Report”). Mother
attached to the Parent Report documents that she intended to submit at the
termination proceeding.
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
On 13 August 2015, the Guardian Ad Litem Attorney Advocate (“GAL”) filed a
motion to quash Mother’s subpoena for Andrew’s testimony. The motion to quash
alleged that Andrew “will likely experience significant emotional distress and regress
from his recent progress in therapy, if required to appear and testify in this
proceeding.” The GAL argued the subpoena was unreasonable and oppressive. The
GAL attached a letter from Andrew’s therapist, which provided, in pertinent part:
This letter is to inform the court in the case of [Andrew]
and his inability to provide testimony in court proceedings.
The KidsPeace clinical team have staffed this case and
determined that [Andrew]’s presence in court and
testimony would be detrimental to his treatment progress
and stability.
...
Should [Andrew] be required to testify[,] he will likely
experience an emotional and behavioral regression as
indicated by previous exposure to this topic when talking
with [Mother] during supervised phone calls. The team has
observed [Andrew] experience mood disturbances,
behavioral regression, and an increase in symptoms of
trauma after these conversations. Although the origin of
this regression is unclear, it appears closely related to the
topic of court. After requesting that these conversations
cease, symptoms and behaviors subsided. It is therefore
clinically recommended that [Andrew] not provide
testimony in court to maintain treatment gains and
promote well-being.
On 14 August 2015, Mother filed a response opposing the GAL’s motion to
quash. Mother’s response focused on Andrew’s competency and that Andrew’s
testimony would be relevant to the termination proceeding.
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
On 19 August 2015, the trial court held a hearing on the motion to quash. In
an order entered 19 October 2015, the court found that according to Andrew’s
therapist, he would “likely experience significant emotional distress and regress from
his recent progress in therapy, if required to appear and testify in this proceeding.”
Additionally, the court found that Mother “could not clearly articulate any factual
issues within the child’s knowledge that were necessary to her defense of the
termination action, and unavailable from other sources.” The court concluded: “1.
Any testimony of the child would be of little probative value[;] 2. The experience of
testifying is likely to cause the child significant emotional harm [; and] 3. The best
interests of the child are this court’s paramount concern.” Based on its findings and
conclusions, the court quashed Mother’s subpoena.
On 14 August 2015, Mother’s counsel delivered to the Guardian ad Litem
Durham Office and the DSS County Attorney all of the documentary evidence that
she sought to admit at the termination proceeding in a multi-pronged file folder (the
“Green Folder”). The Green Folder contained numerous documents, including the
Parent Report, which Mother had filed pro se with the trial court. On 6 October 2015,
the GAL filed a “GAL’s Response to Mother’s Proposed Evidence & Motion in Limine,”
seeking to exclude from evidence the contents of the Green Folder. The GAL provided
specific responses regarding the relevancy of each document contained in the Green
Folder, specifically noting that the Parent Report “[s]hould not have been filed, []
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Opinion of the Court
needs to be struck from the court file[,]” and “[s]hould not be introduced prior to [the]
best interests phase, if reached.”
On 19 October 2015, prior to the commencement of the adjudication phase of
the termination proceeding, the trial court conducted a hearing on the GAL’s motion
in limine. On that day, the trial court granted the GAL’s motion with respect to the
Parent Report, noting that it was filed without the signature of counsel. The trial
court also granted the GAL’s motion to exclude from evidence the other contents of
the Green Folder.
The court held hearings to determine whether grounds existed to terminate
Mother’s parental rights beginning on 19 October, and continuing on 20 October, 21
October, and 19 November 2015. On 19 November 2015, the adjudication phase of
the termination hearing (the “adjudication hearing”) ended and the trial court found
in open court “clear and convincing evidence that grounds exist for termination of
parental rights.” Later that same day, the trial court conducted the disposition phase
of the termination hearing (the “disposition hearing”) and determined in open court
that termination of Mother’s parental rights was in the best interests of the children.
A written order on the termination proceeding was entered 19 January 2016. In the
order, the court found clear, cogent, and convincing evidence of N.C. Gen. Stat. § 7B-
1111(a)(1) (neglect), (2) (failure to make reasonable progress), (3) (failure to pay a
reasonable portion of the cost of care for Andrew and Clark), and (6) (dependency) as
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Opinion of the Court
grounds for termination of Mother’s parental rights. The court also concluded that
“it is in the best interests of [Andrew] and [Clark] that the parental rights of their
mother be terminated.”
Mother filed a Notice of Appeal from the 8 June 2015 Permanency Planning
Review Order, the 19 October 2015 Order Quashing Subpoena, and the 19 January
2016 Order Terminating Parental Rights. However, in her brief filed with this Court,
Mother does not challenge the 8 June 2015 Permanency Planning Review Order,
which ceased reunification efforts.
Standard of Review
“The court’s determination of the juvenile’s best interest will not be disturbed
absent a showing of an abuse of discretion.” In re E.M., 202 N.C. App. 761, 764, 692
S.E.2d 629, 630 (2010) (citation omitted). “Abuse of discretion results where the
court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not
have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988) (citation omitted).
The trial court’s evidentiary decisions, including a decision granting a motion
to quash a subpoena on grounds that it is unduly burdensome, also will not be
disturbed absent a showing of abuse of discretion. See State v. Hurt, 235 N.C. App.
174, 182, 760 S.E.2d 341, 348, review denied, 367 N.C. 807, 766 S.E.2d 679 (2014) (“A
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Opinion of the Court
motion to quash a subpoena is addressed to the sound discretion of the trial court and
is not subject to review absent a showing of an abuse of discretion.”).
Analysis
Mother contends that the trial court abused its discretion by restricting her
right to present evidence at the termination proceeding. Additionally, Mother asserts
that the trial court abused its discretion in determining that termination of her
parental rights was in the best interests of Andrew and Clark. For the reasons
discussed below, we disagree with Mother’s arguments.
A termination of parental rights proceeding consists of a two-step process: an
adjudication phase and a disposition phase. In re Montgomery, 311 N.C. 101, 110,
316 S.E.2d 246, 252 (1984); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906,
908 (2001). In the adjudication phase, “the court must take evidence, find the facts,
and adjudicate the existence or nonexistence of any of the circumstances set forth in
N.C. Gen. Stat. § 7B–1111, which authorizes the termination of the respondent’s
parental rights.” In re J.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005) (citation
omitted); see also N.C. Gen. Stat. § 7B–1111 (2015).
“After finding that grounds for termination exist, the trial court moves to the
disposition phase.” In re A.R.H.B., 186 N.C. App. 211, 218, 651 S.E.2d 247, 253 (2007)
(citation omitted). In the disposition phase or the “best interest” phase, the trial court
“must determine whether termination of parental rights is in the best interests of the
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Opinion of the Court
child.” In re R.B.B., 187 N.C. App. 639, 643, 654 S.E.2d 514, 518 (2007). At this
phase, “[t]he court may consider any evidence, including hearsay evidence . . . that
the court finds to be relevant, reliable, and necessary to determine the best interests
of the juvenile.” N.C. Gen. Stat. § 7B-1110(a) (2015). The North Carolina Supreme
Court has held that
[w]henever the trial court is determining the best interest
of a child, any evidence which is competent and relevant to
a showing of the best interest of that child must be heard
and considered by the trial court, subject to the
discretionary powers of the trial court to exclude
cumulative testimony. Without hearing and considering
such evidence, the trial court cannot make an informed and
intelligent decision concerning the best interest of the
child.
Matter of Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984).
I. Right To Present Evidence
Mother contends that the trial court abused its discretion by restricting her
right to present evidence at the termination hearing. Specifically, Mother argues
that the trial court erred in: (1) quashing her subpoena for Andrew’s testimony, (2)
not allowing her to make an offer of proof as to what Andrew would have said if he
testified, (3) not allowing her to present the Parent Report, and (4) applying one set
of evidentiary rules to Mother and a more lenient set of evidentiary rules to other
parties. We disagree.
A. Quashing of the Subpoena
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Opinion of the Court
As an initial matter, we must clarify the specific phase of the termination
proceeding during which, by quashing her subpoena, Mother contends the trial court
restricted her right to present evidence. At the hearing on the motion to quash, when
questioned about which phase of the termination proceeding she sought to present
Andrew’s testimony in, Mother responded “[t]hat’s my decision. That’s my attorney’s
decision.” However, on appeal, Mother does not challenge the adjudication phase of
the termination proceeding, noting “[a]dmittedly, the court correctly found grounds
to terminate parental rights[.]” Accordingly, we review whether the trial court’s
quashing of the subpoena restricted Mother’s right to present evidence at the
disposition or “best interest” phase of the termination proceeding.
The GAL requested the trial court quash Mother’s subpoena on the basis that
compelling Andrew to appear and testify during either phase of the termination
proceeding would be “unreasonable and oppressive.” See N.C. Gen. Stat. § 1A-1, Rule
45(c)(3) and (5) (2015) (providing that a trial court may modify or quash a subpoena
if the subpoenaed person demonstrates the existence of certain grounds, including
that the subpoena is otherwise unreasonable or oppressive). As support for the notion
that the subpoena was unreasonable and oppressive, the GAL noted the following
pertinent facts:
6. In a phone conversation in early July, 2015, mother told
[Andrew] that she was going to have her attorney interview
him, and that she wanted him to testify at the TPR
hearing. In the days that followed, [Andrew] was agitated,
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Opinion of the Court
and observed to be walking in his sleep. Mother was
warned that this topic was upsetting to [Andrew]. . . .
7. The child ha[d] not expressed any desire to participate
in the hearing on termination of his mother’s parental
rights.
8. According to the child’s therapist, he will likely
experience significant emotional distress and regress from
his recent progress in therapy, if required to appear and
testify in this proceeding.
Additionally, the GAL attached a letter from Andrew’s therapist stating “[t]he
Kidspeace clinical team have staffed this case and determined that [Andrew’s]
presence in court and testimony would be detrimental to his treatment progress and
stability.”
The motion to quash the subpoena came on for hearing on 19 August 2015.
Andrew’s therapist, Stephanie Batchelor (“Batchelor”), and Mother testified at the
hearing. Batchelor testified that Andrew had not, in their conversations, expressed
any interest in participating in the termination proceeding. On cross examination,
counsel for Mother and Batchelor engaged in the following exchange:
MOTHER’S COUNSEL: So, it is correct that you do believe
that [Andrew] could participate in a limited capacity in this
hearing?
BATCHELOR: If it was so required I think that you would
probably not get what you hope to because of his level of
anxiety and that he does have some limited insights.
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Opinion of the Court
Following Batchelor’s testimony, Mother testified. Mother’s counsel inquired
as to what topics Mother expected Andrew to testify about, which resulted in the
following exchange:
[MOTHER]: Well there are a number of things uhm, that
he could potentially tell you. Uhm, about his life with me
and uhm, his life in foster care and how different the two
are and whether it be a positive or a negative uhm, change
being in foster care. Uhm, the experiences being
institutionalized for nine months and being hospitalized
three times in nine [months] under DSS’s custody. Uhm,
he’s been through a traumatic time. He’s been out of school
for most of the two years. His IEP was out of compliance
for most of the two years that he’s been in foster care. He
could tell you a number of things but his experience has not
been positive. His uhm, experience in foster care has been
a detriment.
THE COURT: Okay, [Mother], I’m going to interrupt you.
I don’t want you to testify about what you perceive his
experience to be. I think the question was what did you
expect him, the subject matter that you expected to elicit
from him.
[MOTHER]: Okay.
THE COURT: And I believe that question’s been answered.
Mother testified that Andrew’s “wants and needs from his perspective need[]
to be presented to the [c]ourt.” Furthermore, Mother testified that “I’m aware that
[Andrew] could [testify] in chambers or he could [testify] off site, or remotely, but he
still needs that opportunity. It doesn’t absolutely have to be in the courtroom.”
Thereafter, the trial court concluded:
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Opinion of the Court
All right, the [c]ourt has heard testimony as well as
reviewed the uhm, GAL Exhibits and Petitioner’s Exhibits
and the [c]ourt finds that given the burdens of proof in a
hearing to terminate parental rights, that the testimony of
one of the two minor children which are the subject of these
hearings would be of extremely limited prohibitive [sic]
value and in fact in a balancing test of concerns it would
overwhelmingly . . . be detrimental to his well-being and
the guiding star in this courtroom is the best interests of
minor children and having so concluded that it would be of
limited prohibitive [sic] value and detrimental, the [c]ourt
quashes the subpoena issue in this matter.
The trial court memorialized the order quashing the subpoena on 19 October
2015, finding the following:
1. [Andrew] is thirteen years old, and under the care of
therapist, Stephanie Batchelor.
...
3. [Andrew] has had little face-to-face contact with his
mother since March, 2015, and no visitation. Mother
participated in one session of family therapy with
[Andrew], but then refused to attend further sessions. Said
family therapy was made a precondition to resumed
supervised visitation by this court’s order, entered March
17, 2015.
4. The conditions that led to the removal of [Andrew] have
already been adjudicated, and those findings of fact and
conclusions of law are beyond appeal. The hearing on
terminating mother’s parental rights will focus on mother’s
progress in completing the things this court determined
were necessary to correct the conditions that led to
removal, and mother’s present mental health. [Andrew]
has little direct knowledge of these things.
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5. In a phone conversation in early July, 2015, mother told
[Andrew] that she was going to have her attorney interview
him, and that she wanted him to testify at the TPR
hearing. In the days that followed, [Andrew] appeared
agitated. Mother was warned that this topic was upsetting
to [Andrew]. Mother subsequently requested the address
of the child’s foster home, in order to mail a subpoena
directly to the child. DSS did not provide the address.
Mother’s attorney served the subpoena upon the attorney
for the GAL program.
6. According to the child’s therapist, he will likely
experience significant emotional distress and regress from
his recent progress in therapy, if required to appear and
testify in this proceeding.
7. The burden of proof in the termination of parental rights
is upon the petitioner, Durham County DSS. Mother could
not clearly articulate any factual issues within the child’s
knowledge that were necessary to her defense of the
termination action, and unavailable from other sources.
Based on these findings, the trial court made the following conclusions:
1. Any testimony of the child would be of little probative
value.
2. The experience of testifying is likely to cause the child
significant emotional harm.
3. The best interests of the child are this court’s paramount
concern.
Mother argues that the trial court “failed to adequately consider the relevancy
of any testimony by Andrew.” After careful review of the transcript of the hearing
and the written order, we disagree with Mother’s contention and hold that the trial
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Opinion of the Court
court sufficiently considered the relevancy of Andrew’s testimony as to the
termination proceeding in determining whether to quash Mother’s subpoena.
Mother did not specify before the trial court that she was requesting Andrew’s
testimony at the disposition hearing. Several of the trial court’s findings of fact in
the subpoena order relate to the relevance of Andrew’s testimony as to the
adjudication hearing. However, the record reflects that the trial court also considered
the relevance of Andrew’s testimony to the disposition hearing. At the hearing on the
GAL’s motion to quash the subpoena, Mother outlined the topics she expected Andrew
to testify about, including his life with Mother and his life in foster care, and his
experiences in foster care. The trial court found that Andrew “has had little face-to-
face contact with his mother since March, 2015, and no visitation.” This finding is
relevant to the bond between the parent and child – one of the six factors the relevant
statute directs the trial court to consider in determining the best interests of the child.
See N.C. Gen. Stat. § 7B–1110(a). The trial court’s conclusion that “[a]ny testimony
of the child would be of little probative value” demonstrates that it adequately
considered the relevancy of Andrew’s testimony as to the termination proceeding as
a whole, including the disposition hearing.
In determining whether to quash the subpoena, the trial court also considered
if testifying was in Andrew’s best interest. The court admitted into evidence and
considered a letter written by Batchelor on 12 August 2015. The court also heard the
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opinion of Batchelor that testifying “could potentially pose a risk factor for [Andrew]
to emotionally and behaviorally regress and cause increased anxiety.” Batchelor
testified that “it’s my understanding based on two phone calls in which [Mother]
discussed court testimony with [Andrew], . . . he appeared distressed and with a labile
mood and some behavioral regression afterwards.” The trial court concluded that
“[t]he experience of testifying is likely to cause the child significant emotional harm”
and “[t]he best interests of the child are this court’s paramount concern.”
By presenting comprehensive evidence regarding Andrew’s mental health
condition and his extreme distress during and following contacts with Mother
regarding her desire that he testify, the GAL properly demonstrated that the
subpoena for Andrew was “unreasonable or oppressive.” Mother has failed to show
that the trial court abused its discretion in quashing the subpoena. We therefore
affirm the trial court’s decision.
B. Offer of Proof
Mother contends that the trial court erred during the disposition hearing by
denying her request to make an offer of proof as to what Andrew would have said if
he were allowed to testify. We disagree.
Mother alleges error based on the following exchange at the disposition hearing
between Mother, her attorney, and the trial court:
MOTHER’S COUNSEL: And why did you want to have
[Andrew] testify in this hearing?
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Opinion of the Court
MOTHER: I wanted him to speak for himself.
MOTHER’S COUNSEL: Okay.
MOTHER: Because Ms. Dearing has been speaking for
him.
MOTHER’S COUNSEL: Okay. Uhm, what do you believe
[Andrew] would have said if he, if he would have testified,
regarding your relationship?
THE COURT: Sustained.
MOTHER’S COUNSEL: Your Honor, this is something
that’s actually required uhm, for the record and for the
higher courts that whenever a subpoena for a child is
quashed there has to be, this has to be on the record what
the child would have testified to—
THE COURT: No, I don’t think that’s a correct statement
of the law. I think the person may be required to submit a
proffer about the subject matter but to have someone else
and speak and say that if this person came they would have
said XYZ, uhm, is rather preposterous.
MOTHER’S COUNSEL: Okay.
THE COURT: The objection is sustained.
MOTHER’S COUNSEL: Okay, thank you, [y]our Honor.
MOTHER: Can I provide a proffer?
THE COURT: No, you may not.
The trial court’s statement that “I think the person may be required to submit
a proffer about the subject matter but to have someone else and speak and say that
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
if this person came they would have said XYZ . . . is rather preposterous” misstated
North Carolina statute and precedent. The North Carolina Code of Evidence provides
that a litigant cannot obtain relief on appellate review from a ruling excluding
evidence unless, “the substance of the evidence was made known to the court by offer
or was apparent from the context within which questions were asked.” N.C. Gen.
Stat. § 8C-103(a)(2) (2015). The North Carolina Supreme Court has held that
in order for a party to preserve for appellate review the
exclusion of evidence, the significance of the excluded
evidence must be made to appear in the record and a
specific offer of proof is required unless the significance of
the evidence is obvious from the record. . . . [T]he essential
content or substance of the witness’ testimony must be
shown before we can ascertain whether prejudicial error
occurred.
State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985) (citation omitted).
The trial court’s misstatement of the law was not, however, an abuse of
discretion in this case, because the essential content or substance of testimony that
Mother sought to elicit from Andrew had been previously made known to the trial
court. Prior to the disposition hearing, during the hearing on the GAL’s motion to
quash Mother’s subpoena of Andrew, Mother testified:
Well there are a number of things uhm, that he could
potentially tell you. Uhm, about his life with me and uhm,
his life in foster care and how different the two are and
whether it be a positive or a negative uhm, change being in
foster care. Uhm, the experiences being institutionalized
for nine months and being hospitalized three times in nine
[months] under DSS’s custody. Uhm, he’s been through a
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
traumatic time. He’s been out of school for most of the two
years. His IEP was out of compliance for most of the two
years that he’s been in foster care. He could tell you a
number of things but his experience has not been positive.
His uhm, experience in foster care has been a detriment.
This Court has held that “[t]hough a formal offer is the preferred method, there
are reasons where a trial court may deem an informal offer to be appropriate.” State
v. Martin, __ N.C. App. __, __,774 S.E.2d 330, 333 (2015), review denied, __ N.C. __,
__, 775 S.E.2d 844 (2015). This Court has explained that
an informal offer is only sufficient when the attorney
making the offer demonstrates a specific forecast of what
the testimony would be, rather than merely his guess as to
what the witnesses might say. A specific forecast would
typically include the substance of the testimony (as
opposed to merely stating what he plans to ask the
witness), the basis of the witness’ knowledge, the basis for
the attorney’s knowledge about the testimony, and the
attorney’s purpose in offering the evidence.
Id. at __,774 S.E.2d at 333 (internal quotation marks, citations, and alterations
omitted).
At the hearing on the GAL’s motion to quash the subpoena, Mother
represented to the court a “specific forecast” of Andrew’s testimony. Mother stated
that Andrew could testify about his life with her and his life in foster care and the
difference between the two; his experience being institutionalized for nine months
and hospitalized three times while in DSS custody; his IEP being out of compliance
during his time in foster care; and his experience in foster care being a detriment. In
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
addition to forecasting the substance of Andrew’s testimony, Mother represented the
basis of Andrew’s knowledge as being his own personal knowledge and the basis of
her knowledge about Andrew’s testimony as being her opinion. Finally, Mother
represented that her purpose in offering Andrew’s testimony was so his “wants and
needs from his perspective” could be presented to the court. We hold that Mother’s
testimony at the subpoena hearing provided a sufficient informal offer of proof that
the trial court could, in its discretion, rely upon in excluding a formal offer of proof
because Mother’s prior testimony “establish[ed] the essential content or substance of
the excluded testimony.” State v. Walston, 229 N.C. App. 141, 145,747 S.E.2d 720,
724 (2013), reversed on other grounds, 367 N.C. 721, 766 S.E.2d 312 (2014).
At the disposition hearing, following the trial court’s statement indicating that
an offer of proof must be limited to the subject matter of anticipated testimony,
Mother’s counsel did not attempt to make a further or different offer. Mother, not
her counsel, then asked the trial court to allow her to testify about what she expected
Andrew’s testimony to be, and the trial court rejected Mother’s personal request. We
note that the better practice for Mother’s counsel would have been to announce to the
trial court the intention to make an offer of proof before seeking testimony from
Mother about what Andrew would say if called to testify, so that it would be clear to
the trial court that Mother was not offering into evidence testimony that was hearsay
or lacking foundation. We also note that the better practice for the trial court would
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
have been to allow Mother’s counsel to proceed in making a formal offer of proof.
However, we cannot conclude that the trial court, after having heard and considered
Mother’s proffered information at a prior hearing, abused its discretion in rejecting
Mother’s proffer at the disposition hearing. In the context of all the evidence
presented, we cannot hold that the trial court’s ruling was “so arbitrary that it could
not have been the result of a reasoned decision.” Hennis, 323 N.C. at 285, 372 S.E.2d
at 527.
C. Parent Report
Mother contends that the trial court abused its discretion when it did not allow
her to introduce her Parent Report and other documents into evidence at the
disposition hearing. We reject this argument because Mother failed to preserve the
issue for appellate review.
Prior to the start of the adjudication hearing, on 19 October 2015, the trial
court conducted a hearing on the “GAL’s Response to Mother’s Proposed Evidence &
Motion in Limine.” Counsel for all parties were present and had the opportunity to
be heard. The trial court focused on the impropriety of Mother’s filing of the Parent
Report and the other documents contained in the Green Folder independent of her
counsel, in violation of the North Carolina Rules of Civil Procedure. The trial court
granted the GAL’s motion in limine, and ordered that the documents be stricken “in
their entirety from the [c]ourt file.”
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
The court’s ruling excluding the documents from evidence and striking them
from the record prior to the adjudication hearing did not prevent Mother’s counsel
from seeking to properly introduce them as evidence during the disposition hearing.
Mother’s counsel failed to proffer the Parent Report and all contents of the Green
Folder during the disposition hearing, and, as such, Mother has not preserved this
issue for appellate review. See State v. McCall, 162 N.C. App. 64, 68, 589 S.E.2d 896,
899 (2004) (holding that where a motion in limine is granted, “[i]n order to preserve
the underlying evidentiary issue, a party . . . is required . . . to attempt to introduce
the evidence at the trial”) (internal quotation marks, citations, and alterations
omitted). The reason for this requirement is that the trial court’s ruling on a motion
in limine is preliminary to any evidence, and the court may reconsider the
admissibility of challenged evidence based on other evidence presented at trial.
Heatherly v. Indus. Health Council, 130 N.C. App. 616, 619-20, 504 S.E.2d 102, 105
(1998) (holding that “the court’s ruling is not a final ruling on the admissibility of the
evidence in question, but only interlocutory or preliminary in nature. Therefore, the
court’s ruling on a motion in limine is subject to modification during the course of the
trial[]”). For example, during the disposition hearing, Mother’s counsel introduced in
evidence a 2015 letter from Dr. Morris at Duke Medicine that Mother had attached
to the Parent Report and included in the Green Folder. Over the GAL’s objection, the
trial court admitted the document into evidence.
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
D. Different Evidentiary Rules
Mother contends the trial court abused its discretion by applying a different
set of evidentiary rules to her than it did to other parties. We disagree.
Mother testified and presented evidence during the disposition hearing, the
only phase of the termination proceeding at issue in her appeal. Mother argues that
“[t]he trial court’s refusal to allow the [Parent Report] was just another example of
its double standard during the best interest phase.” We reject this argument because,
as discussed supra, Mother’s counsel did not seek to introduce the Parent Report
during the disposition hearing.
Mother also argues that the trial court violated her due process rights by
quashing her subpoena for Andrew’s testimony. One purpose of the Juvenile Code is
“[t]o provide procedures for the hearing of juvenile cases that assure fairness and
equity and that protect the constitutional rights of juveniles and parents[.]” N.C.
Gen. Stat. § 7B-100 (2015); see also In re L.D.B., 168 N.C. App. 206, 209, 617 S.E.2d
288, 290 (2005) (holding that a respondent father’s right to present evidence in a
termination hearing “is inherent in the protection of due process[]”).
As explained above, we hold that the trial court did not abuse its discretion in
quashing the subpoena for Andrew’s testimony. The trial court’s decision to quash
Mother’s subpoena was based on a reasonable weighing by the trial court of the
relevance of Andrew’s testimony and the detrimental effect that testifying would have
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
on Andrew. A careful review of the record demonstrates that the trial court’s
evidentiary rulings “assure[ed] fairness and equality” and provided Mother with a
meaningful opportunity to participate in the termination proceeding.
At the disposition hearing, the trial court admitted the following exhibits
presented by Mother: a 12 May 2014 letter from Dr. Alexander Myers and Louise
Southern at the Autism Society of North Carolina; letters dated 21 July 2015 and 22
September 2015 from Dr. Beatriz Morris at Duke Children’s Primary Care; an
evaluation report sent from the diagnostic team to the IEP Committee of Clark’s
school; and a letter dated 17 August 2015 from Dr. Barbara Keith Walter with Duke
University Medical Center. Moreover, prior to the disposition hearing, Mother was
provided with reports putting her on notice of the theories of DSS and the GAL
regarding the best interests of the children. Mother could have subpoenaed witnesses
to come and testify regarding these reports in the disposition hearing, but failed to
do so.
Because the trial court applied the same evidentiary standards to all parties
and because Mother had the right to participate and present relevant evidence at the
disposition hearing, we reject Mother’s argument.
II. Best Interest Determination
Finally, Mother contends that the trial court abused its discretion by
determining that termination of her parental rights was in the best interests of the
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
children. Specifically, Mother challenges Dispositional Findings of Fact2 Numbers 4,
5, 6, 7, and 8 as not supported by competent evidence, and challenges the court’s
conclusion that termination was in the best interests of the children. For the reasons
discussed below, we conclude that each of the challenged findings of fact were
supported by competent and sufficient evidence introduced during the termination
proceeding, and that the trial court’s conclusion was supported by its findings of fact.
“We review the trial court’s conclusion that a termination of parental rights
would be in the best interest of the child on an abuse of discretion standard.” In re
R.B.B., 187 N.C. App. 639, 648, 654 S.E.2d 514, 521 (2007).
A. Challenged Findings
Mother challenges Dispositional Finding of Fact 4, which reads: “[Andrew]
loves his mother, but is wary of her anger. He does not mention her, or ask about her
present circumstances. [Clark] shows affection towards his mother during visits, but
parts from her without distress.” Dearing, Andrew’s social worker, testified that
Andrew “definitely loves his mother very much, . . . it’s you know, apparent . . . in his
conversations with her on the phone from what I’ve heard. I’ve not participated in
those. . . . [B]ut he, you know, definitely is receptive to talking to her.” However,
Dearing also testified that “in conversations with [Andrew’s] previous therapist and
his present therapist, he does have some concerns about her anger. . . . [A]nd you
2 Mother’s brief mistakenly refers to these dispositional findings as conclusions of law.
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
know, whether or not she would still be angry with him if he returned home.”
Furthermore, Dearing testified that “other than the phone calls, [Andrew] does not
really talk about [Mother].” Dearing testified that Clark “does have a bond with his
mother as well. . . . [H]e is affectionate towards her . . . usually when he comes in for
visits, although does want to . . . end the visit at certain times, . . . he, you know,
responds to her attention . . . but then is just as willing to leave [] when the visit is
over.” This evidence was competent and sufficient to support the challenged finding.
Mother also challenges Dispositional Finding of Fact 5, which reads: “[t]he
permanent plan is adoption. Mother declined to relinquish. Termination of parental
rights will promote the prompt achievement of the plan for permanence.” During the
adjudication hearing, at DSS’s request, the trial court took judicial notice of the
decretal portions of each review hearing, including the oral order entered 17 March
2015, memorialized to writing 8 June 2015. In that Permanency Planning Review
Order, the trial court changed the permanent plan of care for the children to adoption,
with an alternative plan of guardianship with a court-appointed caretaker. At the
disposition hearing, Dearing testified that if Andrew becomes “legally free” for
adoption, there will be “a lot more” available placement options for him. The trial
court noted that termination of Mother’s parental rights will “aid in the
accomplishment of a permanent plan for [Andrew] . . . now that he has blossomed
relatively speaking . . . so that he can be in a stable home . . . and search for that
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Opinion of the Court
home[.]” This evidence was competent and sufficient to support the challenged
finding.
Mother also challenges Dispositional Finding of Fact 6, which reads: “[t]he
likelihood of adoption for [Andrew] is good. His present foster parents do not wish to
adopt. [Andrew] is already listed on a ‘legal risk placement’ website, but legal
clearance will enable the social worker to reach out to far more candidates to provide
[Andrew] with a permanent home.” Dearing testified that, in the past school year,
Andrew had transitioned to “more mainstream classes” and “was able to pass all of
his classes this past quarter,” with the exception of one “D.” Dearing testified that
Andrew is “doing well with the foster parents,” has shown a decrease in self-injurious
behavior, “is very likeable,” and is “very adaptable to [] our family unit.” Dearing
further testified that “while he does have the diagnosis of autism[,] he is very high
functioning . . . and would be considered adoptable.” Dearing testified that Andrew’s
“current caretakers have stated that they are not interested in adopting him, not
because they don’t care for him but just because they [] don’t want to have the
commitment of adopting any child. It’s not just [Andrew] specifically.” This evidence
was competent and sufficient to support the challenged finding.
Mother challenges Dispositional Finding of Fact 7, which reads: “[t]he
likelihood of adoption for [Clark] is high, because his present foster family wants to
adopt him, and has demonstrated strong ability to meet his needs.” Dearing testified
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IN THE MATTER OF A.H., C.H.
Opinion of the Court
that Clark’s foster family has “stated very strongly that they want to adopt him.”
Dearing testified that Clark “has certainly shown a lot more progress in this home
than he has in any of the placements that he has been in previously[,]” noting that
his speech and behavior had both improved. Dearing further testified that Clark’s
foster mother has worked with children with autism for over twenty years and “has
a great deal of . . . experience in the field of working with children and adults with
autism.” This evidence was competent and sufficient to support the challenged
finding.
Finally, Mother challenges Dispositional Finding of Fact 8, which reads:
“[t]here are no present viable candidates for guardianship or custody, and adoption
is far more likely than either of those to result in true permanence and repose for
these children.” Dearing testified that “in order to give the children permanence, []
given [Mother’s] difficulty interacting with foster placements in the past, there is not
really [] a possibility that there would be a stable placement that either child could
go to.” Dearing testified that “in order to have a permanent placement for either
child, the parental rights would need to be terminated.” This evidence was competent
and sufficient to support the challenged finding.
B. “Best Interest” Factors
Mother contends that the termination order did not adequately consider three
of the six factors a trial court is instructed to consider in making its best interest
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Opinion of the Court
determination. In determining the issue of best interest, N.C. Gen. Stat. § 7B-1110(a)
directs the trial court to consider and make written findings regarding the following
relevant criteria:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in
the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and
the proposed adoptive parent, guardian, custodian, or other
permanent placement.
(6) Any relevant consideration.
Mother argues the trial court did not consider “the likelihood of adoption,”
“whether the termination of parental rights will aid in the accomplishment of the
permanent plan for the juvenile,” and “the bond between the juvenile and the parent.”
Because the record reflects that the trial court considered evidence as to each relevant
ground listed in N.C. Gen. Stat. § 7B–1110(a) and made adequate findings, we
disagree with Mother’s contention.
The trial court’s dispositional findings demonstrate that the court considered
the relevant criteria in determining that termination was in the best interests of
Andrew and Clark. Specifically, as discussed supra, the trial court made findings,
supported by competent evidence, concerning the likelihood of adoption for Andrew
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Opinion of the Court
and Clark, concerning whether termination of Mother’s parental rights would aid in
the accomplishment of the permanent plan of adoption, and concerning the bond
between Mother and each of the children.
Mother contends that the trial court abused its discretion in concluding that
termination of her parental rights was in the best interest of Andrew because
“[r]ealistically[,] Andrew was not going to be adopted by anyone.” Mother argues that
Andrew’s situation is comparable to the juvenile in In re J.A.O., 166 N.C. App. 222,
227-28, 601 S.E.2d 226, 230 (2004).
In J.A.O., this Court held that the trial court abused its discretion in
determining that termination of the mother’s parental rights was in the best interest
of the juvenile, where the GAL “argued at trial[ that] it is highly unlikely that a child
of [the juvenile’s] age and physical and mental condition would be a candidate for
adoption, much less selected by an adoptive family.” Id. at 228, 601 S.E.2d at 230.
This Court recognized that a small possibility of the juvenile’s adoption remained,
but, held, “we are unconvinced that the remote chance of adoption in this case justifies
the momentous step of terminating respondent’s parental rights.” Id.This case is distinguishable from J.A.O. Dearing testified that “while [Andrew]
does have the diagnosis of autism[,] he is very functioning” and “would be considered
adoptable.” Furthermore, Dearing testified that if Andrew were to become “legally
free,” i.e., if Mother’s rights were terminated, there will be a “lot more . . . options
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Opinion of the Court
available for him.” This testimony provided competent evidence to support the trial
court’s finding that “[t]he likelihood of adoption for [Andrew] is good.” Moreover, this
Court has held that “the absence of an adoptive placement for a juvenile at the time
of the termination hearing is not a bar to terminating parental rights.” In re D.H.,
232 N.C. App. 217, 223, 753 S.E.2d 732, 736 (2014) (citation omitted). Therefore, we
reject Mother’s argument that the trial court did not adequately consider the
adoptability of Andrew.
Mother also contends that the trial court did not adequately consider her bond
with her children. Specifically, Mother argues that “[b]oth children had great
relationships with their mother.”
In determining the best interests of the children, in addition to the evidence
presented at the disposition hearing and previously addressed supra, the trial court
also considered evidence from the adjudication hearing. The trial court made the
following pertinent findings of fact based on the evidence presented at the
adjudication hearing:
30. . . . Mother’s visits were transferred from her home to
the observation room at DSS after an October 23, 2015
incident in which [M]other admitted to dragging [Clark] to
his time-out spot during a tantrum. . . .
31. . . . [Mother] once told [Andrew] it was his fault he was
in foster care. These things were upsetting to [Andrew],
who had a long-standing pattern of excessive self-blaming
and self-harm, known to his mother.
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Opinion of the Court
...
33. . . . In his individual therapy, [Andrew] had shared
memories of incidents in his mother’s home that were
painful to him, such as his being locked out of his home at
night, or occasions in which [Mother] allowed [Andrew’s]
older brother [] to give [Andrew] “whoopings” for bad
behavior. When these issues were raised in family therapy,
[Mother] was defensive and dismissive, and refused to
validate the child’s memories or feelings, to the child’s
detriment.
These findings are unchallenged by Mother on appeal. “Unchallenged findings of fact
are binding on appeal.” Peters v. Pennington, 210 N.C. App. 1, 13, 707 S.E.2d 724,
733 (2011) (citation omitted).
As support for Mother’s contention that the trial court did not adequately
consider her bond with her children, Mother points to evidence tending to show that
Andrew wanted to live with his mother, that Mother attempted to visit and contact
her children often, and that Mother was committed to the care and needs of her
children. Mother’s argument, however, disregards the well-established principle that
“[f]indings of fact supported by competent evidence are binding on appeal, despite
evidence in the record that might support a contrary finding.” In re C.I.M., 214 N.C.
App. 342, 345, 715 S.E.2d 247, 250 (2011). Here, the trial court made ample findings
of fact regarding the bond between Mother and her children.
Mother has failed to show that the court’s decision that the termination of her
parental rights as being in the best interests of Andrew and Clark was “so arbitrary
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Opinion of the Court
that it could not have been the result of a reasoned decision.” Hennis, 323 N.C. at
285, 372 S.E.2d at 527. Accordingly, we hold that the trial court made the requisite
findings under N.C. Gen. Stat. § 7B–1110(a) and these findings reveal a reasoned
decision within the court’s discretion.
III. Conclusion
We hold that the trial court did not improperly restrict Mother’s right to
present evidence at the disposition hearing. Additionally, we hold that the trial court
made the necessary and relevant findings in determining that termination of her
parental rights was in the best interests of Andrew and Clark. Accordingly, the trial
court did not abuse its discretion and we affirm the decision of the trial court.
AFFIRMED.
Judges DAVIS and ENOCHS concur.
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